IN THE COURT OF MR. R. V. VYAS, I/C JOINT CHARITY COMMISSIONER, VADODARA SECTION (JURISDICTION).
Appeal for Justice Misc. No. 15/2010.
Number: 19
Plaintiff:
Dr. D. K. Pabby, Azad Apartment. Shri Aurobindo Marg, New Delhi – 110 018.
Against:
Defendents:
1. Prof. Om P. Juneja
Resi : Dwarakamai, 25/B, Pratapgunj, Vadodara 390 002.
2. Dr. J. K. Dodiya, Associate Professor, Department of English, Saurashtra
University, Rajkot – 360 005.
3. Prof. Rajendrasinh Jadeja, H. M. Patel Institute of English Training and
Research, Vallabh Vidhyanagar, Anand 388 120.
Advocates: 1. On Plaintiff’s side: Mr. H. D. Parmar.
2. On Defendent’s (No 1) side: Mr. Ravindra M. Joshi/
For No. 3: Mrs. Nandini Joshi.
Subject: Vide Clause 41/A of the Bombay Public Trust Act 1950…
Indian Association for Canadian Studies.
Registration No. : F/ 409/ Vadodara.
RESOLUTION
(1) In this matter the applicant under the BPT Act of 1950 vide application submitted by the plaintiff of the present case under 41/ A of the BPT Act 1950, Dr. P. K. Pabby, the representative secretary (operative trustee) of the Indian Association for Canadian studies, mentions the details of the opponents 1 to 3 and states that the matter appears to be illegal and unauthorized manner.
(2) Of the facts mentioned in the said application, that the said trust is registered at Vadodara vide the BPT Act 1950 and the Society Registration Act 1860, that the details of the present executives and their posts are mentioned, and that Prof. Om P. Juneja, Secretary was elected in 1986 at the time of the registration and in 1988 and 1991 as President and that he called the General Body Meeting vide letter/ notice dated 8/ 3/ 10 without being authorized by the external locus standi operative trustee and that details are mentioned about Dr. J. K. Dodiya, Rajkot as Returning Officer 10 February, 2010 and 8 March, 2010 and that the election is to be held at Anand on 11/ 4/ 2010 about which the details are mentioned. Though Prof. Jadeja and Prof. Juneja and the current executive committee are made operative illegally and in unauthorized manner and though the designated operative trustee is not authorized vide clause no. 4 of the order of the Joint Charity Commissioner, Vadodara dated 29/ 8/ 09, IACS letter head and stationery are used for 10/ 11 April, 2010 meetings at Anand. On asking Prof. Juneja about it, he denied it. Mentioning all these facts, this application is made requesting justice in the matter. In it, the election of the executives and the office bearers and the General Body Meeting and the 24th Annual Conference to be held at Anand is prayed to be stayed and Returning Officer for the E. C. Election and the Observer for the Election procedure, reasonable date and reasonable venue in the near future all these details are mentioned in the application as per the IACS Constitution, 1986.
(3) Along with exhibit no. 1, exhibit no. 2, list of documents, in which the copy of the resolution of the order No 2/ 1 of the appeal 38/ 2006, No. 2/ 2 of IACS Election Reconciliation Meeting dated 25 February, 2010 with details 1 to 7, 9 names and their signatures, etc. are mentioned. In it, in detail no 1 the dates of the elections are mentioned April 10/ 11 or April 17/ 18 or afterwards as preferred dates and Prof Juneja has given details of the alternative venue and “to continue and consider” the nomination forms received by 10th February, 2010, are mentioned. Also mentioned is “will not go” for the 1986 members and the present litigation by the plaintiff, D. K. Pabby with Opponent No 1 Prof O. P. Juneja and his signatures with other names and their signatures. In No. 2/ 3, the details of the Reconciliation Agreement are submitted which are considered for reading. In it, the details of the original Constitution which is in operation today and the coordinating office is registered at Vadodara with Prof. O. P Juneja as its coordinator until a new board of trustees is formed by election etc., are mentioned. In No. 2/ 4, a copy of the Memorandum of Association along with the copy of the rules and regulations are enclosed. In it, page 2 mentions the provision of election. In No. 2/ 5, the copy of the legal notice, 2/ 6 copy of the notice dated 10 February, 2010, in which (E) (F) details of the elections and the results 14 March, 2010 are mentioned; and with it present 8 March, 2010 and its details against (E) and (F) mentions 11 April, 2010. In No. 2/ 7, 2/ 8, 2/ 9 copy of the affidavit, 2/ 10 a copy of the meeting of the current executive committee (operative trustees), 2/ 11 copy of the letter to Dr. Chandra Mohan, 2/ 12 copy of the meeting of the executive committee dated 24 April, 1995, 2/ 13 copy of the letter dated 3 January, 1996; Exhibit no. 3 appeal for the interim relief, Exhibit no. 4 copy of the registered post A. D notice, Exhibits no 5 and 6 Registered Post AD acknowledgement slip, detail of the representation in writing from the plaintiff. Exhibit 8 Vakilatnama, no. 9 the details of the reply of the plaintiff’s appeal from the defendant no 1 in which the plaintiff’s appeal is not valid and not agreeable, as there is no legal reason caused that it has to be set aside (cancelled). The plaintiff has applied on a letter pad and below it he has made an appeal to the honourable Joint Charity Commissioner. In the matter of appeal no. 38/06 on 29/8/09, rejecting the change report the court has honoured the judgment of the Assistant Charity Commissioner. On 25/ 2/ 10 the plaintiff and his companions based in Delhi have agreed to hold election on 10/ 4/ 10 and so they cannot oppose the election, because here the principal of Estoppel is applied as a whole. The change report was submitted to the court of the Assistant Charity Commissioner, Vadodara which is disapproved and so the management body mentioned in the para 2 of the appeal is not legal, and they do not get any right to take any legal action. The point that we, the plaintiff does not have any legal right is wrong, that there is no locus standi is wrong, that the only right stays with the operative trustee is wrong, that the returning officer has no right to issue the notice for the election is wrong, that by the order of the Joint charity Commissioner of the dated 29/ 8/ 09 the operative trustee has right to conduct the present election is wrong, that the plaintiff’s interpretation is wrong, that the plaintiff tried to persuade the opponent and the opponent denied to cooperate in the matter is wrong. The fact is that we believe that the authority to give direction in the election procedure does not lay with the honourable court. As per the judgment with the established principle mentioned on page number 300 in the matter of A. I. R. 1993 Bombay, the honourable court has no right to give direction or to interfere in the matter. Because the change report is disapproved and so the management body of this sort cannot be called legal. The members of that body do not get any right to pass any resolution. A meeting was held at the office of the High Commission of Canada in Delhi and its noting has been presented on the page 2 of the present application, all the members have signed it and the minutes too are presented. In paragraph no 1 of the minutes the plaintiff and his companions in Delhi have given consent for the election procedure and thus the notification dated 10/ 2/ 10 has been accepted. The only point to represent was about the change in the date of the election. Following the minutes the date of the election is announced on 10/ 11 April, 2010 and all office bearers have been informed about it. In Sr. no 6 of the minutes the nominations forms that were received as per the notification dated 10/ 2/ 10 of the election too are considered as valid. In view of the details of the entire minutes that the plaintiff has submitted, they have no right to stop the election procedure. The election was announced on the date 10/ 2/ 10 and a letter to that effect is considered by the plaintiff after about a month and a half on Date 29/ 3/ 10. Thus, as the time of the election is approaching nearer, the procedure of the election cannot be stopped after it. The procedure of the election has started, and the circulars about the election and the conference are issued. The members have obtained their railway reservation bookings. Proper arrangements for lodging and boarding of the member- delegates have been finalized and the booking of the hall has been made. Further, all procedures for the elections and the conference are almost completed. So if the election and the conference are cancelled without any reasonable ground the members of the association are likely to be put under lot of stress, difficulties, and inconvenience. The strength of the members is 300. It is not proper and reasonable that just because of the whim of the plaintiff the members are put to lot of inconvenience. Holding the election goes very much in favour of justice. Even according to the established principles of the honourable court, once the procedure of the election starts it cannot be stopped. Dr. Dodiya has been appointed as Returning Officer as per the provision made in the Constitution of the society, and the election committee has been formed following the provision of the Constitution. Allegations are made against Chandra Mohan for Rs. 30000/- and the appeal to that effect has been filed in the court of the honourable Assistant Charity Commissioner which is pending. Hence, Dr. Chandra Mohan’s affidavit cannot be trusted. Mr. D. K. Kaushik’s affidavit is irrelevant as he is not E.C. Dr. D. K. Pabby has illegally collected money from some members which he has not deposited with the Association. Jaydipsinh Dodiya in the court of honourable Assistant Charity Commissioner, Vadodara has filed a complaint to that effect. The grant that is released by the Government of Canada has to be deposited in the Indian Bank, Fatehgunj Branch, Vadodara and if it is deposited in any other account, it violates the provisions of the FERA and FEMA Acts. In view of this fact, the government of Canada has suspended the grant for last three years. The case of the opponents is very strong at the first sight. As decided in the meeting dated 25/ 2/ 10 the entire procedure of the election and the conference has been accomplished on the part of the opponents. The notices of the election and the conference have already been issued. Bookings have been made for the lodging and boarding of 300 members and the conference hall has been booked for the delegates coming to attend the conference. The plaintiff does not show any valid reason. In such circumstances the weighing scales of convenience or inconvenience certainly goes in favour of us, the opponents. If the election and the conference are stayed the opponents and the members will have (is likely) to suffer such an irreparable loss that it cannot be compensated with money. If an appeal is rejected the plaintiff will have no loss to suffer. All these facts are shown and the reply is filed. No 10 Vakilatnama on behalf of the opponent no. 3; No. 11 application for further date from the opponent no 3; No. 12 written arguments in which the facts are submitted and to be heard by the honourable judge vide his powers under article 41/ A and clear it on the ground of their strengths and weaknesses. The executives of the applicant possess unchallenging rights to take decision to hold election and to take executive decisions about the association; the opponents who are not associated with the execution of the association for last several years do not have any right to introduce them as the executives of the association. Many years ago the opponent no 1 worked as the secretary and then he was relieved. The procedure of the said election of the applicant organization that the opponent has initiated is contrary to the basic regulations of the organization and also to the method of appointing new trustees and hence in the interest of the proper administration of the applicant organization under article 41/ A the honourable judge has powers to issue interim or final order in this matter. In order to support this argument, the case of Dev Krishnadasji Guru Dharmadasji (2008 (1) GHL) and others against the State of Gujarat and others (is cited). According to the principle set in this case, the application has to be considered for approval in the interest of the proper administration of the trust. Facts to that effect are found to be submitted. With it (the following) are submitted: a copy of the judgment of the Gujarat High Court, showing limitations of the view of the facts ‘C’ of article 41/ A and scopes and the powers that can be used under that article, there are powers to grant interim or final orders for the powers to the executive body for proper administration of the trust. However, the details determined by the honourable High Court can be helpful to the plaintiff in the present conditions and that fact is found to be not established in view of the representation from the plaintiff for the executive body. Sr. No 13 Dr. J. K. Dodiya, a cover with acknowledgement slip is found to be submitted for the case; Sr. No. 14 Vakilatnama in favour of the petitioner (plaintiff); Sr No. 15 the details that Dr. J. K Dodiya sent to Dr. D. K. Pabby through speed post. Sr. No. 16 counter affidavit filed against the written reply submitted on behalf of the opponent no. 1 to the petitioner, in which it is stated that there is no question that we consider the honourable judge in any way inferior to our organization. The opponents have totally failed to prove how and under which authority they are authorized to conduct the election procedure as the executives of the applicant organization, as your honourable self has issued an order on date 29/ 8/ 09 in the matter of the appeal no. 38/ 06 approving the order of the Assistant Charity Commissioner rejecting the change report, and hence he has not approved of the said trust and the office bearers. Despite this, two other names and their designations are mentioned on the left hand upper side of the letter and in that they have dishonoured the order, the statements made to that effect are incorrect. As the opponent no 1 mentions as the change report is disapproved no such order has been issued by the honourable Joint Charity commissioner that the management of the trust may be taken away from the present executive and handed over to someone else at that very particular time and in any manner. Or no such order has been issued to prevent in any way the present executive to manage the trust. The order to the Appeal states that as the need arises the management has to be run following the rules and regulations of the organization. Considering this, the authority to conduct the election rests with the present executive of the organization, and in the light of the entire matter, the reply submitted by the opponents and facts in the paragraphs and the denial of it and the representation of the opponents are false and disagreeable. The details of the representation from the petitioner, Sr. No. 17 written representation from the opponent no. 3, the appeal is not suitable for consideration in view of the appeal presented as a representative of the trust. The details of the resolution about the trust are not relevant, and hence under these circumstances they are to be rejected (cancelled), considering the details of the petition these details do not relate to challenge the election, it seems to be the objections raised against the date announced for the election. Dr. D. K. Pabby happens to be the signatory in the matter conducted at the Canadian High Commission, Delhi on 25/ 2/ 10 and he takes no objection to the election, but takes objection to the date of the election which was postponed with his suggestion for 10th April 2010. Instead of challenging Dr. O. P. Juneja for conducting the election, it is shown that he has requested for an alternative venue for election. All nominations are continued and considered. No member has resorted to litigation of any sort. The petitioner has not challenged the programme of the election. As shown in the details, he has only prayed for staying the general body meeting and the conference. The justice urged by the petitioner against the opponent no. 3, which is not incorporated in the purview of the article 41/ A, has no relation with the expense of the election. The petitioner (plaintiff) has misinterpreted the order dated 29/ 8/ 09. It confirms the order of the Assistant Charity Commissioner in view of the change report no. 468/ 2002. The petition filed mentioning that arrangements made for all members have been made for 300 members, etc is not worthy of legal consideration and it has to be cancelled (rejected) with the administrative expenses incurred on it. The representation of this sort, vide Sr. No 18 and list of documents in favour of the opponents. Attachment Numbers – 18/1, copy of the notice dated 10 February, 2010; 18/ 2 Xerox copy of the reconciliation meeting; 18/ 3 Xerox copy of the opponent no. 1’s letter dated 8/ 3/ 2010; 18/ 4 xerox copy of the agenda; 18/ 5 xerox copy of the resolution of the appeal no 38/ 6; 18/6 xerox copy of the PTR, in which column 3, fact no 4, the details of the name of the opponent no 1, inquiry for the article 28, inquiry no – 103/ 86 resolution dated 11/ 9/ 86 column – 4 the details of the method of succession as mentioned therein, and the provision of three years’ term for elected members. On considering these, following the registration of the details in ’86, no change report, except the office record of the Change Report no – 92/ 95, no details are found to be registered, it becomes a reason to believe that no action has been taken to follow the set procedures and rules, which can be inferred at first sight itself. It is also clear that the name of the applicant (plaintiff) is not found to be registered on the PTR even. Sr. no. 18/ 7: a list of the members likely to arrive on 9/ 4/ 10; Sr. No.18/ 8: xerox copy of the receipt of the hostel accommodation; Sr. No. 18/ 9: Xerox copy of the change report; Sr. no 468/ 2, along with the honourable Allahabad High Court A. I. R. 2005, with the lawyer’s representation. Considering with due regard the details of the order of the honourable High Court, the writ court cannot interfere once the election procedure is initiated. Presenting these details, there is reasonable ground to believe that the representation of the opponents seems to find the support. A. I. R. 1993, Bombay 315, in which ‘election process of governing council of trust set in motion Joint Charity not competent to interfere.’ Remedy is available under section 22 public trust election process Charity Commissioner cannot interfere, copy of the notice, this type of support to the representation of the opponent, all these are found to be having enough reason.
4. Thus, the petition submitted by the plaintiff (the petitioner), considering the details of BPT Act 1950 section 41/ A, considering the details submitted in the present suit, considering the copy of the PTR of the respective organization submitted, in whose details of column no. 28, the said organization was registered in 1986 and its column no – 5 about the method of appointing a trustee and manager, though there is provision for three years, considering the said column – 28 of the copy of the PTR, it is clearly found that except the details recorded at the office no other change as per the details registered in the PTR are found to be submitted or permitted. In its detail no – 3 of the name of column no. 3 trustee and manager the name of the opponent no. 1 is found to be mentioned, where as the name of the applicant (plaintiff) is not found as registered anywhere. It is found that the plaintiff of the present application and the opponent have done the interpretation of the details of the resolution of the order issued on appeal no 38/ 06 as it suits their side and manner. However, considering the representation of both the parties, following the details of the resolution order of the appeal 38/ 06 dated 29/ 8/ 2009, the petitioner of the present appeal often mentions in his representation that he is an operating trustee, and vide sr. no. 12 the detail shown in para no. 2 of the written reply, “Those who administer the applicant organization have unchallengeable legal right to conduct election and to take executive decisions”. After the order was issued in the matter of the representation of that sort and the details of no change according to the condition of the PTR and the details of disapproval of the change report by honourable Charity Commissioner and the detail of dismissal of the present appeal, there is reason to believe that the petitioner is aware of all these (facts). In spite of that, in the present case the plaintiff is found to be unsuccessful at establishing the details submitted by him by presenting proper proof and relevant details in support of representation of his right to carry out the work and at present right to conduct the election according to the provisions mentioned in the founding document (PTR-Schedule 1) of the organization. Against this, the name and details of the opponent no. 1 as registered in column - 3 of item – 3 of the PTR, and in the details submitted by the petitioner in no 2/ 2 of 25 February, 2010 the name of the petitioner of the present appeal and the name, signature and details of the opponent no. 1 are found to be clearly mentioned in the IACS election reconciliation meeting held at High Commission of Canada in Delhi along with items 1 to 7 and the names and signatures of all the 9 attendees. Further, in the representation of the opponent no details are found to be registered as objections of any kind by the petitioner against the election or the returning officer or against Dr. Juneja who is busy conducting the election, considering which in the present reference the fact is found to be believable and real. The submission of the petitioner in view of the date, which on considering the reconciliation agreement meeting item no 2/ 3 and no. 2/ 6 and the notice of 10 February, 2010 in which item E and F, and mention 4 March submitted in the notice of 8 March, 2010 vide item E, F of the election 2010-2013, the item of 11 April, 2010 is found. Thus, considering nos. 2/ 2, 25/ 2/ 2010 and 10 February, 2010 and 8 March, 2010 the present appeal is found to be submitted by the petitioner on date 29/ 3/ 2010.
Thus, in all respects the activities of the organization by which the general good is served, by which the objective and the intention of the said regulation is fulfilled, in this manner the executive committee and the persons associated with the organization have the obligation to carry out the functions of the organization following the provisions made and in the interest of the general public, is a matter beyond any doubt and real. Keeping this in mind that no action in view of any legal requirement is needed at this point in time and since no validity or legality is needed to be determined, it is clearly found that no situation is caused to impart instructions of any sort. (This is done) by just keeping the sole interest of the organization, and the general good in view and considering the entire matter submitted in this case. However, the details of the judgment of the Gujarat High court, which is taken in consideration with due respect, and the details of the honourable High Court to impart interim and final instructions to the executive authorities that are submitted on the part of the petitioner are worthy of acceptance. But, there is no reason found to believe that it can help the petitioner in any way. Against this, the opponent has submitted the judgment of the Allahabad High Court in which it is stated that once the election procedure has started, writ power should not be used. Considering the names submitted at the Bombay High Court by the opponent under article no 41/ A with due respect to the order of the honourable High Court, - trust – public trust – election process, the Charity Commissioner cannot interfere, the submission of that kind by the opponents supports their representation. As it is found to be favourable to the present case and to the fact and under the circumstances, there is no reason to believe that any detail or representation contrary to this under the circumstances is to be believed. Therefore, there is due reason found to support the representation of the opponents.
5. In the present case, no details are found to go with the prayer of the petitioner for justice, for matter to stay the procedure of the election, the general body meeting, annual conference and considering the submission of the opponent to that effect the point is found reasonably correct. Hence, how can and on what ground can the submission as regards the appointment of the Returning Officer and his committee and other matters be stopped? Why should it be stopped? Under whatever condition and circumstances, the petitioner has not been successful to establish the facts that the submission goes entirely in the interest of the organization or can be legally approved, which is revealed from the submitted details. Against it, considering the details of the hostel booking for the members arriving at the conference, and the procedure of the election almost on the verge of completion, and considering the weighing of the point of convenience and inconvenience, as submitted by the opponents, there is enough reason to believe it to go in their favour. By staying the election process to be held on 11/ 4/ 2010 with almost accomplishing the procedure of the election, conference and meeting what interest of the organization would be served in the first instance is not duly established. This is against the opponent’s submission that he has informed the members and it would cause unnecessary expense to the members and the condition like inconvenience to them the matter of what possible loss the petitioner will have to bear does not go in favour of the petitioner. While the opponents have mentioned the names and details in the present case, and the judgment of the Bombay High court in this condition. Considering the matter of the judgment, election process of governing council of trust set in motion, Joint Charity Commissioner not competent to interfere as remedy is available under section – 22 trust - public trust – election process, charity commissioner cannot interfere A. I. R. 1993 Bombay 315, whose matter of the judgment supports the opponent’s representation, is found to have enough reason at this point and under the present condition and circumstances to be consistent with the good of the organization and the people in general. The reason is that the process is almost completed and the matter to that effect is found in the representation made. However, here one matter is made clear with certainty whether the present petition contains the matter to furnish one point under article 41/ A of the BPT Act of 1950? Keeping that point in consideration, the decision about the present appeal has been made. Its effect of any kind, direct or indirect under the article - 22 shall not be considered or believed as matter causing hurdles or opposition. Hence, the respective provision, the respective competent authority, by the respective powers, there is irresistible right to take whatever decision. This fact is made clear in that respect. No procedure of decision making as per the point of judgment is done here. Just in the matter of giving orders / instructions in view of the circumstances and the conditions, should instructions alone be given in the interest of the organization? In that matter, keeping in view the basic facts, the condition is found suitable for taking decision about the present case. By it, since both the petitioner and the opponents are associated with the management of the organization, and present their own stand in that regard and the election is being held in the interest of the organization. Therefore, in this context in the interest of the organization, it is considered proper to give instruction to the petitioner and the opponent to think in their own way about how to perform the functions of the organization following the founding document and the provisions made in its regulations, take decisions/ decision once again about the suitability of the functions carried out. The reason for this is that under article 41/A there is no condition found to be arising to determine the judicial decision or validity/ legality of the functions. In the interest of the organization, the petitioner and the opponent who claim in their representation to be associated with the management of the organization (association) should in that matter make them better aware of the provisions of the founding document, the provisions of the regulations, and in the matter of the recorded conditions. The matter then leads to the condition to impart instructions to both the parties to perform the duties in the present condition in a definite, particular and reasonable manner so that the organization need not uselessly get into legal dispute of any kind, the organization attains progress day by day and meets its objectives and its benefit goes entirely to wellbeing of people in general and by it the purpose and objective of the present regulation become successful. Keeping this intention in the present circumstances, and under the present conditions whatever is felt most proper, suitable, reasonable and justified is conveyed through the final order as announced below:
-: ORDER :-
The petitioner and the opponents of the present appeal claim in the matter of their submission that they are associated with the management of the organization. But considering the facts and representations submitted in the matter of the present case, in the interest of the organization and the general good the conditions and the circumstances in the matter are found to reject (clear- fesal ?) the present application. Hence, in the present attachment No 1 the work of organizing the general body meeting of the IACS and the 24th Annual Conference of IACS has been undertaken, considering that matter it is clearly found that the petitioner and the opponents are not successful to conduct duties of the organization on collective and equal grounds. Hence, in the interest that the disputes do not increase and the organization attains gradual progress in view of the set objectives, and its benefits are rendered to general public, by which the objective of the present regulation is fulfilled, the conditions to that effect is clearly visible, the petitioner and the opponents are hereby instructed in the interest of the organization to think on agreed terms of procedure of the election following the provisions provided in that regard and conduct the process collectively according to the provisions of the founding document of the organization. Otherwise, under the respective provision one particular work, and the responsibility attached to it, the conditions to that effect may arise that its responsibility be laid on a person doing that work on personal grounds. Drawing the attention of the petitioner and the opponents and all those associated with the organization, in the interest of the organization and according to it has been instructed to conduct suitable process. This matter is however clarified earlier, yet it needs to be clarified again that here no validity legality is determined and no decision about judgment is made, And under the respective competent authority and powers the present appeal no. 1 along with all other the interim appeals necessary to be filed in the matter are rejected with the above mentioned instructions.
There is no order about the expense incurred. The copy of the order should be sent to the concerned parties for information. The complete copy of the order should be sent with due respect to the Charity commissioner, Gujarat State, Ahmedabad and Assistant Charity commissioner, Vadodara.
Date: 9/ 4/ 2010 Sd/-
Vadodara. (R. V. Vyas)
I/C Joint Charity Commissioner,
Vadodara Division, Vadodara.
