Shafiq Ahmad S/O Sheikh Manoo And ... vs Vinod S/O Gajananrao Dattatray ...
2021 Latest Caselaw 14241 Bom

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

                         WRIT PETITION NO.2502 OF 2021

  1) Shafiq Ahmad s/o Sheikh Manoo,
  Aged about 83, R/o, Samata Society,
  Sneh Nagar, Chandrapur.

  2) Prashant S/o Shantaram Potdukhe,
  Aged about 58 years; R/o Near Sai Mandir,
  Civil Lines, Chandrapur.

  3) Dr. Vijay Sambhshiv Ainchwar,
  Aged 72 years, President of Patel Memorial Society,
  Chandrapur, bearing PTR No.57                                 .... PETITIONERS

                  // VERSUS //

  1) Vinod S/o Gajananrao Dattatry,
  Aged major, Occupation: Business,
  R/o "Varsha" 29, Sneh Nagar, Chandrapur.

  2) Girish Himmatbhai Thakkar,
  Aged 65 years, R/o 401, "Sai Samarth",
  Plot No.38, Sahakar Nagar, Nagpur.                            .... RESPONDENTS




  Shri A.C. Dharmadhikari, Counsel for petitioners.
  Shri Anand Jaiswal, Senior Advocate a/by Shri Deoul Pathak, Counsel for
  respondents
  ________________________________________________________________

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

RESERVED ON : 27.08.2021.

PRONOUNCED ON: 01.10.2021

JUDGMENT: [PER: ANIL S. KILOR, J.]

Rule. Rule made returnable forthwith. The matter is heard

finally with the consent of the learned counsel for the parties.

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2. By the present petition, the petitioners are challenging the

order passed below Exh.23 and 30 in application 06/2021 by the

Joint Charity Commissioner, Nagpur, thereby allowing the

respondent No.1 to add the respondent No.2 Shri Girish

Himmatbhai Thakkar as party applicant No.2 to the application

No.6 of 2021, vide order below Exh. 23 and by order below Exh.30,

it was directed to the petitioners not to conduct any meeting

without permission of the Joint Charity Commissioner and not to

give effect to the resolution passed in the meeting dated

27.05.2021.

3. The brief facts for appreciation of the controversy involved in

the present petition, are as follows:

The respondent No.1 preferred an application before the Joint

Charity Commissioner, Nagpur, vide Application No.06 of 2021,

under Section 41E read with Section 41A of the Act of 1950,

claiming various reliefs against the petitioners.

4. The respondent No.1 on realizing that to maintain an

application under Section 41-E of the Act of 1950, at least two

persons having interest in the Trust, as applicants are necessary, he

therefore, to rectify the said deficiency, moved an application

Exh.23 for addition of party.

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5. Simultaneously, he moved two more applications namely

application Exh.22 with a prayer for direction to the petitioners not

to conduct any meeting till lockdown period. And another

application Exh.30, seeking direction against the petitioners, not to

act upon the resolution passed in a meeting of the Governing

Council dated 27.05.2021, during the pendency of the main

proceeding.

6. The learned Joint Charity Commissioner passed separate

orders on each application i.e. Exh. Nos.22, 23 and 30.

7. The learned Joint Charity Commissioner vide order below

Exh.30 directed the petitioners not to conduct any meeting without

permission of the Joint Charity Commissioner. Further it was

directed not to give any effect to the resolution passed in the

meeting dated 27.05.2021.

8. Whereas, while passing the order below Exh.23, the learned

Joint Charity Commissioner permitted the respondent No.1 to add

the name of the respondent No.2 as party applicant No.2 to the

Application No.6 of 2021.

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9. The learned Joint Charity Commissioner, while passing the

order below Exh.22, has observed that in view of the order passed

below Exh.30, there is no necessity to pass any order on Exh.22.

10. Thus, the order below Exh.23 and order below Exh.30, dated

01.07.2021, are under challenge in the present petition.

11. We have heard the learned Counsel Shri A.C. Dharmadhikari,

for petitioners and learned Senior Advocate Shri Anand Jaiswal,

assisted by learned Counsel Shri Deoul Pathak, for respondents.

12. Shri Dharmadhikari, learned counsel for the petitioners, at

the outset, raised an objection to the maintainability of application

under Section 41E read with Section 41A of the Act of 1950

preferred by the respondent No. 1, on the ground that the

application was moved by respondent No.1 alone whereas, at least

two persons having interest in the Trust can only maintain such

application.

13. Shri Dharmadhikari, learned counsel for the petitioners

further points out that along with reply filed to the application

Exhs.22, 23 and 30 numerous judgments were filed and the same

were referred at the time of hearing. However, while allowing the

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application Exhs.23 and 30, the same have not been discussed and

considered.

14. It is submitted by the learned counsel for the petitioners that

while passing the order below Exh.30, it has been observed by the

Joint Charity Commissioner, that the petitioners have violated the

undertaking given on 25.05.2021. However, the said observation

was made without dealing with the say of petitioners.

15. Per contra, the learned Senior Advocate Shri Jaiswal,

appearing for the respondents, submits that the reliefs granted

under order below Exh.30, were granted under Section 41A of the

Act of 1950 and to maintain the application under Section 41A of

the Act of 1950, there is no pre-requisite to file application by at

least two persons having interest in the Trust. He therefore, submits

that objection, to the tenability of the original proceeding raised by

the petitioners, is without any substance.

16. Shri Jaiswal, learned Senior Advocate further submits that the

petitioners have breached their undertaking given to the learned

Joint Charity Commissioner, whereby they had undertaken not to

violate any order of Governments or police or any lockdown

guidelines, while conducing Governing Council's meeting on

27.05.2021. It is submitted that even from the photographs filed

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on record by the petitioners, it can safely be held that in the said

meeting there were more than five persons in violation of the

lockdown guidelines.

17. Learned Senior Advocate further submits that there was no

infirmity or illegality committed by the learned Joint Charity

Commissioner while passing the order below Exh.30. It is

submitted that the orders below Exh.30 is not a final order and

therefore, the petitioners, instead of moving this writ petition, could

have approached to the Joint Charity Commissioner for vacation of

the said order. It is further submitted that as per the terms of

impugned order below Exh.30, the petitioners are free to move an

application for permission to hold and conduct a meeting.

Therefore, according to the learned Senior Advocate, no prejudice

can be said to be caused to the petitioners.

18. The learned Senior Advocate has placed reliance on the

following judgments in support of his contentions:

(i) Pavankumar Jain & 5 Vs. Priyavandan Ambalal Patel & 4

(Letters Patent Appeal No.1132 of 2013 in Special Civil Application

No.7662 of 2013, dated 31.07.2015)

(ii) V. Chandrasekaran and Another Vs. Administrative Officer

and Others1 1 (2012) 12 Supreme Court Cases 133

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(iii) Balvantbhai Jinabhai Dhami Vs. Shantilal Kanjibhai

Ratanpara & 112

19. To consider the rival contentions of the parties, we have

perused the record and gone through the relevant provisions and

judgments.

20. As regards the tenability of the application moved by

respondent No.1 before the Joint Charity Commissioner, under

Section 41E read with Section 41A of the Act of 1950, is concerned,

after going through the provision of Section 41A, it is clear that to

move an application under the said provision there is no

requirement that it must be filed by at least two persons having

interest in the Trust as required to move an application under

section 41A of the Act of 1950. In this matter, there is no dispute

that reliefs granted vide order below Exh. 30, are under the

provision of Section 41A. Thus, we do not find any substance in the

submission of the learned counsel for the petitioners to the extent

tenability of application under section 41A of the Act of 1950.

21. We will move to the next submission of the petitioner that the

reply filed by the petitioners and the judgments cited by the

petitioners, have not been considered and discussed by the Joint

2 2010 SCC OnLine Guj 502

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Charity Commissioner, while passing the impugned order below

Exh.30 or order below Exh.23.

22. It is apparent on the face of the order below Exh.30 that

except the reason that, the petitioners have violated the undertaking

given on 25.05.2021, no other reason is mentioned to allow the

application and to direct the petitioners not to conduct any meeting

without permission of the Joint Charity Commissioner and not to

give any effect to the resolution passed in the meeting dated

27.05.2021.

23. It is revealed from the record that on 27.05.2021 elections of

the trust were held and new President was elected. It has come on

record that the petitioner-trust runs an Engineering College. The

Governing Council of the trust is necessary to be in place and in

absence of which it is not possible to run the management of the

Trust and college smoothly.

24. Thus, the result of the directions of the Joint Charity

Commissioner, that the petitioner shall not give any effect to the

resolution passed in the meeting dated 27.05.2021, would be of not

having control of Governing Council over the trust and college.

Hence, we are not convinced with the submission made by the

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learned Senior Advocate for respondent No.1 that order below

Exh.30 is not prejudicial to the interest of the Trust.

25. The Hon'ble the Supreme Court of India, in the case of Kranti

Associates Private Limited and Another Vrs. Masood Ahmed Khan

and others1, after considering various judgments of the Apex Court

as regards the necessity of giving reason by a body or authority in

support of its decision, has held thus:

"47.Summarizing the above discussion, this Court holds:

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior Courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of

1 (2010) 9 SCC 496

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judicial decision-making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision-making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision- making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judical Candor, (1987) 100 Harvard Law Review 731-37)

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain, (1994) 19 EHRR 553, EHRR, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405(CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".

26. In the teeth of above referred well settled principle of law, if

we consider the facts of the present case, it is clear that while

passing order below Exh.22, the learned Joint Charity

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Commissioner has not taken into consideration the objections raised

as to the tenability of application under Section 41E of the Act of

1950. Moreover, the judgments cited by the petitioners in this

regard have also not been considered and discussed.

27. Similarly, while passing the order below Exh.30 dated

01.07.2021, the learned Joint Charity Commissioner failed to

record the reasons more particularly as regards, how there was a

breach of undertaking and which particular guidelines have not

been followed by the petitioners. Moreover, the reply and the

judgments referred by the petitioners, have also not been

considered and discussed.

28. Whereas, as held by the Hon'ble Apex Court the transparency

in decision making not only makes the judges and decision makers

less prone to errors but also makes them subject to broader scrutiny.

Insistence on recording of reasons is meant to serve the wider

principle of justice that justice must not only be done it must also

appear to be done as well. Further, the reasons in support of

decisions must be cogent, clear and succinct. A pretence of reasons

or "rubber-stamp reasons" is not to be equated with a valid decision-

making process.

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29. Having held that the impugned orders suffer from absence of

reasons, failure to deal with all objections and improper

consideration of the case put up by the petitioners, we are of the

considered view that this matter needs remand. Hence, we are not

going into the merit of the matter and judgments cited by the

learned Senior Advocate for respondents.

30. In view of discussion made hereinabove we have no

hesitation to hold that both the orders are not sustainable in the eye

of law. Hence, we pass the following order:

        (i)           The petition is partly allowed.

        (ii)          The impugned orders below Exhs.23 and 30, dated

01.07.2021 are hereby quashed and set aside.

(iii) The application Exhs.23 and 30 are remitted back to

the Joint Charity Commissioner, Nagpur for a fresh

decision as per the provisions of law.

(iv) In case any adverse order is passed against the

petitioners, the same shall not be given effect for 15

days from the date of order.

        (v)           No order as to costs.

                      Rule accordingly.



                           JUDGE                                JUDGE
nd.thawre