Learned advocate for the petitioners has tendered draft amendment. The amendment is allowed in terms of the draft and shall be carried out forthwith.
The petitioner, a registered religious trust, has challenged the order dated 27.2.2012 passed by the Joint Charity Commissioner, Vadodara Region, Vadodara in Judicial Miscellaneous Application No.12 of 2011.
In connection with certain transactions executed by the respondent No.1, in respect of which the petitioner was of the view that he (the respondent No.1) had misappropriated the amounts received from the concerned persons and not deposited the said amount whereby he had not only defrauded the concerned persons, but also defrauded the trust and acted contrary to the interest of the trust. The Board of Trustees in its meeting held on 19.2.2011, by a resolution No.60 resolved that the respondent No.1 had without any authority, committed breach of trust as trustee and illegally handed over possession of the property for which he did not have any authority and did not deposit the amount which he had received pursuant to the alleged transactions with the trust, and appointed a committee of three persons to inquire into the matter and suspended the respondent No.1 as trustee till the receipt of the report of the committee as the Board apprehended that during the said period of inquiry, the respondent No.1 was likely to tamper with the evidence or may cause damage to the interest of the trust. Being aggrieved, the respondent No.1 filed an application under section 41A of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the Act") before the Joint Charity Commissioner, Vadodara, who, by the impugned order, allowed the application and held that the resolution dated 19.2.2011 passed by the Board of Trustees was beyond its jurisdiction and held that the order passed by the Board suspending the respondent No.1 was beyond the authority conferred upon the trust under its constitution. The Joint Charity Commissioner, accordingly, directed the trust that the respondent No.1, like any other trustees, be permitted to remain present in the meetings of the trust and also be furnished with agenda of the meeting. Being aggrieved, the petitioner has filed the present petition challenging the said order.
Mr.
N. D. Nanavaty, Senior Advocate learned counsel for the petitioners invited attention to the provisions of section 41A of the Act, to submit that the Charity Commissioner has no jurisdiction and authority to consider the legality and validity of the resolution dated 19.2.2011 in exercise of power under section 41A of the Act. It was submitted that the controversy involved in the present case is a dispute between the trustees and as such, is beyond the jurisdiction of the Joint Charity Commissioner under section 41A of the Act. According to the learned counsel, though the trust deed does not make any provision to appoint or suspend or remove a trustee, the plenary functions and authority of the trust as per scheme vest in the Board of Trustees. There is an electoral college which is the final authority which elects the trustees and that during and in course of discharge of functions as trustee, if a trustee misconducts himself, the Board of Trustees will be well within its rights to hold a domestic inquiry. While doing so, they would be required to follow the principles of natural justice and fair play and at the end of such inquiry, the conduct requires to be investigated either by instituting a suit for removal or by filing appropriate criminal case and to take such other measures. It was submitted that during the holding of such inquiry, there are plenary powers to suspend the trustee and there is no requirement of any specific empowerment under the Act or the Scheme. It was argued that when such actions are taken by the Board of Trustees, at least section 41A of the Act is not the remedy to the aggrieved person. Section 41A of the Act has time and again been interpreted by this Court, and it has been held that section 41A of the Act empowers the Joint Charity Commissioner to ensure that the trust is properly administered and to pass necessary orders for the said purpose. Adjudication of various disputes between the parties, particularly, election disputes may be outside the purview of such powers. Reliance was also placed upon the decision of this High Court in the case of Devkrushnadasji Guru Dharmadasji and others v. (The) State of Gujarat and others, 2008 (1) GLH 427, wherein, it has been held that there cannot be any dispute to the proposition that when there is express power provided under the statute for dealing with a particular situation, the general power or the residuary power cannot be made applicable. The court held that if the matter falls under section 22 read with section 22A of the Act, it cannot be the subject-matter of issuing directions under section 41A of the Act.
Attention was invited to clause (49) of the scheme of the Trust to submit that the Board of Trustees was empowered to take such necessary action in respect of any matter relating to the administration of the trust. Reference was made to the decision of a Division Bench of this court in the case of Shantibhai Kanjibhai Ratanpara v. Radharaman Dev's Temple, 2010 (3) GLR 2632. Reliance was also placed upon the decision of this court in the case of Raisinh P. Bhoi v. Dineshbhai Keshavbhai Patel, 2000 (3) GLR 1895, wherein the court has held that the enabling power given to the Charity Commissioner does not divest the Council or the Trust of the power to hold an inquiry against the Manager/Secretary or to place him under suspension. The court held that this mode, as has been provided under section 50 with regard to the suits relating to public trust, is not an embargo against the exercise of power by the Council of a Trust to proceed against its Secretary to hold inquiry and to place him under suspension and as a matter of fact, the result of such inquiry may constitute the material for the Charity Commissioner to act in accordance with the provisions of section 50, if he himself deems necessary and that will be in the nature of a material to form an opinion as to whether the direction of the court is deemed necessary for the administration of any public trust or not. It was submitted that the said decision would be directly applicable to the facts of the present case and as such, there can be no embargo against the exercise of powers by the Board of Trustees to proceed against the trustee and to place him under suspension pending the inquiry.
It was submitted that the allegations made against the respondent No.1 are serious in nature, hence, when a domestic inquiry which does not cause any prejudice is made, the Joint Charity Commissioner was not justified in interfering with the same.
Mr.
Mihir Joshi, Senior Advocate, learned counsel appearing on caveat with Mr. M.T.M. Hakim, learned advocate for the respondent No.1 submitted that the main issue that arises for consideration is as to whether the Board of Trustees has the power to suspend a trustee. It was submitted that neither the scheme of the trust, nor the provisions of the Act make any provision for removal of a trustee. It was submitted that when there is no power of removal, the question of suspension also would not arise. Inviting attention to section 50 of the Act, it was submitted that this is the only provision under the Act which provides for removal of a trustee and contemplates institution of a suit by the Charity Commissioner or by some other person with the consent of the Charity Commissioner. As regards the decision of this High Court in the case of Shantibhai Kanjibhai Ratanpara v. Radharaman Dev's Temple (supra), the learned counsel submitted that the issue involved in the said case was as regards the subject matter which was contemplated under the Trust Act and not without jurisdiction as in the present case. It was submitted that the scheme does not give any power of removal or suspension of the trustees and as a necessary corollary, there cannot be any suspension in aid of removal. It was submitted that under the circumstances, such unilateral action of suspending the respondent No.1 and causing domestic inquiry to be made was wholly without jurisdiction and not authorised under the scheme. Reliance was placed upon the decision of this High Court in the case of Devkrushnadasji Guru Dharmadasji and others v. (The) State of Gujarat and others (supra), wherein the court had held that if the action is wholly without jurisdiction or beyond the scope and ambit of the power, the matter would fall outside the applicability of the provisions of sections 22 and 22A of the Act and in such case, the jurisdiction under section 41A of the Act would not be ousted. It was submitted that in the present case, the action of the petitioner being wholly without jurisdiction, the conclusion arrived at by the authority under section 41A of the Act was wholly justified inasmuch as, there was no power vested in the trustees to take any such action. Therefore, the direction to act in accordance with the scheme is in consonance with the provisions of section 41A of the Act and as such, the impugned order is not an order without jurisdiction. It was submitted that the grant of any interim relief would amount to allowing the petition at the admission stage and as such, no interim relief deserves to be granted to the petitioner.
In rejoinder, Mr. N. D. Nanavaty, learned counsel submitted that section 41A is not a residuary power as held by this court in the case of Devkrushnadasji Guru Dharmadasji and others v. (The) State of Gujarat and others (supra) and that the said decision of this High Court is not in consonance with the decision of the Division Bench of this High Court in the case of Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community v. Charity Commissioner, Gujarat State, Ahmedabad and others, 1992 (1) GLH 331. It was submitted that section 50 of the Act is a cumbersome provision for removal of a trustee and that the same is a final action after resorting to the provisions of section 50 of the Act. However, it is always permissible for the Board of Trustees in exercise of its plenary powers to suspend a trustee while carrying on preliminary inquiry. It was submitted that the contention that if the trustee cannot be removed he cannot be suspended would be drastic. It was contended that holding of a preliminary inquiry is permissible and that pending such inquiry, suspension does not cause any prejudice to either of the parties. It was submitted that even under the Agriculture Produce Markets Act, there is no provision for moving a No Confidence Motion against the President despite which, this court has approved of such an action. It was submitted that under the circumstances, the action taken by the petitioner of suspending the respondent No.1 while holding preliminary inquiry being in consonance with the provisions of the trust deed, did not warrant any interference and that the Joint Charity Commissioner having no power under section 41A of the Act to issue such directions, was not justified in passing the impugned order.
In the light of the submissions advanced by the learned advocates for the respective parties, primarily two questions arise for consideration in the present petition. Firstly, as to whether the Joint Charity Commissioner could have entertained the application under section 41A of the Act in respect of the dispute involved in the present case, and secondly, as to whether the Board of Trustees has power to suspend a trustee pending preliminary inquiry in respect of the allegations made against such trustee.
Insofar as the exercise of powers under section 41A of the Act is concerned, this court in Shantibhai Kanjibhai Ratanpara v. Radharaman Dev's Temple (supra) has expressed a prima facie view that section 41A of the Act empowers the Joint Charity Commissioner to ensure that the trust is properly administered and to pass necessary orders for the said purpose. Adjudication of various disputes between the parties, particularly, election disputes may be outside the purview of such powers. The court has referred to the decision of a Division Bench of this court in the case of Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community v. Charity Commissioner, Gujarat State, Ahmedabad and others (supra), and observed that another line of judgments, however, such as in case of Devkrushnadasji Guru Dharmadasji and others (supra) suggests wider interpretation of the nature of powers of the Charity Commissioner under section 41A of the Act. The court however observed that it does not propose to conclude this question in the said proceedings. Under the circumstances, the said decision cannot be said to be a decision on the question as regards the scope and nature of powers under section 41A of the Act.
A learned Single Judge of this court in the case of Devkrushnadasji Guru Dharmadasji and others v. (The) State of Gujarat and others (supra) has held thus :
"20. There cannot be any dispute to the proposition that when there is express power provided under statute for dealing with a particular situation, the general power or the residuary power cannot be made applicable. Section 22 of the Act read with Section 22A of the Act does provide for the submission of the change report and holding of inquiry. Therefore, in a given case, if the matter falls under Section 22 read with Section 22A of the Act, it cannot be the subject matter of issuing directions under Section 41 A of the Act. However, it is by now well settled that if the action is wholly without jurisdiction or beyond the scope and ambit of the power, the matter would fall outside the applicability of such provision. Therefore, merely because the change report is filed or is objected, would not be a sufficient ground to oust the jurisdiction under Section 41A of the Act by the Charity Commissioner. However, if the action of submitting change report or a change is in purported exercise of power for brining (sic) about the change, then in that case, it would be a case to be considered under Section 22 of the Act read with Section 22A of the Act. But, if the action of brining (sic) about the change and thereby, consequently filing the change report is dehors the Trust Deed or wholly without jurisdiction on the part of any of the Trustees, it would be improper to construe that the matter would not fall in the domain of proper administration of the Trust under Section 41A of the Act, but would only fall under Section 22 read with Section 22A of the Act."
The court further held that with a view to regulate religious and charitable public trusts, the Act has been enacted. The court, in the facts of the said case, found that the trust deed on its face value prima facie did not provide for any power of removal nor was there any express provision made in the trust deed for removal. The court, accordingly, held that the action of removal of the respondent No.2 therein could prima facie be said to be wholly without power and authority under the trust deed.
Thus, insofar as the first question is concerned, prima facie, in the light of the decision of this court in the case of Devkrushnadasji Guru Dharmadasji and others v. (The) State of Gujarat and others (supra), wherein it has been held that if the matter falls under section 22 read with section 22A of the Act, it cannot be subject matter of issuing directions under section 41A of the Act. However, if the action is wholly without jurisdiction or beyond the scope or ambit of powers, the matter would fall outside the applicability of such provisions. That if the filing of the change report is de hors the trust deed or wholly without jurisdiction on the part of the trustees, it would be improper to construe that the matter would not fall within the domain of proper administration of the trust under section 41A of the Act, but would fall under section 22 read with section 22A of the Act.
In the light of the law laid down by this court in the case of Devkrushnadasji Guru Dharmadasji and others v. (The) State of Gujarat and others (supra), the validity of the exercise of jurisdiction under section 41A of the Act would depend upon the answer to the second question, namely, whether or not the Board of Trustees has power to suspend the respondent No.1.
A perusal of the scheme shows that there is no express power vested in the Board of Trustees for removal of a trustee. Clause (21) of the trust deed provides for the eventualities under which a trustee would be required to vacate the post of a trustee. Prima facie, the present case would not fall within any of the eventualities enumerated thereunder. A perusal of the entire scheme of the Act shows that the section 50 is the sole provision which provides for removal of a trustee. Therefore, prima facie, unless the trust deed expressly makes any provision enabling a majority of the trustees to remove an existing trustee, there is no power vested in the Board of Trustees to remove a trustee. When there is no power to remove a trustee, as a necessary corollary, there can be no power to suspend as suspension is merely a precursor to removal. Under the circumstances, prima facie, the action of the petitioner of suspending the respondent No.1 appears to be without jurisdiction.
When the action of suspending the respondent No.1 is without jurisdiction, as a necessary corollary, the provisions of section 41A of the Act would be attracted and as such, prima facie, no infirmity can be found in the action of the Joint Charity Commissioner in exercising powers under section 41A of the Act and issuing directions to the petitioners.
For the foregoing reasons, in the opinion of this court, no prima facie case has been made out for grant of interim relief as prayed for in the petition. However, the petition does give rise to substantial questions of law which require to be adjudicated after hearing the respective parties at length. Hence, Issue Rule returnable on 18th June, 2012. Mr. MTM Hakim, learned advocate waives notice of service of rule on behalf of the respondent No.1.
[HARSHA DEVANI, J.] parmar* Top