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2008 (2) GCD 1566 (Guj)
Hon’ble Mr. Justice Jayant Patel
Devkrushnadasji Guru Dharmadasji & Ors.
Versus
State of Gujarat & Ors.
Special Civil Application No. 11433 of 2007—Decided on 24/01/2008
Held :
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 22-A 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 22-A of the Act, it cannot be the subject matter 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 41-A 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 22-A of the Act. But, if the action of brining about the change and thereby, consequently filing the change report is de hors 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 41-A of the Act, but would only fall under Section 22 read with Section 22-A of the Act. [Para 20]
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 22-A of the Act and not by invoking of the power under Section 41-A of the Act as that of the Charity Commissioner. [Para 22]
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 Exhibit 1. Therefore, when there is power with the Charity Commissioner to entertain and application and to issue final directions under Section 41-A of the Act, the interim order passed therein cannot be said as without jurisdiction or without any competence or authority as sought to be canvassed on behalf of the petitioners. [Para 24]
Petition Rejected
Jayant Patel, J.—The petitioners have preferred the petitioner for appropriate writ to quash and set aside the order dated 02.02.2007 passed by the Joint Charity Commissioner, Rajkot under Section 41-A 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 41-A 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 41-A of the Act to issue the interim directions, which are issued as per Annexure ‘A’. It is also submitted that the Petitioner No. l 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 22-A 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 22-A of the Act and not the Joint Charity Commissioner or the Charity Commissioner under Section 41-A of the Act. It has been further submitted that when there is express power under Section 22 read with Section 22-A of the Act for deciding the question as to whether the Trustees are rightly appointed or rightly removed, the power under Section. 41-A cannot be resorted to, which can be said as residuary power. In furtherance to the submission, Mr. Vakil contended that even if the powers under Section 41-A 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 vs. 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 41-A serves is to empower the Charity Commissioner to issue directions in respect of matters failing under Sections 32 to 41.”
4. He also contended that the aforesaid decision of the Division Bench has subsequently followed by this Court in case of “Navinchandra Jasani & Ors. vs. 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 41-A 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 orde
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