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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No. 11433 of 2007

For Approval and Signature:

HONOURABLE MR.JUSTICE JAYANT PATEL

=========================================================
Whether Reporters of Local Papers may be allowed
1 to see the judgment ?

2 To be referred to the Reporter or not ?

Whether their Lordships wish to see the fair copy

3 of the judgment ?

Whether this case involves a substantial question

of law as to the interpretation of the
4 constitution of India, 1950 or any order made
thereunder ?

Whether it is to be circulated to the civil judge

5 ?

=========================================================
DEVKRUSHNADASJI GURU DHARMADASJI & 3 - Petitioner(s)
Versus
THE STATE OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR SB VAKIL AND MR ND NANAVATI FOR DP KINARIWALA for Petitioner(s) :
1 - 4.
GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
MR YF MEHTA for Respondent(s) : 1,
MR HARIN P RAVAL for Respondent(s) : 2,
MR JJ YAJNIK for Respondent(s) : 2,
MR RA MISHRA for Respondent(s) : 3,
None for Respondent(s) : 4,
=========================================================
CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL

Date : 24/01/2008

ORAL JUDGMENT

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1. The petitioners have preferred the petitioner

for appropriate writ to quash and set aside the

order dated 2.2.2007 passed by the Joint Charity

Commissioner, Rajkot under Section 41A of the

Bombay Public Trust Act (hereinafter referred to

as “the Act”) below Application No.41/5/07. The

petitioners have also prayed to issue

appropriate writ of prohibition against the

respondents from proceeding further upon the

application filed by respondents No.2, 3, and 4

under Section 41A of the Act.

2. Heard Mr.S.B.Vakil and Mr.N.D.Nanavati, learned

Sr. Counsel with Mr.Kinariwala, learned Counsel

for the petitioners, Mr.Y.F.Mehta, learned

Counsel for the Charity Commissioner, who is

titled as State of Gujarat, Mr.P.M.Thakkar,

learned Sr. Counsel for respondent No.2,

Mr.K.S.Nanavati, learned Sr. Counsel for

respondent No.3 and Mr.Yagnik, learned Counsel

for respondent No.4.

3. It has been contended on behalf of the

petitioners that the Charity Commissioner has no

power under Section 41A of the Act to issue the

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interim directions, which are issued as per

Annexure “A”. It is also submitted that the

petitioner No.1 had submitted change report

under Section 22 of the Act, whereby respondent

No.2 was removed as the Trustee and he also

submitted another change report whereby

petitioner Nos.2, 3, and 4 are appointed as the

Trustees and in response to the said change

report, the objections are filed and the matter

is yet to be inquired under Section 22A of the

Act. Therefore, the direction, if any, can be

given by the competent officer namely; The

Assistant or the Deputy Charity Commissioner,

who has to exercise the power under Section 22

read with Section 22A of the Act and not the

Joint Charity Commissioner or the Charity

Commissioner under Section 41A of the Act. It

has been further submitted that when there is

express power under Section 22 read with Section

22A of the Act for deciding the question as to

whether the Trustees are rightly appointed or

rightly removed, the power under Section 41A

cannot be resorted to, which can be said as

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residuary power. In furtherance to the

submission, Mr.Vakil contended that even if the

powers under Section 41A of the Act are to be

resorted to, then also such powers can be

exercised only in cases, which are falling under

Sections 32 to 41 of the Act and are not

available in any other case and, therefore also,

in his submission, the order can be said to be

without authority or jurisdiction. In support

of his submission, he relied upon the decision

of this Court in case of “Syedna Mohamed

Burhanuddi the 52nd Dai-ul-Multaq and Head of the

Dawoodi Bohra Community v. Charity Commissioner,

Gujarat State, Ahmedabad and Others”, reported

in 1992(1) GLH, 331 and he mainly emphasized

upon the observations made by the Division Bench

in the said decision at para 36, where the

language used is “the only purpose which,

therefore, Section 41A serves is to empower the

Charity Commissioner to issue directions in

respect of matters failing under Section 32 to

41”.

4. He also contended that the aforesaid decision of

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the Division Bench has subsequently followed by

this Court in case of “Navinchandra Jasani &

Ors. v. Pravinchandra Jasani & Ors.”, reported

in 2003(1) GLR, 392 and, therefore, he submitted

that in a matter where the subject matter is

concerning to the change of Trustees, it would

fall outside the scope and ambit of Sections 32

to 41 of the Act and, therefore, the order can

be said as without jurisdiction. It was also

submitted that when the application under

Section 41A of the Act was filed before the

Charity Commissioner, the petitioners did raise

preliminary objections regarding the

maintainability of the application and it was

required for the Charity Commissioner to decide

the preliminary points and he ought not to have

examined the other merits of the matter. In

spite of the same, the other aspects of the case

are examined and, therefore also, the order is

bad in law. He also contended that the other

side is mainly relying upon the another decision

of Division Bench (Coram: Mr.Justice

R.K.Abichandani (as he then was) and Mr. Justice

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D.H. Waghela) of this Court in case of “Navsari

Taluka Halpati Shikshan Prachar Sangh v. Joint

Charity Commissioner” (LPA No.2 of 2004 in SCA

No.16051 of 2003), but, in his submission, the

Coordinate Bench of this Court namely the other

Division Bench could not have taken a different

view, unless reference was made to Larger Bench

and he also contended that the observations made

by the Division Bench in the later judgement in

case of Navsari Taluka Halpati (supra), more

particularly at para 6 can be said as per

incurium and, therefore, he submitted that this

Court may not rely upon the later decision of

the Division Bench of this Court in case of

Navsari Taluka Halpati (supra). He submitted

that as the order has been passed without

jurisdiction, the same be quashed by this Court

and appropriate writ of prohibition may be

issued by this Court restraining the Charity

Commissioner from proceeding with the

proceedings under Section 41A of the Act.

5. Mr.Thakkar, learned Counsel appearing for

respondent No.2 by relying upon the Trust Deed

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contended that the petitioner No.1 was the

Managing Trustee, however, vide Resolution dated

17.11.2006 of the meeting, copy whereof is

produced at page 46, in which the petitioner

No.1 was also present, in his place, as the

Managing Trustee, Shri Balakrishnadas Swamy was

appointed as the Managing Trustee and various

businesses were transacted at the said meeting

to ensure that the functioning of the Trust is

transparent and is being made for the larger

interest of the beneficiaries, including that of

proper accounting of the income and expenditure,

the constitution of the local committee for

advice, etc. He submitted that based the said

resolution change report was also submitted by

the petitioner No.1 under his signature, which

is subsequently withdrawn by him without there

being any authorization by the resolution of the

other Trustees. He submitted that thereafter

the petitioner No.1 on his own, on 13.1.2007

based on the opinion of one Advocate Shri

Thakkar, removed respondent No.2 as the Trustees

and on 17.1.2007, he on his own, appointed

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petitioners No.2, 3, and 4 as the Trustees of

the Trust and the change reports without

authority were filed, which are objected by

respondents. Mr.Thakkar submitted that the

action of the petitioner No.1 for removal of

respondent No.2 and to appoint petitioners No.2,

3, and 4, can be said as not supported by any

resolution of the Trustees, contrary to the

Trust Deed and without there being any authority

with him for such action. He also submitted

that after the impugned order was passed –

Annexure “A” by the Joint Charity Commissioner

on 13.3.2007 pending the proceedings the

application was submitted for extension of the

interim order passed earlier and below the said

application the learned Counsel for the

petitioners did not object for extension and

based on such declaration, the Charity

Commissioner passed the order of concluding the

pleadings and hearing of Ex.1 and only then the

interim order is continued till further orders.

He, therefore, submitted that in view of the

aforesaid conduct on the part of the petitioners

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in declaring before the Charity Commissioner no

objection for extension, they would not be

entitled to challenge the earlier order dated

2.2.2007 and in any case, would not be entitled

to invoke the discretionary jurisdiction by this

Court as they are estopped from assailing the

order dated 2.2.2007 in view of the subsequent

conduct on 3.3.2007 before the Jt. Charity

Commissioner. Mr.Thakkar submitted that if the

normal mode of removal is not followed or if the

action is in contrary to the Trust Deed, there

is power with the Charity Commissioner under

Section 41A to issue directions. He submitted

that such powers are read by the Division Bench

Judgement of this Court in case of Navsari

Taluka Halpati (supra). He also relied upon the

provisions of Section 69A read with Section 3 of

the Act to show that there are powers of General

Superintendent over the administration of the

Trust and, therefore, in any case, the Charity

Commissioner will have power to issue the

directions. He also relied upon another

decision of this Court (Coram: N.N. Mathur, J.)

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reported in 1997(1) GLH, 16 and he pressed in

service the observations made by this Court in

the above referred judgement, at para 11, 12,

and 13. Mr.Thakkar also relied upon another

judgement of the Single Judge of this Court

reported at 2005(9) GJH, 613 and pressed in

service, the observations made at para 30 of the

said decision. He, therefore, submitted that

the order cannot be said as without

jurisdiction.

6. Mr.Thakkar, learned Counsel for the petitioners

also contended that pending the petition the

hearing before the Charity Commissioner below

Ex.1 has proceeded and the petitioners have also

participated in the said proceedings. However,

in view of the oral direction of this Court, the

Charity Commissioner has passed the order, but

has put it in the sealed cover and, therefore,

he submitted that in view of the subsequent

change in the circumstances, this Court may

consider the matter for declaring the petition

as having become infurctuous since the

petitioners may have the remedy to challenge the

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final order and when this Court is to consider

the matter, the view of the Charity Commissioner

expressed finally below the main application may

also be considered.

7. Mr.Nanavati, learned Counsel appearing for

respondent No.3, while supporting the

submissions made on behalf respondent No.2

contended that if this Court is considering that

there is power with the Charity Commissioner to

issue the directions, whether application is

moved under Section 41A or the power is

exercised by the Charity Commissioner under

Section 41A or Section 69(a) would be irrelevant

and it cannot be said that there is no power at

all with the Charity Commissioner to issue such

directions. He contended that the directions

issued by the Charity Commissioner and the power

conferred under Section 41A read with Section

69(a) be read, keeping in view the intention of

the Legislature and the conferment of the

general powers of Superintendence vested to the

Charity Commissioner under Section 3 of the Act.

He submitted that Section 41A can be segregated

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into two parts for exercise of the power by the

Charity Commissioner; first part deals with the

proper administration and the second part deals

with the proper accounting of the income and its

due appropriation for the purpose of the Trust

and, therefore, he submitted that if the first

part of Section 41A is considered, the Charity

Commissioner has power to issue the directions

for proper administration of the Trust, which

would include the question of removal or

induction of the Trustees and to meet with the

interim situation arising therein, either under

Section 22A or other situations which are not

contemplated or foreseen in under the Act. He

also submitted that the business transacted at

the meeting on 17.11.2006 were essentially to

see that there is proper functioning of the

Trust and the income is accounted and the proper

record is maintained under the Supervision of

the Trustees and there is also local committee

appointed but the same was not acceptable to

petitioner No.1, subsequently the change report

is withdrawn and the action is taken for removal

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and for induction of new Trustees. He,

therefore, submitted that in such situation, the

order cannot be said as without jurisdiction

under Section 41A or the other provisions of the

Act.

8. Mr.Yagnik, learned Counsel appearing for

respondent No.4 mainly supported the submissions

made on behalf of the respondents No.2 and 3 and

he contended that there is power with the

Charity Commissioner to issue interim

directions. He contended that the direction

issued by the Charity Commissioner under Section

41A(1) is binding under Sub-Section(2) of the

said Section to all Trustees and, therefore, it

is not open to the petitioners to challenge the

said directions.

9. Mr.Mehta, learned Counsel appearing for the

Charity Commissioner submitted that the

preliminary point has been considered by the

Charity Commissioner in the impugned order and

directions have been issued for larger interest

of the Trust. He also submitted that pending

petition after hearing both the sides, the

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Charity Commissioner has also passed the order,

but since the oral direction was issued not to

pronounce the order and to put it in a sealed

cover, the Charity Commissioner has acted

accordingly and he submitted that the Charity

Commissioner may be permitted to pronounce the

order.

10.Mr.Vakil and Mr.N.D.Nanavati, learned Counsel

appearing for the petitioners, in response to

the submissions made on behalf of the

respondents, further contended that the petition

cannot be said as having become infructuous,

more particularly because pending the petition

hearing has proceeded, but there was oral

directions issued by this Court not to pronounce

the order and to put it in sealed cover. He

also submitted that the no objection below

application for extension would not operate as a

bar to the petitioners, if there is no power

with the Charity Commissioner under the law and

in his submission, in any case, the reliefs

prayed in para 8(C) being the writ of

prohibition cannot be said as barred if there is

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no power with the Charity Commissioner to

continue with the proceedings under Section 41A

of the Act. He submitted that the equity cannot

override the express provisions of law and,

therefore, if there is no power with the Charity

Commissioner under Section 41A of the Act, this

Court may issue writ of prohibition. He also

submitted that the later decision of the

Division Bench of this Court in case of Navsari

Taluka Halpati (supra) was in facts of the case

that the Charity Commissioner had issued the

directions for holding of the election of the

Trustees and such fact situation cannot be said

at par with the present case and, therefore, the

observations made by the Division Bench in the

judgement in the aforesaid case may not apply to

the facts of the present case, whereas in his

submission, the earlier decision of the Division

Bench in case of “Syedna Mohamed Burhanuddi”

(supra) would apply since it was a decision

rendered by the Division Bench while examining

the powers under Section 41A of the Act.

However, he fairly submitted that as per the

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observations made by the Division Bench in case

of “Syedna Mohamed Burhanuddi” (supra) the

Division Bench has not read down the provisions

of Section 41A of the Act. He also submitted

that the judgement of this Court (Coram: N.N.

Mathur, J.) would not apply to the facts of the

present case and more particularly when there is

express provisions under the Act of deciding the

dispute for appointment or removal of Trustees

under Section 22 of the Act. He submitted that

Section 69(a) would have no applicability when

the Charity Commissioner is exercising the power

under Section 41A of the Act and in any case,

the powers under Section 69(a) of the Act would

also have no applicability when there is express

provisions under the Act and, therefore, he

submitted this Court may issue appropriate

directions.

11.For the scope and ambit of power under Section

22 of the Act, Mr.Vakil relied upon the

judgement of this Court in case of “Shantilal

Khimchand & Ors. v. Mulchand Dalichand & Ors.,”

reported in 1962 GLR, 117 and more particularly

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the observations made at page 121. It has been

submitted on behalf of the petitioners by the

learned Counsel that when there is express

provisions under Section 22 of the Act, this

Court may not expand the scope of Section 41A of

the Act so as to enable the Charity Commissioner

to exercise the power in all such matters, where

the Trustees are appointed or removed.

Therefore, it has been submitted that this Court

may issue appropriate directions.

12.Section 41A of the Act for ready reference reads

as under:-

“Section 41A.:-

For Gujarat only – Power of Charity

Commissioner to issue directions to Trustees

and other persons

(1) Subject to the provisions of this Act,

the Charity Commissioner may, from time to

time, issue directions to any trustee of a

public trust or any person connected

therewith to ensure that such trust is

properly administered and the income thereof

is properly accounted for or duly

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appropriated and applied to the objects and

for the purpose of the trust.

(2) It shall be the duty of every such

trustee and person to comply with a

direction issued to him under sub-section

(1).”

13.This Court had an occasion to consider the

challenge made to Section 41A of the Act

(“Syedna Mohamed Burhanuddi” (supra)) and after

considering various provisions of the Act at

para 36, the Division Bench of this Court

observed as under:-

“36. A quick glance at these provisions

to which all religious trusts are subject

makes it clear beyond any doubt that the

three matters which Section 41A provides for

– (a) proper administration of a public

trust, (b) proper accounting of its income,

and (c) due appropriation and application of

the income to the objects and for the

purposes of the trust – are abbreviated

expressions of those very matters which

Sections 32 to 41 provide for. The only

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purpose which, therefore, Section 41A serves

is to empower the Charity Commissioner to

issue directions in respect of matters

falling under Sections 32 to 41. It is,

therefore, merely an enabling and ancillary

provisions intended to make the

implementation and enforcement of the

provisions of Sections 32 to 41 more

effective. In our opinion, therefore, by

enacting Section 41, the Legislature has not

introduced any new principle which is not

there elsewhere but has merely filled in an

lacuna in the effective implementation of

the provisions of the said Act. We are,

therefore, unable to countenance an argument

that though Sections 32 to 41 are valid,

Section 41 is not. Even though Section 41A

is intended to confer upon the Charity

Commissioner only such an ancillary power,

the Legislature has been careful enough to

circumscribe the power of the Charity

Commissioner by subjecting it to the

provisions of the said Act. The impugned

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section, therefore, opens with the

expression “Subject to the provisions of

this Act”. In our opinion, therefore, it

does not impinge upon any fundamental right

of a person or a religious denomination and

it does not suffer from any constitutional

infirmity. In that view of the matter, it

is not necessary for us to read it down so

as to exclude its application to religious

trusts. The first contention, raised by

Mr.Sen, therefore, fails and we reject it.”

14.It is hardly required to be stated that the

observations made by the Court in its judgement

are to be read in facts of that case and cannot

be read in piece meal, but are to be read

keeping in view the other observations too. The

first contention, raised before the Division

Bench in the aforesaid decision, was that

Section 41A is ultra vires Articles 25 and 26

and it was also alternatively contended that it

be read down so as to hold that it has no

application to the Public Trust of the religious

denominations. The aforesaid aspect is apparent

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on the last four lines of para 20 of the above

referred decision of the Division Bench.

Therefore, while examining the contents of

Section 41A of the Act vis-a-vis the provisions

of Article 25 and 26 of the Constitution of

India, the aforesaid observations are made and

second aspect is that the Court also considered

the question as to whether the provisions of

Section 41A should be read down or not. This

Court in the aforesaid decision in view of the

observations made, which are reproduced herein

above, expressly negatived the contentions that

Section 41A of the Act violates Article 25 and

26 of the Constitution of India to apply to the

Trust of a religious domination and it also

negatived the contention that Section 41A should

be read down. Therefore, the consequential

effect is that Section 41A of the Act exists on

the statute book as it was and this Court itself

has bifurcated Section 41A into three parts; (a)

for proper administration of a Public Trust; (b)

for proper accounting of the income and (c) for

due appropriation and application of the income

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to the objects and for the purposes of the

Trust. Therefore, the subsequent observations,

which are pressed in service by the learned

Counsel for the petitioners can be said as for

touching to proper accounting of the income and

its due appropriation and application of the

income to the objects and purpose of the Trust.

15.Therefore, such observations cannot be read as

for curtailing the scope under Section 41A and

more particularly, the above referred part (a)

as sought to be canvassed. The aforesaid is

supported by the subsequent order of the

Division Bench of this Court in the case of

Navsari Taluka Halpati(Supra) in which, at para

7, it was observed by the Division Bench as

under:

“The power of the Charity Commissioner to

issue directions to ensure that the
trust is properly administered is by its
very nature a wide power.
Administration of a trust would mean
administration by a body which under the
trust deed is required to administer the
same. When the trust deed provides for a
periodical election of the trustees
for the purpose of administration of the
trust and if the body is not

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constituted as required by the terms of the

trust deed, the Charity Commissioner
would have powers to give directions
for holding the election as contemplated by
the trust deed which will have a direct
impact on the aspect of administration
of the trust, because, in absence of a
properly elected body as required by the
trust deed, a proper administration of the
trust cannot be ensured. The direction
requiring an election to be held as per
the terms of the trust deed would,
therefore, fall within the powers
of the Charity Commissioner to ensure proper
administration of the trust. The
administration of the trust would include
various aspects which would fall under
the provisions of the Act and in
absence of a properly constituted
administrative body, the affairs of
the trust can hardly be conducted in
furtherance of its objects. It is,
therefore, clear that the directions to
hold elections of the trustees in
consonance with the terms of the trust deed
would clearly fall within the ambit of
Section 41-A of the Act.”
16.Therefore, it cannot be said that the later

decision of the Division Bench in the case of

Navsari Taluka Halpati(Supra) is taking a

different view than the view taken by the

earlier Judgement of this Court in the case of

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Syedna Mohamed Burhanuddin (Supra).

17.The reliance placed upon the decision of this

Court in the case of Navinchandra Jasani & Ors.

(Supra) by the learned counsel for the

petitioner is also ill-founded inasmuch as, in

the said case, the facts before the Court was

that certain persons applied for becoming the

member of the Trust on the ground that they were

originally native of Veraval who were required

to stay outside Veraval for professional

purposes and such membership was denied by the

Trust and therefore, the powers were invoked

under Section 41A to treat the members who were

denied membership at par with the other persons

who were members of the Trust and to restrain

the trustees from using the properties of the

Trust as beneficiaries and to direct the Trust

to admit them as members. In the said case,

until the person is admitted as member, no right

would flow even as per the Trust Deed and

therefore, in context to the fact situation of

the said case, it was observed by this Court

inter alia at para 6 that -

“The question of right to be admitted as

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members of the Trust is an independent right

which a person may be claiming upon the terms
and conditions of the Trust against the
Trustees of the Trust. In assertion of such
right, an inquiry is required to be held for
the purpose of establishing the case to
whether the applicants who are the
ascertaining the right, are covered by the
eligibility criteria of becoming the members
or not.”

It was observed by the Court that such process

would require adjudication of the facts and

therefore, as the process of adjudication is not

envisaged under Section 41A of the Act, it was

observed by this Court that the order is outside

the scope of Section 41A of the Act. No such

fact situation arises in the present case and as

observed earlier, by picking up certain

sentences or the observations in part, it can

hardly be said that a particular proposition is

laid down or a binding precedent is there to

hold the field. Therefore, the said decision is

of no help to the petitioner.

18.It is true that in the later decision of the

Division Bench of this Court in the case of

Navsari Taluka Halpati(Supra), it was a case for

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ordering of election of the Trustees as per the

Trust Deed by the Charity Commissioner in

exercise of the powers under Section 41A of the

Act, but for examining the scope and ambit of

Section 41A of the Act, as observed earlier, the

Division Bench of this Court in the later

Judgement in the case of Navsari Taluka

Halpati(Supra), after considering the earlier

decision of the Division Bench of this Court in

the case of Syedna Mohamed Burhanuddin (Supra),

has supplemented the view for the scope and

ambit of Section 41A of the Act. The

observations made by the another Division Bench

of this Court in the later decision can be made

applicable for giving effect to first part of

Section 41A, i.e. as that of proper

administration of the Trust. Therefore, this

Court cannot accept the contention of Mr. Vakil

that the later decision of the Division Bench of

this Court in the case of Navsari Taluka

Halpati(Supra) since is taking a contrary view

to the earlier decision of the Division Bench of

this Court without their being any reference to

any larger Bench be ignored or by held as per

incurrium. Such question may arise if there is

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conflict of two views of two coordinate Bench of

this Court. As observed earlier, there is no

conflict but the later decision of the Division

Bench is supplementing the view which earlier

the Division Bench in the case of Syedna Mohamed

Burhanuddin (Supra) did observe for part (a) of

Section 41A i.e. for proper administration of

the Trust. Therefore, the contention is

misconceived and cannot be accepted.

19.In view of the aforesaid observations, it can be

said that under Section 41A of the Act, the

Charity Commissioner has power to issue the

directions to any trust, trustee or public trust

or any person connected therewith to ensure that

such trust is properly administered.

20.There cannot be any dispute to the proposition

that when there is express power provided under

statute for dealing with a particular situation,

the general power or the residuary power cannot

be made applicable. Section 22 of the Act read

with Section 22A of the Act does provide for the

submission of the change report and holding of

inquiry. Therefore, in a given case, if the

matter falls under Section 22 read with Section

22A of the Act, it cannot be the subject matter

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of issuing directions under Section 41 A of the

Act. However, it is by now well settled that if

the action is wholly without jurisdiction or

beyond the scope and ambit of the power, the

matter would fall outside the applicability of

such provision. Therefore, merely because the

change report is filed or is objected, would not

be a sufficient ground to oust the jurisdiction

under Section 41A of the Act by the Charity

Commissioner. However, if the action of

submitting change report or a change is in

purported exercise of power for brining about

the change, then in that case, it would be a

case to be considered under Section 22 of the

Act read with Section 22A of the Act. But, if

the action of brining about the change and

thereby, consequently filing the change report

is dehors the Trust Deed or wholly without

jurisdiction on the part of any of the Trustees,

it would be improper to construe that the matter

would not fall in the domain of proper

administration of the Trust under Section 41A of

the Act, but would only fall under Section 22

read with Section 22A of the Act.

21.Applying the aforesaid principles, if the facts

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of the present case are considered, it appears

that the Trust Deed is admitted by both sides

and with regard to the existence of the Trust

Deed and any terms incorporated therein, there

is no dispute. The power as per the Trust Deed

was retained by the settler of the Trust, viz.

Shastri Dharmajivandasji, to function as main

trustee and also managing trustee with five

gentlemen having faith in the Swaminarayan

Sampraday. He also retained the power to add or

reduce the number of trustees and to fill-up the

vacancy. It is also an admitted position that

during the lifetime of Shastri Dharmajivandasji,

the settler of the Trust, petitioner No.1 was

appointed as trustee but neither as managing

trustee nor as the main trustee. It is also an

admitted position that after the death of

Shastri Dharmajivandasji all the remaining

Trustees by majority, have appointed the

petitioner No.1 as the managing trustee vide

resolution of the year 1988. It is also an

admitted position that the petitioner No.1 has

continued throughout as the managing trustee

since 1988 together with the other trustees. It

prima facie appears that the dispute arouse

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after resolution dated 17.11.2006. It is true

that as per the respondent Nos. 2 to 4, as per

the said resolution, the petitioner No.1 is

substituted as Managing Trustee by Swami

Balkrishnadasji. However, as the petitioner

No.1 has not admitted the said resolution, no

discussion is required, but even if the position

is considered as that of prior to resolution

dated 17.11.2006, at the most, the petitioner

No.1 can be said as managing trustee exercising

the power as per the Trust Deed. Prima facie it

appears that when the petitioner No.1 is not the

settler of the Trust and when the Trust itself

is a Public Charitable Trust formed with the

laudable purpose of espousing the principles of

Swaminarayan Sampraday, it cannot be said that

such Trust can be treated at par with the

private Trust nor can it be said that the Trust

is not governed by the provisions of the Act.

As such, with a view to regulate the the

religious and charitable Public Trust, the Act

has been enacted. The Trust Deed on its face

value prima facie has not provided for any power

of removal nor there is any express provision

made in the Trust Deed for removal. Therefore,

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the action of removal of respondent No.2 by the

petitioner No.1 can prima facie be said as

wholly without power and authority under the

Trust Deed. Further, the very appointment of

the petitioner No.1 as the Managing Trustee was

by majority of the trustees as was in the year

1988. Even if the general principles are made

applicable with power to appoint includes power

to remove, then also, such power prima facie can

be read with the composite bodies of all

trustees by majority and cannot be read in

isolation with managing trustee alone. So will

be the situation in the case of appointment of

new trustees by the composite body of all

trustees with the majority decision. It is

neither the case of the petitioner nor pleaded

that the removal of the trustee of respondent

No.2 is by majority of the trustees or addition

of the Trustee viz. petitioner Nos. 2 to 4 is by

the majority decision of the Trustees. However,

the case of the petitioner No.1 prima facie

appears to be that since he was appointed in

place of settler of the Trust Shastri

Dharmajivandasji, he enjoys all powers as was

being held by the settler of the Trust Shastri

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Dharmajivandasji and therefore, he has power to

remove any trustees and to appoint any trustees

without their being any resolution of the

remaining trustees or a composite body of the

trustees by majority or otherwise. Prima facie,

if such powers are read with the managing

trustee in a public charitable trust, who is

admittedly not a settler of the Trust, but

appointed by the remaining trustees (other than

the settler of the trust after the death of the

settler of the Trust), it can go to the extent

of usurping the power of Trust to the fullest

extent by reducing the number of trustees to

one, i.e. himself only and none else.

Consequently, the property of the trust would

100% fall in full control of only one person,

i.e. the managing trustee and none else. Such an

interpretation of the power read with managing

trustee would not only be absurd, but would

result into frustrating the basic purpose of

maintaining a charitable trust which is to

receive corpus from the various donors and to

make use for larger interest and objects of the

Trust. Therefore, such power as sought to be

canvassed on behalf of the petitioner with the

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managing trustee as that of the removal and of

addition of the trustees, prima facie can be

said not only dehors the Trust Deed and entries

made in the P.T.R at the time of registration of

the Trust, but would also result into nullifying

the genesis of a Charitable Trust. It is hardly

required to be stated that a Charitable Trust

cannot be said as a private property of the

Trustees and the Trustees of such Trust hold the

Trust and are in fiduciary capacity and in any

case, it cannot be equated with a private trust.

In case of charitable trust, it is the duty of

the trustee to see that they continue to

discharge their fiduciary capacity with all

obligations as per the purposes and objects of

the Act for utilisation of the property and to

see that the administration is in accordance

with the Trust subject to the control as per the

provisions of the Act. Therefore, it prima

facie appears that the action of removal of the

Trustee viz. respondent No.2 and addition of the

Trustees, i.e. petitioners Nos. 2 to 4 is wholly

without authority and power and reading of such

power would frustrate the very basis of

maintaining a charitable trust for the larger

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and laudable purpose for which it is so

established by the settler of the trust and its

continuation thereafter.

22.Therefore, under such circumstances, it cannot

be said that when the action is wholly without

authority for maintaining the proper

administration of the Trust, the only recourse

available is Section 22 read with Section 22A of

the Act and not by invoking of the power under

Section 41A of the Act as that of the Charity

Commissioner. The reliance placed upon the

decision of this Court in the case of Shantilal

Khimchand & Ors.(Supra) is ill-found inasmuch as

this Court, in the said decision had no occasion

to consider the case for exercise of the power

under Section 41A, vis-a-vis the powers under

Section 22 of the Act nor it was a case before

the Division Bench in the aforesaid decision

that if the action of brining about a change is

wholly without jurisdiction, whether power under

Section 41A can be invoked for proper

administration of the trust or not. Therefore,

such decision is of no help to the petitioner.

23.The scope of judicial scrutiny for issuance of a

writ of prohibition or a writ of certiorari is

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by now well settled. It is only in case where

this Court finds that the action is wholly

without jurisdiction or that the authority who

has initiated the proceedings has no power or

competence to initiate the proceedings, the writ

of certiorari or the writ of prohibition, as the

case may be, may be issued by this Court. If the

observations made hereinabove are considered, it

cannot be said that the impugned order dated

02.02.2007 is wholly without jurisdiction or

competence by the Charity Commissioner nor can

it be said that there is no power, competence or

authority with the Charity Commissioner to

entertain and proceed with the proceedings under

Section 41A of the Act.

24.Further, if the impugned order is considered, it

appears that the Charity Commissioner for

exercising of the power prima facie has not

accepted the contention on the aspects of

maintainability and has issued directions by way

of interim measure until finalisation of the

Exh.1. Therefore, when there is power with the

Charity Commissioner to entertain and

application and to issue final directions under

Section 41A of the Act, the interim order passed

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therein cannot be said as without jurisdiction

or without any competence or authority as sought

to be canvassed on behalf of the petitioners.

25.It may also be recorded that since it is a case

concerning to the functioning of a religious

trust, which has its schools etc., at various

places as contended by the learned counsel for

the both the sides, this Court during the course

of hearing did suggest for finding out a via

media to see that the functioning of the trust

continues as per the democratic principles, i.e.

the majority of the members may continue to

make use of its fund and the other resources for

the objects of the Trust for which it is formed.

In response to the said suggestion, the learned

counsel for the petitioner Mr. Kinariwala upon

instructions of his client, submitted that if

the position is restored prior to 17.11.2006 of

the trustees, the petitioner No.1 is agreeable,

but the condition precedent is that the

petitioners Nos. 2,3, and 4 are also inducted as

the new trustees. Whereas on behalf of the

respondent Nos. 2, 3 & 4, it has been submitted

that the respondents are agreeable for

restoration of the condition prior to

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17.11.2006, but the decision of induction of

petitioners Nos. 2, 3, & 4, as the trustees can

only be taken by Body of the Trustees in

majority and not by the petitioner No.1 alone.

Under these circumstances, as the parties are

not in agreement for resolving the dispute for

all time to come, the matter is considered on

merits.

26.In view of the above, I find that no case is

made out for interference and therefore, the

petition is rejected.

27.However, it is observed that as the matter is

considered by the Charity Commissioner and one

course available to the petitioner was to not

press the present petition and to challenge the

final order, if any, available after hearing

both the sides, as such order is passed by the

Charity Commissioner but in view of oral

direction pending the petition is kept in sealed

cover. However, the learned counsel appearing

for the petitioners did not opt for taking such

recourse, though specifically was made available

to him/them and insistence was made by the

learned counsel appearing for the petitioners

that if the final order is allowed to be

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pronounced, it may result into rendering the

petition infructuous and therefore, this Court

may examine the contention raised in the present

petition. Hence, considered and observed

hereinabove. Therefore, it is further clarified

that the observations made by this Court in the

present order shall be considered as to conclude

the view that the order cannot be said to be

without any jurisdiction, competence or

authority on the part of the Charity

Commissioner under Section 41A of the Act nor

the case is made out for interference to the

proceedings under Section 41A of the Act, being

wholly without authority and competence by

issuance of writ of prohibition. So far as the

other aspects of the case are concerned, the

rights and contentions of both the sides shall

remain open and shall not get concluded.

28.Since it has been reported that the Charity

Commissioner has passed an order, but is in the

sealed cover, in view of the pendency of the

present proceedings and the oral directions

issued by this Court, as the petition is

dismissed today, the lawful consequences shall

follow, but suffice it to observe that the

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interim oral direction, if any, shall stand

vacated.

29.It is also observed that the present order shall

not operate as a bar to the petitioners to

challenge the final order, if any, passed by the

Charity commissioner below Exh.1, as may be

permissible in law.

30.Mr.Kinariwala, learned counsel for the

petitioners after pronouncement of the order

submitted that the oral interim direction be

continued for sometime prohibiting the Charity

Commissioner from pronouncing the order, which

is kept by him in the sealed cover.

31.Mr.K.S.Nanavati for Respondent No.3 objects such

request and he submitted that there was no order

in writing and now as the order is in the sealed

cover, the Charity Commissioner be put to the

liberty of passing the order, more particularly

when the petition is rejected.

32.Considering the facts and circumstances, it

appears that as this Court has not found that

the impugned order or the initiation of the

proceedings is without authority or competence

with the Charity Commissioner, it would not be a

case to continue with the oral interim

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direction, more particularly when the petition

is dismissed. Hence, the request of

Mr.Kinariwala is declined.

(JAYANT PATEL, J.)

*bjoy

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