JAI RANCHHOD BHOGILAL SEVAK Vs. THAKORELAL PRANJIVANDAS JUMKHAWALAL

JUDGEMENT

(1.) These matters raise a common question, namely, whether the power of appointment of trustee in accordance with the instrument of trust is subject to the provisions of S.50 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the Act") when such power is conferred on the District Court? The judgment of the Division Bench in the case of Yasinmian Amirmian Faroqui v. I. A. Shaikh, (1977) 18 Guj LR 54 holds that in view of the provisions of S.50 of the Act, the provision in the scheme already settled would be overriden and would have to be adjusted and reshaped subject to the provisions of S.50 of the Act. No suit or proceeding for any of the reliefs mentioned therein (including the appointment of a new trustee) would be maintainable without the consent of the Charity Commissioner. When these matters came up for final hearing before our learned brother late A. N. Surti, J. he could not agree with the reasoning of the Division Bench in Yasinmian's case and therefore he directed that these matters be placed before the learned Chief Justice for orders as the decision of the Division Bench in the case of Yasinmian (supra) required reconsideration. That is how these matters have come up before the Full Bench.

(2.) The facts in brief are as follows : There is an ancient temple of Ranchhod Raiji at Dakor in District Kaira. A scheme has been settled long back for the administration of this temple under S.92 of C.P.C. At that time Dakor was within Ahmedabad district and Ahmedabad District Court had framed the scheme which was substituted by the Bombay High Court and confirmed subject to some modification by the Privy Council. The Bombay High Court held that it was a common ground that there should be a committee of management and that it should comprise of not less than 5 members. It was also conceded that some of them should be independently selected. Ultimately the scheme provided that three members shall be selected by the District Court of Ahmedabad (now Kaira) and one shall be a male member of Tambekar family and one shall be a nominee of the sevaks. The Committee was called "The Dakor Temple Committee" which was to administer all the properties of the Dakor temple. The members of the committee are for a term and are eligible for reappointment. Clause 7 of the scheme, so far as it is relevant for the present purpose reads as under: "Any member of the committee, shall, on good cause shown, be liable to be removed by the District Court of Ahmedabad. Any vacancy occurring in this or any other manner shall be filled up by the District Court of Ahmedabad........." (now it is District Court of Kaira). One of the trustees Shri Krishnaraj Thakarshi was appointed under the scheme by the District Court at Kaira. He expired on 4th Feb. 1978 and, therefore, under Cl.7 the Manager of the Temple Committee gave an application being Misc. C. A. No. 16/78 to the District Court at Kaira for filling in the vacancy by appointment of a new trustee. Another trustee Shri Chaturbhuj Chimanlal was due to retire on 9th Jan. 1979. Therefore in that application itself a prayer was made to fill in that vacancy which was to arise in near future on 9th Jan. 1979. By its judgment and order dt. 27th Sept. 1978 the District Court appointed Shrimati Sumati Morarji in the vacancy caused by the death of Shri Krishnaraj Thakarshi. However the application for appointment in the anticipated vacancy was rejected on the ground that the application was premature. Against that part of the impugned order holding the application premature Civil Revision Application No. 1452 of 1978 was preferred to the High Court and the High Court (R. C. Mankad, J.) allowed the Revision Application by judgment and order dt. 29th Nov. 1978 and directed the District Court to make appointment in the anticipated vacancy which was to arise on 9th Jan. 1979, when Shri Chaturbhuj Chimanlal was due to retire. After the remand by an application ex.294 dt. 26th Dec. 1978 the name of Shri D. G. Desai was proposed for being appointed as a trustee. Along with that application, another application ex.295 was also filed for condonation of delay in making the application proposing the name of Shri D. G. Desai. Ex.297 is the consent of Shri D. G. Desai. The Court ordered notice to the parties and after hearing the parties, the delay was condoned on 5th Jan. 1979 and the matter was heard on merits and by the impugned order the District Court appointed Shri D. G. Desai after considering several other names also which were proposed. This order is under challenge in First Appeal No. 89/79.

(3.) Shrimati Sumati Morarji, member of the Temple Committee and another member of the Temple Committee Shri N. H. Bhatt (an honourable sitting Judge of this High Court) resigned as members of the Temple Committee and the said resignations were accepted by the District Court and therefore by Misc. C. A. No. 18/79 made by the Manager, it was prayed that the vacancies caused by their resignations be filled in by the" District Court under Cl.7 of the Scheme. A public notice of the same was given. By ex.20 one Shah Thakorlal Punjalal submitted that in view of provisions of S.50 of the Act and in view of the judgment in Yasinmian's case (1977-18 Guj LR 54) (supra) the District Court would have no jurisdiction to entertain the application for appointment of new trustees. The District Court by its judgment and order dt. 24th Jan. 1980 allowed the application ex. 20 and held that the District Court had no jurisdiction to grant the reliefs prayed for in Misc. C. A. No. 18/79 in the present proceedings following the judgment of the Division Bench in Yasinmian's case ((1977) 18 Guj LR 54) (supra). This judgment and order are challenged in C.R.A. No. 505/80 by the Manager of the Temple Committee.