Partly allowed

Narendrabhai Bhagvanji Dhamsadiya v. the Joint Charity Commissioner, Rajkot

Gujarat HC12 Sept 2022SCA/11479/2020

Case brief

AI extract

What is this about?

High Court quashed the Charity Commissioner's order dismissing an application as infructuous. The Court directed the Charity Commissioner to hear the application afresh by March 31, contingent on a broad consensus between parties that the interim management's term was ending and merit could not be fully re-litigated due to time elapsed.

What did the court decide?

Impugned order dated 25.6.2020 quashed; Charity Commissioner directed to decide Application No.41/11/2019 afresh by 31.3.2023; current management permitted to continue with restraint on policy decisio

Narendrabhai Bhagvanji Dhamsadiya Vs the Joint… — Writ and Judicial Review | Gujarat HC (2022)

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 10955 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 11479 of 2020 With MISC. CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021 In R/SPECIAL CIVIL APPLICATION NO. 8766 of 2020

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SHYAM MADHUKANT SHAH (JULIE TRADERS)

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Versus

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THE JT. CHARITY COMMISSIONER RAJKOT

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Appearance: MR HRIDAY BUCH(2372) for the Petitioner(s) No. 1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32, 33,34,35,36,37,38,39,4,40,41,42,43,44,45,46,47,48,49,5,50,51,52,53,54,55,5 6,57,58,59,6,60,61,62,63,64,65,66,67,68,69,7,70,71,72,73,8,9 DELETED for the Respondent(s) No. 15 MR SAHIL TRIVEDI, AGP for the Respondent(s) No. 1

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MR HARSH PAREKH for MR C P CHANIYARA(6836) for the Respondent(s) No. 18

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NOTICE SERVED for the Respondent(s) No. 10,11,12,13,14,16,17,19,2,20,22,23,24,25,26,27,28,29,30,31,32,4,5,6,7,8,9 NOTICE UNSERVED for the Respondent(s) No. 21 MR PK JANI, SENIOR ADVOCATE with MR SHIVANG P JANI(8285) for the Respondent(s) No. 3

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CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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Date : 12/09/2022

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COMMON ORAL ORDER

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1 Both these petitions are filed under

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Article 226 of the Constitution of India, the petitioners have prayed to quash and set aside order

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Page 1 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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dated 25.6.2020 passed by the respondent No.1. The petitioners in Special Civil Application No.10955 of 2020, prayed for the following reliefs:

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“[a] YOUR LORDSHIPS be pleased to issue writ of mandamus or writ in the nature of mandamus or any other appropriate writ order or direction quashing and setting aside the order dated 25.06.2020 passed by the respondent no.1 in JMA 411/11/2019.

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[b] Pending the admission, hearing and final disposal of the present petition be pleased to stay the operation and implementation of the order dated 25.6.2020.

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[c] Pending the admission, hearing and final disposal of the present petition be pleased to stay the programme of election declared by respondent no.2 on 10.07.2020.

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[d] Or in the alternatively pending the admission, hearing and final disposal of the present petition be pleased permit the petitioners to participate in the process of election by the process of seal cover.”

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Page 2 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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2 Since similar reliefs are prayed in Special Civil Application No.11479 of 2020, the prayers made therein are not incorporated in the order.

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3 Heard learned advocate Mr.Hriday Buch and Mr.Hardik Raval, learned advocates for the petitioners, Mr.P.K.Jani, learned Senior Advocate with Mr.Shivang Jani, learned advocate for respondent No.3, Mr.Harsh Parekh, learned advocate for respondent No.18 and Mr.Sahil Trivedi, learned Assistant Government Pleader for the State respondents.

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4 Both the petitions are filed challenging the order dated 25.6.2020 passed by the learned joint Charity Commissioner, Rajkot is under challenge, whereby the Joint Charity Commissioner dismissed the application preferred by Sameer M. Shah being Application No.41/11/2019 by holding that the application has become infructuous and also issued certain directions, which according to learned advocates for the petitioners, the above order

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Page 3 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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suffers from vice of non-application of mind. Vide Application No.41/19/2019 the applicant has challenged the validity of meeting held by the Trust on 30.3.2019 and the resolutions passed therein. Vide various resolutions passed in meeting dated 30.3.2019, the aspect about induction of certain persons afterwards in the Trust was decided and they were sought to be ousted from the trust membership, and therefore, they were not considered as members of the trust and right to vote and contest the election was taken away from them.

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5 According to learned advocates for the petitioners, while passing the impugned order dated 25.6.2020, the learned Charity Commissioner failed to appreciate the fact that since the resolution passed in the meeting dated 30.3.2019 would have recurring effect, the conclusion arrived at by the learned Joint Charity Commissioner that the application has become infructuous was an erroneous finding as the aforesaid meeting would have impact even on future elections as well as on membership, right to contest

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Page 4 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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and vote of the members, who were inducted in the Trust subsequently.

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6 Mr.Trivedi, learned Assistant Government Pleader appearing for State respondents and Mr.Harsh Parekh, learned advocate for the respondent No.18 could not dispute the above submissions.

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7 Learned advocates for the parties have arrived at a broad consensus that due to the order dated 25.6.2020, the elections have taken place and the term of the elected body is getting expired on 20.9.2022 and that may not be disturbed by way of passing any order as considerable period of the term is already over.

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8 In view of the broad consensus arrived

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between the parties, learned advocates for the parties do not press for reasoned order on merit. With the consent of learned advocates for the parties, the following directions are issued:

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Page 5 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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[1] Impugned order dated 25.6.2019 passed by the Joint Charity Commissioner is hereby quashed and set aside.

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[2] The Joint Charity Commissioner, Rajkot is directed to hear and decide the application preferred by respondent No.3 being Application No.41/11/2019 afresh on or before 31.3.2023 by issuing notice to all the concerned parties appearing in the aforesaid application and after hearing them and after taking into consideration all the material and decisions that the learned advocates may submit during the course of hearing. Thereafter, the learned Joint Charity Commissioner shall pass a reasoned order upon the aforesaid application.

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[3] Learned advocate Mr.Harsh Parekh states that respondent No.18 is also aggrieved by certain resolutions passed by the rival group and respondent No.18 has not challenged the same till date. Therefore, the respondent No.18 or

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Page 6 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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any other beneficiary of the Trust, if prefers any application challenging any other resolution, respondent No.18 or the beneficiary may be permitted to challenge the resolution, which has related to the issue of membership of newly inducted members, the same may be directed to be permitted by the Joint Charity Commissioner. Further, since learned advocate Mr.Buch and learned advocate Mr.Raval, upon instructions, have categorically stated that they would not object if any resolution in respect of the subject matter connected to the original application preferred by respondent herein is challenged by any of the beneficiary, they would not object to the same on the ground of maintainability or limitation. However, they reserve their right to challenge the same by filing their reply and raising all the objections in respect of the merit of the matter.

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[4] If respondent No.18 or any of the

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Page 7 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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beneficiary wants to challenge the resolution, which is in relation to the subject matter of the petition, the said exercise be carried out on or before 30.9.2022.

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[5] Learned Joint Charity Commissioner, Rajkot is directed to hear and decide all the applications i.e. application that may be preferred by respondent No.3 as well as any new application in respect of subject matter related to induction of new members together and decide the same latest by 31.3.2022 by providing sufficient opportunity of hearing to all the parties and by passing a reasoned order.

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[6] All the decisions, which have been taken by the Trust during the interregnum period shall be subject to final outcome of the proceedings before the Joint Charity Commissioner.

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[7] The learned Joint Charity Commissioner

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Page 8 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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if required may hear the matter on day today basis and even free to impose costs upon the parties seeking unnecessary adjournments if any unreasonable adjournment is sought by any of the party. All the advocate appearing before this Court today assured that their counterparts at Rajkot shall not ask for any unnecessary adjournment. However, the learned Joint Charity Commissioner may give short adjournments if the application for adjournment contains any genuine reason.

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[8] All the advocates have jointly consented that the present body, which is managing the affairs of the Trust may be permitted to continue till 31.3.2022 as the Joint Charity Commissioner is considering the application preferred by respondent No.3, which has not been remanded back. Therefore, during that parotid till 31.3.2022, the Body which is in power is restrained from taking any policy decision. However, the respondent No.18 is free

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Page 9 of 10

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C/SCA/10955/2020 ORDER DATED: 12/09/2022

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to incur day today expenses of the Trust and may give separate account for the same.

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[9] It is made clear that this Court has not gone into the merit of the matter.

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9 With the above observations and directions, both the petitions stand disposed of. Notice discharged. However, there shall be no order as to costs.

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Application No.1 of 2021 in Special Civil Application No.8766 of 2020 stands disposed of.

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Direct service is permitted.

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(NIRZAR S. DESAI,J)

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P. SUBRAHMANYAM

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Narendrabhai Bhagvanji Dhamsadiya v. the Joint Charity Commissioner, Rajkot

Case brief

What is this about?

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Narendrabhai Bhagvanji Dhamsadiya v. the Joint Charity Commissioner, Rajkot

Case brief

What is this about?

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