A Division Bench of the Bombay High Court consisting of Justice Sunil B. Sukhre and Justice Anil S. Kilor gave judgment in the case of Arvind K. Waghmare v. PM Cares Fund and Others on 27th August, 2020, holding that there is no fault in the constitution of the board of trustees, and since PM Cares Fund is a charitable organization, proper redressal mechanism is provided under Trust Act.
Facts of the Case
The petitioner filed a writ petition before the Bombay High Court against the PM Cares Fund Trust. The petitioner, has prayed for the following reliefs:
- The Chairperson of the PM Cares Fund should appoint/nominate three persons of eminence to the board of Trustees of PM Cares Fund, as provided in the charter of the PM Cares Fund.
- Since the fund is being set up to tackle public emergencies, there is a need for maintaining transparency, and therefore two members from the opposition parties should be appointed to the trust board.
- The decision of appointing M/S SARC Chartered Accountant Associates as auditors of the fund is not valid since the decision was taken without appointing the person of eminence to the board.
- There should be a public disclosure of the funds received by the PM Cares Fund.
The petitioner, in person, without questioning the validity/constitutionality of the PM cares fund, submitted that:
- Nomination of all the trustees on the Board is essential for the fund to operate equitably and fairly in the interest of welfare of the beneficiaries for whose assistance the fund has been set up.
- Since the constitution of the trust board is inadequate without the appointment of the persons of eminence as per the RTI received, the decision taken by the board including the appointment of the auditors is inadequate.
- To maintain transparency, there is a need of public disclosure of the funds received by the trust till now.
- There is no locus standi of the petitioner as this is more of a Publicity Interest Litigation. The petitioner has a malicious intention and this can be inferred from the fact that he filed a PIL the day after he deposited a cheque in PM Cares Fund.
- The question of law on the PM Cares Fund has already been dealt by the Supreme Court in Shashwat Anand and others V/s. Union of India, Manohar Lal Sharma V/s. Narender and others and Center for Public Interest Litigation V/s. Union of India .
- Asking induction of members of the opposition parties to the trust is the same as rewriting the whole trust deed, which is not permissible.
- The power of the Chairperson to appoint/nominate persons of eminence is only a discretionary power and not a mandatory one.
With regards to the power of the Chairperson of the PM Cares Fund to nominate three persons of eminence, it is only an enabling act and not mandatory in nature. It is discretionary in nature and this finds its support in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji.
Another argument of the petitioner in regards to appointing two members from the opposition party to the PM Cares Fund to maintain transparency cannot be sustained. The reason being the Supreme Court in the case of Centre of Public Interest Litigation case clearly held that no exception to the constitution of the PM Cares Fund can be made. Another reason for not accepting this argument is that the PM Cares Fund is a charitable organization, having its own trust deed, and does not receive any budgetary help from the government. Hence, the court does not have any extraordinary power to ask the trust to amend its deed by any manner.
With regards to the third relief of the petitioner that the decision of the board of trustees to appoint M/S SARC Associates as the Chartered Accountant is not valid as all the three persons of eminence have not been appointed by the Chairperson cannot be sustained. It was already mentioned that the power of nominating a person of eminence by the Chairperson is not mandatory in nature and therefore the decision of providing finance by the fund till now is valid. This also finds its support from the recent judgment of Bombay High Court in the case of Deepak S/O Sampatrao Sane and Others v. PM Cares Fund and others.
In regards to fourth prayer that there should be public disclosure of the money of PM Cares Fund, the court interpreted that it is more about ensuring that the funds received in the fund are from proper sources. On this the court observed that the fund is properly registered as charitable trust and is properly managed under the trust act. The court observed by taking the reference of Supreme Court’s judgment in Jaipur Shahar Hindu Vikas Samiti v. State of Rajasthan & Ors. That when proper redressal mechanism is provided under the trust act, then there is no case of filing PILs in court for such issue.
Rejecting the respondent’s argument that the petitioner had no locus standi and that the prayers pleaded in the present case have already been settled in the previous judgments of the apex court, the court dismissed the petition by stating that no person is forced to contribute to the PM Cares Fund.
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