1. Heard Mr. Karia, learned advocate for the petitioner, Mr. Pandya, learned Counsel with Mr. Patel, learned advocate for respondent Nos. 1, 2 and 3 and Mr. Upadhyaya, learned advocate for respondent No.4.
2. At the outset it is necessary to mention that consensus has been arrived at between the petitioner on one hand and respondent Nos. 1, 2 and 3 on the other hand and that therefore present order is passed with consent of the learned advocate for the petitioner and respondent Nos. 1, 2 and 3. Furthermore present order is also passed in light of the statement made by learned advocate for respondent No.4 Charity Commissioner that Charity Commissioner will complete the hearing of the application made under Section 41-A of the Act within six weeks.
3. Having regard to the submissions made on behalf of the petitioner and respondent Nos. 1, 2 and 3 as well as by the Charity Commissioner it appears that the cause for present petition arises from application dated 21.10.2011 made by present respondent No.1, under Section 41-A of the Act. After the said application was presented, the proceedings in connection with the said application have continued. In the interregnum certain order of interim relief / interlocutory nature was passed by respondent No.4 Commissioner. In background of the said application and the proceedings related to the said application, the petitioner has preferred present petition seeking below mentioned relief/s:-
(A) That Your Lordships may be pleased to issue writ of certiorari and / or any other appropriate writ, order or direction quashing and setting aside the impugned oder dated 2.3.2012 passed by the respondent No.2 extending the stay till further orders in Application No. 41/34/2011 pending before the respondent No.4 and further direct the respondent No.4 to hear the main matter at the earliest in the interest of justice.
(B)......
(C)......
(D).....
(E)....."
4. At the time of hearing limited grievance which is raised by Mr. Karia, learned advocate for the petitioner is that though proceedings were adjourned to 3.3.2012 (vide order dated 31.1.2012) certain order came to be passed on 2.3.2012 whereby earlier interim / interlocutory order (since the first date on which order was passed its operation was always being limited / restricted to next date) is converted into "unlimited order" inasmuch as the respondent No.4- Commissioner has directed that "stay is extended till further orders". Mr. Karia, leaned advocate for the petitioner has also submitted that actually on several occasions the stay order was not extended and suddenly by said order dated 2.3.2012 order (though on previous occasions i.e. on 24.11.2011, 25.11.2011, 5.1.2012 and 27.1.2012 it was not extended) came to be extended till further order.
So as to illustrate and substantiate the said submission Mr. Karia, learned advocate for the petitioner has placed on record chronology of dates prepared on the basis of the Rojkam. In the said chronology of dates and events copy of the Rozkam is also annexed.
The order by which the petitioner is aggrieved is placed on record at page 215.
The details of the events which have taken place since 21.10.2011 i.e. the date on which the application under Section 41-A of the Act came to be filed by respondent No.1, are not disputed by learned advocate for respondent Nos. 1,2 and 3 or by learned advocate for the Charity Commissioner. The said details read thus:-
CHRONOLOGY OF DATES AS PER ROJKAM DATE PARTICULARS 25/10/2011 Shri Virchand Jain, respondent No.1 filed application u/s 41-A of the Act. Application for interim relief also filed. Order was passed on application for interim relief and notice was issued returnable on 03/11/2011 by the Joint Charity Commissioner respondent No.4.
03/11/2011 Respondent No.4 passed order on application for interim relief and adjourned the hearing on 04/11/2011 on appearance of the advocate for the petitioners and documents on behalf of the petitioners were also filed.
04/11/2011 Respondent No.4 passed order on interim relief application after hearing both sides and adjourned the matter on 24/11/2011 and directed to hold election on 06/11/2011 as per terms of Trust deed and restrained the elected trustees to work till 24/11/2011.
24/11/2011 Respondent No.1 filed an application for breach of order along with documents. Objections were filed on behalf of the petitioners. Case was adjourned for hearing of extension of interim relief without extending the same.
25/11/2011 Respondent No.1 filed an application for extension of interim relief but no order was passed.
05/01/2012 Respondent No.1 filed an application to take up the matter on board with an application for extension of interim relief. However, the matter was adjourned to 27/1/2012 without any order of extension.
27/01/2012 Matter was adjourned to 31/01/2012 as respondent No.4 was busy in other work without any order for extension of interim relief.
31/01/2012 Respondent No.4 passed an order to extend the interim relief till 03/03/2012.
02/03/2012 03/03/2012 Respondent No.4 passed an order to extend the interim relief till further order an adjourned the matter on 07/04/2012 07/04/2012 Matter was adjourned to 21/07/2012 20/04/2012 Parties were informed about adjournment of matter on 21/07/2012.
5. In view of the consensus arrived at between the parties it is not necessary to enter into detailed discussion about the events which have taken place at the date on which the application came to be filed. Suffice it to say that the said application came to be registered as application No. 41/34/2011 and after the proceedings were adjourned from time to time the aforesaid and impugned order dated 2.3.2012 came to be passed and now the proceedings have been adjourned to 21.7.2012 vide order dated 7.4.2012 (i.e. the proceedings are adjourned for 3 ½ months). He also submitted that though on 7.7.2012 the Commissioner will be having Camp at Rajkot the hearing is adjourned to 21.7.2012.
6. Mr. Pandya, learned advocate for respondent Nos. 1, 2 and 3 has submitted that the said respondents are ready and willing to proceed with the hearing on any date convenient to the Charity Commissioner and they are also ready and willing to cooperate in early conclusion of the hearing as per convenience of the Charity Commissioner. He submitted that the said respondents are ready to attend hearing at Ahmedabad on any date before 7.7.2012 or at Rajkot on 7.7.2012.
As mentioned above Mr. Upadhyaya, learned advocate for the Charity Commissioner has submitted that the Charity Commissioner will complete the hearing of the said application within six weeks.
Mr.
Karia, learned advocate for the petitioner has submitted that the petitioner would be satisfied if the hearing of the application is concluded as expeditiously as possible and the only anxiety of the petitioner is that if the order extending stay order "till further order" continues and remains in operation, despite the previous facts, then there is likelihood that the proceedings may be prolonged and despite the assurance by Charity Commissioner the hearing may not be concluded.
Mr.
Pandya, learned advocate for the petitioner has fairly submitted and clarified that if the order extending stay order is to be restricted to the next date of hearing then also the respondent Nos. 1, 2 and 3 have no objection.
7. In view of the consensus arrived at between the parties below mentioned order is passed:-
(A) Since it has been submitted by learned Counsel for respondent No.4 Charity Commissioner that the Charity Commissioner will complete the hearing of the application within six weeks and it is also submitted that next date of Camp at Rajkot is 7.7.2012, the said order dated 2.3.2012 is modified and it is directed that the operation of the order dated 2.3.2012 will, in view of the consensus between the petitioner and respondent Nos. 1, 2 and 3 is restricted until 7.7.2012 i.e. shall stand extended only till 7.7.2012.
(B) The respondent No.4- Charity Commissioner shall take up the application for hearing on the said date i.e. 7.7.2012 and complete the hearing of the said application as stipulated by learned advocate for respondent No.4- Charity Commissioner within six weeks from 7.7.2012.
(C) In the meanwhile, if the proceeding / hearing is required to be adjourned on 7.7.2012 to any other date or any date thereafter (subject to outer limit of 6 weeks) then the Charity Commissioner may, if found necessary, extend the order of stay only until next date of hearing and the operation of the said order shall be restricted (on each occasion) only to the next date of hearing and not beyond that.
(D) The Charity Commissioner shall positively conclude the hearing within 6 weeks from 7.7.2012.
In the facts of the case it is necessary to note that the respondent No.4- Charity Commissioner has not filed any reply affidavit and has not been able to explain the conduct of the proceeding from 4.11.2011 onwards. It is also noticed that on various occasions the proceedings were adjourned and application for extension of interim relief were submitted however any orders were not passed and then the Charity Commissioner suddenly on 31.1.2012 passed an order extending the operation of stay order (as if the order was in operation on 31.1.2012) till 3.3.2012 and then the irregularity was multiplied by passing order on 2.3.2012, thought the date of hearing - as per the petitioner - was 3.3.2012.
The Charity Commissioner has failed to explain said conduct of proceedings.
The Charity Commissioner has also failed to explain as to how order dated 2.3.2012 came to be passed when the proceedings, according to petitioners, were adjourned to 3.3.2012 as per order dated 31.1.2012.
All these irregularities in proceedings are improper for authority discharging statutory function and / or exercising quasi judicial function, and parties are required to be heard and proceedings are required to be conducted in view of the statutory obligation under Section 41-A of the Act.
With the aforesaid clarifications, observations and directions which are made with consent of the parties, the petition is disposed of. Direct service is permitted.
(K.M.THAKER,J.) Suresh* Top