August 27, 2020 8:57:17 pm
THE Nagpur bench of the Bombay High Court on Thursday rejected a public interest litigation (PIL) seeking, among other things, weekly declaration of details of receipts and expenditure from the PM CARES Fund on its official website.
The court went on to tell the petitioner and “any” donor to any public charitable trust to choose “not to donate” in case of any doubt about its proper utilisation.
The PIL by city lawyer Arvind Waghmare was dismissed by a bench comprising Justice Sunil Shukre and Justice Anil Killor on the grounds that the fund was a public charitable trust and was governed by its own registered deed of trust, which doesn’t receive any budgetary support or any government money.
The petitioner, who claimed to be a donor to the fund, had sought immediate appointment-nomination of other three trustees on the fund, appointment-nomination of two trustees from opposition parties to have proper check and balance, and to strengthen confidence of public and for transparency, set aside the appointment of SARC Associates as auditors, appointment of independent auditor only after formation of full board of trustees as per guidelines, declaration of details of donations from within the country and outside, and declaration of receipts and expenditures on the official website every seven days.
“The will of the founding trustees and not the wishful thinking of outsiders in such a case is what matters, is what prevails over desire of strangers and is what will receive reverence from law as long as the will is expressed by the trustees in tandem with law about which there can be no dispute here,” said the bench.
The court took up the petitioner’s prayers one by one, dismissing each giving reasons, and later also advised the petitioner or anyone donating funds to a charitable trust to choose the discretion like that of a “cowardly Shakespearean character Falstaff”, to not donate when in doubt.
“There is yet another perspective to look at the prayer. The contributions which are to be made to the fund are voluntary in nature and there is no compulsion for anyone to donate. If any person has any doubt about the application of the money, he intends to donate, may we remind such person of the words of Falstaff, a cowardly character portrayed by William Shakespeare in his play Henry IV that, “The better part of Valour is Discretion; in the which better part, I have saved my life”. Here “life” can be taken to be “money”. So, such a person would well be within his right to not donate his money to the fund. From this perspective also no insistence can be made by a person donating his money in his discretion upon making of public disclosures of utilisation of the fund money on a public platform, bypassing the proper platform provided under the Trust Act applicable to a charitable trust like the PM CARES Fund,” the bench said.
“As rightly submitted by Additional Solicitor General of India (Anil Singh), this relief (public disclosure of receipts and disbursement of funds money) is already adequately taken care of by the provisions made in the Registration Act and Trust Act applicable to the fund. The real question is why the public disclosure and why not the public disclosure. Proper utilisation of the fund money sourced from proper persons can be seen to be more than fulfilled in the present case by registration of fund as charitable trust and appointment of a chartered accountant who would be bound to balance and audit accounts of the funds in accordance with the provisions in the Trust Act,” the bench further said, adding, “In the Trust Act, there is already provided an effective mechanism for achieving the purpose for which the public disclosure (about receipts of and disbursement from the fund money), has been sought. Any person having interest in the trust is free to resort to that mechanism for redressal of his grievance.”
Earlier, the bench cited the Supreme.Court ruling on PM CARES Fund, saying, “The honorable SC has held that the fund is a charitable trust registered under the Registration Act and it doesn’t receive any budgetary support or government money… The petitioner’s wish can’t be fulfilled as it has no mooring in law. A registered charitable trust would be governed by its own deed of trust. If there’s is no provision in the trust deed for inducting some members of the Opposition into board of trustees and there is also no such requirement of law, there is no way that an outsider like the petitioner would knock at the doors of this court to invoke the extra-ordinary jurisdiction of this court to seek the direction to the trust to amend its trust deed.”
On the petitioner’s prayer to set aside the “unilateral appointment” of chartered accountant firm SARC Associates to conduct the audit of the fund, the bench observed, “The petitioner contends that as three trustees haven’t been nominated, the present board is incomplete and as such it is incapable of taking any decision. So, the decision to appoint the CA firm is without the wisdom of the board. The power of the honorable Chairperson of the fund to nominate three eminent persons as trustees is enabling in nature, not mandating him to nominate them always and at all times. That being so, no writ can lie to compel the authority to exercise the discretion and that too the way it is desired by a party.”
“Decision of the board of trustees to appoint M/s SARC Associates as CA is taken in its wisdom and knowledge and upon application of mind and therefore can’t be assailed,” it further said.
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