Adv. Arvind K. Waghmare vs Pm Care Fund, A Public Charitable ...
2021 Latest Caselaw 873 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 NAGPUR BENCH, NAGPUR



      CIVIL APPLICATION (C.A.O) NO.700 OF 2020
                            AND
   MISC. CIVIL APPLICATION STAMP NO. 10383 OF 2020
                IN P.I.L. NO. 20 OF 2020 (D)



  Advocate Arvind K. Waghmare,
  Aged Major, Occ. Legal Practitioner,
  r/o. 304, Soujanya Apartment,
  Bharat Nagar, Amravati Road,
  Nagpur-440 033 (Maharashtra)
  Email : [email protected]
  Enrollment No.MAH/2242/1999
  Aadhar No.573309208223
  Mob. No.9822698135.              ..........        APPLICANT



          // VERSUS //



  PM Cares Fund (Prime Ministers
  Citizens Assistance and Relief in
  Emergency Situation), A Public
  Charitable Trust created by
  Union Cabinet of India,
  through its Chairperson and
  Board of Trustees, at the Office
  Of PMO South Block,
  New Delhi 110 011. & Others.      ..........       RESPONDENTS


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  ____________________________________________________________
  Mr.A.K.Waghmare, Advocate/petitioner-in-person
  Mr.U.M.Aurangabadkar, A.S.G.I. with Mr.Anil Singh,
  Addl.S.G.I. for respondent nos. 1 to 5.
  Mr.Anand Deshpande, Addl.G.P. for respondent nos. 6 to 8.
  Mr.S.M.Puranik, Advocate for respondent no.9
  ____________________________________________________________

                            ********
  Date of reserving the Order        : 9.1.2021.
  Date of pronouncement of the Order : 14.1.2021.
                            ********


                                   CORAM   : SUNIL B. SHUKRE &
                                             ANIL S. KILOR, JJ.



  ORDER (Per Sunil B. Shukre, J) :

Heard the learned Counsel for the respective

parties. For the reasons stated in Civil Application (C.A.O.)

No.700 of 2020, same is allowed. Delay is condoned.

MISC. CIVIL APPLICATION STAMP NO. 10383 OF 2020

2. Heard the learned Counsel for the respective

parties.

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  3.               By     this     application,   the     petitioner-in-person/

applicant has called upon this Court to re-visit its Judgment

delivered on 27.8.2020 in P.I.L. No.54 of 2020. According to

the petitioner-in-person, the Judgment contains an error

apparent on the face of record which has resulted in

miscarriage of justice.

4. The petitioner-in-person submits that, while

rejecting his fourth prayer to make public disclosure of the

moneys of PM Cares Fund (Prime Ministers Citizens

Assistance and Relief in Emergency Situation) (hereinafter

referred to as "the Fund") as mandatory, this Court

proceeded on the presumption that there was a Trust Act

applicable to the Fund registered under the Registration

Act, 1908 at New Delhi and therefore, there was available

adequate and efficient mechanism to control the affairs of

the Fund and also to ensure that the moneys are utilized

properly. The petitioner-in-person submits that, as a matter

of fact, there is no Trust Act enacted and in force in the

National Capital Region of New Delhi, which is a fact newly

discovered by him. The petitioner-in-person submits that

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many paragraphs on this aspect have been devoted by this

Court in it's Judgment sought to be reviewed, albeit

erroneously. This error, the petitioner-in-person, further

submits, is not only manifest in the Judgment, but also has

led to denial of justice to him. He submits that if this error

is removed, the inevitable consequence would be a

realisation that it is extremely important that the receipts

into and the expenditure from the Fund are publicly

disclosed so that the donors and the public at large would

know as to how and from whom and for what purpose, the

moneys are being poured in and out of the Fund, which will

only help in bringing in transparency in the operation of the

Fund. So, according to the petitioner-in-person, re-calling of

all the observations relating to availability of effective

mechanism via applicable Trust Act for regulating

governance and functioning of the Fund and allowing the

fourth prayer clause as a necessary sequel would be the

need of the hour.

5. The petitioner-in-person further submits that this

Court has also committed a patent error in holding that the

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power of Chairperson of the Board of Trustees to nominate

three trustees on the Board of Trustees is only an enabling

power and therefore, the power lies within the discretion of

the Chairperson. He submits that this finding is not

consistent with the bye-laws of the Fund and if the bye-laws

are read jointly, the only conclusion that is possible is of

mandatory nature of this power of the Chairperson. The

petitioner-in-person further submits that if mandatory

power of Chairperson to appoint three Trustees is accepted,

this Court would also have to allow the third prayer clause

of the P.I.L. whereby direction to set aside appointment of

SARC Associates as auditors of the Fund is sought for. He

also submits that this Court did not consider the argument

that unless all trustees are appointed, the Fund cannot

function, there being inadequate coram.

6. Lastly, the petitioner-in-person submits that as

this Court has noted in para 17 of the Judgment under

review that issues involved here are different from those in

cases decided by Supreme Court and referred to in the

Judgment, this Court could not have held that some

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observations of the Supreme Court would bind the Court to

the extent they decide the issues which arise indirectly in

this case. He submits that observations made in para 17

are incorrect and in any case, what has influenced this

Court being in the nature of obiter dicta, this Court must

recall it's findings in para 17.

7. Mr.Anil Singh, learned Additional Solicitor General

of India has submitted that all these aspects of the matter

have been comprehensively dealt with in the Judgment

under review and the review jurisdiction not being available

for sitting in appeal over the Judgment under review, the

review petition deserves to be dismissed summarily. He

submits that it is not the case that the prayer for making

public disclosure of the receipts and expenditure of the

Fund as mandatory has been rejected only on the ground

that there is available effective mechanism for serving the

very purpose of public disclosure. He points out that there

are atleast three more grounds which have been

additionally stated by this Court while rejecting this prayer

and as regards other three grounds, no challenge

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whatsoever has been raised by the petitioner-in-person.

Mr.Anil Singh submits that, apart from availability of

alternate effective mechanism for achieving the purpose for

which public disclosure has been sought in the petition, this

Court has also held that every matter of public interest or

curiosity cannot be the subject matter of P.I.L. and that the

Constitutional Courts are not expected to conduct

administration of the country and to be more precise, of a

charitable trust. He submits that this Court has found that

not only effective mechanism for regulating functioning of

the trust under the existing legal framework is available,

but there is also an auditor appointed to ensure proper

administration of the monies belonging to the Fund. He

further submits that this Court has found that if such prayer

is granted, it would only amount to interference in the

administration of affairs of the Fund. He further points out

that this Court has also held that no exceptional public

interest was shown to be involved in the petition and that,

in any case, donations to the Fund being voluntary, it would

be for the donors to take appropriate decision regarding

making or not making of donations, through use of their

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discretion. He submits that, if any donor is apprehensive of

misuse of his donation on the belief of unregulated nature

of the Fund because of absence of any effective mechanism

to exercise superintendence and control over it, he may

better stay away from any such donation.

8. Learned Additional Solicitor General of India

further submits that this Court has already interpreted the

bye-laws conferring power upon chairperson to nominate

three trustees in a particular way and hence, it would not

be open for the applicant to seek re-consideration of such

interpretation on a spacious ground of error apparent on

the face of record. He submits that an interpretation

considered to be erroneous is quiet different from an

interpretation resulting from non-consideration of the

relevant provisions of law or failure to apply settled

principles of law or consideration of some facts not existing

on record. Mr.Anil Singh further submits that, in the former

case, remedy would be of an appeal and in the latter case,

the remedy would be of review. According to him, the

interpretation made by this Court falls in the first category

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and therefore, the only remedy for the applicant would be

to challenge the same by way of an appeal before the

Supreme Court.

9. Mr.Anil Singh further submits that, even

otherwise, the alternate mechanism for regulating the

functioning of any charitable trust is already in place in the

general law. He invites our attention to the provisions

made in Section 92 of the Code of Civil Procedure and

submits that these provisions are more than effective for

addressing concerns of the applicant. He also points out

that, in the Judgment under review, this Court has never

observed that any particular Trust Act is applicable to the

charitable trust registered in Delhi and what this Court has

expounded is of general import when it said that there must

be some Trust Act applicable to the Charities and Public

Trusts registered in Delhi and such "Trust Act" in general,

as observed by this Court, would have to be understood as

the provisions made in general law such as those in Section

92 of the Code of Civil Procedure, which govern the field.

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  10.              Before      we    proceed   to    deal       with      the     rival

contentions, we would like to take a brief account of the

nature and scope of review jurisdiction. The law is well

settled and the principles which emerge are as follows :

a.There must be a mistake apparent on the face

of record. An error which is not self-evident and

which has to be detected by the process of

reasoning cannot be said to be an error apparent

on the face of record justifying the Court to

exercise its power of review.

b.If the Judgment or order is passed upon

assessment of a fact which in reality never

existed and the continuation of such Judgment or

order has resulted in miscarriage of justice,

review of the Judgment would be necessary.

c.It is not open for the Court, in exercise of its

review jurisdiction, to review the Judgment

merely because, at the time of review, the

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reviewing Court is inclined to take a different

view upon the same facts and evidence.

d.While exercising review power, the reviewing

Court does not sit in Judgment over the decision

of the Court deciding the case earlier.

e.A review is by no means an appeal in disguise

whereby an erroneous decision is reheard and

corrected, but lies only for patent error.

f.Even if any mistake on the face of record is

detected, review jurisdiction will not be exercised

unless the Court is satisfied that it is necessary

to do so to prevent miscarriage of justice.\

These principles of law have been culled out from

various judgments forming a consistent line of precedents,

and in particular, from the judgments reported as follows :

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  1.                Dr.Kamal        Singh    and     Others         vs.      Sharad

Sureshsingh Baghel (2014 Indlaw MUM 52, ALL MR 497 2014).

2. Haryana State Industrial Development vs. Mawasi and Others (2012 Indlaw SC 203, (2012) 7 SCC 200).

3. Ram Sahu (Dead) through Lrs. vs. Vinod Kumar Rawat (2020 Indlaw SC 532).

Our appreciation of rival arguments would be

within the above referred limits of review jurisdiction.

11. The petitioner-in-person has serious objection

about the observations of this Court that the relief

regarding demanding public disclosure of the moneys

received in the Fund and disbursement of moneys from the

Fund is already adequately taken care of with the Fund

being governed by a framework of law provided under the

applicable Trust Act. The petitioner-in-person has pointed

out that this Court has also referred to several provisions

made in the Trust Acts enacted by different States which

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touch upon various aspects such as appointment of auditor,

duty of auditor, power of Assistant Commissioner to issue

necessary directions, provision of appeal to Charity

Commissioner and so on and so forth. The petitioner-in-

person submits that this is done on the premise that the

purpose for which public disclosure of moneys received into

and expended from the Fund is effectively served; but the

reality is, as discovered by him later, that there is no Trust

Act applicable to any Public Trust registered in Delhi which

takes care of this aspect.

12. While it is true that this Court has indeed

observed that the purpose for which public disclosure has

been demanded stands well served because of availability

of effective mechanism and legal framework under the

applicable Trust Act and it is also true that this Court has

summarised some of the provisions made in the Trust Acts

enacted by different State Legislatures. But, it will be seen,

upon careful reading of the Judgment under review, that

this Court never made any observation that the Fund, a

Public Trust registered under the Registration Act, 1908, is

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subject to regulatory regimen of a particular Trust Act

applicable and in force in the National Capital region of New

Delhi. The essence of the logic putforth by this Court in the

Judgment under review was of availability of some legal

framework whereby regulation and control over the

functioning and governing of Public Trust like the Fund is

ensured and in the process, transparency of working of the

moneys of the Fund is also achieved. It was upon such

reasoning that this Court found that when the concern

about probable misuse of the Fund moneys is taken care of

by some legal framework, it would not be appropriate for

this Court to grant the prayer demanding public disclosure

of receipts and expenditure of the Fund money, lest it

would amount to meddling into administration of the Fund

and also unwarranted interference in the exercise of

discretion of the Authorities, empowered under the relevant

and applicable law to exercise their superintendence and

control over a registered Public Trust of charitable or

religious nature. So, the thrust of the argument of this

Court was upon availability of some regulatory mechanism

rather than a particular law making available such

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framework. If this Court had referred to some of the

provisions dealing with such aspects as appointment of

auditor, duty of auditor, power of Assistant Commissioner

and so on and so forth, such reference was only illustrative

of the point canvassed by this Court and not as something

which was actually available as a matter of fact in some

Trust Act enacted in the National Capital region of New

Delhi. In fact, at the cost of repetition, we would say that

there was no such observation ever made in the Judgment

under review and whatever observations were there, were

only illustrative in nature, emphasizing upon the fact that

the Fund was not an unruly horse, that it was subject to

reins of law, that it could be made to behave by law, if

required. However, we must admit that which particular

law was there to leash the operation of Fund was not

specified by us. But, it was also not the case of anybody

then and it is not even today that operation of the Fund was

and is completely unregulated and unfettered by any law.

13. The inevitable conclusion now would be that

there is no error apparent on the face of record in the

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Judgment in respect of the observations generally made

and without pinpointing any particular law in the context of

availability of sufficient regulatory mechanism controlling

the functioning and governing of the Fund thereby

achieving the purpose for which public disclosure of the

receipts and expenditure of the Fund money has been

sought by the review applicant in the P.I.L. filed by him.

14. At this juncture, we find it necessary to make a

reference to the provisions contained in Section 92 of the

Code of Civil Procedure which have been pointed out to us

by the learned Additional Solicitor General of India.

Ofcourse, no reference whatsoever has been made to

Section 92 of the Code of Civil Procedure in the Judgment

under review. But, in our view, it has made no difference as

every one is presumed to know the law and it's mention or

no mention in the Judgment would not lead to a conclusion

that inference drawn in the Judgment regarding availability

of a legal framework to achieve the purpose of disclosure

sought by the petitioner-in-person is erroneous. Since, an

opportunity now has been afforded to us to refer to this

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provision of law and it is also of salutary importance from

the view point of regulation of public trusts of charitable or

religious nature, we feel it appropriate to re-produce it here.

It reads thus :

"92. Public charities.--(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject- matter of the trust is situate to obtain a decree :--

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession

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to the person entitled to the possession of such property];

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2)Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely :--

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(a)where the original purposes of the trust, in whole or in part,--

(i) have been, as far as may be, fulfilled; or

(ii)cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,--

(i) been adequately provided for by other means, or

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(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]

15. It would be clear from the above referred

provisions that a very effective regulatory mechanism for

putting restrain upon the functioning of public trusts of

charitable or religious nature is already available in the

general law of the land. These provisions indicate that

power of the Court to supervise and exercise its control

over a public trust of charitable or religious nature is

enormous. Through it's decree, a Civil Court can remove

any trustee, can appoint new trustee, can vest any property

in a trustee, can direct accounts and inquiries, can settle a

Scheme and can do many other things which it deems fit to

do to achieve as nearly as possible the objects of the trust.

Under sub-section (3), the Court may alter the original

purposes of an express or constructive trust created for

public purposes of a charitable or religious nature and allow

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the property or income of such trust or any portion thereof

to be applied cy pres in one or more of the circumstances

delineated in clauses (a) to (e) thereof. These provisions

only suggest that the power of the Court to regulate

functioning of a Public Trust of charitable or religious nature

is all embracing and effective.

16. Of course, Mr.Waghmare, the petitioner-in-

person, would submit that Section 92 remedy is not so

effective because as a condition precedent for institution of

Civil Suit, leave of the Court is required to be obtained. He

also submits that, in the present case, there are several

persons from all over India including Vidarbha region who

have made donations to the Fund and if they are to know

about application of the Fund money or raise any grievance

in that regard, they would be required to go to New Delhi,

which would not be a practicable solution for satiating their

curiosity or redressing their grievance. The argument is

preposterous for two reasons. Firstly, it is founded upon a

conjecture that leave by the Court will not be granted. A

conjecture has no place in law, it is an outlaw in law.

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Secondly, it seeks to mix up two seemingly heterogeneous

concepts, viz. territorial jurisdiction and inconvenience.

Territorial jurisdiction goes with place of cause of action and

may be coupled with place of business or residence,

inconvenience goes as an idiosyncrasy of a person, atleast

till law takes care of it. But, if the law does not take it's

care, a person taking recourse to a remedy under law

cannot say that the remedy is ineffective as, in availing of it

at a place where the cause of action has arisen, some

inconvenience is caused to him. The argument is,

therefore, rejected.

17. Thus, we find that there is no error apparent on

the face of record in the Judgment under review on the

question of making public disclosure of receipts into and

expenditure from the Fund as mandatory and the Fund

being subject to regulatory framework of law, thereby

giving assurance about transparency of operation of the

Fund.

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18. Apart from what is stated above, it may also be

noticed here that the prayer demanding public disclosure of

the Fund money has not been rejected only on the ground

of availability of effective mechanism to regulate

functioning of the Fund, but also on some other grounds

additionally given in the Judgment under review. This Court

found that it was not every matter of public interest or

curiosity which could be made subject matter of P.I.L. and

that Constitutional Courts were not expected to conduct

administration of country; to be precise, of any charitable

trust. This Court further found that if any such prayer

demanding public disclosure of the Fund money was to be

granted, in the facts and circumstances discussed in the

Judgment under review, it may amount to interference in

the administration of affairs of the Fund and also power of

the Authorities exercising superintendence and control over

the Fund. This Court further found that the petitioner-in-

person did not point out any gross violation of constitutional

or statutory provisions which was a sine qua non for

invoking public interest jurisdiction. Lastly, this Court noted

that the contributions to the Fund were voluntary in nature

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and that there was no compulsion for any one to donate.

This Court took note of the discretion to be wisely

exercised in such matters by the donors, which was

eloquently reflected in the words of William Shakespeare in

his play Henry IV, (Henry The Fourth Part 1 Act 5, Scene 4,

115-121) that, " The better part of Valour is

Discretion; in the which better part, I have sav'd my

life. " In other words, if any donor is apprehensive about

proper utilisation of his donation, about inconvenience that

may be caused to him in going to New Delhi to air his

grievance, and the like, he may better choose to not

donate, there being no compulsion to do any charity.

19. All these additional grounds taken in the

Judgment have not been questioned by the petitioner-in-

person for their correctness. The petitioner-in-person has

not shown as to how these additional grounds are replete

with manifest errors. This perspective opens another

window enabling us to again find that the grievance of the

petitioner-in-person regarding his demand for public

disclosure of the Fund money based upon non-availability of

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any effective regulatory mechanism applicable to the Fund

in New Delhi is devoid of any merit.

20. The petitioner-in-person has an objection about

the interpretation made by this Court of the provision

conferring power upon chairperson of the Board of Trustees

to nominate three trustees on the Board. This Court found

that this was an enabling provision giving discretion to the

chairperson and not obligating him to nominate three

trustees. The petitioner-in-person submits that this

interpretation is patently erroneous for the reason that, in

the relevant bye-laws, the words used are "the Chairperson

of the Board of Trustees (PM) shall have power to nominate

three trustees to the Board of Trustees" and "any person

appointed a trustee shall act in a pro bono capacity". The

argument, however, deserves it's rejection forthright and

reasons are two-fold.

21. Firstly, the view taken by this Court is based

upon the interpretation purely flowing from consideration of

the expressions employed in the relevant bye-laws without

26 mcast10383.20.odt

the aid of any other material. The interpretation is made

upon our understanding, pure and simple, of the provisions

made in the bye-laws. If the petitioner-in-person thinks that

it is incorrect or there is another interpretation available

than the one made by this Court, the remedy for the

petitioner-in-person would be, not a review application, but

a proper appeal before the Apex Court.

22. Secondly, even if the words "shall have the

power to nominate three trustees" are read in conjunction

with the words "any person appointed a trustee shall act in

a pro bono capacity", it would not result in logically arriving

at a different interpretation. These expressions only show

that the Chairperson of the Board of Trustees is possessed

of the power to nominate Trustees, which is not coupled

with a duty to exercise it. Being invested with power to do

an act simplicitor is not akin to a duty imposed upon an

Authority to exercise the power given to it. The words "shall

have a power to nominate" are only indicative of investiture

of power and not of imposition of any duty to exercise the

power. Similarly, when another bye-law lays down that any

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person appointed a trustee shall act in a pro bono

capacity, it only lays bare nature of his appointment,

which is charitable and not commercial or professional.

Such bye-law would only denote the character of office of a

trustee nominated to the Board of Trustees and not what a

Chairperson can do in the matter of nomination of three

trustees and therefore, let us not mistake it with the other

bye-law conferring power on the Chairperson to nominate

Trustees. As such, joint reading of these two bye-laws is

not going to help the review applicant in successfully

bringing home his point of erroneous interpretation of the

power of Chairperson to nominate trustees as being

discretionary and not mandatory in nature. The argument

is, therefore, rejected.

23. With the rejection of the argument of the

petitioner-in-person regarding mandatory nature of power

of Chairperson to nominate three trustees, as a logical

corollary to it, there would also be rejection of his

submission regarding the error committed by this Court in

refusing to grant third prayer for setting aside the

appointment of SARC Associates as auditor of the Fund.

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  24.              There       are    two    more   points      raised       by     the

petitioner-in-person which need our consideration. He has

expressed his discomfiture about non-consideration of his

argument that unless all trustees are appointed, the Fund

cannot function, there being no coram. He is also not happy

with our observations made in para 17, which he thinks to

be contradictory and unwarranted owing to obiter dicta like

observations of the Supreme Court. The petitioner-in-

person is wrong on both scores, and we think, he needs to

take a relook and thoroughly at all our findings and

observations made in paras 31 and 17 of our judgment. If

he does it, he will get the answer. Even otherwise, these

objections are basically about incorrect findings and,

therefore, lie in the domain of appeal jurisdiction.

25. We, thus, find that there is no merit in this review

petition. The review petition stands dismissed. No costs.

                                     JUDGE                           JUDGE




  [jaiswal]



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