HIS HIGHNESS MAHARAJA Vs. THAKORSAHEBSHRI BALBHADRASINHJI

JUDGEMENT

(1.) RULE. Learned Advocate Mr.Mrugen Purohit waives service of Rule on behalf of respondent Nos.1, 2 and 3, learned Advocate Mr.Mitul Shelat waives service of Rule on behalf of respondent No.4 and learned AGP Mr.Dhawan Jayswal waives service of Rule on behalf of respondent No.5.

(2.) This petition under Article 226 of the Constitution of India is filed seeking direction to quash and set aside judgment and order dated 28.03.2019 passed by the Joint Charity Commissioner below application Exhs.4 and 6 in Judicial Misc.Application No.41/15/18. In the aforesaid case, management of Rajkumar College, Rajkot managed by a Trust, viz. Rajkumar College Trust, Rajkot is brought in question on the ground of non- holding of election to the post of President. The petitioners herein are the trustees of the Trust whereas respondent Nos.1 to 3 are members of the founding families of the Trust. Respondent No.4 is one of the Trustees. Respondent Nos.1 to 3 are the applicants in the application under Section 41A of the Gujarat Public Trusts Act ("the Act" for short) filed before the Joint Charity Commissioner, wherein it is prayed inter alia for a direction to declare and conduct election as per the rules of management of Rajkumar College, which provides for election after period of five years with opportunity to all the members to contest and vote in such election. Along with application under Section 41A, application Exh.4 came to be filed with almost identical prayers as in the main application and below such application, an order came to be passed on 17.12.2018 and under such order, it was directed not to take any decision on Agenda item No.6 of the meeting scheduled on 18.12.2018. It was also directed not to take any policy decision regarding management of the Trust and major expenditure except day- to-day expenditure for the administration of the Trust without the permission of the General Board. The application Exh.6 was also filed seeking stay on decision of issue No.6 of agenda item for the meeting scheduled on 18.12.2018.

(3.) Learned Senior Advocate for the petitioners mainly contended that the proceedings under Section 41A of the Act cannot be invoked for the purpose of direction to conduct election and when the proceeding under Section 41A for such purpose is not maintainable, no interim direction can be issued. He drew attention of this Court to judgment of this Court in the case of Syenda Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community Vs. Charity Commissioner, Gujarat State, Ahmedabad & Ors., reported in 1992 (1) GLH, 331. It is submitted that powers under Section 41A are only administrative and not adjudicatory, whereas the issues sought to be raised by the respondents in the application are purely adjudicatory.