High Court of Gujarat
PRAVINBHAI D DOSHIversusSHRI KUNDKUND KAHAN PARAMARTHIK TRUST, SONGADH
- Disposal
- 39-RULE DISCHARGED/DISMISSED @ FH
- Bench
- HEMANT M PRACHCHHAK
Holding
The Court held that the Joint Charity Commissioner acted within its statutory jurisdiction under Section 41A of the Gujarat Public Trust Act and there was no illegality or jurisdictional error, so the orders were upheld.
Summary
The petitioners, trustees of a Jain trust, challenged orders of the Joint Charity Commissioner that upheld a resolution to continue a large religious construction project and stayed a resolution to cancel it. They alleged lack of jurisdiction, denial of hearing, and that the Commissioner exceeded powers under Section 41A of the Gujarat Public Trust Act. The Court examined the statutory scope of Section 41A, relevant case law, and the factual record showing the trust’s resolutions and donor contributions. It found that the Commissioner’s actions were within the statutory framework and that no illegality or jurisdictional error existed. Consequently, the Court dismissed the petitions and vacated any interim relief previously granted.
Issues considered
- Whether the Joint Charity Commissioner had jurisdiction to issue directions under Section 41A of the Gujarat Public Trust Act in the present dispute
- Whether the order passed by the Commissioner was illegal or violative of principles of natural justice
- Whether the petitioners, as trustees, had locus standi to challenge the Commissioner’s order
- Whether the Court can entertain the writ petitions under Articles 226/227 of the Constitution in this context
Legislation cited
- Bombay Public Trust Act, 1950
- Constitution of Indias. Article 226, s. Article 227
Subjects
public trustSection 41Acharity commissionerjurisdictionwrit of mandamuscertiorariArticle 226Article 227trust administrationnatural justice
Judgment
C/SCA/5866/2023 JUDGMENT DATED: 12/06/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5866 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 5866 of 2023
With
R/SPECIAL CIVIL APPLICATION NO. 17851 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 17851 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
==========================================
Approved for Reporting Yes No
✔
==========================================
RAJENDRABHAI VASANTLAL SHAH
Versus
SHRI KUNDKUND KAHAN PARAMARTHIK TRUST, SONGADH & ORS.
==========================================
Appearance:
MR JA ADESARA FOR ANKIT N MEHTA(7302) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4.6
MR NIKUNJ KANARA APP for the Respondent(s) No. 2
HARSH B SHAH(9324) for the Respondent(s) No. 4.2,4.5
MR SHALIN MEHTA SENIOR COUNSEL WITH MR MONAAL J
DAVAWALA(6514) for the Respondent(s) No. 1
MR SN SOPARKAR SENIOR COUNSEL WITH MR VISHAL T. PATEL(6518)
for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 4,4.1,4.8
UNSERVED EXPIRED (N) for the Respondent(s) No. 4.4
ZAINAB I BHARMAL(9298) for the Respondent(s) No. 3
==========================================
CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Date : 12/06/2026
ORAL JUDGMENT
1. RULE. Learned counsel waives service of notice of rule on behalf
of the respective respondents.
2. With the consent of the learned counsel appearing for the
respective parties, the present petitions are taken up for hearing and
disposal
3. Both these petitions have been arisen out of the same order
passed by Joint Charity Commissioner, Bhavnagar below Ex.20 in
Judicial Misc. Application No.41/A/10/2020 deciding power of Joint
Charity Commissioner to decide the issue and the final judgment and
order passed by Joint Charity Commissioner, Bhavnagar below Ex.40
in Judicial Misc. Application No.41/A/10/2020 dated 20.7.2021.
4. Special Civil Application No. 5866 of 2023 is filed by the
petitioner – Rajendrabhai Vasantlal Shah under Articles 226 and 227
of the Constitution of India and under the provisions of the Gujarat
Public Trust Act [hereinafter be referred to as “the Act”] seeking the
following reliefs:-
(a) To admit and allow this petition;
(b) To issue a writ of mandamus or a writ in the nature of
mandamus or a writ of certiorari, or a writ in the nature
of certiorari or any other appropriate writ, order or
direction, quashing and setting aside order passed by
Joint Charity Commissioner, Bhavnagar below Ex.20 in
Judicial Misc. Application No.41/A/10/2020 deciding
power of Joint Commissioner to decide the issue and
further be pleased to quash and set aside the final
judgment and order passed by Joint Charity
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Commissioner, Bhavnagar below Ex.40 in Judicial Misc.
Application No.41/A/10/2020 dated 20.7.2021 for the
reasons stated in the Memo of Petition and in the
interest of justice;
(c) To issue a writ of mandamus or a writ in the nature of
mandamus or a writ of certiorari, or a writ in the nature
of certiorari or any other appropriate writ, order or
direction, quashing and setting aside the resolution
10.10.2021 passed by respondent no.3 to implement
the impugned order dated 20.7.2021 of the respondent
no.2 for the reasons stated in the Memo of Petition and
in the interest of justice;
(d) Pending admission, hearing and final disposal of the
present petition, Your Lordships be pleased to stay the
execution, implementation and operation of final
judgment and order passed by Joint Charity
Commissioner, Bhavnagar below Ex.40 in Judicial Misc.
Application No.41/A/10/2020 dated 20.7.2021.
(e) Pending admission, hearing and final disposal of the
present petition, Your Lordships be pleased to stay the
execution, implementation and operation of the
resolution dated 10.10.2021 passed by respondent no.3
deciding implement the order passed by Joint Charity
Commissioner, Bhavnagar below Ex.40 in Judicial Misc.
Application No.41/A/10/2020 dated 20.7.2021.
(f) Your Lordships may Grant ad-interim relief in terms of
prayer clause Para-64(d) & (e) above.
(g) Your Lordships may pass such other and further orders
as this Honourable Court may deem fit and proper in
favour of the petitioners in the interest of justice and
circumstances of the case.
5. Special Civil Application No. 17851 of 2023 is filed by the
petitioners – Pravinbhai D. Doshi and Rajendra Vinodray Kamdar
under Articles 226 and 227 of the Constitution of India seeking the
following reliefs:-
(a) To admit and allow this petition;
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(b) To issue a writ of mandamus or a writ in the nature of
mandamus or a writ of certiorari, or writ in the nature of
certiorari or any other appropriate writ, order or
direction, quashing and setting aside order passed by
Joint Charity Commissioner, Bhavnagar below Ex.20 in
Judicial Misc. Application No.41/A/10/2020 deciding
power of Joint Commissioner to decide the issue and
further be pleased to quash and set aside the final
judgment and order passed by Joint Charity
Commissioner, Bhavnagar below Ex.40 in Judicial Misc.
Application No.41/A/10/2020 dated 20.7.2021 for the
reasons stated in the Memo of Petition and in the
interest of justice;
(c) To issue a writ of mandamus or a writ in the nature of
mandamus or a writ of certiorari, or a writ in the nature
of certiorari or any other appropriate writ, order ог
direction, quashing and setting aside the resolution
dated 10.10.2021 passed by respondent no.3 to
implement the impugned order dated 20.7.2021 of the
respondent No.2 for the reasons stated in the Memo of
Petition and in the interest of justice;
(d) Pending admission, hearing and final Your disposal of
the present petition, Lordships be pleased to stay the
execution, implementation and operation of final
judgment Charity and order passed by Joint
Commissioner, Bhavnagar below Ex.40 in Judicial Misc.
Application No.41/A/10/2020 dated 20.7.2021.
(e) Pending admission, hearing and final disposal of the
present petition, Your Lordships be pleased to stay the
execution, implementation and operation of the
resolution dated 10.10.2021 passed by respondent no.3
deciding to implement the order passed by Joint Charity
Commissioner, Bhavnagar below Ex.40 in Judicial Misc.
Application No.41/A/10/2020 dated 20.7.2021.
(f) Your Lordships may Grant ad-interim relief in terms of
prayer clause Para-64(d) & (e) above.
(g) Your Lordships may pass such other and further orders
as this Honourable Court may deem fit and proper in
favour of the petitioners in the interest of justice and
circumstances of the case.
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6. Since both the petitions are filed against the same award, the
facts of Special Civil Application No.5866 of 2023 is considered as a
lead matter and both the petitions are being disposed of by this
common judgment.
FACTS:
7. Brief facts of Special Civil Application No. 5866 of 2023 are, in
nutshell, as under:-
7.1 The petitioner is follower and disciple of Sadguru Dev Shri Kanji
Swami at a religious place at Songadh, Taluka Sihor, District
Bhavnagar and he is taking active interest in the religious discourses,
discussions and in the work of late Sadguru Dev Shri Kanji Swami
Maharaj. The respondent No.3 - Trust is registered under the
provisions of the Bombay Public Trusts Act, 1950 and the same is
established on 25.12.1939 with the sole object to preach and spread
the idea, philosophy of Sadguru Dev Shri Kanji Swarni Maharaj and
also spread awareness about Jainism. The respondent no.3 Trust also
carries out various religious activities and imparts religious education
among the followers of Sadguru Dev Shri Kanji Swami Maharaj and
holds various religious activities and celebrates various Jain festivals
throughout the year. That the petitioner is very actively taking
interest in the activities of the respondent no.3 and gives various
suggestions to the respondent No.3 for betterment of its management
and activities and he was appointed by committee respondent No.3
for creation of Shri Bahubali Jambudwip Jinayatan. The petitioner
himself is student of J. J. School of Art, had undertaken the exercise of
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concept, design of the entire project of Shri Bahubali - Jambudwip
Jinayatan and prepared model of the proposed project and according
to the concept and design prepared by petitioner, the respondent
no.3 decided to undertake the execution of the project as proposed by
the petitioner. The entire project of the petitioner, which was
accepted by the respondent no.3 has been radically changed at the
instance of respondent no.1 by proposing to create an electronic
digital museum project.
7.2 That as per the Trust Deed, the Trust has 9 trustees and mode
of appointment of trustee has been provided in the Trust Deed in
Clause-6 thereof. The minimum number of trustees will be 5 (five) and
maximum number of trustees will be 9 (nine). That on account of
resignation of two trustees, the respondent no.3 has decided to
convene meeting on 27.10.2020 and circulated agenda on
20.10.2020. The said agenda was circulated to all the trustees of the
trust and the trustees who were not able to attend the meeting
physically had conveyed their consent in writing. Accordingly the
respondent no.3 trust passed resolution on 27.10.2020 and agenda
has been received by all the trustees of the respondent no.3 trust.
That out of 7 trustees, four trustees remained present at the said
meeting and remaining three trustees conveyed their written consent
and respondent no.3 decided to appoint petitioner and one Shri
Harshadbhai Prabhudas Kamdar as trustees of the respondent no.3
and both were appointed as Trustees of respondent No.3. That
thereafter Change Report was filed before the Assistant Charity
Commissioner, Bhavnagar being Change Report and the petitioner
having been appointed as Trustee, is entitled to take part in all the
meetings of the and activities of respondent no.3.
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7.3 That Judicial Misc. Application No.41/12/2020 filed before the
Joint Charity Commissioner by one of the trustees of the respondent
no.3 Shri Rajeshbhai Zaveri challenging resolution dated 27.10.2020
passed at the meeting of respondent no.3. The Joint Charity
Commissioner, Bhavnagar vide exparte order dated 2.12.2020 stayed
the resolution dated 27.10.2020 passed by the respondent no.3 Trust.
By virtue of interim order, the original application being Judicial Misc.
Application No.41/A/12/2020 filed by Shri Rajesh Zaveri was finally
allowed and thereafter the Joint Charity Commissioner, Bhavnagar has
allowed Judicial Misc. Application No.41/A/12/2020 by judgment and
order dated 29.6.2021.
7.4 That respondent - Trust had also filed application under Sec.41A
of the Act being Judicial Misc. Application No.41/A/10/2020, which
came to be decided by the Joint Charity Commissioner without giving
an opportunity of hearing to the petitioner and passed order under
Sec.41A of the Act. The Joint Charity Commissioner, Bhavnagar
thereafter vide judgment and order dated 20.7.2021 allowed the
Judicial Misc. Application No.41/A/10/2020.
7.5 That the Joint Charity Commissioner has not considered the fact
that the respondent no.1 has no locus standi to file application
because it is only donor which had agreed to fund the amount for the
proposed project, but when the respondent no.3 does not want to
continue with the project has cancelled the same and also requested
the respondent no.1 vide letter dated. 19.10.2020 to send its bank
details so that the respondent no.3 can refund the amount paid by the
respondent no.1 towards donation. The Joint Charity Commissioner
passed impugned order without hearing petitioner though petitioner
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was appointed as trustee of respondent no.3 and is person interested
and beneficiary of the said trust.
8. Being aggrieved and dissatisfied by the impugned order, the
petitioners have preferred the aforesaid petitions.
9. Heard Mr.J. A. Adesara, learned counsel for Mr. Ankit Mehta,
learned counsel for the petitioner in both the petitions, Mr.Nikunj
Kanara, learned Assistant Government Pleader for respondent No.2,
Mr.Harsh Shah, learned counsel for respondents No.4.2 and 4.5,
Mr.Shalin Mehta, learned senior counsel with Mr.Monaal J. Davawala,
learned counsel for respondent No.1, Mr.S. N. Soparkar, learned
senior counsel with Mr.Vishal Patel, learned counsel for respondent
No.3 at length.
SUBMISSIONS ON BEHALF OF THE PETITIONERS:
10. Mr.Adesara, learned counsel for the petitioners has submitted
that the petitioner is the follower of Sadguru Dev Shri Kanji Swami at
a religious place at Songadh and he is interest in activities of
respondent No.3 and he is beneficiary of activities of respondent No.3
and he was appointed on the committee for creation of Shri Bahubali
Jambudwip Jinayatan by respondent No.3. He has submitted that the
entire project as designed by the petitioner and accepted by
respondent No.3 has been changed at the instance of respondent
No.1 by proposing to create an electronic digital museum project,
which came to be opposed by the petitioner. He has submitted that
one Shri Harshadbhai Prabhudas Kamdar have been appointed as
Trustee of respondent No.3 in its meeting and thereafter change
report was filed before the Assistant Charity Commissioner and the
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petitioner having been appointed as Trustee, he is entitled to take
part in all the meetings and activities of respondent No.3. According
to Mr.Adesara, learned counsel, Judicial Misc. Application No.
41/12/2020 filed before the Joint Charity Commissioner by one of the
trustees of respondent No.3 Shri Rajeshbhai Zaveri challenging the
resolution dated 27.10.2020 and also sought for stay of the resolution
and the Joint Charity Commissioner vide ex-parte order stayed the
resolution passed by respondent No.3. He has submitted that the
power exercised by Joint Charity Commissioner is dehors the
provisions of the law and the Joint Charity Commissioner has no power
to entertain the application under Section 41A of the Act as
respondent No.3 has appointed trustees and change report is pending
before the Assistant Charity Commissioner and the said order came to
be challenged by the petitioner by filing Special Civil Application
No.12856 of 2021 before this Court which is pending.
10.1 Mr.Adesara, learned counsel has submitted that the petitioner
has challenged the orders passed by the Joint Charity Commissioner
dated 20.1.2021 below Exhibit 20 and the order dated 20.7.2021
passed below Exhibit 40 on the ground that the said orders are
passed without hearing the petitioner though he was appointed as
trustee and participated in the activities of the trust. He has
submitted that respondent No.2 has acted against the provisions of
law and the orders passed by respondent No.2 are without jurisdiction
and while exercising the powers under Section 41A of the Act ignored
the other statutory provisions of the Act and, therefore, the order
itself is illegal and unjust. He has submitted that respondent No.2 has
failed to appreciate the fact that whenever a person gives donation,
he is only interested to see that the donation given by him should be
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applied for the purpose of objects of the trust only and respondent
No.3 has decided to drop the project of construction of Dome as it is
against the basic principles of Jainism of non-violence. He has
submitted that M/s.Design Habitat has not filed any suit or arbitration
proceedings till date against the cancellation of the project though the
contract entered with Design Habitat provides for arbitration
proceedings, however, the respondent No.1 had no locus standi to file
application as it is only Donor who agreed to fund the amount for
proposed project. He has submitted that the Joint Charity
Commissioner has no power under Section 41A of the Act to entertain
an application of donor for specific performance of the contract where
the donor is not a party. He has also submitted that respondent No.1
is nowhere affected or connected with the termination of agreement
executed between respondent No.3, on the contrary, respondent No.1
is making an effort to canvass the case of the Design Habitat, which
has accepted its termination and resolution. According to learned
counsel for the petitioner, the donor cannot have right to challenge
the decision of the donee trust merely by giving donation in the trust
and the right of the donor is qua the amount of donation and when
the donee has offered to refund the amount of donation, the right of
donor, if any extinguishes. He has submitted that the petitioner had
filed petition being Special Civil Application No. 1993 of 2011 and
allied matters challenging the action of respondent No.3, which came
to be disposed on the basis of settlement. He has submitted that
respondent No.2 has travelled beyond the scope of the provisions of
Section 41A of the Act and, therefore, the order passed by respondent
No.2 is without jurisdiction. He has submitted that on 16.10.2020,
Nemish Shah was not a trustee of Shri Digamber Jain Swadhyay
Mandir Trust against whom reliefs are sought for, but the petitioners
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are the trustees and said Nemish Shah became a trustee in pursuance
to the order passed by the Joint Charity Commissioner in Misc.
Scheme Application No. 2 of 2022. He has submitted that the
petitioner Rajendra Vinodrai Kamdar has challenged the order dated
21.05.2022 passed by the Joint Charity Commissioner in Misc Scheme
Application No.2 of 2022 by filing Special Civil Application No. 15526
of 2022 and one Rajendra Vasantlal Shah has challenged the order
dated 21.05.2022 passed by the Joint Charity Commissioner in Misc.
Scheme Application No.2 of 2022 by filing Special Civil Application No.
19505 of 2022 before this Court and both the petitions are at present
pending for adjudication.
10.2 Mr.Adesara, learned counsel has further submitted that at the
relevant time Nemish Shah was the trustee of Kundkund Kahan
Parmarthik Trust and he was not a trustee of Digamber Jain Swadhyay
Mandir Trust, which was established in the year 1939 and Kundkund
Kahan Parmarthik Trust and Digamber Jain Swadhyay Mandir Trust
are separate and distinct trust with different registration number and
different religious philosophy. According to Mr.Adesara, learned
counsel, at the instance of Nemish Shah an unregistered agreement
dated 29.06.2017 for an amount of Rs.13.40 Crores was executed by
the President of the trust with Design Habit without inviting tenders,
without any resolution of the trust and keeping all other trustees in
dark and the trust has paid an amount of Rs.56,94,919/- to Design
Habit from the account of the trust without passing any resolution.
10.3 Over and above the oral arguments, Mr.Adesara, learned
counsel has tendered the written submissions as under:-
1. That Shree Digamber Jain Swadhyay Mandir Trust,
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Songadh (Regn No.A-902/Bhavnagar) & Shree Kundkund
Kahan Paramarthik Trust, Songadh (Regn No. A-1595 /
Bhavnagar) are separate & distinct Trust with different
religious philosophy.
2. That the petitioners are Trustees of Shree Digamber Jain
Swadhyay Mandir Trust, Songadh.
3. That Shree Digamber Jain Swadhyay Mandir Trust,
Songadh had started a project of Bahubali - Jambudwip
Jinayatan project in the year 2013.
4. That after the work of Bahubali Jambudwip Jinayatan
project had progressed considerably and after construction
of dome, Mr. Nemish Shantilal Shah who was a Trustee of
Shree Kundkund Kahan Paramarthik Trust, Songadh and who
is a rich & influential person had decided to put up an
Electronic Digital Project in the dome of premises of Shree
Digamber Jain Swadhyay Mandir Trust, Songadh & in the
year 2017 had come up with an offer to do the project,
without mentioning the name of Design Habit, New Delhi.
5. That Mr. Nemish Shantilal Shah who was a Trustee of
Shree Kundkund Kahan Paramarthik Trust, Songadh could
not have insisted in putting up an Electronic Digital Project in
the dome of premises of Shree Digamber Jain Swadhyay
Mandir Trust, Songadh, but instead ought to have put up the
said Electronic Digital Project in the premises of Shree
Kundkund Kahan Paramarthik Trust, Songadh.
6. That as a step in the said direction, at the instance of
Mr. Nemish Shantilal Shah, Trustee of Shree Kundkund
Kahan Paramarthik Trust, Songadh, the President of Shree
Digamber Jain Swadhyay Mandir Trust, Songadh had entered
into Unregistered Agreement dtd. 29.6.2017 for Rs. 13.40
Crores for putting up Electronic Digital Project in the dome.
This unregistered Agreement dtd. 29.6.2017 was executed
by President of Shree Digamber Jain Swadhyay Mandir Trust,
Songadh without inviting tenders, without any Resolution of
the Trust & by keeping all the trustees in the dark. This
unregistered agreement itself is ex-facie illegal.
7. That in pursuance of unregistered Agreement dtd.
29.6.2017, a huge amount of Rs. 56,94,919/- was paid to
Design Habit, New Delhi from the account of Shree Digamber
Jain Swadhyay Mandir Trust, Songadh, without any
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Resolution of the Trust & by keeping all the trustees in the
dark. That as per clause 15 of the trust deed any expense
exceeding Rs.5000/- is required to be approved in the
meeting of trustees, which is not done in the present case.
8. That as all the trustees of Shree Digamber Jain
Swadhyay Mandir Trust, Songadh were unaware about
execution of unregistered Agreement dtd. 29.6.2017 with
Design Habit, New Delhi, they had passed a unanimous
resolution dtd. 12.9.2020 for installing idol of Suryakirti
Bhagwan in dome.
9. That the marble idol of Suryakirti Bhagwan was
prepared at Jaipur & all the preparations were made for
installing idol of Suryakirti Bhagwan in the dome.
10. It is pertinent to note that if idol of Suryakirti Bhagwan
is installed in the dome, then it was not possible to do the
Electronic Digital Project in the dome.
11. That as Shree Kundkund Kahan Paramarthik Trust,
Songadh, had filed Judicial Misc. Application No.
41/A/10/2020 u/s. 41A of BPT Act against Shree Digamber
Jain Swadhyay Mandir Trust, Songadh, for preventing
installation of idol of Suryakirti Bhagwan in dome and as
their action was against the interest of Shree Digamber Jain
Swadhyay Mandir Trust, Songadh, Shree Digamber Jain
Swadhyay Mandir Trust, Songadh had addressed a letter dtd.
29.9.2020 cancelling the work of project given to Shree
Kundkund Kahan Paramarthik Trust, Songadh & as Electronic
Digital Project would cause large scale Hinsa. This
unregistered Agreement dtd. 29.6.2017 was produced for
the first time along with Judicial Misc. Application No.
41/A/10/2020 filed on 16.10.2020. It is submitted that breach
of agreement between Shree Digamber Jain Swadhyay
Mandir Trust, Songadh with Shree Kundkund Kahan
Paramarthik Trust, Songadh is a breach of contract and is a
Civil Dispute which can be adjudicated only by a competent
Civil Court, however, the same cannot be a subject matter of
proceedings u/s. 41A of BPT Act, as it does not fall within
Sec. 32 to 41 of BPT Act. That the decision of Shree
Digamber Jain Swadhyay Mandir Trust, Songadh dtd.
29.9.2020 cancelling the work of project given to Shree
Kundkund Kahan Paramarthik Trust, Songadh is not
challenged.
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12. That as Mr. Nemish Shantilal Shah, Trustee of Shree
Kundkund Kahan Paramarthik Trust, Songadh was bent upon
putting up an Electronic Digital Project in the dome of
premises of Shree Digamber Jain Swadhyay Mandir Trust,
Songadh, he had filed Judicial Misc. Application No.
41/A/10/2020 u/s. 41A of BPT Act for preventing Shree
Digamber Jain Swadhyay Mandir Trust, Songadh from
installing the idol of Suryakirti Bhagwan in dome.
13. The moot question for consideration is whether to
installing idol of Suryakirti Bhagwan in dome fall within Sec.
32 to 41 of BPT Act. That the question of installing the idol of
Suryakirti Bhagwan in dome does not fall within Sec. 32 to
41 of BPT Act and therefore the Joint Charity Commissioner
had no jurisdiction or authority in law to prevent installation
of idol of Suryakirti Bhagwan in dome in exercise of powers
u/s. 41A of BPT Act and Resolution dtd. 12.9.2020 passed
unanimously deserves to be upheld, in the interest of justice.
The petitioners beg to rely upon para-5 of the judgment of
this Hon'ble Court in the case of Navinchandra Jasani V/s.
Pravinchandra Jasani reported in 2003 (1) GLR Page 392 and
para-7 of the judgment of this Hon'ble Court in the case of
Kantilal Manibhai Patel V/s. Ranchhodbhai Morarbhai Patel &
ors reported in 2018 (1) GLR Page 132.
14. That it is shocking to note that by an ex-parte order
dtd. 16.10.2020 passed by Joint Charity Commissioner,
Bhavnagar in proceedings of Judicial Misc. Application No.
41/A/10/2020 u/s. 41A of BPT Act, whereby the installation of
idol of Suryakirti Bhagwan in dome was stayed. This order is
ex-facie illegal, without jurisdiction & without any authority
of law. That the petitioners are at pains to point out that as
on date the idol of Suryakirti Bhagwan is lying in the open
outside the premises of Shree Digamber Jain Swadhyay
Mandir Trust, Songadh.
15. That it is all the more shocking to note that by a final
order dtd. 20.7.2021, the ex-parte interim relief granted on
16.10.2020 for preventing installation of idol of Suryakirti
Bhagwan in dome was confirmed by Joint Charity
Commissioner, Bhavnagar by granting para 19(A) of the
main application is ex-facie illegal & bad in law.
16. That so far as Electronic Digital Project is concerned, an
unregistered Agreement dtd. 29.6.2017 was executed
illegally by President of Shree Digamber Jain Swadhyay
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Mandir Trust, Songadh without inviting tenders, without any
resolution of the trust & by keeping all the trustees in the
dark. That knowing fully well that an unregistered
Agreement dtd. 29.6.2017 was executed with Design Habit,
New Delhi, Shree Kundkund Kahan Paramarthik Trust,
Songadh has addressed a letter dtd. 9.7.2017 for doing the
project, without mentioning the name of Design Habit, New
Delhi. This unregistered Agreement dtd. 29.6.2017 was
produced for the first time along with Judicial Misc.
Application No. 41/A/10/2020 filed on 16.10.2020. That as
there was breach of terms of unregistered Agreement dtd.
29.6.2017 and as there was no progress of work despite
payment of Rs. 56,94,919/- by Shree Digamber Jain
Swadhyay Mandir Trust, Songadh to Design Habit, New
Delhi, the Trust had cancelled the unregistered Agreement
dtd. 29.6.2017 by sending E-mail dtd. 19.10.2020. That vide
letter dtd. 17.11.2020 & 11.12.2020 addressed by Shree
Digamber Jain Swadhyay Mandir Trust, Songadh to Design
Habit, New Delhi, it was specifically stated that their trust
has not received master plan, interpretive plan and Narrative
plan & they have not acted as per terms & conditions of the
agreement. That even the conditions mentioned in the letter
dtd. 26.8.2018 addressed by Shree Digamber Jain Swadhyay
Mandir Trust, Songadh to Shree Kundkund Kahan
Paramarthik Trust, Songadh are not fulfilled nor any material
is produced on record to show that the conditions mentioned
in the letter dtd. 26.8.2018 are fulfilled. The trust had
declined to make further payment of Rs. 41,50,650/-
demanded by Design Habit, New Delhi but had asked Design
Habit, New Delhi to refund the amount of Rs. 56,94,919/-
paid to them. That the decision to cancel unregistered
Agreement dtd. 29.6.2017 is not challenged by Design Habit,
New Delhi before competent court.
17. Shree Kundkund Kahan Paramarthik Trust, Songadh
had stated that an amount of Rs. 56,94,919/- was paid by
them to Shree Digamber Jain Swadhyay Mandir Trust,
Songadh. That Shree Digamber Jain Swadhyay Mandir Trust,
Songadh had addressed a letter dtd. 19.10.2020 to
Nemishbhai Shah, Trustee of Shree Kundkund Kahan
Paramarthik Trust, Songadh, wherein it was specifically
stated that though no refund is received from Design Habit,
New Delhi, if they provide bank details, the amount of Rs.
56,94,919/- would be refunded in 1 day.
18. It is interesting to note that though unregistered
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Agreement dtd. 29.6.2017 with Design Habit, New Delhi is
cancelled by Shree Digamber Jain Swadhyay Mandir Trust,
Songadh & though cancellation of unregistered Agreement
dtd. 29.6.2017 is not challenged by Design Habit, New Delhi
before a competent Civil Court, it is pertinent to note that in
proceedings of Judicial Misc. Application No. 41/A/10/2020
filed u/s. 41A of BPT Act, though Design Habit, New Delhi is
not even joined as a party, Shree Kundkund Kahan
Paramarthik Trust, Songadh has prayed that Shree Digamber
Jain Swadhyay Mandir Trust, Songadh must act strictly be as
per unregistered Agreement dtd. 29.6.2017 with Design
Habit, New Delhi, without making any changes. That nothing
is produced on record to show that Design Habit had
authorized Shree Kundkund Kahan Paramarthik Trust,
Songadh to file proceedings on their behalf. That even
otherwise challenge to cancellation of unregistered
Agreement dtd. 29.6.2017 with Design Habit, New Delhi is a
Civil Dispute which can be adjudicated only by a Civil Court,
however, the same cannot be a subject matter of
proceedings u/s. 41A of BPT Act, as it does not fall within
Sec. 32 to 41 of BPT Act. Thus, prayer that Shree Digamber
Jain Swadhyay Mandir Trust, Songadh must act strictly be as
per unregistered Agreement dtd. 29.6.2017 with Design
Habit, New Delhi, without making any changes is completely
misconceived & not tenable in the eye of law & deserves to
be rejected. Thus, the final order dtd. 20.7.2021 passed by
Joint Charity 6
Commissioner, Bhavnagar by granting para 19(C) of the
main application is ex-facie illegal & bad in law.
19. That the ratio of judgment reported in (2019) 15 SCC
303 & 1996(3) GLR 307 are not applicable to the facts of this
case, as the said judgments are on entirely different facts. In
the present case the Joint Charity Commissioner, Bhavnagar
had no jurisdiction, power or authority to pass the impugned
orders u/s. 41A of BPT Act.
20. That in the present matter the main challenge are
orders passed by Joint Charity Commissioner, Bhavnagar u/s.
41A of BPT Act and Resolution of the trust dtd. 10.10.2021 is
in context of implementing order of Joint Charity
Commissioner, Bhavnagar passed in Judicial Misc.
Application No. 41/A/10/2020. 1 That even in the Resolution
of the trust dtd. 10.10.2021 it is stated that the trust will
abide by the decision of this Hon'ble Court.
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21. It is submitted that this Hon'ble Court may kindly take
into consideration the pleadings in the main matter as well
as Civil Application at the time of adjudication of the present
proceedings.
22. That the figures of the expenses produced by the
respondents do not match with the report of auditor
produced by the petitioners at the time of hearing of the
above matter.
23. That in view of the oral submissions advanced on
behalf of the petitioners & in view of what is stated in the
foregoing paras, the present petition deserves to be allowed
with costs, in the interest of justice.
10.4 Mr.Adesara, learned counsel has relied upon the decision of
this Court in the case of Navinchandra Jasani Vs. Pravinchandra
Jasani reported in 2003 (1) GLR 392 wherein this Court has held
and observed in para 5 as under:-
“5. Before I consider the alternative contention of
Mr.Nanavati regarding the merits of the case, it is necessary
to examine the first contention of Mr.Nanavati on the
question of jurisdiction of Joint Charity Commissioner under
Sec. 41A of the Act. In case of "Syedna Mohamed B. V/s.
Charity Commissioner, Gujarat State, and Others" (Supra),
the Division Bench of this Court, after taking into
consideration the provisions of Sec. 69 of the Act while
construing Sec. 41A of the Act, has observed as under:
"A quick glance at these provisions to which all religious
trust are subject makes it clear beyond any doubt that the
three matters which S. 41A provide for - (a) proper
administration of a public trust, (b) proper accounting of its
income and (c) due appropriation and application of the
income to the objects and for the purposes of the trust are
abbreviated expressions of those very matters which Ss. 32
to 41 provide for. The only purpose which, therefore, S.41A
serves is to issue directions in respect of matters falling
under Ss.32 to 41. It is, therefore, merely an enabling and
ancillary provision intended to make the implementation and
enforcement of the provisions of Ss.32 to 41 more
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effectively."
However, the Division Bench at para 41 has observed as
under:
"So far as the nature of directions contemplated by S.41A is
concerned, on analysing its contents and comparing them
with the provisions of Ss.32 to 41 of the Act, there is little
doubt that they are administrative in character. They are
intended to be issued for better and more efficient
administration of a public trust. No question of adjudication
of any controversy, dispute or lis arises thereunder. The
object of S.41A is to streamline the administration of public
trusts and to ensure more effective implementation and
enforcement of the provisions of the Act. Since they are not
quasi-judicial directions, the question of complying with
principles of natural justice does not arise."
Further at para 42 the Division Bench has observed as
under:
"A general direction which may be necessary to be issued to
all public trusts will not ordinarily be left to the desertion of
the Charity Commissioner. Its very nature will require it to be
made the subject-matter of a statutory rule under the said
Act. Issuance of such a direction can hardly be left to the
human weakness of the Charity Commissioner. S.41A
contemplates cases of individual trusts which may be
suffering on account of the human weaknesses or lapses of
the trustees. S.41A is to be brought into play where some
exceptional, unforeseen, unexpected or peculiar situation
has arisen in the administration of a public trust which is
required to be cured by a remedial direction or where
circumstances have arisen foreboding such a situation which
requires a preventive measure in the form of a direction."
10.5 Mr.Adesara, learned counsel has also relied upon the decision in
the case of Kantilal Manibhai Patel Vs. Ranchhodbhai
Morarbhai Patel and others reported in 2018 (1) GLR 132
wherein this Court has held and observed in para - 7 as under:-
“7. It may be true that the Charity Commissioner has got
pervasive powers under Section 41A of the Act over the
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administration of a Trust but these powers are essentially
designed and are intended for regulating the administration
of the trust, and are meant to exercise control in the
administrative sphere. Where the functioning of the trust
falters or it travels beyond Trust Deed, application under
Section 41 would lie and thereunder the Charity
Commissioner is empowered to issue the remedial and
preventive directions for ensuring efficient administration of
the trust. While exercising powers under Section 41, the
Charity Commissioner is required to act within such bounds,
and cannot enter into the adjudicatory arena. The Charity
Commissioner would not be justified in entering into the
realm of adjudication in the name of securing better
administration of the trust. He cannot proceed to decide a lis
under the guise of exercising administrative control of the
Trust. The Charity Commissioner has to guard himself that
he does not travel into the prohibited territory of decision
making process and to issue directions deciding a dispute for
pronouncing upon the rights of the parties, for, the line of
demarcation between the two functions often becomes thin
and slippery”.
10.6 Mr.Adesara, learned counsel has submitted that in view of the
aforesaid facts and the decisions, the petition deserves to be allowed
and the impugned orders deserves to be quashed and set aside.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.1:
11. Mr.Mehta, learned senior counsel for respondent – Shri
Digamber Jain Swadhyay Mandir Trust has objected both the
petitions and referred the affidavit-in-reply and the additional
affidavit-in-reply filed on behalf of Shri Digamber Jain Swadhyay
Mandir Trust and has submitted that the trustees in its meeting dated
10.02.2013, has already passed a resolution appointing a committee,
empowering it to take all the decisions regarding the project and
therefore, the president was well within its right to execute
agreements and there is an estopple qua the petitioner as the
petitioner has approved the resolution and hence are refrained from
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questioning the authority of the president. It is submitted that the
order impugned in the main petition having been accepted and acted
upon by the respondent no. 4 trust, is binding upon the petitioner as
well as other trustees and hence the main petition and the present
application is not maintainable. It is further submitted that resolution
dated 12.09.2020 of the trust has been cancelled and therefore, does
not remain in force.
11.1 Mr.Mehta, learned senior counsel is submitted that the work of
the project has been going on and the phase of the project of Dome
has begun and the resolution dated 10.10.2021, is in force whereby
respondent no. 1 has to undertake the project. It is submitted that
respondent no. 1 granted project work vide resolution dated
10.10.2021 and, therefore, any interference this Court is unwarranted
and uncalled for. It is submitted that the work is in progress and the
project of respondent no. 1 has also progressed, therefore, it is not
correct to state that the work was not being done from 2017 till 2026
and has commenced suddenly.
11.2 It is further submitted that the project of Dome has not reached
its execution stage earlier, therefore, it cannot be said that the project
has commenced suddenly in 2026. The respondent no.4 trust has
received donations from respondent no.1 trust and had made huge
expenditures in various years to the tune of Rs.4,25,25,284/- for dome
project. It is submitted that the petitioners filed the present petition
challenging the order dated 20.07.2021 after a period of 2 years and
have mad misleading statements before this Court regarding the work
having commenced recently.
11.3 Mr.Mehta, learned counsel has submitted that since the
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inception of the project all the accounts of the trust are audited as per
the provisions of the Bombay Public Trust Act, 1950 and The Bombay
Public Trust (Gujarat) Rules, 1961 and the same after audited, has
been submitted before the office of the competent authority in
compliance of the provisions of the Law and there are no negative
remarks by the auditor of the accounts.
11.4 Mr.Mehta, learned senior counsel has further submitted that on
20.08.2013, the trust resolved to form sub-committees and to open a
separate bank account for the project to undergo a soil test of the site
and in the said meeting all the persons including the petitioners were
present and approved the same. He has submitted that on
29.08.2015, it was resolved that because of the litigation against the
trust the project was delayed for almost 4 years. Thereafter, on
25.12.2016 it was resolved that since the cost of the project is a huge
one and to overcome the same a committee be formed and approach
Shri Nemish Shah trustee of respondent no. 1 for the same. In the said
meeting all the persons including the petitioners were present and
approved the same.
11.5 It is submitted that there was an assurance from Nemish Shah
trustee of respondent no. 1 to undertake entire expenses and the
maintenance expenses in future from his personal funds and his
various trusts and all the committee members and trustees including
the petitioners had agreed for preliminary feasibility and design
concept. It is further submitted that the trust wanted to develop Jain
Museum to propagate the Jain Religion and to attract Jain Community
to visit the trust and the constructed area of the museum was
estimated to be 11000 square meters with approximate cost of Rs.
14,000/- per square meter and therefore, the trust appointed M/s.
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Design Habit Pvt. Ltd as Design Consultant to conceptualize and
provide outline and preliminary design services to finalize the Master
Design for the Project and an agreement executed with the Design
Consultant is only related to designing of the Project.
11.6 It is submitted that thereafter, respondent no. 1 filed an
application under Section 41A of the Act before respondent no. 2 for
necessary reliefs and interim application and the Joint Charity
Commissioner passed interim order passed for not implementing the
resolution dated 12.09.2020. Thereafter, final order came to be
passed by the Joint Charity Commissioner allowing the application of
respondent no. 1 and the trustees resolved that the order dated
20.07.2021 need not be challenged further and it was accepted by
the trust. In the meeting dated 12.08.2022, the trustees resolved that
the project needs to be completed at the earliest and all throughout
the work was ongoing and the said meetings are also attended by the
petitioners.
11.7 It is further submitted that another illusion being created by the
petitioners before this Court by misleading statements is in respect of
the work commencing all of a sudden after a period 1 of 8 years. The
work has been progressing gradually and is an ongoing work and
hence it cannot be said that the work has commenced suddenly after
8 years. At no point in time it can be said that the work was not in
progress and, therefore, the petitioners have made misleading and
incorrect statements before this Court just to create a prejudice.
11.8 Mr.Mehta, learned senior counsel has submitted that the trust
has from time to time passed resolutions taking account of the
progress of work undertaken in respect of the project and also
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currently the trust periodically holds meeting in respect of the
progress of the project.
11.9 Over and above the oral arguments, Mr.Mehta, learned senior
counsel has tendered the written submissions as under:-
That the petition itself is not maintainable since the
petitioners have filed the present petition challenging the
order dated 20.7.2021 after a period of more than 2 years
i.e. on 7.10.2023 and have been making misleading
statements before this Hon'ble Court since they constitute a
disgruntled faction within the Respondent No. 3 Trust, with
the Trust, by majority, having resolved on 10.10.2021, to
continue with the Bahubali Dome Project as per earlier
resolutions passed on 10.2.2013 and 25.12.2016. A concise
list of dates and events is as under:
That the Respondent No. 3 Trust had undertaken the project
of constructing Jambudweep Bahubali consisting of 130
Bhagwan and installation of Bahubali Bhagwan on hill with
museum a project which consisted of erection of idol of
Bahubali Bhagwan to propagate the Digambar Jain religion
and preachings of Guru Shri Kanji Swami.
That in a resolution dated 10.2.2013 passed by the
Respondent No. 3 Trust, a committee was formed of Shri
Hasmukh Vora, Shri Jitubhai Shah, Shri Navinbhai Shah and
Shri Vikasbhai Shah empowering them completely to take
decisions for the furtherance of the project. In the said
meeting all the persons including the petitioners were
present and approved the same.
That in its meeting dated 25.12.2016, the Respondent No. 3
resolved that the cost of the project was huge and to
overcome the same, a committee be formed to approach
Shri Nemish Shah viz. trustee of Respondent No. 1 Trust for
the same. In the said meeting, all the persons including the
petitioners were present and approved the resolution.
That Shri Nemish Shah as trustee of Respondent No. 1 Trust
assured to undertake entire expenses as well as
maintenance of the entire project in future from his personal
trust/s. Thereafter, Design Habit gave presentation regarding
the audio-video project wherein all the committee members
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and trustees including the petitioners were overwhelmed
and agreed for preliminary feasibility and design concept.
Accordingly, an agreement was entered into between the
President of the Respondent No. 3 Trust and Design Habit.
That on 26.8.2018, the Respondent No. 3 Trust wrote a letter
to the Respondent No. 1 Trust acknowledging and accepting
the Dome Project. The said letter bore the signature of ALL 9
TRUSTEES including that of the petitioners.
That on 29.9.2020, the Respondent No. 3 Trust wrote a letter
to the Respondent No. 1 Trust unilaterally cancelling the
entrustment of audio-video exhibition on account of "JIV
HINSA" which is signed by only 2 trustees.
That immediately on 1.10.2020, the Respondent No. 1 Trust
wrote a letter to the Respondent No. 3 Trust objecting to the
unilateral cancellation and also showed its displeasure
regarding the cancellation of the entrustment of the project
and requested to reconsider the same as interest of both the
trusts was being jeopardised with the said action.
That the Respondent No. 1 Trust filed Section 41-A
Application before the Respondent No. 2 for necessary reliefs
wherein on 16.10.2020, interim order was passed by
Respondent No. 2 directing not to implement the resolution
dated 12.9.2020. On 20.7.2021, final order came to be
passed by the Respondent No. 2 allowing the application of
Respondent No. 1 Trust holding that the acts of the
Respondent No. 3 Trust were not in its interest as well as
that of the Respondent No. 1 Trust with directions to the
trustees to take appropriate remedial actions.
That the trustees accordingly resolved on 14.8.2021 that the
order dated 20.7.2021 need not be challenged further and
be accepted by the Respondent No. 3 Trust. Thereafter,
another meeting was convened on 10.10.2021, where the
trust cancelled resolution dated 12.9.2020 and resolved to
go ahead with its earlier resolution of entrusting the work to
Respondent No. 1 Trust. It is in such circumstances that the
present petition/s has been filed.
That inspite of Mr. Rajendra V. Shah filing the petition before
this Hon'ble Court on 22.10.2021 (Sr. No. 26 hereinabove), it
was not expedited since there would have been questions
about his locus to pursue any proceedings and the same
remain pending in mediation even as on date in SCA No.
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12856 of 2021. The office objections were only removed on
31.3.2023 after multiple restoration proceedings and the
matter came to be registered as SCA No. 5866 of 2023 on
31.3.2023 (Sr. No. 28 hereinabove). Hence, Mr. Rajendra V.
Shah is riding on the shoulders of other 2 trustees viz. the
petitioners' herein who eventually filed the present SCA No.
17851 of 2023 only on 7.10.2023 i.e. more than 2 years after
the impugned order was passed by the Respondent No. 2.
That under Article 226/227 of the Constitution of India, it is
entirely upon this Hon'ble Court whether it wishes to
exercise its discretion and entertain a writ petition filed with
such malafide intent and in such stark facts and
circumstances.
That inspite of repeated and pointed queries to the counsel
of the petitioners as to how the impugned order was illegal,
no answer was forthcoming and the directions of the
Respondent No. 2 in the impugned order are only to the
Respondent No. 3 Trust to perform its duties and adhere to
the resolutions passed previously. Forget illegality, the
petitioners have not even been able to point out that the
view taken by the Respondent No. 2 in the impugned order
is an impossible view (as propounded by the Hon'ble
Supreme Court from time to time for exercise of
discretionary jurisdiction by Hon'ble High Courts under
Article 226/227) and which would never be taken by any
prudent or reasonable man.
That, on the contrary, the Respondent No. 2 has rightly
exercised its powers under Section 41-A of the Act and
issuing directions to the Respondent No. 3 Trust to adhere to
the unanimous resolutions passed on 10.2.2013 and
25.12.2016 and not pass resolutions for cancellation
unilaterally/arbitrarily since it was not in the larger interest
of the beneficiaries of the Trust as well as followers of Pujya
Shri Kanji Swami.
That the petition is even otherwise not maintainable since
the petitioners have taken a shortcut and sought to
challenge an order passed by the Joint Charity Commissioner
directly under Article 226/227 before this Hon'ble Court
instead of going through the proper mechanism under the
Act viz. challenging it before the Charity Commissioner and
come before this Hon'ble Court through correct hierarchy.
That the Respondent No. 3 Trust, by majority, having
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accepted the order dated 20.7.2021 and deciding not to
challenge it further, the petitioners' have no independent
right to challenge the same before this Hon'ble Court since,
as trustees, they are bound by the resolutions passed by the
Trust.
That in any case, the petitioners' have already given their
approval for the entire project, including for the audio-video
part of it, and cannot now be permitted to renege on their
own actions, especially when such large sums of money (Rs.
5.58 crores) have been spent basis the donations (Rs. 6.83
crores) made by the Respondent No. 1 Trust. The
Respondent No. 3 Trust has not spent their own money and
it is entirely being funded through the donations made by
the Respondent No. 1 Trust through Mr. Nemish Shah.
Under such facts and circumstances, the petition/s deserved
to be dismissed with exemplary costs to ensure that the
petitioners' and/or Mr. Rajendra V. Shah refrain from making
such attempts in future.
11.10 In support of his submissions, Mr.Mehta, learned senior counsel
has relied upon the decision of this Court in the case of
Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir
Trust, Godhra and others Vs. Chokshi Ratilal Chandulal and
others reported in 1996 (3) GLR 307.
11.11 Mr.Mehta, learned senior counsel has urged that in view of the
aforesaid facts, the present petitions being meritless deserve to be
dismissed.
SUBMISSIONS ON BEHALF OF RESPONDENT NO.3:
12. Mr.Soparkar, learned senior counsel has submitted that so far
as the maintainability of the petitions is concerned, the petitions are
not maintainable and if the petitioners aggrieved, they have to
approach to the Joint Charity Commissioner, who has appellate
jurisdiction and the petitioners cannot challenge such decisions by
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way of present petitions.
12.1 Mr.Soparkar, learned senior counsel has submitted that
respondent no. 3 in the present petitions is trustee of respondent no.
4 trust. It is submitted that at the outset, the petitioners filed the
present petition/s challenging the order dated 20.07.2021 after a
period of 2 years i.e. on 07.10.2023 and have been making
misleading statements before this Court being disgruntled fraction
despite by majority it is resolved on 10.10.2021, to continue with the
project as per earlier resolutions.
12.2 Mr.Soparkar, learned senior counsel has submitted that the
present petition/s is not maintainable in light of the law laid down by
the Hon'ble Supreme Court in case reported in Ramkrishna
Missions and another Vs. Kago Kunya and Others reported in
2019 16 SCC 303 where it is held that a writ will not lie against the
public charitable trust. He has submitted that the challenge to the
resolution in the petition is not maintainable and the challenge to the
order impugned in the petition/s becomes academic.
12.3 Mr.Soparkar, learned senior counsel has submitted that as far
as power under Section 41A of the Act is concerned, this Court has
propounded in the case of Acharyashree Mahaprabhujini Ranaswala
Bethak Mandir Trust, Godhra (supra) that irrespective of reference of
any provision of the Act of 1950, the charity commissioner has wide
supervisory power over a public trust to issue any direction of
remedial or preventive nature to perform the duty in a certain manner
or to refrain from performing one or the other duty in certain
compelling circumstances, which calls for interference, to secure
objectives of the public trust by a bona fide and efficient
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administration, with limitation that he shall not exercise the powers
which have been conferred on any other authority under the Act of
1950.
12.4 Mr.Soparkar, learned senior counsel has also submitted that the
trust has undertaken the project of constructing Jambudweep
Bahubali Jambudweep consisting of 130 Bhagwan and installing
Bahubali bhagwan on Hill with museum exhibition beneath Bahubaliji
and Project which consists of erection of Idol of Bahubali Bhagwan and
further to propagate the Digambar Jain religion and preachings of
Guru Shri Kanjiawami an exhibition is also being constructed. The said
project is in furtherance of the objectives of the trust as provided in
the scheme.
12.5 It is submitted that the project namely Jambudeep Bahubali
Project whereby several structures are to be erected such as the
Mountain on which Lord Shri Bahubali is Birajmaan, A Jambudweep
structure where other Gods are Birajmaan, A Dome i.e. the area
underneath the Mountain, where the rich varied heritage and the
principles of Jain religion is to be exhibited and several other
constructions are to be undertaken are all part of the Jambudeep
Bahubali Project. He has submitted that in resolution dated
10.02.2013, a committee was formed of Shri Hasmukh Vora, Shri
Jitubhai Shah, Shri Navinbhai Shah and Shri Vikasbhai Shah
empowering them completely to take decisions for the furtherance of
the project. In the said meeting all the persons including the
petitioners were present and approved the same.
12.6 It is further submitted that on 25.12.2016 it was resolved that
since the cost of the project is a huge one and to overcome the same
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a committee be formed and approach Shri Nemish Shah trustee of
respondent No.1 for the same. In the said meeting all the persons
including the petitioners were present and approved the same. It is
submitted that there was an assurance from Shri Nemish Shah trustee
of respondent no. 1 to undertake entire expenses and the
maintenance expenses in future from his personal funds and his
various trusts and thereafter, Design Habit gave presentation
regarding the Audio-Video Project at the office of the trust. All the
committee members and trustees including the petitioners were
overwhelmed and had agreed for preliminary feasibility and design
concept. Thereafter an agreement was entered into between the
President of the Trust and Service agency.
12.7 It is also submitted that the correct position qua the agreement
is that the constructed area of the museum was estimated to be
11000 square feet with approximate budget of Rs. 14,000/- per
square feet and, therefore, the trust appointed M/s. Design Habit Pvt.
Ltd as Design Consultant to conceptualized design services to finalize
the Master Design for the Project, the Agreement consists of Terms
and Conditions of Appointment, Scope of Services, Deliverables and
their Designing Fee. Design Consultant was to Design the Project in
four stages i.e. Master Plan, Interpretive Plan, Narrative Plan & Final
Design.
12.8 It is also submitted that by letter dated 09.07.2017, respondent
No.1 requested the work of dome in the project to itself for putting up
audio-video project creating an exhibition of the rich and varied
heritage of Jain Religion and preachings of Guru Shri Kanjiswami and
also to undertake its expenses and maintenance. It is submitted that
on 26.08.2018 the trust wrote a letter to respondent No.1
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acknowledging and accepting the Dome Project bears the signature
of all 9 trustees including the petitioners and therefore, the
petitioners are estopped from taking a contrary stand.
12.9 It is submitted that in the meeting dated 17.02.2019, the letter
dated 26.08.2018 whereby the creating an exhibition of the rich and
varied heritage of Jain Religion and preachings of Guru Shri
Kanjiswami was given to respondent No.1 SKKPT was put to vote and
the same was approved by the majority. He has submitted that
thereafter, in the meeting dated 14.07.2019, the trustees read the
minutes of the meeting dated 17.02.2019 and ratified the same and
on 12.09.2020, a resolution regarding the installation of idol of
Suryakirti Bhagwan was passed.
12.10 It is submitted that on 29.09.2020, the trust wrote a letter to
the respondent No.1 cancelling the entrustment of audio-video
exhibition on account of jiv hinsa signed by only 2 trustees petitioners
herein and in response thereof, on 01.10.2020, respondent no. 1
wrote a letter to the trust objecting the unilateral cancellation and
also showing its displeasure regarding the cancellation of the
entrustment and requested to reconsider the same as interest of both
the trust was being jeopardize with the said action.
12.11 It is submitted that thereafter, respondent No. 1 filed an
application under Section 41A before the Joint Charity Commissioner
for necessary reliefs and interim application and interim order came
to be passed by the Joint Charity Commissioner in JMA 41/10/2020,
not to implement the resolution dated 12.09.2020 and thereafter on
20.07.2021, final order came to be passed by the Joint Charity
Commissioner allowing the application of respondent no. 1, holding
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that the acts of the trust complained off was not in the interest of the
trust and respondent No.1 directing the trustees of the trust to take
remedial actions.
12.12 It is submitted that the trustees resolved that the final order
need not be challenged further and it was accepted by the trust.
Thereafter, another meeting was convened wherein the trust
cancelled the resolution dated 12.09.2020 and resolved to go ahead
with its earlier resolution of entrusting the work to respondent no. 1.
That the trust by majority having accepted the order dated
20.07.2021 and decided not to challenge the same further, the
petitioners do not have an independent right to challenge the same
as they being trustees are bound by the resolutions of the trust.
12.13 It is further submitted that another illusion which is being
created by the petitioners before this Court by advancing misleading
statement is in respect of the work commencing all of a sudden after
a period of 8 years. It is submitted that the said statement is
completely false and incorrect and the project is an ongoing project
and the trust has incurred expenditure regarding the same and it is
clear that the work has been progressing gradually and is an ongoing
work and hence it is completely out of place to state that the work has
commenced suddenly after 8 years. It is also submitted that the
respondent trust has received donations regarding the same from
respondent No. 1 and therefore, at no point in time, it can be stated
that the work was not in progress and therefore, the petitioners have
made misleading and incorrect statements before this Court just to
create a prejudice and gain bounty.
12.14 The trust owning to its objects and as a part of the project, has
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also seated (Birajmaan) a huge of idol of Lord Shri Bahubali, and had
a grand celebration spanning over a from 19.01.2024 to 26.01.2024
regarding Pratishtha of the same which was attended by more than
18000-20000 persons from all over the world. Thereafter the work is
going on till date.
12.15 In support of his submissions, he has relied upon the decision of
the Hon’ble Supreme Court in the case of Ramakrishna Mission
and another Vs. Kago Kunya and others reported in (2019) 16
SCC 303.
12.16 Mr.Soparkar, learned senior counsel has urged that considering
the aforesaid aspect, the petitions being meritless deserve to be
dismissed.
ANALYSIS:
13. The petitioners have filed the petitions under Articles 226 and
227 of the Constitution of India and on perusal of the contentions
raised in the petitions and the impugned order passed by the Joint
Charity Commissioner, Bhavnagar below Ex.20 in Judicial Misc.
Application No.41/A/10/2020 deciding power of Joint Charity
Commissioner to decide the issue and the final judgment and order
passed by Joint Charity Commissioner, Bhavnagar below Ex.40 in
Judicial Misc. Application No.41/A/10/2020 dated 20.7.2021.
(a) Whether the Court can exercise the jurisdiction under Article
226 of the Constitution of India only for supervisory and not
extraordinary jurisdiction and the Court has to look into
whether the authority has committed any error while passing
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the impugned order or not.
(b) Whether the authority has committed any error while passing
the impugned order and whether there is any irregularity and
illegality committed in the impugned order passed by Joint
Charity Commissioner or not.
(c) Whether the Court can go into facts of the case as it was
decided by the Joint Charity Commissioner after going to the
record and examining the record, whether it is open for this
Court to go into factual aspect while exercising the jurisdiction
under Article 227 of the Constitution of India or not.
(d) Whether the petitioners have any locus standi to file such
petition challenging the impugned order as they are the
trustees of respondents No.3 and 4, who have accepted the
order passed by the Joint Charity Commissioner or not.
FINDINGS AND CONCLUSION:
14. On perusal of the material placed on record, it appears that the
petitioners are the trustees of respondent No.3 and respondent No.3
held the meeting and passed the resolution whereby formed 4
members committee and empowering them for the complete
Jambudweep Bahubali Project, the committee consisting of members
namely Hasmukhbhai Vora, Jitubhai Shah, Navinbhai P. Shah and
Vikasbhai Shah and the said committee with the meeting of the trust,
passed a resolution on 25.12.2016 to meet Nemish Shah for the
purpose of donation towards Jambudweep and Bahubali Project, who
is to be a member of respondent No.1 and to ensure the project is to
be completed with ease and without hurdle and hindrance. The
committee has resolved the said project to be meeting with Nemish
Shah and after meeting, Nemish Shah was ready and willing to
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sponsor the full project from his personal funds and his family trust.
Nemish Shah has given power presentation with the Design Habit
team for the Dome Electronic Project at Songadh and all the trustees
and with the team of Design Habit for undergoing project of
constructing a Dome Electronic Project at Songadh including audio
and visible kiosk to be placed in Jambudweep and Bahubali Project
and after all members of the trustees agreed to go ahead with Design
Habit for preliminary feasibility, design concept and virtuality of the
project as introduced to the Design Habit. The preliminary quotation
was prepared by the Design Habit on 29.06.2017, which was given to
respondent No.1. The respondent No.1 wrote a letter to respondents
No.3 and 4 seeking full sponsorship of the project which was found
from the letter written by respondent No.1 at page No.269 of the
petition. The respondents No.3 and 4 have replied to accept the
proposal of respondent No.1 vide letter dated 09.07.2017 bearing
signature of six trustees which is produced at page No.270. On
26.08.2018, respondent No.3 – trust issued a letter bearing all nine
trustees’ signature and provided detailed confirmation with the
electronic digital project and adjudication was entrusted to
respondent No.1 with full support and authority and three members
committee namely Hiten Sheth, Akshay Doshi and Br. Kokilaben was
granted full power and authority to prepare design the theme of the
project. Thereafter, the trust meeting was held on 27.01.2019
discussed with regard to the project as it was incomplete and were
deferred to the next meeting which was scheduled on 17.02.2019 in
which five trustees of respondent No.1 agreed to go ahead with the
project and four trustees have not consented for the said project; the
present petitioners are amongst those four persons who have
disagreed with the meeting and have not consented to the project.
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Though the project was delayed, respondent No.1 resolved to cancel
the dome project and installed an idol instead of going with the
project namely Jambudweep Bahubali Project by 7 by 1 vote. It is also
evident from the record that respondent No.1 has also called for
cancellation of the decision made by the trust in the earlier meeting
and respondent No.3 has written a letter to respondent No.1 to cancel
the project signed by two trustees namely Pravinbhai Doshi and
Rajendra Kamdar. Thereafter, respondent No.1 has further entered
into communication with respondent No.3 requesting to reconsider
and redecide the decision made in the earlier meeting with a caution
that in case if respondent No.3 is not re-decide or re-consider with
regard to the project, respondent No.1 will file appropriate proceeding
and initiate legal action. In the meantime, the different temples of the
State have also requested respondent No.3 to go ahead with the
project and ultimately, since there is no hint to the request
respondent No.1 approached respondent No.2 by way of filing an
application under Section 41A of the Act and sought relief as claimed
in the application. The respondent No.2, after examining plethora of
documents and considering the pleadings and hearing the parties,
initially granted interim relief in favour of respondent No.3 staying
implementation, execution and operation of the resolution passed in
the meeting dated 12.09.2020, meaning thereby that the earlier
resolution passed in favour of respondent No.1 came into force and
thereby respondent No.1 had gone with the project. The respondent
No.3 sent a letter for refund of amount paid by respondent No.1 and
respondent No.1 had filed an application with the police for the
alleged offence of cheating etc. Thereafter, numerous hearing were
taken place before the Joint Charity Commissioner and ultimately,
final order came to be passed by the Joint Charity Commissioner
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below Exhibit 40 which is challenged in these petitions. The Joint
Charity Commissioner has recorded the findings and reasons from
para – 9 onward.
15. While disposing of the application, the Joint Charity
Commissioner has passed the following final order:-
“The interim relief granted during the tenure of the
predecessor in the said application work, para (a) (b) is
extended permanently along with the relief granted in para
(c) which is the decision taken by the respondent No. 3/1,
3/3 and 3/4 to the applicant trust to discuss with the experts
and even though the work of the project assigned to it is in
progress, the applicant trust has not been given any
opportunity to inform or submit any information. The work
and method of suddenly cancelling the permission given to
the project for the purpose of Bhagwan Shree Bahubaliji,
which has been going on for more than three years, is not in
the interest of public institutions. If the work of the prestige
of Bhagwan Shree Bahubaliji is completed as soon as
possible, then the trustees of that work belong to the same
society. With his faith and devotion remaining intact, the
followers of Param Pujyashri Gurudev Kanji Swami, along
with the instructions to the surviving members of the society
to complete the project work of Bhagwanshree Bahubaliji so
that the beneficiaries of the same community, the desired
benefits, are obtained as intended, and the application is
approved as the grant sought in the said application is
deemed to be in the interest of the public institution.”
16. The respondents No.3 and 4 have decided not to challenge the
decision of the Joint Charity Commissioner and they have accepted
the decision of the Joint Charity Commissioner. Though the said
decision was rendered by the Joint Charity Commissioner on
20.07.2021, for a period of two years, the petitioners have not chosen
to challenge the impugned order passed by the Joint Charity
Commissioner and rightly stated that they are not party to the
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proceedings and there is no fundamental rights violated as mentioned
by the petitioners in the petitions. Even both the trusts are of the
same caste and very same State and same religion and, therefore, in
the interest of devotee at large they are decided to go with the
project and now it is on going project. The amount incurred for the
project borne by respondent No.1 with the help of donation from their
community people and they are undertaking project. The Joint Charity
Commissioner has, after examining the legal provisions of Section 41A
of the Act and after considering the submissions of all the concern,
passed the impugned order. This Court is of the opinion that there is
no any illegality or infirmity as alleged by the Joint Charity
Commissioner. While examining the provisions of Section 41A of the
Act, the decisions of this Court and the Hon’ble Supreme Court more
particularly the observation No.5 made by this Court in the case of
Navinchandra Jasani (supra) emphasized upon by learned counsel
for the petitioners, this Court has no doubt about the same, but now it
is well settled and it is time and again reiterated by this Court and the
Hon’ble Supreme Court. That the powers under Section 41A of the Act
not only limited to the supervisory power over the public trust as
provided under sub-Clauses (a) and (4) of Sec. 69 of the Act. While
conjoint reading of both the provisions, it appears that the Charity
Commissioner has supervisory power over the public trust for the
better and more efficient and clean administration of the trust and the
said power is however circumscribed by use of the expression
"subject to the provisions of the Act". Thus the Charity Commissioner
will not have the power in the field which has been vested in different
authority under the Act. The question of adjudication of any
controversy or dispute shall be outside the purview of the Charity
Commissioner under Section 41-A. However, this Court in
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Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir
Trust, Godhra (supra) has held and observed in para 12 as under:-
“12. Thus, from the aforesaid discussion it emerges that
irrespective of reference of any provision of the Act of 1950,
the Charity Commissioner has wide supervisory power over a
public trust to issue any direction of remedial or preventive
nature to perform the duty in a certain manner or to refrain
from performing one or the other duty in certain compelling
circumstances, which calls for interference, to secure
objective of the public trust by a bona fide and efficient
administration, with the limitation that he shall not exercise
of the powers which have been conferred on any other
authority under the Act of 1950.”
17. So far as the nature of directions contemplated by Sec. 41-A is
concerned, on analysing and comparing with the provisions of Secs.
32 to 41 of the Act, that it is an administrative in nature and character
for the purpose of better and more efficient management and
administration of trust and no question of adjudicating any
controversy, dispute or lis arises thereunder. However, while reading
of Section 41A, it is not limited to that extent only but it can be an
obligatory on the Joint Charity Commissioner. That if the trustees are
not acting in accordance with law then as per enforcement of the Act,
the person can file an application under Section 41 and the same is
decided by the authority for even enforcement also. So far as the
contention raised by the petitioners that the Joint Charity
Commissioner has exceeded jurisdiction which is not vested with him
and the order was passed without jurisdiction is concerned, the same
is not tenable in the eyes of law.
18. So far as maintainability of the writ petition under Article 226 of
the Constitution is concerned, the Hon’ble Supreme Court in the case
of Ramakrishna Mission (supra) has held that writ cannot be issued
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against the private authority including the trust. Therefore, under
such circumstances, the petition is mainly under Article 227 where
this Court has to exercise jurisdiction to the fact that whether the
authority has, while passing the order, committed any illegality and
irregularity or not; whether there is any patent illegality or not. Only in
that circumstances, the petition can be entertained and interfered
with the order passed by the authority. This Court does not find any
illegality and infirmity in the impugned order passed by the Joint
Charity Commissioner and, therefore, the Joint Charity Commissioner
has rightly shown that respondent No.3 has not challenged the order
passed by respondent No.2 while directing the parties to complete the
project.
19. In the case of Ramakrishna Mission (supra), the Hon’ble
Supreme Court has held and observed in paras 17, 18, 34, 35, 36 and
37 as under:-
“17. The basic issue before this Court is whether the
functions performed by the hospital are public functions, on
the basis of which a writ of mandamus can lie under Article
226 of the Constitution.
18. The hospital is a branch of the Ramakrishna Mission
and is subject to its control. The Mission was established by
Swami Vivekanand, the foremost disciple of Sri Ramakrishna
Paramhansa. Service to humanity is for the organisation co-
equal with service to God as is reflected in the motto
"Atmano Mokshartham Jagad Hitaya Cha". The main object
of the Ramakrishna Mission is to impart knowledge in and
promote the study of Vedanta and its principles propounded
by Sri Ramakrishna Paramahansa and practically illustrated
by his own life and of comparative theology in its widest
form. Its objects include, inter alia to establish, maintain,
carry on and assist schools, colleges, universities, research
institutions, libraries, hospitals and take up development and
general welfare activities for the benefit of the
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underprivileged/ backward/ tribal people of society without
any discrimination. These activities are voluntary, charitable
and nonprofit making in nature. The activities undertaken by
the Mission, a non-profit entity are not closely related to
those performed by the state in its sovereign capacity nor do
they partake of the nature of a public duty.
34. Thus, contracts of a purely private nature would not be
subject to writ jurisdiction merely by reason of the fact that
they are structured by statutory provisions. The only
exception to this principle arises in a situation where the
contract of service is governed or regulated by a statutory
provision. Hence, for instance, in K K Saksena (supra) this
Court held that when an employee is a workman governed
by the Industrial Disputes Act, 1947, it constitutes an
exception to the general principle that a contract of personal
service is not capable of being specifically enforced or
performed.
35. It is of relevance to note that the Act was enacted to
provide for the regulation and registration of clinical
establishments with a view to prescribe minimum standards
of facilities and services. The Act, inter alia, stipulates
conditions to be satisfied by clinical establishments for
registration. However, the Act does not govern contracts of
service entered into by the Hospital with respect to its
employees. These fall within the ambit of purely private
contracts, against which writ jurisdiction cannot lie. The
sanctity of this distinction must be preserved.
36. For the above reasons, we are of the view that the
Division Bench of the High Court was not justified in coming
to the conclusion that the appellants are amenable to the
writ jurisdiction under Article 226 of the Constitution as an
authority within the meaning of the Article.
37. For the reasons that we have adduced above, we hold
that neither the Ramakrishna Mission, nor the hospital would
constitute an authority within the meaning of Article 226 of
the Constitution.
20. Even referring to the decision of this Court in the case of
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Kantilal Manibhai Patel (supra) as relied upon by learned counsel
for the petitioners, it is clear that the power is not only restricted to
the supervisory power but includes that the object and purpose of the
trust also to be looked into and time and again the Charity
Commissioner has to pass necessary direction to the trust. It is
observed in this decision that under Section 41, the Charity
Commissioner is empowered to issue the remedial and preventive
directions for ensuring efficient administration of the trust. However,
as alleged by the petitioners that respondent No.2 is not justified in
entering into the realm of adjudication in the name of securing better
administration of the trust and he cannot proceed to decide a lis
under the guise of exercising administrative control of the Trust. In
fact conjoint reading of Section 41A of the Act, it appears that for
Section 32 to 41, it is well within the power that the Joint Charity
Commissioner to pass order and there is no any illegality and infirmity
in the impugned order.
21. While exercising the jurisdiction under Article 227 of the
Constitution of India, the Hon’ble Supreme Court had laid down the
principles in the case of Nandi Infrastructure Corridor
Enterprises Ltd and another Vs. Gurappa Naidu and others
rendered in Civil Appeal No. 1354 of 2013 dated 30.04.2026
summarized for exercise the power under Article 227 of the
Constitution. The Hon’ble Supreme Court has observed that the scope
and ambit of the power of the High Court under Article 227 of the
Constitution has been the subject matter of consideration before this
Court in several judgments. The Hon’ble Supreme Court has laid down
the principles in the matter under Article 227 that the power of
superintendence is not to be exercised unless there has been an (a)
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unwarranted assumption of jurisdiction, not vested in Court or
tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal
to exercise jurisdiction vested in Courts or tribunals. It is also well
settled that the High Court while acting under this Article cannot
exercise its power as an appellate court or substitute its own
judgment in place of that of the subordinate court to correct an error,
which is not apparent on the face of the record. The High Court
exercising supervisory jurisdiction does not act as a court of first
appeal to reappreciate, reweigh the evidence or facts upon which the
determination under challenge is based. Supervisory jurisdiction is not
to correct every error of fact or even a legal flaw when the final
finding is justified or can be supported. The High Court is not to
substitute its own decision on facts and conclusion, for that of the
inferior court or tribunal. After complying the said principle, the
Hon’ble Supreme Court has quashed the order passed by the High
Court that the High Court has exceeded its jurisdiction which is not
vested under Article 227 of the Constitution of India.
22. In the case of Gurappa Naidu (supra), the Hon’ble Supreme
Court has held and observed in paras – 35 and 36 as under:-
35. In short, the principles laid down in the above matters is
as follows:
a) The power of superintendence under Article 227 is not to
be exercised unless there has been an (a) unwarranted
assumption of jurisdiction, not vested in Court or tribunal, or
(b) gross abuse of jurisdiction or (c) an unjustifiable refusal
to exercise jurisdiction vested in Courts or tribunals.
b) It is also well settled that the High Court while acting
under this Article cannot exercise its power as an appellate
court or substitute its own judgment in place of that of the
subordinate court to correct an error, which is not apparent
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on the face of the record.
c) The High Court exercising supervisory jurisdiction does not
act as a court of first appeal to reappreciate, reweigh the
evidence or facts upon which the determination under
challenge is based. Supervisory jurisdiction is not to correct
every error of fact or even a legal flaw when the final finding
is justified or can be supported. The High Court is not to
substitute its own decision on facts and conclusion, for that
of the inferior court or tribunal.
36. Applying the aforesaid principles to the facts of the
present case, we are of the considered view that the High
Court has exceeded the jurisdiction vested in it under Article
227 of the Constitution of India. We say so for the following
reasons:
36.1.Firstly, the power of superintendence under Article 227
of the Constitution can be exercised where there is an
unwarranted assumption of jurisdiction by a court not vested
with such jurisdiction, or in cases of gross abuse of
jurisdiction. In the present case, it is evident from the record
that the Executing Court was duly vested with jurisdiction to
deal with the matter, and no case of gross abuse of
jurisdiction is made out. On this ground, the High Court could
not to have exercised its jurisdiction under Article 227.
36.2.Secondly, the power of superintendence may be
invoked where there is an unjustifiable refusal to exercise
jurisdiction vested in a court. In the present case, the
Executing Court did exercise the jurisdiction conferred upon
it. Consequently, no occasion arose for the High Court to
invoke its jurisdiction under Article 227 of the Constitution on
this ground.
36.3.Thirdly, the High Court, while exercising jurisdiction
under Article 227 of the Constitution, could not have acted
as an appellate court or substitute its own judgment for that
of the subordinate court to correct an error which was not
apparent on the face of the record. In the present case, while
considering the petition filed by N.I.C.E. under Article 227,
the High Court ought to have borne in mind that this Court,
in the earlier round of litigation, had specifically directed the
Executing Court to determine the guideline value of the
property and accordingly the Executing Court had
determined the value of the land. In our considered opinion,
the High Court travelled beyond the limits of its jurisdiction
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under Article 227 while adjudicating the writ petition filed by
N.I.C.E. and we say so for the following reasons:
36.3.1. While exercising its jurisdiction under Article 227 of
the Constitution, the High Court had a limited scope of
interference with the order passed by the Executing Court.
What the High Court has done in the present matter is
precisely what may be characterised as acting in the
capacity of an Appellate Court, which is impermissible in the
exercise of supervisory jurisdiction under Article 227. Firstly,
while exercising jurisdiction under Article 227, the High Court
belatedly impleaded the State Government to resolve an
issue relating to the interpretation of the manner in which
the guideline value was to be determined. In our considered
opinion, such impleadment ought not to have been resorted
to, for the reason that the lis throughout was between
private parties and arose solely out of a compromise decree.
36.3.2. Secondly, the High Court, in effect, called upon the
State Government to file an affidavit seeking clarification on
the interpretation of the notification. Although the High Court
ultimately rejected the report submitted by the State, it
nonetheless accepted the State’s clarification with regard to
the interpretation of the notification and proceeded to act
upon the same. In substance, the High Court permitted the
State to interpret its own notification and thereby influence a
lis exclusively between private parties. The State was thus
placed in the position of being a rule-maker, interpreter, and
adjudicator of its own notification simultaneously, all while
the High Court was exercising its jurisdiction under Article
227 of the Constitution. Such an approach, in our considered
view, is impermissible. The executive cannot be allowed to
explain away or reinterpret a statutory instrument during the
course of litigation to the prejudice of one of the parties.
36.3.3. Thirdly, the High Court accepted the interpretation
advanced by the State solely on the ground that an
alternative interpretation of the notification was possible. By
doing so, the High Court substituted its own view for that of
the Executing Court, thereby exhibiting the conduct of an
Appellate Court rather than that of a court exercising
supervisory jurisdiction under Article 227 of the Constitution.
36.3.4. Fourthly, at the very least, the interpretation,
adopted by the Executing Court constituted a plausible and
reasonable view. In such circumstances, the High Court
could not, in exercise of its supervisory jurisdiction under
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Article 227 of the Constitution, supplant that view with
another interpretation, merely because such an alternative
view was also possible. By exercising jurisdiction under
Article 227 solely to demonstrate that another view was
possible, the High Court, in effect, acted as an appellate
court, which is impermissible in law.
36.4.Therefore, in our considered opinion, the High Court,
while exercising its jurisdiction under Article 227 of the
Constitution, travelled beyond the limits of the narrow and
circumscribed scrutiny permissible under the said provision,
in direct contravention of the principles set out in paragraph
35 of this judgment.”
23. When the interim order was passed below Exhibit 20, at that
time, the Court has granted the relief in favour of the respondents
rejecting the application and the petitioners have not approached this
Court immediately and after more than two years on 06.09.2023 and
the same was registered on 07.10.2023. After the contentions raised
by the respondents in the affidavit-in-reply, the petitioners have tried
to explain that the earlier decision was challenged by one of the
trustees and that petition was under objection and from which, the
petitioners have come to their knowledge and thereafter immediately
they have filed the petitions is not justifiable delay which is caused in
preferred the present petitions. As per the observations made by the
Joint Charity Commissioner in para 9 onward, respondent No.2 has
considered the purpose and object of the trust and after examining
such details, concerned Trust has come to the conclusion that the
impugned order passed by the Joint Charity Commissioner is in
consonance with the facts and arguments of all concerns. In the
petition filed by respondent No.1, the petitioners were the party to the
proceedings being respondents No.2 and 5, so the order passed by
the Joint Charity Commissioner is well within the knowledge of the
petitioners, however, they have chosen to remain silent for two years
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and, thereafter, they have preferred the petitions and, therefore, on
the ground of delay, laches and acquiescence. It is also to be noted
here that during the course of hearing, the petitioners unable to
produce any relevant material with regard to the fact that
respondents No.3 and 4 were not taking any interest in just and
proper administration of the trust and there was no explanation. So
far as the explanation is concerned, it is incurred and bear by
respondent No.1 only with the help of public donation and it is also in
consonance with the purpose and object of the trust and for that,
community people only. After considering the said aspects, the Joint
Charity Commissioner has passed the impugned order, for which, this
Court does not find any irregularity and illegality in the impugned
order. On perusal of the materials produced on record and the
findings and reasoning assigned by the Joint Charity Commissioner in
the impugned order, this Court is of the opinion that there is no
infirmity and illegality in the order. As observed by the Hon’ble
Supreme Court in the recent decision that while exercising the
jurisdiction under Article 227 of the Constitution, I am of the opinion
that I am not sitting over the appeal over the decision of respondent
No.2.
24. The respondent No.1 has approached the Joint Charity
Commissioner by filing an application under Section 41A of the Act
challenging the action of respondent No.3 to cancel the resolution
without giving any opportunity to present respondent No.1. Therefore,
under such circumstances, the Joint Charity Commissioner has rightly
dealt with the aspects while deciding the application.
25. At this juncture, it is relevant herein to refer to the decision of
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the Division Bench of this Court in the case of Pavankumar Jain V/s.
Priyavadan Ambalal Patel reported in 2016 (1) GLR 242, wherein
similar arguments were canvassed by the learned counsel for the
appellant as argued by Mr.Adesara, learned counsel and considering
such arguments and facts, the Court has observed that under Section
41A of the Act, the Charity Commissioner has having wide discretion
in exercise of power and it is not restricted to the direction with
respect to and / or which will fall under Sections 32 to 41 of the Trust
Act. That when it has been found by the Joint Charity Commissioner
that resolution passed by the Trust was not in conformity with the
provision of the Trust deed and when it has been found that by
passing such a resolution the trustees have not acted as per the
provision of the Trust Deed and the directions have been issued for
proper administration and management of the Trust and directions
have been issued directing the Trustees / Trust to Administer and
Manage the Trust as per the provision of the Trust Deed. It was also
observed by the Division Bench of this Court in paras 8 and 9 in the
said decision which reads as under:-
“8. It cannot be disputed that the administration and
management of the Trust can always be as per the
provisions contained in the Trust Deed and in accordance
with provisions of the Act and Rules. Therefore, considering
the provision of Section 41 A of the Trust Act whenever it is
found by the Charity Commissioner that the Trust and / or its
Trustees are not managing the affairs of the Trust as per the
provision contained in Trust Deed and / or as per the
provisions of the Act and Rules, the Charity Commissioner
can in exercise of powers under Section 41 A of the Act issue
direction for appropriate administration and management of
the Trust. However, it is the case of the appellants relying
upon the decision of the Division Bench of this Court in the
case of Syedna Mohamed Burhanuddin (supra) that even
while exercising the powers under Section 41 A of the Trust
Act, the Charity Commissioner can issue direction only in
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respect of the matter falling under Sections 32 to 41 of the
Trust Act. However, considering the aforesaid decision of the
Division Bench in detail and the observations made by the
Division Bench with respect to question posed before the
Division Bench in the case of Syedna Mohamed Burhanuddin
(supra), we are of the opinion that as such there is no
absolute proposition of law laid down by the Division Bench
in the said decision that in exercise of powers conferred
under Section 41 A of the Trust Act, the Charity
Commissioner can issue the direction in respect of the
matters falling under Sections 32 to 41 of the Trust Act only.
In the case before the Division Bench while challenging the
certain directions issued by the Charity Commissioner,
Gujarat State, under Section 41 A of the Trust Act, vires of
Section 41 A of the Trust Act also were challenged on the
ground that it violates Articles 25 and 26 of the Constitution
of India. Before the Division Bench the petitioner challenged
the constitutional validity of Section 41 A of the Trust Act
mainly on the following grounds / contentions:-
(1). Section 41 A of the Bombay Trusts Act, 1950, in so far as
it applies to trusts of religious denominations, is ultra vires
25 and 26 of the Constitution.
(2). Section 41 A is not ultra vires Arts. 25 and 26, the
impugned directions are wholly beyond the purview of
Section 41A and are in conflict with Arts. 25 and 26.
(3). Such directions cannot be issued without hearing the
party affected thereby either on the ground of principles of
Natural Justice if they are quasi- judicial or on the ground of
principles of Fair Play if they are purely executive or
administrative in character.
While dealing with the aforesaid contentions, the this Court
also noted / considered sub-section (1) of Section 41 A of the
Trust Act and firstly observed that sub-section (1) of Section
41 A of the Trust Act empowers the Charity Commissioner to
issue direction only for the following purpose and no others.
(A) Proper administration of a public trust (B) Proper
accounting of its income (C) Due appropriation and
application of the income to the objects and for the purpose
of trust.
While dealing with the contention on behalf of the petitioners
that Section 41 A of the Trust Act impinge upon any
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fundamental right of a person or religious denomination and
is suffers from constitutional infirmity, the Court observed
that Section 41 A of the Trust Act is merely enabling and
ancillary provision intended to make implementation and
enforcement of provisions of Sections 32 to 41 more
effective. It is to be noted that There was no controversy
before the Division Bench that whether the powers of the
Charity Commissioner to issue direction shall confine in
respect of matters falling under Sections 32 to 41 only. It will
be misreading of decision of the Division Bench if it is read
like that. On the contrary, in the aforesaid decision, it is
further observed that by enacting Section 41 A, the
Legislature has not introduced any new principle which is not
there elsewhere but has merely filled in the lacuna for
effective implementation of the provision of Act.
8.1. Even it could not have been the intention of the
Legislature to restrict the powers of the Charity
Commissioner while issuing the direction under Section 41 A
of the Trust Act in respect of matters under Sections 32 to 41
of the Act only. If the legislature had intended to restrict the
exercise of the Charity Commissioner's powers under Section
41A to only matters contained in Sections 32-41, there was
absolutely no reason for the Legislature to have provided
under Section 41A the categories of situations under which
the powers can be exercised. The fact that Section 41 A
enumerates the situations in which powers can be exercised
i.e. to ensure that such Trust is properly administered and
the income thereof is properly accounted for or duly
appropriated and applied to the objects and for the purposes
of the Trust, itself shows that Section 41A is a provision that
stands by itself and that directions can be given under
Section 41A as long the same are given for the matters
specified in the said provision i.e in Section 41A. If such a
restrictive meaning as sought to be contended on behalf of
the appellants is accepted, it will negate that part of the
Section 41 A which confers power upon Charity
Commissioner to issue direction from time to time, to ensure
that such trust is properly administered, however subject to
provision of the Trust Act. The presence of the words
"Subject to other provisions of this Act, the Charity
Commissioner may issue." can only mean that the Charity
Commissioner cannot issue directions that may violate or
run contrary to some other provision of the Act and can
never mean that Section 41A is restricted to the matters
contained in Sections 32-41 only.
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8.2. As observed herein above, there was no controversy
before the Division Bench in the aforesaid decision that
whether the powers of the Charity Commissioner to issue
direction under Section 41 A of the Trust Act, shall be
restricted to matters in respect of Sections 32 to 41 only.
Therefore, if the judgment of the Division Bench in the case
of Syedna Mohamed Burhanuddin (supra) if read as a whole
and its true prospective, as such it does not hold that Section
41 A is restricted to Sections 32 to 41 only. As such, in the
aforesaid decision, the Division Bench has not restricted the
powers under Section 41 A of the Trust Act to the matters
contained in Sections 32 to 41 of the Trust Act only. As per
the catena of decision of the Hon'ble Supreme Court, more
particularly in the case of Zee Telefilms Limited v. Union of
India reported in AIR 2005 SC 2677 ((para 275-278)); in the
case of Natural Resources Allocation, In Re Special Reference
No. 1 of 2012, reported in (2012) 10 SCC 1 (para 73) and in
the case of Mehboob Dawood Shaikh v. State of Maharashtra
reported in (2004) 2 SCC 362 (para 12), a judgment is to be
read as a whole and that it is not a precedent for a question
that was not before the Court.
Under the circumstances and for the reasons stated above,
we are of the opinion that the Division Bench in the case of
Syedna Mohamed Burhanuddin (supra) does not hold that
powers conferred under Section 41 A of the Trust Act to
issue direction by the Charity Commissioner is restricted to
Sections 32 to 41 of the Trust Act only.
9. On the contrary, in the case of Navsari Taluka Halpati
Shikshan Prachar Sangh (supra) after considering the
aforesaid decision of the Division Bench in the case of
Syedna Mohamed Burhanuddin (supra), more particularly,
the observations made in para 41 and 42 in decision of
Syedna Mohamed Burhanuddin (supra), it is held that the
Charity Commissioner can exercise the powers under Section
41 A of the Act in connection with the matters falling under
Act for proper Administration of the Trust and are not
restricted to the matters the falling under Sections 32 to 41
of the Act only. It is further observed and held by the
Division Bench in the said decision the power of the Charity
Commissioner to issue directions to ensure that the Trust is
properly administered is by itself very nature a wide power.
It is further observed that Administration of Trust would
mean administration by a body which under the Trust Deed
is required to be administered the same. It is further
observed that in absence of proper elected body as required
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under the Trust Deed, a proper Administration of the Trust
cannot be ensured. It is further observed that the
Administration of the Trust would include various aspects,
which would fall under the provisions of the Act and in
absence of a properly constituted administrative body, the
affairs of the Trust can hardly be conducted in furtherance of
its objects. Thereafter, it is held that the direction to hold
election of the trustee in consonance with the terms of the
Trust Deed would clearly fall within the ambit of Section 41-
A of the Act. It is required to be noted that after the
aforesaid decision of the Division Bench in the case of
Navsari Taluka Halpati Shikshan Prachar Sangh (supra), in
the following decisions, the learned Single Judges of this
Court have categorically observed and held that in exercise
of powers under Section 41 A of the Act, the Charity
Commissioner can issue direction for better administration of
trust.
(a) Acharyashree M. R. B. Mandir Trust v. C. R. Chandulal,
1997 (1) GLH 16 (Single Judge) (para 5, 8, 11, 12 and 13)
(b). Devkrushnadasji Guru Dharmadasji v. State of Gujarat,
2008 (1) GLH 427 (Single Judge) (para 13-16, 18-24)
(c). Balvantbhai Jinabhai Dhami v. Shantilal Kantibhai
Ratanpara, SCA No. 9819 of 2009 and other cognate matters
(Single Judge) (para 18.1, 18.2, 23, 23.1, 29-31)
(d). Ratilal Hansraj Gajjar v. Kamleshbhai Narsibhai
Kharechha, 2011 (0) GLHEL-HC 224834 (Single Judge) (pg. 9-
11)
(e). Shree Laxminarayan Dev Temple Board v. Jasubhai
Bhailalbhai Patel, SCA no. 4069 of 2012 (Single Judge) (para
14-15)
(f). Gopinath Dev Mandir Trust v. State of Gujarat, SCA No.
11706 of 2012 (pg. 31-35). It may be noted that this
judgment has been confirmed by the Division Bench in LPA
No. 479 of 2013 (para 9-11).”
26. In the case of Pavankumar Jain (supra), this Court has
observed that restricted meaning as canvassed on behalf of the
appellant that in exercise of powers under Section 41 A of the Trust
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Act, the Charity Commissioner can issue the directions only in respect
of the matters under Sections 32 to 41 of the Act is not tenable in the
eyes of law. The Legislature has never intended to confer such narrow
powers to the Charity Commissioner. The Charity Commissioner can
issue the directions in exercise of powers under Section 41 A of the
Act with respect to (A) Proper administration of a public trust (B)
Proper accounting of its income (C) Due appropriation and application
of the income to the objects and for the purpose of trust however,
subject to provisions of the Act and Rules how even as observed in
the case of Syedna Mohamed Burhanuddin (supra) and other
decisions, while issuing direction under Section 41 A of the Act Charity
Commissioner has no adjudicatory powers and cannot decide lis
between the parties. Therefore, subject to the aforesaid rider, for
administration of the Trust, the Charity Commissioner can issue the
directions to the Trust / Trust Deed and can issue the directions to
them to act as per the scheme of the Trust or provision of the Trust
Deed and / or Trust Act. The said contention was negatived by the
Division Bench of this Court in the above referred decision.
27. It is profitable to refer to one another decision of this Court in
the case of Dhansukhbhai Laalubhai Patel Vs. Nitinbhai
Gunvantbhai Patel rendered in Special Civil Application No.18696 of
2015 and allied petitions dated 06.04.2018. The Court has occasion
dealt with section of the Act more particularly the provisions of
Section 41A of the Act. The Court has observed in paras 11 and 12 as
under:-
11. So far as the merits of the petitions are concerned, it
cannot be gainsaid that the Charity Commissioner has
powers under Section 41A of the said Act to issue directions,
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subject to the provisions of the said Act to any trustee of the
public trust or any person connected therewith to ensure
that such trust is property administered and the income
thereof is properly accounted for or duly appropriated and
applied to the objects and for the purposes of the trust. As
observed by the Division Bench of this Court in the case of
Syedna Mohamed Burhanuddin versus Charity Commissioner
reported in (1992) 1 GLH 331, Section 41-A of the Trust Act
is enabling provision intended to make implementation and
enforcement of the provisions of Section 32 to 41 more
effective. Of course, in case of Pavankumar Jain and Others
Vs. Priyavadan Ambalal Patel and others (supra), relied upon
by the Mr. Thakore, it is observed inter alia that powers of
Charity Commissioner under Section 41-A are not restricted
to the matters contained in Section 32 to 41, and that the
words 'subject to other provisions of this Act' contained in
Section 41-A would mean that the Charity Commissioner
cannot issue directions that may violate or run contrary to
the other provisions of the Act.
12. In the instant cases, the Joint Charity Commissioner has
rightly considered the scope and powers of Section 41-A of
the said Act and rejected the Judicial Misc. Applications filed
by the applicants holding inter alia that the prayers of
declaration and permanent injunction in respect of the lands
in question, which were adjudicating in nature could not be
granted under Section 41-A and that the injunction of
permanent nature as prayed for also could not be issued
under Section 41-A of the said Act. Though, it was sought to
be submitted by the learned Senior Advocate Mr. Thakore
that the lease deed dated 09.06.2010 executed by the
trustees in favour of the respondent Rameshbhai Sakaria
was in contravention of Section 36 of the Act and illegal, the
said submission does not deserve any consideration at this
stage when the registration of the trust itself has been
cancelled, and the alleged trustees are no more the trustees
in the said trust. Even otherwise, the petitions involving
highly disputed questions of facts and that too at the
instance of the petitioners whose own locus standi is
doubtful, do not deserve any further consideration and
deserve to be dismissed.”
28. Though the present petitioners are aware with the facts of on
going project since 2016 and they were the parties to the resolution
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passed by respondent No.3, however, they have chosen to remain
silent and after almost two years, they have preferred these petitions
with a view to frustrate the object and purpose of the Jambudweep
Bahubali Project and caused obstacle in the project as the majority of
the trustees have agreed to go ahead with the project and more
particularly when the expenditure bear by respondent No.1 and the
payment of Rs.56,00,000/- Lakh and odd amount was already paid by
respondent No.1. Therefore, there is no question that respondent No.3
against whom, the petitioners raised the complaint is completely with
an ill-intention and ill-motive and there is no illegality on the part of
respondent No.3 as it was noticed by the Joint Charity Commissioner.
Thus, it is clear that the present petitioners are in any how wanted to
stale the project initiated by respondent No.1, but in fact,
respondent No.3 is the beneficiary of the project and whatever
donation and income incurred from the said project will be given to
respondent No.3. Under these circumstances, the Joint Charity
Commissioner has rightly passed the impugned order under Section
41A of the Act. After considering the above referred facts and on
perusal of the record, I am prima facie satisfied that there is no any
illegality and perversity in the order passed by the Joint Charity
Commissioner nor the order is without jurisdiction as it was observed
by the Division Bench of this Court in the aforestated decision that the
power under Section 41A of the Act is not restricted or it cannot be
led in consonance with the application and the prayer made therein is
required to be considered. Therefore, in my opinion, the Joint Charity
Commissioner has passed the impugned order in consonance with the
provision of Section 41A of the Act and there is no any illegality and
infirmity in the order.
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29. In the result, the petitions stand dismissed. Rule is discharged.
Interim relief, if any, granted earlier shall stand vacated forthwith.
There shall be no order as to costs. Pending civil applications shall
stand dismissed in view of the order passed in the main petitions.
(HEMANT M. PRACHCHHAK,J)
FURTHER ORDER
Mr.J. A. Adesara, learned counsel for the petitioners submits
that this order be stayed for a period of four weeks to enable the
petitioners to avail appropriate opportunity against which the
otherside has raised an objection. The request is hereby turned down.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: VIJAYKUMAR RAMESHBHAI PANCHAL(HC00171), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 15/06/2026 14:24:11
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