SAMAST LOHANA MAHAJAN Vs. CHUNILAL TRIBHOBVANDAS KARIA

JUDGEMENT

(1.) The short facts of the case are that the petitioner, which is a Trust namely, Shree Samast Lohana Mahajan, was registered in the year 1976. At the time when the Trust came to be constituted, the conditions were that if any person gives donation of Rs.31,000.00 his name may be joined with the institution which may be controlled by the Trust and it was also provided that the Managing Committee of the Trust shall be comprising of minimum five persons and maximum eleven persons. Clause 19(3) of the Trust deed also provided that the election of the Managing Committee shall take place every five years. It appears that respondent No.1 shown his willingness to donate Rs.25,551.00 on condition that at the main gate of the building which may be constructed by the Trust for the community popularly known as "Wadi", name of respondent No.1 shall be mentioned and the member of the family of the donor or any person suggested by the donor shall be made permanent trustee of the Trust. The donation was accepted by the Trust and the matter was also placed before the general body of the Trust in the meeting dated 14-1-1979 and the general body had also resolved to accept the donation by further resolving that the condition of Rs.31,000.00 be substituted by the amount of Rs.25,551.00 and also one permanent seat of trustee for the member of the family of the donor or other person who may be suggested by the donor be created. As per contention of Respondents No.1-2 after the general body's resolution on 15-4-1980 a letter was addressed to the Jt. Charity Commissioner, Bhavnagar for the purpose of making change in the constitution of the Trust. Thereafter, whether the Jt. Charity Commissioner has granted permission for the change of the constitution of the Trust or not is not brought on record. The case of respondents No.1 and 2 is that respondent No.2 continued as the permanent trustee, however, the petitioners herein, without knowledge of Respondents No.1 and 2, filed a change report and respondent No.2 was deleted as the trustee.

(2.) Application No.11/1988 under Section 41A of the Bombay Public Trust Act (hereinafter referred to as "the Act") was filed before the Jt. Charity Commissioner for giving appropriate directions to the Trust to act as per the proceedings of the meeting dated 7-12-1978 and general body's meeting dated 14-1-1979 and also prayed for consequential relief. The Jt. Charity Commissioner heard the matter and examined the record and ultimately passed the order dated 11-11-1992, whereby the application of respondents No.1 and 2 is allowed and a direction is given to the Trust to act as per the resolution dated 7-12-1978 and 14-1-1979 and it is also mentioned that legal formalities for the implementation of the resolution be undertaken.

(3.) Mr.Chapaneri, learned Counsel for the petitioners, has submitted that he is not aware as to whether, after general body's resolution for accepting the donation from respondents No.1 and 2, the conditions or the constitution of the Trust is amended or whether any sanction has been granted for the amendment of the constitution of the Trust or not. However, the perusal of the order shows that after passing of the resolution, it was case of respondents No.1 and 2 that the proposal was also forwarded as per the letter dated 15-4-1980 to the Jt. Charity Commissioner for making necessary change or amendment in the constitution of the Trust deed. Mr.Chapaneri submitted that the general body had held election in the year 1985 and the change report was already submitted and the same has been accepted and respondents No.1 and 2 did not file any objection to the change report and thereafter they submitted the application under Section 41A of the Act, that too, after a period of almost three years from the date of submission of the change report. Mr.Chapaneri submitted that if any question arises for the purpose of continuing or ascertaining the right as the trustee, the same can only be under the enquiry which may be held under Section 22 of the Act, that too, when the objections are filed against the change report. However, he submitted that such type of enquiry cannot be held under Section 41A of the Act and he further submitted that the order passed by the Jt Charity Commissioner is beyond the scope and ambit of power under Section 41A of the Act. He also submitted that as a matter of fact, the general body has held the election and at the election, since respondent No.2 has not contested and he is not accepted as the trustee and the Jt. Charity Commissioner cannot give a direction under Section 41A of the Act, as per the impugned order.