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2005 Supreme(Guj) 342
Gujarat High Court
Judgename :K.M.MEHTA
NAGESHWAR VIDHYA TRUST - Appellant
Versus
PANKAJBHAI HARISHCHANDRA JANI - Respondent
S.C.A. 3995 of 2005
Decided On : 05/05/2005
Headnote:Point in Issue :
Proceedings before Charity Commissioner - Transfer of - Bias and undue hurry - Finding of.
Head Note :
Constitution of India, 1950 - Article 226 - Bombay Public Trust Act, 1950 (Bom. Act 29 of 1950) - Sections 41(A), 56-A, 47, 50 and 50-A - Town Planning Act - Sections 36(2) - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Section 24 - Proceedings before Charity Commissioner - Transfer of - Bias and undue hurry - Ground of - Sustainability - Finding of - Mere surmise and conjecture are not enough to determine whether a person is biased in the case - There must exist circumstances from which a reasonable man would think it probable or likely that the officer in question is prejudiced against the aggrieved person - The test is likelihood of bias with reasonableness of the apprehension in that regard - The burden to prove the bias is on the person who alleges it - In the case Charity Commissioner as alleged has not shown any pre-conceived view in the matter - He has decided the matter in accordance with law - The petitioners have not been able to show that the order passed by Charity Commissioner is contrary to and inconsistent with the principles accepted in judicial decisions - In the facts on the contrary it is born out that Charity Commissioner is legally duty bound to dispose of the matter as quickly as possible and on that account no undue hurry on the part of Charity Commissioner can be inferred - The charity commissioner in the matter has acted absolutely justly bona fide and legally and, therefore, there cannot be question of bias on his part to justify transfer of the case to any other authority having jurisdiction.
Held :
The Charity Commissioner has not shown any pre-conceived view in the matter. He has decided the matter in accordance with law. [Para 26]
The order passed by the Charity Commissioner is absolutely valid just and in consonance with the provisions of the Act and Rules and other decisions of the Honble Supreme Court from time to time. The petitioners have not been able to show that the order passed by the Charity Commissioner is contrary to and inconsistent with the said principles laid down by the Honble Supreme Court and the High Court. The Counsel for the petitioners has not been able to show that any infirmity or illegality in the order of the Charity Commissioner.
[Para 26]
The only ground which has been alleged is that the Charity Commissioner has shown undue hurry in disposing of the cases. In Courts view when the adjudicating authority has a lot of cases pending and if he desires to dispose of the cases as quickly as possible, this is a case of welcome nature rather than criticising the same. Not only that the Charity Commissioner has shown his quickness in disposing of the matter but there were certain directions passed by this Court directing him to dispose of the matter. Therefore, the Charity Commissioner is legally duty bound to dispose of the matter as quickly as possible. Therefore, in my view, the Charity Commissioner has acted absolutely justly, bona fide and legally and therefore, there cannot be question of bias on the part of the Charity Commissioner. [Para 28.1]
Law Laid Down :
Where a Judge is a party to the Division Bench passing an order which he had passed originally as a Single Judge and adheres to the same then this is a case of pre-judging a situation which amounts to bias.
Cases Law Analysis :
State of W.B. & Ors. vs. Shivananda Pathak & Ors. 1998 (5) SCC 513 [Para 14].-Distinguished
The Law of Writs, 5th Edition [Para 19];; H.W.R. Wade on Administrative Law, Ninth Edition (2004), on page 464-465 [Para 19.1];; Administrative Law by I.P. Massey, sixth edition (2005) on page 180 [Para 19.2-A];; S. Pratap Singh vs. State of Punjab AIR 1964 SC 74 [Para 19.4];; Kedar Nath Bahl vs. State of Punjab, AIR 1979 SC 220 [Para 19.4];; State of Punjab vs. V.K. Khanna AIR 2001 SC 343 [Para 19.8];; 2001 Campbell, Maack & Sessions, a Utah Professional Corporation, UT APP 397 [Para 19.11].-Relied on
Conclusion :
The Charity Commissioner has not shown any haste or bias in the matter - He has acted absolutely justly, bona fide and legally, therefore, there cannot be a question of transfer of proceedings to any other authority.
Cases Referred :
A.K. Kraipak vs. Union of India 1969 (2) SCC 262;; S.P. Kapoor (Dr.) vs. State of H.P., 1981 (4) SCC 716;; Mineral Development Ltd. vs. State of Bihar AIR 1960 SC 468;; Manak Lal vs. Dr. Prem Chand Singhvi & Ors., AIR 1957 SC 425;; A.K. Kraipak vs. Union of India, AIR 1970 SC 150;; R.L. Sharma vs. Managing Committee, Dr. Hari Ram (Co-edn.) H.S. School, AIR 1993 SC 2155;; Kumaon Mandal Vikas Nigam Ltd. vs. Girja Shankar Pant & Ors., 2001 (1) SCC 182;; S. Parthasarathi vs. State of A.P., 1974 (3) SCC 459;; G.N. Nayak vs. Goa University & Ors., 2002 (2) SCC 712 ;; Saiyad Mohammad Bakar El Edroos (Dead) by LRS vs. Abdulhabib Hasan Arab & Ors., 1998 (4) SCC 343;; Gangadhar Janardan Mhatre vs. State of Maharashtra & Ors., 2004 (7) SCC 768;; M.P. Special Police Establishment vs. State of M.P. & Ors., 2004 (8) SCC 788 ;; Combined Enterprises and Ors. vs. Vimlaben Naginbhai Patel, 1985 (2) GLR 950;; Rajkot Cancer Society vs. Muni. Corporation, Rajkot, 1987 (2) GLH 133;; Bihar State Mineral Development Corporation & Anr. vs. Encon Builders (I) (P) Ltd., 2003 (7) SCC 418;; Ratanlal vs. Suresh Kumar, AIR 1987 M.P. 178;; Secretary to Govt. Transport Deptt. vs. Munuswamy, 1988 Supp. SCC 651;; International Airport Authority vs. K.D. Bali, 1988 (2) SCC 360 = AIR 1988 SC 1099;; Belilos vs. Switzerland 1988 (10) EHRR 466;; Johnson vs. Johnson 2000 (200) CLR 488;; R.vs. Rand (1866) LR 1 QB 230.
Decided in Favour of :
Non-Petitioner
Petition Dismissed
( 1 ) SHRI Nageshwar Vidhya Trust, petitioner No. 1; Smt. Chandaben Drukeshkumar Upadhyay, Managing Trustee of Shri Nageshwar Vidhya Trust, petitioner No. 2 and Shri Rajnikant Shantilal Joshi, petitioner No. 3, have filed this petition with a prayer that this Court may issue a writ of mandamus or writ in the nature of mandamus or any other appropriate order or direction transferring the following proceedings: (i) Miscellaneous Judicial Application No. 7 of 2004 along with Suo Motu Application No. 8 of 2004 under Section 41 (A) of the Bombay Public Trust Act (hereinafter referred to as "the Act"), (ii) Miscellaneous Judicial Application No. 10 of 2004 under Section 41 (A) of the Act, (iii) Scheme Application No. 13 of 2004 under Section 50 (A) of the Act; and (iv) Miscellaneous Judicial Application No. 36 of 2004 under Section 41 (A) of the Act pending before respondent No. 7, Joint Charity Commissioner at Surat to any other appropriate Authority/officer/charity Commissioner other than respondent No. 7 who is competent to adjudicate upon the above mentioned proceedings under the Act as deemed fit in the interest of justice by this Court. 1. 2 the said petition was filed on 9. 3. 2005. This Court passed orders dated 11. 3. 2005, 15. 3. 2005 and 21. 3. 2005. 1. 3 pursuant to the order passed by this Court, on behalf of the petitioner Mr. N. D. Nanavati, learned senior counsel with Mr. Jal Unwala, learned advocate, appears whereas on behalf of respondent Nos. 1 to 4, Mr. D. D. Vyas, learned senior advocate with Mr. Deep D. Vyas, learned advocate, appears. This Court has not issued any notice. However, as the record of the matter is voluminous and question raised in the petition is delicate one, this Court requested Mr. Kamal Trivedi, learned Additional Advocate General and sr. advocate, to appear as amicus curiae on behalf of respondent No. 7. As Mr. Trivedi is senior advocate, he has requested Mr. T. S. Nanavati, learned advocate, to appear on behalf of respondent No. 7.
( 2 ). THE facts giving rise to this petition are as under: 2. 1 there is an agricultural land bearing old Revenue Survey No. 35/2 (new Revenue Survey No. 38/4) situated at village Magdalla of sub-District Choryasi of District admeasuring 1 Hectare 32 Are and 53 Sq. mtrs. nearly 13253 sq. mt. which is actually measured as 12098 sq. mtr. after deduction which is called ( Land - A ). There is an another land bearing Revenue Survey No. 75 (new Survey No. 48) situated in village Magdalla of sub-District Choryashi of District Surat which is agricultural land admeasuring 4 Acre 1 Guntha and Hectare 1-62-89 Are = 16,744 sq. mtrs. which is called (Land - B) (hereinafter referred to as "the suit properties" ). 2. 2 from the record it emerges that originally one Shri Mansukhlal Pachhigar was the owner of the suit lands and he has died on 7. 3. 1993 without making any Will. The pedigree of Mr. Mansukhlal Pachhigar is ad under:
Mansukhlal Pachhigar (died on 7. 3. 1993)
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Hasumatiben M. Pachhigar
(Wife)
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Subhashchandra . . Ashokbhai Avantikaben
Pachhigar Pachhigar . Pachhigar
(Son) . . (Son) . . (daughter)
(Husbands name
| . . Ashwinbhai)
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- . . -
| . | . . | . . |
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Snehal . Bijal . Gautam Siddharth
2. 3 shri Mansukhlal Pachhigars wifes name is Hasumatiben Mansukhlal Pachhigar. They had two sons, named Shri Subhashchandra Mansukhlal Pachhigar and Shri Ashokbhai Mansukhlal Pachhigar and a daughter named Avantikaben. Her husbands name is Ashwinbhai. Subhashchandra Pachhigar has a daughter Snehal and a son Bijal and Ashokbhai Pachhigar has two sons Gautam and Siddharth. 2. 4 petitioner No. 1 is a trust which is duly registered on 17. 10. 1996 under the Act having its Registration No. E-3873 at Surat. Petitioner Nos. 2 and 3 are trustees of the said trust wherein petitioner No. 2 Smt. Chandaben Drukeshkumar Upadhyay is its Managing Trustee. The object of the trust is educational development by opening primary and secondary schoo
