MEMORIAL ON BEHALF OF RESPONDENT

JUSTICE S.B. MHASE FIFTH STATE LEVEL MOOT COURT COMPETITION

2023

TEAM CODE :

BEFORE THE HON’BLE HIGH COURT OF SAMRASHTRA

(UNDER ARTICLE 226 OF THE CONSTITUTION OF BINDIYA)

WRIT PETITION (CIVIL) NO. /2023

IN THE MATTER OF

SHRI ISHWAR VISHNU GOPALDAS.......................................... (PETITIONER)

v.

ASSISTANT CHARITY COMMISSIONER................................ (RESPONDENT)

A WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF BINDIYA

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT

COUNSEL ON BEHALF OF RESPONDENT

[1]
 MEMORIAL ON BEHALF OF RESPONDENT

TABLE OF CONTENTS

Sr. No Particulars Page No.

1 List of Abbreviations 3
2. Index of Authorities 4-5
3. Statement of Facts 6-7
4. Statement of Issues 8
5. Statement of Arguments 9
6. Argument Advanced

(1) Whether the Proviso added to Section 73 of the 10-13

Samrashtra Public Trust Act, 1950 after the amendment
of 2017 violative of Article 14 of the Constitution of
Bindiya?

(2) Whether the order of the Assistant Charity 14-16

Commissioner dated 1/02/2023 is arbitrary?

(3) Whether this Hon’ble Court has jurisdiction to decide 17-18

this matter?

7. Prayer 19

[2]
 MEMORIAL ON BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

HC HIGH COURT

SC SUPREME COURT

Art ARTICLE

SCC SUPREME COURT CASES

Ors OTHERS

HON’BLE HONOURABLE

& AND

SEC SECTION

v. VERSUS

Mh LJ MAHARASHTRA LAW JOURNAL

Cal CALCUTTA

MANU MANUPATRA

Co. COMPANY

Pvt PRIVATE

Ltd LITIMED

[3]
 MEMORIAL ON BEHALF OF RESPONDENT

INDEX OF AUTHORITIES

TABLE OF CASES

SR NO. CASES CITED CITATION PG NO

1. Shree Navgrah Mahadev Mandir v.
The Charity Commissioner, 2017 (4) Mh LJ 416 10
Mumbai and ors

2. Utkal Contractors and Joinery Pvt 1987 AIR 2310 10

Ltd. v. State of Orissa

3. State of J &K v. Bakshi Gulam AIR 1967 SC 112 10

Mohammad

4. State of West Bengal v. Anwar Ali AIR 1952 Cal 150 11

Sarkar

5. Somnath Jyotirling Trust v. State of (2006) 3 SCC 1 12

Maharashtra

6. Western UP Electric Power & 1970 AIR 21 12

Supply Co. Ltd v. State of U.P.

7. Mohinder Singh Gill v. Chief AIR 1978 SC 851 15

Election Commissioner

8. R.S.Dass v. Union of India MANU/SC/0482/1986 16

9. Santosh Kumar v Secretary, AIR 1955 SC 293 17

Ministry of Health and Family
Welfare

10. Radha Krishna Industries v. State of 2021 SCC OnLine SC 18

Himachal Pradesh 334

[4]
 MEMORIAL ON BEHALF OF RESPONDENT

STATUTES

 The Constitution of India, 1950

 Maharashtra Public Trusts Act, 1950
 Maharashtra Public Trusts Amendment Act, 2017

LEGAL DATABASE
 SCC ONLINE
 MANUPATRA

[5]
 MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF FACTS

 The State of Samrashtra is a State in the country of Bindiya. The public trusts in
the state of Samrashtra are governed by The Samrashtra Public Trusts Act, 1950.

 There is an ancient famous temple of lord Balaji in the state. The said temple

and all its properties are registered as public trust and public trust properties with
the office of the Charity Commissioner as Religious Charitable Trust as per the
provisions of The Samrashtra Public Trusts Act, 1950.

 The said trust is managed by a managing committee which consists of 11

members to be elected every 5 years by vote by secret ballot from 15 Trustees
who are life trustees.

 The term of the existing managing committee expired in the month of October
2022. Accordingly, the elections for electing new managing committee were held
in the month of October 2022.

 Shri Mohan Damodar Gandhi who was elected as Secretary filed the Change
Report no 2222 of 2022 in the office of the Assistant Charity Commissioner,
informing the change that had occurred. Informing the names of outgoing
members of outgoing managing committee and the names of the newly elected
members of the managing committee.

 In the said Change Report, Shri Ishwar Vishnu Gopaldas who is also one of the
life trustees filed an objection. The said objection was allowed and he was
permitted to intervene in the change report as opponent.

[6]
 MEMORIAL ON BEHALF OF RESPONDENT

 The reporting trustee, filed the evidence affidavit. The opponent, sought
permission to cross examine the witness by filing an application below Exhibit 5.
The said application Exhibit 5 was rejected on 01/02/2023 by the Assistant
Charity Commissioner, observing that the applicant has not made out any ground
for granting permission to cross examine the witness.

Therefore, this petition rest in this hon’ble court.

[7]
 MEMORIAL ON BEHALF OF RESPONDENT

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE PROVISO ADDED TO SECTION 73 OF THE

SAMRASHTRA PUBLIC TRUST ACT, 1950 AFTER THE AMENDMENT OF
2017 IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF
BINDIYA?

ISSUE 2: WHETHER THE ORDER OF THE ASSISTANT CHARITY

COMMISSIONER DATED 1/02/2023 IS ARBITRARY?

ISSUE 3: WHETHER THIS HON’BLE COURT HAS JURISDICTION TO

DECIDE THIS MATTER?

[8]
 MEMORIAL ON BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS

ISSUE 1: Whether the Proviso added to Section 73 of the Samrashtra Public Trust
Act, 1950 after the amendment of 2017 is violative of Article 14 of the Constitution
of Bindiya?

 The proviso added to sec 73 provides opportunity for cross-examination.

 The powers given to Assistant Charity Commissioner are exercised by
procedure establish by law.
 Appropriate cases are on the basis of reasonable classification.

ISSUE 2: Whether the order of the Assistant Charity Commissioner dated 1/02/2023
is arbitrary?

 The orders of Assistant Charity Commissioner are within the provisions of

Samrashtra Public Trust Act.
 No violation of principles of natural justice is occurred.
 Principles of natural justice are flexible depending on facts and circumstances of
each case.

ISSUE 3: Whether this Hon’ble Court has jurisdiction to decide this matter?

 This Hon’ble court does not have jurisdiction due to doctrine of exhaustion of
remedies.
 The Act provides for alternative remedies for appeal against the order of Assistant
Charity Commissioner.

[9]
 MEMORIAL ON BEHALF OF RESPONDENT

ARGUMENTS ADVANCED

ISSUE 1: Whether the Proviso added to Section 73 of the Samrashtra Public Trust
Act, 1950 after the amendment of 2017 violative of Article 14 of the Constitution of
Bindiya?

It is humbly submitted before this Hon’ble Court that:

The amendment made by adding a proviso to Sec 73 of the Samrashtra Public Trust Act,
1950 is not violative of Article 14 on the following grounds:

1.1 The Proviso added to Sec 73 provides the opportunity for cross-examination:

i. The Proviso added to Section 73 deals with : "Inquiries under Sec. 22 of the Act the
Assistant or Deputy Charity Commissioner shall record by the evidence in the form of
affidavits only subject to cross-examination of the deponent if permitted by him in an
appropriate case."

ii. The Proviso does not bar the right of cross-examination. It restricts it to certain
circumstances. It is necessary to expedite the inquiry process and prevent delays.

iii. The affidavits are required to contain only the facts and not opinions expressed, the
request for cross-examination is to be sparingly granted.1

iv. Right to cross-examination should be granted considering the various aspects like
scope which must be limited, relevant and admissibility is also to be taken into
consideration.

v. In the case of Utkal Contractors & Joinery Pvt. Ltd. v. State of Orissa,2 the supreme
court held that cross-examination is limited and should be restricted. The court also
noted that the scope and extent of cross-examination are large with the discretion of the
trial court.

1
Shree Navgrah Mahadev Mandir v. The Charity Commissioner, Mumbai and Ors, 2017 (4) Mh LJ 416
2
1987 AIR 2310

[10]
 MEMORIAL ON BEHALF OF RESPONDENT

In the case of State of J & K v. Bakshi Gulam Mohammad,3

The court held that the right to hearing does not always include a right to cross examine.
This right largely depends upon the facts and circumstances of each case and on the
statute under which allegations are being enquired into.

1.2 Discretionary Powers to the Assistant Charity Commissioner does not violates
Art 14:

The Assistant Charity Commissioner has been given powers under Sec 5 of the
Samrashtra Public Trust Act, 1950.

Sec 5 of Samrashtra Public Trust Act, 1950 states that :

1. The State Government may also appoint such Deputy and Assistant Charity
Commissioners in the office of the Charity Commissioner or for such regions or
sub-regions or such public trust or such class of public trusts as may be deemed
necessary.
2. The Deputy and Assistant Charity Commissioners shall exercise such powers
and perform such duties and functions as may be provided by or under the
provisions of the act.
This exercise of discretionary powers is not violative of Article 14 as it is exercised in a
reasonable manner and by the procedure established by law. It is proportionate to the
legitimate purpose and is transparent.

In State of West Bengal v. Anwar Ali Sarkar, 4

The court held that discretion must be guided by clear and objective principles. The
overall objective of the Samrashtra Public Trust Act, of 1950 is to prevent the misuse of
public trust and protect the interest of beneficiaries. If discretion is for the objective
purpose it does not violate Art 14 of the Constitution.

3
AIR 1967 SC 122
4
AIR 1952 Cal 150

[11]
 MEMORIAL ON BEHALF OF RESPONDENT

The Assistant Charity Commissioner has the power to direct the inquiry into the affairs of
public trusts and this discretion is on relevant conditions.

Judicial Review of the decision of the Assistant Charity Commissioner lies before the
Charity Commissioner and a Judicial Review of the Charity Commissioner is available in
the court. The discretion given by producers of law is subject to judicial review hence the
Proviso added to Sec 73 does not violate Art 14.

In the case of Somnath Jyotirling Trust v. State of Maharashtra,5

The court held that under this Act, the important role the Assistant Charity Commissioner
plays in regulating and supervising the administration of public trusts in Maharashtra.

1.3 Article 14 does not forbid reasonable classification :

Art 14 forbids class legislation but does not forbid reasonable classification. It includes
the "concept of intelligible differentia".

i. Intelligible differentia is important as it ensures the laws and policies are based on
rational and objective criteria.

ii. It is settled law that in giving effect to the said principle, mathematical precision is not
envisaged and there should be no fanatical or ‘doctrinaire or wooden approach to the
matter. A practical or realistic approach should be adopted. It is open to the State to
classify persons or things or objects, for legitimate purposes.6

iii “All persons are not, by nature, attainment or circumstances, equal and the varying
needs of different classes of persons often require separate treatment and, therefore, the
protecting clause has been construed as a guarantee against discrimination amongst
equals only and not as taking away from the state the power to classify persons for
legislation."

5
(2006) 3 SCC 1
6
Western U.P. Electric Power & Supply Co. Ltd. v. State of U.P, 1970 AIR 21

[12]
 MEMORIAL ON BEHALF OF RESPONDENT

iv. The object of Samrashtra Public Trust Act, 1950 is to register the public trust,
proper functioning of trust and protect the interest of beneficiaries. The object and
reasonable classification should not be similar but should have rational nexus with it.

Allowing the cross-examination in every case of affidavits where only facts such as
changes are mentioned would not be appropriate. Hence, the classification is made based
on relevant and admissible matters.

[13]
 MEMORIAL ON BEHALF OF RESPONDENT

ISSUE 2: Whether the order of the Assistant Charity Commissioner dated 1/02/2023
is arbitrary?

It is humbly submitted before this Hon’ble Court that :

2.1 The Assistant Charity Commissioner has given the order under the provisions of
the Samrashtra Public Trust Act, 1950 :

The evidence affidavit was filed before the Assistant Charity Commissioner of the
change report.

The opponent filed Exhibit 5 (an application to cross-examine) which did not meet the
grounds for granting permission for cross-examination. Therefore, Assistant Charity
Commissioner had rejected Exhibit 5. While passing this order the Assistant Charity
Commissioner had considered the provision to decide the matter mentioned in
Samrashtra Public Trust Act.

As per Sec 73 of the Act, the Assistant Charity Commissioner can allow cross-
examination in appropriate case…

The express wording of Sec 73 Proviso states:

Inquiries under Sec. 22 of the Act the Assistant or Deputy Charity Commissioner shall
record by the evidence in the form of affidavits only subject to cross-examination of the
deponent if permitted by him in an appropriate case.

The following grounds were not met by Exhibit 5 filed by the opponent:

● Relevance: The objector must show cross-examination is relevant to the matter

under inquiry and would help in determining the truth and validity of the
objection.
● Admissibility: The objector must show that the information or evidence sought
through cross-examination is admissible under relevant laws and rules.

[14]
 MEMORIAL ON BEHALF OF RESPONDENT

The decision of Assistant Charity Commissioner would be arbitrary if the opponent

would have met these grounds and yet the Assistant Charity Commissioner denied
permission. But in this case, the Exhibit is not admissible under the provisions of
Samrashtra Public Trust Act.

2.1 There is no violation of principles of natural justice by the Assistant Charity

Commissioner:

i. Assistant Charity Commissioner after receiving the change report allowed the
objection of Shri Ishwar Vishnu Gopaldas and permitted him to intervene in the
change report.

This states that an effective opportunity was given for raising objection in the
change report. This Act of Assistant Charity Commissioner does not violate any
principles of natural justice.

ii. "Audi Alteram Partem" deals with the Right to be heard. The Assistant charity
Commissioner have heard the objection, permitted to interfere in the matter as the
opponent is the life trustee and Sec 73A was allowed been followed by Assistant
Charity Commissioner. All these circumstances leads to no violation of Audi
Alteram Partem.

Principles of natural justice cannot be reduced into a straitjacket formula. While applying
the principles of natural justice, it must be borne in mind that “they are not immutable
but flexible” The yardstick of judging the compliance of natural justice, depends on the
facts and circumstances of each case.

The principles of natural justice do not require an oral hearing in all cases and the natural
and the scope of the hearing will depend upon on the circumstances of each case. The
principles of natural justice must be balanced against other important considerations, such
as need for expeditious decision-making.7

7
Mohinder Singh Gill v. Chief Election Commissioner, AIR 1978 SC 851

[15]
 MEMORIAL ON BEHALF OF RESPONDENT

In the case R.S. Dass v. Union of India,8

The court made the following observations:

It is well established that rules of natural justice are not rigid rules, they are flexible and
their application depends upon the setting and the background of statutory provision,
nature of the right which may be affected and the consequences which may entail, its
application depends upon the facts and circumstances of each case.

Principles of natural justice must be limited to balance and protect the interest if the
parties. The legal provision itself is very clear to state the limited interest of natural
justices.

There are certain expectations to these principles which are as follows:

● Exclusion on the ground of the decision maker

● Where right of a person is not infringed
● Where prompt action is needed
● Express statutory exclusion

Hence, the order dated 1/02/2023 of Assistant Charity Commissioner is not arbitrary.

8
MANU/SC/0482/1986

[16]
 MEMORIAL ON BEHALF OF RESPONDENT

ISSUE 3: Whether this Hon’ble Court has jurisdiction to decide this matter?

It is humbly submitted before this Hon’ble Court :

This Hon’ble Court do not have jurisdiction to decide this matter on the following
grounds:

3.1 Doctrine of Exhaustion of remedies:

The general principle states that the writ petitions are not maintainable before the High
Court under Article 226 where an equal, efficient, and adequate alternative remedy is
available.

Where there are an alternate remedy available judicial prudence demands that the court
should refrain itself from exercising its jurisdiction under the said constitutional
provision. The exhaustion of alternative remedies that are equal, just, and effective is
a must before moving to the High Court for the issuance of the writs.

When a right is created by the Act, which itself prescribes the remedy or procedure
for enforcing the right or liability, resort must be had to that particular remedy
before invoking High Court.

The purpose of the Doctrine of Exhaustion of Remedies is to ensure and avoid

unnecessary judicial intervention.

In the case of Santosh Kumar v. Secretary, Ministry of Health and Family Welfare, 9

Hon’ble Supreme Court held that a person aggrieved by an order of a statutory authority
must first exhaust the remedies provided by the act before approaching the court for
relief.

3.2 The alternative remedy is provided by the Samrashtra Public Trust Act, 1950 :

9
AIR 1995 SC 293

[17]
 MEMORIAL ON BEHALF OF RESPONDENT

Sec 70 of Samrashtra Public Trust Act deals with Appeals from findings of Deputy
or Assistant Charity Commissioner.

Sec 70 states that:

(1) An appeal against the findings or order of the Deputy or Assistant Charity

Commissioner may be filed to the Charity Commissioner in the following

cases :-

(a) the finding and order, if any, under section 20;

(b) the finding under section 22;

(b-i ) the finding under section 22A;

(c) the finding under section 28;

(d) the order under sub-section (3 of Section 54);

(e ) an order confirming or amending the record under section 79AA.

This case deals with Change Report as per Sec 22 of the Act. If the aggrieved party is not
satisfied with decision of Assistant Charity Commissioner the appeal must lie before
Charity Commissioner.

In the case of Radha Krishna Industries v. State of Himachal Pradesh,10

The court held that writ petition should not be entertained under Art 226 in the High
Court when an efficacious alternate remedy is provided by law.

10
2021 SCC OnLine SC 334

[18]
 MEMORIAL ON BEHALF OF RESPONDENT

PRAYER

Therefore in the light of facts of the case, issues raised, arguments advanced and
authorities cited, this Hon’ble Court may be pleased to:

Find that:

1. The proviso added to Sec 73 of the Samrashtra Public Trust Act after the
Amendment of 2017 is constitutionally valid.

2. The Order of Assistant Charity Commissioner is not arbitrary.

3. This Hon’ble High Court does not have jurisdiction in this matter and dismiss the
above petition.

And/or

Any other just and equitable order as the Hon’ble Court deems fit in the interest of
Justice, equity and good conscience may kindly be passed,

For Which Act Of Kindness The Respondent Shall Ever Be Obliged As In Duty Bound.

COUNSEL ON BEHALF OF RESPONDENT

[19]