Delhi High Court
Lt. Col. (Retd.) N.S. Gulia vs General Secretary, The Indian ... on 29 January, 2015
Author: Rajiv Shakdher
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7348/2014
Lt. COL. (Retd.) N.S. GULIA ..... Petitioner
Through: Ms Swaty Malik & Mr Sanjeev Kr.
Baliyan, Advs.
versus
GENERAL SECRETARY, THE INDIAN EX-SERVICES
LEAGUE & ORS ..... Respondents
Through: Mr Amitava Chauhan, Adv. for R-1 & 2.
Mr Manish Mohan, CGSC with Mr Brajesh
Kumar, Ms Manisha Rana, Ms Sidhi Arora & Ms
Hina Shaheen, Advs. for R-3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 29.01.2015
1. This is a petition filed under Article 226 of the Constitution. The
reliefs sought in the writ petition is as follows:
"a. Direct the respondents to refund the donation of Rs.
2,50,000/- along with interest, made towards the construction
of a one room set at the Sainik Rest house in IESL Complex.
b. Any other order/ direction which this Hon'ble Court may
deem fit & Proper to be passed in the given facts and
circumstances of the case."
2. Notice in this petition was issued on 31.10.2014. On that date,
respondent no.3, was represented. On return on notice, i.e., on 18.11.2014,
respondent no. 1 and 2, also entered appearance. The contesting
respondents in this matter are respondent no. 1 and 2. In effect, it is the
Indian Ex-Services League (in short the League), which is a society
registered under the Societies Registration Act, 1860. The league, thus,
seeks to contest the present writ petition.
2.1 Counter affidavit has not been filed on behalf of the respondents to
date, despite opportunity. In so far as respondent no.3 is concerned,
opportunity was given as far back as on 31.10.2014, while as regards
respondent nos. 1 and 2, opportunity was given as far back as on
18.11.2014.
2.2 I may only note that on 18.11.2014, this court had directed that
respondent nos. 1 and 2 would deposit a sum of Rs. 2.50 lacs, which was
given as donation by the petitioner to the League, with the registry of this
court. I am informed by the learned counsel for respondent nos. 1 and 2,
that the said sum, has been deposited.
3. This is, according to me, is a sad case where the petitioner, who
donated Rs. 2.50 lacs for construction of a one-room set in the memory of
his son Wg. Cdr. Nitender Singh Gulia, as far back as on 09.11.2010, has
not been able to get the League to do the needful in the matter. There is no
dispute before me that the said sum was donated by the petitioner; a fact
which is evident from the order of this court dated 18.11.2014 and its
compliance by the League. The factum of receipt of donation from the
petitioner is also evidenced from a bare perusal of this letter dated
10.01.2011, issued by the League. At that stage, it was indicated that the
donation had been accepted, and that, the petitioner, will be entitled to
exemption under Section 80G of the Income Tax Act, 1961 (in short the I.T.
Act).
4. The petitioner, after waiting for nearly year and half, wrote to the
League on 02.05.2012, bringing to fore his agony that the donation he made
in the memory of his late son, had not borne fruit, as no announcement had
been made with regard to the project, envisaged. The petitioner, expressed
his disappointment with the state of affairs and sought refund of the amount,
with interest, by 31.05.2013.
4.1 It is in response to the petitioner's letter dated 02.05.2012, that the
League, addressed a communication dated 13.05.2013. The response of the
League, in my view, made matters worse, as what was communicated to the
petitioner was that, though the project was definitely in pipeline, the League,
could not fix an exact date qua the commencement of the project. It was
also indicated, in the very same communication, that the amount, had been
donated voluntarily by the petitioner and, therefore, such a donation, once
made, are "ethically" and "morally", never claimed back.
4.2 The petitioner, however, followed up his request with: the
communication dated 14.08.2013; and refund of notice dated 03.02.2014,
and 18.08.2014. Having failed to secure his money, the petitioner, has
approached this court by way of the present petition.
5. Learned counsel for respondent no. 1 and 2 says that this writ is not
maintainable, against the League, as it is neither State nor a public authority.
It is his submission that once a donation is made, it cannot be claimed back
by the donor.
6. According to me, a writ under Article 226 of the Constitution is
maintainable. The League, i.e., respondent no.1, is operating in the realm of
public law, and therefore, is amenable to writ jurisdiction of this court.
[See: Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna
Jayanti Mahotsav Smarak Trust & ors. vs V.R. Rudani & Ors., (1989) 2
SCC 691].
7. The only question left is, whether this money can be claimed back.
According to me, the petitioner can claim back the money because, though it
was given voluntarily, the act of giving had a condition attached to it which
was to build a room in the memory of his late son, Wg. Cdr. Nitender Singh
Gulia. The said transaction was ingrained with the implicit condition that
the money given, would be utilized for the specified purpose, albeit within a
reasonable time frame. Strictly, the money handed over, in this case, may
not be in the nature of a donation, as it had a condition attached to it. The
League, having not put the money to use for the specified purpose, and there
being no timeline put in place as to when the project will commence, it will
only be proper that the League returns the money to the petitioner, so that he
can make use of it, and if he desires, give the money for the same cause, to
another organization. The failure to act on the mandate of the petitioner
being unsustainable in law, the necessary consequences of refund should
follow in this case.
8. In these circumstances, the writ petition is allowed. The money
deposited in this court will be released to the petitioner forthwith. The
interest accrued thereon shall also be paid to the petitioner.
9. Needless to say, since the petitioner would have, I presume, claimed
exemption under Section 80G of the I.T. Act, the said disclosure would be
made in the petitioner's return, so that the exemption is suitably reversed by
the income tax authorities.
10. The petition is, accordingly, disposed of.
RAJIV SHAKDHER, J
JANUARY 29, 2015
kk
