Heard learned Advocate Mr. MR Vyas for petitioners.
In present petition, petitioners have challenged order passed by Joint Charity Commissioner, Surat in Miscellaneous Application No. 16 of 2010 dated 9.9.2010 page 32 Exh. 27. Joint Charity Commissioner, Surat has passed order under section 41A of Bombay Public Trusts Act. Therefore, learned Advocate Mr. Vyas for petitioners has raised contention before this Court that while exercising powers under section 41A of Bombay Public Trusts Act, right of parties cannot be decided because it is not quasi judicial power to be exercised by Joint Charity Commissioner but this being administrative power to be exercised by Joint Charity Commissioner, rights of parties cannot be decided while exercising such powers. In support of this contention, learned Advocate Mr. Vyas has placed reliance upon two decisions of this Court. One is in case of Navinchandra Jasani & Others versus Pravinchandra Jasani & Others, reported in 2003 (1) GLR 392. Second is in case of Syedna Mohamed Burhanuddin versus Charity Commissioner, Gujarat State, reported in 1992 (1) GLH 331, decision of Division Bench of this Court. In both decisions relied upon by learned advocate Mr. Vyas for petitioners, it has been held that the power is administrative in nature and not even quasi judicial and rights of either party cannot be examined and decided by Charity Commissioner. Before appreciating this contention raised by learned Advocate MR. Vyas for petitioners, section 41A of Bombay Public Trusts Act is required to be considered. Same is, therefore, quoted as under:
41A.
Power of Charity Commissioner to issue directions to trustees and other persons.-(1) Subject to provisions of this Act, the Charity Commissioner may, from time to time, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and income thereof is properly accounted for or duly appropriated and applied to the objects and for the purpose of the trust.
It shall be the duty of every such trustee and person to comply with a direction issued to him under sub section (1).
Thus, this section provides that Charity Commissioner can issue direction to any trustee of public trust or any person connected therewith to ensure that such trust is properly administered and income thereof is properly accounted for or duly appropriated and applied to objects and for the purposes of the trust. Sub sec. (2) of section 41A of Act also provides that it shall be the duty of every such trustee and person to comply with a direction issued to him under sub section (1).
Joint Charity Commissioner Surat initially passed order on 22nd July, 2010 because of application made by one Shri SN Patel dated 16th July, 2010. Joint Charity Commissioner has passed interim order against trustees of trust not to permit or allow any Pujari or any person to put Thal in temple. This interim order passed by Joint Charity Commissioner Surat on 22nd July, 2010 was challenged by petitioners before this Court by filing Special Civil Application No. 9511 of 2010 wherein this Court has passed following order on 13th August, 2010:
Heard learned advocate Mr. M.R. Vyas appearing on behalf of petitioners.
The present petitioner has challenged direction issued by Joint Charity Commissioner, Surat by letter dated 22nd July 2010 on the basis of application received from one Mr. S.N. Patel dated 16th July 2010.
Learned advocate Mr. Vyas submitted that this order has been passed by Joint Charity Commissioner without giving any reasonable opportunity of hearing to present petitioner and other Trustees those who are concerned with the Trust.
In view of these facts, let petitioner may file necessary application before Joint Charity Commissioner, Surat within a period of one week from the date of receiving copy of present order.
As and when Joint Charity Commissioner received application from petitioner, it is directed to Joint Charity Commissioner, Surat to consider this application filed by petitioner and examine the grievance and thenafter to pass appropriate reasoned order after giving reasonable opportunity of hearing to all respective parties within a period of one month from the date of receiving copy of present order and communicate the decision to each party immediately.
In view of above observation and direction, present petition is disposed of by this Court without expressing any opinion on merits.
Direct service is permitted today.
Thus, in view of order passed by this Court, petitioner has made application being Miscellaneous Application NO. 17/8/10 with a prayer to vacate aforesaid interim order passed against petitioners as they are entitled to put Thali in temple because it is source of their livelihood for maintenance of their family. Against this, affidavit in reply is filed by respondent NO.1 SN Patel which is at page 31A and other respondents have also filed reply page 31E which are annexed to this petition. Thereafter, Joint Charity Commissioner, Surat has examined this aspect and decided matter by order dated 9.9.2010. After discussing and narrating pleadings between both parties, Joint Charity Commissioner has considered provisions made in trust deed wherein certain directions or mandate has been given to trust as discussed in paragraph 8 of order page 44. Joint Charity Commissioner has come to conclusion that there is no such provision made in clause 22 of Trust Deed which would give permission to petitioners to put up Thal in temple and to collect amount of donation or Dharmada fund from any other person. On the contrary, there is provision against such person who is working under trust entitled for salary from trust but there is no provision made in scheme (Trust deed) which has been approved by District Court which would entitle petitioners to put up Thal in temple and, therefore, it has been held that request made by petitioners to permit them to put up Thal in temple is contrary to Scheme framed by District Court. Joint Charity Commissioner has also considered clause 23 which also made it clear that no such procedure has been accepted which would permit or entitle petitioners to put up Thal in temple and recover or receive any amount as donation or dharmada. Therefore, according to my opinion, Joint Charity Commissioner has not decided lis or dispute or right between the parties but has merely clarified provisions made in Trust including Scheme framed by District Court Deed and also made it clear that as per Scheme which has been approved by District Court, there is no provision which would give right to petitioners to put up Thal in temple and, therefore, contention raised by learned advocate Mr. Vyas for petitioners cannot be accepted because there is no determination by Joint Charity Commissioner in respect of any right of either party. On the contrary, Joint Charity Commissioner has merely read relevant provisions of trust deed and scheme approved by District Court and according to Joint Charity Commissioner, there is no such provision made in trust deed or scheme approved by District Court, therefore, application has been rejected. Therefore, according to my opinion, Joint Charity Commissioner has not decided rights of either parties while passing order under sec. 41A of Bombay Public Trusts Act and Joint Charity Commissioner has rightly examined matter within parameters of section 41A of said Act and in doing so, no error has been committed by Joint Charity Commissioner which would require interference of this Court while exercising powers under Article 226 of Constitution of India.The order passed by Joint Charity Commissioner is not contrary to section 41A of Bombay Public Trusts Act. This Court is having limited jurisdiction to interfere with administrative orders as per decision of apex court in case of Union of India and Another versus K.G. Soni reported in 2006(6) SCC 798. Relevant para 13 and 13 of said decision are quoted as under:
13. In Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, which read as follows:
31. The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator.
This is the Wednesbury (1948 1 KB 223) test.
(2) The court would not interfere with the administrator s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles.
(3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of proportionality and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article
14.
14. The common thread running through in all these decisions is that the Court should not interfere with the administrator s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury s case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
Therefore,for reasons recorded above, there is no substance in this petition filed by petitioners. Therefore, this petition is dismissed.
(H.K.
Rathod,J.) Vyas Top