Parsee Surat Charity Fund Trust vs Joint Charity Commissioner on 20 August, 2018

[Cites 22, Cited by 0]

Gujarat High Court

Parsee Surat Charity Fund Trust vs Joint Charity Commissioner on 20 August, 2018

Bench: A.J. Shastri

        C/SCA/3820/2018                             ORDER




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 3820 of 2018

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             PARSEE SURAT CHARITY FUND TRUST
                           Versus
                JOINT CHARITY COMMISSIONER
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Appearance:
MR MIHIR THAKORE, SERNIOR ADVOCATE FOR MS AMRITA M
THAKORE(3208) for the PETITIONER(s) No. 1,2,3,4,5,6,7
for the RESPONDENT(s) No. 1,3,4,5,6,7,8,9
MR YN OZA, SR ADVOCATE WITH MR S N THAKKAR(901) for the
RESPONDENT(s) No.2
================================================================

 CORAM: HONOURABLE MR.JUSTICE A.J. SHASTRI

                          Date : 20/08/2018

                           ORAL ORDER

1. The present petition under Article 226 of the Constitution of India is filed for the purpose of challenging the legality and validity of an order dated 19.2.2018 passed by the Joint Charity Commissioner, Surat - respondent No.1 herein in Civil Misc. Application No.9 of 2013 which was originally filed by respondent No.2.

2. Following are the reliefs which are sought by invoking extraordinary jurisdiction of this Court :

"(A) Your Lordships be pleased to issue a writ of or in the nature of mandamus or a writ of or in the nature of certiorari or any other appropriate writ, order or direction : (i) holding and declaring that the respondent No.1 has no jurisdiction or power to entertain and Page 1 of 46 C/SCA/3820/2018 ORDER decide the Civil Misc. Application No.9 of 2013 filed by the respondent No.2 at AnnexureX hereto and, (ii) quashing and setting aside the impugned order dated 19.2.2016 passed by the respondent No.1 at AnnexureEE hereto.

B. Pending the admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay and suspend the operation and implementation of the impugned order dated 19.2.2018 passed by the respondent No.1 at AnnexureEE hereto.

C. Pending the admission, hearing and final disposal of the present petition, Your Lordships be pleased to restrain the respondent Nos.1 and 2 from proceeding further in any manner in regard to the sale, lease or disposal in any manner of any of the properties of the respondent No.3 or of any trust controlled by or associated with the respondent No.3.

D. Pending the admission, hearing and final disposal of the present petition, Your Lordships be pleased to restrain the respondent No.2 from doing any act, initiating any action/proceeding or signing any documents in relation to the administration or management of respondent No.3 or its assets or in relation to that of any trust controlled by or associated with the respondent No.3 and from dealing with or handling any records pertaining to the respondent No.3 or its associated trusts.

E. Ex parte ad interim relief in terms of prayers B, C and D above be granted.

F. Such other and further reliefs as may be deemed just and expedient be granted."

3. The case of the petitioner is that petitioner No.1 is a public trust originally registered way back in 1841 and petitioner Nos.2 to 7 are its trustees. Sir Jamsetjee Jejeebhoy, first Baronet was one of the Page 2 of 46 C/SCA/3820/2018 ORDER original trustees of the petitioner No.1 along with several eminent names in the Parsi community of that time. This petitioner No.1 trust is carrying out the charitable activities for the benefit of poor people of the Parsi community and with that avowed object, the petitioner No.1 trust was registered under Serial No.14 of 1938 under the Parsi Public Trust Registration Act,1936 at Bombay. Subsequently, unknown to the trustees of petitioner No.1, it appears that some trust bearing similar name appears to have sought registration at Surat by persons who were not part of the petitioner No.1 as a trustee. It is further the case of the petitioner that in 1990, it was formally registered with the learned Joint Charity Commissioner, Mumbai. The trust is filing regular accounts, annual budgets and complying all the statutory requirements with the office of the Charity Commissioner at Mumbai and the trust deed which came to be deduced in writing is dated 1.1.1841 and petitioner No.1 is having a registration certificate dated 18.9.1990 and all the documents pertaining to such registration certificate etc. are attached to the petition compilation.

3.1 It is further the case of the petitioner that respondent No.3 happened to be a public trust registered in the office of Assistant Charity Commissioner, Surat under the provisions of the Bombay Public Trusts Act,1950 and it carries on the charitable activities for the benefit of Parsi members, who are stationed at Surat and this trust Page 3 of 46 C/SCA/3820/2018 ORDER owns enormous parcels of lands worth more than 100 crores in prime locality of city of Surat and around it since many decades. The respondent No.3 does not have a separate trust deed and is governed by the aforesaid trust deed of 1841 and the petitioner No.1 trust is a parent and governing body of respondent No.3 which can be seen from the trust deed of petitioner No.1 trust. It is further the case of the petitioner that trustees of petitioner No.1 trust have the specific power to appoint seven more respectable resident Parsi inhabitants of Surat as a trustee of respondent No.3 and have also got inbuilt power to remove such persons appointed as trustees in respondent No.3. Similarly, there are several associated trusts in Surat which are also governed by the trust deed dated 1.1.1841 and it carrying on the charitable activities which are mentioned hereinafter;(i)Surat Parsee Orphanage and Properties Trust (ii) Nariman Home and Infirmary Trust (iii) Sorabji Burjorji Dastur Pahalana Trust Fund (iv) Dastur Darab Pahalana Trust (v) Nariman Parsee Zoroastrian Girls Orphanage Fund (vi) Seth RustomjiDhanjibhoy Tarachand Surat Parsi General Hospital Fund (vii) Bai Gulbai Nusserwanji Mehta Surat Parsi Maternity Hospital Fund (viii) Bai Pirojbai Manekji Patel Siganporewalla English School for Girls (ix) Seth Kaikhushru Hormusji Alpaiwala Surat Industrial Institute for Parsi Zoroastrian Women and Girls (x) Sorabjee Nusserwanjee Paruck Parsi Polytechnic Institute (xi) Dastur Maherjirana Trust Fund.

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3.2 It is further the case of the petitioner that aforesaid trusts which are named above are managed by the trustees of respondent No.3, who are appointed by the trustees of parent trust i.e. petitioner No.1. The necessary and relevant extract of PTR of respondent No.3 are available in the office of petitioner No.1 which are also forming part of the record of present petition.

3.3 It is further the case of the petitioner that as per the provisions of the trust deed of 1941, petitioner No.1 collects the income from the trust funds and sends it to respondent No.3 for distribution for the benevolent object for which it has been created. On coming into force of the Act, it is the say of the petitioners that respondent No.3 and all other associated trusts had filed their requisite forms with the Charity Commissioner clearly stating that they were nominated and appointed from time to time by petitioner No.1 and whenever vacancy arose as per the trust deed dat3d 1.1.1841, they were being appointed by the parent trust. The respondent Nos.4 to 9 herein were at the relevant point of time, trustees of respondent No.3. The respondent No.2 was the trustee and President of respondent No.3, who came to be removed on 16.4.2013 by the governing body consisting of Board of Trustees of petitioner No.1 in exercise of their power of removal entrusted under trust deed dated 1.1.1841.

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3.4 The case of the petitioner further travells to the effect that somewhere in the year 2002, the Board of Trustees of petitioner No.1 had appointed respondent No.2 as the trustee in respondent No.3 vide resolution dated 29.4.2002. However, though there is no formal post of President in respondent No.3, the respondent No.2 was thereafter informally selected by other trustees of respondent No.3 inter se to allow the respondent No.2 to act as a President of respondent No.3 trust. However, on account of passage of time, it has been realized to the trustees of petitioner No.1 that there is an increasing suspected move and later on, it has also been realized by petitioners about conduct of respondent No.2 acting as a President along with other trustees of respondent No.3 by not performing their duties honestly and diligently and in a transparent manner and noticed certain instances of misusing his position for the private gain and thereby, trying to obtain personal favour out of the properties and funds of respondent No.2 which runs into crores of rupees.

3.5 It is further the case of the petitioner that respondent No.3 and the Surat Parsee Orphanage Funds and Properties Trust own huge parcels of land in and around Surat which includes following:

(i) TP Scheme No.4, Final Plot No.36, admeasuring approximately 8526 sq. mt., situated in Piplod, estimated to be worth about Rs.100 crores.

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(ii)TP Scheme No.7 (Anjana), Final Plot Nos.37, 38, 39 and 44 (originally Revenue Survey No.98) admeasuring approximately 15681 sq. mt., situated in Umarwada, estimated to be worth about Rs.154 crores.

(iii)TP Scheme No.8, Final Plot No.63, admeasuring approximately 2870 sq. mt., situated in Umarwada, estimated to be worth about Rs.18 crores.

(iv)TP Scheme No.7 (Anjana), Final Plot No.43 admeasuring approximately 1342 sq. mt., situated in Umarwada, estimated to be worth about Rs.8 crores.

3.6 As a result of aforesaid property even at face value of this, worth of the land is approximately Rs.280 crores and it has increased even bynow to a greater extent. It appears that some parcels of land on account of inaction on the part of respondent No.2 and the trustees, the encroachments have taken place over certain parcels of land.

3.7 It has come to the knowledge of the petitioners that around 201112, without the knowledge of present petitioners, the respondent No.2 unilaterally initiated and generated the talks and negotiations with various persons for the purpose of selling this valuable lands beloning to the trust and making an attempt to put on lease and thereby, has without notice to the petitioners, called upon certain offers from various persons. When it has been noticed that these offers which have been invited are much below than the actual comprable value of land and that has Page 7 of 46 C/SCA/3820/2018 ORDER created an impression that at a throw away price, these valuable properties worth more than Rs.280 crores are likely to be siphoned away at a worthless price. This land over the period of time on account of inaction, as per the say of the petitioners, has been made the subject matter of encroachment and has come under probable acquisition under the provisions of the Gujarat Agricultural Land Ceiling Act,1960. By taking such circumstance as a shield, the respondent No.2 has generated an impression that he is acting in the best interest of respondent No.3 trust by selling away the aforesaid land at the earliest, so that these lands cannot become the subject matter of acquisition under the aforesaid portion and encroachment may not become irreversible. This move on the part of respondent No.3 acting unilaterally has been surfaced the moment the petitioners know about calling of offers at a throw away rates. For taking such decision of inviting offers, it has been realized that no meetings were held of the trustees of respondent No.3. Even most of the trustees were not aware about even execution of so called possession receipt executed by respondent No.2 in the capacity as President unilaterally in favour of Ashwinbhai Viradiya and Dhirubhai Nayka, who were a guard of such property, even though no possession of any land has been handed over at any point of time by any of the person even of respondent No.3. The action of respondent No.2 in quickly disposing of these valuable properties of respondent No.3 noticed when it has been found that respondent No.2 has made an Page 8 of 46 C/SCA/3820/2018 ORDER application under Section 36 of the Act for seeking permission in this regard to dispose of and alienate the trust property and these applications were originally four in numbers bearing Nos.36/22/11, 36/53/2012, 36/47/2012 and 36/59/2012. The petitioners came to know about this fact when respondent No.3 was sought to dispose of these properties which is surfaced vide letter dated 11.2.2013 which came to be addressed by some of the members of Parsi community to petitioner Nos.2 to 7 as well as some of the trustees to respondent No.3 including respondent No.2. Thereafter, when it has been realized that serious attempt is made by respondent No.2 to siphon away the properties, inquiry was made and immediately it has been found that one public notice appeared in the local vernacular newspaper of Surat on 18.2.2013 in connection with one of the applications given by respondent No.2 under the provisions of Section 36 of the Act in regard to the proposed lease of TP Scheme No.7, Final Plot No.43 which land is belonging to respondent No.3 and shockingly, it has been found that notice which has been issued by respondent No.1, the address which has been given in the notice is that of personal office address of respondent No.2 and not of the trust. Having come to know about the act on the part of respondent No.2, the petitioner No.2 addressed a specific email on 22.2.2013 to respondent No.3 trust and its trustees seeking an explanation in this regard and in response thereto, respondent No.2 addressed a letter on 26.2.2013 Page 9 of 46 C/SCA/3820/2018 ORDER seeking to give excuses for trying to sell the lands in a surreptitious and hurried manner. Pursuant to the discussion which was held later on between the petitioners and the trustees of respondent No.3, it was decided specifically to put on hold such activity of sale of any property till further clarification in this regard is obtained. As a result of this, the respondent No.9 addressed two letters; one is dated 1.3.2013 and another is dated 4.3.2013 with regard to respondent No.1 objecting to proposed sale and requesting that applications in this regard of sale of properties to be specifically put to hold.

3.8 It is further the case of the petitioners that thereafter, the petitioners decided to hold a meeting of the trustees of the petitioners as well as trustees of respondent No.3 at Mumbai on 14.3.2013 and this has been communicated specifically to all the trustees of respondent No.3 including respondent No.2. However, surprisingly, as expected, respondent No.2 did not attend the said meeting under one pretext or the other, finding out excuses on account of illhealth. This was realized to be an avoidance act on the part of respondent No.2 to face the petitioners and the trustees and to while away the time. The petitioner No.7, as a result of this, vide letter dated 5.3.2013, had specifically sought an extension from respondent No.2 requesting him to give specific explanation with support of evidence why the sale of properties of respondent No.3 would be needed and whether the same would be in the interest of the Page 10 of 46 C/SCA/3820/2018 ORDER trust. This letter and the explanation is avoided and not responded by respondent No.2. Another meeting was also held but as usual not attended and sent the representative one Mr.Naresh Vyas, who is suspended police officer appointed by respondent No.2 himself in the respondent No.3 trust as a Liason Officer and this Mr.Vyas has not projected any explanation and in that meeting, it was unanimously expressed specific reservation against proposed sale of properties of respondent No.3 and it was also decided that a letter signed by respondent No.4 and respondent Nos.6 to 9 and another trustee Mr.Hormazdiyar Patel, who subsequently resigned as a trustee, should be filed in the office of respondent No.1 conveying that applications under Section 36 for seeking permission are being withdrawn. The letter accordingly was addressed to the respondent No.1 were executed by six trustees of respondent No.3 itself, who were present in the meeting dated 14.3.2013 and it was specifically decided that such permission under Section 36 was to be withdrawn.

3.9 It is further the case of the petitioners that one another letter dated 18.3.2013 was written by respondent No.9 to respondent No.2 requesting him to call a requisition meeting of the trustees of the respondent No.3 trust for the purpose of passing appropriate resolution for withdrawal of four applications which were submitted under Section 36 of the Act for seeking permission to sell. On 20.3.2013, even petitioners have also addressed a letter to Page 11 of 46 C/SCA/3820/2018 ORDER respondent No.2 asking him to desist from taking any action in furtherance of proposed sale of the aforesaid land and to withdraw all these applications which were given under Section 36 before the respondent No.1 authority. Initially, the respondent No.2 refused to abide by any decision taken even by majority trustees of respondent No.3 or the directions issued by the petitioners and instead, has created a bogus document purportedly signed by some members of Parsi community in support of his dishonest action of seeking sale of the aforesaid lands and in turn, respondent No.2 addressed a letter to respondent No.1 authority on 21.3.2013 forwarding the purported offer received pursuant to the public notice dated 19.2.2013 and this act on the part of respondent No.2 is blatantly against and in disregard to not only the wishes of majority trustees of respondent No.3 but, against the mandate of petitioner No.1 trust.

3.10 It is further the case of the petitioner that having come to know about this sending of offers by respondent No.2 despite aforesaid situation, another letter dated 26.3.2013 was addressed by the petitioners to respondent No.2, interalia, informing that they had come to know of diametrically opposite actions which he had taken which were contrary to the desire and wish of majority members of respondent No.3 trust as well as in complete disregard to the understanding which has been arrived at in the meeting with petitioners. As a result of this, the Page 12 of 46 C/SCA/3820/2018 ORDER petitioners were constrained to write a letter in the form of showcause notice as to why respondent No.2 should not be removed from the respondent No.3 trust.

3.11 It is further the case of the petitioners that having realized that his illmotive and illaction had completely exposed him, the respondent No.2 filed three applications, for seeking permission of withdrawal three out of four applications to sell the land and said three applications were submitted before the respondent No.1 authority. With regard to the fourth application, respondent No.2 has indicated that respondent No.1 authority had refused to accept the application for withdrawal of the same on the ground that date of hearing has already been given. But, in fact, it was a thought which is not found to be trustworthy. The date of hearing was stated to be on 18.4.2013. However, the respondent No.2 did not reply to the letter dated 26.3.2013 which was for the purpose of removing him from the trust. As a result of this, another letter was also written by petitioners on 4.4.2013 giving another chance to respondent No.2 to respond to the letter. But, in the meantime, with a view to see that the action of respondent No.2 may not get or attain any finality, in the paramount interest of the trust, on 29.3.2013 a meeting of the trustees of respondent No.3 was held and it was specifically resolved to revoke with immediate effect the authority given to respondent No.2. The minutes of the said meeting are also forming part of the petition compilation. The sum and Page 13 of 46 C/SCA/3820/2018 ORDER substance of aforesaid chronology of events has reflected the role of respondent No.2 found to be highly questionable and there was a clear resistance on the part of majority of the trustees of respondent No.3 and all the petitioners against the sale and alienation of the properties belonging to the trust. Yet another meeting was held on 16.4.2013 at 11.30 a.m. in Mumbai, wherein it was unanimously resolved that respondent No.2 immediately to be removed from the post of President / trustee of respondent No.3 and this decision was specifically communicated to respondent No.2 vide letter dated 22.4.2013 sent by a fax along with resolution.

3.12 It is further the case of the petitioners that after the aforesaid decision which was communicated at about 2.00 p.m. on that very day i.e. 16.4.2013, the petitioners received the letter purportedly dated 8.4.2013 from respondent No.2, wherein he, in turn, sought to justify his action before the petitioners and tried to offer lame excuses in the form of so called explanations. It is the case of the petitioners that under the trust deed of 1841, there is an absolute power to appoint and remove the trustees of respondent No.3 and the associated members and the same is not inhibited by anything much less issuance of showcause notice or consideration of reply or giving an opportunity of hearing or about proof of misconduct. It is then noticed to the petitioners that on 18.4.2013 which was a date fixed for hearing of pending application Page 14 of 46 C/SCA/3820/2018 ORDER i.e. Application No.36/59/12 by respondent No.1, the respondent No.2 deliberately did not remain present before the authority and purposefully avoided the withdrawal of applications. As a result of this, on 29.4.2013, the petitioners addressed a specific communication deprecating respondent No.2's such improper conduct and reiterated that respondent No.2 had already been removed in view of his actions which were in utter disregard to the interest of respondent No.3 trust. However, in an attempt to overreach the petitioners and other majority of trustees of respondent No.3, on 2.5.2013 the respondent No.2 filed an application under Section 41A of the Act before respondent No.1, seeking an order restraining the petitioners from participating in the administration or decisionmaking process in respect of respondent No.3 or any other Parsi trust operating in Surat and from passing any resolution and seeking declaration that petitioners did not have any authority to remove the respondent No.2. Said application was numbered as Civil Misc. Application No.9 of 2013 and in the same, an interim relief application at Exh.4 was also filed. Though the said application was not maintainable, since the respondent No.1 had no authority to entertain and while challenging the authority of petitioners, the respondent No.2 has suppressed the very fact that his appointment was made by the trustees of petitioner No.1 and they had every right of removal under the absolute power of trust deed dated 1.1.1841. His appointment was made by petitioners that fact has Page 15 of 46 C/SCA/3820/2018 ORDER been suppressed and by making a false statement, an attempt is made to mislead the respondent No.1 to get an order in his favour. Additionally, although there was no prayer for any adinterim relief and though, admittedly respondent No.2 was aware about the fact of his removal on 22.4.2013, there was no occasion for seeking any exparte adinterim relief, still, an attempt was made by respondent No.2. As a result of this, some of the trustees of respondent No.3 also remained present before the authority i.e. respondent No.1 and requested for time to submit their objections. However, the respondent No.1 surprisingly refused to adjourn the proceedings and proceeded to grant exparte adinterim relief restraining the petitioners from putting into effect the resolution passed by the petitioners in a meeting dated 6.4.2013 and from taking any further steps in response thereto. Copy of the said order dated 2.5.2013 is a part of AnnexureY to the petition compilation and thereafter, after securing the interim relief, the respondent No.2 had started misusing the aforesaid order by throwing his weight in the office of respondent No.3 trust and realized the other trustees of respondent No.3 that they are powerless and not in a position to do anything against him. As a result of this, the petitioners were constrained to prefer SCA No.8856 of 2013 before this Hon'ble Court challenging the legality and validity of an order dated 2.5.2013. This Hon'ble Court originally granted interim relief in the said petition on 14.5.2013 and thereafter, clarified the order on 15.5.2013. Without prejudice Page 16 of 46 C/SCA/3820/2018 ORDER to the rights and contentions, the petitioners have submitted their pleadings before the respondent No.1 authority and thereafter, on 16.11.2017 this Court has disposed of the petition by directing the respondent No.1 to decide the original application being Civil Misc. Application No.9 of 2013 preferred under Section 41A of the Act in accordance with law, within a period of 8 weeks by dealing with all available contentions to be raised by either side and till then, the interim order which has been passed is ordered to be continued during pendency of the proceedings before respondent No.1.

3.13 It is further the case of the petitioners that after such disposal of the main matter, the parties have filed documents before respondent No.1 but, shockingly, on 19.2.2018 the respondent No.1 passed the final order, interalia, holding that issue is relating to administration of trust, he has got the jurisdiction to pass under Section 41A of the Act and staying the resolution passed by the petitioners in the meeting dated 16.4.2013 with regard to the removal of respondent No.2 and thereby, directed that respondent No.2 should not be restrained from working as a trustee of respondent No.3 and its associated trusts. However, on application of trustees of respondent No.3 seeking stay of the said order, the respondent No.1 has stayed the operation of the said order dated 19.2.2018 for a period of 10 days and it is this main final order dated 19.2.2018 is the subject matter of present petition.

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3.14 Upon aforesaid background of fact, the hearing has taken place and both the learned advocates for the respective parties have requested to dispose of finally the present petition at admission stage itself. Accordingly, the petition was heard and was put up for orders. But before the order could be passed, the roster is changed and thereafter, again at the request of learned advocates and pursuant to the order dated 25.6.2018, the matter has been put up before this Court in view of the office note and learned advocates have submitted that since the hearing at length has already been taken place, nothing further to be added. As a result of this, the present petition has been taken up for decision, after considering the submissions made by learned advocates appearing for the respective parties.

4. Mr.Mihir Thakore, learned Senior Advocate with Ms.Amrita Thakore, learned advocate has represented the petitioners, whereas Mr.Yatin Oza, learned Senior Advocate with Mr.S.N.Thakkar, learned advocate has represented respondent No.2.

5. Mr.Mihir Thakore, learned Senior Advocate, has contended that petitioner No.1 trust has been registered way back in 1841. A specific trust deed has been executed in writing on 1.1.1841 empowering specifically the petitioner No.1 trust to appoint and remove any of the trustees even of respondent No.3 trust. It has been contended that impugned order Page 18 of 46 C/SCA/3820/2018 ORDER dated 19.2.2018 is exfacie arbitrary, unreasonable and irrational and wholly without jurisdiction and, therefore, not sustainable in the eye of law. The respondent No.1 has absolutely no jurisdiction or authority under the provisions of Section 41A of the Act or even under any other provisions of the Trust Act to entertain the main application i.e. Civil Misc. Application No.9 of 2013. It has further been contended that it is well settled position of law that jurisdiction under Section 41A of the Act is very limited in nature and cannot encompass any of the reliefs against the removal of the trustees in exercise of power conferred by the trust deed and, therefore, a serious error is committed in interfering with the decision of petitioners by respondent No.1. This removal aspect of trustee is not pertaining to administration of the trust in a routine manner and, therefore, the respondent No.1 has erroneously assumed the jurisdiction by granting relief and dealing with Civil Misc. Application No.9 of 2013.

5.1 Mr.Mihir Thakore, learned Senior Advocate, has further submitted that respondent No.1 has completely erred in holding that removal of trustee by way of resolution without proving allegations against him would result in removal without due process of law and by applying general principle of service jurisprudence, the conclusion arrived at is completely in consonance with the well settled principles. In fact, learned Senior Advocate, has Page 19 of 46 C/SCA/3820/2018 ORDER submitted that respondent No.1 has not gone into provisions of the trust deed dated 1.1.1841 which has specifically conferred power upon petitioners to appoint or remove the trustee.

5.2 It has further been contended that respondent No.1 has failed to appreciate that when the trust deed dated 1.1.1841 provides for appointment and removal of trustees even by virtue of Section 50 of the Act, no power or jurisdiction can be assumed and enabling provision does not create any embargo on trustees to exercise their powers which are framed in trust deed originally. Learned Senior Advocate has further submitted that the reasons which are assigned while passing the impugned order are also not sufficient enough to justify the act of respondent No.2 and his removal. On the contrary, no interference called for in this peculiar set of circumstance. The authority i.e. Respondent No.1 ought to have specifically considered that respondent No.2 has suppressed the material fact that his appointment was by petitioner No.1 only and not by any other authority and, therefore, when petitioners have appointed, there is an inbuilt power to remove him especially when respondent No.2 has acted to the detriment of the interest of the trust.

5.3 Mr.Mihir Thakore, learned Senior Advocate, has further pointed out that respondent No.1 had no power, authority and jurisdiction to issue any direction to the petitioners, since the petitioner Page 20 of 46 C/SCA/3820/2018 ORDER No.1 is a trust registered in State of Maharashtra and, therefore, it does not fall within the territorial jurisdiction of respondent No.1 and by referring to a specific contention in Ground No.3, a contention is raised that since the petitioners are outside the purview of territorial jurisdiction of respondent No.1, the impugned order is without the authority of law.

5.4 To strengthen the submissions, Mr.Mihir Thakore, learned Senior Advocate, has contended that trust deed dated 1.1.1841 is clearly investing the power in the petitioner trust for removal of the trustee. The overall control is with the petitioner trust and for that purpose, a reference is made to the documents attached at Page77 to 103 and 158 of the petition compilation. By referring to Page49 and some of the clauses contained therein, more particularly clauses (8) and (9) of the trust deed, it has been asserted that the power of removal lies with the petitioner trust. It has further been contended that no post of President in respondent No.3 was available but, as a part of convenience, the same was nomenclatured since respondent No.2 was lookingafter the affairs of respondent No.3. Even in the PTR, there is no such reference about the post like President. Hence, respondent No.2 has practically acted as selfstyled President. Mr.Mihir Thakore, learned Senior Advocate, has submitted that in that capacity which has been assumed by respondent No.2, various applications have been submitted under Section 36 of the Act for Page 21 of 46 C/SCA/3820/2018 ORDER seeking permission to sell and alienate the property, to which respondent No.9 has specifically objected. It has further been contended that pursuant to such move by respondent No.2, a meeting took place in the month of March,2018 at Mumbai, wherein a specific assurance was given by respondent Nos.2 and 3 and in response thereto, 3 applications came to be withdrawn on 4.3.2018 also. However, one application, though was required to be withdrawn, has not been withdrawn by respondent with a deliberate intent. But from overall deliberation, it is undisputed position emerging is that overall control lies with the petitioner trust at Mumbai. The registration of the main trust is at Mumbai in the State of Maharashtra and overall control is that of the petitioner trust and that in view of the fact that deliberations and meetings had taken place at Mumbai and whenever respondent No.2 and other trustees of respondent No.3 are required to discuss, undisputedly they have come down to Mumbai and there is a deep and pervasive control of petitioner trust over respondent No.3 and its activity and uptill now there was no resistance with regard to authority of petitioner trust. Mr.Mihir Thakore, learned Senior Advocate, has further contended that personal meetings have also taken place at Mumbai with all other trustees and on account of some reasons being posed, deliberately respondent No.2 did not remain present and avoided the meetings at the relevant point of time. Mr.Mihir Thakore, learned Senior Advocate, by inviting such attention to these circumstances from the record, has Page 22 of 46 C/SCA/3820/2018 ORDER ultimately contended that petitioner trust has got absolute power of appointment and removal of respondent No.2 and resultantly, no case is made out in any form by respondent No.2 to allege against the move of the petitioner. A conjoin reading of Sections 22, 50 and 51 of the Act would make it clear that the action initiated by petitioner trust can never be said to be unauthorized or impermissible at all. By referring to Section 5(iii) and by virtue of Section 19(iv), the removal of respondent No.2 can never be said to be impermissible and in view of aforesaid situation which is prevailing on record, the observation made by the Charity Commissioner while passing an order under Section 41A to the effect that same has taken place without compliance of Section 50 is erroneous and misconstruction of the relevant provision. In fact, according to Mr.Mihir Thakore, learned Senior Advocate, Section 50 does not deserve to be complied with as not applicable. It has further been contended that once the trust deed is providing a specific mechanism, there is no other requirement of resorting to any other provisions under the Act. Section 48A powers are stated to be wide enough and not restricted to Sections 32 and 41 and these observations which are made in the Division Bench's judgment of this Court in case of Pavankumar Jain v. Priyavadan Ambalal Patel, reported in 2015 (O) AIJEL HC 233764, are in the background of different set of circumstance. But then, by referring to the decision delivered by Full Bench of this Court in case of Jai Ranchhod Bhogilal Sevak and etc. v. Thakorelal Page 23 of 46 C/SCA/3820/2018 ORDER Pranjivandas Jumkhawalal & Ors., reported in AIR 1985 GUJARAT 1, particularly Para.11, Mr.Mihir Thakore, learned Senior Advocate, has contended that if the action is in consonance with the provisions of the trust deed itself, then there is no requirement of applying or referring to Section 41A or Section 50 of the Act. Yet another decision which has been relied upon and referred to is the decision reported in 1995 (1) GLH 627 as well as (1977) 18 GLR 54, a contention is raised that this absolute power which has been conferred in the petitioner trust in the main trust deed cannot be allowed to submerged by directing the petitioner to comply with the process under Section 50 of the Act which is not applicable here in the background of these facts. Hence, the order in question is not sustainable in the eye of law.

5.5 Mr.Mihir Thakore, learned Senior Advocate, has further contended that this removal of respondent No.2 cannot be equated with the removal in the context of ordinary service jurisprudence, wherein the departmental inquiry and other process is expected to be undertaken. Here is a case where trustee is acting to the serious detriment and is not in a service in the context of literal meaning of service and, therefore, if the main trust is having absolute power to continue or discontinue, then concept of inquiry like departmental inquiry cannot be applied. As a result of this, the order in question deserves to be corrected. If this analogy of conducting an inquiry like departmental inquiry is to Page 24 of 46 C/SCA/3820/2018 ORDER be applied then there will not remain any sanctity with the terms of the trust deed. Hence, in view of the aforesaid situation, the order in question is not sustainable in the eye of law. Mr.Mihir Thakore, learned Senior Advocate, has further contended that even in the allegation contained in the notice are to be ignored then also, plenary power is available with the petitioner trust under the trust deed to appoint or to remove the trustee and here is a case in which respondent No.2 is not unaware about the reason for his removal. Time and again he has been called upon to explain and, therefore, that opportunity concept is also substantially taken care of by the petitioner. Hence, in view of the specific powers which are contained in the trust deed, the petitioner trust may not be compelled to undergo the process of Section 50 of the Act. It has further been contended that in the decision in case of Pavankumar Jain (supra), the Division Bench has observed with respect to Section 41A are altogether in a different set of circumstance. The same are merely a passing remark and such observations cannot constitute a precedent and, therefore, the contention which has been raised with respect to Section 41A which has been exercised is not just and proper and the reasons assigned are not in consonance with the detailed procedure set up under the provisions visavis the terms of the trust deed. By referring to these contentions, Mr.Mihir Thakore, learned Senior Advocate, has submitted that since respondent No.2 has made a serious attempt to jeopardize the interest of petitioner trust and its Page 25 of 46 C/SCA/3820/2018 ORDER subsidiary trust properties, the petition deserves to be considered and the reliefs prayed for are required to be granted, in the interest of justice.

6. To meet with the stand taken by learned Senior Advocate, Mr.Mihir Thakore, Mr.Yatin Oza, learned Senior Advocate appearing for the contesting respondents has vehemently contended that Section 41A of the Act has rightly been exercised by the Charity Commissioner and has contended that this compliance is permissible even by virtue of observations which are made in Para.8 and 8.1 and few lines above Para.9 of the Division Bench's judgment in case of Pavankumar Jain (supra). It has been observed clearly in no uncertain terms that compliance of Section 50 is mandatory. As a result of this, even if the powers are available under the trust deed then also, said powers are always subject to the compliance of the statutory provisions. It has further been contended that once the trust is registered under the provisions of the Act which is a special statute, the trust deed is governed by the statutory provisions and even if absolute power is available under the trust deed, the said power is submerged to the statutory provision and, therefore, primacy over it cannot be claimed. Learned Senior Advocate has relied upon few of the decisions rendered in SCA No.18061 of 2015 decided on 7.6.2016 and in LPA No.529 of 2016 decided on 24.6.2016. By referring to Para.3 and 9, it has been contended that these observations are sufficient enough to dislodge the submissions made by Page 26 of 46 C/SCA/3820/2018 ORDER Mr.Mihir Thakore. There was a specific contention raised in the said LPA No.529 of 2016 in which the Division Bench has observed that specific grounds were dealt with, namely, Ground No.C and G and while disposing of LPA No.529 of 2016, it has been observed by the Division Bench that compliance of Section 50 of the Act is mandatory. Mr.Oza, learned Senior Advocate, has further contended that this contract is not a private contract and it is a public charitable trust dealing with the public activities for the betterment of people and by virtue of this registration, it has got a status of entity and, therefore, principle of 'hire and fire' is not to be applied in respect of many activities which are being undertaken by an official or authorized person of the trust and, therefore, claim of absolute power is not permissible to be raised by the petitioner. The observations made in Para.3 and 10 are relied upon of a decision reported in 1984 GLH 1134. Further reliance is also made of the decision reported in (2007) 2 SCC 230, more particularly Para.40, 43, 46, 47, 51 and 52. Yet another para.11 has also been resorted to by Mr.Oza, learned Senior Advocate to strengthen his submission contained in Full Bench's decision delivered by this Court Jai Ranchhod Bhogilal Sevak (Supra). Mr.Oza, learned Senior Advocate has further contended that trust is a creature of statute and it is being regulated by special statute and, therefore, concept of absolute power is not permissible to be agitated especially when the regulatory provisions and machineries are Page 27 of 46 C/SCA/3820/2018 ORDER prescribed under a separate statute and, therefore, there seem to be no error committed by the Charity Commissioner in passing an order under Section 41A of the Act.

6.1 Mr.Yatin Oza, learned Senior Advocate, has further contended that action of removal of respondent No.2 is based upon the alleged irregularities and, therefore, these irregularities if to be attributed, the basic concept of opportunity cannot be given a gobye and the entire decision making process must depend upon this well recognized principle of 'grant of reasonable opportunity.' Learned Senior Advocate has further contended that submission of application under Section 36 of the Act and invitation of offer by virtue of public advertisement is a collective decision of the trust and not of an individual i.e. of respondent No.2. On the contrary, unanimous resolution is also passed to submit an application under Section 36 of the Act, as a result of which four applications were submitted, as stated hereinabove and now, to corner respondent No.2 alone by the petitioner trust is nothing but a clear example of arbitrariness and discriminatory treatment with a specific motive to remove the respondent No.2 and this is the reason why such arbitrariness cannot take place, the Statute has prescribed a detailed procedure to be undertaken while exercising such powers. These powers are not uncontrolled and unanalyzed and it has a guiding effect as a part of mandate of the Statute under Page 28 of 46 C/SCA/3820/2018 ORDER Section 50 of the Act and, therefore also, in view of aforesaid situation, it cannot be said that any error is committed by the Charity Commissioner.

6.2 Mr.Yatin Oza, learned Senior Advocate, has then submitted that assuming everything that petitioner trust has got absolute power but, then the basic principle of exercising jurisdiction cannot given a gobye. As propounded by series of decisions that principles of opportunity is applicable to whole range of exercise of power, even if Statute is silent on the grant of such then, said opportunity has to be even read in the Statute. Now, when this is well established proposition then, the basic foundation to initiate step against the respondent No.2 is an irregularity, for which this minimum opportunity has to be given and adhere to by the petitioner trust. Learned Senior Advocate has further contended that show cause notice has been given with respect to removal of respondent No.2 from the post of President but, nowhere in the said notice the word 'trustee' is mentioned and, therefore, it is not open absolutely for the petitioner to remove respondent No.2 from the post of President as well as from trustee. It is basically a flagrant violation of principles of natural justice, as qua removal of respondent No.2 as a trustee, no opportunity of explanation or representation has been given. As a result of this, keeping in view the proposition of law laid down by a decision reported in (2003) 4 SCC 557, the whole exercise is vitiated on account of such malafide, Page 29 of 46 C/SCA/3820/2018 ORDER nonapplication of mind and it also suffers from the vice of noncompliance of principles of natural justice. Mr.Yatin Oza, learned Senior Advocate, has further submitted that looking to the arbitrariness of petitioner trust from this angle that when the first notice was issued, the respondent No.2 was actually in the hospital taking treatment on account of multiple fractures in the hip and though it was specifically pointed out and the petitioner was aware about the fact, without waiting for any reasonable period, straightway an order came to be passed in an inhuman way and that too, on the basis of attribution against the respondent No.2. As a result of this, since the action is wholly unjustified and not permissible nor can be said to be just and proper from any angle and, therefore, this being a case in which the order passed by the Charity Commissioner does not deserve to be interfered with. Learned Senior Advocate has further contended that the Charity Commissioner has sufficiently assigned the reasons to justify the ultimate conclusion and, therefore, there is no irregularity of any nature which can call for any interference. As a result of this, the petition being devoid of merit deserves to be dismissed.

7. In rejoinder to these submissions, Mr.Mihir Thakore, learned Senior Advocate, has contended that right of removal is not depending upon any statutory provision. On the contrary, the trust deed itself has indicated such source of powers and, therefore, Page 30 of 46 C/SCA/3820/2018 ORDER reliance which has been placed on the observations made by the Full Bench in its decision (supra) are not applicable in the background of these facts, more particularly when the factual matrix of said Full Bench's decision was altogether different. If this analogy is applied in the case on hand then, the same would tantamount to change the very substratum of the trust deed in which the absolute powers are conferred right from its inception and, therefore, the effect of such statutory provision cannot be applied so as to modify the trust deed itself. In any case, this trust cannot be said to be a creature of Statute. On the contrary, it is created with an avowed object by virtue of a contract with the donor and the trustees and this trust was created to spread over the object of the main trust and, therefore, it is not correct to contend that trust is a creature of Statute. To strengthen the submissions made by Mr.Thakore, some of the provisions of Indian Trust Act which is the original Act have been brought to the notice of the Court, precisely Sections 4, 6, 7, 70 and 71 of the Act which clearly established the basic concept of trust and the trust cannot be treated just as a creature of Statute.

7.1 Additionally, Mr.Mihir Thakore, learned Senior Advocate has further submitted that on the contrary, by virtue of registration the powers of the trustees which are contained in the trust deed are, on the contrary, emphasized, recognized and with more vigor have been certified and, therefore, the effect of Page 31 of 46 C/SCA/3820/2018 ORDER terms of the trust deed, on the contrary, has to be reinforced. It has further been contended that by virtue of registration of trust, a mode of succession is also getting recognized coupled with the source of power of removal of trustee and in the background of this peculiarity, there is no necessity for the petitioner trust to refer to the procedure prescribed by Section 50 of the Act. If this is to be applied then, for a pretty long period the trust would remain helpless and will not act with any promptness to protect the interest of the trust and, therefore, such a meaning of the procedure of Section 50 of the Act cannot be given to subtle the effect of absolute power of the trustees.

7.2. It has further been contended that Section 50 powers and the procedure reflecting an independent as well as additional power of removal. But so long as there is no change in the trust deed or the terms of it, such power of removal which has been conferred cannot be given a gobye by applying Section 50. Otherwise, for loss of confidence in the trustee, irrespective of allegation and irregularities which are otherwise found sufficient for removal, the trust will be placed in a precarious position and would be practically made helpless and such kind of meaning cannot be extended to such statutory provision visa vis the trust deed. It has further been contended by Mr.Thakore, learned Senior Advocate, that it is settled position of law that interim orders are never to be treated as precedent and as such, the reference Page 32 of 46 C/SCA/3820/2018 ORDER which has been heavily relied upon by Mr.Yatin Oza, learned Senior Advocate on SCA No.18061 of 2015 which is so far pending, not allowed and, therefore, some stray observations cannot be used as a precedent. Not only from the fact that petition is at large but, the factual scenario is also different in that case. As a result of this, reading of Full Bench's decision reported in (1977) 18 GLR 54, on the contrary, indicates contrary and will not in any way adversely affect the power of removal of the petitioner No.1 trust. Hence, the petitioners have strong case.

8. In furtherance of this, as part of addition, Mr.Yatin Oza, learned Senior Advocate for the contesting respondent, has further reiterated that from the entire record, nothing has come out that respondent No.2 has steerheaded the entire movement of disposal or alienation of property to the detriment of interest. On the contrary, it was a collective decision of all the trustees and cannot be said to be an individual decision of respondent No.2. Hence, if other trustees are just given a warning letters, whereas the respondent No.2 is removed, such act of petitioners is nothing but a clear example of arbitrariness and discriminatory treatment. On the contrary, the alienation has intended on account of relying upon an opinion of one of the Senior Advocates of this Court having immense reputation and with a view to see that the property of the trust may not go into the rigors of ULC provisions, the opinion was considered and collective decision was taken.

Page 33 of 46 C/SCA/3820/2018 ORDER

8.1 Mr.Yatin Oza, learned Senior Advocate, has further reiterated that undisputedly, no procedure as suggested in Section 50 has been followed and, therefore, it is settled position of law that if any statutory provision is prescribed under the Act in a particular manner, the action must be taken in that manner only and here is a case in which the well recognized principle is completely given a gobye by the petitioner.

8.2 Mr.Yatin Oza, learned Senior Advocate, has further contended that there is no likelihood of any prejudice caused to the petitioner No.1 trust since all four applications have been bynow withdrawn and no sale has taken place nor any alienation of property has taken place. As a result of this, in the absence of any loss to the petitioner No.1 trust, there is hardly any justifiable reason not to obey to the procedure prescribed under the Statute. Learned Senior Advocate has further contended that the petitioner No.1 trust, on the contrary, is a well recognized trust, its every action must be on the touchstone of basic principle of fair play in action should not be based upon any discrimination and, therefore, these are the principles which are thoroughly given a gobye, there is hardly any justification in action initiated by the petitioner No.1 trust.

8.3 Mr.Yatin Oza, learned Senior Advocate, has Page 34 of 46 C/SCA/3820/2018 ORDER further repeated that even apart from this, on merit also the allegations which are levelled are not such serious in nature and on the contrary, a suspicion is created as to why in a public advertisement, a private address of respondent No.2 is shown but, this is only on account of the administrative smoothness and convenience so as to see that since respondent No.2 is a President, the proper coordination can take place. But this will not permit the petitioner to raise any adverse inference about the guilt of respondent No.2 or cannot attribute to the intention of respondent No.2. On the contrary, had there been any intention on the part of respondent No.2, even the objections might have been ordered to be submitted at his private address and there is no question of any misdeed or intended misdeed by respondent No.2 since Section 36 applications have been given after passing a resolution. All these aspects could have been clarified and proper opportunity to explain ought have been given to respondent No.2. On the contrary, under the garb of so called absolute power, a serious prejudice is caused to respondent No.2 and is a glaring example of arbitrary act which resulted into miscarriage of justice. On the contrary, by submitting that there is a concept of lifting of veil which can be applied when petitioners have come out with a case of absolute power of removal and, therefore, in no case the order of Charity Commissioner can be said to be illegal, erroneous or perverse in any manner and as such, the order is rightly passed under Section 41A Page 35 of 46 C/SCA/3820/2018 ORDER of the Act which requires no interference. No other submissions have been made by either side hereinafter.

9. Having heard the learned advocates appearing for the respective parties, for the purpose of consideration of reliefs which have been sought in the petition, following circumstances are not possible to be unnoticed :

(1) The main contention which has been raised is with regard to the jurisdiction of respondent No.1.

To examine this, the Court has an advantage of trust deed dated 1.1.1841 of the petitioner - parent trust. From the reading of the said trust deed, what is emerging is that Parsee Surat Charity Fund Trust has been created from Bombay. The funding has also been segregated for Parsee Surat Charity Fund Trust from Bombay and it has been created with an intention of helping the people who are belonging to the community and residing at Surat. The entire reading of the trust deed is reflecting that overall control in a deep and pervasive manner is retained by the main trustees of petitioner No.1 trust. Further, looking to the clauses contained in the said main trust deed, particularly Clause Nos.8 and 9 which reflect that petitioner No.1 trust to appoint and to remove any one or more or such person or any other in place of that from time to time appoint and to revoke such appointment. Therefore, close reading of this 9th clause of the trust deed indicates that power to Page 36 of 46 C/SCA/3820/2018 ORDER appoint and power to remove lies with the petitioner No.1 and that appears to have been retained. Wherever these clauses are mentioned, the first line itself indicates that these clauses are 'for the time being'. The 4th clause is also indicative of the fact that even appointment of agent or agents is also with the petitioner No.1 and overall reading of this trust deed which is undisputedly the main trust deed reflects substantial control over respondent No.3. So much so that the accounts are also to be delivered to Mumbai including the deliberations which are to take place also at Mumbai where the petitioner No.1 trust is registered originally and, therefore, conjoin reading of the terms of the trust deed which is relied upon reflects a deep and pervasive control over respondent No.3 by the petitioner No.1 trust which is undisputedly registered at Mumbai within the peripheral limits of State of Maharashtra.

(2) Additionally, the register of public trust prepared under Rule 5 is also reflecting on page103 in which in column No.4 it is prescribed that appointments of managers and trustees are to be made by keeping in view the main trust deed i.e. 1.1.1841. This also reflects a clear control of petitioner No.1 trust over the affairs of respondent No.3.

(3) yet another document reflecting on page187 has also stipulated that whenever occasion arises to appoint the trustees and committee members at Surat Parsee Panchayat, the said process has been Page 37 of 46 C/SCA/3820/2018 ORDER undertaken from the end of petitioner No.1 trust whose registered office is at Mumbai. When such instance occurred somewhere in May,2002, it has appeared that the decisionmaking process has taken place at Mumbai for the purpose of appointment of committee members of Surat Parsee Panchayat. Same is the case with respect to a document in which typographical error was also corrected and there also, it took place from Mumbai. From the conjoin reading of correspondence which took place was at Mumbai and, therefore, this is yet another circumstance reflecting overall and substantial control of the petitioner No.1 trust over the affairs of respondent No.3 and its office bearers.

(4) The documents which are part of the record are also indicating that when an advertisement has been published by respondent No.2 in the capacity as a President reflecting on page239, a private address is given of him to carry out the process. Clause6, 9 and 10 as well as bracketed columns of this advertisement has indicated that it is respondent No.2 who appears to have generated this process for which the petitioner has asked for an explanation.

(5) Most material part which is reflecting is from page246 onwards in which when the aforesaid action was generated immediate upon noticing, an explanation was called for from all the trustees of respondent No.2 and which was called for from Mumbai. Page246 is such communication which raised the issue. Now, in Page 38 of 46 C/SCA/3820/2018 ORDER the context of this explanation, the reply which has been given by respondent No.2 i.e. in the letter head of respondent No.2. Instead of resisting, an explanation is given justifying the action of advertisement and filing of applications before the Charity Commissioner. But, nowhere in this communication it appears that any agitation is made about authority of petitioner No.1 trust. On the contrary, this communication reflects a clear dominance of petitioner No.1 trust over respondent Nos.3 and 2 and other trustees. Same is the case with respect to a document in which one of the trustees of respondent No.3 itself has raised strong objection about such applications and advertisement which has been reflected in the daily newspaper 'Sandesh' dated 19.2.2013. In furtherance of this controversy which has been generated, even the meeting has also taken place on 14.3.2013 again at Mumbai with the petitioner No.1 trust and there also, nobody has raised any objection with regard to the competence of petitioner No.1 nor requested not to interfere for want of authority. On the contrary, in the special meeting there was a desire recorded to withdraw all applications filed before the Charity Commissioner. So much so that pursuant to this, even a writing has also been prepared by respondent No.3 signed by these persons of Parsee Panchayat Board, Surat, indicating that all applications were filed by respondent No.2 being the President and have clearly asserted that upon careful consideration, a clear opinion generated that these applications which were submitted are not Page 39 of 46 C/SCA/3820/2018 ORDER in the interest of the trust and the permission which was given was recalled and all had declared their intention to withdraw the applications.

(6) Yet another document which is noticiable is that Parsee Panchayat Board at Surat has written a letter on 18.3.2013 has indicated clearly that after withdrawal of applications from Charity Commissioner's office, henceforth any sale of immovable property to have approval from appointing trustees stationed at Mumbai and this also has an effect of inferring domain of petitioner No.1 trust over respondent Nos.3 and 2. The other document of such nature is also a communication dated 20.3.2013 reflecting on page294 has indicated that respondent No.2 was specifically mandated from Mumbai to attend the next hearing before the Joint Charity Commissioner on 22.3.2013 and to take all steps necessary to have four applications to be withdrawn and has also been warned not to act in such a manner in contravention of the wish of the trustees, as indicated. In this context, even the steps have also been taken for withdrawal of said applications and when ultimately it was opined by the petitioner No.1 trust as well as all other trustees of respondent No.3 itself that the act of respondent No.2 is not in the interest of trust and there was a prima facie material that he has acted detrimental to the interest of Surat Parsee Panchayat, a showcause notice was issued as to why he should not be removed. Now, this has also been issued from Mumbai reflecting Page 40 of 46 C/SCA/3820/2018 ORDER on page306. It appears that it is thereafter resolved on 29.3.2018 to withdraw all applications and has further resolved vide Resolution No.3 that next step will be in consultation with the petitioner No.1 trust at Mumbai. This overall impression which has been generated from the record reflects that there is a deep and pervasive control of petitioner No.1 trust over respondent No.3 as well as respondent No.2. There is an undisputed position with regard to the power to appoint and remove lies with the petitioner No.1 trust reflecting from original trust deed dated 1.1.1841 and there is no resistance or any grievance with regard to questioning any authority of the petitioner No.1 trust about supervision and control and hence, since the petitioner No.1 trust is registered in the State of Maharashtra and having deep and pervasive control over respondent Nos.3 and respondent No.2 as well which suggests that simply because few properties are situated in Surat, the Charity Commissioner of Gujarat will not assume to have any jurisdiction. The terms of the deed, the submission of respondent No.3 and trustees to the office of petitioner No.1 trust which is at Mumbai, overall control lies with the petitioner No.1 are sufficient enough to indicate that if there is any grievance then, the jurisdiction would be that of Charity Commissioner of State of Maharashtra. As a result of this, submission of learned advocate for the petitioners to substantial extent deserves acceptance.

Page 41 of 46 C/SCA/3820/2018 ORDER

(7) Since the action of the petitioner is questioned initiated from Mumbai, appropriate territorial jurisdiction would be to that of the office of the Charity Commissioner, State of Maharashtra. The material, essential and integral part of the main cause for respondent No.2 has arisen from Mumbai, as a result of this in view of the settled position of law, the respondent No.2 will have a remedy to assail the action before the Charity Commissioner, State of Maharashtra. One of the relevant decisions taken into consideration by the Court is a decision reported in 2009 (2) GLH 750 in which the Division Bench of this Court had an occasion to consider the issue of territorial jurisdiction. Relevant extract contained in Para.10 are reproduced hereinafter :

"10. .....The mere fact that the petitioner had submitted an application and paid the money through SBI Capital Markets Ltd., having its office in the State of Gujarat will not confer jurisdiction on Gujarat High Court to entertain the petition raising the claim against the MPEB and State of Madhya Pradesh. Offer was made by the petitionerbank which was accepted by the MPEB at their Head Office at Jabalpur, State of Madhya Pradesh. The allotment was made by the MPEB from its Head Office situated at Jabalpur. Letter of allotment was issued from Jabalpur by Registered Post to the petitioner. Bond certificates were issued by the Madhya Pradesh Electricity Board from Jabalpur. Contract was, therefore, concluded at Jabalpur and the major portion of the cause of action arose at Jabalpur. The material, essential or integral part of the cause of action arose in the State of Madhya Pradesh and not in State of Gujarat. This legal position is well settled. Reference may be made to the decision of the Apex Court in Page 42 of 46 C/SCA/3820/2018 ORDER Navinchandra N. Majithia v. State of Maharashtra, 2000 SC 2966, Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254 and Alchemist Limited v. State Bank of Sikkim, AIR 2007 SC 1812. Apex Court has examined the scope of clause (2) of Article 226 of the Constitution of India and held that even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court may have jurisdiction in the matter, but the question one has to consider is whether such fact constitutes the material, essential or integral part of the cause of action. In Kusum Ingnots' case (Supra), Apex Court held that even if a small portion of the cause of action arises within the territorial jurisdiction of the Court, the same by itself be not considered to be determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. Above mentioned decision has been followed by the Division Bench of High Court of Kerala where one of us (Mr.Justice K.S.Radhakrishnan, CJ) was a member, in the case of Capt. B.S.Prakash v. Food Corporation of India and others, ILR 2007 (4) Kerala 73. "

Of course, said decision was in the context of exercise of writ jurisdiction but, the analogy is applicable as the substantial material and integral part of cause of action has arisen within the State of Maharashtra.

(8) Now, in the context of aforesaid situation which is prevailing on record, the question arises as to whether for the purpose of dealing respondent No.2 whether procedure set up under the Act is to be compulsorily observed, especially when the terms of the trust deed are empathetically clear about Page 43 of 46 C/SCA/3820/2018 ORDER authority of appointment and removal of respondent No.2. In this context a specific contention has been raised by the petitioners that resolution of removal which has been passed by the petitioners cannot be called in question at the office of Charity Commissioner, Surat. Here is a case in which the main controversy is as to whether the Charity Commissioner of State of Gujarat has jurisdiction to pass any order. The answer appears to be clear 'No' and, therefore, apart from the circumstance as to whether the issue related to removal of respondent No.2 can form the subject matter of Section 41A of the Act or not, loses its significance to be dealt with since the entire order deserves to be set aside on account of want of authority with Incharge Charity Commissioner, Surat office, in view of aforesaid circumstances.

10. Since the Court found that office of the In charge Joint Charity Commissioner, Surat has no jurisdiction to deal with main application, the other aspect regarding applicability of Section 50 of the Act whether respondent No.2 was rightly removed or not, has not been dealt with by the Court in detail and accordingly, the decisions which have been cited to press such submissions have also not been dealt with by this Court. It is left open for respondent No.2 to agitate the same before appropriate authority having proper jurisdiction by raising all permissible contentions.

Page 44 of 46 C/SCA/3820/2018 ORDER

11. Resultantly, the present petition stands allowed. The impugned order dated 19.2.2018 passed by respondent No.1 being nullity is quashed and set aside.

12. However, it is made clear that since the impugned order is set aside by this Court only on the ground of being nullity as having no jurisdiction, it would be open for the respondent No.2 to carry out any process before appropriate authority to ventilate the grievance and the Court is not expressing any opinion with regard to the merit or demerit of such action of removal of respondent No.2. It is also left open for the appropriate authority having competence to take suitable decision on merits in accordance with law.

(A.J. SHASTRI, J) FURTHER ORDER After pronouncement of the judgment, learned advocate for the respondent No.2 has requested that present order may not be allowed to be implemented for a reasonable period so as to enable him to file appropriate proceedings before the higher forum.

To this request, Ms.Amrita Thakore, learned advocate for the petitioners, has vehemently objected.

Page 45 of 46 C/SCA/3820/2018 ORDER

However, considering the fact that the interim relief which is operative right from 2012, as stated by learned advocate, the time which has been granted by virtue of the order dated 19.2.2018 passed by the Joint Charity Commissioner below Exh.1, in Civil Misc. Application No.9 of 2013, is extended for a further period of 4 weeks from today.

(A.J. SHASTRI, J) V.J. SATWARA Page 46 of 46

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