Gujarat High Court
Jetunbibi vs Aiyubsha on 22 August, 2008
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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FA/45419/1999 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 454 of 1999
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JETUNBIBI
WD/O RAMZUSHA LALSHA & 1 - Appellant(s)
Versus
AIYUBSHA
AHEMADSHA BANVA - Defendant(s)
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Appearance
:
MR
MEHUL S SHAH for
Appellant(s) : 1 - 2.MR SURESH M SHAH for Appellant(s) : 1, 1.2.1,
1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 - 2.
MR MA BUKHARI for
Defendant(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 22/08/2008
ORAL
ORDER
1. By way of this appeal, the appellants have challenged the judgement and award dated 11.12.1998 passed by the Court of Joint District Judge, Mehsana in Civil Miscellaneous Application No. 41 of 1997 whereby the appeal was allowed and the order dated 24.01.1997 passed by the Charity Commissioner was quashed and set aside and the order passed by Assistant Charity Commissioner was restored.
2. The facts in brief can be set out as under:
3. The present respondent-original applicant is the trustee of trust namely Godadsha Pir and Mai's Takio, Mehsana registered no. B-592 dated 29.06.62 under the Bombay Trust Act, 1950 (hereinafter referred to as 'the Act'). The respondent submitted change report no. 491/1995 before the Assistant Charity Commissioner, Mehsana. As per the change report, it was stated that the name of trustee Ahmedsha Lalsha Banwa be deleted and in place the name of Aiyubsha Ahmedsha Banwa (Fakir) be added. On 12.09.96, the Assistant Charity Commissioner, Mehsana accepted the said change report. Against that the present appellants filed appeal no. 17/96 before the Charity Commissioner, Gujarat. The said appeal was allowed vide order dated 24.01.1997 and the order of the Assistant Charity Commissioner was quashed and set aside. Being aggrieved by the said order of the Charity Commissioner, the present respondent filed MCA No. 41 of 1997 and the same was allowed vide order dated 07.12.198 by the Joint District Judge, Mehsana. Hence the present appeal.
4. Mr. Mehul S. Shah, learned advocate appearing for the appellants has contended that the lower court has erred in construing the Scheme and in failing to appreciate and consider that hereditary trustee has to be appointed from the members of the family of Lalsha Budusha by following procedure as per Clause 9 of the Scheme and, as such, appointment and Change Report are not in accordance with the sanctioned scheme and therefore the change report cannot be allowed. He has submitted that as per the sanctioned scheme on considering its Clauses 5 and 9, it can be clear that hereditary trustee can be appointed from members of family of Shri Lalsha after giving notice inviting application for the appointment of the hereditary trustee. He has further submitted that in case of any vacancy, the same has to be filled within one month.
4.1 Mr. Shah has further contended that in case the procedure laid down in appointing trustees from the trustees of the family members is not followed then the other trustees can appoint from other eligible adult members of family and if they also fail, then it will be open to the Charity Commissioner to make necessary appointments subject to consent of adult members.
5. Mr. Bukhari, learned advocate appearing for the respondent has submitted that the earlier trustee was also appointed in the same fashion and therefore the order of the Assistant Charity Commissioner is just and proper. He has submitted that no notice is required to be issued in the present case as the respondent is even otherwise eligible for being the trustee and is also recommended by the outgoing trustee.
6. This Court has gone through the materials placed on record including the orders passed by the Assistant Charity Commissioner and the Charity Commissioner as well as the judgement delivered by the lower court. The Assistant Charity Commissioner vide order dated 12.09.1996 has prepared the report on the premises that the outgoing trustee has recommended the name of his son and therefore he was appointed as a trustee. The Charity Commissioner however while dealing with the order of the Assistant Charity Commissioner in his order dated 24.01.1997 clearly observed that the procedure of issuing notice was not followed by the trustees. The Charity Commissioner has therefore remanded the matter to the Assistant Charity Commissioner.
7. This Court is of the opinion that before filling the vacancy of the trustee, the male adult family members are required to be given notice and in case of failure to issue notice, the other trustees can appoint the trustee from amongst the family members who are adults as per clause (b). Thereafter, if the said provision also fails, the Charity Commissioner has a right to appoint the trustee. As per the sanctioned scheme, no notice was given and even if the averment which are made on record are accepted, it clearly establishes that the procedure under the law which is required to be followed is not followed. This Court is in complete agreement with the reasonings adopted and findings arrived at by the Charity Commissioner.
8. The District court inspite of the finding of the Charity Commissioner that no notice has been issued meaning thereby that the procedure under the law has not been followed, has approved the appointment of the respondent as the trustee. In the opinion of this court, the irrational view taken by the District court is required to be quashed and set aside, more particularly, when the District Court has approved the finding of the Charity Commissioner that no notice has been issued thereby leading to non compliance of the legal procedures.
9. In the premises aforesaid, first appeal is allowed. The impugned order of the District court is hereby quashed and set aside. The respondent shall vacate the office forthwith. The Assistant Commissioner is directed to issue notice to the adult members of the family as on the date on which seat was vacant on or before 15th September 2008 and shall appoint the trustees on or before 31st October 2008. The Assistant Charity Commissioner shall place on record of this Court, the entire details regarding the appointment of new trustees on or before 22nd November 2008.
10. It cannot go without saying that the respondent was unauthorisedly holding office of the trustee from the year 1996 till date and for the same the trust is required to be compensated by way of reasonable compensation which can be calculated at Rs. 100/- per month from the date of holding office i.e. 12.09.1996 till today. It is made clear that the said amount of compensation shall be deposited with the Trust by the respondent on or before 15th September 2008 failing which no notice shall be issued to the respondent for appointment of the trustee.
11. It is made clear that this order is passed in view of the fact that the trustee-respondent was though eligible for the said post, but was appointed without following the due procedure as laid down under the law and was holding the office unauthorisedly till date. Writ to be sent to the Assistant Charity Commissioner, Mehsana. No order as to costs.
(K.S. JHAVERI, J.) Divya// Top