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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
VIPUL M. PANCHOLI, J.
Society For Clean Earth Throught Its Authorised Representative Mr. Anil Chimanlal Agarwal – Appellant
Versus
The Ld. Deputy Charity Commissioner – Respondent
R/Special Civil Application No. 4313 of 2021
Decided on : 05-03-2021
Constitution of India, 1950 - Articles 226 and 227 - Gujarat Public Trusts Act, 1950 - Section 18 and 19 - Societies Registration Act, 1860 - Bombay Public Trusts (Gujarat) Rules, 1961 - Rules 7 and 11 - Provincial Small Causes Courts Act, 1887 - Section 17 - Show cause notice - Registration of society - Alleged that then Chairman of petitioner society – respondent No.2 herein, deceptively got signatures of members of governing body of petitioner society on reply and consented to register petitioner society under provisions of Trust Act - Case of petitioners that petitioner No.1 is a society registered under provisions of Societies Registration Act, 1860 and same was registered - It is stated that Charity Commissioner issued a show cause notice to some of members of governing body of petitioner society calling upon said members to show cause as to why petitioner society should not be registered under Act, 1950 and as to why petitioner society’s registration should not be cancelled and prosecution should not be initiated against them for not registering society under provisions of Trust Act.
Finding of the court: It is not proper for petitioners to contend that respondent no.1 has not made or will not make any inquiry as contemplated under aforesaid Rules. At cost of repetition, it is required to be noted that petitioners have, till date, not filed any affidavit before respondent No.1 - Moreover, Mr. Jayesh Bhogilal Patel has not been examined by respondent No.1 and therefore question of his crossexamination does not arise and said relief as prayed for by petitioners is misconceived - It is revealed that Charity Commissioner issued a show cause notice calling upon members of petitioner No.1 society to show cause as to why petitioner society should not be registered under Trust Act pursuant to said show cause notice. Members of governing body of petitioner no.1 society gave consent to register petitioner society under Trust Act. However, it is alleged by petitioners that said consent was obtained deceptively. Thereafter Charity Commissioner passed an order by which members of petitioner no.1 society have to move an application before Deputy Charity Commissioner – respondent no.1 to register petitioner society as a trust under Trust Act. Though petitioners have challenged said order by filing petition before this Court, said order has not been stayed by this Court.
Result: Petition dismissed.
ORDER :
1. By way of this petition, which is filed under Articles 226 and 227 of the Constitution of India, the petitioners have prayed that the respondent No.1 be directed to provide the petitioners an opportunity of hearing before deciding the Inquiry No.358 of 2020.
2. By way of draft amendment, petitioners have also challenged the order dated 26.02.2021 passed by the respondent No.1 on applications filed by the petitioners for leading evidence.
3. Draft amendment is allowed. Petitioners to carry out the same forthwith.
4. Heard learned Senior Advocate Mr. Saurabh Soparkar assisted by learned advocate Mr. Mohit Gupta for the petitioners, learned Senior Advocate Mr. Mihir Thakore assisted by learned advocate Ms. Mamta Vyas for the respondent No.2 and learned Senior Advocate Mr. R.S.Sanjanwala assisted by learned advocate Mr. Dhaval Vyas for the interested parties.
5. The brief facts leading to filing of the present petition are as under:
5.1. It is the case of the petitioners that petitioner No.1 is a society registered under the provisions of the Societies Registration Act, 1860 and the same was registered on 03.02.2011. It is stated that the Charity Commissioner issued a show cause notice dated 05.08.2019 to some of the members of the governing body of the petitioner society calling upon the said members to show cause as to why the petitioner society should not be registered under the Gujarat Public Trusts Act, 1950 (hereinafter referred to as the ‘Trust Act’ for short) and as to why the petitioner society’s registration should not be cancelled and prosecution should not be initiated against them for not registering the society under the provisions of the Trust Act. It is stated that pursuant to the show cause notice, it was agreed amongst the members of the governing body of the petitioner society that appropriate reply should be filed opposing the said notice. However, it is alleged that the then Chairman of the petitioner society viz. Mr. Jayesh Bhogilal Patel – respondent No.2 herein, deceptively got the signatures of the members of the governing body of the petitioner society on the reply and consented to register the petitioner society under the provisions of the Trust Act. Thereafter, on 30.01.2020, the Charity Commissioner directed the members of the petitioner society to move an application before the respondent No.1 to register the petitioner society as a trust under the provisions of the Trust Act. The said order has been challenged by the petitioners by filing Special Civil Application Nos.6591 of 2020 as well as 11024 of 2020, wherein, this Court has issued notice. It is further alleged that the then Chairman Mr. Jayesh Bhogilal Patel was acting against the interest of the petitioner society and therefore he was removed from the post of Chairman vide Resolution dated 02.07.2020. In spite of that, he called the meeting on 16.07.2020. Civil Suit No.553 of 2020 has been filed by the petitioner society for permanent injunction against the respondent No.2 Mr. Jayesh Bhogilal Patel. On 30.09.2020, the City Civil Court passed an order and granted interim relief in favour of the petitioner society restraining the respondent No.2 to represent the petitioner society in any manner. Against the said order, respondent No.2 filed an Appeal from Order No.104 of 2020, which is pending before this Court. It is also stated that respondent No.2 also filed Civil Suit No.628 of 2020 for declaration that the resolutions dated 02.07.2020 as well as dated 18.07.2020 passed by the petitioner society are bad in law.
5.2. It is the case of the petitioners that respondent No.2 filed an application under Section 18 of the Trust Act on 27.07.2020 in the name and on behalf of the petitioner society for registering the petitioner society as a public trust under the provisions of the Trust Act. Thereafter, the respondent No.1 has initiated inquiry under Section 19 of the Trust Act. The petitioners had filed their objections. It is the case of the p
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