NAVINCHANDRA JASANI Vs. PRAVINCHANDRA JASANI

JUDGEMENT

(1.) The short facts of the case are the petitioners are the Trustees of Shri Veraval Dashashrimali Vanik Gnati (hereinafter referred to as the "Trust"). Respondents No.1 to 11 made an application to the Joint Charity Commissioner under Section 41A of the Bombay Public Trust Act (hereinafter referred to as the "Act") on 24-1-1989 contending that the applicants who are respondents herein and other members of 70 families since generations are residing in Veraval and on account of the business, service and/or other circumstances they are required to go outside Veraval and it is also contended that there are other natives of Veraval who are required to stay outside Veraval City for professional purpose. It was stated in the application that they had applied for becoming the members of the Trust. However, the said memberships are denied and, therefore, the powers were made for treating them at par with the other members of the Trust and to restrain the Trustees from applicants using properties of the trust as beneficiaries and also to direct the Trust to admit them as the members.

(2.) In response to the said application the reply was submitted by the petitioners and it was contended, inter alia, that the applicants therein are not the natives of Veraval and it was also denied that the applicants and other members of 70 families are staying in Veraval since generations. However, it was stated that merely because they are staying at Veraval, belonging to the community, it cannot be said that they are natives of Veraval. The petitioners had also raised the contention regarding the jurisdiction of the Jt. Charity Commissioner under Section 41A of the Act and it was submitted that there is no jurisdiction with the learned Jt. charity Commissioner to give such directions as prayed for. The Jt. Charity Commissioner ultimately after hearing both the sides passed the order on 23-12-1992, whereby the application made by respondents No.1 to 11 is allowed and Trustees of the Trust who are petitioners herein are directed to register the applicants and other persons belonging to Dashashrimali Vanik Gnati residing in Veraval as the members in "B" Class category and a further instruction was also given that the applicants and other members belonging to the said Community staying at Veraval should be allowed to use the property of the Trust on the payment of necessary fees. So far as the applicants and other persons to be admitted as "A" Class category members is concerned, observation was made that the necessary legal procedure may be undertaken. It is this order dated 23-12-1992 passed by the Jt. Charity Commissioner, which is under challenge in this petition.

(3.) The learned Sr. Counsel, Mr.Nanavati appearing for the petitioners has mainly raised three contentions while questioning the jurisdiction of the Jt. Charity Commissioner under Section 41A of the Act. He submitted that as per the judgement delivered by the Division Bench in the case of "Syedna Mohamed Burhanuddin Vs Charity Commissioner, Gujarat State, Ahmedabad and Others" reported in 1992(1) GLH, 331, the Charity Commissioner has power under Section 41A of the Act in respect of the items which are related to or covered by Section 32 to 41 of the Act and there is no power of adjudicating of any right or dispute and such power can at the most be exercised for curing the human weakness or lapse on the part of the Trustees. Mr.Nanavati submitted that whether the original applicants before the Jt. Charity commissioner are staying at Veraval or not is in any case disputed and for establishing that a person has settled in Veraval, a full-fledged enquiry is required to be held and evidence is required to be led and for holding such inquiry or for leading evidence, the Jt. Charity Commissioner has no authority or jurisdiction under Section 41A of the Act and, therefore, he submitted that the order passed by the Jt. Charity Commissioner is without jurisdiction. Mr.Nanavati alternatively submitted that even on merits unless it is established on record by the original applicants before the Jt. Charity Commissioner that the applicants and other members of the 70 families have settled in Veraval, there was no question of giving any direction. Mr.Nanavati also submitted that as such the case of the applicants before the Jt. Charity Commissioner was that they are covered by "A" Class category, whereas the case is considered by the Jt. Charity Commissioner as if the applicants are claiming the rights, as the members of "B" class category. Therefore, he submitted that there is also non-application of mind and in any case, no relief can be granted in absence of evidence on record.