Ishwarbhai Dedhabhai Patel vs Mahendrakumar Chandulal Bhavsar
2021 Latest Caselaw 1660 Guj

         C/SCA/14432/2020                                          ORDER




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        R/SPECIAL CIVIL APPLICATION NO.               14432 of 2020

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                      ISHWARBHAI DEDHABHAI PATEL
                                 Versus
                   MAHENDRAKUMAR CHANDULAL BHAVSAR
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Appearance:
MR DARSHAN B GANDHI(9771) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
MR SP MAJMUDAR(3456) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
 for the Respondent(s) No. 3,4,5,6,7,8,9
MR JAL UNWALA, SENIOR ADVOCATE WITH MS TEJAL A
VASHI(2704) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                             Date : 04/02/2021

                                   ORAL ORDER

1. Heard learned advocate Mr. S.P.Majmudar for the petitioners and learned Senior Advocate Mr. Jal Unwala assisted by learned advocate Ms. Tajal Vashi for the respondents caveators.

2. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioners have challenged the order dated 17.10.2020 passed by the Joint Charity Commissioner, Surat below Exh.13 in Scheme Application No.10 of 2020.

3. It is submitted by learned advocate for the petitioners that the present respondent Nos. 1 and 2 have preferred an application being Scheme

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Application No.10 of 2020 under Section 50 of the Gujarat Public Trust Act, 1950 (hereinafter referred to as the Act) for framing scheme for the trust in question viz. Maharana Shree Vijayadevji Public Charitable Trust, Dharampur, which is a registered trust under the provisions of the Act. It is prayed in the said application that the Scheme is required to be framed for the said trust. It is submitted that when the notice is issued, the present petitioners submitted a reply and pointed out that the said application itself is not maintainable. Various documents are also produced. It is submitted that said application is still pending before the respondent authority, in spite of that, the present respondent Nos. 1 and 2 filed an application below Exh.13 in the said Scheme Application on 26.09.2020, inter alia praying that till Scheme Application No.10 of 2020 is disposed of by the Joint Charity Commissioner, proposed trustees as suggested by them as well as the current trustees should form a committee and the said committee should undertake the process of the administration of the trust. Learned advocate Mr. Majmudar further submitted that there is no provision under Section 50A of the Act to appoint ad hoc committee during the pendency of consideration of the Scheme. In spite of that, the impugned interim order has been passed by the Joint Charity Commissioner below Exh.13 by which the Joint Charity Commissioner has formed an ad hoc committee for the administration of the trust and also issued further directions.

           C/SCA/14432/2020                                            ORDER



4.     Learned         advocate        Mr.          S.P.Majmudar          for        the

petitioners would mainly contend that there is no provision under Section 50A of the Act to pass any interim order, in spite of that, by way of interim order, the respondent authority has formed ad hoc committee, which is beyond the purview of Section 50A of the Act. It is further submitted that Shri Mehulbhai Ahir and Shri Yogeshbhai Desai were earlier appointed as trustees and they filed their Change Report No.21 of 2017 before the Assistant Charity Commissioner. However, the same was rejected. Now they filed a Scheme Application before the Charity Commissioner and by indirect method they want to become trustees once again.

5. Learned advocate Mr. S.P.Majmudar would contend that as the respondent Joint Charity Commissioner has passed an interim order, no appeal can be preferred under Section 72 of the Act. At this stage, learned advocate Mr. Majmudar has referred the provisions contained in Section 50A as well as Section 72 of the Act.

6. After referring to the said provisions, it is contended that as per the provisions contained in Section 50A of the Act, Charity Commissioner is empowered to frame a Scheme if he is satisfied that it is necessary or expedient to do so for the management or administration of a public trust. In the present case, no such satisfaction is recorded while forming an ad hoc committee. Learned advocate

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Mr. S.P.Majmudar has placed reliance upon the following decisions:

(1) In the case of Jamadar Suleman Bachumiya v. Mahavir Mathadin, reported in 1963 GLR 131; (2) In the case of Dr.R.P.Kapoor & Ors. v. The Charity Commissioner, Maharashtra State & Ors., reported in AIR 1989 Bombay 274, copy of which is placed on record at page 137;

(3) In the case of Super Cassettes Industries Ltd. v. Music Broadcast Private Ltd., reported in (2012) 5 SCC 488, copy of which is placed on record at page 262; and (4) In the case of Morgan Stanley Mutual Fund v. Kartick Das, reported in (1994) 4 SCC 225, copy of which is placed on record at page 283.

7. After referring to the aforesaid decisions, it is submitted that Hon'ble Supreme Court has held that tribunals discharging quasi­judicial functions and having the trappings of a court, are generally considered to be vested with incidental and ancillary powers to discharge their functions, but that cannot surely mean that in the absence of any provision to the contrary, such tribunal would have the power to grant at the interim stage the final relief which it could grant. It is further contended that there is no express provision under Section 50A of the Act empowering the Charity Commissioner to grant interim relief during the pendency of the Scheme Application and therefore the said provision cannot be read into, otherwise, it would amount to legislating, which is

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not permissible. It is also contended that there are powers vested with the Charity Commissioner under Section 41A of the Act to issue directions to the trustees and other persons to ensure that such trust is properly administered and the income thereof is properly accounted for. Thus, interim order passed by the respondent - Joint Charity Commissioner whereby the ad hoc committee is formed, is required to be set aside.

8. On the other hand, learned Senior Advocate Mr. Jal Unwala appearing for the caveators has opposed this petition and mainly contended that quasi judicial powers are given to the Charity Commissioner under Section 50A of the Act and therefore the Charity Commissioner becomes a Court. Hence, the Charity Commissioner can pass interim orders under Section 50A of the Act. Learned counsel further contended that there is no specific bar provided under the said provision prohibiting the authority to pass any interim order. Section 50A itself is silent about passing of the interim order and therefore this Court can read the interim order into the said provision. Learned counsel would further contend that if the authority is empowered to decide the matter finally, the said authority is also having power to pass interim orders. Learned counsel would further submit that if the petitioners are aggrieved by the interim order passed by the respondent Joint Charity Commissioner, there is alternative remedy of filing appeal before the Court under Section 72 of the Act.

          C/SCA/14432/2020                                               ORDER



Learned       counsel          has    referred          the    explanation               of

Section 72 and submitted that in the said explanation it is explained that the expression 'decision' shall include a scheme framed or modified under section 50A. Thus, it is submitted that because of the explanation provided under Section 72 of the Act, interim orders can be challenged before the Court within the prescribed time limit. Thus, when the petitioners are having alternative remedy, this Court may not entertain this petition.

9. Learned counsel has placed reliance upon the following decisions:

(1) In the case of Clutch Auto Limited v. Ratilal Bhimsingh Bariya C/O. Navjagrut Labour Union, reported in 2011(2) GLH 242; and (2) In the case of Income Tax Officer, Cannanore v. M.K.Mohamad Kunhi, reported in AIR 1969 SC

430.

10. This Court has considered the submissions canvassed by learned counsel appearing for the petitioners as well as caveators.

11. At the outset, provision of Section 50A of the Act is required to be referred to, which provides as under:

"[50A. Power of Charity Commissioner to frame, amalgamate or modify schemes. ­ (1) Notwithstanding anything contained in section 50, where the Charity Commissioner has reason to believe that, in the interest

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of the proper management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, the Charity Commissioner may, if after giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame scheme for the management or and administration of such public trust.

(2) Where the Charity Commissioner is of opinion that in the interest of the proper management or administration, two or more public trusts may be amalgamated by framing a common scheme for the same, he may, after­

(a) publishing a notice in the Official Gazette and also in at least two newspapers (one in English, and the other in the language of the region) with a wide circulation in the region in which the trust is registered, and

(b) giving the trustees of such trusts and also other interested persons due opportunity to be heard, frame a common scheme for the same.

[(2A) A scheme under this section may provide for the number of trustees, the mode of appointment of trustee including the appointment of the first trustees, vesting of the trust property in the trustees so appointed, mode of filling any vacancy of a trustee the remuneration of a trustee, or manager of the public trust and where necessary, a clarification of the objects of the public trust.].

(3) The Charity Commissioner may, at any time, after hearing the trustees, modify

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the scheme framed by him under sub­section (1) or sub­section (2).

(4) The scheme framed under sub­section (1) or sub­section (2) or modified under sub­ section (3) shall subject to the decision of the competent court under section 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under section 50.]"

11.1.Section 72 of the Act provides as under:

"72. Application from Charity Commissioner's decision under section 40, [41, 50A, 70 or 70A].­ (1) Any person aggrieved by the decision of the Charity Commissioner under section 40, 41,[50A],[70 or 70A] or on the questions [whether a trust exists and whether such trust is a public trust] or whether any property is the property of such trust,[***] may within sixty days from the date of the decision, apply to the Court to set aside the said decision.

[(1A) No party to such application shall be entitled to produce additional evidence, whether oral or documentary, before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause to Court thinks it necessary to allow such additional evidence.

Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission.] (2) The Court after taking [evidence if any,] may confirm, revoke or modify the

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decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. (3) Pending the disposal of an application under sub­section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order.

(4) An appeal shall lie to the High Court against the decision of the Court under subsection (2) as if such decision was a decree from which an appeal ordinarily lies.

[Explanation:­ ln this section, the expression, "decision" shall include a scheme framed or modified under section 50A.]"

12. In the case of Jamadar Suleman Bachumiya (supra), this Court has observed in para 9 as under:

"[9]. Further it is contended that although the learned Mamlatdar had jurisdiction to issue a permanent injunction under sec. 5(2) of the Mamlatdars Courts Act he had no jurisdiction to issue an interim injunction under that section. This contention that the Mamlatdar had no jurisdiction to issue an interim injunction in a suit filed under sec. 5(2) of the Mamlatdars Courts Act is correct and on this ground in revision before the Deputy Collector the order of interim injunction could have been vacated but instead of vacating this interim injunction on this ground the Deputy Collector has reversed it on another ground namely after appreciating the evidence which he had no right to do. Although the learned Prant Officer had no jurisdiction to appreciate the evidence in a revision application filed before him under section 23 of the Mamlatdars Courts Act the order

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passed by him does not appear to be unjustified in view of the fact that the learned Mamlatdar was trying a suit in which he had no jurisdiction to issue an order of interim injunction."

12.1.In the case of Morgan Stanley Mutual Fund (supra), the Hon'ble Supreme Court has observed in para 52 as under:

"52. A careful reading of the above discloses that there is no power under the Act to grant any interim relief of even an ad interim relief. Only a final relief could be granted. If the jurisdiction of the Forum to grant relief is confined to the four clauses mentioned under Sec.14, it passes out comprehension as to how an interim injunction could even be granted disregarding even the balance of convenience."

12.2.In the case of Super Cassettes Industries Ltd. (supra), the Hon'ble Supreme Court has observed in para 69 as under:

"69. It is no doubt true, that tribunals discharging quasi­judicial functions and having the trappings of a court, are generally considered to be vested with incidental and ancillary powers to discharge their functions, but that cannot surely mean that in the absence of any provision to the contrary, such tribunal would have the power to grant at the interim stage the final relief which it could grant. As also indicated hereinbefore, such incidental powers could at best be said to exist in order to preserve the status quo, but not to alter the same, as will no doubt happen, if an

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interim compulsory licence is granted. If the legislature had intended that the Copyright Board should have powers to grant mandatory injunction at the interim stage, it would have vested the Board with such authority. The submission made that there is no bar to grant such interim relief in Section 31 has to be rejected since the presence of a power cannot be inferred from the absence thereof in the statute itself."

13. Thus, from the provisions contained in Section 50A of the Act, prima facie it would clear that there is no express power given to the Charity Commissioner to pass interim order and therefore if the aforesaid decisions upon which reliance is placed by the learned counsel for the petitioners are carefully seen, this Court is of the view that the issue involved in the present petition requires consideration and detailed hearing. Thus, prima facie, this Court is of the view that when there is no express power with the Charity Commissioner to pass any interim order and the said issue is required to be examined in detailed, the question of rejecting the petition at the threshold on the ground of alternative remedy under Section 72 of the Act does not arise.

14. In view of the aforesaid discussion, notice returnable on 10.03.2021. Learned advocate Ms. Tejal Vashi waives service of notice for the caveators. Till the final disposal of the petition, there shall be interim relief in terms of para 18(B). However,

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the Joint Charity Commissioner is permitted to proceed with the hearing of Scheme Application No.10 of 2020 as expeditiously as possible.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI