1. The petitioner has prayed for in present petition below mentioned relief:
"10(a) YOUR LORDSHIPS may be pleased to issue a writ of certiorari and/or any other appropriate writ, order or direction quashing and setting aside the part of the order dated 26.03.2008 in Application No.35/16/2003 in so far as it imposes personal fine of Rs.5,000/- upon the petitioner;
2. Learned advocate for the petitioner has submitted that the impugned order dated 26.3.2008 is arbitrary and unjust. He has also submitted that the petitioner of present petition was not the trustee at relevant time, i.e. at the time when the investment in mutual fund was made and that, therefore, there was no justification of imposing fine of Rs.5,000/- on the petitioner and directing the petitioner to pay such fine, particularly when the petitioner was not involved in the said action of investing the trust amount in mutual fund without prior permission of the Charity Commissioner.
3. It is further submitted by the learned counsel for the petitioner that the petitioner had merely made an application for post facto sanction and that, therefore, the order is unjustified since the order makes responsible to pay the fine.
4. So as to appreciate the grievance made by the petitioner, it is necessity to take into account certain relevant facts.
5. It appears from the record that a trust named Nariman Home and Infirmary Trust encashed certain fixed deposit upon its maturity and the amount received upon maturity of the said fixed deposit without prior permission required by the Act, invested in mutual fund.
6. Total sum of Rs.6 lakh was invested accordingly.
7. Before encashing the fixed deposit on its maturity and before taking the decision of not renewing the fixed deposit and to encash the same and to withdraw the amount from fixed deposit (instead of renewing the fixed deposit) and before taking the decision to invest the amount and also before investing Rs.6 lakh in mutual fund, prior permission of the competent authority was not taken. It appears that subsequently, the said trust made an application somewhere in June 2003 and prayed that the investment (which was made in December 1994 in mutual fund) may be regularised. Differently put, post facto permission and sanction of the competent authority was requested for.
8. The said request was made after almost 9 years since after the investment was made.
9. I have considered the submission raised by the learned advocate for the petitioner and also perused the record.
10. The competent authority took into consideration the request and also took into account the reasons mentioned in the application vis-a-vis the fact that the encashment of fixed deposit and receiving the amount upon encashment of fixed deposit was done without permission of the competent authority and thereafter investment of the amount in question in mutual fund was also done without permission of the competent authority.
11. The competent authority also took into consideration the fact that the statutory provision does not oblige the authority to examine intention of the trust for taking particular account. The authority took into account that all that is required to ascertain is whether prescribed procedure was followed or not and whether the prior permission was obtained or not.
12. The authority also considered the legal position that if the procedure prescribed by the statute is not followed, then it becomes duty of the competent authority to impose fine as contemplated by the Act.
13. Having regard to the factual aspects and the provisions under the Act, the competent authority passed the order dated 26.3.2008 directing the applicant to pay fine in sum of Rs.5,000/-.
14. The authority has directed that such fine shall not be paid from the fund of trust, then the same shall be paid by the concerned trustee.
15. In this background, the petitioner has approached with present petition with the request that the said order may be set aside since the petitioner was not office bearer of the trust at the relevant time.
16. In this context, it is noticed that the application was made in the name of trust.
17. Merely because the petitioner has taken in the petition and has urged that he was not office bearer at the relevant time, the order does not become bad in law because the order merely requires the concerned office bearer/trustee to pay the fine from his personal funds and not from the fund of the trust.
18. The purport of the order is that the persons who were office bearers or the trustee at the relevant time who took the decision and the action without complying the procedure prescribed under the Act, is/are responsible for payment and he/they should pay amount of fine from his/their personal fund and the amount of fund should not be paid from the fund of the trust.
19. So far as the order is concerned, on consideration of relevant facts and circumstances, it becomes clear that the order does not suffer from any infirmity.
20. The competent authority has taken into account the fact that (a) before passing resolution to encash fixed deposit of its maturity was not obtained; and (b) when it was resolved that the amount received on encashment of fixed deposit should be invested in mutual fund, any intimation was not given to the competent authority and any prior permission was not received; (c) even at the time when the investment of Rs.6 lakh came to be made in mutual fund, before making actual investment, permission as required under the provision of the Act was not requested for and obtained by the trust.
21. Accordingly, the competent authority came to the conclusion that there was clear and conscious breach of Section 35 of the Act.
22. After having come to the said conclusion, the competent authority has also considered the legal position that the relevant provision required to ascertain as to whether breach of section has been committed or not, the authority has also considered that section does not require the authority to examine intention behind the action which amounts to breach of the provisions of the Act.
23. After having taking into account of the said aspect, the competent authority came to the conclusion that the breach of Section 35 was committed and that, therefore, responsible person was required to be visited with appropriate order of fine in accordance with the provisions of the Act.
24. As a result of the discussions and reasons recorded in the order, the competent authority passed the order dated 26.3.2008 imposing fine in the sum of Rs.5,000/- and directed that the person concerned and responsible for the same should not deposit the said fine from the trust fund but should deposit the fine from personal fund.
25. Upon examining the order in question in light of the relevant facts and upon considering the reasons recorded in the order, it becomes clear that the order does not suffer from any infirmity.
26. The order in question is neither contrary to provisions contained under Section 35 nor can it be said to be arbitrary. The authority has recorded sufficient and cogent reason in support of the submission and that, therefore, the order cannot be treated as unreasoned or non-speaking order.
27. So far as the contention raised by the petitioner is concerned, it is fully misconceived inasmuch as the competent authority has not passed order in name of any particular person.
28. The fact and purport of the order is clear inasmuch as the office bearer/trustee who is responsible for the breach has to make the payment of fine.
29. The persons who are responsible for complying the order, are hiding behind the petitioner and the petitioner has come out with present petition to protect the said person. The entire purpose of present petition lacks bonafide. In these facts and circumstances, the petition is required to be dismissed.
30. In facts and circumstances and on overall consideration of the order and the relevant facts and circumstances and the process of reasoning and discussion, it emerges that the order does not suffer from any infirmity and the petition deserves to be dismissed and in accordingly dismissed.
(K.M.
Thaker, J.) Bharat*