SCA/5403/2000 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5403 of 2000 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 ? ========================================================= HOMI B. KELAWALA & 3 - Petitioner(s) Versus APSI NAUSIR GANDHI & 1 - Respondent(s) ========================================================= Appearance : MR MAYANK DESAI for Petitioner(s) : 1 - 4.MR UTPAL M PANCHAL for Petitioner(s) : 1 - 4. MR ZUBIN F BHARDA for Respondent(s) : 1, MR.CB GODIGAJBAR for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 20/11/2008 ORAL JUDGMENT SCA/5403/2000 2/5 JUDGMENT 1. The petitioners, by this petition, have challenged the order dated 5.6.2000 passed by the Joint Charity Commissioner, whereby certain directions were issued for holding of the election as per the meeting held on 16.4.2000. 2. Heard Mr.Panchal, learned Counsel for the petitioners and Mr.Barda, learned Counsel for respondent No.1. 3. It appears that pending the petition, interim injunction came to be granted vide order dated 9.6.2000, which reads as under:- “ Heard learned Senior Counsel Mr.D.D.Vyas on behalf of learned advocate Mr. Dakshes Dave, learned advocate for the petitionel, Mr. C.B.Godigajbar appeared on behalf of respondent no.2 and was heard at length. Learned advocate Mr. G.D.Bhatt with Mr. Z.M.Bharda for respondent no.1 appeard as a Caveator and has filed his affidavit for respondent no.1 which is taken on record and Mr. Bhatt learned advocvate was also heard at length. 2. The matter is still at ad-interim stage and I do not consider it necessary or expedient to give detailed reasons for passing of the order so as to prejudice case of any of the parties. By way of this petition, the petitioners have challengeed an order of Joint Charity Commissioner, Baroda passed by him in Judicial Misc. Application No. 34 of 2000 on 5th June, 2000 by which he has given some directions regarding the elections which are to be held on 11th June, 2000. 3. Therefore, the short question at this stage which has come up for the consideration of this court is whether such directions issued by the Joint Charity Commissioner can be stayed till final hearing of the petition. On perusing Sec.41A of the Bombay Public Trusts Act, it is amply clear that the Joint Charity Commissioner has power to issue administrative directions only to the concerned trust. If he exceeds this limit, SCA/5403/2000 3/5 JUDGMENT then those directions are likely to be quashed in proper proceeding. I am fortified by a view taken by this court in the matter of Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Heard of the Dawoodi Bohra Community vs. Charity Commissioner, Gujarat State, Ahmedabad and others as reported in 1992(1) GLH 331. On bare perusal of the directions given by the impugned order, it is clear that the Joint Charity Commissioner has exceeded his authority under Section 41A of the Bombay Public Trusts Act because on plain reading of it, the directions are given regarding the elections to be held. The Joint Charity Commissioner does not enjoy such powers under Section 41A and I am again fortified by the view taken by the High Court of Bombay in the matter of Lahudas Sambhai Karad Vs. The State of Maharashtra and others, as reporteds in AIR 1993 Bombay 315, wherein directions issued by the Joint Charity Commissioner regarding the election was held to be beyond the scope of Section 41A. 4. In this view of the matter, though the party will be at liberty to urge their contentions regarding the elections, if the same can legally be advanced at a final hearing of the petition but in the meanwhile, the impugned order is absolutely necessary to be stayed which is beyond the exercise of the powers of the concerned Joint Charity Commissioner. 5. Therefore Rule retunable on 13th June, 2000. In the mean while, ad-interim relief in terms of Para 8(B) of the petition is granted. However it is made clear that if any election is to be held on 10th June, 2000, the result thereof will naturally be subject to final out come of this petition. Learned advocate Mr. Bhatt with Mr. Bharada waives service of Rule on behalf of respondent no.1 and learned advocate Mr. Godigajbar also waives service of rule on behalf of respondent no.2. Direct Service is permitted.” 4. The learned Counsel appearing for the petitioners states that as well as respondent No.1 confirm the position that subsequent elections have been held and the change report for such purpose were also filed. The learned Counsel for the petitioners further submits that the last election has been held on 3.7.2008 and the learned Counsel for the respondent No.1 SCA/5403/2000 4/5 JUDGMENT disputes the said position. 5. Under these circumstances, as the elections have been held pending the petition, no useful purpose would be served in deciding the questions, which are raised in the petition. Further, the elections, which are alleged to have been subsequently held are not the subject matter of the present petition. 6. The learned Counsel for the respondent No.1 submitted that in normal course, the election is required to be held as per the Constitution in accordance with law and, therefore, this Court may consider the matter for issuing directions for holding of the election as and when it becomes due. 7. In my view, such aspect is not the subject matter of the petition. Therefore, no opinion is required to be expressed. Suffice it to state that as and when the elections have become due and, if not held, the aggrieved party shall be at liberty to approach before the Charity Commissioner for suitable directions under Section 41A, as may be permissible in law. SCA/5403/2000 5/5 JUDGMENT 8. Subject to the aforesaid observations, the petition is disposed of as having become infructuous. Rule discharged. No order as to costs. 20.11.2008 (Jayant Patel, J.) vinod