Case Note & Summary
The petitioner, Shailesh J. Padh, a trustee of Shreeji Education Trust, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging an order dated 10th December 2015 passed by the Assistant Charity Commissioner, Mumbai. The impugned order rejected the petitioner's application (Exhibit-34) seeking to keep the scheme application proceedings in abeyance until the disposal of Change Report No. 450 of 2008. The trust was registered on 8th September 1971. On 3rd June 2008, respondent no.6 filed a change report. The petitioner alleged that he did not attend a purported Board of Trustees meeting on 2nd April 2008. The Deputy Charity Commissioner accepted the change report on 25th June 2008. The petitioner filed an appeal under Section 70 of the Bombay Public Trusts Act, 1950. The main legal issue was whether the Assistant Charity Commissioner had the discretion to proceed with the scheme application under Section 50A of the Act despite the pendency of the change report. The petitioner argued that the scheme application should be kept in abeyance as the change report would affect the composition of trustees. The respondents contended that there was no legal bar to proceeding with the scheme application. The court analyzed the provisions of the Bombay Public Trusts Act, 1950, particularly Sections 22 and 50A, and held that the Assistant Charity Commissioner has discretion to proceed with the scheme application and that there is no automatic stay or abatement. The court found that the impugned order was not arbitrary or perverse and dismissed the writ petition. The decision was in favor of the respondents.
Headnote
A) Bombay Public Trusts Act, 1950 - Sections 22, 50A - Scheme Application - Change Report - Discretion - The Assistant Charity Commissioner has discretion to proceed with a scheme application under Section 50A even if a change report under Section 22 is pending. There is no provision for automatic stay or abatement of scheme proceedings. The court held that the Commissioner's refusal to keep the scheme application in abeyance was not arbitrary or perverse. (Paras 1-10)
B) Constitution of India - Articles 226, 227 - Writ Jurisdiction - Scope - The High Court in writ jurisdiction does not sit as an appellate authority over discretionary orders of the Charity Commissioner unless the order is perverse or without jurisdiction. The court found no error in the impugned order. (Paras 1-10)
Issue of Consideration
Whether the Assistant Charity Commissioner was justified in refusing to keep the scheme application in abeyance pending disposal of the change report.
Final Decision
The writ petition is dismissed. The impugned order dated 10th December 2015 passed by the Assistant Charity Commissioner is upheld. No order as to costs.
Law Points
- Discretion of Charity Commissioner to proceed with scheme application pending change report
- Maintainability of writ petition under Articles 226 and 227
- No automatic stay or abatement of scheme proceedings
Case Details
WRIT PETITION (L) NO.352 OF 2016
Mr. Prasad Dani, Senior Advocate a/w Mr. Ieshan Sinha i/by M/s. Wadia Ghandy & Co. for the petitioner. Mr. Ravi Kadam, Senior Advocate a/w Mr. Nitin S. Dhumal a/w Mr. V.P. Sawant a/w Mr. P. Jadhav for the respondent nos.2 to 7.
Assistant Charity Commissioner, Gr. Mumbai Region, Mumbai & Ors.
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging an order of the Assistant Charity Commissioner refusing to keep a scheme application in abeyance pending disposal of a change report.
Remedy Sought
The petitioner sought to quash the order dated 10th December 2015 and to direct the Assistant Charity Commissioner to keep the scheme application in abeyance until disposal of Change Report No. 450 of 2008.
Filing Reason
The petitioner claimed that the Assistant Charity Commissioner erred in not staying the scheme application proceedings despite the pendency of a change report that would affect the composition of trustees.
Previous Decisions
The Deputy Charity Commissioner had accepted Change Report No. 2450 of 2008 on 25th June 2008. The petitioner filed an appeal under Section 70 of the Bombay Public Trusts Act, 1950 against that order.
Issues
Whether the Assistant Charity Commissioner has the discretion to proceed with a scheme application under Section 50A of the Bombay Public Trusts Act, 1950 while a change report under Section 22 is pending.
Whether the impugned order refusing to keep the scheme application in abeyance is arbitrary or perverse warranting interference under Articles 226 and 227 of the Constitution of India.
Submissions/Arguments
The petitioner argued that the scheme application should be kept in abeyance because the change report would determine the valid trustees, and proceeding with the scheme without that determination would be premature.
The respondents contended that there is no legal provision requiring abatement or stay of scheme proceedings pending a change report, and the Assistant Charity Commissioner has discretion to proceed.
Ratio Decidendi
The Assistant Charity Commissioner has discretion under the Bombay Public Trusts Act, 1950 to proceed with a scheme application under Section 50A even if a change report under Section 22 is pending. There is no automatic stay or abatement of scheme proceedings. The High Court in writ jurisdiction will not interfere with such discretionary orders unless they are perverse or without jurisdiction.
Judgment Excerpts
By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has impugned the order dated 10th December 2015 passed by the respondent no.1-Assistant Charity Commissioner below Exhibit-34 filed by the petitioner herein requesting the Assistant Charity Commissioner to keep present scheme application proceeding in abeyance till disposal of change report No.450 of 2008.
Procedural History
The petitioner filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 10th December 2015 of the Assistant Charity Commissioner, Mumbai, which rejected the petitioner's application (Exhibit-34) to keep the scheme application in abeyance pending disposal of Change Report No. 450 of 2008. The petition was heard and dismissed on 8th March 2016.
Acts & Sections
- Bombay Public Trusts Act, 1950: 22, 50A, 70
- Constitution of India: 226, 227
