Shermalji T. Malu v. Vanshraj Rikhavchand Bhagsali
2010-07-06
K.A.PUJ
body2010
DigiLaw.ai
JUDGMENT : K.A. Puj, J. The petitioners have filed this petition under Article 226 of the Constitution of India challenging the legality and validity of the impugned judgment and order dated 21.05.2010 passed by the Charity Commissioner in Judicial Misc. Application No.22 of 2009 whereby the Charity Commissioner has allowed the application filed by the respondent Nos.1 & 2 and directed the petitioners to call the meeting of the Gachchh for the religious functions and festivals. 2. It is the case of the petitioners that two Trusts were registered in the name of Shri Ahmedabad Khattargachchh Trust bearing Registration Nos. A-188 and A-189 for the administration of the properties of the Derashar and Dada Wadi (Upashreya) respectively. The Trustees of both the Trusts are same. There is no provision in the Trust Deed for membership nor members are enrolled in the Trusts. The objects of the Trusts are to administer the immovable properties for furtherance of the objects of Shwetamber Jain Murtipujak as per Jain Shastra. 3. It is also the case of the petitioners that two of the followers of the Khattargachchh, Parasmal Kanted and Om Prakash Dhariwal had filed an application being Judicial Misc. Application No.8 of 2008 before the Charity Commissioner, inter alia, praying for issuance of directions to the petitioners to use the properties of the Trust the objects and also praying for other reliefs. One of the reliefs sought for was to issue directions to the petitioners to introduce list of the members of the Gachchh and to issue directions to the petitioners to help and organize regular religious functions and programmes as were done in the past years in consultation with the members of the Gachchh. On issuance of the notice, the Trustees had appeared and filed a detailed reply contending that there are no members in the Trust and that the Trust Deed does not provide for any members. It was further pointed out that the Trust only facilitates organizing religious functions by providing premises to Sangh or Gachchh and Trust does not organize or conduct the religious functions or programmes. The In-charge Charity Commissioner vide judgment and order dated 04.10.2008 partly allowed the said application and issued various directions to the petitioners. 4.
It was further pointed out that the Trust only facilitates organizing religious functions by providing premises to Sangh or Gachchh and Trust does not organize or conduct the religious functions or programmes. The In-charge Charity Commissioner vide judgment and order dated 04.10.2008 partly allowed the said application and issued various directions to the petitioners. 4. The petitioner No.7 Trust vide its letter dated 04.11.2008 informed the In-charge Charity Commissioner that the direction No.1 was complied with since inception of the Trust and as regards the direction No.2, the provisions of Section 36 of the Act shall be fully complied with as and when occasion arises. As regards direction No.3, properties of the Trust are very much used for the purposes for which they are granted by the Trust. As regards direction No.4, it was informed that there are no members in the Trust and that Gachchh means a community or group of people believing in particular sect and it is impossible to make a list of the members of the community. As regards direction No.5, it was stated that the programmes are being organized by the community or the Sangh and the Trust is merely a facilitator. As regards direction No.6, it was stated that the said Trustee has informed to the Charity Commissioner regarding his status as Trustee. 5. It is also the case of the petitioners that the two other beneficiaries of the Trust have filed Judicial Misc. Applications No.3 & 4 of 2008 challenging the order dated 26.09.2003 passed by the Deputy Charity Commissioner in approving the Change Report No.652 of 2003 and 653 of 2003 respectively. The In-charge Charity Commissioner vide order dated 24.11.2008 had allowed the revision application and set aside the order of the Deputy Charity Commissioner in Change Report No.652 & 653 of 2003. Being aggrieved by the said order, the petitioners preferred Civil Misc. Applications No.1258 of 2008 to 1261 of 2008 before the City Civil Court, Ahmedabad. Along with the said Misc. Civil Applications, applications for stay were preferred. The City Civil Court vide its interim order had stayed the consequential directions issued by the In-charge Charity Commissioner. The City Civil Court vide its final order dated 06.03.2009 allowed the said applications and quashed and set aside the order of the Charity Commissioner and restored the order passed by the Deputy Charity Commissioner. 6.
The City Civil Court vide its interim order had stayed the consequential directions issued by the In-charge Charity Commissioner. The City Civil Court vide its final order dated 06.03.2009 allowed the said applications and quashed and set aside the order of the Charity Commissioner and restored the order passed by the Deputy Charity Commissioner. 6. Being aggrieved by the said order, the original applicants preferred First Appeal Nos.1052 to 1056 of 2009 before this Court. Though the First Appeals were admitted by this Court, no interim relief was granted. Since in the Civil Misc. Application filed before the City Civil Court, it was contended on behalf of the original applicants that the Trust and the Sangh are the same entity by virtue of the order of the In-charge Charity Commissioner passed in Judicial Misc. Application Nos.7 & 8 of 2008 and the petitioners have not complied with the order of the In-charge Charity Commissioner, the petitioners were constrained to approach this Court by filing Special Civil Application Nos.2307 & 2309 of 2009 challenging the judgment and order dated 04.10.2008 passed by the In-charge Charity Commissioner in Judicial Misc. Application Nos.7 & 8 of 2008. This Court vide its order dated 26.11.2009 issued rule and granted interim relief in terms of paragraph 9-D on the two conditions i.e. (1) before disposing of any property or appointing any Trustee, a General meeting of the Gachchh has to be called and (2) a list of the members of the Gachchh to be submitted before the Charity Commissioner. As far as these two conditions are concerned, the petitioners are required to call a meeting of the Gachchh prior to disposing of any property or appointing any Trustee and before calling the meeting, a list of the members of the Gachchh has to be produced before the Charity Commissioner. 7. During the pendency of these two petitions, the respondent Nos.1 & 2 who were also opponents No.3 & 4 in Judicial Misc. Application Nos.7 & 8 of 2008, addressed a letter dated 22.11.2008 to the Charity Commissioner for compliance of the order passed in Judicial Misc. Application Nos.7 & 8 of 2008. The Charity Commissioner treated the aforesaid letter as an application and registered it as Judicial Misc. Application No.22 of 2009. The petitioners appeared before the Charity Commissioner and submitted a detailed reply.
Application Nos.7 & 8 of 2008. The Charity Commissioner treated the aforesaid letter as an application and registered it as Judicial Misc. Application No.22 of 2009. The petitioners appeared before the Charity Commissioner and submitted a detailed reply. Without considering this reply, the Charity Commissioner vide order dated 21.05.2010 allowed Judicial Misc. Application No.22 of 2009 and issued directions to the petitioners to call a general meeting of the Gachchh for religious functions and festivals. 8. It is this order which is under challenge in the present petition. 9. Mr. Mihir Joshi, learned Senior Counsel appearing with Mr. Ashish H. Shah for the petitioners has submitted that the Charity Commissioner has no jurisdiction and it is beyond the scope and powers conferred by Section 41-A of the Bombay Public Trusts Act to issue the direction to the petitioners to call for the meeting of the Trust. He has further submitted that since the present respondent Nos.1 and 2 were not applicants in Judicial Misc. Application Nos.7 & 8 of 2008, they have no right or authority to file an application/letter for compliance of the order dated 24.10.2008 in Judicial Misc. Application Nos.7 & 8 of 2008. This letter was never submitted under Section 41-A of the Act. He has, therefore, submitted that the impugned order passed by the Charity Commissioner is without jurisdiction and beyond the scope of Section 41-A of the Act. The directions issued by the Charity Commissioner are beyond the pleadings of the parties. The letter dated 22.11.2008 addressed by the respondents was merely informing the Charity Commissioner regarding the actual position in reply to the letter of the petitioners dated 04.11.2008. In the letter filed by the respondent Nos.1 & 2, no prayers were made. The findings of the Charity Commissioner to the effect that Gachchh and Trust are one and the same and that there are members of the Gachchh is contrary to the evidence on record. He has further submitted that plain reading of the order dated 26.11.2009 passed by this Court in Special Civil Application Nos.2307 & 2309 of 2009 makes it clear that the operation and execution of the order dated 04.10.2008 passed in Judicial Misc.
He has further submitted that plain reading of the order dated 26.11.2009 passed by this Court in Special Civil Application Nos.2307 & 2309 of 2009 makes it clear that the operation and execution of the order dated 04.10.2008 passed in Judicial Misc. Applications No.7 & 8 of 2008 is stayed on condition that before the appointment of any Trustee or before disposing of any property of the Trust, the Trust shall call for a meeting of the Gachchh and contrary thereto, the Trust shall provide a list of members of the Gachchh to the Charity Commissioner. The Trust is not intending to dispose of any property or appoint any Trustee in the near future and, therefore, there is no violation of the order of this Court and on this ground, the impugned judgment and order is liable to be quashed and set aside. 10. Mr. Joshi has further submitted that during the course of hearing of the petition, it was contended on behalf of the respondent Nos.1 & 2 that the petitioners had in Special Civil Application No.2307 of 2009 shown their willingness to comply with conditions except condition No.4 and, therefore, they are obliged to implement the order dated 04.10.2008 of the Charity Commissioner passed in Judicial Misc. Application Nos.7 & 8 of 2008. He has further submitted that this Court had in the aforesaid Special Civil Application No.2307 of 2009 granted interim relief in terms of paragraph 9 - D on two conditions - (I) before disposing of any property or appointing any Trustee, a general meeting of the Gachchh be called and a list of members of the Gachchh shall be submitted before the Charity Commissioner. He has further submitted that the order of this Court dated 26.11.2009 is being wrongly interpreted in as much as, if all the conditions except condition No.4 are to be complied with by the petitioners, then the petition would have been dismissed in as much as by imposing the conditions, the Court had already directed the petitioners to comply with condition No.4 by producing list of members of Gachchh before the Charity Commissioner. The petitioners were under the bonafide impression that the petitioners have to call a general meeting of the Gachchh before disposing of any property or appointing any Trustee, and that, prior thereto, the petitioners had to submit the list of members of the Gachchh before the Charity Commissioner.
The petitioners were under the bonafide impression that the petitioners have to call a general meeting of the Gachchh before disposing of any property or appointing any Trustee, and that, prior thereto, the petitioners had to submit the list of members of the Gachchh before the Charity Commissioner. Since the petitioners had not undertaken any exercise for disposing of any property of the Trust or appointing any Trustee, the petitioners have not submitted a list of members of the Gachchh before the Charity Commissioner. The petitioners, without prejudice to their rights and contentions submitted that the petitioners would issue a public advertisement in a vernacular daily newspaper i.e. Divya Bhaskar or Gujarat Samachar inviting applications from the Khattargachchh community for preparing a list of Khattargachchh followers latest by 02.07.2010. Applications would be invited by public advertisement requesting the followers of Gachchh to submit a form with the office of the Trust within a period of 30 days from the date of the advertisement and after receipt of the applications from the followers of Gachchh, a final list of the followers of Gachchh would be finalized within a period of 15 days and the same would be submitted before the Charity Commissioner within a period of further 7 days. 11. Mr. Joshi further submitted that during the hearing of the present Special Civil Application, it was contended on behalf of respondent Nos.1 & 2 that since the petitioners have shown their willingness to comply with all the conditions except condition No.4 as directed by the Charity Commissioner vide order dated 04.10.2008 passed in Judicial Misc. Applications No.7 & 8 of 2008, the petitioners cannot now contend that they are not in a position to comply with the same. Since the Trust is not holding any religious activities, it is not required to call a meeting of the Gachchh. The condition No.5 was stayed by this Court which was regarding holding of meeting of Gachchh for religious purposes as the entire order was stayed by this Court. Since the Trust is not intending to carry out any religious function or ceremony in the near future and hence, direction to call for the meeting is misplaced and misconceived. He has, therefore, submitted that the impugned order is based on extraneous consideration and, therefore, the same is liable to be quashed and set aside. 12. Mr.
Since the Trust is not intending to carry out any religious function or ceremony in the near future and hence, direction to call for the meeting is misplaced and misconceived. He has, therefore, submitted that the impugned order is based on extraneous consideration and, therefore, the same is liable to be quashed and set aside. 12. Mr. M. I. Merchant, learned advocate appearing for the respondents, on the other hand, has supported the order passed by the Charity Commissioner. He has submitted that the order dated 26.11.2009 passed by this Court in Special Civil Application No.2307 of 2009 is very clear. In the opening paragraph, it is specifically observed by the Court that the petitioners have shown their willingness to comply with all the conditions stipulated therein, except direction No.4. After recording the consent given by the petitioner Trust, the Court has issued rule and interim relief was granted in terms of paragraph 9 (D) subject to two conditions. He has, therefore, submitted that the order has to be read in its entirety. If the conditions are laid down by the Charity Commissioner and the compliance of those conditions was agreed to by the petitioners, it is not open for the petitioners to turn around and say that the petitioners are required to comply with only two conditions enumerated by the Court while granting interim relief in terms of paragraph 9 (D) of the petition. He has further submitted that since the order was not complied with for quite some time, the respondent Nos.1 & 2 have approached the Charity Commissioner seeking compliance of the said order. After an order is passed by the Charity Commissioner, seeking insistence of the compliance of the order of this Court, it cannot be said that the Charity Commissioner has exceeded his jurisdiction. He has further submitted that the distinction sought to be drawn by the petitioners between Sangh and Gachchh is also uncalled for. He has referred to various documents produced on the record of Special Civil Application Nos.2307 and 2309 of 2009. Based on these documents, he has emphatically submitted that there is no substance in the contention raised on behalf of the petitioners that there are no members of the Trust.
He has referred to various documents produced on the record of Special Civil Application Nos.2307 and 2309 of 2009. Based on these documents, he has emphatically submitted that there is no substance in the contention raised on behalf of the petitioners that there are no members of the Trust. While referring to the Clauses of the Trust Deeds, he has submitted that Sangh and Gachchh both are the same things and as a matter of fact, in the past, Trustees are appointed only at the meeting of the Sangh and hence, Trustees alone cannot appoint any new Trustees. He has further submitted that the properties of the Trust are to be used for the religious activities of the Trust and it cannot be said that the Trust is merely a facilitator and it does not undertake any activity. In this view of the matter, he has submitted that the order passed by the Charity Commissioner is just and proper and hence, there is no question of showing any indulgence in the said order. He has, therefore, submitted that the petition be dismissed with costs. 13. Mr. H.R. Prajapati, learned advocate appearing for the respondent No.2 has adopted the arguments of Mr. Merchant and Mr. Upadhyaya, learned advocate appearing for the Charity Commissioner has supported the order passed by the Charity Commissioner, while opposing this petition. 14. Having heard learned Senior Counsel Mr. Mihir Joshi appearing with Mr. Ashish H. Shah for the petitioners, Mr. M. I. Merchant, learned advocate appearing for the respondent No.1 and Mr. H.R. Prajapati, learned advocate appearing for the respondent No.2 and Mr. C.B. Upadhyaya, learned advocate appearing for the Charity Commissioner and having considered their rival submissions in light of the impugned order passed by the Charity Commissioner as well as the earlier directions issued by this Court in Special Civil Application No.2307 of 2009 while passing an interim order, the Court is of the view that since the earlier directions and/or the conditions imposed by this Court while granting interim relief have not been complied with, respondent Nos.1 & 2 were constrained to approach the Charity Commissioner and having regard to the peculiar facts and circumstances of the case, the Charity Commissioner was justified in issuing directions to the petitioners to call for the meeting of the members of the Khattargachchh for religious activities and functions and also for observing religious festivals.
The Charity Commissioner has given 20 days time to the petitioners to call for such meeting and within such period, if meeting is not called for, in that case, the applicants of the said application - present respondent Nos.1 & 2 who are also the Trustees of the Trust were permitted to call for the meeting along with other Trustees. 15. While considering the directions issued by the Charity Commissioner in their proper perspective, one has to see the directions issued by this Court on 26.11.2009 as well as the averments made by the present respondent Nos.1 & 2 in their application before the Charity Commissioner. Apart from the fact that during the course of hearing of earlier petition i.e. Special Civil Application No.2307 of 2009 before this Court, the learned Counsel appearing for the petitioners had made the statement that pursuant to the order dated 04.10.2008 passed by the learned Charity Commissioner, the petitioners have shown their willingness to comply with all the conditions imposed/stipulated therein except direction No.4, the Court while admitting the petition and granting interim relief in terms of paragraph 9 (d) has imposed two conditions, namely, (I) before disposing of any property or appointing any Trustee, a general meeting of the Gachchh be called and (II) a list of members of the Gachchh shall be submitted before the learned Charity Commissioner. It is true that the Court has granted interim relief in terms of paragraph 9 (d) of that petition, meaning thereby, the execution, operation and implementation of the impugned judgment and order dated 04.10.2008 passed by the In-charge Charity Commissioner in Judicial Misc. Application No.8 of 2008 was stayed. However, that order of admission and interim relief is preceded by consent and willingness shown by the learned Counsel appearing for the petitioners in that petition to comply with all the directions except direction No.4. Without going into the controversy as to whether the petitioners are bound to comply with the directions issued by the In-charge Charity Commissioner vide his order dated 04.10.2008, except direction No.4, as per their willingness shown before the Court, despite the fact that the said impugned order was stayed by this Court by imposing two express conditions, the Court is of the view that there is no justification on the part of the petitioners not to furnish the list of members of the Gachchh to the Charity Commissioner.
This condition is so clear and obvious that there is no question of having any second opinion about this. So far as the first condition imposed by the Court on 26.11.2009 is concerned, there may be some justification for the petitioners for not calling the general meeting of the Gachchh as there was no proposal for disposal of the property of the Gachchh nor any appointment of the Trustee. However, second condition, is irrespective of the fact whether the petitioners want to dispose of the property or to appoint any new Trustee. In any case, they are bound to furnish such list of members to the Charity Commissioner, which has not been done till the application was moved by the present respondent Nos.1 & 2 before the Charity Commissioner or even till the date on which the Charity Commissioner has passed the impugned order challenged in this petition. The contention of the learned Counsel appearing for the petitioners that the petitioners were under bonafide impression that such list is to be forwarded only when the property of the Gachchh is to be sold or any new Trustee is to be appointed. This is merely a lame excuse and no one can plead such ground for the purpose of justifying their failure to comply with a specific condition imposed by the Court. As a matter of fact, non-compliance of this condition would result into vacation of the interim relief granted by this Court. Be that as it may, the petitioners' failure to comply with the direction of the Court with regard to furnishing list of members to Charity Commissioner cannot be justified on any ground. 16. One more ground raised on behalf of the petitioners for non-compliance of this direction is that since there are no members of the Gachchh, there is no question of furnishing any list to the Charity Commissioner. Such a stand taken by the petitioners is highly deprecated as it should have been made clear before the Court at the time when the Court has passed the interim order on 26.11.2009 in Special Civil Application No.2307 of 2009 that there are no members of the Gachchh and hence, there is no question of furnishing any list to the Charity Commissioner. The petitioners remained silent at that point of time and invited order in their favour.
The petitioners remained silent at that point of time and invited order in their favour. Since the order could not be complied with till this date, they have raised this plea that there are no members of the Gachchh and hence, there is no question of furnishing a list of members to the Charity Commissioner. Even this plea raised by the learned counsel for the petitioners does not stand to the reasoning and it is contrary to the records and proceedings of earlier litigations. Earlier record shows that the Trustees have been appointed in the past in the Annual General Meeting of the members of the Sangh. Even the present Trustees of the Trust have been appointed by adopting such practice and procedure. The list of members is already there and the same has been furnished by the respondent Nos.1 & 2 to the Charity Commissioner. The petitioners are disputing this list and they are canvassing a very wide definition of Gachchh. The petitioners are treating this Gachchh as community at large and different Sanghs in different areas are constituting such Gachchh. Hence, all the members of these different Sanghs are the members of the Gachchh. Precisely for this reason, in further affidavit filed on 24.06.2010, it has been stated that without prejudice to their rights and contentions, the petitioners would issue a public advertisement in a vernacular daily newspaper i.e. Divya Bhaskar or Gujarat Samachar inviting applications from the Khattargachchh community for preparing a list of Khattargachchh followers latest by 02.07.2010 and that the applications would be invited by public advertisement requesting the followers of Gachchh to submit a form with the office of the Trust within a period of 30 days from the date of the advertisement and after receipt of the applications from the followers of Gachchh, a final list of the followers of Gachchh would be finalized within a period of 15 days and the same would be submitted before the Charity Commissioner within a period of further 7 days. The whole exercise was undertaken to be carried out on or before 30.09.2010. This is nothing but to side track of the entire issue. There may not be any objection for enrolling the new members of the Trust.
The whole exercise was undertaken to be carried out on or before 30.09.2010. This is nothing but to side track of the entire issue. There may not be any objection for enrolling the new members of the Trust. However, in the guise of such expanded meaning of Gachchh or of undertaking an exercise of inviting applications from the Khattargachchh community, non-furnishing of list of the existing members cannot be justified nor non-holding of meetings of such members can be justified. Since the time limit prescribed by the Charity Commissioner in calling for the meeting expires on 20.07.2010 as the said order was stayed till 30.06.2010, the petitioners are hereby directed to call for the meeting of the existing members as per the list submitted to the Charity Commissioner by the respondent Nos.1 & 2 who are also the Trustees of the Trust, within three weeks from today and take appropriate decision with regard to religious activities and functions during Chaturmas and also celebrating festivals during Paryushan. The Court is not impressed by the submission that the Trust has not to undertake or organize any religious activity or function or not to celebrate the festivals of its own and it has to simply maintain the properties of the Trust and to facilitate organizing religions functions by providing premises to Sangh or Gachchh. This meeting shall also take decision with regard to filling of vacancies of Trustees and inviting applications for membership from the Gachh/Community. 17. It is clarified that while deciding this petition, papers of earlier two petitions, namely, Special Civil Application Nos.2307 and 2309 of 2009 were called for as parties have referred to certain documents and proceedings forming part of the said two petitions. Since those two petitions were not fully argued, the Court has restrained itself from finally disposing off the said petitions. However, any interim order passed in the said two petitions must be viewed in light of the observations made and directions issued in this petition. The Registry is directed to place the copy of this order on the file of said two petitions. 18. Subject to the above direction and observation, the order passed by the Charity Commissioner is hereby confirmed and the petition filed by the petitioners is dismissed. Notice discharged. Interim relief, if any, stands vacated. Petition dismissed.