2002 Supreme(Guj) 587

Gujarat High Court
Judgename :J.N.PATEL
NAVINCHANDRA JASANI - Appellant
Versus
PRAVINCHANDRA JASANI - Respondent
S.C.A. 2028 of 1993
Decided On : 08/07/2002

Headnote:

Bombay Public Trust -Section 32,41 - petitioners are the Trustees of Shri Veraval Dashashrimali Vanik Gnati (hereinafter referred to as the "trust" ). Respondents No. 1 to 11 made an application to the Joint Charity Commissioner under Section 41a of the Bombay Public Trust Act contending that the applicants who are respondents herein and other members of 70 families since generations are residing in Veraval and on account of the business, service and/or other circumstances they are required to go outside Veraval and it is also contended that there are other natives of Veraval who are required to stay outside Veraval City for professional purpose. It was stated in the application that they had applied for becoming the members of the Trust. However, the said memberships are denied and, therefore, the powers were made for treating them at par with the other members of the Trust and to restrain the Trustees from applicants using properties of the trust as beneficiaries and also to direct the Trust to admit them as the members. in response to the said application the reply was submitted by the petitioners and it was contended, inter alia, that the applicants therein are not the natives of Veraval and it was also denied that the applicants and other members of 70 families are staying in Veraval since generations. However, it was stated that merely because they are staying at Veraval, belonging to the community, it cannot be said that they are natives of Veraval. The petitioners had also raised the contention regarding the jurisdiction of the Jt. Charity Commissioner and it was submitted that there is no jurisdiction with the learned Jt. charity Commissioner to give such directions as prayed for. The Jt. Charity Commissioner ultimately after hearing both the sides passed the order, whereby the application made by respondents No. 1 to 11 is allowed and Trustees of the Trust who are petitioners herein are directed to register the applicants and other persons belonging to Dashashrimali Vanik Gnati residing in Veraval as the members in "b" Class category and a further instruction was also given that the applicants and other members belonging to the said Community staying at Veraval should be allowed to use the property of the Trust on the payment of necessary fees. So far as the applicants and other persons to be admitted as "a" Class category members is concerned, observation was made that the necessary legal procedure may be undertaken. It is this order passed by the Jt. Charity Commissioner, which is under challenge in this petition -Held it can be said that the admission recorded by the Charity Commissioner in the order is not supported by the record of the case or otherwise and, therefore, when such admission is not supported by the record of the case, I cannot accept the contention of Ms. Mandavia that there was admission by the petitioners regarding the settlement of the applicants in Veraval and, therefore, no evidence was required to be led. judgement upon which the reliance is place in the case of "acharya Shree Mahaprabhujini Ranavaswala Bethak Mandir Trust, and Ors. " (supra) rather reiterates the principles laid down by the Division Bench in the earlier judgement and, therefore, I am of the view that the said judgment is of no help to the respondents herein. in view of the above discussion, it appears that the order passed by the Jt. Charity Commissioner in not only without jurisdiction, but is based on the finding which is perverse to the record of the case and, therefore, the order passed by the Jt. Charity Commissioner, Rajkot in Judicial Misc. Application No. 8/89 is quashed and set aside with the clarification that it will be open to the original applicants, who are respondents No. 1 to 11 to take recourse under the law to assert or claim the right to be admitted as the members, if any, by separate independent proceedings as may be available to them under law. The petition is allowed to the aforesaid extent. There shall be no order as to costs. Rule is made absolute -Petition and Allowed.