Milan Chandrakant Shah Huf vs Charity Commissioner
2021 Latest Caselaw 8030 Guj

      C/SCA/9448/2021                                  ORDER DATED: 08/07/2021




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO. 9448 of 2021

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                        MILAN CHANDRAKANT SHAH HUF
                                    Versus
                            CHARITY COMMISSIONER
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Appearance:
MR NIRAD D BUCH(4000) for the Petitioner(s) No. 1
MRS. BHAVINI N. BUCH(5403) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3,3.1,3.2,3.3,3.4,3.5
MR.MANRAJ BAROT, AGP for the respondent Nos.1 and 2
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                             Date : 08/07/2021

                               ORAL ORDER

[1] By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner who is an HUF has prayed for following reliefs:

"9.(A) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, thereby quashing and setting aside the impugned order dated 23.07.2019 passed by Ld. Charity Commissioner, Ahmedabad, and be further pleased to restore the proceedings of Application No.36/55 of 2019 (Old Application No.36/11 of 2010) to its file and be pleased to direct the Learned Joint Charity Commissioner to decide the same in accordance with law;

(B) Pending admission hearing and final disposal of this petition, Your Lordships be pleased to direct the parties to maintain status quo as regards the right, title interest, nature and possession of the trust properties;

       C/SCA/9448/2021                                  ORDER DATED: 08/07/2021


       (C)      Be pleased to pass such other and further orders as

deemed just, fit and proper in the interest of justice."

[2] Mr.Nirad D. Buch, learned advocate appearing on behalf of the petitioner has contended that the order in question is passed without granting any opportunity to the petitioner and had the opportunity been given, the proper particulars would have been placed on record so as to enable the Charity Commissioner to arrive at a just decision. It has been contended that the reasons which are assigned by the Charity Commissioner are also not cogent enough on the issue of compelling necessity to alienate the property and therefore, also order is bad in law. In addition to it, it has been submitted that the property in question was to be sold on as is where is basis and therefore, there was no prejudice likely to be caused to the trust if the permission under Section 36 of the Bombay Trusts Act would have been granted. It has been further contended that Rule 24(4) of the Bombay Public Trusts Rules is clearly indicating that moment the proceedings have gone up to this stage, than it is not be open for the Charity Commissioner to go back and reject the request. Mr.Buch, learned advocate has further submitted that the past litigation which has been taken in aid by the learned Charity Commissioner in passing the order is of no consequence so far as petitioner is concerned and it is settled position of law that the bidder being the petitioner has got a specific locus to challenge the order passed by the respondent authority i.e. Charity Commissioner.

[2.1] Learned advocate Mr.Buch for the petitioner has further submitted that on the contrary there is a Division Bench

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judgment of this Court which has taken the view that compelling necessity issue may not be considered to that extent which may run counter to the interest of the trust. On the basis of this submission, learned advocate Mr.Buch for the petitioner has submitted that order in question requires to be corrected by setting aside the same.

[3] Having heard learned advocate Mr.Nirad Buch appearing for the petitioner and having gone through the order at length passed by the Charity Commissioner, the reasons which are assigned are clearly indicating that none of the parties are approaching with clean hands including the trust itself. The self contradictory stand which are being taken during the course of litigation have also been taken into consideration at length by the Charity Commissioner while passing the order and on the basis of the admitted position which is prevailing on record and keeping in view the law laid down by this Court in a decision reported in 2008 (3) GLR 2529, a reasoned order is passed by the respondent Charity Commissioner and as such the Court see no reason to interfere and substitute the finding qua that of the Charity Commissioner in the absence of any mala fides or arbitrariness or material irregularity.

[4] Further it is settled position of law that principles of natural justice cannot be stretched to that extent that even if by complying the same, the position is not going to be altered than action or order cannot be set at naught simply on that count. This principle cannot be stretched to the extent that it may become as unruly horse. The observations contained in paragraph 32 of the decision delivered by the Hon'ble Apex Court in the case of Dharampal Satyapal Limited versus

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Deputy Commissioner of Central Excise, Gauhati and Others reported in (2015) 8 SCC 519 are deserves consideration. Hence, reproduced hereunder:

"32. Exhaustive commentary explaining the varied contours of this principle can be traced to the judgment of this Court in Managing Director, ECIL, Hyderabad & Ors. v. B. Karunakar & Ors.[11], wherein the Court discussed plenty of previous case law in restating the aforesaid principle, a glimpse whereof can be found in the following passages:

"20. The origins of the law can also be traced to the principles of natural justice, as developed in the following cases: In A. K. Kraipak v. Union of India, (1969) 2 SCC 262 : (1970) 1 SCR 457, it was held that the rules of natural justice operate in areas not covered by any law. They do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceedings also especially when it is not easy to draw the line that demarcates administrative enquiries from quasi- judicial ones. An unjust decision in an administrative inquiry may have a more far reaching effect than a decision in a quasi-judicial inquiry. It was further observed that the concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is held and the constitution of the tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice has been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that inquiry must be held in good faith and without bias and not arbitrarily or unreasonably is now included among the principles of natural justice.

21. In Chairman, Board of Mining Examination v. Ramjee, (1977) 2 SCC 256, the Court has observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative

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realities and other factors of a given case, can be exasperating. The Courts cannot look at law in the abstract or natural justice as mere artifact. Nor can they fit into a rigid mould the concept of reasonable opportunity. If the totality of circumstances satisfies the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures.

22. In Institute of Chartered Accountants of India v. L. K. Ratna, (1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990) 1 SCC 613 (Bhopal Gas Leak Disaster Case) and C. B. Gautam v. Union of India, (1993) 1 SCC 78, the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is reiterated."

[5] In the light of aforesaid observations of the Hon'ble Apex Court if the conclusion arrived at by the Charity Commissioner is to be looked into there appears to be no material irregularity. Hence, the Court deem it proper to reproduce the relevant observations / conclusion of the Charity Commissioner as under:

"8. Sometime, the board of trustees, they are making mention that the properties are belonging in the possession of H.J.Patel Charitable Trust, while after perusing the entire bunch of litigation, again, they are making a mention that the property is in possession of the trust. Moreover, various objections have been filed not only but in the first public notice, it has been specifically averred that the possession of the property is with H.J.Patel. Thereafter, again, the version has been changed by the board of trustees.

9. This dispute of this matter has gone for 4 to 5 times at the High Court. Learned Joint Charity Commissioner again ordered to issue a public notice in the news paper. The bidding process was also initiated. Meanwhile, the objector again moved to the Hon'ble High Court and the Hon'ble High

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Court passed the necessary directions directing to the Joint Commissioner to ascertain the valuation of the property and various other points which has been averred in the order of the Hon'ble High Court in PIL No.23/2018 dated 20.03.2019.

10. In view of the order of the Hon'ble High Court, all the bidders withdrew their demand draft as submitted with a liberty to participate in the proceedings as and whn any occasion may arise. During the course of dictation of this order, learned Advocate Mr.Raval has appeared on behalf of the trust and contended that all the compliance have been carried out by the trust. Hence, nothing is required to be done by the trust.

11. Now, as far as the present matter is concerned, the binding ruling of the Hon'ble High Court in the case of Five Navtanpuri Dham Khijda Mandir Trust and Ors. v/s Anilbhai Bhagwanji Jobanputra and Ors., reported in 2008 (3) GLR 2529, wherein the Hon'ble High Court has observed and that is the last judgment of the Hon'ble High Court wherein the various guidelines have been averred that before granting any permission, the Charity Commissioner is duty bound to take into consideration the following pints and only then the matter will be proceeded:

 (1)      Compelling necessity of the trust to alienate the
 property,


 (2)      Bona fide application.

Touching to both the points, as far as the point pertaining to the necessity to alienate the trust property is concerned, no any just genuine reasons have been narrated and simply it has been contended that the trust is getting a nominal amount of rent charges and in that amount, it has become very much difficult for the trust to develop the object.

C/SCA/9448/2021 ORDER DATED: 08/07/2021

12. It is the admitted the facts on record that the trust has got a very huge property. The various photographs have been produced which transpires that one Mascot Engineering Company is having the possession that sign board appears to have been affixed at the place of the trust property. Apart from that thing, the trust itself had admitted that at the time of filing the application that the possession of the property is with H.J.Patel and Co. Now, during the course of proceedings of alienation permission, the trust and/or trustees every time changing the version. Sometime, they telling that the possession of the property is with the trust and someting making a mention in the proceeding that H.J.Patel is simply the care taker. It appears that there is some hidden agenda and conspiracy.

13. I am failed to understand that such type of the fishing submission, no any type of relief can be granted as the Hon'ble High Court has also specifically directed to ascertain whether the possession of the property is with the trust or not, it may be ascertained. Apart from that, there are so many bidders are also there. Looking to the first application as preferred and thereafter even then, the application of the trustees which transpires that there is no any unanimity between the trustees. One trustee is differing the decision of the other trustees and version of the trust which I have taken a note in this proceeding.

14. Every time, the trust is changing the version. I have no any hesitation to come to the conclusion prima facie that there is some hidden conspiracy and this type of the attitude on the part of the trust, it does appearing that the trust is not coming with the clean hands and that violates the guidelines as issued by the Hon'ble High Court in the judgment i.e. Five Navtanpuri Dham Khijda Mandir Trust and Ors. v/s Anilbhai Bhagwanju Jobanputra and Ors. (supra). I, therefore of the

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view that the matter should not be proceeded further and the application as submitted deserves to be rejected."

[6] In view of the aforesaid peculiar background of fact when on the basis of the detailed material placed on record and on the basis of analysis of the documents and the stand of the parties to the proceedings, the Charity Commissioner found that there are no genuine reasons which can be said to be a compelling necessity for the Trust to alienate the property. It is further taken into consideration on the basis of admitted position on record that time and again there is a change in the stand with respect to the property in question including the possession aspect as well and hence, when the primary object of compelling necessity has not been satisfied the Charity Commissioner has disposed of the application, which order, in opinion of this Court, does not deserve to be interfered with. It has also come to the notice of the Charity Commissioner that there is some hidden agenda behind such proceedings which is going on between the parties and as such in such a suspicious circumstance particularly when this dispute has gone for 4 to 5 times right up to the High Court, Charity Commissioner is an authority who is invested with the power under the statute to look into the paramount interest of trust and when he has come to a particular satisfaction which is not perverse or without jurisdiction, Court see no reason to interfere.

[7] At this stage, considering the circumstances, which are reflecting in case on hand, the submission with respect to non- compliance of Rule 24 of the Bombay Public Trust (Gujarat) Rules, 1961 has no application since Section 36, request has not been accepted at all by the Charity Commissioner and as

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such, at this stage, there is hardly any applicability of Rule. Simultaneously, the order, which has been tried to be relied upon of the Division Bench dated 20.03.2019, is also not of any avail to the petitioner since facts are altogether different as clearly visible from the order itself and as such, in this peculiar background of facts, none of the contentions raised are of any help to the petitioner. Accordingly, in considered opinion of this Court, the petition is not entertainable.

[8] Additionally, in view of the proposition of the Hon'ble Apex Court on exercise of extraordinary jurisdiction by this Court, Court found no justifiable reason to interfere with. Said proposition is in the case of Sameer Suresh Gupta versus Rahul Kumar Agarwal reported in (2013) 9 SCC 374, more particularly, observations contained in paragraph Nos.6 and 7, Court sees no reason to interfere with.

[9] Thus, no case is made out to exercise extraordinary jurisdiction. The contentions which have been raised by the learned advocate for the petitioner are of no avail particularly when the satisfaction is arrived at by the Charity Commissioner on the basis of voluminous record. This being the position of case on hand, the order in question does not deserve any interference. According, petition being devoid of merit, same is dismissed hereby with no order as to costs.

(ASHUTOSH J. SHASTRI, J)

DHARMENDRA KUMAR