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(10) Before I proceed to discuss the various authorities which were cited before me, I may mention one other contention of Mr. I.M.Nanavati which appeared to receive some support from the judgment of Tyabji J. in Mahadev v. Govind rao 38 Bom LR 1137: (AIR 1937 Bom 124). The contention was that no power could be conferred on the District Court of Law except by the Legislature which alone could en large or diminish the jurisdiction of the District Court and that no provision of the Scheme could, therefore, be construed as vesting any power in the District Court as a Court of Law for such vesting of power belonged properly to the Legislature and not to the Court framing the Scheme. When the Court framing the Scheme conferred any power on the District Court, argued Mr. I.M.Nanavati, the intention could only be to confer such power on the District Judge as a persona designata, for any other view, would involve the assumption of a power in the Court framing the Scheme to enlarge the existing jurisdiction of the District Court as a Court of Law which power manifestly pertains to the Legislature and not to the Court. Mr.I.M.Nanavati, therefore, urged following this line of reasoning that the only view which the Court could take consistently with the legal position was that the power was conferred on the presiding officer of the District Court as a persona designata and not the District Court as a Court of Law. This contention of Mr. I.M.Nanavati, though at first blush attractive and plausible, is on a close analysis defective in that ignores various material and relevant considerations which must weigh with the Court in determining the importance question. It is no doubt true - and this proposition was not disputed - that the Legislature alone can enlarge or diminish the existing jurisdiction of the District Court as a Court of Law and that it is not competent to the Court framing a Scheme to make any provision affecting the jurisdiction of the District Court but this proposition does not lead to the conclusion for by Mr. I.M.Nanavati. And the reason is obvious. When the Court framing a Scheme for the administration of Charity makes provision for the administration of the charity whether permanently or for a short period, various functions may have to be discharged in the course of administration of the charity and sometimes, therefore, some of these functions may be entrusted to the presiding officer of a Court as a persona designata because the Court framing the Scheme feels that by reason of the judicial office occupied by such person and the confidence which such person enjoys from the public, such person would be best fitted to discharge such functions. Such functions, it may be noted may be entrusted equally to any other high officer of the State or any other person enjoying public confidence. But that is not necessarily the only manner in which provision can be made for discharge of various functions which may arise in the course of administration. The Court framing the scheme may very well provide that in relation to some of the matters, for which provision by its very nature cannot be made at the time when the Scheme is framed, directions can be obtained by approaching the Court. Take for example the matter relating to appointment of trustees in vacancies which may be caused from time to time. The Court framing the Scheme can in such a case either leave the matter of appointment of trustees to a persona designata or may provide that the Court itself would have the power of to appoint trustees suo motto or an application made in that behalf by any person interested in the charity. There may also arise occasions when it is necessary to remove trustees and in such a matter also the Court while framing a Scheme can provide that a persona designata shall be entitled to remove the trustees or that the Court shall be entitled to remove the trustees on sufficient cause shown. It would thus be seen that the Court framing the Scheme which admittedly acts as a Court of Law at the time of framing the Scheme-may instead of making a provision for appointment or removal of trustees for all time to time to come may serve to itself the power to appoint or remove trustees as and when occasion may arise. When pursuant to such a power the court is approached for the purpose of appointing or removing trustees, the Court certainly acts as a persona designata. Same would be the position in case off other matters relating to the administration of the charity. It would thus appear that when the Court framing the Scheme reserves to itself any power in regard to the matter arising in the course of the administration of the charity or for the purpose of effectively administering the charity, there is no enlargement of its judicial power by the provision reserving such power. If the District Court frames a scheme the District Court can on this reasoning reserve to itself the power to appoint or remove trustees or to do any other act in relation the administration of the charity as a part of the Scheme. The District Court would under the code of Civil Procedure be in the original Court in regard to the framing of Schemes and if the District Court re serves to itself any of these powers, it cannot be contended that in exercising such power as and when occasion arises, the District Court is acting otherwise as a Court of Law. But the District Court being an original Court an appeal would lie to the High Court from the Scheme framed by the District Court. The High Court in the existence of its appellate jurisdiction may affirm the Scheme or reject the Scheme or modifications in the scheme. Just as the District Court could reserve to itself powers in relation to various matters in the administration of the charity, the High Court also can reserve such power either to itself or to the District Court whose decree the appeal is brought before it. When the High Court reserves such powers to itself, it is clear that here is no enlargement of the jurisdiction of the High Court as a result of the jurisdiction of the High Court as a result of the decree passed by it. Equally there is no enlargement of the jurisdiction of the District Court when the High Court reserves such powers to the District Court. The District Court or the High Court in appeal may thus provide that provide in relation to certain matters which may arise in the course of administration of the charity may be reserved to the District Court and if such a provision is made, it is in my opinion, impossible to contend that there is any enlargement of the jurisdiction of the District Court. All that happens is that the District Court which is the original Court framing the Scheme is empowered to important the Scheme is empowered to implement the scheme or to work out the Scheme as and when occasion arises. The power to appoint or remove trustees or any other similar power in relation to matters concerning the administration of the charity is in noway different from the power which is to be found in various Schemes empowering the District Court to alter, modify or add to the Scheme. If power can be conferred on the District Court as a Court of law to later or add to a Scheme, I do not see why on a party of reasoning power cannot be conferred on the District Court as a Court of Law to appoint or remove trustees or to act in any manner in relation to the administration of the charity under the Scheme. As a mater of fact I find the power to remove trustees was treated as alike to the power to alter, modify or add to a Scheme by a decision of a Division Bench of the High Court of Bombay consisting of Patkar and Broomfield JJ. in Chandraprasan v. Jinabharti, 33 Bom LR 520 : (AIR 1931 Bom 391). In both the cases there is really no conferment of fresh power but merely reservation of existing power. Instead of making a provision for the administration of the charity for all time to time to come - which by its very nature may be impossible or at any rate imprudent - the court reserves to itself the power as a part of the Scheme to provide for contingencies which may arise from time to time in the course of the administration of the charity. There is, therefore, in my opinion, no substance in the argument that if Clause 7 be construed as conferring a power on the District Court as a Court of Law, such construction would have the effect of enlarging the jurisdiction of the District Court as a Court of Law which it would not be open to the High Court to do by a decree framing the Scheme. This argument, as I have pointed out above, proceeds upon a misconception of the true nature and character of the provision made in the scheme of course the judgment of Tyabji J., in 38 Bom LR 1137: (AIR 1937 Bom 124) (supra) support this argument. But for the reasons mentioned above I cannot regard this decision as laying down the correct law, Now ordinarily a decision of a single Judge of the High Court of Bombay would be binding on me having regard to the decision of a Full Bench of this Court in State of Gujarat v. Gordhandas Keshavji, (1962) 3 Guj LR 269: (AIR 1962 Guj 128) but it is open to me to disregard this decision of Tyabji J., since it is a decision rendered by Tyabji J., sitting as a member of a Division Bench along with Broomfield J., and in his judgment did not accept or even refer to this line of reasoning adopted by Tyabji J., therefore, reject the contention of I.M.Nanaavati J., that power under Clause 7 was vested in the presiding officer of the District Court as a persona designata and not the Court acting as a Court of Law.

(11) There is one last contention of Mr.I.M.Nanavati which requires to be noted. Mr.I.M.Nanavati contended that the power to appoint or remove trustees by its nature an administrative power and not a judicial power and that such power could not, therefore, be conferred on the District Court as a Court of law but must be regarded as conferred on the presiding officer of the District Court as a persona designata. This contention of Mr.I.M.Nanavati was constrained to put forward in order to escape from the consequences of the argument that if the District Court in Clause 6 and sub-clause (16) of Clause 12 meant the District Court acting as a Court of law, the District Court in Clause 7 must also mean the District Court acting as a Court of law. Mr.I.M.Nanavati sought refuge in the contention that the power conferred under clause 6 as well as sub-clause (16) of Clause 12 was a judicial power and that the reference to District Court in those clauses could, therefore, be regarded as references to the District Court acting as a Court of law but that the power and not a judicial power, no such conclusion followed in regard to this latter clause. This contention of Mr.I.M.Nanavati is, however, in my opinion, unsustainable and cannot provide any answer to the contention based on the analogy of Clause 6 and sub-clause (16) of Cl.12 in the first place the power to remove a member of the Committee on good cause shown is clearly a judicial power and in support of the proposition I cannot do better than quote the high authority of the Judicial Committee of the Privy Council in Balakrishna Udayar v. Vasudeva Udayar, 44 Ind App 261: (AIR 1917 PC 71) where Lord Atkinson delivering th4 judgment of the Judicial Committee observed in relation to a Section of the Madras Religious Endowments Act, 1863, providing for removal of a member of a Committee of Management :

"Section 9 provides that every member of a committee under Secs. 7 and 8 shall hold office for life unless removed for misconduct or unfitness, and no such member shall be removed except by order of the Civil Court. Surely in such a question a the removal of an officer from his office for misconduct or unfitness, the Court which makes the order removing him is exercising judicial functions?"

But apart altogether from this answer, there is another anger which is equally fatal to the contention of Mr.I.M.Nanavati and that answer is provided by the very terms of Sec. 92 of the Code of Civil Proocedure. That section provides that in the circumstances specified there, a suit can be filed in the principal Civil Court of original jurisdiction to obtain a decree removing any trustee or appointing a new trustee. The function of appointing and removing trustees is thus a judicial function properly exercisable by a Court of law. It is, therefore, futile on the part of Mr.I.M.Nanavati to contend that because the power to appoint or remove trustees is an administrative power and not a judicial power, the reference to the District Court in Clause 7 must be regarded as reference to the presiding officer of the District Court as a persona designata and not to the District Court as a Court of Law. This contention of Mr.I.M.Nanavati also suffers from a further defect in that it overlooks the fact that the appointment or removal of trustees is to be made by the District Court under Clause 7 in implementation of the Scheme and for the purpose of giving effect to it and that it is, therefore, entirely irrelevant to consider what is the nature or character of the function to be discharged by the District Court in appointing or removing members of the Committee.

Then the learned Judge said immediately after referring to the prayer for removal of the trustees which clearly shows that the observation which he made related not only to the prayer for modification of the Scheme but also to the prayer for removal of the trustees. It is, therefore, apparent that he also regarded the District Court entertaining an application for removal of the trustees as a Court of Law and not as a persona designata. Mr.A.D.Desai contended that this decision must, therefore, be regarded as laying down that in a Scheme where power is reserved to the District Court to remove trustees, the District Court exercising such power acts as a Court of Law and not as a persona designata and that the order of the District Court is subject to the revisional jurisdiction of the High Court. It is no doubt true that though the point whether the District Judge to whom the application for removal of the trustees was made acting as a persona designata or as a Court of Law was not expressly raised before the Court and there is no discussion of it in the judgment of either of the tow learned Judges, it must be regarded as implicit in the decision of the learned Judges that the District Judge was acting as Court of Law and not as a persona designata; for if the District Judge was acting a persona designata the High Court could not have entertained a Revision Application against the order of the District Judge rejecting the application for removal of the trustees. The order could be revised by the High Court only on the basis that it was made by the District Judge a Court of Law. It may be that the argument was not advanced before the High Court that the District Judge entertaining the application was a persona designata and not a Court of Law and that no revision application could, therefore, lie against his order. But merely because there was no argument or the argument was deficient it does not mean that the decision should be regarded as having passed over the point sub silentio. The point decided by the High Court was that a Revision Application lay against the order of the District Judge rejecting the application for removal of the trustee and the decision of the High Court must be deemed to have decided all the contentions which could have been used against the view taken in the decision. I must, therefore, regard this decision as laying down that the Scheme before the High Court in that case the District Court referred to was the District Court acting as a Court of Law and not the presiding officer of the District Court as a persona designata. But that does not help me very much in the determination of the question whether under Clause 7 of the Scheme the District Court referred to is the District Court as a Court of Law or as a persona designata. I must resolve that question for myself and not aid in solution of that for myself and no aid in the solution of that question can be said to be offered by this decision.