Raghunath Vyankatrao Phadnis And ... vs Sayyad Mahamood Sayyad ...
2002 Latest Caselaw 440 Bom

JUDGMENT

D.G. Karnik, J.

1. Rule, returnable forthwith by consent of the parties.

2. Respondent No. 1 filed petition under section 41-A of the Bombay Public Trust Act (for short the Act) praying that either the Tahsildar should be appointed as Custodian for the property of the Dargah. Prayers were also made for a direction to the respondents to produce accounts and for restraining the respondent No. 1 from making any changes in the building of the Dargah. The application was opposed by the respondent No. 1 as well as the respondent No. 2 (since deceased) by filing a say. During the pendency of the proceedings, petitioner filed an application at Exhibit 27 praying for an interim relief that an officer from the office of the Assistant Charity Commissioner be appointed as a Receiver which was granted by order dated 27th December, 2001.

3. Section 41-A of the Act empowers the Charity Commissioner to issue directions to the trust or a person connected with the trust to ensure that the trust is properly administered and the income thereof is properly accounted for and duly apportioned and applied to the objects and for the purposes of the trust. The Charity Commissioner is also empowered to give direction to the trust or any other person connected with the trust for protection of the property in case it is found that the property is in danger of being wasted, damaged, alienated or wrongfully sold or disposed of. Section 41-A does not confer power on the Charity Commissioner to appoint a Receiver. It is not necessary to consider whether the Charity Commissioner has a power to appoint Receiver under any other provision of the Act because the main application was specifically made only under section 41-A of the Act.

4. As the Charity Commissioner did not have power to appoint Receiver while finally deciding the petition under section 41-A, the Charity Commissioner could not have appointed Receiver by way of interim order. What cannot be done finally cannot be done at an interlocutory stage unless the statute confers upon the Court or the authority to do it by way of an interim or interlocutory order. The Charity Commissioner could not have granted the prayer of appointment of Receiver while finally deciding the main petition under section 41-A and consequently he could not have appointed Receiver by way of an interlocutory order. The order of the Joint Charity Commissioner appointing an Inspector in the office of the Assistant Charity Commissioner as receiver of the properties, is therefore clearly without jurisdiction and beyond his powers under section 41-A of the Act. Petition therefore succeeds. Rule is made absolute and the order passed by the Joint Charity Commissioner on 27th December, 2001 is quashed and set aside.