Gujarat High Court
Brahmachari Swami ... vs Joint Charity Commissioner on 12 January, 2021
Bench: Vipul M. Pancholi
C/SCA/16628/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16628 of 2020
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 16628 of 2020
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BRAHMACHARI SWAMI CHANDRASVARUPANANDJI GURU BRAHMCHARI
SWAMI CHANDRAPRAKASHNANDJI
Versus
JOINT CHARITY COMMISSIONER
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR TARAK
DAMANI(6089) for the Petitioner(s) No. 1,2,3
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 1
MR NAVIN PAHWA, SENIOR ADVOCATE FOR THAKKAR AND PAHWA
ADVOCATES(1357) for the Respondent(s) No. 2
MR MIHIR JOSHI, SENIOR ADVOCATE for Respondent(s) No.3
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 12/01/2021
ORAL ORDER
1. This petition is filed under Article 226 of the
Constitution of India in which the petitioners have
prayed for the following relief/s:
"A. Be pleased to issue a writ of mandamus
or a writ in the nature of mandamus or any
other appropriate writ, order or direction
and be pleased to quash and set aside the
order passed by the Respondent no.1 dated
14.12.2020 in application below Exh.5 in
Adjudication Misc. Application
No.41A/13/2020.
B. Be pleased to issue a writ of
prohibition or a writ in the nature of
prohibition or any other appropriate writ,
order or direction and be pleased to hold and
declare that the Respondent no.1 has no
power, competence or authority to hear the
application submitted before him recorded in
C/SCA/16628/2020 ORDER
Adjudication Misc. Application No.41A/13/2020
dated 14.12.2020 in application below Exh.5.
C. Pending admission and final disposal of
the present petition, be pleased to stay the
impugned order passed by the Respondent no.1
dated 14.12.2020 in application below Exh.5
in Adjudication Misc. Application
No.41A/13/2020.
D. Pending admission and final disposal of
the present petition, be pleased to restrain
the Respondent no.1 from further hearing of
the Adjudication Misc. Application
No.41A/13/2020."
2. Heard learned Senior Advocate Mr. Percy Kavina
assisted by learned advocate Mr. Tarak Damani for the
petitioners, learned Senior Advocate Mr. Navin Pahwa
for the respondent No.2 and learned Senior Advocate Mr.
Mihir Joshi for the respondent No.3.
3. Learned Senior Advocate Mr. Percy Kavina appearing
for the petitioners submitted that the District Judge,
Bhavnagar in Civil Suit No.1 of 1975 framed the scheme
for the purpose of administration and management of
Gopinathji Dev Mandir Trust (hereinafter referred to as
'the trust' for short). As per the provisions contained
in the Scheme, the Board of Trustees is consisted of 7
trustees. It is submitted that last general election of
the Board of Trustees was held as per the direction
issued by the Hon'ble Supreme Court. It is submitted
that serious disputes are pending before the Assistant
Charity Commissioner, Rajkot about election of Board of
Trustees. At this stage, it is contended that as per
the scheme, the Chairman of the Trust is entitled to
call the meeting of Board of Trustees. The Chairman,
vide his notice dated 11.11.2020, called the meeting of
C/SCA/16628/2020 ORDER
the Board of Trustees of the trust. The said meeting
was called on 22.11.2020. It is submitted that the
respondent Nos. 2 to 5 did not remain present in the
said meeting. Therefore, as per Clause 24b of the
Scheme, the meeting was adjourned in absence of quorum.
It is submitted that in the meeting, petitioners have
decided to convene the meeting after two weeks i.e. on
06.12.2020.
4. Learned counsel for the petitioners further
submitted that on 06.12.2020, meeting was held in which
once again the present respondent Nos. 2 to 5 did not
remain present. In fact, the private respondents were
informed vide notice dated 22.11.2020 about the meeting
of 06.12.2020. The petitioners herein remained present
in the said meting and as per the agenda, the meeting
was conducted and in the said meeting one of the
petitioners was elected as Chairman of the meeting. By
Resolution No.4, it was decided to hold and resolve
that Shastri Swami HariJivandasji i.e. respondent No.2
herein was not holding the qualification to continue as
the Trustee of the Board of Trustees and therefore he
was removed from the office of the trustees of the
Board of Trustees of the temple. Petitioner No.1 was
also elected as the Chairman of the Trust and that was
done by passing resolution No.5. Another resolution
No.6 was also passed, whereby the decision was taken to
change the names of the trustees for transacting the
business of the trust with the bank. Thereafter,
resolution No.8 was passed, wherein the post which was
fallen vacant on account of removal of respondent No.2,
Swami Bhakti Prasadji has been co-opted as trustee for
the remaining term of the Board of Trustees. Learned
C/SCA/16628/2020 ORDER
counsel has referred the minutes of the said meeting.
5. At this stage, learned Senior Advocate Mr. Kavina
would refer clause 24b of the Scheme and contend that
as per the said clause, meeting was convened on
06.12.2020 and therefore no illegality is committed by
the petitioners. He would further submit that on
08.12.2020, the change report was submitted to the
Assistant Charity Commissioner and therefore as per the
provisions contained in Section 22 of the Bombay Public
Trust Act (hereinafter referred to as the Act), the
Assistant Charity Commissioner has jurisdiction to
consider the said change report. It is further
submitted that after the decision is taken by the
Assistant Charity Commissioner, the aggrieved party can
file a statutory appeal before the Charity
Commissioner. The change report is still pending before
the concerned Assistant Charity Commissioner.
6. At this stage, learned counsel for the petitioners
contended that the petitioners had called the meeting
of Board of Trustees on 15.12.2020 by issuing the
agenda notice dated 11.12.2020. The respondent No.2
also issued the agenda notice calling the meeting on
the very same day i.e. 15.12.2020 and thereafter
respondent No.2 has approached the Joint Charity
Commissioner, Bhavnagar by filing an application under
Section 41A of the Act. It is prayed in the said
application that the proceedings of minutes of meeting
dated 06.12.2020 be declared illegal and also prayed
that all the business transacted in the said meeting
shall be declared void and petitioner no.1 be
restrained from functioning as Chairman of the Trust
C/SCA/16628/2020 ORDER
and further be directed not to publish any news that he
- petitioner No.1 is the Chairman of the Trust. At this
stage, learned counsel further submitted that on the
very same day the respondent No.1 passed the impugned
order, whereby notice was issued making it returnable
on 08.01.2021. Moreover, by way of the impugned order,
the respondent No.1 stayed the meeting called by the
petitioners on 15.12.2020 and also directed that the
petitioners herein shall not act against the interest
of the trust. Petitioners have, therefore, filed the
present petition.
7. At this stage, it is also submitted that
petitioners have filed separate civil application
challenging the communication dated 25.12.2020 by which
the private respondents herein had called the meeting
on 03.01.2021.
8. Learned counsel Mr. Kavina has assailed the
impugned order passed by respondent No.1 mainly on the
ground that when the specific powers are given to the
Assistant Charity Commissioner to consider the change
report, general powers under Section 41A of the Act
could not have been exercised by the Higher Forum i.e.
the Charity Commissioner. Whether the change report
submitted by the petitioners on 08.12.2020 is valid or
not can be examined by the Assistant Charity
Commissioner and the respondents herein can take
objection before the said authority. In fact change
report is statutory proceeding and any order passed by
the Assistant Charity Commissioner in such proceeding
can be challenged by way of appeal under Section 22(3)
of the Act before the Charity Commissioner and even
C/SCA/16628/2020 ORDER
against the order passed by the Charity Commissioner
while exercising powers under Section 22(3) of the Act,
appeal can be filed under Section 70 of the Act before
the District Court. In fact the issue with regard to
the change report/removal of the concerned private
respondent and appointment of another trustee can be
decided by the lowest forum/court as per the provisions
contained in Section 15 of the Code of Civil Procedure,
1973. Thus, invocation of jurisdiction by the
respondent no.1 is illegal and while exercising the
jurisdiction the respondent No.1 has passed illegal
order and therefore this Court may quash and set aside
the impugned order passed by the respondent No.1.
9. Learned counsel for the petitioners further
submitted that there cannot be two parallel
jurisdiction one is to be exercised by the Assistant
Charity Commissioner and another by the Joint Charity
Commissioner.
10. Learned counsel further submitted that when the
private respondents did not remain present in the
meeting which was held on 06.12.2020, with the
permission of the Chairman additional agenda as
suggested by the Chairman were transacted. Hence, it
cannot be said that the petitioners have committed any
illegality.
11. On the other hand, learned Senior Advocate Mr.
Mihir Joshi appearing for respondent No.3 referred the
history of the dispute between the parties and
thereafter contended that the concerned trustees, at
the relevant point of time, were not holding the
C/SCA/16628/2020 ORDER
election of the trust. However, the Hon'ble Supreme
Court has, vide order dated 13.12.2018, directed to
hold the election of the trust under the supervision of
a retired High Court Judge. Copy of the said order is
placed on record at page 218 of the compilation.
12. At this stage, learned counsel Mr. Joshi has
pointed out the order dated 28.01.2019 passed by this
Court in Special Civil Application No.1327 of 2019
filed by the group of the present petitioners, wherein,
in para 8, this Court observed that the said petition
clearly appears to have been filed in defiance of the
order passed by consensus by the Hon'ble Supreme Court
by raising the issues already decided by the Hon'ble
Supreme Court and raising the controversy against the
election authority appointed by the Hon'ble Supreme
Court, dragging the said authority into litigation. It
is submitted that the said petition came to be
dismissed with cost of Rs.1 lakh. At this stage, it is
pointed out that the Letters Patent Appeal filed
against the said order passed by the learned Single
Judge came to be withdrawn with a view to approach the
Apex Court with regard to the said subject matter and
grievances raised in the said LPA. At this stage, it is
also pointed out that thereafter the Hon'ble Supreme
Court passed an order dated 12.03.2019, copy of which
is placed on record at page 207, whereby the Hon'ble
Supreme Court has disposed of the said MCA by observing
that the trust has unnecessarily delayed the holding of
election and therefore the said body should not manage
the affairs of the trust any further. The Hon'ble
Supreme Court appointed Hon'ble Mr. Justice Mohit Shah,
former Chief Justice of the High Court of Judicature at
C/SCA/16628/2020 ORDER
Bombay, to administer the trust.
13. In the aforesaid background, it is contended by
learned counsel Mr. Joshi that only thereafter election
was held in which the present private respondents and
the present petitioners came to be elected. Thus, there
are four persons i.e. the private respondents on one
side and three petitioners on the other side. It is
submitted that respondent No.2 herein was elected as a
Chairman on 09.05.2019 for a period of 1 year as per
Clause 19 of the scheme. After the period of one year
was over, once again on 09.05.2020, respondent No.2 was
elected as a Chairman. Thus, present petitioners had
not raised any objection with regard to the election of
present respondent No.2 as a Chairman of the trust.
14. Learned counsel Mr. Joshi submits that on
11.11.2020, notice was issued by respondent No.2
calling the meeting of the trust on 22.11.2020. On
22.11.2020, respondent No.2 was sick and therefore the
group of respondent No.2 did not remain present in the
said meeting and therefore the said non-quorum meeting
was adjourned. It is alleged that on 06.12.2020, the
meeting was conducted by the present petitioners
illegally and without information to the private
respondents minutes were prepared illegally and in fact
the minutes of the meeting dated 06.12.2020 is
concocted document. At this stage, it is further
submitted that even in the adjourned meeting, only the
agenda which were in the previous meeting dated
22.11.2020 can be transacted and no additional agenda
can be considered. It is submitted that there was no
agenda for removal of respondent No.2 as Chairman and
C/SCA/16628/2020 ORDER
trustee of the trust. No notice was given to the
present respondents, in spite of that the respondent
No.2 herein has been removed as a Chairman and the
trustee of the concerned trust.
15. Learned counsel appearing for the respondent No.3
would further submit that in fact the meeting was held
on 07.12.2020 by the private respondents. The
petitioners have not challenged the meeting conducted
by the private respondents on 07.12.2020. It is
submitted that when the petitioners tried to run
parallel administration of the trust by calling the
meeting on 15.12.2020, the private respondents filed an
application under Section 41A of the Act before the
respondent No.1 and the respondent No.1, in the
interest of trust, passed the impugned order. Learned
counsel would submit that under Section 41A of the Act,
respondent No.1 is having wide powers to pass any order
in the interest of a trust and looking to the facts and
circumstances of the present case, when such powers are
exercised and respondent No.1 has passed an interim
order, this Court may not interfere with the same.
Learned counsel, therefore, urged that this petition be
dismissed.
16. Learned Senior Advocate Mr. Navin Pahwa appearing
for the respondent No.2 has supported the submissions
canvassed by learned advocate Mr. Mihir Joshi for the
respondent No.3. Learned counsel Mr. Pahwa has referred
the affidavit-in-reply filed by the respondent No.2 and
the orders passed by this Court as well as Hon'ble
Supreme Court with regard to the disputes between the
trustees. Copies of the said orders are placed along
C/SCA/16628/2020 ORDER
with the affidavit.
17. Learned counsel Mr. Pahwa submits that as per
Clause 19 of the scheme, respondent No.2 was appointed
as a Chairman of the trust and therefore the concerned
trustees have no power to remove the elected Chairman.
Learned counsel has also referred the relevant clause
Nos. 23, 25 and 26 of the scheme. Thereafter, it is
contended that the impugned order has been passed by
the respondent No.1 for the meeting dated 15.12.2020
and the said date is already over. It is further
submitted that the change report for May, 2019 is yet
to be adjudicated by the Assistant Charity
Commissioner. Therefore, in the meantime, petitioners
have no powers to remove the elected Chairman/Trustee
of the trust. It is also submitted that in fact the
Chairman i.e. respondent No.2 has called the meeting on
07.12.2020. However, petitioners refused to accept the
notice issued for the said meeting. Notice was sent on
23.11.2020 for the meeting of 07.12.2020. Thus, learned
counsel Mr. Pahwa would submit that as per the scheme,
only Chairman is empowered to send the notice and
therefore the respondent No.2 issued the notice on
23.11.2020 for the meeting on 07.12.2020. Hence, the
meeting called on 06.12.2020 is illegal and the so-
called resolutions passed in the said meeting are
contrary to the scheme sanctioned by the District
Court.
18. At this stage, it is also pointed out that
petitioners issued another agenda on 28.12.2020 calling
the meeting on 02.01.2021 despite the order passed by
the respondent No.1 and therefore the respondents
C/SCA/16628/2020 ORDER
herein filed civil application on 31.12.2020 before the
respondent No.1. The respondent No.1 passed an order
dated 01.01.2021, copy of which is placed on record by
the learned counsel Mr.Pahwa during the course of
hearing.
19. Learned counsel Mr. Pahwa has placed reliance on
the decision rendered by this Court in the case of
Balvantbhai Jinabhai Dhami v. Shantilal Kanjibhai
Ratanpara and others, reported in 2010 51 (2) GLR 1399.
It is submitted that this decision is confirmed up to
Hon'ble Supreme Court. Learned counsel has also placed
reliance on the decision rendered by the Division Bench
of this Court in the case of Pavankumar Jain & Others
v. Priyavadan Ambalal Patel & Others, reported in 2016
(2) GLH 360.
20. Learned counsel Mr. Pahwa further submitted that
even assuming that non-quorum meeting was required to
be conducted on 06.12.2020, only the agenda which were
in the previous meeting of 22.11.2020 can be transacted
and no additional agenda can be taken into
consideration in the said meeting. It is further
submitted that the impugned order is interim order and
therefore this Court may not interfere with the said
order at this stage and therefore the petition be
dismissed.
21. Having heard the learned counsel appearing for the
parties and having gone through the material placed on
record, it would emerge that the present petitioners
and the private respondents herein are elected as
trustees pursuant to the election of the trust which
C/SCA/16628/2020 ORDER
was held as per the direction issued by the Hon'ble
Supreme Court. It is not in dispute that the respondent
No.2 has been elected as a Chairman in the meeting
which was held in May, 2019 for a period of one year as
per clause 19 of the scheme. The private respondents
are in majority, whereas petitioners are in minority.
The change report of May, 2019 is also under challenge
before the Assistant Charity Commissioner. Once again
the respondent No.2 has been elected as a Chairman on
09.05.2020. At that time, objection was not raised.
Notice was issued by the respondent No.2 as a Chairman
on 11.11.2020 for holding the meeting on 22.11.2020.
The said notice was duly served to all the trustees.
There were three agenda mentioned in the said meeting
viz. (1) for discussion with regard to 'Thal'(Prasad);
(2) for discussion of rented premises and (3) other
item as suggested by the President/Chairman.
22. It is not in dispute that the private respondents
herein had not remained present in the said meeting and
therefore in absence of quorum, the said meeting was
required to be adjourned for transacting the same
agenda. Thereafter, as per the contention of the
petitioners the adjourned meeting was held on
06.12.2020, in which the private respondents did not
remain present and therefore the petitioners conducted
the said meeting and passed various resolutions. In the
said meeting the petitioners removed the respondent
No.2 as Chairman as well as trustee of the trust as
respondent No.2 is alleged to have not qualified to be
appointed as a trustee. Thereafter, on 08.12.2020,
change report was submitted by the petitioners before
the Assistant Charity Commissioner. It has also emerged
C/SCA/16628/2020 ORDER
from the record that the respondent No.2, as a Chairman
of the trust, issued the notice on 23.11.2020 for
holding the meeting on 07.12.2020, in which the
petitioners did not remain present and in fact it is
alleged that the petitioners have refused to accept the
notice dated 23.11.2020 and therefore the private
respondents herein conducted the meeting in absence of
the present petitioners.
23. In the aforesaid background of the case, when the
petitioners called the meeting on 15.12.2020, the
private respondents filed an application on 14.12.2020
before the respondent No.1 under Section 41A of the Act
in which present respondents - applicants therein have
prayed that the meeting dated 15.12.2020, called by
petitioner No.2 on the basis of the resolution passed
in the meeting dated 06.12.2020 electing him as a
Chairman, be stayed and the meeting called by the
present respondent No.2 on 15.12.2020 may not be
interfered with by the present petitioners - opponents
of the said application. It is also prayed in the said
application that the original opponents - present
petitioners have no right to call the meeting of the
trust and the transaction carried out in the meeting
dated 06.12.2020 be declared as illegal and the present
petitioners - original opponents be restrained from
acting on the basis of the resolution passed in the
meeting dated 06.12.2020. Copy of the said application
is placed on record at page 57 of the compilation.
24. Now, the impugned order has been passed by the
respondent No.1 while exercising powers under Section
41A of the Act by which the present petitioners are
C/SCA/16628/2020 ORDER
restrained from conducting the meeting on 15.12.2020
and directed not to act against the interest of the
trust.
25. At the outset, it is required to be noted that the
petitioners have challenged the interim order passed by
the respondent No.1 and the respondent No.1 has
thereafter kept the matter on 08.01.2021 for further
hearing. In the meantime, this petition has been filed
by the petitioners. Therefore, it would not be proper
on the part of this Court to decide the issues which
are yet to be decided by the respondent No.1. However,
when the petitioners have challenged the jurisdiction
of the respondent No.1, this Court has to consider the
submissions canvassed on behalf of learned counsel
appearing for the parties. For considering the
submissions, the provisions contained in the Act as
well as the decisions on which reliance is placed are
required to be kept in view.
26. Section 22 of the Act provides as under:
"22. Change. - (1) Where any change occurs in
any of the entries recorded in the register
kept under section 17, the trustee shall,
within 90 days from the date of occurrence of
such change, or where any change is desired
in such entries in the interest of the
administration of such public trust, report
such change or proposed change to the Deputy
or Assistant Charity Commissioner in charge
of the Public Trusts Registration Office
where the register is kept. Such report shall
be made in the prescribed form. [(1A) Where
the change to be reported under sub-section
(1) relates to any immovable property, the
trustee shall along with the report, furnish
a memorandum in the prescribed form
C/SCA/16628/2020 ORDER
containing the particulars (including the
name and description of the public trust)
relating to any change in the immovable
property of such public trust, for forwarding
it to the Sub-Registrar referred to in sub-
section (7) of section 18. Such memorandum
shall be signed and verified in the
prescribed manner by the trustee or his agent
specially authorised by him in this behalf.]
(2) For the purpose of verifying the
correctness of the entries in the register
kept under section 17 or ascertaining whether
any change has occurred in any of the
particulars recorded in the register, the
Deputy or Assistant Charity Commissioner may
hold an inquiry. (3) If the Deputy or
Assistant Charity Commissioner, as the case
may be after receiving a report under sub-
section (1) and holding an inquiry, if
necessary under subsection (2), or merely
after holding an inquiry under the said sub-
section (2), is satisfied that a change has
occurred in any of the entries recorded in
the register kept under section 17 in regard
to a particular public trust, he shall record
a finding with the reasons therefor to that
effect. Such finding shall be appealable to
the Charity Commissioner. The Deputy or
Assistant Charity Commissioner shall amend
the entries in the said register in
accordance with such finding and if appeals
[or applications] were made against such
finding, in accordance with the final
decision of the competent authority provided
by this Act. The amendments in the entries so
made shall, subject to any further amendment
on the occurrence of a change, be final and
conclusive. [(4) Whenever an entry is amended
under sub-section (3), the Deputy or
Assistant Charity Commissioner, as the case
may be, shall forward the memorandum
furnished to him under sub-section (1A),
after certifying the amended entry to the
Sub-Registrar referred to in sub-section (7)
of section 18, for the purposes of
registering the change.]"
26.1.Section 41A of the Act provides as under:
C/SCA/16628/2020 ORDER
"41A. Power of Charity Commissioner to issue
directions to trustees and other persons. -
(1) Subject to the provisions of this Act,
the Charity Commissioner may, from time to
time, issue directions to any trustee of a
public trust or any person connected
therewith to ensure that such trust is
properly administered and the income thereof
is properly accounted for or duly
appropriated and applied to the objects and
for the purposes of the trust. (2) It shall
be the duty of every such trustee and person
to comply with a direction issued to him
under sub-section (1)."
27. It is the case of the petitioners that when the
change report dated 08.12.2020 is pending before the
Assistant Charity Commissioner, the respondent No.1
could not have passed the impugned order while
exercising powers under Section 41A of the Act. From
the provisions contained in Section 41A, it is revealed
that Charity Commissioner is empowered to issue
direction for proper administration of a public trust,
proper accounting of its income, due appropriation and
application of the income to the objects and for the
purposes of the trust. Thus, this Court is of the view
that the power of the Charity Commissioner to issue
directions to ensure that the Trust is properly
administered is itself by very nature a wide power.
28. At this stage, the decision rendered by this Court
in the case of Balvantbhai Jinabhai Dhami (supra) is
required to be kept in view. In the said case, this
Court observed in para 33, 34 and 35 as under:
"33. Essentially, the issues relating to
running the day-to-day affairs of a public
C/SCA/16628/2020 ORDER
trust fall under the scope of Section 41A of
the Act. However, the question relating to
the right of a person to be admitted as a
member of the trust is an independent right,
which a person may be claiming upon the items
and conditions of the trust, against the
trustees of the trust. While ascertaining
such right, an inquiry is required to be held
for the purpose of deciding the issue as to
whether such person/s, who are asserting the
right, are actually entitled to claim such
right or not. Such process would require
adjudication of the facts by the authority.
34. It is well settled that when express
power is provided under a statute for dealing
with a particular situation, then the general
power cannot be made applicable to such
situation. Section 22 of the Act provides for
the submission of change report and holding
of an inquiry. Therefore, in a given case, if
the issue pertains to Section 22 of the Act,
then it cannot be made subject-matter of
issuing directions u/s.41A of the Act but, if
the action is wholly without jurisdiction,
then the matter would fall outside the
applicability of such provision. In other
words, the action of filing of a change
report or the raising of an objection against
the filing of such change report would not be
a sufficient ground to oust the jurisdiction
u/s.41A of the Act but, if the action of
filing of a change report is in purported
exercise of the power for bringing about the
change, then it would fall within the purview
of Section 22 of the Act.
35. Keeping in mind the above settled legal
position, it can be said that if the action
of bringing about the change is dehors the
scheme of the trust, then it would fall
within the domain of proper administration of
the trust u/s. 41A of the Act and would not
fall within the purview of Section 22 of the
Act. The issue involved in these petitions
pertain to the legality of appointment of
some of the members to particular posts of
the Committee and also the powers of a member
to participate in the first meeting of the
C/SCA/16628/2020 ORDER
Committee and to cast the vote. Such issues
could not be gone into by the authority under
the provisions of Section 22 of the Act and
could be examined under the provisions
of Section 41A of the Act, as it falls under
the domain of proper administration of the
trust. In my opinion, by going into the said
issues, the authority has not traveled beyond
the scope of Section 41A of the Act as it
pertained to issues relating to the proper
administration of the trust."
28.1.Thus, in the aforesaid decision, this Court has
observed that, if the issue pertains to Section 22 of
the Act, then it cannot be made subject-matter of
issuing directions u/s.41A of the Act. However, if the
action is wholly without jurisdiction, then the matter
would fall outside the applicability of such provision.
In other words, it was observed that the action of
filing of a change report or raising of an objection
against filing of such change report would not be a
sufficient ground to oust the jurisdiction u/s.41A of
the Act. Thus, if the action of bringing about the
change is dehors the scheme of the trust, then it would
fall within the domain of proper administration of the
trust u/s. 41A of the Act and would not fall within the
purview of Section 22 of the Act.
28.2.The Division Bench of this Court in the case of
Pavankumar Jain (supra), observed in paragraphs 7, 7.1,
7.2, 8 and 9 as under:
"7. It cannot be disputed that me
administration and management of the Trust
can always be as per the provisions contained
in me Trust-Deed and in accordance with
provisions of the Act and Rules. Therefore,
C/SCA/16628/2020 ORDER
considering me provision of Sec. 41A of the
Trust Act whenever it is found by the Charity
Commissioner that the Trust and/or its
trustees are not managing the affairs of the
Trust as per the provision contained in
Trust-Deed and/or as per the provisions of me
Act and Rules, me Charity Commissioner can in
exercise of powers under Sec. 41A of the Act
issue direction for appropriate
administration and management of the Trust.
However, it is the case of the appellants
relying upon the decision of the Division
Bench of this Court in the case of Syedna
Mohamed Burhanuddin, [1992 (1) GLH 331], that
even while exercising the powers under Sec.
41A of the Trust Act, the Charity
Commissioner can issue direction only in
respect of the matter falling under Secs. 32
to 41 of the Trust Act. However, considering
the aforesaid decision of the Division Bench
in detail and the observations made by the
Division Bench with respect to question posed
before the Division Bench in the case of
Syedna Mohamed Burhanuddin, [1992 (1) GLH
331], we are of the opinion that as such
there is no absolute proposition of law laid
down by the Division Bench in the said
decision that in exercise of powers conferred
under Sec. 41A of the Trust Act, the Charity
Commissioner can issue the direction in
respect of the matters falling under Secs. 32
to 41 of the Trust Act only.
In the case before the Division Bench while
challenging the certain directions issued by
the Charity Commissioner, Gujarat State,
under Sec. 41A of the Trust Act, vires of
Sec. 41A of the Trust Act also were
challenged on the ground that it violates
Arts. 25 and 26 of the Constitution of India.
Before the Division Bench the petitioner
challenged the constitutional validity of
Sec. 41A of the Trust Act mainly on the
following grounds/contentions:
"(1) Sec. 41A of the Bombay Public Trusts
Act, 1950, insofar as it applies to trusts of
religious denominations, is ultra vires Arts.
25 and 26 of the Constitution.
C/SCA/16628/2020 ORDER
(2) Sec. 41A is not ultra vires Arts. 25 and
26, the impugned directions are wholly beyond
the purview of Sec. 41A and are in conflict
with Arts. 25 and 26 .
(3) Such directions cannot be issued without
hearing the party affected thereby either on
the ground of principles of Natural Justice
if they are quasi-judicial or on the ground
of principles of Fair-Play if they are purely
executive or administrative in character."
While dealing with the aforesaid contentions,
this Court also noted/considered sub-sec. (1)
of Sec. 41A of the Trust Act and firstly
observed that sub-sec. (1) of Sec. 41A of the
Trust Act empowers the Charity Commissioner
to issue direction only for the following
purpose and no others : (a) Proper
administration of a public trust; (b) Proper
accounting of its income; (c) Due
appropriation and application of the income
to the objects and for the purpose of trust.
While dealing with the contention on behalf
of the petitioners that Sec. 41A of the Trust
Act impinge upon any fundamental fight of a
person or religious denomination and suffers
from constitutional infirmity, the Court
observed that Sec. 41A of the Trust Act is
merely enabling and ancillary provision
intended to make implementation and
enforcement of provisions of Secs. 32 to 41
more effective. It is to be noted that there
was no controversy before the Division Bench
that whether the powers of the Charity
Commissioner to issue direction shall confine
in respect of matters falling under Secs. 32
to 41 only. It will be misreading of decision
of the Division Bench if it is read like
that. On the contrary, in the aforesaid
decision, it is further observed that by
enacting Sec. 41A, the Legislature has not
introduced any new principle which is not
there elsewhere but has merely filled in the
lacuna for effective implementation of the
provision of Act.
C/SCA/16628/2020 ORDER
7.1. Even it could not have been the
intention of the Legislature to restrict the
powers of the Charity Commissioner while
issuing the direction under Sec. 41A of the
Trust Act in respect of matters under Secs.
32 to 41 of the Act only. If the legislature
had intended to restrict the exercise of the
Charity Commissioner's powers under Sec. 41A
to only matters contained in Secs. 32 to 41,
there was absolutely no reason for the
Legislature to have provided under Sec. 41A
the categories of situations under which the
powers can be exercised. The fact that Sec.
41A enumerates the situations in which powers
can be exercised i.e. to ensure that such
Trust is properly administered and the income
thereof is properly accounted for or duly
appropriated and applied to the objects and
for the purposes of the Trust, itself shows
that Sec. 41A is a provision that stands by
itself and that directions can be given under
Sec. 41A as long the same are given for the
matters specified in the said provision i.e.
in Sec. 41A . If such a restrictive meaning
as sought to be contended on behalf of the
appellants is accepted, it will negate that
part of the Sec. 41A which confers power upon
Charity Commissioner to issue direction from
time to time, to ensure that such trust is
properly administered, however subject to
provision of the Trust Act. The presence of
the words "subject to other provisions of
this Act, the Charity Commissioner may
issue..." can only mean that the Charity
Commissioner cannot issue directions that may
violate or run contrary to some other
provision of the Act and can never mean that
Sec. 41A is restricted to the matters
contained in Secs. 32 to 41 only.
7.2. As observed hereinabove, there was no
controversy before the Division Bench in the
aforesaid decision that whether the powers of
the Charity Commissioner to issue direction
under Sec. 41A of the Trust Act, shall be
restricted to matters in respect of Secs. 32
to 41 only. Therefore, if the judgment of the
Division Bench in the case of Syedna Mohamed
Burhanuddin, [1992 (1) GLH 331], if read as a
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whole and its true perspective, as such it
does not hold that Sec. 41A is restricted to
Secs. 32 to 41 only. As such, in the
aforesaid decision, the Division Bench has
not restricted the powers under Sec. 41A of
the Trust Act to the matters contained in
Secs. 32 to 41 of the Trust Act only. As per
the catena of decision of the Hon'ble Supreme
Court, more particularly in the case of Zee
Telefilms Limited v. Union of India, reported
in , AIR 2005 SC 2677 (Para 275-278); in the
case of Natural Resources Allocation, in Re.
Special Reference No. 1 of 2012, reported
in , 2012 (10) SCC 1 (Para 73) and in the
case of Mehboob Dawood Shaikh v. State of
Maharashtra, reported in , 2004 (2) SCC 362
(Para 12), a judgment is to be read as a
whole and that it is not a precedent for a
question that was not before the Court.
Under the circumstances and for the reasons
stated above, we are of the opinion that the
Division Bench in the case of Syedna Mohamed
Burhanuddin, [1992 (1) GLH 331], does not
hold that powers conferred under Sec. 41A of
the Trust Act to issue direction by the
Charity Commissioner is restricted to Secs.
32 to 41 of the Trust Act only.
8. On the contrary, in the case of Navsari
Taluka Halpati Shikshan Prachar Sangh,
[L.P.A. No. 2 of 2004] after considering the
aforesaid decision of the Division Bench in
the case of Syedna Mohamed Burhanuddin, [1992
(1) GLH 331], more particularly, the
observations made in Paras 41 and 42 in
decision of Syedna Mohamed Burhanuddin
(supra), it is held that the Charity
Commissioner can exercise the powers under
Sec. 41A of the Act in connection with the
matters falling under the Act for proper
administration of the Trust and are not
restricted to the matters falling under Secs.
32 to 41 of the Act only. It is further
observed and held by the Division Bench in
the said decision the power of the Charity
Commissioner to issue directions to ensure
that the Trust is properly administered is
itself by very nature a wide power. It is
C/SCA/16628/2020 ORDER
further observed that Administration of Trust
would mean administration by a body which
under the Trust-Deed is required to be
administered the same. It is further observed
that in absence of proper elected body as
required under the Trust-Deed, a proper
administration of the Trust cannot be
ensured. It is further observed that the
Administration of the Trust would include
various aspects, which would fall under the
provisions of the Act and in absence of a
properly constituted administrative body, the
affairs of the Trust can hardly be conducted
in furtherance of its objects. Thereafter, it
is held that the direction to hold election
of the trustee in consonance with the terms
of the Trust-Deed would clearly fall within
the ambit of Sec. 41A of the Act. It is
required to be noted that after the aforesaid
decision of the Division Bench in the case of
Navsari Taluka Halpati Shikshan Prachar
Sangh, [L.P.A. No. 2 of 2004] in the
following decisions, the learned Single
Judges of this Court have categorically
observed and held that in exercise of powers
under Sec. 41A of the Act, the Charity
Commissioner can issue direction for better
administration of trust:
"(a) Acharyashree M. R.B. Mandir Trust v.
C.R. Chandulal, 1997 (1) GLH 16 (Single
Judge) (Paras 5, 8, 11, 12 and 13)
(b) Devkrushnadasji Guru Dharmadasji v. State
of Gujarat, 2008 (1) GLH 427 : [, 2008 (3)
GLR 1981] (Single Judge) (Paras 13-16, 18-24)
(c) Balvantbhai Jinabhai Dharni v. Shantilal
Kantibhai Ratanpara, Spl. C.A. No. 9819 of
2009 and other cognate matters (Single Judge)
(Paras 18.1, 18.2,23,23.1,29-31)
(d) Ratilal Hansraj Gajjar v. Kamleshbhai
Narsibhai Kharechha, 2011 (0) GLHEL-HC 224834
(Single Judge) (Pages 9-11)
(e) Shree Laxminarayan Dev Temple Board v.
Jasubhai Bhailalbhai Patel,
C/SCA/16628/2020 ORDER
Spl. C.A. No. 4069 of 2012 (Single Judge)
(Paras 14-15)
(f) Gopinath Dev Mandir Trust v. State of
Gujarat, Spl. C.A. No. 11706 of 2012 (Pages
31-35). It may be noted that this judgment
has been confirmed by the Division Bench in
L.P.A. No. 479 of 2013. (Paras 9-11)."
9. For the reasons stated above and
considering the scheme of the Trust Act and
object and purpose for which Sec. 41A of the
Trust Act is enacted, restricted meaning as
canvassed on behalf of the appellant that in
exercise of powers under Sec. 41A of the
Trust Act, the Charity Commissioner can issue
the directions only in respect of the matters
under Secs. 32 to 41 of the Act cannot be
accepted. As observed hereinabove, the
Legislature has never intended to confer such
narrow powers to the Charity Commissioner.
The Charity Commissioner can issue the
directions in exercise of powers under Sec.
41A of the Act with respect to (a) proper
administration of a public trust; (b) proper
accounting of its income; (c) due
appropriation and application of the income
to the objects and for the purpose of trust
however, subject to provisions of the Act and
Rules how even as observed in the case of
Syedna Mohamed Burhanuddin, [1992 (1) GLH
331] and other decisions, while issuing
direction under Sec. 41A of the Act Charity
Commissioner has no adjudicatory powers and
cannot decide lis between the parties.
Therefore, subject to the aforesaid rider,
for administration of the Trust, the Charity
Commissioner can issue the directions to the
Trust/Trust-Deed and can issue the directions
to them to act as per the scheme of the Trust
or provision of the Trust-Deed and/or Trust
Act."
29. Thus, keeping in view the aforesaid decisions, if
the facts of the present case are examined, it is
revealed that the petitioners passed resolution on
06.12.2020, whereby the respondent No.2 has been
C/SCA/16628/2020 ORDER
removed as Chairman as well as trustee of the trust and
one Swami Bhakti Prasadji has been co-opted as trustee
for the remaining term of the Board of Trustees. It is
the specific case of the private respondents that the
petitioners have no authority to call the meeting on
06.12.2020 and the said meeting was illegal and the
minutes of the meeting is concocted. It is further the
specific case of the private respondents that there
were only two agenda in the meeting dated 22.11.2020,
in spite of that, without authority of law, present
petitioners have passed various resolutions and on the
basis of the said resolutions, change report is
submitted under Section 22 of the Act before the
Assistant Charity Commissioner. The petitioners had
called the meeting on 15.12.2020 and therefore it is
specifically alleged by the private respondents that
petitioners are trying to run parallel administration
of the trust. Thus, in the facts of the present case,
this Court is of the view that no error is committed by
the respondent No.1 while passing the impugned interim
order dated 14.12.2020. The aforesaid decisions
rendered by this Court would be applicable in the facts
of the present case. The respondent No.1 can proceed
further with the hearing of Adjudication Misc.
Application no.41A/13/2020 filed by the private
respondents. It is open for the petitioners to raise
all the contentions before the respondent No.1 at the
time of hearing of the said application.
30. In view of the aforesaid discussion, petition is
dismissed. However, it is clarified that the respondent
No.1 shall decide the issues raised before it in
C/SCA/16628/2020 ORDER
accordance with law, without being influenced by the
observations made by this Court in the present order.
31. In view of dismissal of the main petition, civil
application stands disposed of accordingly.
(VIPUL M. PANCHOLI, J)
LAVKUMAR J JANI
