w w w . L a w y e r S e r v i c e s . i n



Balvantbhai Jinabhai Dhami V/S Shantilal Kanjibhai Ratanpara and Others.

    Special Civil Application Nos. 9819 and 9822 and C.A. No. 11089 of 2009 in Spl. C.A. No. 9819 of 2009 and C.A. No. 11090 of 2009 in Spl. C.A. No. 9822 of 2009 and C.A. No. 11358 of 2009 in C.A. No. 11090 of 2009 in Spl. C.A. No. 9822 of 2009

    Decided On, 21 January 2010

    At, High Court of Gujarat At Ahmedabad

    By, THE HONORABLE JUSTICE: K.S. JHAVERI

    For Petitioner: S.I. Nanavati, Senior. Advocate. and Ashish H. Shah, Advocate. for Petitioner No. 1 in Special Civil Application Nos. 9819 of 2009 and S.N. Shelat, Senior. Advocate. and Mrugen K. Purohit, Advocate. for Petitioner No. 1 in Special Civil Application Nos. 9822 of 2009 And For Respondents: B.S. Patel, Advocate. for Respondent Nos. 1 and 3 in Special Civil Application Nos. 9819 of 2009, for Respondent No. 11 in Special Civil Application Nos. 9822 of 2009, Mihir Joshi, Senior. Advocate., S.P. Majmudar, Advocate. for Respondent No. 2 in Special Civil Application Nos. 9819 of 2009, for Respondent No. and 2 in Special Civil Application Nos. 9822 of 2009, Prashant Desai, Senior. Advocate. and V.D. Nanavati, Advocate. for Respondent No. 4 in Special Civil Application Nos. 9819 of 2009, for Respondent No. 6 in Special Civil Application Nos. 9822 of 2009 and P.S. Champaneri, Advocate. for Respondent No. 12 in Special Civil Application Nos. 9819 of 2009 and for Respondent No. 3 in Special Civil Application Nos. 9822 of 2009



Judgment Text


Both these petitions involve common questions on law and facts, and therefore, they are disposed of by this common judgment.

1. The issue in these petitions revolve around the administration/management of a trust, named, Sri Radharaman Dev Temple Trust. It is a public charitable trust, duly registered under the provisions of the Bombay Public Trusts Act, 1950 (for short, "the Act"), having registration No. A-400. The said trust is a temple of the Swaminarayan Sect, which hardly needs any introduction. The said Sect, during the life time of its founder-Sahajanand, was directed to be administered as per a document called -Desh-Vibhag Lekh. Accordingly, the area came to be divided into two divisions, viz. north and south divisions. In the 19th Century, litigations arose between both the divisions, which, ultimately, led to the framing of schemes for different divisions by the Courts of law.

2. The devotees of the temple at Junagadh preferred Trust Suit No. 1 of 1978 before the District Court, Junagadh with a request to amend the scheme or to frame a new scheme in respect of Sri Radharaman Dev Temple Trust (hereinafter referred to as "the trust"). After hearing both the sides, the Trust Suit was allowed vide judgment and order dated 15/18-2-1984 and the scheme of the trust was modified, as per the draft attached thereto as "Schedule-1". The said scheme framed in Trust Suit No. 1 of 1978 is in force as on today.

3. Before we proceed further, a reference to certain Clauses of the said Scheme, more particularly, Clause Nos. 2, 3, 9, 12, 23, 28 and 44, is apposite. The English translation of the said Clauses, referred to hereinabove, are reproduced hereunder for ready reference:

Clause No. 2 : (The following clause shall replace the existing Clause No. 1). - One Committee shall administer the above-mentioned temples and all properties connected therewith and the said Committee shall be known as the "Junagadh Swaminarayan Temple Managing Committee".

Clause No. 3 : Committee - The Committee, as mentioned in Clause No. 2 hereinabove, shall replace the existing Clause No. 2 by Clause No. 4 as introduced hereinbelow:

The aforesaid Committee shall consist of (10) followers.

(A) Four 'Grihasth' and four 'Tyagis' shall be elected in the manner, as stated hereinafter and one 'Grihasth' shall be nominated by the 'Acharya'. In that way, a nine member Committee shall be constituted and one person from the 'Tyagi' shall be elected as the 'Kothari'. Thus, the Committee shall constitute of (10) members.

(B) Out of the four elected 'Tyagis', one shall be representing the '' Brahmacharis', one the 'Parshad' and the remaining two the 'Sadhus'.

Clause No. 9:

(1) The following qualifications are necessary for being a member of the Committee:

(A) A male, who is not below the age of 25 years, can become a member.

(B) Such person should not have been convicted by a Court for a criminal offence involving moral turpitude.

(C) Such person should not be an insolvent.

(D) Such person should not be a creditor of the Institution.

(E) Such persons' name should be in the voter's list.

(2) The requirement of the qualifications, as stated in Sub-clause (1) hereinabove, will apply to every member. Apart from the above, in case of 'Tyagis', which include the three sub-groups of 'Brahmachari', 'Sadhu' and 'Parshad', the following special qualifications are provided:

(A) After entering the Institution as a 'Tyagi', he should have spent a minimum of ten years on a post. (B) A 'Tyagi' who has accepted to be the Head of the south division of Swaminarayan Sect, i.e. of Vadtal seat and the such 'Tyagi' does not belong to the temples of either the Vadtal Division or the Gadhada division.

Explanation : In respect of the above two clauses, it is clarified that it shall apply to all members nominated by the 'Acharya' and the elected members.

Clause No. 12 : Scope and powers of the Committee:

Clause No. 12(1) : After coming into force of the amended scheme, any interim Committee or any Committee constituted from time to time, which comes into existence, shall call the first meeting within a period of eight days from the date such Committee comes into existence and shall compulsorily complete the formalities stated hereinunder. Since, the manner of work has been prescribed hereunder, no separate memorandum or agenda shall be issued.

(1) Out of the elected members, one person shall be elected as the President of the Committee.

(2) For the post of Vice-President also, a person shall be selected out of the elected members. If for the post of President, a person from the 'Grihasti' is elected, then for the post of Vice-President, a person from the 'Tyagis' shall be elected and if a person from the 'Tyagis' is elected for the post of President, then for the post of Vice-President, a person from the 'Grihasti' shall be appointed. If no consensus is there in the aforesaid appointments, then decision shall be taken by a majority. In that case also, balance between the 'Tyagis' and 'Grihastis' has to be compulsorily maintained.

(3) A person with the following qualifications shall be appointed as a 'Kothari' out of the 'Tyagis'.

(4) A Chartered Accountant shall be appointed to audit the annual accounts of the Institution and to submit the report.

(5) A Sub-committee consisting of minimum three members from one representative of each constituency from amongst the elected members shall make the inventory and carry out physical verification of the immovable properties of the Institution.

After making verification as above, the sub-committee shall prepare a report, which shall be submitted in the second meeting to be held after the first meeting. The Committee shall be empowered to increase the time-limit on a valid ground, but under no circumstances, a time-limit of more than three months from the date of election shall be granted for the verification.

Clause No. 12(2) : The first meeting after the election shall be called by the 'Kothari' of the earlier Committee. It is clarified that it shall be the main duty of the 'Kothari' to call the said first meeting and for that he is empowered to do the necessary, except discharging any work in the capacity of a 'Kothari' or executing the powers of a 'Kothari'. The 'Kothari' shall call the first meeting and he shall preside over the work of appointing a President for the new Committee and shall work as such until the new President is appointed.

Clause No. 23 : One 'Kothari' shall be appointed for the main temple at Junagadh and he shall be considered to be the "Mukhya Kothari" for all the temples falling within its area and jurisdiction. The 'Kotharis' appointed for the subordinate temples shall be considered as 'Kothari' for such temple only.

Clause No. 28 : The following qualifications are prescribed for appointment of the "Mukhya Kothari" or the "Kothari";

(1) Those who are considered as 'Tyagis' in the Sect and out of them, those who fall under the category of 'Sadhu', will only be eligible for appointment to the post of 'Kothari'.

(2) The age of such 'Sadhu' must be minimum 35 years and he must have spent a minimum of 15 years as a 'Sadhu'.

(3) He should have studied up to Gujarati 7th Standard or equivalent and the decision of the Committee with regard to the said qualification shall be final.

(4) He should have vast experience about the Sect, maintain contact with the followers, referring of the religious books and administrative knowledge to the satisfaction of the Committee.

(5) The 'Kothari' shall hold the post for a period of 2 1/2 years from the date of his appointment. The Committee shall make the first appointment by simple majority.

(6) If the same person is to be continued on the said post even after the completion of the term of 2 1/2 years, then the same can be done by passing a resolution with 2/3rd majority of the total members of the Committee. Before doing that the Committee shall have to state reasons for the same in the resolution. The Committee consists of total ten members, including the 'Kothari'. However, the 'Kothari' shall be excluded from the total number of members and the majority of 2/3rd members shall be considered out of the

Please Login To View The Full Judgment!

remaining nine members, i.e. the resolution must have been passed by 6 (six) members. Only then the said person can be continued as the 'Mukhya Kothari' or the 'Kothari' for the second term.

(7) Such person can work on the post of 'Kothari' for a maximum of two terms. If the person has not worked for one term on this post, then he cannot be elected as a 'Kothari' again until the period of 21/2 years is not over. If he has continuously worked for two terms, then the period of five years shall be considered to be the term instead of the period of 2 1/2 years.

(8) A : The 'Mukhya Kothari' or the 'Kothari' shall remain present in every meeting of the Committee. If he is to remain absent on account of any illness or for any other reason, then as far as possible, he shall intimate about the same to the Committee at an earlier point of time or shall intimate the same to the Committee.

B : After remaining present in the meeting of the Committee, the 'Kothari' shall take part in the discussion relating to matters, other than those stated herein below and shall also have the right to vote. In respect of the following matters, the 'Kothari' cannot take part in the discussion or cannot caste his vote.

(1) In the matters relating to the appointment or dismissal/suspension of the 'Mukhya Kothari' or the 'Kothari' from the post.

(2) In the matters relating to investigation against the 'Kothari'.

Clause No. 44 : Definitions.

(1) Law means the Bombay Public Trust Act of 1950 and the Rules framed thereunder from time to time.

(2) "Committee" means a group of persons elected under the scheme and consisting of members nominated by the 'Acharya' and a 'Kothari' appointed by the Committee.

(3) Month means a month as per the Gujarati calendar.

(4) Year means a year as per the Vikram Samvat year.

(5) Court means the Court of District Judge, Junagadh.

4. On 31-5-2009 the election for the members of the Committee of the trust was held and there suits were declared on 1-6-2009. The following candidates were elected as members of the Committee, as provided under Clause 3 (A) of the scheme:

----------------------------------------------------------------- Sr. No. Name of Elected Candidate Constituency ----------------------------------------------------------------- 1. Shantilal Kanjibhai Ratanpara Grihasth 2. Ratibhai Bhanubhai Bhalodia Grihasth 3. Limbabhai Babubhai Dhankecha Grihasth 4. Nandlalbhai Dalsukhbhai Bamta Grihasth 5. Parshad Purshottambhagat Tyagi (Parshad) 6. Shastri Swamy Narayancharandasji Tyagi (Sadhu) 7. Shastri Swamy Premswarupdasji Tyagi (Sadhu) -----------------------------------------------------------------
5. It appears from the record that for the candidate from the 'Brahmachari' division of the 'Tyagi' constituency, no elections were held, and therefore, only sevenmembers were elected, viz., four from the 'Grihasth' constituency and three from the 'Tyagi' constituency. As per the provisions of Clause 3(A) of the scheme, the 'Acharya' nominated one Balvantbhai Jinabhai Dhami (Petitioner in Spl. C.A. No. 9819 of 2009) as a member of the Committee, vide order dated 2-6-2009.

6. On 3-6-2009 the outgoing 'Kothari' (Respondent No. 4 in Spl. C.A. No. 9819 of 2009) issued the Agenda, as required under Clause 12(1) of the scheme, informing the elected and and nominated members that the first meeting of the Committee will be held on 6-6-2009.

7. Being aggrieved by the same, two elected members of the new Committee, viz. Respondent Nos. 1 and 2 in Spl.C.A. No. 9819 of 2009, belonging to the 'Grihasth' constituency, preferred Misc. Civil Application No. 47 of 2009 before the Court of learned Addl. District Judge, Junagadh, praying for a declaration that the outgoing 'Kothari' does not have any right to cast his vote in the first meeting of the new Committee scheduled to be held on 6-6-2009 in view of the provisions of Clause 12 of the scheme; and also for a direction that only the elected members have the right to be appointed as office bearers of the trust. However, the said application came to be rejected vide order dated 6-6-2009. Against the said order, a writ petition being Spl.C.A. No. 5436 of 2009 was preferred before this Court, which was disposed of as not pressed, vide order dated 16-6-2009.

8. In the meantime, the first meeting the new Committee was held on the scheduled date, i.e. on 6-6-2009. In the said meeting, the election of the office-bearers of the Committee was held. Shastri Swami Narayancharandasji (Respondent No. 5 in Spl.C.A. No. 9819 of 2009) came to be elected as the President, Balvantbhai Jinabhai Dhami (Petitioner in Spl.C.A. No. 9819 of 2009) came to be elected as the Vice-President and Shastri Swami Bhaktaprakashdasji Guru Swami Bhagwandasji (Respondent No. 6 in Spl. C.A. No. 9819 of 2009) came to be elected as the 'Kothari' of the Committee.

9. On 23-6-2009 the respondent Nos. 1 and 2 in Spl.C.A. No. 9819 of 2009 (hereinafter referred to as "the original applicants") filed an application, being application No. 41/25 of 2009, under Section 41A of the Bombay Public Trust Act, 1950 (for short, "the Act") before the Joint Charity Commissioner, Rajkot, praying for a declaration that the Resolutions passed by the Committee on 6-6-2009 are illegal, and therefore, they may be quashed and set aside. It was also prayed that the Resolution passed in the said meeting with respect to operating the Bank accounts of the trust is also illegal, and therefore, the opponents may be restrained to operate the same. Along with the said application, an application for interim injunction was also filed. In the said proceedings, the original opponents filed application Exh. 16 raising the preliminary issue of jurisdiction.

10. On 2-7-2009, the trust submitted a change report being Change Report No. 40/25 of 2009 before the Asst. Charity Commissioner, Junagadh. However, the same is pending adjudication and approval. The Joint Charity Commissioner, Rajkot rejected the said application Exh. 16, filed by the original opponents, vide order dated 7-7-2009.

11. Thereafter, application Exh. 17 was preferred by the original applicants for interim directions. On the said application, vide order dated 7-7-2009, the Joint Charity Commissioner issued directions that the administration of the trust shall be done by the newly elected members of the Committee and that the outgoing 'Kothari' shall not interfere with the policy decisions of the trust. The Joint Charity Commissioner also fixed the hearing of the injunction application on 11-8-2009.

12. Pursuant to the passing of the said order dated 7-7-2009, the original opponents submitted application Exh. 21 stating that the name of the nominated member {Petitioner in Spl.C.A. No. 9819 of 2009) has not been included in the order dated 7-7-2009. Therefore, vide subsequent order dated 7-7-2009, the Joint Charity Commissioner directed that the nominated member (Petitioner in Spl.C.A. No. 9819 of 2009) shall be entitled to participate in the meeting of the Committee till 21-7-2009.

13. The respondent No. 4 in Spl.C.A. No. 9819 of 2009 and others submitted their reply, along with written submissions, to the application under Section 41A of the Act filed by the original applicants before the Joint Charity Commissioner. An application was also filed by the original opponents praying to suspend the Resolutions, if any, passed in the meeting of the new Committee held on 3-8-2009.

14. The Joint Charity Commissioner, Rajkot, vide impugned order dated 7-9-2009, partly allowed the application preferred by the original applicants and quashed all the Resolutions passed by the new Committee in the first meeting held on 6-6-2009. The outgoing 'Kothari' was also directed to initiate necessary steps for calling a meeting of only the elected members of the Committee on 20-9-2009 and to take steps on 11-9-2009 for calling a General Meeting. It was also directed that in the event the outgoing 'Kothari' does not take steps for calling a meeting on 20-9-2009, the original applicant No. 1 shall be entitled to take steps for calling a meeting on 15-9-2009.

15. Pursuant to the passing of the impugned order, the original opponents filed an application praying to suspend the operation and execution of the said order dated 7-9-2009. However, it is reported that no order has been passed on the said application for stay preferred by the original opponents.

16. Being aggrieved by the impugned order passed by the Joint Charity Commissioner, Rajkot, the original opponent Nos. 2, 3 and 7 have preferred the present petitions.

17. Mr. S. N. Shelat, learned Sr. Advocate appearing on behalf of the petitioner in Spl.C.A. No. 9822 of 2009, has submitted that the Joint Charity Commissioner has no authority or jurisdiction to entertain and try the application submitted by the original applicants under Section 41A of the Act in view of the provisions of Section 22 of the Act. He has submitted that once there is a provision in the statute to deal with a particular situation, the authority cannot exercise the general or residuary powers under the Act.

17.1. Mr. Shelat has submitted that the original applicants had raised grievance with regard to the election of President/Vice-President in the first meeting of the Committee held on 6-6-2009. The said issue can be a subject-matter of inquiry only under Section 22 of the Act and not under Section 41A of the Act. Therefore, the authority concerned has no power to decide the validity or otherwise of the election of the members under Section 41A of the Act.

17.2. Mr. Shelat has further submitted that the authority has committed serious error in interpreting the provisions of Clause 12(2) of the scheme of the trust. He has submitted that a conjoint reading of the provisions of Clauses 12(2), 28(8)(B) and 44 of the scheme would go to show that the outgoing 'Kothari' has the authority to preside over, participate and cast his vote in the first meeting of the new Committee.

17.3. Mr. Shelat has also submitted that the petitioner in Spl.C.A. No. 9819 of 2009 is a member nominated by the 'Acharya' and the term of such member is co-extensive and co-terminus with the elected members of the Committee. The nominated member is a full-fledged member and also enjoys all the rights and privileges of an elected member under the scheme. Therefore, the election of a nominated member, as a Vice-President of the Committee, is proper and also in accordance with the provisions of the scheme. Hence, the authority has committed serious error in holding that the appointment of the petitioner in Spl.C.A. No. 9819 of 2009 as Vice-President of the Committee is contrary to the provisions of the scheme.

17.4. Mr. Shelat has also taken the Court through the dictionary meaning of the word 'Sattha' (power), as defined in the 'Bhagvadgomandal' (3rd Edn. 2007), in context of the powers and authority of the 'Kothari' under the scheme of the trust and has attempted to distinguish the terms 'power' and 'duty'.

18. In support of his submissions, Mr. Shelat has relied upon the following decisions:

18.1. In the case of Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community v. Charity Commissioner, Gujarat State, Ahmedabad 1992 (1) GLH 331, more particularly, on the following observations made in Paras 41, 42 and 51:

41. So far as the nature of directions, contemplated by Section 41A, is concerned, on analysing its contents and comparing them with the provisions of Sections 32 - 41 of the said Act, we have little doubt in our mind that they are administrative in character. They are intended to be issued for better and more efficient administration of a public trust. No question of adjudication of any controversy, dispute or lis arises thereunder. The object of Section 41A, as discussed earlier, is to streamline the administration of public trusts and to ensure more effective implementation and enforcement of the provisions of the said Act. Under these circumstances, since they are not quasi-judicial directions, the question of complying with principles of natural justice does not arise. We, therefore, cannot infer compulsion to hear a trustee before directions are issued to him under Section 41A as in the cases of quasi-judicial matters.

42. ...The language of Section 41A does not contemplate issuance of general directions to all the trusts. A general direction which may be necessary to be issued to all public trusts will not ordinarily be left to the discretion of the Charity Commissioner. Its very nature will require it to be made the subject-matter of a statutory rule under the said Act. Issuance of such a direction can hardly be left to the human weakness of the Charity Commissioner. Section 41A, therefore, in our opinion, contemplates cases of individual trusts which may be suffering on account of the human weaknesses or lapses of the trustees. Section 41A is to be brought into play where some exceptional, unforeseen, unexpected or peculiar situation has arisen in the administration of a public trust which is required to be cured by a remedial direction or where circumstances have arisen foreboding such a situation which requires a preventive measure in the form of a direction....

51. Bearing these principles in mind, let us approach Section 41A again. It enables the Charity Commissioner inter alia to issue direction for the proper administration of a trust. When, therefore, the Charity Commissioner decides to issue directions to a trustee, it presupposes that there is no proper administration of the trust. Next, Section 41 does not confer upon the Charity Commissioner the power to issue directions "if in his opinion" there is no proper administration of a trust, etc. Absence of such an expression - "if in his opinion" - indicates that the issuance of directions under Section 41A has not been left to the unfettered discretion and to his subjective satisfaction. In addition to what the said Act and Rules made thereunder prescribe, if any further obligations are to be imposed upon a trustee, he must reach the decision on objective facts. Next, any directions which he may issue must be subject to the provisions of the said Act. Their ambit is fettered by the provisions of the said Act and by the matters specified in the impugned Section. Lastly, any directions which he may issue have got to be complied with on the pain of penal consequences (vide Section 67). Though, the directions which the Charity Commissioner may issue under Section 41A constitute an administrative act on his part, in view of the attendant factors which we have set out above, the Charity Commissioner ought to afford to the concerned party an opportunity of being heard unless there is some imminent danger to the trust. Directions which he may issue may cast a reflection upon the management of the trust by a trustee or they may cast an aspersion or shadow of suspicion on him. No trustee, without being heard in his defence, should be dogged even by a silhouette of suspicion. Such a situation is likely to damage his public character. We are, therefore, of the opinion that the Charity Commissioner ought to hear a trustee or any other concerned person before issuing directions to him under Section 41A unless there is an apprehension of an imminent danger to the public trust.

18.2. Mr. Shelat has next relied upon an unreported decision of this Court rendered in Letters Patent Appeal No. 2 of 2004 dated 12-1-2004, more particularly, on the following observations made in Paras 4 to 7:

4. Learned Counsel appearing for the appellants contended before us that the powers under Section 41A of the said Act were confined to the matters which were covered by Sections 32 - 41 of the Act, and therefore, they did not extend to giving of a direction to hold elections. In support of his contention, the learned Counsel relied upon a decision of the Division Bench of this Court in Syedna Mohamed Burhanuddin v. Charity Commissioner reported in 1992 (1) GLH 331, more particularly, on the following observations made in Para 36 of the judgment:

The only purpose which, therefore, Section 41A serves is to empower the Charity Commissioner to issue directions in respect of matters falling under Sections 32 - 41.
Reliance was also placed on the decision of the learned Single Judge of this Court in Navinchandra Jasani v. Pravinchandra Jasani reported in: 2003 (1) GLR 392, more particularly, on Para 6 of the judgment in which the learned Single Judge observed:

Keeping in view the aforesaid observations made by the Division Bench, it is clear that the Joint Charity Commissioner will be entitled to exercise the power under Section 41A of the Act in respect to the items which are specified under Sections 32 - 41 of the Act.
5. The Court has neither in Syedna Mohammed Burhanuddin (supra) or in Navinchandra Jasani (supra) laid down that the powers under Section 41A cannot be exercised in any context other than the provisions of Sections 32 - 41 of the Act. In fact, in Para 41 and 42 of the decision in Syedna Mohammed Burhanuddin (supra), the Division Bench has clearly held that the directions contemplated by Section 41A were of administrative character and such directions are required to be issued for better and more efficient administration of a public trust. In Para 42, the Division Bench held that "Section 41A is to be brought into play where some exceptional, unforeseen, unexpected or peculiar situation has arisen in the administration of public trust which is required to be cured by remedial directions or where circumstances has arisen foreboding such situation which requires a preventive measure in the form of direction." Again, in Para 45 of the judgment, the Division Bench in context of the provision of Section 41A in terms held:

In addition to what the said Act and rules made thereunder prescribe, if any further obligations are to be imposed upon a trustee, he must reach the decision on objective facts.
It was held that though the directions which the Charity Commissioner may issue under Section 41A constitute an administrative act on his part, in view of the attendant factors which were set out, the Charity Commissioner ought to afford to the concerned party an opportunity of being heard, unless there is some imminent danger to the trust.

6. Under Section 41A which falls in Chapter VI providing for "control", power of Charity Commissioner to issue directions to trustees and other persons is spelt out. The power is to be exercised subject to the provisions of the Act as mentioned therein and is not confined only to the provisions of Sections 32 - 41 of the Act. Though, of course, it can be exercised even in respect of those provisions as held by the Division Bench in Syedna Mohamed Burhanuddin (supra) and by the learned Single Judge in Navinchandra Jasani (supra). Even if a narrow view as is sought to be canvassed on behalf of the appellant that the provisions of Section 41A can be invoked only in the context of Sections 32 - 41 is taken into consideration, it is obvious that without a validly elected administrative body, even the matters falling under Section 32 - 41 would warrant a direction on the part of the Charity Commissioner to hold elections to bring about an administrative body which functions in consonance with these provisions.

7. The power of the Charity Commissioner to issue directions to ensure that the trust is properly administered is by its very nature a wide power. Administration of a trust-would mean administration by a body which under the trust-deed is required to administer the same. When the trust-deed provides for a periodical election of the trustees for the purpose of administration of the trust and if the body is not constituted as required by the terms of the trust-deed, the Charity Commissioner would have powers to give directions for holding the election as contemplated by the trust-deed which will have a direct impact on the aspect of administration of the trust, because, in absence of a properly elected body as required by the trust deed, a proper administration of the trust cannot be ensured. The direction requiring an election to be held as per the terms of the trust-deed would, therefore, fall within the powers of the Charity Commissioner to ensure proper administration of the trust. 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. It is, therefore, clear that the directions to hold elections of the trustees in consonance with the terms of the trust-deed would clearly fall within the ambit of Section 41A of the Act.

18.3. Mr. Shelat has next relied upon another decision of this Court in the case of Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir Trust, Godhra v. Chokshi Ratilal Chandulal : 1996 (3) GLR 307, more particularly, on the following observations made in Paras 12 and 13:

12. Thus, from the aforesaid discussion, it emerges that irrespective of reference of any provision of the Act of 1950, the Charity Commissioner has wide supervisory power over a public trust to issue any direction of remedial or preventive nature to perform the duty in a certain manner or to refrain from performing one or the other duty in certain compelling circumstances, which calls for interference, to secure objectives of the public trust by a bona fide and efficient administration, with the limitation that he shall not exercise the powers which have been conferred on any other authority under the Act of 1950.

13. Applying to the facts of the case, the learned Charity Commissioner has rightly refrained from adjudication of dispute with respect to election of the trustees and left it to be decided by the Assistant Charity Commissioner under Section 22 of the Act of 1950. However, as an interim arrangement not only to ensure proper administration of the public trust but also to remove any chance of misutilisation of funds and the property taking advantage of presence of abruptly or dramatically inducted or landed trustees, the Charity Commissioner in the peculiar situation has issued the impugned directions which is in my view absolutely legal, just and proper. The incomprehensible act that four trustees (as per the Constitution of the Trust there must be 9 to 11 trustees) who did not raise any objection with respect to election of four co-trustees for years (ranging from 9 years to 13 years) but abruptly on 21-6-1994 raised their heads saying that the elections are void ab-initio, as such without notice, without matter being on agenda adopted resolution of their removal and also elected six new trustees, conveniently overlooking the fact that their names still continue in P.T.R. coupled with another important fact, i.e. the serious allegation of mismanagement and misutilisation of funds, laid requisite strong foundation for exercise of supervisory power by the Charity Commissioner, under Section 41A read with Section 69(a) of the Act of 1950.

18.4. Mr. Shelat has next relied upon another decision of this Court in the case of Swami Satyaprakashdasji Guru Ghanshyam Prasad Swami v. Joint Charity Commissioner, Rajkot 2000 (2) GLR 1450 : 2000 (2) GLH 327, more particularly, on the following observations made in Paras 11, 12 and 15:

11. So far as this order dated 17th October 1998 is concerned, this is the basic order under challenge and the proceedings in which the stay order has been passed has also been challenged on grounds more than one. On the basis of these pleadings and the submissions as have been made before this Court, this Court finds that there are three principle contentions which require consideration of this Court:

(1) Whether the Assistant Charity Commissioner under Section 22 of the Act has jurisdiction to enter into the question of validity or otherwise of the election of the Trustees?

(2) Whether the entire proceedings on the basis of which the order dated 17th October, 1998 has been passed stand vitiated because other Trustees were not served with any notice by the Asstt. Charity Commissioner, and therefore, the order dated 17th October, 1998 is rendered illegal?

(3) Whether there are any procedural lapses in the inquiry held by the Assistant Charity Commissioner so as to render the order dated 17th October, 1998 to be illegal?

12. For the purpose of considering the first principle contention as to whether the Assistant Charity Commissioner had the jurisdiction to enter into the validity or otherwise of the election of the Trustees is concerned, Section 22 of the Bombay Public Trusts Act is to be seen which is reproduced as under:

Section 22. Change. (1) Where any change occurs in any of the entries recorded in the register kept under Section 17, the trustee shall, within ninety 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) (New) 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 containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, forwarding it to the Sub-Registrar referred to in Sub-section (7) of Section 17.

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 Sub-section (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 therefore 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 as provided by this Act. The amendments in the entries so made shall, subject to any further amendments on the occurrence of a change, be final and conclusive.

Although, learned Counsel for both the sides have relied upon various provisions in this regard with reference to the Act and the Rules, I find that so far as the Civil Courts are concerned, the power of jurisdiction has been provided under Section 80 and according to Section 80 of the Bombay Public Trusts Act, save and expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which by or under this Act is to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive. Although, the civil proceedings in these proceedings had also been initiated by the parties represented through Mr. Thakkar, he too has submitted before this Court that the jurisdiction of the Civil Court is barred and he has also placed reliance on the provisions of Section 22 to argue that the inquiry into the validity of the election could be held by the Assistant Charity Commissioner under Section 22 and such a position according to Mr. Thakkar was sought to be contested by the learned Counsel by saying that having invoked jurisdiction by filing the Civil Suit, it is not open for the party to take a somersault to submit that the validity of the election could be gone into under Section 22. In such matters, when there are relevant provisions of law governing the matters, there cannot be any estoppel so far as the position of law is concerned, and therefore, de hors the conduct of the parties, the question is required to be decided on the basis of the relevant provisions contained in the Act itself. I do agree with the submissions made by Mr. Vakharia that no party can be allowed to approbate and reprobate, to blow hot and cold in the same breath, to play fast and loose, and to eat the cake and have it too and I also agree with the factual submissions made by Mr. Vakharia that the Civil Suit is still pending, yet the scope of Section 22 requires to be examined independent of the conduct of the parties. In cases where the very basis of the conduct of elections by the Returning Officer is challenged before making the entries in the Public Trust Register, and the Assistant Charity Commissioner has been clothed with the power to hold the inquiry as to whether any change was warranted or not, it is difficult to say that the Assistant Charity Commissioner could not embark upon the inquiry about the validity, correctness and propriety of the elections before effecting the change as desired on the basis of the elections, the validity of which had been questioned. Mr. Thakkar has cited the following cases in this behalf : (1) 1962 GLR 117 (Shantilal Khimchand v. Mulchand Dalichand) (2) : AIR 1983 Bom. 404 (Dinanath Ajabrao Jngole v. Shetkari Shikshan Prasarak Mandal, Wardlia), (3) : 1996 (3) GLR 307 (Acharyashree Mahaprabhujini Ramavaswala Bethak Mandir Trust, Godhra v. Chokshi Ratilal Chandulal, Paras 13 and 14 thereof), (4) : AIR 1982 Guj. 129 (Maganbhai Madhabhai v. Ambalal Bhikhabhai Patel, making reference under Section 56A, and (5) 1961 (2) GLR 564 (Kuberbhai Shivdas v. Mahant Purshottamdas Kalyandas), laying down that the Bombay Public Trusts Act is a complete Code and inquiry is conclusive. While making reference to the provisions as contained in Sections 22(3), 26T, 2(4), 18, 49 and 50, the suits relating to Public Trusts, Section 56A providing that the District Court can be approached and the powers of the Trustees to apply directly it has been submitted that an inquiry would certainly be made by the Assistant Charity Commissioner. A reference is also made to Para 14 of the affidavit of Mr. Patel at page Nos. 267 to 282. It has been submitted that the interim order of recounting and rejection of the change report No. 15 of 1998 has not been challenged and what has been challenged is the acceptance of the change report No. 142 of 1998 only. On the analysis of these relevant provisions, according to the scheme of the Act and the decisions which have been relied upon, this Court finds that the Bombay Public Trusts Act is a complete code and prima facie the jurisdiction of the Civil Court is barred under Section 80 of the Bombay Public Trusts Act and as has been held in the case of Shantilal Khimchand (supra), the validity of the appointments made to the Trust could be gone into on the basis of the provisions which are pari materia or identical, and therefore, it cannot be said that merely because in the instant case, the appointment of the Trustees was by election, the validity of the election could not be gone into by the Assistant Charity Commissioner, and accordingly, I hold that the Assistant Charity Commissioner in accordance with the provisions of Section 22 could enter into the inquiry with regard to the validity of the elections for the purpose of effecting the change so as to make the entries in the Public Trust Register.

12. The next contention is as to whether the other Trustees were required to be served with the notice by the Assistant Charity Commissioner or not before passing the order dated 17th October, 1998. In this regard, the contention raised by Mr. Nanavati and Mr. Vakharia that no notice had been given to the Trustees has not been disputed as a question of fact. All that has been said by Mr. Thakkar is that they were aware of the proceedings as they were going on before the Assistant Charity Commissioner and their rights were duly represented by the parties by Swami Satyaprakashdasji in the proceedings. Mr. Thakkar has very candidly admitted before this Court that no formal notice had been given to the other Trustees but his contention is that no such notice was required to be given because they themselves knew about the proceedings as they were going on before the Assistant Charity Commissioner and Swami Satyaprakashdasji has throughout acted for the trustees and they had not suffered any prejudice and it is also submitted that no independent notice is contemplated. He has also cited the cases of (1) : AIR 1991 SC 1309 (S.P. Gupta v. U.P. State Electricity Board), and (2) : 1998 (6) SCC 79 [Union of India v. Mustafa & Najibai Trading Co., at page 82 Head Note (F)]. He has also submitted that there is no statutory requirement of any formal notice and the argument with regard to the notice is only with reference to the principles of natural justice. These submissions as have been made by Mr. Thakkar have been sought to be contested by Mr. Vakharia and he has submitted that even if the inquiry under Section 22 is held by the Assistant Charity Commissioner, the proceedings in this inquiry even according to the provisions of Section 22(3) are quasi-judicial proceedings. He has also submitted that page 213 in Special Civil Application No. 9464 of 1998 would show that so far as the representation through Swami Satyaprakashdasji is concerned, the other trustees had given only the consent letters indicating their readiness to act as trustees but that did not mean that they had authorised through these consent letters even for the purpose of the proceedings in which any order to their prejudice could be passed so as to set aside the orders, which were in their favour. Mr. Vakharia has made a reference to the Bombay Public Trusts Rules, Rule Nos. 9 and 11 thereof and has also cited the case of Charity Commissioner, Ahmedabad v. State of Bombay (Now the State of Gujarat) reported in 1993 GLH 94, a Division Bench decision of this Court - Head Note (C) Para 69 at page 132 and also sought to distinguish the decision in the case of Saiyad Mohammad Bakar El-Edroos (Dead) by LRs. v. Abdullahbib Arab reported in : 1998 (4) SCC 343 Para 3 at page 346 on the basis that we are not concerned with the Presidency Small Cause Courts Act and we are in this case concerned with the Provincial Small Cause Courts Act and the reference has been made to Section 17. He has submitted that there is no such Section like Section 17 of the Presidency Small Cause Courts Act in the Provincial Small Cause Courts Act and reliance has also been placed on Section 50A on the basis of which it was submitted that the notice was not necessary when the action is suo motu.

15. I have considered the submissions made and the law cited on this aspect of the matter in detail by the parties. There is no doubt that even if an inquiry is permissible by the Assistant Charity Commissioner under Section 22 for the purpose of verifying as to whether any change was required and for that matter even if it is taken as has been held in the earlier part of this order that he could enter into the question of the validity of the elections which had been held, it has to be agreed on all hands that such proceedings are certainly the proceedings in the nature of quasi-judicial proceedings. While dealing with such matters which may ultimately result into the order to the prejudice of any party to the extent of denying him the benefit of declaration in his favour though he had been elected and so as to set aside such an election and to deny the entry of his name in the Public Trust Register, there cannot be any hearing by proxy or through someone else who had only been authorised to give the consent letter that the other Trustees were prepared to function as Trustees. No authorisation by the other Trustees had been given to Swami Satyaprakashdasji to act on their behalf. Since, the consent is required for the purpose of effecting the change, the consent letters were given to him by the other Trustees. Such consent letters had a very limited scope and on that basis, it cannot be said that the parties' consent to Swami Satyaprakashdasji was enough to take care of the interest of these Trustees for the purpose of adjudication of the validity of their election. It is established from the order dated 17th October, 1998 itself that the Assistant Charity Commissioner has gone into the validity of the elections and even ordered the inspection of the ballots, recounted them and on that basis the entire election which had been declared by the Returning Officer on 15th December, 1997 has been revised to the prejudice of such other Trustees to whom no notices had been given. The requirement of such notice is inherent by the very nature of the proceedings which are undertaken under Section 22. Right from the day one when the proceedings were initiated before the Assistant Charity Commissioner and he initiated enquiry under Section 22 so as to satisfy himself as to whether the change has occurred or not, the interest and rights of such other Trustees on the basis of such an election became open and the entire process was undertaken and the entire inquiry was held in their absence. When orders to the prejudice of a party is passed, such party may always have a genuine feeling that the order to his prejudice has been passed at his back and without hearing him and such course of action certainly militates against the basic tenets on which the quasi-judicial proceedings are required to be conducted. Even in cases when the orders which are penal in nature or orders which can be said to be passed to the prejudice of a particular party are required to be passed in exercise of administrative powers, the action inspired notice is required to be given to such parties. Here is a case in which a very valuable right of the other Trustees as to whether they could function as the Trustees of the Trust in question or not was open at large in this inquiry and it is no answer to say that they were aware of the proceedings going on with regard to the change report and in cases when the validity of an election of any elected party is made a subject-matter of inquiry, such party is certainly required to be given a formal notice so that he can come and defend himself. In the instant case, when the orders were passed about the inspection of the ballot papers and the inspector's report was obtained and on that basis the exercise of recounting was undertaken, how such an argument can be countenanced that all this exercise could be undertaken by the Assistant Charity Commissioner in absence of those who had been elected. As a matter of fact, the validity of the elected candidates cannot be even touched tangentially, unless the party concerned is put to a formal notice to come and defend his election. But in the instant case not only that their election has been set aside and in their place some other Trustees have been declared elected and inducted, they have been permitted to function as the Trustees. This Court is, therefore, of the considered opinion that the entire proceedings before the Assistant Charity Commissioner which have culminated into the order dated 17th October, 1998 are vitiated and such an order dated 17th October, 1998 cannot be sustained in the eye of law and the same deserves to be quashed and set aside.

18.5. In support of the submission that a person nominated as a member of a Committee has the right to vote, Mr. Shelat has relied upon another decision of this Court in the case of Atmarambhai Maganlal Patel v. State of Gujarat 2002 (3) GLR 1914, wherein, it has been held that persons nominated as members of a Committee under the Gujarat Agricultural Produce Markets Act, 1963 have the right to vote.

18.6. Mr. Shelat has also relied upon another decision of this Court in the case of Navinchandra Jasani v. Pravinchandra Jasani : 2003 (1) GLR 392, more particularly, on the following observations made in Para 6:

6. Keeping in view the aforesaid observations made by the Division Bench, it is clear that the Jt. Charity Commissioner will be entitled to exercise the power under Section 41A of the Act in respect to the items which are specified under Sections 32 - 41 of the Act. If the averments made in the application are considered, then it appears that the basis of the application was that the applicants therein before the Jt. Charity Commissioner were ascertaining that they have a right to be admitted as the members of the Trust since they are natives of Veraval and because of the conservative interpretation given by the Trustees of the Trust, they are not being admitted as the members. Therefore, if while administering the Trust, the question arises regarding the interpretation of making any expenses or running day-to-day affairs of the Trust, it might fall under the scope of Section 41A of the Act. However, the question of right to be admitted as the members of the Trust is an independent right which a person may be claiming upon the terms and conditions of the Trust against the Trustees of the Trust. In assertion of such right an inquiry is required to be held for the purpose of establishing the case as to whether the applicants who are ascertaining the right, are covered by the eligibility criteria of becoming the members or not. Such process in my view would require adjudication of the facts, and therefore, in view of the ratio of the Division Bench in case of Syedna Mohamed Burhanuddin v. Charity Commissioner, Gujarat State (supra) the adjudication process is not envisaged under Section 41A of the Act.
18.7. Mr. Shelat has next relied upon another decision of this Court in the case of Devkrushnadasji Guru Dharmadasji v. State of Gujarat : 2008 (3) GLR 1981 : 2008 (1) GLH 427, more particularly, on the following observations made in Paras 11, 14 and 20:

11. For the scope and ambit of power under Section 22 of the Act, Mr. Vakil relied upon the judgment of this Court in case of Shantilal Khimchand v. Mulchand Dalichand reported in 1962 GLR 117 and more particularly the observations made at page 121 it has been submitted on behalf of the petitioners by the learned Counsel that when there is express provisions under Section 22 of the Act, this Court may not expand the scope of Section 41A of the Act, so as to enable the Charity Commissioner to exercise the power in all such matters, where the Trustees are appointed or removed. Therefore, it has been submitted that this Court may issue appropriate directions.

14. It is hardly required to be stated that the observations made by the Court in its judgment are to be read in facts of that case and cannot be read in piecemeal, but are to be read keeping in view the other observations too. The first contention, raised before the Division Bench in this aforesaid decision, was that Section 41A is ultra vires Articles 25 and 26 and it was also alternatively contended that it be read down so as to hold that it has no application to the Public Trust of the religious denominations. The aforesaid aspect is apparent on the last four lines of Para 20 of the above referred decision of the Division Bench. Therefore, while examining the contents of Section 41A of the Act vis-a-vis the provisions of Articles 25 and 26 of the Constitution of India, the aforesaid observations are made and second aspect is that the Court also considered the question as to whether the provisions of Section 41A should be read down or not. This Court in the aforesaid decision in view of the observations made, which are reproduced hereinabove, expressly negatived the contentions that Section 41A of the Act violates Articles 25 and 26 of the Constitution of India to apply to the Trust of a religious denomination and it also negatived the contention that Section 41A should be read down. Therefore, the consequential effect is that Section 41A of the Act exists on the statute book as it was and this Court itself has bifurcated Section 41A into three parts : (a) for proper administration of a Public Trust; (b) for proper accounting of the income, and (c) for due appropriation and application of the income to the objects and for the purposes of the Trust. Therefore, the subsequent observations, which are pressed in service by the learned Counsel for the petitioners can be said as for touching to proper accounting of the income and its due appropriation and application of the income to the objects and purpose of the Trust.

20. There cannot be any dispute to the proposition that when there is express power provided under the statute for dealing with a particular situation, the general power or the residuary power cannot be made applicable. Section 22 of the Act read with Section 22A of the Act does provide for the submission of the change report and holding of inquiry. Therefore, in a given case, if the matter falls under Section 22 read with Section 22A of the Act, it cannot be the subject-matter of issuing directions under Section 41A of the Act. However, it is by now well settled that if the action is wholly without jurisdiction or beyond the scope and ambit of the power, the matter would fall outside the applicability of such provision. Therefore, merely because the change report is filed or is objected, would not be a sufficient ground to oust the jurisdiction under Section 41A of the Act by the Charity Commissioner. However, if the action of submitting change report or a change is in purported exercise of power for bringing (sic.) about the change, then in that case, it would be a case to be considered under Section 23 of the Act read with Section 22A of the Act. But, if the action of bringing (sic.) about the change, arid thereby, consequently filing the change report is de hors the trust-deed or wholly without jurisdiction on the part of any of the Trustees, it would be improper to construe that the matter would not fall in the domain of proper administration of the Trust under Section 41A of the Act, but would only fall under Section 22 read with Section 22A of the Act.

18.8. Mr. Shelat has next relied upon a decision of the Bombay High Court in the case of Lahudas Sambhaji Karad v. State of Maharashtra : AIR 1993 Bom. 315, more particularly, on the following observations made in Paras 24 and 25:

24. The underlying idea of Section 41A is that those directions should relate only to administration of the public trust or for proper accounting or for appropriate application of the income to the objects of the said trust. Such directions could be issued only in respect of the matters falling under Sections 32 - 41 of the Act and not beyond that because whatever loss or damage to the trust is likely to happen, that would be sequel to the breaches under Sections 32 - 41 of the Act. Bombay Public Trusts Act does not envisage any loss or damage beyond these provisions in respect of mismanagement or wrongful accounting. Elections are wholly beyond the purview of those provisions.

25. The main safeguards that have to be kept in mind by the Charity Commissioner are in respect of the property and other affairs of society. If there is negligence in the management of affairs of the society, directions could be issued but the scope of Section 41A would certainly not cover the interference with the process of election and also interference is respect of the members entitled to vote. They are the disputes which can be corrected by filing change reports after the elections under Section 22 of the Act.

18.9. Mr. Shelat has next relied upon a decision of the Aurangabad Bench of the Bombay High Court in the case of Raghunath S/o. Motiram Patil v. State of Maharashtra : 2008 (2) Mah. LJ 78, more particularly, on the following observations made in Para 7:

7. Section 41A of the Bombay Public Trust Act confers the power on the Charity Commissioner to issue directions from time to time. Such directions may be issued to any trustee of public trust or any person connected therewith. Such directions can be issued to ensure that the trust is properly administered and the income of the trust is properly accounted for and duly appropriated and applied to the objects of the trust. All that seems to be the object of Section 41A, is to ensure that the trust is properly administered and income thereof is properly and duly appropriated, accounted and applied to the objects and for the purpose of the trust. This power also to be exercised for prevention of waste and damage to the property of the trust. Thus, nature of the power vested with the Charity Commissioner is significant from this view point. The Charity Commissioner also can exercise power under Section 41A suo motu in consonance with the provisions laid down under Section 41A. Sub-section (2) of Section 41A makes its obligatory on every trustee or such person to comply with the directions issued under Sub-section (1).
18.10. Mr. Shelat, has therefore, submitted that the authority below was not justified in passing the impugned order in an application under Section 41A of the Act and that the outgoing 'Kothari' has the power to participate and cast his vote in the first meeting of the Committee in view of the Scheme of the trust. Therefore, the impugned order passed by the Joint Charity Commissioner deserves to be quashed and set aside.

19. Mr. Sudhir Nanavati, learned Sr. Advocate appearing on behalf of the petitioner in Spl.C.A. No. 9819 of 2009, over and above the submissions advanced by learned Sr. Advocate Mr. S. N. Shelat, has submitted that the petitioner was nominated by the 'Acharya' vide order dated 2-6-2009. He has drawn attention of the Court to the order passed in Trust Suit No. 1 of 1978, wherein, it has been observed that the nominated member would be a full-fledged member of the Committee enjoying all rights, privileges and will be equal along with the elected members.

19.1. Mr. Nanavati has submitted that a nominated member has rights in the Committee similar to what an elected member has. He has submitted that the nominated member has the right to actively participate in the proceedings of the Committee and also the right to vote in view of the provisions of Clauses 2,12 and 44 of the scheme. Hence, the restriction imposed on the nominated member is contrary to the scheme of the trust.

19.2. Mr. Nanavati has drawn attention of the Court to the observations made in Para 114(viii) of the judgment and the order rendered in Trust Suit No. 1 of 1978, which reads as under:

(viii) Viewed in this light, in my opinion, the question that the one nominated member appears to be in accordance with the history of the institution, the principle tenets of the Sect and also in its welfare and interest in future. I, therefore, disallow the contention raised by the learned Advocate Shri Mithani and hold that one nominated member be provided for in the committee and the powers for such nomination be given to defendant No. 1 Acharyashri at the same time, tenure of the nominated member may be made co-extensive and co-terminus with the tenure of the elected members. This, in my opinion, would largely take care of every apprehension that the learned Advocate Shri Mithani had. It is also clarified that the members so nominated will be a full-fledged member of the Committee enjoying all rights, privileges and will be equal along with the elected members.
19.3. Mr. Nanavati has submitted that while amending the scheme in Trust Suit No. 1 of 1978, the District Court has taken care of the fact that the amendment was not such, as would severe the link of the 'Acharya' with the Committee, which is going to look after the day-to-day administration. The 'nomination' clause would enable the 'Acharya' to convey his views to the Committee. Keeping the aforesaid aspect in mind, the District Court has vested the 'power' on the 'Acharya' to nominate a person in the Committee.

20. Mr. Prashant G. Desai, learned Sr. Advocate appearing on behalf of the outgoing 'Kothari', original opponent No. 1, has submitted that under the scheme, the outgoing 'Kothari' is required to call the first meeting of the new Committee within a period of eight days from the day the Committee is constituted. He has submitted that under the provisions of Clauses 12(2), 28(8)(B) and 44(2) of the scheme, the outgoing 'Kothari' has the right to participate and the right to cast vote in the first meeting of the Committee. Hence, the learned Joint Charity Commissioner has committed serious error in misinterpreting the relevant Clauses of the scheme, which govern the issue.

21. Mr. Mihir Joshi, learned Sr. Advocate appearing with Mr. S. P. Majmudar, on behalf of the original applicants, has submitted that under the scheme of the trust, the 'Kothari' is to be appointed from amongst the elected members. By placing reliance upon the provisions of Clauses 28(5) and 28(6) of the scheme, he has submitted that the outgoing 'Kothari' only has the right to preside over the first meeting of the Committee and that nowhere under the scheme, it is provided that the outgoing 'Kothari' also has the right to vote.

21.1. Mr. Joshi has taken the Court through the provisions of Clauses 12(2) and 21(1) of the scheme and submitted that the outgoing 'Kothari' only discharges the functions of a 'care-taker' until the first meeting of the new Committee is held. He has, therefore, submitted that the learned Joint Charity Commissioner was completely justified in quashing the Resolutions passed by the Committee on 6-6-2009.

21.2. Mr. Joshi has relied upon the decision in the case of Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir Trust (supra), which has been relied upon by learned Sr. Advocate Mr. S. N. Shelat and more particularly, on the observations made in Para 12 therein.

21.3. Mr. Joshi has also relied upon the decision in the case of Devkrushnadasji Guru Dharmadasji (supra) and more particularly, on the following observations made in Paras 19 and 22:

19. In view of the aforesaid observations, it can be said that under Section 41A of the Act, the Charity Commissioner has power to issue the directions to any trust, trustee or public trust or any person connection therewith to ensure that such trust is properly administered.

22. Therefore, under such circumstances, it cannot be said that when the action is wholly without authority for maintaining the proper administration of the Trust, the only recourse available is Section 22 read with Section 22A of the Act and not by invoking of the power under Section 41A of the Act as that of the Charity Commissioner. The reliance placed upon the decision of this Court in the case of Shantilal Khimchand (supra) is ill-found inasmuch as this Court, in the said decision had no occasion to consider the case for exercise of the power under Section 41A, vis-a-vis the powers under Section 22 of the Act nor it was a case before the Division Bench in the aforesaid decision that if the action of bringing about a change is wholly without jurisdiction, whether power under Section 41A can be invoiced for proper administration of the trust or not. Therefore, such decision is of no help to the petitioner.

22. Mr. B. S. Patel learned Counsel has supported the order passed by the learned Joint Charity Commissioner and has submitted that looking to the scheme of the trust and the provisions of the Act, the said authority was completely justified in passing the impugned order. Hence, this Court may not interfere with the impugned order passed by the authority below.

23. Mr. P. S. Champaneri, learned Counsel appearing on behalf of the respondent-Joint Charity Commissioner, has taken the Court through the provisions contained in Chapter VI of the Act, which deals with the issue regarding 'Control' and also Chapter XI, which deals with the issue regarding "Functions of Charity Commissioners, procedure, jurisdiction and appeals". He has submitted that looking to the said provisions of the Act, it was well within the powers of the Joint Charity Commissioner to entertain and pass the impugned order on the application under Section 41A of the Act. He has also drawn attention of the Court to the provisions of Section 69 of the Act.

23.1. Mr. Champaneri has placed reliance upon the observations made in Paras 5 and 6 of the unreported decision of this Court rendered in L.P.A. No. 2 of 2004, referred to hereinabove and submitted that the authority concerned was justified is passing the impugned order. Hence, this Court may not interfere in this petition under Article 226 of the Constitution of India.

24. Heard learned Counsel for the respective parties and perused the documents on record. Before proceeding further, it would be beneficial to highlight certain facts in the backdrop of which the present petitions came to be filed.

25. On 31-5-2009 the election for appointment of new members of the Committee of the trust was held and the results of the said election were declared on 1-6-2009. In the said election, the original applicants, i.e. respondent Nos. 1 and 2 along with respondent Nos. 10 and 11 (In Spl.C.A. No. 9819 of 2009) were elected from the 'Grihasth' constituency, whereas, respondent Nos. 5, 8 and 9 (In Spl.C.A. No. 9819 of 2009) were elected from the 'Tyagi' constituency. The petitioner in Spl.C.A. No. 9819 of 2009 had also contested the elections, but had lost. However, he was nominated by the 'Acharya', under the provisions of Clause 3(A) of the scheme, vide order dated 2-6-2009. No member from the ' Brahmachari' division of the 'Tyagi' constituency was elected. Thus, in all, seven trustees were elected in the election held on 31-5-2009 and one was nominated by the 'Acharya'.

26. The original opponent No. 1, respondent No. 4 in Spl.C.A. No. 9819 of 2009, was the outgoing 'Kothari' at the time when the first meeting took place. The new Committee was constituted on the day when the results of the election was declared, i.e. on 1-6-2009. Therefore, as required under Clause 12(1) of the scheme, the first meeting of the new Committee was to be held on or before 9-6-2009. On 3-6-2009, the outgoing 'Kothari' informed the elected and nominated members regarding the holding of the first meeting of the new Committee on 6-6-2009.

27. Accordingly, on 6-6-2009, the first meeting of the new Committee was held. In that meeting, the following decisions were taken by passing six different resolutions:

(a) Resolution No. 1 : Respondent No. 5 in Spl.C.A. No. 9819 of 2009 was appointed as the President of the Committee.

(b) Resolution No. 2 : Petitioner in Spl.C.A. No. 9819 of 2009 was appointed as the Vice-President of the Committee.

(c) Resolution No. 3 : Respondent No. 6 in Spl.C.A. No. 9819 of 2009 was appointed as the 'Kothari' of the Committee.

(d) Resolution No. 4 : Necessary discussion to be done in the next meeting in view of the provisions of Clause 12(1)(4).

(e) Resolution No. 5 : Necessary discussion to be done in the next meeting in view of the provisions of Clause 12(1)(5).

(f) Resolution No. 6 : The Bank accounts of the Temple Board could be operated and other monetary dealings could be done with the signature of the President of the Committee (Respondent No. 5 in Spl.C.A. No. 9819 of 2009) and any one out of the three persons, viz. the petitioner and respondent Nos. 6 and 8 of Spl.C.A. No. 9819 of 2009.

28. However, against the aforesaid decisions taken in the first meeting of the Committee, the original applicants preferred application under Section 41A of the Act before the Joint Charity Commissioner, which, ultimately, led to the passing of the impugned order, which is subject-matter in these petitions.

29. Before we go into the legality of the impugned order passed by the Joint Charity Commissioner, it would be relevant to take note of the scope and ambit of said Section 41A of the Act, which reads as under:

41A. : For Gujarat only - 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 purpose 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).

30. A plain reading of the above proviso (sic.) would make it clear that it does not contemplate issuance of directions in general to a trust. It contemplates the issuance of directions for the proper administration of a trust. Reading the proviso more minutely, it can be said that it applies to issues - involving proper administration of a public trust, proper accounting of its income and due appropriation and application of the income to the objects and for the purposes of the trust. The words - "involving proper administration of a public trust" - clearly shows the intention of the Legislature that it empowers the Charity Commissioner to issue directions in matters where the administration of a public trust is not done in accordance with the trust-deed or the scheme, as the case may be.

31. It is true that in the unreported decision of the Division Bench of this Court, rendered in L.P.A. No. 2 of 2004 dated 12-1-2004, directions were issued for conducting election of the trustees, as per the trust-deed, by the Charity Commissioner in exercise of powers under Section 41A of the Act. If we go through the said decision carefully, the Division Bench, in L.P.A. No. 2 of 2004, has supplemented the view in respect of the scope and ambit of Section 41A of the Act, after considering the principle laid down in the earlier decision of this Court in Syedna Mohamed Burhanuddin's case (supra). Therefore, it can be said that under Section 41A of the Act, the Charity Commissioner has the power to issue directions to a trust or to any person connected therewith, to ensure that such trust is properly administered.

32. If the averments made in the application being Application No. 41/25 of 2009, filed by the original applicants are considered, it basically pertain to challenging the powers of the outgoing 'Kothari' under the scheme, challenging the authority of the 'Acharya' to nominate a member in the Committee of the trust, challenging the validity of appointment of one of the members to a particular post and also the right of such member to participate in the meeting of the Committee and to cast his vote.

33. Essentially, the issues relating to running the day-to-day affairs of a public 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 under Section 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 under Section 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 de hors the scheme of the trust, then it would fall within the domain of "proper administration of the trust" under Section 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 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 travelled beyond the scope of Section 41A of the Act, as it pertained to issues relating to the proper administration of the trust.

36. The next question which requires consideration is the right of the outgoing 'Kothari' to participate in the meeting of the Committee and to cast his vote. Under the provisions of Clause 12(1) of the scheme, it is mandatory for the newly constituted Committee to hold the first meeting of the Committee within a period of eight days from the date it is constituted; and under the provisions of Clause 12(2) of the scheme, a duty is cast upon the outgoing 'Kothari' to call the first meeting of the new Committee within the said period. It has been specifically provided in the latter part of Clause 12(2) of the scheme that while calling the first meeting of the new Committee, the outgoing 'Kothari' is empowered to discharge necessary functions, except doing any act in the capacity of a 'Kothari' or exercising the powers of a 'Kothari'. It has also been specifically provided that the 'Kothari' is entrusted with the above responsibility of calling the first meeting of the new Committee only for the purpose of appointment of the President of the new Committee and that his duty shall come to an end, as and when the President of the new Committee is appointed. Clause 28(8)(B) of the scheme provides that after remaining present in the meeting of the Committee, the 'Kothari' shall take part in the discussion relating to matters, other than those relating to the appointment or dismissal/suspension of the 'Mukhya Kothari' or the 'Kothari' or relating to investigation against a 'Kothari'. It has also been specifically provided therein that the 'Kothari' shall also have the right to vote.

37. On a conjoint reading of the provisions of Clauses 12(2) and 28(8)(B), it is clear that the outgoing 'Kothari' is entrusted with the duty of calling upon the first meeting of the new Committee and also with the duty to ensure that the President of the new Committee is appointed. It has been stated, in unambiguous terms, in Clause 12(2) of the scheme that the duty of the outgoing 'Kothari' will come to an end only after the President of the new Committee is appointed. The powers of the outgoing 'Kothari' have been well-defined inasmuch as it has also been specifically provided that while exercising his duties, as provided under Clause 12(2) of the scheme, he shall not discharge the functions of a 'Kothari' or will not exercise the powers of a 'Kothari'.

38. Keeping in mind the above clauses of the Act, and when the outgoing 'Kothari' is entrusted with the duty of ensuring that a President is appointed, it is understood that he has the right to cast his vote. When a duty is cast upon the outgoing 'Kothari' to call the first meeting of the new Committee and to ensure that a President is appointed in the said meeting, then such duty impliedly confers the right to vote, as it has been specifically spelt out in Clause 12(2) of the scheme that the 'Kothari' is empowered to discharge necessary acts, so as to see that the first meeting is held and the President is appointed. Thus, looking to the provisions contained in Clauses 12(2) and 28(8)(B) of the scheme, I am of the opinion that the right to vote impliedly flows from the scheme. If the 'Kothari' is authorized to preside over the first meeting of the new Committee, then he has the right to participate in the said meeting and also to express his opinion by casting his vote. Therefore, the power to preside over the first meeting of the new Committee and the right to vote exercised by the outgoing 'Kothari' essentially flows from the scheme and I do not find that the said right is de hors the scheme of the trust.

39. However, the outgoing 'Kothari' does not have any right or authority under the scheme to take part in the selection process of any office bearer/s, after the President of the Committee is appointed. In this case, by taking part in the selection process of appointment of the Vice-President of the Committee, the outgoing 'Kothari' has travelled beyond the scope of Clause 12(1) of the scheme and has also performed an act, which, he was, otherwise, not authorized to perform. As discussed in the foregoing paragraph, the duty of the outgoing 'Kothari' gets over, as and when the President of the Committee is appointed. By taking part and by casting vote in the election process of the Vice-President of the Committee, the outgoing 'Kothari' has exercised powers, which are not vested in him under the scheme. Therefore, the entire election process of the appointment of the Vice-President is contrary to the scheme of the trust and is required to be quashed and set aside.

40. So far as the issue regarding appointment of the petitioner in Spl.C.A. No. 9819 of 2009 as the Vice-President of the Committee is concerned, Clause 12(1) of the scheme specifically provides as to who could be appointed to the post of Vice-President of the Committee. By passing Resolution No. 2, the Committee has appointed the petitioner in Spl.C.A. No. 9819 of 2009, as the Vice-President. However, his appointment is de hors the scheme of the trust since the person who has been elected as the President of the Committee belongs to the 'Grihasth' constituency and Clause 12(1)(2) of the scheme expressly provides that a member from a constituency, similar to that of the President, cannot be appointed to the post of Vice-President of the Committee and that only an elected member, from amongst the 'Tyagi' constituency, could be appointed as the Vice-President. Admittedly, the petitioner in Spl.C.A. No. 9819 of 2009 is not an elected member but, a nominated member and therefore, he cannot contest the election for the post of President or Vice-President of the Committee.

41. However, so far as his nomination by the 'Acharya' is concerned, the same is within the purview of the scheme, inasmuch as Clause 3(A) empowers the 'Acharya' to nominate a person as a member of the Committee. The petitioner has been nominated by the 'Acharya' to be a member of the Committee, vide order dated 3-6-2009, which is well within the provisions of the scheme. Hence, so far as the nomination of the petitioner (In Spl. C.A. No. 9819 of 2009), as a member of the Committee is concerned, I do not find any illegality with the same.

42. The 'Acharya' has been conferred with the power under the scheme to nominate a member in the Committee on the basis that being the undisputed head of the institution and also the spiritual head of the Sect, it was necessary that the 'Acharya' could convey his views on matters of the temple and its administration, to the Committee, which was going to look after the day-to-day administration of the trust.

43. Under the scheme, provisions have been made for the representation of different categories and votes for the voters. Before the scheme in question was framed, the position of the 'Acharya' was that of a powerful monarch. However, by bringing in the elected Committee, his position was altered. Therefore, the need was felt to give the 'Acharya' the status of a different franchise of an electorate since the alteration in the scheme should not be such which shall completely sever the link of the 'Acharya' with the Committee which was going to look after the day-to-day administration of the trust.

44. Accordingly, a power was conferred upon the 'Acharya' to nominate a member in the Committee, so as to afford a link between the sole trustee and the Committee. While conferring the said power upon the 'Acharya', due care has been taken by providing that the tenure of such nominated member shall be co-extensive and co-terminus with the tenure of the elected members. It was also provided that such nominated member will be a full-fledged member of the Committee, enjoying all rights, privileges and will be equal along with the elected members.

45. In view of the above discussion, the settled legal position and the scheme of the trust, I am of the view that the authority below has not committed any error in entertaining the application under Section 41A of the Act filed by the original application. However, the directions issued in the impugned order are required to be modified in accordance with the purpose of the Act and the essence of the scheme of the trust.

46. For the foregoing reasons, both the petitions are partly allowed. The impugned order dated 7-9-2009 passed by the Joint Charity Commissioner, Rajkot in Application No. 41/25 of 2009 is modified to the extent herein below:

(A) It is held that the outgoing 'Kothari' has the right to preside over, participate and vote in the first meeting of the Committee for election of the President of the Committee.

(B) The role of the outgoing 'Kothari' comes to an end soon after the President of the Committee is appointed.

(C) It is further held that the outgoing 'Kothari' has no right under the scheme of the trust to preside over or to participate or to vote in the first meeting of the Committee for appointment of the Vice-President of the new Committee and other Agenda/s.

(D) It is also held that a person nominated by the 'Acharya' has the right to participate and to cast his vote in the first meeting of the Committee, but he cannot contest the elections for the post of President and/or Vice-President of the Committee.

(E) The outgoing 'Kothari' (Respondent No. 4 in Spl.C.A. No. 9819 of 2009) will re-convene the meeting of the Committee, within a period of EIGHT DAYS from today, as envisaged under the scheme and will abide by the provisions contained in Clause 12(2) of the scheme.

(F) Till the meeting, as stated in (C) hereinabove, is convened, the stay granted by this Court, vide order dated 17-9-2009, will remain in operation.

46.1. With the above observations and directions, the petitions stand disposed of. Rule is made absolute to the above extent with no order as to costs. Direct Service permitted.

ORDER IN CIVIL APPLICATIONS

Since, the main matters have been disposed of, the Civil Applications shall not survive. Hence, they also stand disposed of. (SBS) Petitions partly allowed
OR

Already A Member?

Also