*1* wp.651.11.924.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.651 OF 2011 Shree Lohana Samaj. ..Petitioner ­Versus­ Assistant Charity Commissioner and others. ..Respondents .......... Mr.P.S.Dani with Mr.Abhijeet Marathe i/b Wadia Ghandy & Company, for the Petitioner. Ms.Nehal Thadeshwar with Ashok Trivedi, for the Respondent No.2. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 27th July, 2011. P.C.: 1 This Writ Petition under Article 227 of the Constitution of India challenges the order dated 30.10.2010 of the Assistant Charity Commissioner, Thane Region, Thane. The operative order reads thus:­ “01) The trustees shall name the newly constructed building as undertaken by them while accepting the donation from the applicant, as pointed out in the body of judgment. 02) Compliance report to be submitted by the trustees within next two months from date of this order. 03) Parties to bear their own costs.” 2 It is contended by Mr.Dani, learned counsel appearing for the Petitioner/Trust that the application was made seeking intervention of the Assistant Charity Commissioner under Section 41A of the Bombay Public Trusts Act, 1950 (in short, the Act, 1950). 3 The application is made by the Respondent No.2 which stated that they are donors of the Petitioner­Trust. They have donated a sum of Rs.15 lacs for construction of a building. The Petitioner has constructed a *2* wp.651.11.924.sxw building consisting of four floors at Navi Mumbai. Since the Petitioner has been formed for the welfare of “Lohana” community, that donation was given and it was mutually agreed that the building would be named as “Shrimati Shantaben Gulabrai Vrajdas Gandhi Lohana Bhavan”. This is the name of the Applicants’ mother and it was to be written and displayed on the centre of the building. The agreement has been referred to in paragraphs 5 to 7 of the application and then it is contended that the Trust building was inaugurated on 20.02.2005 by issuing invitation cards to the community members and the community magazine of Lohana Bhavan, New Mumbai was printed and distributed widely among Lohana community members displaying the name of the building as above stated. However, the promise has not been fulfilled and the building has not been named as such, but is named as “Lohana Bhavan”. For these reasons, according to the Respondent No.2, the Assistant Charity Commissioner should issue directions to the Petitioner Trust to name the building after the mother of the Respondent No.2 and thereafter, the community’s name should appear on the name board. A reply was given to this application which was filed denying any such agreement and understanding. All that is agreed is that the donation would be accepted by the Trust and the name of the second Respondent’s mother would be displayed on the centre of the building. There was never any agreement to name the building after the mother of the Respondent No.2. In such circumstances, there is no merit in the application and it deserves to be dismissed. 4 By the impugned order, the Assistant Charity Commissioner held that the application was maintainable and that the directions as prayed can be issued because in his opinion the trustees have undertaken to name the newly constructed building after the second Respondent’s mother and therefore, when there is no denial of documents including the *3* wp.651.11.924.sxw invitation card which was produced, then, the trustees should have fulfilled legitimate expectation of the Respondent No.2. In these circumstances, section 41A of the Act, 1950 can be resorted to uphold the goodwill of the Petitioner­Trust and commitment of the Trust or else the reputation of the Trust will suffer. 5 Mr.Dani has submitted that this exercise undertaken by the Assistant Charity Commissioner is not permissible within the powers conferred by section 41A of the Act, 1950 and that is power to ensure proper administration and management of the Trust and Trust’s funds. In this case, there is no allegation that the donation has not been accounted for or that the amount has not been utilized for the benefit of the Trust and the interest of community. There is some sort of understanding which is pleaded and if there is breach of the said understanding or agreement, then, the remedy of the Respondent No.2 lies elsewhere, but not invoking the powers of the Assistant Charity Commissioner under section 41A of the Act, 1950. 6 On the other hand, the learned counsel appearing for the Respondent No.2 has justified the intervention by the Assistant Charity Commissioner and supported the impugned order. 7 In my view, there is much substance in the contentions of the Petitioner­Trust inasmuch section 41A of the Act, 1950 confers the powers on the Charity Commissioner to take such steps subject to the provisions of the Act, 1950, from time to time by issuing directions to any trustee of a public trust or any person connected therewith, to ensure that the 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. The Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in *4* wp.651.11.924.sxw danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. Thus, the object of section 41A is to streamline the administration of the public trust and to ensure more effective implementation of the provisions of the B.P.T. Act, 1950. Ultimately, the administration of trust, account for the income that it derives and gets and proper application thereof for the object and purpose of the trust is paramount consideration while exercising the said powers. It is while exercising such powers to ensure all these aspects, that the direction can be given as contemplated under section 41A. On perusal of the application made by the Respondent No.2, it does not indicate that the intervention of the Assistant Charity Commissioner is sought for the purpose which is enunciated under section 41A. It is for the enforcement of the agreement between the Respondent No.2 and the Petitioner­Trust and that agreement, according to the Respondent No.2, is to name the trust building after the mother of the Respondent No.2, that is on the basis that the donation given by the Respondent No.2 is in the light of the specific understanding between the parties. To my mind, there was no allegation that the Trust is not properly administered or the income thereof is not properly accounted or appropriated and the same is spend improperly and not in consonance with the object and purpose of the trust. This is a clear case where the Respondent No.2 is aggrieved and dissatisfied by the acts of the trustees in not abiding by the agreement which has been entered into by them. If there is breach of faith and trust reposed by the Respondent No.2 or that the agreement has not been abided by, then, the remedy of the Respondent No.2 lies elsewhere and not to apply under section 41A. In these circumstances, the Assistant Charity Commissioner was not justified in issuing the subject directions. In the instant case, there was no warrant for issuing the direction to change the name of the newly *5* wp.651.11.924.sxw constructed building. The reasoning given in paragraphs 10 and 11 of the impugned order does not justify the ultimate direction as it is in complete contravention and also far exceeds the power conferred by section 41A. The Assistant Charity Commissioner was not called upon to enforce the alleged understanding and agreement between the parties or to give effect to it. That was adjudication completely beyond his powers and out of purview of section 41A of the Act, 1950. In these circumstances, the impugned order cannot be sustained and it is, accordingly, quashed and set aside. The Writ Petition succeeds, but there will be no order as to costs. (S.C. Dharmadhikari, J)