Pavankumar Jain & vs Priyavadan Ambalal Patel & on 12 September, 2013

[Cites 8, Cited by 18]

Gujarat High Court

Pavankumar Jain & vs Priyavadan Ambalal Patel & on 12 September, 2013

The petitioners, Trustees of the Petrochemicals Township Devasthan Trust and opponents in Misc. Judicial Application No. 2 of 2013 from the office of the Joint Charity Commissioner, Vadodara have approached this court invoking Article 226/227 of the Constitution of India challenging the order passed on 30th March, 2013, whereunder the Joint Charity Commissioner in exercise of the powers conferred upon him under Section 41A of the Bombay Public Trust Act, 1950 (hereinafter referred to as the Trust Act for short), issued directions for undertaking procedure for revoking or rescinding the Resolution dated 6.1.2013 and till the same is revoked, suspended the same, which had effect of suspending the respondent no. 1, before this Court for the grounds mentioned therein.

Facts in brief leading to filing this petition deserve to be set out as under:

The petitioners and respondent no. 1 are the Trustees in the Trust called The Petrochemicals Township Devasthan Trust , which is duly registered public charitable Trust governed by the provisions of the Trust Act. The respondent no. 1 is one of the Trustees and in further thereto, functioning as Secretary to the Trust and discharging the duties as such. The petitioner no. 3 and others reported an incident said to have occurred on 3.1.2013 wherein, the respondent no. 1 is attributed with an action of assault on other office bearers. This was the incident which compelled the other Trustees to undertake appropriate proceedings and pass a Resolution dated 6.1.2013 suspending the respondent no. 1 from acting as a Trustee, Secretary and prohibit him from entering the office of the Trust till the inquiry proposed against him in respect of his conduct said to have been occurred on 3.1.2013 were not over. This resolution proceeded by notice to the respondent no. 1. The said resolution as per the contention of respondent no. 1 not being in conformity with the provisions of the Trust Deed and he was constrained to approach the authorities under the provisions of the Trust Act, wherein after hearing both the sides extensively, the concerned Joint Charity Commissioner issued direction vide his order dated 22.3.2013. Being aggrieved and dissatisfied with the same directions, the petitioners have preferred this petition under Article 226/227 of the Constitution of India on the grounds mentioned in the memo of petition.

Learned counsel appearing for the petitioners contended that the plain and simple reading of Section 41A of the Trust Act is not permit the Joint Charity Commissioner to pass impugned order, as the same was not within his jurisdiction and hence, the order impugned is per-se illegal and required to be quashed and set aside.

Learned counsel appearing for the petitioners further submitted that the provisions of the Trust Deed and prevalent provisions of law would indicate that in a given situation like one on hand, the passing of resolution dated 6.1.2013 could not have been said to be illegal in any manner. The gory incident in a premises like temple and office of the Trust, resulting into serious scuffle between the parties, wherein, the aggressor is said to be the respondent no. 1, the logical conclusion and only way open to the other trustees to render him incompetent to create further trouble in smooth functioning of the Trust, the Trustees were left with no choice but to bring about the situation wherein, the Trustees may carry out its activities without any hindrance and impediment in order to achieve its objective, the respondent no.1 was required to be restrained from creating any interference and hence, there was an ample justification for passing the resolution, which was impugned by the respondent no.1 before the concerned authority.

Learned counsel appearing for the petitioners thereafter contended that the action in passing the resolution dated 6.1.2013 cannot be treated as open to scrutiny at the end of either the Charity Commissioner or Joint Charity Commissioner in exercise of powers under Section 41A of the Trust Act. The plain reading of Section 41 would clearly indicate that such an exercise was beyond his purview of functioning.

Learned counsel appearing for the petitioners thereafter contended that the decision of the Apex Court rendered in case of RAISINH P. BHOI VS. DINESHBHAI KESHAVBHAI PATEL, reported in 2000 (3) p-1895 would go to show that in a given case, the order of suspension of secretary/Trustee is not to be interfered with in the proceedings under Article 226/227 of the Constitution of India.

Learned counsel appearing for the petitioners laid specific emphasis upon the observations of this Court in paras 10, 11 and 12 and it was submitted that the right to suspend is inherent and when there was a serious allegation against the person suspended and an inquiry was conducted, the suspension cannot be said to be in any matter vulnerable so as to call for any interference therewith.

Learned counsel appearing for the petitioners thereafter invited this court s attention to the decision of the Division Bench in case of SYEDNA MOHAMED BURHANUDDIN THE 52ND DAI-UL-MULTAQ AND HEAD OF THE DAWOODI BOHRA COMMUNITY VS. CHARITY COMMISSIONER, GUJARAT STATE, AHMEDABAD & ORS., reported in 1992 (1) GLH 331 and after minutely reading the observations made by the Court in paras, 34, 35, 36, 39 upto 52, an attempt was made to indicate that the provisions of Section 41A cannot be construed as empowering the concerned authority i.e. Joint Charity Commissioner in the instant case that authority to adjudicate the lis between the parties. The observation of the Division Bench in the case reported in case of SYEDNA MOHAMED BURHANUDDIN THE 52ND DAI-UL-MULTAQ AND HEAD OF THE DAWOODI BOHRA COMMUNITY VS. CHARITY COMMISSIONER, GUJARAT STATE, AHMEDABAD & ORS.

(supra) would clearly indicate that the Court has clearly held that the order passed under Section 41A are direction in the nature of administrative direction and therefore, it cannot be pleaded that any adjudicatory orders deciding the lis. In the instant case, whether the suspension is warranted or it is permitted or it is dehors the provisions of Trust Deed are all the questions adjudicated upon by the authority i.e. learned Joint Charity Commissioner and therefore, to that extent, it is clearly contrary to the provisions of Section 41A and hence, as a result thereof the direction issued are required to be quashed and set aside.

Learned counsel appearing for the petitioners thereafter invited this Court s attention to the decision of this Court in case of SHRI NAVSARI TALUKA HALPATI SHIKSHAN PRACHAR SANGH VS. JOINT CHARITY COMMISSIONER, SURAT, decided on 12.1.2004 and submitted that even close perusal of the observations made by the Division Bench, would not indicate that there exists any right or authority in the Joint Charity Commissioner to issue direction, as it is issue in the present case and therefore, the order impugned deserve to be quashed and set aside.

Learned counsel appearing for the petitioners thereafter contended that the Division Bench s observation qua non-holding of election and justification to hold election in a Trust, cannot be equated with the direction issued in the present case to render the resolution dated 6.1.2013 invalid, as in the instant case, it would amount to circumventing the other provisions of law under which the remedy was available to respondent no.1 and therefore, when the opening word of Section 41A are clear that directions are required to be issued, subject to other provisions of the Act, the other provisions of the Act could not be ignored or overlooked by the Joint Charity Commissioner in issuing the direction and as it is clear that other provision namely Section 50 of the Trust Act are not pressed into service by the respondent no.1, the order passed by the Joint Charity Commissioner impugned in this petition is required to be quashed and set aside.

Learned counsel appearing for the petitioners submitted that the view taken by learned Single Judge of this Court in case of DEVKRUSHNADASJI GURU DHARMADASJI AND ORS. VS. (THE) STATE OF GUJARAT & ORS., reported in 2008 (1) GLH 427, may not be treated as a binding precedent on this Court, as when the clear and unequivocal language of the provision is clear enough, the said decision cannot be said to be a binding decision and he submitted that, in case, if the Court would come to the conclusion agreeing with the submission of learned counsel, then, the matter be referred to Larger Bench and in support of his submission, learned counsel for the petitioners submitted following authorities:

(i) Grid Corporation of Orissa Limited and others Vs. Eastern Metals and Ferro Alloys and others, reported in (2011) 11 SCC 334;

(ii) Promoters & Builders Assn. Of Pune Vs. Pune Municipal Corporation, reported in (2007) 6 SCC 143;

(iii) Raghunath Rai Bareja and another Vs. Punjab National Bank and others, reported in (2007) 2 SCC 230;

Learned counsel appearing for the petitioners in view of this, submitted that the petition be allowed and relief is required to be granted.

Learned advocate appearing for respondent No. 1 contended that the petition could not have been maintainable in present form as the authority, who has passed the order, is not joined.

Learned advocate appearing for respondent No. 1 further contended that the provisions of the Trust Deed, which have been forming part of this compilation, would clearly indicate that how and in what manner the provisions are to be equated and binding and how the appointment of Trustee is to be revoked. In the entire Trust Deed, there exists no provisions for bringing about any suspension of any Trustees and hence, the suspension which is sought to be brought about by passing the Resolution dated 6.1.2013 cannot be suspended and therefore, there was all justification in issuing direction under Section 41A of the Trust Act.

Learned advocate appearing for respondent No. 1 thereafter contended that looking to the provisions of the Trust Deed and more particularly the provisions, which are reproduced at page-88 of the compilation, if read closely, it refers to the Trustee s appointment is qua only appointed Trustee and not qua elected Trustee and in other words, it can be stated that once the Trustee is elected, he is to be permitted to render his entire term of 5 years, unless and until he is rendered incapacitated on account of exigency mentioned and that not amounted to removal or revocation of its Trust-ship, it would amount to vacating of office on account of exigency mentioned in the provision, therefore, when there exists no provisions to even remove the Trustee before he completes the term of 5 years, there cannot be any question of bringing about suspension by way of majority decision of fallow Trustees and therefore, on this count also, the direction issued does not call for any interference.

Learned advocate appearing for respondent No. 1 thereafter contended that close perusal of the decision of the Division Bench in case of SYEDNA MOHAMED BURHANUDDIN THE 52ND DAI-UL-MULTAQ AND HEAD OF THE DAWOODI BOHRA COMMUNITY VS. CHARITY COMMISSIONER, GUJARAT STATE, AHMEDABAD & ORS.

(supra), the Division Bench decision in LPA in case of Navsari Taluka Halpati Shikshan Prachar Sangh Vs. Joint Charity Commissioner (supra), and decision of learned Single Judge in case of Devkrushnadasji Guru Dharmadasji and Ors, (supra) if read in its proper prospective, would persuade this court to hold that the order impugned in this petition is not required to be disturbed as there exists an ample powers under Section 41A for issuance of appropriate direction for administration of the Trust. The discharge of duty by Trustees in their capacity as such, is part and parcel of the administration of the Trust and it cannot be therefore said that same is required to be viewed from any other angle, so as to bringing in applicability of Section 50 and other provisions thereunder.

Learned advocate appearing for respondent No. 1 submitted that on perusal of the Trust Deed, the Trust deed is unequivocally clear qua the trustee s tenure and when it is not containing any provisions for declaring or restraining the Trustees in any manner, the resolution impugned by respondent no.1 before the Joint Charity Commissioner was per-se contrary to the provisions of the Trust deed and therefore, same is essentially amount to not carrying out the purpose of the Trust, which would warrant interference or direction from the competent authority under Section 41A of the Trust Act. The purport of Section 41A is now much clear in view of the aforesaid citations and that the Court has interpreted Section 41A to be the Section, under which the Charity Commissioner has power and authority and rather duty to issue direction so as to see to it that the functioning of the Trustee and administration of the Trust would run in accordance with law and in accordance with provisions of the Trust Deed, therefore, it is submitted that the petition be dismissed.

This Court has heard learned counsel for the parties and perused the annexures appended thereto. Before adverting to the rival contentions of the learned advocates for the parties, it is most expedient to set out indisputable facts emerging in the case as under:

The Trust deed and close perusal thereon do not indicate that there exists any power in any Trustee or majority of Trustees to bring about the suspension or even termination of the Trust-ship of the fallow Trustees.

The provisions of the Trust deed cannot be permitted to be whittled down in any manner unless and until it is shown to be obnoxious, contrary to the settled provisions of law and offending the sense of fairness and verging of becoming absurdity . In other words, for the sake of any exigency or situation, the Trust Deed and its provisions are to be given full play in operation of Trust and in doing day to day business of the Trust.

The Trust deed in question in the instant case, as it is stated hereinabove, do not contain any provision qua either termination or removal or suspension of fallow Trustee, who has been duly elected and this fact cannot be denied in any manner.

The fact remains to be noted that the respondent no.1 is duly elected Trustee and he has not been saddle with any impairment or incapacitated rendering him invalid to function as Trustees.

The alleged conduct, even if it is taken to be correct, was required to be dealt with any appropriate proceedings under the law on land, but provisions in the Trust Deed cannot be bridged by borrowing principle which are not in consonance with the provisions of Trust Deed as Trust Deed does not recognize any majority power of fallow Trustee to render sitting Trustee suspended or incapable of functioning as Trustee.

The Resolution dated 6.1.2013 is unequivocally clear in its wording, whereunder, it leaves no room for interpreting anything else but fact that respondent no. 1 was not only suspended as Trustee but was also not permitted to enter even in the office of the Trust and was called upon to hand over the books of accounts etc. These are the directions, which were not justifiable on plain reading of the Trust Deed.

The respondent no1.

was not removed, as the stand taken by petitioners is unequivocally clear before the authority and even before this Court and all alone the petitioners have taken a stand that resolution cannot be said to be bringing about any removal of the respondent no. 1.

The order impugned passed by the Joint Charity Commissioner dated 30th March, 2013 contained specific direction, which in my view is in consonance with the Trust Deed.

In view of the aforesaid aspect, a question arises as to whether the order impugned can be said to be in any manner perverse or illegal so as to call for any interference in exercise of powers under Article 226 of the Constitution of India, the answer would be NO . The Court is of the considered view that the provisions of Section 41A of the Trust Act needs no elaborate discussion in light of the decisions cited at bar and plain and simple reading of those decisions couple with the fact thereunder, would persuade this Court to hold that the direction issued in the instant case cannot be said to be contrary or dehors the provisions of the Trust Act. The effect of resolution dated 6.1.2013 was to render the respondent no. 1 as person having no post or say in the functioning of the Trust. The said Resolution thus render the respondent no. 1 as Trustee for the name sake without any authority to exercise his power, authority or duty to act as a Trustee. Such an incapacitated foisted upon the respondent no. 1 in absence of any specific provision in the Trust Deed, would amount to bring about the impairment in the administration of the Trust, as the functioning of the Trust, is as per the Trust.

As per Trust Deed, provision is not endeavouring any such aspect of fellow Trustee, if it is not viewed as indulgence on the functioning of the Trust and administration of the Trust, then a question arises whatelse can be said to be an exigency, which would be classified or attributed to be administration of the Trust. The administration of the Trust is at the hands of the Trust only and one Trustee, contrary to the provisions of Trust Deed and terms of Trust Deed, prevented from functioning, then, it will have a telling effect upon the functioning of the Trust and in that way, it can well be said that the administration of the Trust is not in accordance with Trust Deed, which would in terms warrant issuance of appropriate direction under Section 41A of the Trust Act at the behest of concerned party.

The decisions cited at bar need no elaborate discussion as the observations of the Courts are very clear on the point. The Court is unable to accept the interpretation sought to be placed upon Section 41A by learned counsel for the petitioners, as the same interpretation would act as violation to the language of Section 41A and therefore same would not be justified in any manner.

The Court is unable to agree with the submission of learned counsel appearing for the petitioners that in view of the provisions of Section 50, the present respondent no. 1 was not justified in invoking Section 41A and in turn the Joint Charity Commissioner was also not justified in passing the order. The provisions of Section 50 on plain and simple reading would indicate the situation which did not examine its invocation in the present case at all. The provisions of Section 41A in that way very much available as it is the consistent stand of the Trustees petitioners that respondent no. 1 has not been removed and he has been only suspended during the pendency of inquiry. The Court is of the considered view that even the inquiry in such a situation so as to bring about resolution of removal on account of such finding would not be warranted. Thus, this observation is only for the sake of testing of counsel s submission and it may not be having in conformity upon the further proceedings, if any, hereafter.

In the result, the Court is of the view the petition being bereft of merits, deserves rejection and is rejected accordingly. Notice discharged. Interim relief stands vacated. There shall be no order as to costs.

At this stage, learned counsel appearing for the petitioners requested that the ad-interim order granted earlier on 9.5.2013 be continued for sometime so as to enable the petitioners to approach the Appellate Forum. The said request is vehemently opposed by learned advocate for respondent no. 1 as the term of respondent no.1 as Trustee is ending on 27.11.2013. The Court is of the considered view that ordinarily the interim relief would have been permitted to continue for sufficient time so as to enable the petitioners to challenge the order of this Court in Appellate Forum but here in the peculiar facts and circumstances of the case, when the term of respondent no.1 as Trustee of the Trust ending on 27.11.2013, the Court is not inclined to grant larger time and accordingly, the interim relief granted earlier shall stand extended only upto 26.09.2013.

(S.R.BRAHMBHATT, J.) pallav Page 13 of 13

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Gujarat High Court