Sheikh Husain S/O Haji Abdul Rahim ... vs Mohammad Sarver S/O Mohammad ...
2007 Latest Caselaw 645 Bom

JUDGMENT

A.H. Chaudhari, J.

1. By the present petition, the petitioners have challenged the order dated 30-11-1990 below Exhs. 1 and 2 in Application No. 2 of 1990 under Section 41-E of the Bombay Public Trusts Act, 1950, passed by the Joint Charity Commissioner, Nagpur and confirmed by the 5th Additional District Judge, Nagpur by order dated 23-11-1994 in Misc. Civil Appeal No. 22 of 1991.

Facts:

2. The respondents filed an application under Section 41-E of the Bombay Public Trusts Act. 1950 before the Joint Charity Commissioner, Nagpur praying therein for temporary injunction against the petitioners, restraining them from acting as trustees of Idgah Trust, selling, alienating the Trust property and from collecting rent from the respondents. Further, the respondents made prayer for issuing temporary injunction restraining the petitioners from obstructing approach road to the demised premises held by the respondents. The learned Joint Charity Commissioner gave detailed reasons in paras 2 and 3 of the impugned order and rejected the prayers made by the respondents for restraining the petitioners from acting as trustees of the Trust or from collecting rent from respondents etc. The learned Joint Charity Commissioner, however, in para 4 of the impugned order held that the approach road of the respondents to reach the alleged tenanted premises of the respondents should not be blocked by anybody including the respondents and it was necessary to issue injunction against the petitioners. It is this paragraph of the order which was put to challenge before the 5th Addl. District Judge, Nagpur in appeal, which came to be dismissed. Hence, this writ petition.

Arguments:

3. Mr. Vaidya, learned Counsel for petitioners has vehemently submitted that the learned Joint Charity Commissioner has exceeded in its jurisdiction by issuing impugned order under Section 41-E of the Bombay Public Trusts Act, 1950. He submits that the learned Joint Charity Commissioner should not have issued an order in the nature like one he issued because the respondents were not the tenants of the trust, but according to him it has been held by the Court of Small Causes that the respondents were the tenants in personal house property of the petitioners.

4. Per contra, Mr. S.J. Khandalkar, learned Counsel for the respondent has vehemently opposed the submissions made by the learned Counsel for the petitioners and argued that the learned Joint Charity Commissioner has power to issue temporary injunction since the property in which the respondents are residing is the property belonging to the Trust and temporary injunction order came to be issued to protect the trust property. He, therefore, prayed for dismissal of the writ petition.

Conclusion:

5. Having considered the submissions made by the learned Counsel for both the parties, I reproduce Section 41-E of the Bombay Public Trusts Act, 1950, hereunder:

41-E. (1) Where it is brought to the notice of the Charity Commissioner either by the Deputy or Assistant Charity Commissioner through his report or by an application by at least two persons having interest supported by affidavit, --

(a) that any trust property is in danger of being wasted, damaged or improperly alienated by any trustee or any other person, or

(b) that the trustee or such person threatens, or intends to remove or dispose of that property, the Charity Commissioner may by order grant a temporary injunction or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of such property, on such terms as to the duration of injunction, keeping an account, giving security, production of the property or otherwise as he thinks fit.

(2) The Charity Commissioner shall in all such cases, except where it appears that the object of granting injunction would be defeated by delay, before granting an injunction, give notice of the facts brought to his notice to the trustee, or the person concerned.

(3) After hearing the trustee or person concerned and holding such inquiry as he thinks fit, the Charity Commissioner may confirm, discharge or vary or set aside the order of injunction or pass any other appropriate order.

6. Perusal of above provisions of Section 41-E of the Act shows that the Charity Commissioner is empowered to protect the trust property, which is in danger of being wasted, damaged or improperly alienated. The allegations made by the respondents were that the approach road leading to their alleged tenanted premises was being obstructed by the respondents and, therefore, there was a damage to the trust property. In my view, for claiming relief of not obstructing the approach road to the alleged tenanted premises either by the trustees or by strangers, remedy under Section 41-E (1)(a) cannot be resorted to. A normal civil remedy will have to be adopted by the party making complaint that the approach road is being obstructed. The learned Joint Charity Commissioner has, therefore, acted without jurisdiction in issuing temporary injunction against the respondents for allegedly obstructing the approach way to the alleged tenanted premises. The part of the impugned order to that extent is thus not in accordance with the jurisdiction conferred by Section 41-E of the Bombay Public Trusts Act. The said impugned order is, therefore, liable to be quashed and set aside.

7. In view of above, the writ petition is allowed. The impugned orders dated 30-11-1990 passed by the Joint Charity Commissioner, Nagpur in Application No. 2 of 1990 and confirmed by the 5th Additional District Judge, Nagpur in Appeal No. 33 of 1991 on dated 23-11-1994, are hereby quashed and set aside.

8. Rule is made absolute. No order as to costs.