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Shah Jagmohandas Purshottamdas v/s Jamnadas Vrajlal Gandhi


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    Civil Revision 347 Of 1962

    Decided On, 12 November 1962

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE P.N. BHAGWATI

    For the Appearing Parties: A.D. Desai, I.M. Nanavati, Advocates.



Judgment Text

P.N. BHAGWATI

(1) There is in the town of Dakore an ancient temple of Shri Ranchhod Raiji which has since hundreds of years attracted large numbers of devotees from all over India and become a place of pilgrimage and worship for Hindus of all sects and denominations. Towards the end of the last century disputes arose as to the management of the temple and at least two suits were brought in respect of the management. In one of the suits a Scheme for management of the temple was framed by the District Court of Ahmedabad which was the Court then having jurisdiction over the town of Dakore and on appeals being brought to the High Court of Bombay the High Court made substantial modifications in the Scheme as framed by the District Court and sanctioned the Scheme so modified. It is rather important to note that in the Scheme as originally framed there were various functions assigned to the District Judge of Ahmedabad but when the Scheme was notified by the High Court a departure was made in that the references as to the District Judge of Ahmedabad were deleted and instead in relation to some of the functions under the modified Scheme the District Court of Ahmedabad was substituted for the District Judge of Ahmedabad. What significance must attach to this change of expression is a matter which I shall discuss a little later; but suffice it to state for the present that while modifying the Scheme the High Court made a change and used the expression District Court of Ahmedabad in substitution of the expression District Judge of Ahmedabad which was used in the Scheme as originally framed by the District Court. From the decision of the High Court the matter was carried in appeal to the Judicial Committee of the Privy Council; but the Judicial Committee of the Privy Council refused to interfere with the Scheme as sanctioned by the High Court and affirmed the Scheme subject to a few minor modifications which were suggested by Their Lordships of the Judicial Committee and which were assented to by counsel for the respondents.

(2) The Scheme as finally sanctioned by the Judicial Committee of the Privy Council provided for the administration of the properties of the temple to be carried on by a Trust Committee called The Dakore Temple Committee. The Committee was to consist of five members all of whom were required to be Hindus professing faith in Shri Ranchhod Raiji. The first five members of the Committee were appointed by Clause 3 of the Scheme while the future constitution of the Committee was provided in Clauses 4 5 6 and 7 which were in the following terms:-

"4. The future members of the Committee shall be selected or nominated as the case may be in the manner specified below:- 1. Three members shall be selected by the District Court of Ahmedabad. 2. The fourth member shall be such male member of the Tambekar family as is for the time being the manager of the Swasthan property or a representative from the Tambekar family provided that if the manager for the time being be under disability then the 4th member shall be such person as the District Court shall appoint to act on his behalf during the disability under the Swasthan Scheme. 3. The fifth member shall be a nominee of the Sevak subject to the qualification contained in Clause 6. 5. All the members of the Committee shall retire at the end of five years from the date of this Scheme but they shall be eligible for re-appointment subject to the qualification contained in Clause 6 as regards the nominee of the Sevaks. The term of membership shall thence-forward be for life except in the case of anyone appointed by the District Court to act during disability as aforesaid. 6. The nominee of the Sevaks shall be entitled to be on the Committee for the first five years. At the end of this term the District Court of Ahmedabad shall determine whether the representation of the Sevaks should be further continued or whether some other arrangement should be made for keeping up the number of the members to five. If the District Court of Ahmedabad decides in favour of the representation the nominee of the Sevaks shall be appointed on the Committee for life. 7. Any member of the Committee shall on good cause shown be liable to be removed by the District Court of Ahmedabad. Any vacancy occurring in this or in any other manner shall be filled up by the District Court of Ahmedabad subject to the reservation contained below: When the Tambekar member vacates his seat his place will be occupied by another representative from the Tambekar family subject to the proviso in Clause 4. When the nominee of the Sevaks vacates his seat his place will (subject to the reservation contained in Clause 6) be occupied by another nominee of the Sevaks."

(3) Clause 12 of the Scheme enumerated the powers of the Committee and sub-clauses (7) and (16) of Clause 12 which are material for the purpose of the present Revision Applications provided that the Committee shall have power:-

"(7). To have all the rules framed by them sanctioned by the District Court of Ahmedabad to the intent that the rules when sanctioned shall have the same force as if they were part of this Scheme." "(16). To sell any immovable property belonging to the Temple after obtaining sanction therefor from the District Court of Ahmedabad."

(4) Liberty to apply for alteration modification or addition in respect of the Scheme was also reserved under Clause 20 which declared that:-

"(20). The provisions of the Scheme may be altered modified or added to by an application to His Majestys High Court of Judicature at Bombay."

(5) Ever since the Scheme was finally sanctioned by the Judicial Committee of the Privy Council the affairs of the Temple have been carried on in accordance with the provisions of the Scheme.

(6) Before I proceed with the narration of the history leading up to the present dispute I may mention as an event in that history-an event on which nothing turns-that though at the date when the Scheme was finally sanctioned by the Judicial Committee of the Privy Council the town of Dakore was within the jurisdiction of the District Court of Ahmedabad the District Court of Ahmedabad ceased to have jurisdiction over the town of Dakore some few years later since the territories now forming part of the district of Kaira-which territories comprise the town of Dakore-were taken out of the District of Ahmedabad and constituted into the District of Kaira with its own District Court so that the District Court of Kaira acquired jurisdiction over the town of Dakore. Corresponding to this change a modification was made in the Scheme substituting the words District Court of Ahmedabad by the words District Court of Kaira. The rest of the Scheme however remained unaltered.

(7) Prior to his death which occurred on or about 4th July 1961 Shri Parshottamdas Thakordas a leading citizen of Bombay well known for his piety and philanthropy was a member of the Committee having been appointed as such by the District Court under Clause 7 of the Scheme. On his death a vacancy occurred which required to be filled up and the Committee therefore passed a resolution on 23rd July 1961 authorizing the Chairman to request Shri Ramanlal G. Saraiya to agree to be appointed a member of the Committee so that his name could be recommended to the District Court for appointment. Another resolution was also passed by the Committee on the same day to the effect that if Shri Ramanlal G. Saraiya was unwilling to be appointed the Chairman be Authorized to recommend the name of either Shri Chatrabhujdas Chimanlal or Shri Navnitlal Ranchhoddas to the District Court. It appears that Shri Ramanlal G. Saraiya was thereafter contacted by the Chairman but he expressed his unwillingness to be appointed a member of the Committee. The Committee thereupon passed another resolution on 13th August 1961 the purport of which was that since Shri Ramanlal G. Saraiya had declined to be a member the name of Shri Navnitlal Ranchhoddas be recommended to the District Court for appointment as a member of the Committee. Pursuant to this resolution Opponent No. 1 who is the Manager of the Temple filed an application being Civil Miscellaneous Application No. 50 of 1961 in the District Court of Kaira at Nadiad for appointment of Shri Navnitlal Ranchhoddas as a member of the Committee in the vacancy caused by the death of Shri Parshottamdas Thakordas. The application was admittedly made under Clause 7 of the Scheme. On the application public notices were issued by the District Court and as a result of the public notices various persons including certain Sevaks appeared either to support or to oppose the appointment of Shri Navnitlal Ranchhoddas as a member of the Committee. The petitioners one of whom is a Sevak opposed the appointment and contended that instead of Shri Navnitlal Ranchhoddas Shrimati Sumatiben Morarji should be appointed to fill the vacancy for reasons set out in their written statement. This suggestion was however opposed by Opponents Nos. 1 and 6 to 8 who maintained that Shri Navnitlal Ranchhoddas and not Shrimati Sumatiben Morarji should be appointed as a member of the Committee. The application was heared on two or three different occasions and on the last date of the hearing an application was made on behalf of petittioner No. 1 that the Charity Commissioner was a necessary party to the proceeding under the provisions of the Bombay Public Trusts Act 1950 and that the Charity Commissioner should therefore be joined in the proceeding or at any rate notice of the proceeding should be served on him. The learned District Judge however rejected the application and after hearing the parties on merits made an order appointing Shri Navnitlal Ranchhoddas as a member of the Committee to fill the vacancy caused by the death of Shri Parshottamdas Thakordas. The petitioners being aggrieved by this order appointing Shri Navnitlal Ranchhoddas in preference to Shrimati Sumatiben Morarji as a member of the Committee preferred Revision Application No. 347 of 1962 in this Court. The Charity Commissioner also preferred Revision Application No. 349 of 1962 complaining of the making of the order without notice to him.

(8) At the outset Mr. I. M. Nanavati learned advocate appearing on behalf of Opponents Nos. 1 and 5 to 8 raised a preliminary objection to the maintainability of the Revision Applications and since the preliminary objection if well-founded would be fatal to the Revision Applications rendering it unnecessary to give any decision on the merits I heard the parties on the preliminary objection which is now being disposed of by this judgment. The preliminary objection was founded on the well-known distinction between a Court acting as a Court of law and a presiding officer of a Court acting as a persona designata. Mr. I. M. Nanavati contended that the power conferred on the District Court to appoint a member of the Committee was conferred not on the District Court as a Court of law but on the presiding officer of the District Court namely the District Judge as a persona designata and that the District Judge in making an appointment of a member of the Committee therefore acted as a persona designata and not as a Court of law so as to attract the revisional jurisdiction of the High Court. The conclusion which Mr. I. M. Nanavati pressed for my acceptance following this line of reasoning was that the District Judge having made the impugned order as a persona designata and not as a Court of law no Revision Application could lie against such order under section 115 of the Code of Civil Procedure and that the Revision Applications preferred by the petitioners and the Charity Commissioner were therefore not maintainable. Mr. A. D. Desai learned advocate appearing on behalf of the petitioners however resisted this conclusion and contended that the power to appoint a member of the Committee was conferred in terms clear and explicit on the District Court and the District Court could mean only the District Court as a Court of law and not District Judge acting as a persona designata. Mr. A. D. Desai pointed out that there might have been some scope for doubt or equivocation if the power had been conferred on the District Judge but the power having been conferred in clear and unambiguous language on the District Court and not on the District Judge it was clear that it was the District Court as a Court of law and not the District Judge as a persona designata who was entrusted with the exercise of the power. The District Court in making the appointment of Shri Navnitlal Ranchhoddas therefore argued Mr. A. D. Desai acted as a Court of law and not as a persona designata and the order of the District Court was therefore subject to the revisional jurisdiction of the High Court. These were broadly the rival contentions of the parties on the preliminary objection and they raised a question of some importance-possibly bearing in some measure also on the merits of the dispute-which I shall now proceed to answer. Before however I do so I must mention that the argument advanced on behalf of Opponents Nos. 1 and 5 to 8 by Mr. I. M. Nanavati was a very able and careful argument but for reasons which I shall presently state it must fail to carry conviction.

(9) It was common ground between the parties-and having regard to the long line of decisions commencing from Lambodar v. Dharanidhar (XXVIVI Bombay Law Reporter 64) and ending with Keshav Ramchandra v. Municipal Borough Jalgaon. (XLVII Bombay Law Reporter 851) it could not be otherwise-that if in making an appointment of a member of the Committee the District Judge acted not as a Court of law but as a persona designata no revision application could lie against his order. The main controversy between the parties therefore centred round the question whether on a true construction of the various provisions of the Scheme the power to appoint a member of the Committee was vested in the District Court as a Court of law or was vested in the presiding officer of the District Court namely the District Judge as a persona disignata.

(10) The question primarily turns on the interpretation to be put on the language of Clause 7 for it is in this clause that the power to appoint a member of the Committee is to be found. Clause 7 provides that any member of the Committee shall on good cause shown be liable to be removed by the District Court of Kaira and any vacancy occurring in this or any other manner shall be filled up by the District Court of Kaira subject to certain reservations with which I am not concerned in this Revision Application. The power to appoint as also to remove a member of the Committee is thus conferred on the District Court of Kaira. The question is what in its proper context does the expression District Court signify ? Does it mean the District Court as a Court of Law or does not it mean the presiding officer of the District Court as persona designata ? If the expression used were District Judge there might not have been much difficulty in taking the view that the reference to the District Judge was as a persona designata-as an officer described by his official designation-and not as constituting the Court though even in such a case the matter would not have been free from doubt and there might have been considerable debate on it. But the expression used is District Court and not District Judge. The clause in terms clear and explicit entrusts the exercise of the power to appoint or remove a member of the Committee to the District Court and not to the District Judge and reading the clause in its natural and ordinary sense it is clear that the District Court referred to in the clause must mean the District Court as a Court or law and not the presiding officer of the District Court namely the District Judge as a persona designata. There is a well-known principle of interpretation which also guides me to the same conclusion and it is that where the Legislature uses words which have well-recognized legal meanings it must be assumed that the words are used in the sense which they bear according to such well-recognized meaning and that it always requires the strong compulsion of other words in a statute to induce the Court to alter the well-known meaning of a legal term. This principle though enunciated in regard to construction of statures is equally applicable in a case of construction of provisions of a Scheme since after all principles of interpretation are merely guides to enable the Court to collect the intention of the author of the instrument whether the author be the Legislature which made the enactment or the Court which framed the Scheme. Now it cannot be disputed and this is clearly borne out by a reference to the provisions of sections 2(4) and 3 of the Code of Civil Procedure and sections 5 7 and 8 of the Bombay Civil Courts Act 1869 that according to legal terminology there is a well-recognized distinction between a District Court and a District Judge the District Court is the principal Court of original civil jurisdiction in the district which hears the appeals from all decrees and orders passed by the subordinate Courts and which is in its turn subordinate to the High Court and subject to the revisional jurisdiction of the High Court while the District Judge is the Judge who presides over the District Court. It must therefore be presumed that when the High Court sanctioned the Scheme and provided that the power to appoint or remove a member of the Committee shall be vested in the District Court the High Court used the expression District Court according to its well-recognized legal meaning and meant the principal civil Court of original jurisdiction in the District which was subordinate to the High Court and subject to its revisional jurisdiction and not the District Judge presiding over such Court. If the intention of the High Court were to leave the matter of appointment and removal of members of the Committee to the presiding officer of the District Court as a persona designata the High Court would have certainly used the more apt expression namely District Judge. In this connection I might also refer to another rule of construction equally well-settled namely that if it appears that there are two expressions which might have been used to convey a certain intention but one of those expressions will convey that intention more clearly than the other it is proper to conclude that if the Legislature uses that one of the two expressions which would convey the intention less clearly it does not intend to convey that intention at all and in that event it becomes necessary to try to discover what intention it did intend to convey. This rule of construction also leads to the same conclusion. Even if it be assumed that both the expressions District Court and District Judge are used to convey the intention that the power to appoint or remove members of the Committee should be vested in the District Judge as a persona designata the expression District Judge would convey that intention more clearly than the expression District Court and it would therefore be legitimate to hold that since the High Court used the expression District Court which would convey the intention less clearly the High Court did not intend to convey that intention at all and the intention of the High Court was to vest the power not in the District Judge as a persona designata but in the District Court as a Court of law. This argument of course proceeds on the assumption that the intention to vest the power in the District Judge as a persona designata could be conveyed by the use of the expression District Court. But as I have pointed out above in my opinion the expression District Court as used by the High Court can only mean the District Court as a Court of law and not the District Judge as a persona designata.

(11) There is also another consideration which must weigh with me in reaching the same conclusion. It is reasonable to presume that the same meaning is implied by the use of the same expression in every part of a document. Accordingly in ascertaining the meaning to be attached to a particular word in a clause of the document though the proper course would be to ascertain that meaning if possible from a consideration of the clause itself yet if the meaning cannot be so ascertained other clauses may be looked at to fix the sense in which the word is there used. I may therefore profitably consider what is the sense in which the expression District Court is used in the other clauses of the Scheme for if that expression is used in the other clauses of the Scheme to mean the District Court as a Court of law then it would be a fair presumption to make that that expression when used in Clause ? has been used in the same sense. Now examining the provisions of the Scheme I find that apart from Clause 7 the expression District Court has been used in Clauses 4 5 and 6 and sub-clauses (7) and (16) of Clause 12. The use of the expression District Court in Clauses 4 and 5 does not throw any light on the question whether that expression has been used to mean the District Court as a Court law or the presiding officer of the District Court namely the District Judge as a persona designata. But light is thrown by the provision contained in Clause 6. Clause 6 provides that the nominee of the Sevaks shall be entitled to be on the Committee for the first five years and at the end of that term the District Court shall determine whether the representation of the Sevaks should be further continued or whether some other arrangement should be made for keeping up the number of the members to five. The nature of this provision clearly shows that the District Court referred to in this Clause is the District Court acting as a Court of law and not the District Judge as a persona designata. This clause in effect and substance empowers the District Court to consider at the end of the first five years whether the Scheme should continue as it is or should be modified in so far as the representation of the Sevaks on the Committee is concerned. If the District Court determines that the representation of the Sevaks should be further continued the Scheme would continue without any modification or change. But if the District Court determines that the representation of the Sevaks should not be continued but that some other arrangement should be made for keeping the number of members to five the District Court would modify the Scheme by incorporating such arrangement. This function clearly could not be entrusted to the District Judge as a persona designata for it involved the power to modify the Scheme which could be done only by a Court of law. Mr. I. M. Nanavati when faced with this clause had to concede that the District Court in this clause must mean the District Court as a Court of law and not the District Judge as a persona designata. The same is the position in regard to the provision contained in sub-clause (16) of clause 12 which empowers the Committee to sell any immovable property belonging to the Temple after obtaining sanction therefor from the District Court. Obviously the District Court granting sanction to the Committee to sell any immovable property belonging to the Temple would act as a Court of law and not as a persona designata. It is difficult to conceive how any power to grant sanction to the Committee to sell any immovable property belonging to the Temple could be conferred on any individual as a persona designata. This position also could not be disputed by Mr. I. M. Nanavati. It therefore follows that at least in two of the provisions contained in the Scheme namely Clause 6 and sub-clause (16) of Clause 12 the District Court referred to is the District Court as a Court of law and not the District Judge as a persona designata. Now if the District Court in Clause 6 and sub-clause (16) of Clause 12 means the District Court acting as a Court of law it is apparent that the District Court in Clause 7 must also mean the same thing. Alike in Clause 7 as in Clause 6 and sub-clause (16) of Clause 12 the District Court would exercise its powers as a Court of law and not merely as a persona designata whose determinations are not to be treated as judgments of a legal tribunal. This is the only conclusion which can be arrived at in conformity with the principles set out at the commencement of this paragraph. The argument that though the District Court referred to in Clause 6 and sub-clause (16) of Clause 12 means the District Court acting as a Court of law yet the District Court in Clause 7 must mean the presiding officer of the District Court namely the District Judge acting as a persona designata would offend against those principles and such an argument cannot be accepted.

(12) There is as I have pointed out above no vagueness or ambiguity in the expression District Court as used in Clause 7 and it can mean only the District Court acting as a Court of law and not the District Judge acting as a persona designata. But even if two interpretations were possible it is clear that the High Court in using this expression intended to refer to the District Court as a Court of law and not to the District Judge as a persona designata. It is well-settled law that where the words used are susceptible of more than one meaning extrinsic evidence is admissible to show what was intended to be conveyed by those words. When the Scheme was originally framed by the District Court various functions under the Scheme were assigned to the District Judge. The references in the Scheme in relation to those functions were to the District Judge and not to the District Court. When however the appeals from the judgment of the District Court came before the High Court it was agreed on all hands that the Scheme as framed by the District Court was not satisfactory and so it was arranged as a first step towards arriving at a workable Scheme that a draft should as far as possible be settled by the pleaders representing the several litigants before the High Court and Mr. Ratanlal who represented the Advocate General was accordingly requested to draft a Scheme in consultation with the other pleaders in the case so as to secure the largest measure of agreement between the parties. Mr. Ratanlal accordingly drafted a Scheme in consultation with the other advocates appearing in the appeals and the Scheme so drafted was placed before the High Court for its consideration when the appeals next came up for hearing. It was found that the main points of difference had been reduced to three and the parties were heard on those points of difference and the Scheme as framed by Mr. Ratanlal was ultimately sanctioned by the High Court with certain modifications. In the Scheme as sanctioned by the High Court the references to the District Judge were deleted and certain functions under the Scheme were entrusted not to the District Judge but to the District Court. The High Court thus made a departure from the language used in the Scheme as originally framed by the District Court and instead of assigning any functions to the District Judge as was done in the original Scheme vested certain powers in the District Court. When the High Court departed from the language used by the District Court in the Scheme as originally framed and changed the expression from District Judge into District Court it would be a fair presumption to make that the alternation in the language was intentional. Had it been the intention of the High Court that the powers should be vested in the District Judge as a persona designata the High Court would have certainly retained the expression District Judge as appearing in the Scheme as originally framed by the District Court. There was no reason for the High Court to make any change in expression unless the intention was that the powers under the modified Scheme should be vested not in the District Judge as a persona designata but in the District Court as a Court of law. That is the only assumption on which the change of language can be explained. To say that the language was changed by the High Court without meaning to bring about a different result would be to attribute to the High Court inattententiveness and slovenliness which would hardly be expected in Judges presiding over the High Court. I am therefore of the opinion that this is also a circumstance which clearly indicates that it was to the District Court acting as a Court of law and not to the presiding officer of the District Court namely the District Judge as a persona designata that the powers under various provisions of the Scheme including Clause 7 thereof were entrusted by the Scheme.

(13) 10. Before I proceed to discuss the various authorities which were cited before me I may mention one other contention of Mr. I. M. Nanavati which appeared to receive some support from the judgment of Tyabji J. in Mahadev v. Govindrao (XXXVIII Bombay Law Reporter 1137). The contention was that no power could be conferred on the District Court acting as a Court of law except by the Legislature which alone could enlarge or diminish the jurisdiction of the District Court and that no provision of the Scheme could therefore be construed as vesting any power in the District Court as a Court of law for such vesting of power belonged properly to the Legislature and not to the Court framing the Scheme. When the Court framing the Scheme conferred any power on the District Court argued Mr. I. M. Nanavati the intention could only be to confer such power on the District Judge as a persona designata for any other view would involve the assumption of a power in the Court framing the Scheme to enlarge the existing jurisdiction of the District Court as a Court of law which power manifestly pertains to the Legislature and not to the Court. Mr. I. M. Nanavati therefore urged following this line of reasoning that the only view which the Court could take consistently with the legal position was that the power was conferred on the presiding officer of the District Court as a persona designata and not on the District Court as a Court of law. This contention of Mr. I. M. Nanavati though at first blush attractive and plausible is on a close analysis defective in that it ignores various material and relevant considerations which must weigh with the Court in determining this important question. It is no doubt true and this proposition was not disputed that the Legislature alone can enlarge or diminish the existing jurisdiction of the District Court as a Court of law and that it is not competent to the Court framing a Scheme to make any provision affecting the jurisdiction of the District Court but this proposition does not lead to the conclusion contended for by Mr. I. M. Nanavati. And the reason is obvious. When the Court framing a Scheme for the administration of a charity makes provision for the administration of the charity whether permanently or for a short period various functions may have to be discharged in the course of administration of the charity and sometimes therefore some of these functions may be entrusted to the presiding officer of a Court as a persona designata because the Court framing the Scheme feels that by reason of the judicial office occupied by such person and the confidence which such person enjoys from the public such person would be best fitted to discharge such functions. Such functions it may be noted may be entrusted equally to any other high officer of the State or any other person enjoying public confidence. But that is not necessarily the only manner in which provision can be made for discharge of various functions which may arise in the course of administration. The Court framing the Scheme may very well provide that in relation to some of the matters for which provision by its very nature cannot be made at the time when the Scheme is framed directions can be obtained by approaching the Court. Take for example the matter relating to appointment of trustees in vacancies which may be caused from time to time. The Court framing the Scheme can in such a case either leave the matter of appointment of trustees to a persona disignata or may provide that the Court itself would have the power to appoint trustees suo motu or on application made in that behalf by any person interested in the charity. There may also arise occasions when it is necessary to remove trustees and in such a matter also the Court while framing a Scheme can provide that a persona disignata shall be entitled to remove the trustees or that the Court itself shall be entitled to remove the trustees on sufficient cause shown. It would thus be seen that the Court framing the Scheme-which admittedly acts as a Court of law at the time of framing the Scheme-may instead of making a provision for appointment or removal of trustees for all time to come reserve to itself the power to appoint or remove trustees as and when occasion may arise. When pursuant to such a power the Court is approached for the purpose of appointing or removing trustees the Court certainly acts as a Court of law and not as a persona designata. Same would be the position in case of other matters relating to the administration of the charity. It would thus appear that when the Court framing the Scheme reserves to itself any power in regard to matters arising in the course of the administration of the charity or for the purpose of effectively administering the charity there is no enlargement of its judicial power by the provision reserving such power. If the District Court frames a Scheme the District Court can on this reasoning reserve to itself the power to appoint or remove trustees or to do any other act in relation to the administration of the charity as a part of the Scheme. The District Court would under the Code of Civil Procedure be the original Court in regard to the framing of Schemes and if the District Court reserves to itself any of these powers it cannot be contended that in exercising such power as and when occasion arises the District Court is acting otherwise than as a Court be law. But the District Court being an original Court an appeal would lie to the High Court front the Scheme framed by the District Court The High Court in the exercise of its appellate jurisdiction may affirm the Scheme or reject the Scheme or make modifications in the Scheme. Just as the District Court could reserve to itself powers in relation to various matters arising in the administration of the charity the High Court also can reserve such powers either to itself or to the District Court from whose decree the appeal is brought before it. When the High Court reserves such powers to itself it is clear that there is no enlargement of the jurisdiction of the High Court as a result of the decree passed by it. Equally there is no enlargement of the jurisdiction of the District Court when the High Court reserves such powers to the District Court. The District Court or the High Court in appeal may thus provide that powers in relation to certain matters which may arise in the course of administration of the charity may be reserved to the District Court and if such a provision is made it is in my opinion impossible to contend that there is any enlargement of the jurisdiction of the District Court. All that happens is that the District Court which is the original Court framing the Scheme is empowered to implement the Scheme or to work out the Scheme as and when occasion arises. The power to appoint or remove trustees or any other similar power in relation to matters concerning the administration of the charity is in no way different from the power which is to be found in various Schemes empowering the District Court to alter modify or add to the Scheme. If power can be conferred on the District Court as a Court of law to alter modify or add to a Scheme I do not see why on a parity of reasoning power cannot be conferred on the District Court as a Court of law to appoint or remove trustees or to act in any other manner in relation to the administration of the charity under the Scheme. As a matter of fact I find that the power to remove trustees was treated as alike to the power to alter modify or add to a Scheme by a decision of a Division Bench of the High Court of Bombay consisting of Patkar and Broomfield JJ. in Chandraprasad v. Jinabharthi. (XXXIII Bombay Law Reporter 520). In both these cases there is really no conferment of fresh power but merely reservation of existing power. Instead of making a provision for the administration of the charity for all time to come which by its very nature may be impossible or at any rate imprudent the Court reserves to itself the power as a part of the Scheme to provide for contingencies which may arise from time to time in the course of the administration of the charity. There is therefore in my opinion no substance in the argument that if Clause 7 of construed as conferring a power on the District Court as a Court of law such construction would have the effect of enlarging the jurisdiction of the District Court as a Court of law which it would not be open to the High Court to do by a decree framing the Scheme. This argument as I have pointed out above proceeds upon a misconception of the true nature and character of the provision made in the Scheme. Of course the judgment of Tyabji J. in Mahadev v. Govindrao (supra) supports this argument. But for the reasons mentioned above I cannot regard this decision as laying down the correct law. Now ordinarily a decision of a Single Judge of the High Court of Bombay would be binding on me having regard to the decision of a Full Bench of this Court in State v. Gordhandas (1962) 1 G.L.R. 269 but it is open to me to disregard this decision of Tyabji J. since it is a decision rendered by Tyabji J. sitting as a member of a Division Bench along with Broomfield J. and Broomfield J. in his judgment did not accept or even refer to this line of reasoning adopted by Tyabji J. I therefore reject the contention of Mr. I. M. Nanavati that power under Clause 7 was vested in the presiding officer of the District Court as a persona designata and not in the District Court acting as a Court of law.

(14) There is one last contention of Mr. I. M. Nanavati which requires to be noted. Mr. I. M. Nanavati contended that the power to appoint or remove trustees was by its very nature an administrative power and not a judicial power and that such power could not therefore be conferred on the District Court as a Court of law but must be regarded as conferred on the presiding officer of the District Court as a persona designata. This contention Mr. I. M. Nanavati was constrained to put forward in order to escape from the consequences of the argument that if the District Court in clause 5 and sub-clause (16) of Clause 12 meant the District Court acting as a Court of law the District Court in Clause 7 must also mean the District Court acting as a Court of law. Mr. I. M. Nanavati sought refuge in the contention that the power conferred under clause 6 as well as subclause (16) of Clause 12 was a judicial power and that the references to District Court in those clauses could therefore be regarded as references to the District Court acting as a Court of law but that the power conferred under Clause 7 being an administrative power and not a judicial power no such conclusion followed in regard to this latter clause. This contention of Mr. I. M. Nanavati is however in my opinion unsustainable and cannot provide any answer to the contention based on the analogy or Clause 6 and sub-clause (16) of Clause 12. In the first place the power to remove a member of the Committee on good cause shown is clearly a judicial power and in support of this proposition I cannot do better than quote the high authority of the Judicial Committee of the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar (XLIV Indian Appeals 261) where Lord Atkinson delivering the judgment of the Judicial Committee observed in relation to a section of the Madras Religious Endowments Act 1863 providing for removal of a member of a Committee of Management:-

"Section 9 provides that every member of a committee appointed under secs. 7 and 8 shall hold office for life unless removed for misconduct or unfitness and no such member shall be removed except by order of the Civil Court. Surely in such a question as the removal of an officer from his office for misconduct or unfitness the Court which makes the order removing him is exercising judicial functions?"

(15) But apart altogether from this answer there is another answer which is equally fatal to the contention of Mr. I. M. Nanavati and that answer is provided by the very terms of section 92 of the Code of Civil Procedure. That section provides that in the circumstances specified there a suit can be filed in the principal Civil Court of original jurisdiction to obtain a decree removing any trustee or appointing a new trustee. The function of appointing and removing trustees is thus a judicial function properly exercisable by a Court of law. It is therefore futile on the part of Mr. I. M. Nanavati to contend that because the power to appoint or remove trustees is an administrative power and not a judicial power the reference to the District Court in Clause 7 must be regarded as reference to the presiding officer of the District Court as a persona designata and not to the District Court as a Court of Law. This contention of Mr. I M. Nanavati also suffers from a further defect in that it overlooks the fact that the appointment or removal of trustees is to be made by the District Court under Clause 7 in implementation of the Scheme and for the purpose of giving effect to it and that it is therefore entirely irrelevant to consider what is the nature or character of the function to be discharged by the District Court in appointing or removing members of the Committee.

(16) 12. Turning to the decisions the first decision on which Mr. I. M. Nanavati relied was the decision of the Privy Council in Jeranchhod v. Dakore Temple Committee (XXVII Bombay Law Reporter 872). That was a case which related to the same Scheme which is now before me. What happened in that case was that under sub-clause (7) of Clause 12 the Committee framed a body of rules which came before B. C. Kennedy as the District Judge of Ahmedabad for the sanction of his Court. The learned District Judge made certain alterations in the rules and as altered by him sanctioned the rules. Certain members of the Trawadi Mewada Brahmin caste who had exercised certain rights in the temple or were otherwise interested in the management of the temple presented to the High Court an application under Clause 20 of the Scheme for modification of the rules sanctioned by the learned District Judge. Appeals were also filed to the High Court against the order passed by the learned District Judge sanctioning the rules. The appeals were entertained by the High Court on the basis that the order passed by the learned District Judge sanctioning the rules was an order in execution under section 47 of the Code of Civil Procedure and therefore appeable as a decree. The High Court in fact entertained some doubts whether appeals lay but decided to deal with them as appeals as no objection was taken and in that view of the matter did not go into the application for modification of the Scheme preferred under Clause 20. On the matter being carried to the Privy Council the Privy Council held that the appeals did not lie since the order of the District Judge could not be regarded as an order in execution under sec. 47 and the appeals being thus not maintainable the Privy Council took the view that the judgment of the High Court was incompetent and it was accordingly set aside. In the course of his judgment Sir John Edge delivering the judgment of the Privy Council made the following observations which were strongly relied on by Mr. I. M. Nanavati:-

".....The High Court at Bombay had power conferred upon it by clause 20 of the Scheme confirmed by His Majestys order in Council upon an application made to it with that object to alter modify or add to the rules sanctioned by the District Judge but it had no other power and that power it did not exercise; it may however still be exercised upon application properly made to it."

(17) Mr. I. M. Nanavati contended that it was clear from the aforesaid observations that according to the Privy Council the only power which the High Court had was under Clause 20 of the Scheme and that it had no other power which would mean according to Mr. I. M. Nanavati that it had also no revisional power. This construction sought to be put by Mr. I. M. Nanavati on the aforesaid observations of the Privy Council is in my opinion not justified. The words but it had no other power in the context meant only this much namely that the High Court had no power apart from Clause 20 to alter modify or add to the rules. Obviously no alteration modification or addition to the rules could be made by the High Court in revision for the revisional jurisdiction could be exercised only when a question of jurisdiction was involved and not in cases where rules were wrongly sanctioned by the District Court. The reference to the revisional jurisdiction would have therefore been inappropriate and merely because no reference to it was made and the opinion was expressed in general terms while dealing with the question whether the High Court had any power to alter modify or add to the rules it would not be legitimate to infer that the Privy Council negatived the existence of a revisional power in the High Court against the order of the District Court under sub-clause (7) of Clause 12. This decision therefore does not help Mr. I. M. Nanavati. On the contrary I find that there is an observation in this decision which considerably assists the contention of Mr. A. D. Desai and that observation occurs in the following passage from the judgment:-

"The Temple Committee. having been duly appointed framed a body of rules as the Committee was empowered to do and those rules came before Mr. B. C. Kennedy as the District Judge of Ahmedabad for the sanction of his Courts and he....."

(18) The words "sanction of his Court" are very material and clearly show that according to the Privy Council the sanction to be obtained was that of the District Court as a Court of law and not that of the District Judge as a persona designata. If the sanction required was that of the District Judge as a persona designata the Privy Council which is so careful in the use of language would not have said that those rules came before Mr. B. C. Kennedy District Judge of Ahmedabad for the sanction of his Court but would have merely observed that those rules came before Mr. B. C. Kennedy District Judge of Ahmedabad for his sanction. This decision therefore does indicate that the District Court referred to in sub-clause (7) of Clause 12 is the District Court acting as a Court of law and not as a persona designata and this in its turn considerably strengthens the conclusion that the District Court in appointing or removing a member of the Committee under Clause 7 acts as a Court of law and not as a persona designata.

(19) 13. The next decision on which reliance was placed by Mr. I. M. Nanavati was that in Lambodar v. Dharanidhar (XXVIII Bombay Law Reporter 64). It was a case relating to Chinchwad Sansthan. Clauses 2 3 and 5 of the Scheme as settled by the High Court of Bombay empowered the District Judge of Poona to appoint a trustee of the Committee of Management. The learned District Judge appointed one of the twelve candidates as a trustee and thereupon three of the disappointed candidates filed appeals in the High Court. An objection was raised to the maintainability of the appeals and the question was also considered whether if no appeals lay at least a Revision Application could lie against the impugned order. A Division Bench of the High Court consisting of Macleod C. J. and Madgavkar J. took the view that the District Judge appointing a trustee under clauses 2 3 and 5 of the Scheme was acting as a persona designata and not as a Court. The application for appointment of a trustee could not therefore be treated as an application in execution and if the order of appointment could not be regarded as an order in execution no appeal could lie against it. Equally section 100 of the Code of Civil Procedure also could not avail the appellants since the district judge in appointing a trustee was a persona designata and not a Court. For the same reasons no revision application could also lie against an order ma by the District Judge appointing a trustee. This conclusion was reach by the Division Bench of the High Court on a consideration of the various clauses of the Scheme. It was pointed out by Macleod C. J. who deliver the judgment of the Division Bench that the Scheme and its various clause made a distinction between a District Judge and a District Court; in example clause 21 referred to District Court as contrasted with Clauses 3 4 and 5 which referred to District Judge and a reference to the District Judge in Clauses 2 3 4 and 5 was therefore to the District Judge as persona designata and not as a Court of law. This decision was mail founded on the use of the expression District Judge in Clauses 2 4 and 5 of the Scheme and a distinction made in the Scheme itself between District Judge and District Court. These two circumstances clearly indicated that the Court framing the Scheme was aware of the distinctbetween District Judge and District Court and employed the expressiDistrict Judge when it wanted to refer to the District Judge as a persona designata and otherwise used the expression District Court for purpose of referring to the District Court as a Court of Law. The reasoning of this decision can have no application to the present case where the expression uniformly used in the Scheme is "District Court".

(20) 14. Mr. I. M. Nanavati then relied on another decision of the Hi Court of Bombay reported in Shridhar v. Ganu (XXIX Bombay Law Reporter 891). In that case an appeal was brought from a decision the District Judge of Ratnagiri under a Scheme holding that the offerings laid before a certain deity should be divided between the Pujaris and the Guravs in the proportion of six to five. The appeal was held to be incompetent not on the ground that the District Judge acted as a persona designata and not as a Court of law but on the ground that the order of the District judge could not be said to be an order in execution under section following Jeranchhods case (supra) and Ranganathas Case (I.L.R. Madras 139) and was therefore not appealable. The order was attacked not on any legal point but only on merits and since no appeal lay there appeal was dismissed. No question of jurisdiction was involved and there was therefore no occasion to consider whether a Revision Application would lie against the order of the District Judge. If a question of jurisdiction were involved-and not a question on merits-the High Court would have had to consider whether a revision application lay against the order and in the consideration of that question the High Court would have had to determine whether the District Judge in fixing the proportion acted as a persona designata or as a Court of law. That question however did not arise since to use the words of Fawcett J. In the present case no legal point arises. The only question is whether the decision of the District Judge is justified on its merits.... On the merits it was clear that Since no appeal lay the decision of the District Judge was final-whether the decision was of the District Judge as a persona designata or of the District Judge as a Court of law. This decision therefore does not throw any light on the question as to under what circumstances a District Judge entrusted with certain functions under a Scheme can be said to be acting as a persona designata or as a Court of law.

(21) 15. The next decision to which my attention was drawn by Mr. I. M. Nanavati was a decision of a Division Bench of the High Court of Bombay consisting of Batchelor and Shah JJ. in Municipality of Belgaum v. Rudrappa (XVIII Bombay Law Reporter 340). The question in this case was whether a revision application lay against the decision of the District Court under Clause 3 of sec. 160 of the Bombay District Municipalities Act 1901 Batchelor J. delivering the judgment of the Division Bench held that no revision application lay against the decision of the District Court under Clause 3 of section 160 on the ground that it had been held by a Division Bench of the High Court in Chunilal Virchand v. Ahmedabad Municipality (XIII Bombay Law Reporter 958) that no appeal lay against such decision and it would therefore be highly anomalous to hold that though no appeal would lie a revision application would yet lie against such decision. It was pointed out to the learned Judge that the expression used in Clause 3 of section 160 was District Court and not District Judge. But the learned Judge took the view that the distinction between District Court and District Judge was not sufficient to support the argument that an application for revision was competent although admittedly no appeal would lie. It is a little difficult to appreciate the basis of this decision. The learned Judge it appears was impressed by the argument that if no appeal lies against a decision of the District Court under Clause 3 of section 160 how can a revision application lie against such a decision. That is an argument which is in my humble opinion a patently erroneous argument. It is when an appeal does not lie that the question arises whether a revision application would lie and it is no argument to say that a revision application cannot lie because an appeal does not lie. It is apparent from the judgment that it was because the learned Judge was considerably impressed by the argument that the decision of the District Court under Clause 3 of section 160 not being appealable no revision application could lie against such decision that he came to the conclusion that the mere use of the expression District Court was not sufficient to outweigh the validity of that argument. But if that argument which forms the premise of his decision is incorrect it is clear that the decision cannot have any persuasive value. I am deliberately using the expression persuasive value be for in any event the decision being a decision on Clause 3 of section 160 of the Bombay District Municipalities Act 1901 it cannot be regarded as laying down any rule of law as regards the construction of Clause 7 of the Scheme which would be binding on me as an authoritative precedent. This decision cannot therefore be invoked in aid of the argument urged by Mr. I. M. Nanavati on behalf of opponents Nos. 1and 5 to 8.

(22) That takes me to the next decision which was relied on by Mr. I. M. Nanavati and that was a decision again of a Division Bench of the High Court of Bombay in Jagmohan. v. Venkatesh (XXXV Bombay Law Reporter 89). The Division Bench of the High Court of Bombay hold it that case that a District Judge acting under section 15 of the Bombay City Municipalities Act 1925 is not a Court but a persona designata and the High Court has therefore no jurisdiction to revise his order under section 115 of the Code of Civil Procedure. The argument which was rejected by the High Court in coming to this conclusion was that sub-section (1) of section 15 provided for the making of an application to the District Court whereas under the corresponding section of the Bombay District Municipalities Act 1901 the application was required to be made to the District Judge and that this change of language while enacting the Bombay City Municipalities Act 1925 clearly indicated that the District Judge acting under section 15 of the Bombay City Municipalities Act 1925 was acting as a Court of law. Dealing with this argument Murphy J. delivering the judgment of the Division Bench pointed out that while enacting section 15 of the Bombay City Municipalities Act 1925 the Legislature had substituted the words 44 District Court for the words District Judge which occurred in the corresponding section of the Bombay District Municipalities Act 1901 because of the difficulty experienced in Gangadhar v. Hubli Municipality (XXVIII Bombay Law Reporter 519) where the application had been presented to the Clerk of the District Court and not to the District Judge personally. The learned Judge observed that though this change of expression was made in sub-section (1) of section 15 sub-section (2) of section 15 remained the same and on a consideration of that subsection the learned Judge came to the conclusion that the District Judge acting under section 15 was not a Court but a persona designata. This decision does not in my opinion help Mr. I. M. Nanavati for the basis of this decision was the provision enacted in sub-section (2) of section 15. On the contrary this decision suggests that but for the provision enacted in sub-section (2) of section 15 the High Court would have taken the view relying on the change of the expression from District Judge is to District Court that the reference in section 15 was to the District Court as a Court of law and not to the Judge of the District Court as a persona designata.

(23) The next decision on which Mr. I. M. Nanavati relied was a of the Privy Council in Minakshi v. Subramanya (XI Bombay Law 26 The question which arose in that case was whether there was a right of appeal against an order by the District Court under sec. 10 of the Madras Religious Endowments Act 1863. A vacancy having occurred on the Committee of the Minakshi Sundraswrar Devasthanam the District Judge of Madura made an order appointing the appellant to fill up the vacancy. An appeal was presented against the order of the District Judgeto the High Court by persons who were either interested as candidates or were in favour of other candidates. The substantial ground of the appeal was that the temple was devoted to the worship of Siva while the appellant was a Vaishnavite. The High Court entertained the appeal and accepting the ground on behalf of the appellants set aside the order passed by the learned District Judge. The matter was thereupon carried in appeal to the Privy Council and the Privy Council held that neither the Madras Religious Endowments Act 1863 nor the general law gave any right of appeal against the order of the learned District Judge under section 10 and that there was therefore no right of appeal against such order and the High Court had consequently no jurisdiction to hear the appeal. The Privy Council accordingly allowed the appeal and reversed the judgment of the High Court. Sir Richard Baggallay delivering the judgment of the Privy Council made certain observations which are strongly relied on by Mr. I.M. Nanavati. Those observations are:-

"..........In the opinion of their Lordships the tenth section places the right of appointing a member of the committee in the Civil Court not as a matter of ordinary civil jurisdiction but because the officer who constitutes the Civil Court is sure to be one of weight and authority and with the best means of knowing the movements of local opinion and feeling and one can hardly imagine a case in which it would be more desirable that the discretion should be exercised by a person acquainted with the district and with all the surroundings. The exercise of the discretion being so placed in the District Judge their Lordships are unable to find anything in the tenth section which confers a right of appeal."

".......Mr. Doyne in the course of his argument contended that if a person very improper and unfit by reason of his religious qualifications or moral conduct was appointed there must be a right either by appeal against the JUdges order or by suit or in some other way to remove the person so appointed. There is force in this argument but whether a person so improperly appointed could as has been suggeste be removed by proceedings equivalent to proceedings by quo warranto in England or whether upon a full consideration of the merits the appellant could be considered as a person improperly appointed are questions upon which their Lord ships are not called upon to express an opinion. In their opinion it is clear that there is no appeal from that which was a pure discretion vested in the District Judge."

(24) Mr. I. M. Nanavati contended that the aforesaid observations clearly showed that the power to appoint a member of the Committee was conferred on the District Judge as a persona designata and that this inference was fortified by the absence of any reference to the revisional jurisdiction of the High Court in the judgment of the Privy Council. These observations are undoubtedly susceptible of the interpretation sought to be placedby Mr. I. M. Nanavati but if regard be had to the fact that no question of considering the revisional jurisdiction of the High Court arose on the facts of the case and the Privy Council was not concerned with the question whether the District Judge acting under section 10 was a persona designata or a Court of law it will be immediately apparent that these observations cannot be read as inferentially supporting the contention of Mr. I. M. Nanavati that the Privy Council regarded the District Judge acting under section 10 as a persona designata. As a matter of fact in a later decision namely Balakrishna Udayar v. Vasudeva Aiyar (XLIV Indian Appeals 261) where the question direc tly arose whether a revision application lay against an order of the District Judge under section 10 the Privy Council in terms decided that the District Judge acting under section 10 was a Court of law and not a persona designata and that a Revision Application therefore lay against an order made by him. The Privy Council held on a consideration of the relevant provisions of the Madras Religious Endowments Act 1863 that it was to the District Court and not to an individual Judge who may preside ever or constitute the District Court that jurisdiction was given under section 10. The Privy Council examined the other sections of the Act and observed that if in these sections the District Court was referred to as a Court of law and not as a persona designata equally in section 10 must the District Court be regarded as a Court of law and not as a persona designata. The Privy Council distinguished the earlier decision in Minakshi v. Subramanya on the ground that in that case no question of jurisdiction was involved. The only question was whether the appellant was unfit for the post by reason of his religious belief. The Privy Council held that the appeal was not maintainable because no right of appeal was conferred by any statute and the appeal was therefore dismissed and the order of the High Court was set aside. The Privy Council did not affect to uphold the order of the High Court by reference to its revisional jurisdiction for the conditions for the exercise of the revisional jurisdiction being absent the revisional jurisdiction did not avail to sustain the validity of the order made by the High Court. That was why the Privy Council referred to proceedings by way of quo warrant and not to revisional proceedings. The decision in Minakshi v. Subramanya cannot therefore be regarded as laying down that even though the expression used in section 10 was Civil Court the power to appoint a member of the Committee under that section was considered by the Privy Council to have been conferred on an individual Judge who may preside in or constitute the Civil Court as a persona designata and not on the Civil Court as a Court of law. On the contrary the Privy Council in Balakrishna Udayar v. Vasudeva Aiyar held that the Civil Court acting under section 10 was the Civil Court acting as a Court of law and not an individual Judge of the Civil Court as a persona designata. The Privy Council observed in this case that a key to the true position of the Civil Court under section 10 might be found by referring to the position it occupied in the immediately preceding and some of the succeeding sections of the Act and those sections clearly showed that the Civil Court there referred to was the Civil Court exercising its power as a Court of law and not as a persona designata. The same line of reasoning must lead me to the conclusion that in the present case also the District Court referred to in Clause 7 of the Scheme is the District Court acting as a Court of law and not as a persona designata whose determinations are not to be treated as judgments of a legal tribunal.

(25) 18. The last decision to which reference was made by Mr. I. M. Nanavati was the decision of Wassoodew J. in Baburao v. Hariharrao (XLI Bombay Law Reporter 490). The question which arose in that case was whether an order passed by the District Judge of Sholapur was liable to be revised under section 115 of the Code of Civil Procedure. The argument urged before the learned Judge was that the District Judge in making the order was exercising the powers conferred on him under a Scheme and was therefore acting as a persona designata and not as a Court of law. The learned Judge however rejected this argument and held that the District Judge had no place whatever in the Scheme and that his authority to make the order was not derived from the Scheme and that he must therefore be regarded as having acted as a Court of law in making the order so as to be subject to the revisional jurisdiction of the High Court. If the powers sought to be exercised by the District Judge in making the order had been conferred on him under the Scheme-if his authority to make the order had been derived from the Scheme-the question would have arisen whether the powers had been conferred on him as a persona designata or as a Court of law. This question did not arise and was therefore not decided since in the view taken by the learned Judge the authority of the District Judge to make the order was not derived from the Scheme and the District Judge could not therefore have acted otherwise than as a Court of Law in making the order. This decision cannot therefore assist in the solution of the present problem. It is no doubt true that the learned Judge observed that In the consideration of the question whether a presiding officer of a Court is acting as a persona designata or as a Court the important point to be investigated is what is the source of his authority and that it might also be relevant to consider the nature of the proceedings and the action taken therein. But this observation must be read in the context of the question which was being considered by the learned Judge. This observation was not intended to supply either an inclusive or exclusive test for distinguishing whether a particular power is conferred on a District Judge as a persona designata or as a Court of law but it highlighted merely one aspect of the question namely that if the authority of the District Judge to make the order was not drived from the Scheme and the action taken by him was not under the Scheme his order could not possibly be regarded as the order of a persona designata for in such a case in making the order he could not have acted except as a Court of law. No argument can therefore be founded on this observation of the learned Judge and the reliance placed on it by Mr. I. M. Nanavati is not justified.

(26) As against these decisions cited by Mr. I. M. Nanavati none of which as I have pointed out really supports his argument there were two decisions cited by Mr. A. D. Desai to support his contention. The first decision which was cited by Mr. A. D. Desai was the decision of the High Court of Bombay in Baldevdas Vallabhdas v. Devendraprasad (XLIX Bombay Law Reporter 306). There an application for directions was made to the District Court in accordance with the provisions of a Scheme framed by the High Court in relation to a temple objecting to certain items of the budget of the institution. Against the order of the District Judge who dismissed the application the matter was brought before the High Court by way of Revision or in the alternative by way of appeal. The Division Bench of the High Court of Bombay consisting of Macklin and Bavdekar JJ. held that the application in revision was not competent since it did not come within the purview of section 115 of the Code of Civil Procedure. The alternative remedy by way of appeal was also held incompetent as the order passed by the District Judge was not an order falling under section 47 of the Code of Civil Procedure. Mr. A. D. Desai contended that the very fact that the Division Bench considered whether the conditions of section 115 of the Code of Civil Procedure were satisfied or not showed that if in the opinion of the Division Bench the conditions were satisfied the Division Bench would have interfered with the order of the District Judge in revision and this the Division Bench could not have done unless the Division Bench took the view that the District Judge in making the order was acting as a Court of law and not as a persona designata. There was thus according to Mr. A. D. Desai implicit in this decision the view that the District Judge in making the order acted as a Court of law and not as a persona designata and that I should also therefore likewise hold that the District Court acting under Clause 7 of the Scheme is a Court of law and not a persona designata. This contention of Mr. A. D. Desai is in my opinion not well-founded. No point was raised before the Division Bench in this case that the order of the District Judge could not be revised under section 115 of the Code of Civil Procedure on the ground that the District Judge in making the order acted as a persona designata nor was the point either present to the mind of the Division Bench or decided by the Division Bench. The Division Bench took the view that none of the conditions of section 115 of the Code of Civil Procedure was satisfied and it was therefore not necessary for them to consider the question whether even if the conditions of section 115 had been satisfied the order of the District Judge could be revised. If the Division Bench had revised the order of the District Judge then an argument perhaps could have been founded that implicit in the decision of the Division Bench is the view that the District Judge in making the order acted as a Court of law and not as a persona designata for otherwise the Division Bench could not have revised the order. No such argument can however be supported by reference to this decision since the Division Bench refused to revise the order of the District Judge basing itself on one ground which was sufficient to dispose of the matter namely that none of the conditions of sec. 115 of the Code of Civil Procedure was satisfied.

(27) The next decision to which Mr. A.D. Desai referred was the decision of a Division Bench of the High Court of Bombay consisting of Law Reporter 520). This was also a case relating to a Scheme which contained a power in the District Court to remove trustees as also to make alterations or amendments in the rules of the Scheme or to add a new rule to the Scheme. An application was made to the District Court under the Scheme claiming in the main two prayers. One prayer was for modification of the Scheme and the other prayer was for removal of two trustees. Both the prayers were covered by the rules in the Scheme. The District Court however took the view that the rules were ultra vires as offending section 92 of the Code of Civil Procedure and accordingly rejected the application as incompetent. The matter was thereupon carried in appeal to the High Court. The High Court held following Jeranchhods case that no appeal lay since the order of the District Court rejecting the application could not be regarded as an order under sec. 47 of the Civil Procedure Code but that the order was liable to be revised by the High Court. The High Court took the view that the rules under which the application was made did not offend section 92 of the Code of Civil Procedure and that the application was therefore competent and since the District Court had on an erroneous view of the law failed to exercise a jurisdiction vested in him the High Court set aside the order of the District Court and remanded the application to the District Court for disposal on merits. The order of the District Court rejecting the application for removal of trustees was thus interfered with in revision and the District Court was directed to dispose of the application on the merits. This could only be on the footing that the District Court was acting as a Court of law and not as a persona designata. Patkar J. in terms stated:-

"I would, however, treat the order passed by the lower Court as subject to revision by this Court under sec. 115 of the Code of Civil Procedure. The learned District Judge had jurisdiction to entertain the application and failed to exercise the jurisdiction vested in him by law."

(28) To the same effect observed Broomfield J. when he stated:-

"A question of jurisdiction is involved however and if the District Judge was wrong in holding that he had no jurisdiction to entertain the application it is open to us to interfere in revision."

(29) This the learned Judge said immediately after referring to the prayer for removal of the trustees which clearly shows that the observation which he made related not only to the prayer for modification of the Scheme but also to the prayer for removal of the trustees. It is therefore apparent that he also regarded the District Court entertaining an application for removal of the trustees as a Court of law and not as a persona designata. Mr. A. D. Desai contended that this decision must therefore be regarded as laying down that in a Scheme where power is reserved to the District Court to remove trustees the District Court exercising such power acts as a Court of law and not as a persona designata and that the order of the District Court is subject to the revisional jurisdiction of the High Court. It is no doubt true that though the point whether the District Judge to whom the application for removal of the trustees was made was acting as a persona designata or as a Court of law was not expressly raised before the Court and there is no discussion of it in the judgment of either of the two learned Judges it must be regarded as implicit in the decision of the learned Judges that the District Judge was acting as a Court of law and not as a persona designata; for if the District Judge was acting as a persona designata the High Court could not have entertained a Revision Application against the order of the District Judge rejecting the application for removal of the trustees. The order could be revised by the High Court only on the basis that it was made by the District Judge as a Court of law. It may be that the argument was not advanced before the High Court that the District Judge entertaining the application was a persona designata and not a Court of law and that no revision application could therefore lie against his order. But merely because there was no argument or the argument was deficient it does not mean that the decision should be regarded as having passed over the point sub silentio. The point decided by the High Court was that a Revision Application lay against the order of the District Judge rejecting the application for removal of the trustees and the decision of the High Court must be deemed to have decided all the contentions which could have been urged against the view taken in the decision. I must therefore regard this decision as laying down that in the Scheme before the High Court in that case the District Court referred to was the District Court acting as a Court of law and not the presiding officer of the District Court as a persona designata. But that does not help me very much in the determination of the question whether under Clause 7 of the present Scheme the District Court referred to is the District Court as a Court of law or as a persona designata. I must resolve that question for myself and no aid in the solution of that question can be said to be offered by this decision.

(30) For these reasons I am of the opinion that the District Court referred to in Clause 7 of the Scheme is the District Court acting as a Court of law and not the District Judge acting as a persona designata. It must therefore follow that the District Court in making the order appointing Shri Navnitlal Ranchhoddas as a member of the Committee acted as a Court of law and that the order is therefore subject to the revisional jurisdiction of the High Court. In this view of the matter the Revision Applications would have to be heard on the merits and it would have to be decided by me whether any of the conditions specified in section 115 of the Code of Civil Procedure is fulfilled so as to warrant interference with the order made by the District Court. The hearing of the Revision Applications on the merits will be fixed on 28th July 1962. [After hearing the parties on merits His Lordship delivered the judgment on 12-9-1962 and 12-11-1962 as follows:- ]

On 24th July 1962 I delivered judgment rejecting the preliminary objection urged by Mr. I. M. Nanavati on behalf of opponents Nos. 1 and 5 to 8 against the maintainability of the Revision Applications. I took the view that the power to appoint a member of the Committee under Clause 7 of the Scheme was conferred on the District Court as a Court of law and not on the District Judge as a persona designata and that the order passed by the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee was therefore subject to the revisional jurisdiction of the High Court and I accordingly decided to hear the Revision Applications on the merits. When the Revision Applications reached hearing before me the order of the District Court was assailed and its validity was challenged on the main ground that the order was made by the District Court without issuing notice to the Charity Commissioner as required by section 56B of the Bombay Public Trusts Act 1950 and that the order was therefore without jurisdiction or that in any event the District Court acted illegally or with material irregularity in the exercise of its jurisdiction in making the order. This ground depended for its validity on the assumption that sec. 56B applied to the proceeding before the District Court for appointment of a member of the Committee under Clause 7 of the Scheme. The correctness of this assumption was however seriously challenged by Mr. I. M. Nanavati who contended that section 56 had no application to the present proceeding and that it was not obligatory on the District Court to give any notice to the Charity Commissioner before making an appointment of a member of the Committee under Clause 7 of the Scheme. Mr. I. M. Nanavati attacked the applicability of section 56B at three points. But for reasons which I shall presenty state the attack must fail at all the three points at which it was levelled.

(31) In the first instance Mr. I. M. Nanavati contended that having regard to the object which section 56B is intended to serve the section must be construed as applicable only to those cases where a question arises in a suit or legal proceeding affecting a public religious or charitable purpose in relation to a public trust which is not registered under the Bombay Public Trusts Act 1950 If the public trust is registered there would be no need to give notice for the Charity Commissioner would always have notice apart from the provision of section 56B if there is any question affecting a public religious or charitable purpose of such public trust involved in any suit or legal proceeding. It is only where the public trust is not registered that the Charity Commissioner may not have notice that such question is involved and such question may be determined by the Court in the absence of the Charity Commissioner to protect the interest of the charity and that is why argued Mr. I. M. Nanavati section 56 was enacted providing for giving of notice to the Charity Commissioner. Mr. I. M. Nanavati thus attempted to limit the applicability of section 56 to cases in which a question affecting a public religious or charitable purpose arises in relation to a public trust not registered under the provisions of the Bombay Public Trusts Act 1950 Now if this contention were correct it is obvious that the public trust in the present case being registered under the provisions of the Bombay Public Trusts Act 1950 section 56B would not apply and no notice would be necessary to be given to the Charity Commissioner even if all the conditions of the section were otherwise satisfied. But this contention is clearly not well-founded. To accede to this contention would involve writing words in section 56B that are not there. Section 56B in terms clear and explicit provides that if in any suit or legal proceeding it appears to the Court that any question affecting a public religious or charitable purpose is involved notice must be given to the Charity Commissioner. There is nothing in section 56B which limits its applicability to cases relating to a public trust which is not registered under the provisions of the Bombay Public Trusts Act 1950 Section 56B as a matter of fact does not refer to a public trust at all much less to a public trust not registered under the provisions of the Bombay Public Trusts Act 1950 It is immaterial under section 56B whether the public trust in relation to which a question may arise attracting the applicability of the section is registered or not registered under the provisions of the Bombay Public Trusts Act 1950 Once a position is reached in which it is found that in a suit or legal proceeding a question is involved affecting a public religious or charitable purpose section 55B must apply and notice must be given to the Charity Commissioner. The present contention of Mr. I. M. Nanavati seeking to restrict the applicability of section 56 in the manner suggested by him must therefore be rejected.

(32) It would be convenient at this stage to also dispose of one other contention regarding the interpretation of section 56B. That contention was advanced by Mr. A. D. Desai on behalf of the petitioner and it was based on an equation of the expression public religious or charitable purpose with the expression public trust. Mr. A. D. Desai contended that these two expressions were synonymous and though the section spoke of a question affecting a public religious or charitable purpose it was enough to attract the applicability of the section if the question was a question affecting a public trust. The question of appointment of trustees of a public trust argued Mr. A. D. Desai was undoubtedly a question affecting a public trust and the question in the present case as to who should be appointed a member of the Committee was therefore clearly a question which fell within section 56B. This contention is in my opinion wholly fallacious. There is no synonymity between the expression public religious or charitable purpose and the expression public trust. The expression public trust is defined in sec. 2(13) to mean an express or constructive trust for either a public religious or charitable purpose or both and includes certain other institutions which it is not necessary to enumerate for the purpose of the present discussion. This definition clearly brings out the distinction between the two expressions public trust and public religious or charitable purpose. The former connotes the trust whether express or constructive while the latter constitutes the purpose for which the public trust exists. Every question which affects a public religious or charitable purpose would not necessarily affect a public trust unless the public religious or charitable purpose affected by the question is a purpose of a public trust. But every question affecting a public trust would necessarily be a question which would affect the public religious or charitable purpose of such public trust. I shall presently discuss this question in some detail but it is sufficient to state for the time being in answer to the contention of Mr. A. D. Desai that both the expressions were known to the Legislature and yet the Legislature used the expression public religious or charitable purpose and not the expression public trust. The content of the two expressions is different and to equate the two expressions and to hold that sec. 56B applies when any question affecting a public trust is involved in any suit or legal proceeding would amount to re-writing the section and giving a meaning to the section quite different from what the Legislature has in clear and unambiguous terms intended to convey. I must therefore reject the contention of Mr. A. D. Desai which seeks to equate the expression public trust with the expression public religious or charitable purpose.

(33) The second ground of attack of Mr. I. M. Nanavati against the applicability of section 56B was that the proceeding before the District Court was neither a suit nor a legal proceeding within the meaning of the section and the section had therefore no application. Now the proceeding before the District Court was admittedly not a suit and the only question therefore is whether it was a legal proceeding as contemplated by sec. 56B. The determination of this question obviously depends on the true interpretation of the words legal proceedings in sec. 56B. These words would prima facie seem to take in the proceeding before the District Court since if such a proceeding is not a legal proceeding it is difficult to see what else it i.e.. But Mr. I. M. Nanavati contended that these words though standing by themselves they might be words of width and amplitude had a narrow and restricted meaning since they were preceded by the word suit which meant an original proceeding instituted by presentation of a plaint in a Civil Court. He invoked the well-known principle of interpretation that where particular words are followed by general words the general words must be construed ejusdem generis and relying on this principle of interpretation he submitted that since suit belonged to the genus of proceedings of an original nature the words legal proceedings must also be confined to the same genus and must be construed to mean legal proceedings in the nature of a suit i. e. legal proceedings of an original nature. If the be the right construction the argument proceeded the proceeding before the District Court being a proceeding for appointment of a member of the Committee under Clause 7 of the Scheme would go out of the scope and ambit of section 56B since such a proceeding could not be said to be a proceeding of an original nature. Mr. A. D.

Dasai on the other hand contended that there was no warrant for restricting the plain and natural meaning of the words legal proceedings and that the words legal proceedings being words of sufficient width and amplitude must be regarded as including the proceeding before the District Court. Mr. A. D. Desai disputed the applicability of the principle of interpretation which requires general words preceded by particular words to be construed ejusdem generis and contended that there was no scope for the application of this principle of interpretation and that in any event the intention of the Legislature as appearing from the language used in section 56B clearly excluded the applicability of this principle of interpretation. These rival contentions bearing upon the true interpretation to be put on the words legal proceedings occurring in section 56B raised an interesting question of construction and I will now proceed to examine the same.

(34) One salutory rule of statutory interpretation founded on the principle of assumed intention of the law-maker is that general words though when they stand by themselves are to be accorded their full meaning must when they follow particular and specific words be confined to embrace things of the same kind as those before enumerated. This aid to statutory interpretation is the well established principle of ejusdem generis. If the particular and specific words which precede the general words and which constitute the members of the enumeration constitute a class and that class is not exhausted by the enumeration the general words are construed as confined to the class. The fixation of the meaning of such final general words presents little difficulty when they follow a series of specific words and restrictive effect is given to them limiting their operation to the company in which they find place. In such a case it is ordinarily not difficult to find out the genus constituted by the enumeration of the particular and specific words and the scope of the general words is limited to such genus. Difficulty however arises when the general lords follow a single word or expression as in the case before me where I have the expression suit followed by the general words legal proceedings. In such a case there being only one specie it is not possible to find out the genus constituted by such specie and unless a genus is indicated by the enumeration of the specie the principle of interpretation ejusdem generis cannot be made applicable. There are several decisions of the Courts in England which have taken the view that if the particular and specific words preceding the general words enumerate only one object so that no genus can be found there can be no room for the application of the ejusdem generis doctrine. I will refer only to two of the leading decisions of the English Courts on this subject but before I do so I might set out a passage from Craies on Statute Law which admirably summarises the legal position:

"There must be a category. The ejusdem generis rule is one to be applied with caution and not pushed too far as in the case of many decisions which treat it as automatically applicable and not as being what it is a mere presumption in the absence of other indications of the intention of the Legislature. The modern tendency of the law it was said is to attenuate the application of the rule of ejusdem generis. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words which apply not to different objects of a widely different character but to something which can be called a class or kind of objects. Where this is lacking the rule cannot apply. Unless you can find a category said Farwell L. J. (in Tilmans and Co. v. S. S. Knutsford (1908) A. C. 207) there is no room for the application of the ejusdem generis doctrine and where the words are clearly wide in their meaning they ought not to be qualified on the ground of their association with other words. For instance where local Act required that theatres and other places of public entertainment should be licensed the question arose whether a fun-fair for which no fee was charged for admission was within the Act. It was held to be so and that the ejusdem generis rule did not apply to confine the words other places to places of the same kind as theatres. So theinsertion of such words as or things of whatever description would exclude the rule."

(35) This passage clearly shows that the modern tendency of the law is to attenuate the application of the rule of ejusdem generis and unless a genus can be constituted by the species enumerated the rule of ejusdem generis cannot apply.

(36) In the leading case of Allen v. Emerson (1944) 1 K.B.362 the question arose whether the words other places of public entertainment occurring after the word theatre In a certain English statute were required to be construed ejusdem generis with the word theatre. The doctrine of ejusdem generis was invoked for the purpose of excluding fun-fair from the ambit of the words other places of public entertainment. The Court negatived the applicability of the ejusdem generis doctrine on the ground that no genus could be deduced from the mere word theatre which preceded the words other places of public entertainment and there was a scope for the application of the ejusdem generis rule and giving their plain and natural meaning to the words other places of public entertainments the Court held that fun-fair would be included within the ambit of those words. Asquith J. in a judgment both instructive and illuminating observed:

"......Words excepting a species from a genus are meaningless unless the species in question prima facie falls within the genus. All hats other then top hats makes sense. All top hats other then bowler hats does not:- nor does all hats and other articles except gloves if other articles is to be construed ejusdem generis with hats. Now the places covered by section 164 of the ct of 168-the places 'excepted.-do not fall within the assumed genus theatres and other similar places of public entertainments although there may be an overlap between the two. No case was cited to us in which a genus has been held to be constituted not by the enumeration of a number of classes followed by the words and other but by the mention of a single class (in this case theatres) followed by these words. The tendency of the more modern authorities is to attenuate the application of the ejusdem generis rule."

(37) It clearly follows from this decision that the full and natural meaning of general words cannot be restricted by particular and specific words which precede such general words when the particular and specific words enumerate only one object or specie for no genus can be constituted by the mention of only one object or specie.

(38) There are also observations of Lord Thankerton delivering the Judgment of the Privy Council in United Towns Elec. Co. v. A. G. Newfoundland (1939) 1 All E.R. 423 which support the view that the ejusdem generis doctrine cannot be applied where there is enumeration of only one specie preceding the general words. Those observations are to be found at page 428 of the report and are as follows :-

".... In their opinion there is no room for the application of the principle of ejusdem generis in the absence of any mention of a genus since the mention of a single specie for example water rates-does not constitute a genus....."

(39) I may also mention in this connection another decision of a Divisional Court of the Kings Bench Division in England were I find the same view has been taken. The words which came up for construction in this case were any quay or other place occurring in section 3 sub-section (1) of the import Export and Customs Powers (Defence) Act 1939 The section of the English statute imposed penalties on the exporter or his agent if any goods were brought to any quay or other place for the purpose of being exported in contravention of an order made under that statute. A grocer delivered to the residence of a nightwatchman employed at London Docks on Swedish ships consignments of coffee amounting in all to 666 lbs. The nightwatchman sold the coffee to Swedish and other seamen who took it on board their ships and either consumed it there and then or exported it. The nightwatchman accounted to the grocer for those sales and was paid commission on them. The export of coffee without a licence was prohibited by the Export of Goods (Control) (Consolidation) Order 1949 made under the relevant section of the statute. On these facts information was preferred against the nightwatchman as agent of the exporter for contravening section 3 sub-section (1) of the statute. The Magistrate dismissed the information on the ground that the words or other place in the section must be construed as ejusdem generies with the word quay and that the nightwatchmans residence was not ejusdem generies with a quay. This decision of the Magistrate was however reversed by the Divisional Court holding that the words or other place were not to be construed as ejusdem generies with the word quay and that the nightwatchmans house was accordingly a place within the meaning of the section. I shall have occasion to refer to this case once again a little later but suffice it to state for the present that this case also support the thesis that where there is enumeration of a single specie and no genus can be collected from it there can be no scope for the application of the ejusdem generis doctrine. This thesis also receives considerable support from the observations of the Supreme Court in The State of Bombay v. Ali Gulshan (1955) 2 S.C.R. 867. In that case also the Supreme Court was concerned with the applicability of the rule of ejusdem generis and Chandrasekhara Aiyar J. discussing the applicability of the rule said on behalf of the Supreme Court:-

"With great respect we are constrained to say that the ejusdem generis rule of construction which found favour in the court below for reaching the result that the words any other public purpose are restricted to a public purpose which is also a purpose of the State has scarcely any application. Apart frown the fact that the rule must to confined within narrow limits and general or comprehensive words should receive their full and natural meaning unless they are clearly restrictive in the intendment. it is requisite that there must be a distinct genus. which must comprise more than one species before the rule call be applied. If the words any other public purpose in the Statute in question have been used only to mean a State purpose they would become mere surplusage; Courts should lean against such a construction as far as possible.

(40) The words underlined by me in the aforesaid passage clearly show that general words even if they are preceded by particular and specific words must ordinarily receive their full and natural meaning unless they are clearly restrictive in their intendment and their full and natural meaning must not be confined within narrow limits by application of the rule of ejusdem generis unless there is a distinct genus comprising more than one species.

(41) On this ground alone the contention of Mr. I. M. Nanavati based on the applicability of the rule of construction ejusdem generis must fail since in the present case it is apparent that there is enumeration of only one object or specie namely suit preceding the general words 4 proceedings and from the enumeration of this single object or specie it is not possible to ascertain any definite class or genus to which the general words legal proceedings can be confined.

(42) But even apart from the objection that there is only one object or specie enumerated which cannot constitute the genus necessary for the application of the doctrine of ejusdem generis there is another objection and it is more fundamental. It must be remembered that valid only by virtue of form the doctrine of ejusdem generis is a dubious yard-stick. It has therefore to be applied with restraint and having regard to the fitness of the matter. It must not be pushed too far for after all it is only one of numerous rules of construction. Its operation is presumptive and not peremptory. The context of the statute must never be lost sight of for to ignore the context would make the intention of the Legislature subordinate to the doctrine. The doctrine instead of subserving the cause of interpretation of the intention of the Legislature would become the master of it. Being merely an aid to ascertainment of the intention of the Legislature and the ultimate object being really to ascertain such intention the doctrine should not be treated as automatically applicable and if there are other indications of the intention of the Legislature effect should be given to such intention even in disregard of the doctrine. I have therefore to consider whether having regard to the language the context and the object of the section the words legal proceedings must receive their plain and natural meaning or some limitative meaning must be placed upon them.

(43) Now the words legal proceedings according to their plain and natural meaning comprise any proceeding authorized by law and would as such include the present proceeding before the District Court for appointment of a member of the Committee under Clause 7 of the Scheme. The question is:- is there anything to show that this plain and natural meaning should not be given to these words but a limited or restrictive meaning should be placed upon them. These words are I think as wide as any and I see no reason for cutting down their full and natural meaning. There is nothing in the section which requires the Court to give a narrow or restricted meaning to these words. On the contrary there are at least three circumstances which clearly indicate that these words are not intended to have any limited or restrictive meaning.

(44) In the first place the word any preceding the words suit or legal proceeding is a word of expansion indicative of width and amplitude sufficient to bring within the scope and ambit of the words it governs all that can possibly be included in them. The word any is intended to remove any limitative or restrictive inhibition which might otherwise affect the full and natural content of the words it governs and since according to the ordinary rules of grammar the words any governs not only the word suit but also the words legal proceedings it is clear that the Legislature meant to include within the coverage of section 56B all legal proceedings and did not intend that any legal proceeding should be left out of the operation of the Section.

(45) The second circumstance which must weigh with the Court in coming to the conclusion that full and natural meaning must be given to the words legal proceedings and their meaning should not be cut down is the absence of the qualifying word other before the words legal proceedings. This word if present might have indicated that the first word suit intended to have a demonstrative or limiting effect and it must have been possible to build up an argument that the legal proceedings covered by the words other legal proceedings were legal proceedings of the same nature as a suit. But this word is conspicuously absent in sec. 56B and though too much weight must not be attached to this omission I think in the particular context of this section this omission is not without importance. This is only a small point but it does throw some little light on the intention of the Legislature.

(46) But the most weighty circumstance which compels me to reject the narrow construction contended for by Mr. I. M. Nanavati is the consideration of the object which section 56B is intended to serve. I may mention here that there is no settled formula by which any particular and definite meaning can be given in all cases to the words legal proceedings when they are preceded by the word suit. These words have different meanings in different statutes and it is not possible to lay down a general rule of interpretation which would be applicable in all cases. In each particular case the question has to be examined in reference to the context and that meaning has to be preferred which will best fit with it. As a matter of fact the Federal Court in the case of Governor-General in Council v. Shiromani Sugar Mills Limited f in liquidation) A. I. R. 1946 Federal Court page 16 held while interpreting the provisions of sec. 171 of the Indian Companies Act 1913 that even though the words occurring in that section were other legal proceedings they should not be narrowly construed having regard to other sections of the Act and the general scheme of administration of assets of company in liquidation laid down in the Act. I must therefore consider whether having regard to the object underlying the enactment of section 56B and the context in which the section occurs I should give the plain and natural meaning to the words legal proceedings Occurring in the section or I should interpret them in a narrow and restricted manner as suggested by Mr. I. M. Nanavati. Now it is abundantly clear that the object of section 56B is to protect the interests of the charity. The Charity Commissioner is constituted under the Bombay Public Trusts Act 1950 the sole custodian of the interests of the charity. The Charity Commissioner is there to see that religious or charitable purposes are properly and effectively carried out. The fasciculus of sections commencing with section 9 and ending with section 13 clearly shows that the Legislature has made ample provision to secure that public religious or charitable purposes are not defeated by reason of any defect or deficiency in the trusts which are merely the instruments to carry out such public religious or charitable purposes. It is really in furtherance of the intention of the Legislature to secure proper and effective fulfilment of public religious or charitable purposes and with a view to effectually carrying out the same that the Legislature has provided in section 56B that if in any suit or legal proceeding it appears to the Court that any question affecting public religious or charitable purposes is involved the Court should not proceed to determine such question until notice has been given to the Charity Commissioner so that the Charity Commissioner can appear before the Court if he thinks it necessary and make his submissions in order to protect the interests of the charity. The Charity Commissioner being constituted the sole custodian and entrusted with the duty of securing that public religious or charitable purposes are properly and effectively carried out and that the interests of the charity are not in any way injuriously affected the Legislature has provided in section 56B that the Charity Commissioner must have an opportunity of being heard before any question affecting a public religious or charitable purpose is determined. Now if this is the manifest and avowed object of section 56B is there any reason why the achievement of this object should be stultified by limiting the applicability of the section to any particular class of legal proceedings. It is impossible to conceive of any reason which could have induced the Legislature to enact that notice to enable the Charity Commissioner to protect the interests of the charity should be given in one class of legal proceedings and need not be given in another. The interests of the charity would require to be protected irrespective of the class of legal proceedings in which may be involved a question affecting such interests. This being the object which the section is intended to serve it is clear that the Legislature could never have intended that the words legal proceedings should bear such a narrow and restricted meaning. The attempt of Mr. I. M. Nanavati to restrict the meaning of these words to legal proceedings of an original nature must therefore in my opinion fail. The words legal proceedings must receive their full and natural meaning and they must be held to include within their scope and ambit all legal proceedings without any restriction or limitation including the proceeding before the District Court for appointment of a member of the Committee under clause 7 of the Scheme.

(47) That takes me to the third ground of attack levelled by Mr. I. M. Nanavati against the applicability of section 56B to the proceeding before the District Court. Mr. I. M. Nanavati contended that the proceeding before the District Court could not be said to be a legal proceeding in which any question affecting a public religious or charitable purpose was involved and section 56B was therefore not attracted. He urged that the question involved in the proceeding before the District Court was as to who should be appointed a member of the Committee under Clause 7 of the Scheme and that was not a question affecting a public religious or charitable purpose. Mr. B. R. Sompura and Mr. A. D. Desai on the other hand contended that the question of appointment of a member of the Committee under Clause 7 of the Scheme was undoubtedly a question affecting a public religious or charitable purpose since the appointment would necessarily have an effect one way or the other on the achievement or execution of the public religious or charitable purpose of the trust and the District Court therefore acted illegally in proceeding to determine the question of appointment of a member of the Committee without giving notice to the Charity Commissioner as required by section 56B. The question raised by these rival contentions is an important one from the point of view of administration of public trust and Mr. B. R. Sompura appearing on behalf of the Charity Commissioner strongly protested against a construction which would have the effect of depriving the Charity Commissioner of an opportunity to place his point of view before the Court in such an important matter as the appointment of trustees of a public trust. I may mention here that Mr. B. R. Sompura. frankly stated to the Court that the Charity Commissioner was not interested in preferring any one candidate to the other in so far as the present appointment to the Committee was concerned but that it was a question of principle which the Charity Commissioner wanted to be decided by the Court. In answer to a question from me Mr. B. R. Sompura stated that the Charity Commissioner was not opposing the appointment of Shri Navnitlal Ranchhoddas as a member of the Committee and that he did not want to make any submission contrary to the final decision of the District Court but what he was complaining of was the view of the District Court that no notice was necessary to be issued to him. Now I can appreciate the anxiety of the Charity Commissioner in this connection for the question as to who should be appointed a trustee of a public trust is undoubtedly a vital question affecting the administration of a public trust and it would indeed be a lamentable state of affairs if such an important question could be decided by the Court without any opportunity to place his point of view before the Court being given to the Charity Commissioner who is constituted the sole custodian of the interests of the charity. Whether such is the position in law has to be decided by me. Of course if the language of the section is clear and explicit then even if the result which it brings about is lamentable I would be bound to give effect to it howsoever I may regret to arrive at such result. But if the language is sufficiently wide and capable of bearing an interpretation which will accord more with a proper conclusion I would certainly prefer to put such interpretation in preference to the one which would lead to an objectionable and unjust result.

(48) On this part of the case the words which fall to be construed are any question affecting a public religious or charitable purpose. These words according to their plain and grammatical meaning obviously refer to any question which has an effect upon a public religious or charitable purpose. The question must be a question the determination of which one way or the other would have an effect upon a public religious or charitable purpose. The effect must of course be a direct and proximate effect and not an indirect or remote effect. This was not seriously disputed on either side but the real controversy centred round the question whether the effect of the appointment of a trustee of a public trust on the public religious or charitable purpose of such public trust could be said to be direct and proximate or indirect and remote. Now some illustrations were given in order to emphasize the argument on either side. Mr. I. M. Nanavati asked me to consider a case where a suit may be filed against the trustees of a public trust for evicting them from the premises in which the public religious or charitable purpose of the public trust might be carried on. The determination of the question whether the trustees should be evicted or not if adverse to the trustees might affect the public religious or charitable purpose of the public trust for the trustees may not be able to find another place where such purpose can be carried out as properly and effectively as it was being carried on in the premises forming the subject matter of the suit and this might produce an adverse effect on the execution of such purpose but can it therefore be said that a notice must go to the Charity Commissioner before the suit can be decided by the Court ? Mr. I. M. Nanavati also gave another illustration of a case where a suit may be filed against the trustees to recover a certain sum of money and posed the question that merely because if a decree is passed against the trustees the trust fund would be depleted and that might in its turn affect the execution of the public religious or charitable purpose of the public trust can it be said that such a suit cannot be disposed of by the Court without giving notice to the Charity Commissioner ? Mr. I. M. Nanavati is of course right when he says that in both these cases no notice would be necessary to be given to the Charity Commissioner under section 56 and the reason is simple namely that the question in either case cannot be said to be a question the determination of which would have a direct and proximate effect on the public religious or charitable purpose of the public trust. The effect if any would be indirect and remote by the intervention of other acts and circumstances. Mr. A. D. Desai on the other hand gave two illustrations which were clearly illustrations of direct and proximate effect. He gave the example of an application made for applying the funds of a public trust cy pres. There the question whether the funds of a public trust should be applied cy pres is undoubtedly a question a purpose. The determination of the question would clearly have a direct and proximate effect on a public religious or charitable purpose. So also in the case of the other example given by Mr. A. D. Desai namely where a suit is filed for the determination of the question whether a particular public religious or charitable purpose is within the objects of the public trust. But these illustrations cannot help me one way or the other in determining the question as to whether the effect which the appointment of a trustee of a public trust would have on the public religious or charitable purpose of the public trust can be said to be a direct and proximate effect or an indirect and remote effect. It is very difficult to say when the effect which a cause produces is a direct effect and when it is an indirect effect. The problem which arises is familiar in judicial process namely where to draw the line. It is always a question of degree and the best answer one can give is to say that it is not necessary to draw the line at any precise point. It is enough to say that the present case is on the right side of any reasonable line that can be drawn. As observed by Chitty J. in Levery v. Pursell (1888) 39 Ch. D. 508 at page 517 Courts of Justice ought not to be puzzled by such old scholastic questions as to where a horses tail begins and where it ceases. You are obliged to say This is a horses tail at some time. Following the advice of the learned Judge I may say in the present case without entering into any infinitely intensive analysis of the chain of causation that the appointment of a trustee of a public trust would have a direct and proximate effect on the public religious or charitable purpose of the public trust and that the question of appointment of a trustee of a public trust is therefore a question affecting a public religious or charitable purpose within the meaning of section 56B. It is obvious that if a trustee of a public trust happens to be an unfit person the execution of the public religious or charitable purpose of the public trust is certain to be adversely affected while if the trustee happens to be a fit person the cause of the public religious or charitable purpose would certainly be advanced. I is the trustees who are charged with the duty of carrying out the public religious or charitable purpose of the public trust and the achievement of such public religious or charitable purpose must therefore necessarily depend on competence or incompetence of the trustees. There is a direct nexus between the fitness or competence of the trustees and the achievement of the public religious or charitable purpose of the public trust. The former is bound to react on the latter and it is for this reason that the Legislature has prescribed in section 47(4)(c) that in appointing a new trustee of a public trust the Court must have regard to the question whether the appointment will promote or impede the execution of the public trust. This provision in my view puts the question beyond the pail of doubt and controversy and makes it abundantly clear that the question of appointment of a trustee is a question which has a direct and proximate bearing on the execution of the public trust and that it is consequently a question affecting a public religious or charitable purpose within the meaning of section 56 in the sense that it can promote or impede the achievement of the public religious or charitable purpose of the public trust. I am therefore of the opinion that the District Court was in error in taking the view that no notice was necessary to be given to the Charity Commissioner under section 56B before deciding as to who should be appointed a member of the Committee under Clause 7 of the Scheme.

(49) But that does not necessarily conclude the matter against Mr. I.M. Nanavati Mr. I. M. Nanavati pointed out that even if notice was necessary to be given to the Charity Commissioner under section 56B before disposing of the proceeding for appointment of a member of the Committee under Clause 7 of the Scheme I should not yet interfere in revision with the order passed by the District Court since the Charity Commissioner did not oppose the appointment of Shri Navnitlal Ranchhoddas as a member of the Committee or prefer Shrimati Sumatiben Morarji to Shri navnitlal Ranchhoddas for appointment as a member of the Committee. The contention of Mr. I. M. Nanavati was that the exercise of power under section 115 of the Code of Civil Procedure is discretionary and that I should not exercise such power for promoting a mere technicality which does not affect the sub

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stance of the matter. If the result of complying with the requirements of section 56B would not have made any difference argued Mr. I. M. Nanavati non-compliance with the requirements of that section should not induce me sitting as Court of revision to set aside an order which would have been the same even if the requirements of that section had been complied with. There is great force in this contention of Mr. I. M. Nanavati. Section 115 vests a discretionary power in the High Court. The High Court is not bound to interfere even if the conditions specified in any of the three clauses of the section are satisfied. Even if the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise oft jurisdiction the High Court will not interfere if the result of the interference would be to bring about injustice or promote mere technicality without advancing the cause of justice. The interference of the High) Court under the section is confined to cases where illegal assumption of jurisdiction or failure to exercise jurisdiction or illegality or irregularity in the exercise of jurisdiction committed by the subordinate Court is such that it has occasioned or might occasion a substantial failure of justice. The decision of the subordinate Court would not ordinarily be set aside by the High Court in revision upon a mere technicality when there is no real failure of justice. This rule is so well settled that no authority is needed in support of it but if any authority were needed it is to be found in Ramswaroop Raghuvardayal and others v. Mataprasad Prabhudayal. A.I.R. 1952 Madhya Bharat 8 and Narayan Kalita v. Mt. Bhabitri Deby and others A. I. R. 1952 Assam 46. These two decisions relate to cases where illegality or material irregularity was committed by the subordinate Court and notwithstanding the illegality or material irregularity the High Court refused to interfere in revision. In the present case also non-compliance with the requirements of section 56B constituted an illegality or material irregularity on the part of the District Court in the exercise of its jurisdiction and the ratio of these two decisions would therefore apply but since an argument was advanced by Mr. A. D. Desai that the rule underlying these two decisions was confined only to cases of illegality or material irregularity and did not extend to cases of illegal assumption of jurisdiction or failure to exercise jurisdiction and the District Court in making the appointment of Shri Navnitlal Ranchhoddas as a member of the Committee without giving notice to the Charity Commissioner under section 56 acted without jurisdiction two further decisions were cited by Mr. I. M. Nanavati which showed that the same rule applied also in cases where the subordinate Court acted without jurisdiction or failed to exercise jurisdiction vested in it. They were the decisions in A. I. R. 1931 Calcutta 425 (Mr. Kuti Baru Bibi v. Jitendra Nath Roy and others) and A.I.R. 1935 Madras R9 (T. P. Kuppuswami Pillai v. Alwar Chettiar). I need not refer to these two cases in detail for they lay down the same rule namely that the exercise of the power in revision is discretionary and that the High Court does not interfere in revision except in aid of justice. (50) It is therefore clear that the High Court is not bound to interfere in revision in all cases in which it is found that the subordinate Court has acted without jurisdiction or failed to exercise jurisdiction or acted illegally or with material irregularity in the exercise of jurisdiction. The High Court will exercise its revisional powers only in aid of justice and not merely to give effect to a technicality which will not further the ends of justice. If the interference of the High Court will bring about injustice or encourage abuse of the process of the Court or promote mere technicality without advancing the cause of justice or be futile the High Court will not interfere in revision even though the conditions v specified in any of the three clauses of the section are satisfied. " Applying these principles it is clear that no case is made out for interference with the order of the District Court. I may again mention that so far as the Charity Commissioner represented by Mr. B. R. Sompura is concerned he has no objection to the appointment of Shri Navnitlal Ranchhoddas as a member of the Committee and his revision application is not direct against the order of the District Court appointing Shri Nanvitlal Ranchhoddas as a member of the Committee. His revision application is directed only against the order passed by the District Court holding that no notice was necessary to be given to the Charity Commissi oner before appointing a member of the Committee. Mr. B. R. Sompura apparing on behalf of the Charity Commissioner has therefore not pressed for setting aside the order of the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee. The grievance against the order of the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee has been made only by the petitioners represented by Mr. A. D. Desai. Mr. A. D. Desai contended that the order of the District Court should be set aside on the ground of non-compliance with the requirements of sec. 56B since such non-compliance has resulted in failure of justice. Mr. A. D. Desai made a valiant but futile attempt to bring his case within the principles set out above by raising the following contentions. (51) In the first instance Mr. A. D. Desai contended that the petitioners might not have led full evidence before the District Court knowing or at least believing that the proceedings before the District Court were illegal by reason of non-compliance with the requirements of section 56B and that if that be the position the petitioners would be considerably prejudiced by refusal to interfere with the order of the District Court in revision. This contention of Mr. A. D. Desai is in my opinion totally devoid of force. As a matter of fact there is no factual foundation for this contention. There is an affidavit filed in support of the revision application preferred by the petitioners but it is not even stated in this affidavit that the petitioners did not lead full evidence since they carried the impression that the proceedings before the District Court were vitiated by reason of refusal of the District Court to issue notice to the Charity Commissioner. There is nothing to show that the petitioners could have led any further evidence which they did not lead owing to any such impression. On the contrary the facts on record clearly show that the petitioners led whatever evidence they desired to lead. On 10th February 1962 the Court first passed an order rejecting the application of the petitioners to add the Charity Commissioner as a party to the proceedings or in any event to issue notice to the Charity Commissioner. The petitioners thereupon made an application for an adjournment of the proceedings but that application was rejected and thereafter the District Court took up the main application for further hearing. On the previous date of hearing the petitioners had been given an opportunity to produce evidence to show that Shrimati Sumatiben Morarji had in the past evinced interest in the welfare of the institution and the matter had been adjourned for the purpose. The petitioners therefore filed an affidavit on 10th February 1902 made by one Pandya Purshottamdas who claimed to be the priest of Shrimati Sumatiben Morarji. The petitioners thus led evidence in the shape of this affidavit even though the proceedings were continued by the District Court without giving notice to the Charity Commissioner. If the petitioners wanted to lead any further evidence they would have certainly led such evidence along with the evidence in the shape of this affidavit. The petitioners not only led evidence in the shape of this affidavit but also participated in the proceedings after the District Court had made the order declining to issue notice to the Charity Commissioner. It is therefore entirely incorrect on the part of the petitioners now to allege that the petitioners did not lead full evidence on the basis that the proceedings were illegal or that they would be prejudiced if the order of the District Court is not set aside in revision. (52) The second ground on which Mr. A. D. Desai pressed that I should interfere with the order of the District Court in revision was that if notice notice had been issued to the Charity Commissioner the petitioners would have had an opportunity to persuade the Charity Commissioner to support the candidature of Shrimati Sumatiben Morarji in preference to that of Shri Navnitlal Ranchhoddas and that such opportunity had been denied to there by reason of non-compliance with the requirements of sec 56B. It is a little difficult to appreciate this contention Section 56B is intended to enable the Charity Commissioner who is the custodian of the interests of the charity to put forward his point of view before the Court so that the interests of the charity may not be adversely affected by reason of any particular point of view not being presented before the Court But the section is not intended to enable a party to a suit or legal proceeding to have an opportunity to persuade the Charity Commissioner to adopt one view or the other in regard to a question involved in the suit or legal proceeding No party in a litigation can complain of want of notice to the Charity Commissioner on the ground that by not giving such notice he was deprived of an opportunity of persuading the Charity Commissioner to adopt a view in conformity with his stand But even apart from this argument I do not see how the petitioners can complain that opportunity to persuade the Charity Commissioner to support their stand was denied to them by reason of the District Court refusing to the notice to the Charity Commissioner There was noting to prevent the petitioners from approaching the Charity Commissioner any time to persuade him to support their stand even without notice under section 56B. I do not see how the issue of notice under section 56B could possibly advance the position of petitioners or in any way improve the situation in which they were placed The notice under section 56B being intended merely to they the Charity Commissioner the a question affecting a public religious or charitable purpose was involved in the legal proceeding so that the Charity Commissioner could come forward and place his point of view before the Court if he so desired the petitioners themselves could have gone to the Charity Commissioner if they wanted to enlist his support and informed hi bout the legal proceeding before the District Court and persuaded him to support the petitioners even without notice being to him to him under section 56B I do not there are see how the petitioners can contend that they were prejudiced by non-compliance with the requirements of section 56B. (53) The net result of this discussion therefore appears to be that no prejudice was caused to the petitioners by reason of the District Court not giving notice to the Charity Commissioners as required by section 56B Even if notice had gone to the Charity Commissioner there would have been no difference in the ultimate result for the Charity Commissioner did not object to the appointment of Shri Navnitlal Rachhoddas as member of the Committee or prefer Shrimati Sumatiben Morarji to Shri Navnitlal Ranchhoddas as member of the Committee. So far as the petitioners were concerned they had an opportunity to say all that they liked bearing upon the question as to who should be appointed as a members of the Committee and there was nothing more which would have been brought before the District Court even if notice had been given to the Charity Commissioner under sec. 56B. No prejustice or injudice has resulted to the petitioners by reason of notice not having been given to the Charity Commissioner and having regard to the stand taken up by the Charity Commissioner on the merits my interference with the order of the District Court will be futile and its effect will be merely to promote technicality without in any manner advancing the cause of justice. I do not therefore see any reason to interfere with the order of the District Court. (54) In the result Revision Application No. 347 of 1962 fails and will be dismissed. Each party will bear and pay his own costs of the revision application. So far as Revision Application No. 349 of 1962 is concerned there will be no order on the revision application since the order of the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee does not call for interference in revision but inasmuch as the Charity Commissioner has succeeded in the main contention arising in this revison application he must get the costs of the revision application. Such costs shall be paid to him out of the trust funds. Opponents Nos. 1 to 5 and 7 to 9 will bear their own respective costs of the revision application. Application dismissed.
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