SCA/3289/2002 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3289 of 2002 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SHRIMAD RAJCHNADRA ASHRAM TRUST & 8 - Petitioner(s) Versus HARGOVINDBHAI DAHYABHAI PATEL - Respondent(s) ========================================================= Appearance : MR MIHIR H JOSHI for Petitioner(s) : 1 - 9. MR KD VASAVADA for Respondent(s) : 1, MR RA SEJPAL for Respondent(s) : 1, MS MADHUMATI T YADAV for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 15/05/2008 ORAL JUDGMENT 1. Pursuant to the order passed by this Court in SCA/3289/2002 2/5 JUDGMENT Civil Application No.6100 of 2008, the Joint Charity Commissioner is permitted to be impleaded as parties. Ms.Patel, learned AGP is directed to appear on behalf of the newly added party. As all other advocates for the petitioners as well as for the private respondents are available and are ready to proceed with the main matter, the main matter is placed for final hearing for such purpose and is finally heard. 2. The short facts of the case appears to be that the petitioner is a charitable Trust and the other co-petitioners are claiming the status as trustees of the Trust. The Trust is registered under the Bombay Public Trust Act (“the Act' for short). It appears that the respondent No.1 is claiming his status as the trustee and interested in the management of the Trust filed application No.4/00 before the Charity Commissioner under Section 41A of the Act for various directions inter alia for restraining the Trustees of the Trust from making construction of Gurumandir, Swetamber Jinalay, Digamber Jinalay, Muni Upashrak and it was also prayed that if the construction is made without prior lawful permission and the amount is debited to the accounts of the Trust, the same be recovered from the Trustees who were joined as opponent Nos. 2 to 16. It was also prayed that the Trust be restrained from making SCA/3289/2002 3/5 JUDGMENT construction over the land. 3. It also appears that in response to the process initiated by the Charity Commissioner, the Trust and the Trustee who are petitioners herein appeared and ultimately, the Charity Commissioner passed the order dated 17.09.2001 in Judicial Misc. Application No. 4/00, whereby he did not give any directions, but issued instructions to the effect that all constructions which is made since last 20 years, be accounted by the Trust and without prior permission, no further action should be taken and directed for prior permission under Section 35 of the Act, by submitting the proposal within 6 months. It is under these circumstances, the petitioners have approached to this Court by preferring the present petition. 4. Heard Mr.Ayush Modi for Mr. Joshi for the petitioners. Mr. Vasavada for respondent No.1 and Ms. Patel, learned AGP for respondent No.2. 5. It appears that even if all points which are considered by the Charity Commissioner are further examined by this Court, it would not permit the Charity Commissioner to pass an omnibus order under Section 41A of the Act for which the construction is made and the expenses thereof since last 20 years and for a general direction to get the permission under Section 35 of the Act. If in a given case, the Charity SCA/3289/2002 4/5 JUDGMENT Commissioner finds that the expenses are incurred beyond the object of the Trust or were not authorised or are not genuine or are doubtful, he may identify such aspects and the period thereof and may also call for further information. Such powers are available to the Charity Commissioner. But, it appears that in the present case, a general omnibus direction has been given by the Charity Commissioner for the expenses incurred in last 20 years. He also called for the proposal under Section 35 of the Act. Such shows that there is no specific exercise of the power for a particular object to be achieved. Under these circumstances, it can be said that the exercise of the power by the Charity Commissioner for issuing directions is in an arbitrary manner and deserves to be quashed and set aside. At the same time, it must be observed that the Charity Commissioner shall be at the liberty to identify a particular expense for a particular period for his verification and after verification, if he finds that there is something wrong with the expenses already incurred or any illegality is committed or such expenses are not genuine or doubtful he may also take further action in this regard after giving opportunity of hearing to all concerned. 6. In view of the aforesaid, the impugned order passed by the Charity Commissioner so far as SCA/3289/2002 5/5 JUDGMENT giving general directions is quashed and set aside. However, is is further observed and clarified that it would be open to the Charity Commissioner to call for the details of the expenses for a particular year or item with the period thereof. It would also be open to the Charity Commissioner to examine the same and if in a given case, it is found by him prima facie that the expenses incurred were unauthorised or not genuine, or doubtful, he may further undertake the inquiry either himself or through the authorised officer and thereafter, if he finds that the case is made out for initiation of action, such a recourse shall be available to him after giving opportunity of hearing to the parties concerned. It is also clarified that as and when such an action is initiated by the Charity Commissioner, the rights and contentions of the parties who is to face the proceedings shall remain open. 7. The aforesaid exercise if any shall be completed preferably within a period of 6 months from the receipt of the order of this Court. 8. The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. (JAYANT PATEL, J.) *bjoy