2008 Supreme(Bom) 1014

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Smt. Vasanti A. Naik, J.
Zitru Lahanuji Lonare – APPELLANT
VERSUS
Rajesh Trimbakrao Deshmukh and Ors. – RESPONDENTS
FIRST APPEAL NO. 580/2007
Decided on : 17-07-2008

Headnote:Bombay Public Trusts Act, 1950 - Section 41-D(1) and (4)-Fit person -Removal/Dismissal of.-Though sub-section (4) provides for appointment of a ’fit person’, it does not specifically provide for removal of the ’fit person’, so appointed. Here, as rightly pointed out on behalf of the respondents, the provisions of Section 16 of the General Clauses Act would come into play. Since the appointment is stop gap and interlocutory, it is subject to change and could be varied if a case is made out. The power to remove and make a fresh appointment of a ’fit person’ can be read into sub-section (4) itself. It is now firmly established that the power to terminate or remove is a necessary adjunct of the power of appointment and is exercised as an incident to, or a consequence of that power. Resort, therefore, cannot be had to sub-section (1) of Section 41-D for removal of a ’fit person’. Moreover, elaborate procedure provided for removal of the trustee cannot be made applicable and resorted to, before removal of a fit person. A fit person, therefore, cannot expect the Joint Charity Commissioner to follow the procedure prescribed under Section 41-D(2) of the Act before his removal as his removal is not under Section 41-D(1) of the Act. It is also necessary to note that a ’fit person’ may be removed for reasons and grounds other than those mentioned in clauses (a) to (f) of sub-section (1) of Section 41-D of the Act. It is also clear from the provisions of sub-section (4) of Section 41-D of the Act that a fit person is appointed only to discharge some of the duties of a trustee and he is not a "trustee" within the meaning of sub-section (1) of Section 41-D of the Act. Consequently, the power under Section 41-D(1) of the Act cannot be exercised to remove or dismiss a "fit person", appointed under sub-section (4) of Section 41-D of the Act as a "fit person" can be removed under Section 41-D(4) of the Act. In this view of the matter a "fit person" can not challenge his removal under Section 41-D(5) of the Act as he is not a ’trustee’ removed or dismissed under Section 41-D(l) of the Act. It is also doubtful whether a fit person appointed under sub-section (4) of Section 41-D of the Act could have a right to challenge his removal and insist that he is fit and should as such, be continued in the stop-gap arrangement.

       Bombay Public Trusts Act, 1950 - Section 41-D(4)(1)-Fit person-Neither a trustee nor a manager.-Joint Charity Commissioner is empowered to appoint a ’fit person’ to perform the functions of the trust until a trustee is duly appointed according to the provisions of the instrument of trust. Sub-section (1) of Section 41-D of the Act speaks of the removal, dismissal or suspension of a ’Trustee’, whereas sub-section (4) of Section 41-D of the Act speaks of appointment of a "fit person" and not a "trustee". Then again, sub-section (5) of Section 41-D of the Act speaks of a "trustee", who is aggrieved by the order of suspension, removal or dismissal under sub-section (1) of Section 41-D of the Act. It is not necessary to refer to the provisions of Section 2(8) or 2(18) of the Act for considering whether the appellants appointed on the body of fit persons are trustees within the meaning of sub-section (1) of Section 41-D of the Act as the provisions of Section 41-D of the Act themselves make a clear distinction between a "trustee" and a "fit person". A combined reading of all the sub-sections of Section 41-D makes it clear that the provisions make a clear distinction between a "trustee" and a "fit person". A person appointed under sub-section (4) of Section 41-D of the Act is neither a ’trustee’ nor a ’manager’.

       Bombay Public Trusts Act, 1950 - Section 41-D(5)-Fit person appointed under-Removal-Challenge of.-A fit person appointed under Section 41-D(4) of the Act cannot challenge his removal under the provisions of Section 41-D(5) of the Act in an application before the ’Court’ as he is not a "trustee" within the meaning of Section 41-D(1) of the Act.