Back
2005 Supreme(Bom) 80
IN THE HIGH COURT OF BOMBAY
BOMIJAL MISTRY
Versus
JOINT CHARITY COMMISSIONER OF MUMBAI
Decided on : JANUARY 25, 2005
Headnote:Bombay Public Trusts Act, 1950 - Sections 41(E)(1)(2)(5) - Constitution of India, Article 226 - Appeal under Section 41(E)(1)(2)(5) of Act, 1950. - Order of joint Charity Commissioner dismissing application for grant of injunction under Section 41(E) of Act, can be challenged by way of an appeal under Section 41(E)(5) of Act. - In the present case initially an order was passed on 4th June, 2004 to appoint a Commissioner which order is clearly relatable to sub-section (1) of Section 41-E. It is only thereafter that when parties were heard that the prayer for injunction was declined. The order passed earlier has been varied and subsequently injunction has been declined. That was the order which was sought by the petitioners herein which they sought in the interest of trust and which according to them was necessary. They had prayed for such an order. It cannot, therefore, be said that the order which declines the relief which they had sought, is not an order against them. It is also an order though an order declining injunction. It is undoubtedly an order against the interest which they claimed to have canvassed. That prayer having been rejected. If a view is taken that hey do not have a statutory remedy, it will mean that sub-section (5) contemplates remedy only for one set of litigants and not for another. The petitioners are also persons within the meaning of this section who had sought the order. The Legislature cannot be attributed any such distinction when a comprehensive provision is made to protect the charities. Under sub-section (1) the Charity Commissioner is empowered to pass various kinds of orders and then he has got the power to modify, vary, set aside, confirm or discharge any of these orders. When a remedy is provided under sub-section (5) of the Statute, it will have, therefore, to be read as a remedy against various orders which could be passed under this section and which are against the trustees or persons who may be applicants or against whom the relief is sought. As rightly submitted by Advocate General, the term "any other order" will have to be read widely and cannot be restricted only to an order which grants an injunction against the trustee or a person.
For the reasons stated above, Court accept the objections raised by the respondents herein. It is a valid objection and the appropriate remedy for the petitioner is to resort to the remedy which is available under sub-section (5) of the Section 41-E of h BPT Act which is alternative and efficacious remedy. Petition is, therefore, dismissed.
Bombay Public Trusts Act, 1950 - Section 41-E(5) - Appeal under Section 41(E)(5) of Act, 1950. - Order dismissing application for grant of injunction is appealable under Section 41-E(5) of Act.
H. L. GOKHALSE, J.
( 1 ) THE petitioners herein claim to be beneficiaries of a public trust known as M. J. Wadia Fire Temple Trust. Respondent No. 7 to this petition is this trust and respondents 2 to 4 are the trustees thereof. Respondent No. 5 is a developer of property who is developing a part of this trust property. Respondent No. 6 is Municipal Corporation of Mumbai and the first respondent is the Joint Charity Commissioner whose order dated 15th September, 2004 passed on an application filed by the petitioners herein under section 41e of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "bpt Act" for the sake of brevity) is under challenge in this petition.
( 2 ) RESPONDENT No. 7 trust is carrying on certain construction activity with the help of the above developer in the interest of the said trust and for obtaining necessary funds for the maintenance of Fire Temple and various objectives. The petitioners contend that the construction which is being carried on is an illegal one and in excess and beyond the permission granted by the Joint Charity commissioner. They have various grievances with respect to this construction which construction is almost complete by now. The petitioners filed two applications bearing Nos. 6 and 7 of 2004 before the Joint Charity commissioner. We are concerned with Application No. 6 of 2004. This application although claims to have been filed under section 41e as well as section 50 of the BPT Act, contains essentially various prayers for injunction which are relatable only to section 4 1e of the BPT Act. Section 50 provides for mechanism for filing of a suit by or against or relating to the public trust, trustees or others. The prayers in this application are entirely such which are covered under section 4 1e of this Act. This application was heard by the Joint Charity commissioner and was dismissed by the impugned order. Being aggrieved by this order the present petition has been filed.
( 3 ) MR. Thorat, learned Advocate General appearing for respondent No. 5 trust has raised a preliminary objection with respect to the maintainability of this petition. He submitted that under sub-section (5) of section 41e of BPT Act an alternate and efficacious remedy is available to a person who is aggrieved by any such order. Under that sub-section an appeal lies to the Court and Court is defined under section 2 (4) of their Act to mean the City Civil Court in Greater mumbai and else where the District Court. The submission is that instead of filing a writ petition the petitioner ought to have challenged the order passed by the Joint Charity Commissioner by resorting to the necessary proceeding under sub-section (5) of section 41e of BPT Act, which is an alternative and efficacious remedy provided under the statute. The submission of Mr. Thorat is adopted and supported by Mr. Anturkar learned counsel appearing for respondent Nos. 2 to 4 who also submitted that for the same reason the petition be dismissed.
( 4 ) WITH a view to appreciate submissions raised on behalf of these respondents, it will be advisable to refer to section 41e of BPT Act which reads as follows :"41e. Power to act for protection of Charities. (1) Where it is brought to the notice of the Charity Commissioner either by the Deputy or assistant Charity Commissioner through his report or by an application by at least two persons having interest supported by affidavit: (a) that any trust property is in danger of being wasted, damaged or improperly alienated by any trustee or any other person, or (c) that the trustee or such person threatens or intends to remove or dispose of that property, the Charity Commissioner may by order grant a temporary injunction or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of such property, on such terms as to the duration of injunction, keeping an account, giving security, production of the property or other
