Indian Kanoon - Search engine for Indian Law

3. Writ Petition No.3849 of 2008 is filed by two trustees against whom various charges are framed. These trustees challenge the interim order of Jt. C.C. dated 3-6-2008 mainly on the ground that the said order has been passed without giving reasonable opportunity of hearing to the petitioners. Writ Petition No.3850 of 2008 is filed by three trustees, who are neither parties to the proceedings before the Jt. C.C. nor there are any allegations made against them. Their grievance is that in gross violation of the principles of natural justice, the Jt. C.C. has restrained them from functioning as trustees.

directly and substantially raised in High Court Suit No.1224 of 2008 which is still pending and the Court had declined to grant reliefs in the said suit.

Therefore, on the principles analogous to the principles of res-judicata, the Jt. C.C. could not have dealt with the very same allegations, which are subject matter of suit pending in the High Court.

8. Mr.Madon, learned Senior Advocate appearing on behalf of the two charged trustees who have filed Writ Petition No.3849 of 2008 submitted that the impugned order suffers from patent illegality and the said order has been passed by totally ignoring the facts on record. He submitted that the charges of mismanagement or misappropriation of funds of the Trust levelled against the trustees is devoid of any substance, because, after the petitioners took over the affairs of the trust, the income of the trust has increased manifold. He submitted that Mrs.Charu Mehta - a permanent trustee has been initiating proceedings one after the other with ulterior motives against ig the trustees who are efficiently managing the affairs of the Trust. In all those cases filed by Mrs.Charu Mehta the Courts have declined to accept the allegations made by her against the managing trustees. He submitted that after framing the charges, the trustees ought to have been given an opportunity to deal with the charges before passing the impugned order.

Joint C.C., (Special C.A. No.1912 of 1976 decided on 18-12-1978), Mr.Chinoy submitted that in law only those trustees whose names are approved and recorded in Schedule I of the B.P.T. Act can be considered as trustees. The newly appointed trustees cannot be called as trustees in law unless their name is approved and entered in Schedule I of the B.P.T. Act. As the names of the three petitioner-trustees as well as two other trustees have not been approved and do not appear in Schedule I of the B.P.T. Act, the Joint C.C. was justified in not treating them as trustees in law.

Since there was no inquiry against these three petitioner-trustees and two other trustees, the impugned order ig passed without hearing the said trustees must be held to have been passed in gross violation of the principles of natural justice.

21. Section 41-D of the B.P.T. Act provides that after suspending, removing or dismissing any trustee, the Charity Commissioner may appoint a fit person to perform the function of a trust only if the remaining trustees cannot perform the function of the trust in accordance with the instrument of trust. In the present case, neither the charged trustees have been suspended / removed / dismissed nor there is any finding as to why the remaining trustees cannot continue to function as trustees in accordance with the instrument of trust. As per the Trust Deed dated 5-7-1978 minimum three trustees are required to perform the functions of the trust.