Rule. Mr. Gadhvi, learned advocate, for respondent No.1, Mr. Mehta, learned advocate, for respondent Nos.2, 3, 5 to 9 and Mr. Upadhayay, learned advocate, for respondent No.10 have waived service of notice of Rule. 2. In Special Civil Application No.7017 of 2012, the petitioner has prayed for below mentioned relief: “12(A) The Honourable Court be pleased to issue a writ of mandamus or a writ of certiorari or any other writ, order or direction quashing and setting aside the orders dated 21.04.2012 passed by the Charity Commissioner, Ahmedabad, Gujarat State in Scheme Misc. Application Number 5 of 2011.”
3. So as to support and justify the relief prayed for in the petition, the petitioner has stated that, somewhere in June1985, a scheme for administration and management of the trust was framed. It is claimed by the petitioner that the said scheme, inter alia, prescribes procedure for appointment of the trustees and tenure of the trustees. It also appears from the record that, on or around 17.3.2011, the trust had published a notice inviting applications for appointment of new trustees. In response to the said advertisement, the petitioner had submitted her application alongwith her consent for being appointed as trustee. Application of similar nature was submitted by the petitioner to the Charity Commissioner as well, on 7.4.2011. Subsequently, the Charity Commissioner passed order appointing five trustees namely, Shri Rajendra Manubhai Joshi, Shri Devang Bhupendrabhai Patel, Shri Bhusan Ashokbhai Bhatt, Shri Manzil Nanavati and Shri Kamleshbhai Raval. The petitioner has alleged that on the same date, after having passed the aforesaid order, the Charity Commissioner passed another order whereby he has substituted appointment of Shri Devang Bhupendrabhai Patel by appointing one Shri Milanbhai Chaitanyaprasad Pancholi.
Aggrieved by said two orders dated 21.4.2012 passed by the respondent Charity Commissioner, the petitioner and certain other persons made representations on the same date before the Charity Commissioner and in their representation, they also tried to bring to the notice of the respondent Charity Commissioner certain apparent errors committed in passing the said orders. The petitioner has alleged that the Charity Commissioner acknowledged the errors, but informed that the errors can be corrected only by Higher Forum since the orders were already passed.
In such background, the petitioner has challenged both the orders dated 21.4.2012.
4. One of the respondents i.e. respondent No.2 – Shri Milankumar Chaitnyakumar Pancholi, has filed reply affidavit opposing the petition. Though other respondents, i.e. respondent Nos.1, 3, 5, 9 and 10 have entered appearance, they have not filed any reply affidavit opposing the petition.
5. The respondent No.2 has, in his reply affidavit, opposed the maintainability of present petition on the ground that the petitioner has alternative remedy under Section 72 of the Act and that therefore, the petition may not be entertained. On perusal of the affidavit filed by the respondent No.2, it also appears that the said respondent has not disputed the factual aspects stated by the petitioner and/or other allegations and submissions made by the petitioner against the proceedings and/or against the impugned orders. The affidavit is restricted only to the objection with regard to maintainability of the petition. Thus, so far as factual aspects stated by the petitioner are not disputed by the respondents.
6. Mr. Joshi, learned Senior Counsel, has appeared with Mr. Shelat, learned advocate for the petitioner, Mr. Gadhvi, learned advocate, has appeared for the respondent No.1, Mr. Mehta, learned advocate, has appeared for the respondent Nos.2, 3, 5 to 9 and Mr. Upadhayay, learned advocate, has appeared for the respondent No.10 – Charity Commissioner.
7. Mr. Upadhayay, learned advocate for the respondent Charity Commissioner, has also not made any submission other than the submission that the respondent Charity Commissioner has passed the impugned orders after considering the applications and considering the provisions under the scheme and the said orders are correct, legal and proper.
8. Mr. Joshi, learned Senior Advocate, has assailed the impugned orders on the ground that the procedure prescribed under the scheme has been completely overlooked and the respondent Charity Commissioner has not followed the procedure prescribed under the Scheme. It is also alleged that the impugned orders suffer from vice of nonapplication of mind not only to the relevant facts, but also to the provisions under the scheme. It is alleged that though the respondent No.9 is associated with other trusts, the said respondent has been appointed as one of the trustees, whereas any reason for not considering the case of the petitioner and rejecting her application is not assigned by the respondent Charity Commissioner. It is also submitted that the impugned orders passed by the respondent Charity Commissioner are also hit by vice of contradiction in observations and conclusions. So as to support the said contention, it is submitted that the Charity Commissioner has held that any female applicant cannot be considered and the application of the applicant cannot be considered because the applicant (petitioner) is trustee in other trusts and also engaged in other social activities, however, having observed thus and rejecting petitioner's application on such ground, the respondent Charity Commissioner has appointed the respondent No.8, who is also a female applicant and is also associated with other trusts.
Mr. Joshi, learned Senior Counsel for the petitioner, also made reference of the provision contained under clause 8 of the scheme, which prescribes procedure for appointment of trustees and he submitted that the said procedure has not been followed.
9. I have heard learned counsel for the contesting parties and examined the record.
10. At this stage, it is necessary to note that against the impugned orders dated 21.4.2012, another petition being Special Civil Application No.6988 of 2012, is also preferred. In the said other petition, two other persons have challenged the same order dated 21.4.2012. It appears from the record of the said petition that the petitioners therein are the other applicants who had submitted their applications for consideration by the Charity Commisioner for appointment as trustees. The said two petitioners have, while challenging the orders passed by the Charity Commissioner, raised similar contentions, particularly the contention based on clause 8 of the scheme, which provides procedure for appointment of trustees. The said two petitioners have also alleged that the respondent Charity Commissioner has not followed the procedure prescribed under clause 8 of the scheme and that therefore, the appointments deserve to be set aside.
10.1 In view of the fact that in both the petitions same orders are challenged on almost similar grounds and since all the petitioners had submitted their willingness to be appointed as trustees, both the petitions are decided by this common order.
11. At the outset, it is necessary to mention that except the respondent No.2, any other respondent has not opposed the petitions on the ground of alternative remedy. Besides this, from the record and submissions made by learned counsel for the contesting parties, it has emerged that there are certain apparent errors in the procedure followed by the respondent Charity Commissioner and also in the impugned orders. Besides this, any factual aspects are not denied or disputed by anyone. Even the learned counsel for the respondent Charity Commissioner has not been able to defend the said orders and offer any explanation as regards non compliance of the procedure under clause 8 of the scheme. Under the circumstances, it appears that on one hand any disputed facts are not involved and on the other hand it appears that the impugned orders are instance of irregular exercise of jurisdiction by the competent authority and that therefore, once the petition has been entertained by this Court (Coram: Hon'ble Mr. Justice S.R.Brahmbhatt) by issuing process under order dated 10.5.2012, it does not appear appropriate now to relegate the parties to alternative remedy. Furthermore, it has also emerged from the submissions of learned counsel for the contesting parties that the said objection is raised on the premise that the Commissioner has passed orders under Section 50(A) of the Act, however, in light of the facts of the case, it appears that the provisions under Section 50(A) of the Act would not be applicable in present cases since the application before the Charity Commissioner was not made under Section 50(A) of the Act.
11.1 So far as the impugned orders passed by the Charity Commissioner is concerned, it is noticed that the Charity Commissioner has observed in para 6 and 7 of the impugned order dated 21.4.2012 (first order) that: “(6) Considering the said fact, as per the application and first appointment, at the last ,the appointment of the said trustees and the current trustees had been made on 24/5/2006 vide miscellaneous application no. 5/2005 for the period of five years from 24/5/2006 to 23/5/2011. That is to say as per this fact, the period of appointment of new trustees had started from 25/2/2011. If we see, it is proved that this application was made on 7/4/2011 that is to say two months late. However, as the said application is within time, it is taken into consideration. Consent letters have been produced by the present trustees and other trustees vide mark 2/6 to 2/17 alongwith it. It appears that the error might have been committed in writing the figure of 2/7. That is to say that it appears that 2/7 which can be consent letter of Ramniklal Desai. Ten consent letters alongwith the said application were taken into consideration. And thereafter in connection with this application, out of them came in the office, (1) Madhavdas (2) Trivedi Umakant (3) Navinchandra Mangaldas Khamar (4) Hashmukhbhai Narsinhbhai Hingu (5) Manzil Nanavati. All these applications were taken into consideration. The Charity Commissioner recorded the statements of the persons who were present only for satisfying himself. Out of them, the statements of the following candidates were recorded.
Shri Jagdishbhai Patel, Milan Pancholi, Malay Desai, Maulin Dave, Hetaben Parikh, Shri Jagdishbhai Bhatt, Shri Kamlesh Raval, Shri Devang Patel, Shri Manjil Nanavaty, Shri Arvind Trivedi, Shri Bhusan Bhatt, and Shri Mahendrabhai Manubhai whereas shri Navin Agrawal and Shri Kalpesh Panchal have stated that they are not willing to be trustee. When this process was conducted, the Charity Commissioner also had taken into consideration that objection may also be taken against the name of each persons. But as the said process was appeared as complicated and intricate and such that the dispute may arise amongst them, the said objections have been dropped. The same has not been considered as part and parcel in this record after keeping the said covers sealed.
(7). Upon recording the statements of all parties in this case, it is proved that all the parties are good candidates. But the Charity Commissioner has no other option except to appoint five persons. That is to say as there were more than 15 candidates, the Charity Commissioner had considered only statements. And the objection which were submitted against it earlier before the Charity Commissioner on the basis of produced letters, are proved to be quite personal. In this case, Four letters have been received by the office on 20/4/2012 . And wherein the details of objection for the present trustees and their appointment were not given are proved. But all these facts needs evidences. Here in this scheme ,the Charity Commissioner is to appoint only trustees as per the scheme. No evidence is obtained. It appears that the objections which are submitted have been made by personal prejudice of one another. No evidence thereof appears on the record. Therefore, all the said objections are filed. But as per the opinion of the Charity Commissioner, all the candidates are having good personality and qualification. Therefore, it is not required to see any other thing in it. It is not mentioned in the scheme as to what is to be taken into consideration. In the circumstances, the Charity Commissioner is entirely empowered. And on that basis, the Charity Commissioner deem fit that all the trstees should be frequently changed in any trust so that the administration of trust may be run consistently, easily and transparently. In all government offices, if the employee is working for more than three year, he is transferred. Members of legislative assembly, Rajayasabha, Loksabha etc. of the government are also changed at every five years. Only the process is different. Its main purpose is that one person may not misuse the said post by remaining on the same place and the chance may be given to others for administration, if anything wrong has been committed in the trust, it may come out and if the administration is good, it may also come out. In the circumstances, as per the opinion of the Charity Commissioner, if the appointment of one out of old trustees and other four trustees out of new names may be made, it would be just and fair.”
(free translation from Vernacular)
11.2 The above quoted observations are required to be examined in light of the procedure prescribed under clause 8 of the Scheme which read thus: “(8) Regarding the terms and appointment of Trustee: The terms of trustee of this trust shall be of five years. Before the expiry of five year terms of the trustees, before three months, the trustees shall put the notice on the front portion of the temple and if they are willing to recommend the names for appointment as a trustee and trustees, the trustee shall declare the names and beneficiaries have any objection in this regard and any beneficiary is willing to recommend another name of trustee, they shall inform the name of trustee and objection to the trustees within seven days from the date of notice. If any recommendation of name or objection in the reply of notice is received after the period of notice is over, the trustees shall file an application before the Charity Commissioner for the appointment of the new trustee by sending their recommendation along with the said objection and recommendation. The names of present trustees shall be liable to be appointed. The Charity Commissioner shall make appointment of new trustees after giving opportunity to the concerned persons for being heard and such application for appointment of new trustees is not made by the trustees till the terms of present trustees is over, thereafter, the Charity Commissioner himself shall make appointment of new trustees by written order on the basis of written application of any beneficiary or giving opportunity to the trustees of being heard.”
(free translation from Vernacular)
11.3 On perusal of clause 8 of the scheme, it emerges that detailed procedure for appointment of trustees is prescribed under the said provision. If the impugned order dated 21.4.2012 is examined with prescribed procedure, then, it emerges that the Charity Commissioner has not diligently followed the said procedure, inasmuch as the Charity Commissioner failed to invite recommendations and also failed to issue second notice under clause 8 of the scheme whereby after receiving the applications in response to the advertisement inviting applications, the Charity Commissioner is obliged to invite objections against the applications.
Undisputedly, before passing the impugned orders, the said procedure was not followed by the Charity Commissioner.
11.4 Besides this, it is also noticed from the impugned orders that when Charity Commissioner's attention was drawn to the said provision, he decided to discount the said procedure and not to follow it on the ground that the said procedure is “very cumbersome, time consuming and confusing”.
12. A statutory authority cannot arbitrarily refuse to follow the procedure under the scheme for such reason. It is also noticed from the observations made by Charity Commissioner in para 8 of the impugned order that suggestion was made that one woman should be appointed as one of the trustees. The respondent Charity Commissioner has made observation in para 8 that the name which has been put forward for consideration cannot be considered because the said applicant (petitioner) is already trustee in other trust and that therefore, she would not be able to regularly attend the proceedings and activities of the trust.
Having observed thus, the respondent Charity Commissioner proceeded to pass the order and in his order, he nominated the respondent No.8 as one of the trustees, despite observations in para 8 of his order. Therefore, the petitioners have submitted that the said error is apparent error on the face of order and therefore the impugned orders deserve to be set aside. The respondents have, by citing the said instances, also submitted that the impugned orders suffers from vice of contradiction. It is also submitted that actually the name which was being considered and which was suggested was of the petitioner in Special Civil Application No.7017 of 2012 because undisputedly the petitioner is not member of any trust. However, the respondent Charity Commissioner proceeded to pass impugned orders and appointed respondent No.8.
13. Having regard to the aforesaid aspects, the petitions have succeeded in establishing that the impugned orders dated 21.4.2012 suffer from vice of contradiction and there are apparent errors in the impugned orders. Besides this, the petitioners have also been able to establish that the respondent Charity Commissioner has failed to follow the procedure under clause 8 of the scheme.
13.1 For the foregoing discussion and reasons, the impugned orders deserve to be set aside and are hereby, set aside.
13.2 The matter is remitted to the respondent Charity Commissioner for fresh consideration and decision, after hearing the concerned parties including the petitioners and other applicants and after following the procedure prescribed under clause 8 of the scheme. The respondent Charity Commissioner should decide the matter as expeditiously as possible preferably within 3 months after service of certified copy of present order.
The petitioners are permitted to serve the respondent Charity Commissioner certified copy of present order.
The petitions are partly allowed and stand disposed of accordingly. Rule is made absolute to the aforesaid extent in both the petitions.
(K.M.Thaker, J.) kdc