Indian Kanoon - Search engine for Indian Law

23. We now come to the removal provisions of Article 18. Anyone having the right to appoint a Trustee in terms of the Articles also has the right, "at any and all times", to remove such Trustee and to appoint any person (being a Trust Member) in his place or to appoint any person as aforesaid to fill in any vacancy in that office, whether caused by death, resignation or otherwise. This provision completely puts paid to the Defendants' plea that the Trust Members have no power to appoint an Ordinary Trustee except when there is no Ordinary Trustee at all. Trust Members obviously have the power to appoint a Trustee under the Articles, in which case they clearly have a power to remove an Ordinary Trustee and then to appoint another in his place. Besides, Article 18 does not simply stop at appointment of a Trustee in place of the Trustee removed, but permits appointment of "any person as aforesaid to fill any vacancy in that office, whether caused by death, resignation or otherwise". That means power to appoint does not merely imply power to remove and appoint in his place, but generally to appoint to fill any vacancy in that office, whether caused by death, resignation or otherwise. This power is common to the Ordinary Trustees themselves and the Trust Members in General Meeting. Article 18 in fact generally enables the appointing authorities to fill any vacancy caused by death, resignation or otherwise. Thus, in addition to Articles 20 and 21, it has an important bearing on the question as to who and when can fill in any vacancy in the office of the Ordinary Trustee.

24. Learned Counsel for the Defendants submits that the Trust Members' power to appoint is not a general power, but is subject to the condition of Article 20(b). I am afraid, I am unable to accept this submission, but even if I do, there is no reason why this power, even if it be conditional, should not be seen as the power to appoint within the meaning of Article 18. The constitution of the Trust does provide for restrictions on the power to appoint Ordinary Trustee, whoever exercises the power. Even the Ordinary Trustees themselves can appoint only subject to a restriction, namely, to stay within the limits prescribed in sat 22/38 nms 1022-2014.doc Article 17. That does not detract from them being persons having the right to appoint within the meaning of Article 18. Likewise, even if we assume that the power to appoint an Ordinary Trustee reserved for the Trust Members is to be exercised under some restrictions placed by the Articles, it is nonetheless a power to appoint within the meaning of Article 18. Once they have this power to appoint, it is needless to reiterate again, they have the power to remove an Ordinary Trustee and appoint someone in his place and also to fill in any vacancy in that office, whether caused by death, resignation or otherwise.