Bombay High Court
Asaram Bhimrao Shinde And Ors. vs State Of Maharashtra And Ors. on 20 June, 2001
Equivalent citations: 2002(3)BOMCR16
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard learned Advocates for the parties.
2. Persued the records.
3. Rule. Rule made returnable forthwith by consent.
4. The petitioners challenge the order dated 22nd May, 2001 passed by the Assistant Charity Commissioner Beed being contrary to the basic principles of natural justice as well as contrary to the provision of law contained in the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the said Act").
5. Upon hearing the learned Advocates for the parties and on perusal of the record it is seen that, the Assistant Charity Commissioner Beed by the impugned order, while allowing the application, filed by respondent Nos. 4(a) and (b) under section 41-A of the said At, had sought to appoint a Committee of three members for the administration of the trust and its property in question and to maintain the necessary accounts in relation to the income and expenditure of the trust. It is the contention of the petitioners that the said order has been passed without hearing the petitioners and that the Assistant Charity Commissioner has no power to appoint any such Committee under section 41-A of the said Act. On the other hand, it is the contention of the learned Advocate appearing for the respondent No. 4(a) that, the Assistant Charity Commissioner is duly empowered to take every such necessary steps for proper administration of the trust and that would include appointment of Committee of three members. Reliance is sought to be placed by the learned Advocate for the respondent No. 4(a) on the decision of the learned Single Judge of this Court in the matter of Nathmal Kisanla Goenka and another v. Assistant Charity Commissioner, Akola, reported in 1994 Mh.L.J. 303 and on one unreported judgment of the Division Bench of this Court in the matter of Bahujan Shikshan Sangh, Ahmednagar v. Assistant Charity Commissioner, Ahmednagar, Writ Petition No. 2688 of 1998 delivered on 18-8-1998.
6. At this stage it is to be noted that, there is no dispute between the parties that the petitioners had submitted a change report being Inquiry No. 269 of 2001 and it is still pending for approval by the Assistant Charity Commissioner. Application under section 41-A filed by respondent Nos. 4(a) and (b) bears Inquiry No. 276 of 2001. The said application was filed on the ground that the petitioners had illegally enrolled some members and they were all close relations of the petitioners and besides that they had not submitted audited accounts for the period from 1-4-1998 to 31-3-2000 and there was mismanagement of the trust by the petitioners, the impugned order apparently discloses that, the same has been passed merely holding that there being something fishy about the working of the Secretary i.e. petitioner No. 1 or the working of the Secretary being somewhat doubtful.
7. Section 41-A(1) of the said Act provides that subject to the provisions of the said Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. Sub-section (2) provides that it shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1).
8. Apparently, thereof, section 41-A deals with the power of the Commissioner to issue directions for proper administration of the trust. The phraseology used in the said section nowhere discloses any power being given to the Commissioner to appoint any Committee for the purpose of administration of the trust. On the contrary, it speaks about directions to any trustee of the trust, or person connected therewith to ensure that the trust is properly administered. It does not speak of appointment of the persons for administration of the trust but, on the contrary, to take steps to ensure that the persons who are in the administration of the trust act in the interests of the trust and diligently for the fulfilment of the objects and purpose of the trust. In fact, the power, regarding suspension, removal and dismissal of trustees from the management of the trust is given to the Charity Commissioner under different provisions i.e. under section 41-D.
9. Section 41-D(1) provides that the Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41-B of suo motu may suspend, remove or dismiss any trustee of a public trust, if he (a) makes persistent default in the submission of accounts report, or return; (b) wilfully disobeys and lawful orders, issued by the Charity Commissioner under the provisions of the said Act or Rules made thereunder by the State Government; (c) continuously neglects his duty or commits any malfeasance or misfeasance, or breach of trust, in respect of trust; (d) misappropriates or deals improperly with the properties of the trust of which he is a trustee; or (e) accept; any position in relation to the trust which is inconsistent with his position as a trustee (f) if convicted of an offence involving moral turpitude. Sub-section (2) of section 41-D provides that when the Charity Commissioner proposes to take action under sub-section (1), he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges of testing the evidence adduced against him and of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges, framed against the trustee, his explanation and the finding on each charge, with the reasons therefor. Sub-section (3) provides that pending disposal of the charges framed against a trustee, the Charity Commissioner may place the trustee under suspension. Sub-section (4) provides that where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustee according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust. Sub-section (5) provides that a trustee, aggrieved by an order made under sub-section (1) may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order.
10. Section 41-D, therefore, elaborately prescribes the procedure as regards suspension, removal and dismissal of trustees. Such a power can be exercised on the basis of application by any trustee or from the person interested in the trust or on receipt of report under section 41-B or even by suo motu. However, the exercise is restricted on the grounds mentioned in sub-section (1) of section 41-D. Besides, before exercising such power, the Commissioner is required to comply with the prescribed procedure under sub-section (2) which clearly speaks of compliance of basic principles of natural justice as well as the order to be a reasoned order. Undoubtedly, the Commissioner is empowered to suspend a trustee during the inquiry pursuant to the issuance of show cause notice under sub-section (2) for the charges, enumerated in sub-section (1) thereof. Sub-section (4) further enumerates the procedure regarding filling of the vacancies and in what cases such vacancies can be filled up. In other words, there are detail provisions made in section 41-D to meet all the eventualities where the Charity Commissioner considers it is necessary to take stringent measures like removal or suspension or dismissal of trustees on serious charges enumerated under sub-section (1). It is well established that when a specific provision is made for a specific purpose in a statute, resort cannot be had to some other provision in such statute to attain the purpose. When a thing is required to be done in a particular manner, then it should be done in that manner only and in no other manner, otherwise the action would be rendered void and illegal.
11. The learned Single Judge in Nathmal Kisanlalji's case while considering the scope of section 41-A has held that the underlying idea of section 41-A of the Act is that those directions should relate only to (a) proper administration of the public trust; or (b) for proper accounting of its income, or (c) for appropriate application of the income to the objects of the said trust. It has also been observed therein that there can be no question of any controversy or dispute while dealing with the matter under section 41-A of Rules of application of principle of natural justice. Undoubtedly the directions which can be issued under section 41-A, therefore, are of administrative nature and they cannot relate to any quasi judicial powers of the Charity Commissioner. Quasi judicial proceedings would certainly require adherence to principles of natural justice while exercising such powers. As already observed above, section 41-A speaks about only directions to be issued to the trustees or persons connected with the trust for proper administration of the trust and for diligent performance of their duties by the trustee for attaining the objects and purpose for which the trust is established. It does not empower the Commissioner to remove or appoint any new Committee for the administration of the trust. Such powers are specifically bestowed upon the authority under section 41-D.
12. Being so, the decision of the learned Single Judge which hold that section 41 does not contemplate adjudciation and, therefore, question of application of principle of natural justice does not arise, is of no help to the respondent to contend that section 41-A would include power to appoint a new Committee either of trustees or persons connected therewith for the purpose of administration of the trust.
13. The unreported decision of the Division Bench in Bahujan Shikshan Sangh Ahmednagar's case does not anyway lay down the law to the effect that the Charity Commissioner in exercise of powers under section 41-A can appoint a new Committee. In fact, the question involved therein was whether in an application under section 41-A of the said Act the Assistant Charity Commissioner is empowered to exercise the powers as enumerated in section 41-D of the said Act for supersession of the trustees. As already observed, section 41-D on the face of it empowers in the Charity Commissioner to exercise those powers even suo motu. Being so, even on application under section 41-A nothing would prevent the Chairty Commissioner from exercising powers under section 41-D in an appropriate case. However, undisputedly the Assistant Charity Commissioner in the case in hand has not exercised his powers under section 41-D and the impugned order is stated to have been passed only in exercise of powers under section 41-A. Hence, the decision relied upon is of no help to the respondents to justify the impugned order.
14. Undisputedly by the impugned order, the Assistant Charity Commissioner, instead of issuing directions, if at all they were necessary, to the trustees or persons interested in relation to the administration of the trust, has directed the appointment of Committee, of three persons for the administration of the trust and that too when, the impugned order on the face of its discloses that, the Assistant Charity Commissioner was fully aware that the petitioner No. 1 continues to be a secretary of the trust. There is absolutely nothing stated as to what happens to the office held by the petitioner No. 1 during the tenure of the so-called newly appointed Committee. Besides, the impugned order has been passed solely on the ground that the working of the Secretary either appears to be something fishy or somewhat doubtful. Apparently, the authority itself was not satisfied of the materials placed before it that there was a case made out by the respondents to arrive at the finding about the mismanagement by the petitioners. It was necessary for the Assistant Charity Commissioner to analyse the materials on record and to ascertain whether those materials justify the finding and the action under section 41-D of the said Act. Only then the Charity Commissioner could have exercised powers for suspension of the present Committee and to appoint a new Committee.
15. Considering the materials on record, therefore, this impugned order cannot be sustained. It is not in dispute that the authority has exercised the powers only under section 41-A and not under section 41-D and neither the steps as are required under section 41-D(2) are taken nor any order has been passed in exercise of powers under sub-section (3) or (4) of section 41-D, therefore, the impugned order cannot be sustained and is liable to be set aside. However, considering the nature of allegations against the petitioners it would be also necessary to remand the matter, to the concerned authority to decide the Change Report No. 269 of 2001 as well as the application under section 41-A filed by the respondent Nos. 4(a) and (b) bearing No. 276 of 2001 afresh, both together, after hearing the parties within a specific period of 3 months from the date of receipt of writ of this Court.
16. Rule is made absolute in above terms with no order as to costs.