NEUTRAL CITATION

C/SCA/10426/2019 ORDER

2019:GUJHC:28009

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/SPECIAL CIVIL APPLICATION NO. 10426 of 2019

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HARSADBHAI CHIMANLAL SHAH
Versus
KALPESH HARENDRABHAI KAPADIYA
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Appearance:
J K GANDHI(7482) for the Petitioner(s) No. 1
MR H A SHAH(6071) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,10,11,12,13,14,15,16,2,3,4,5,6,7,8,9
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE

Date : 19/06/2019

ORAL ORDER
1. This petition is filed against the order dated 17.05.2019
passed in Application No.41/2019 by the Office of the Joint
Charity Commissioner, Bhavnagar. Under this order, the Joint
Charity Commissioner has directed not to give effect to the
resolution which may be passed in connection with agenda
item no.5 and 6.

2. Learned advocate for the petitioner submits that by staying

the effect of agenda item no.5 and 6, the appointment of the
President, Vice President and Secretary is stayed. It is
submitted that there is no allegation in the entire application
with regard to any illegality or mal-administration of the trust
and therefore, there was no cause for passing an order to the
aforesaid fact.

3. Learned advocate referred to and relied upon a judgment of

this Court in case of Swami Satyaprakashdasji Guru V/s
Maganbhai Bhimjibhai Vanda reported in (1998) 3 GLR

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1933 to substantiate his argument that power exercised

under Section 41/A of the Bombay Public Trusts Act can be
only in connection with the action of the trust which would fall
under Sections 34 to 41 and not beyond.

4. Learned advocate also drew attention of this Court to an order

of this Court dated 27.11.2013 in Special Civil Application
No.15118 of 2012 wherein also it is held that the directions
can be issued to the trust under Section 41/A of the Bombay
Public Trusts Act when the authority finds mismanagement or
irregularity in the management of the trust.

5. Having considered the submissions made and having perused

the documents on record, it appears that the agenda item
no.5 and 6 were not on record. However, learned advocate
has produced the same for the perusal of the Court and
agenda item no.5 and 6 pertain to selection of President, Vice
President and Secretary of the trust and also appointment of
honorary members of the trust. Agenda item no.6 is
pertaining to any item that may be placed for consideration
with the permission of the newly appointed President and
Secretary. The impugned order dated 17.05.2019 is as under:

“In the general meeting dated

19.05.2019, whatever resolution is passed
regarding agenda item no.5 and 6, by way of
interim direction it is informed that till
31.05.2019, the same totally is not to be
implemented.”

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6. The impugned order is an exparte interim order and thereafter

the matter is posted on 31.05.2019 and has been adjourned
to 21.06.2019. Though the submissions are made with regard
to powers under Section 41/A of the Bombay Public Trusts Act
based on the judgment of this Court Swami Satyaprakashdasji
supra, the subsequent judgment of Division Bench of this
Court in case of PAVANKUMAR JAIN & ORS V. PRIYAVADAN
AMBALAL PATEL & ORS reported in 2019 (1) GLR 242 will hold
the field where this Court has held that powers exercised
under Section 41/A of the Bombay Public Trusts Act need not
be restricted to the issues arising out of Sections 34 to 41
alone, but wherever the interest of the trust is there, Section
41/A of the Bombay Public Trusts Act can be invoked, in
paragraph 8.1, this Court has held as under:

“8.1. Even it could not have been the intention of

the Legislature to restrict the powers of the Charity
Commissioner while issuing the direction under
Section 41A of the Trust Act in respect of matters
under Sections 32 to 41 of the Act only. If the
legislature had intended to restrict the exercise
of the Charity Commissioner’s powers under
Section 41A to only matters contained in
Sections 32 to 41, there was absolutely no
reason for the Legislature to have provided
under Section 41A the categories of situations
under which the powers can be exercised. The
fact that Section 41 A enumerates the situations
in which powers can be exercised i.e. to ensure
that such Trust is properly administered and the
income thereof is properly accounted for or duly

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appropriated and applied to the objects and for

the purposes of the Trust, itself shows that
Section 41A is a provision that stands by itself
and that directions can be given under Section
41A as long the same are given for the matters
specified in the said provision i.e in Section 41A.
If such a restrictive meaning as sought to be
contended on behalf of the appellants is
accepted, it will negate that part of the Section
41A which confers power upon Charity
Commissioner to issue direction from time to
time, to ensure that such trust is properly
administered, however subject to provision of the
Trust Act. The presence of the words “Subject to
other provisions of this Act, the Charity
Commissioner may issue…” can only mean that
the Charity Commissioner cannot issue
directions that may violate or run contrary to
some other provision of the Act and can never
mean that Section 41A is restricted to the
matters contained in Sections 32 to 41 only.”

However, as at present the matter is still before the

Joint Charity Commissioner, it would be appropriate to direct
the Joint Charity Commissioner to hear and finally dispose of
such application within the stipulated period.

7. The Court is of the view that no useful purpose will be served

to keep the petition live, in view of the direction issued herein
which according to this Court would conclusively bring to an

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end the issue raised in the application by the applicant before

the Joint Charity Commissioner.

8. In view of the aforesaid, the petition stands disposed of with a

direction to the Joint Charity Commissioner to dispose of the
application filed by Modh Mahoday, Bhavnagar (Kalpesh
Harendrabhai Kapadiya) to be decided finally after affording
an opportunity to both the sides, preferably within one month
from today. While deciding such application, the pendency of
agenda report would not come in question.

(A.Y. KOGJE, J)
URIL RANA

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