LALLUBHAI GIRDHARLAL PARIKH SINCE DECD Vs. ACHARYA SHRI VRIJBHUSHANLALJI BALKRISHNALALJI
HIGH COURT OF GUJARAT
LALLUBHAI GIRDHARLAL PARIKH
ACHARYA SHRI VRIJBHUSHANLALJI BALKRISHNALALJI
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(1.) This is a petition instituted under Article 227 of the Constitution of India and is directed against the order passed by the Charity Commissioner of the State of Gujarat in Appeal No. 61 of 1960 on April 4 1962 The appeal before the Charity Commissioner was filed against the order of the Assistant Charity Commissioner Baroda passed in Miscellaneous Application No. 175 of 1957 on January 22 1960 The proceedings were initiated on original application Exhibit 1 dated June 6 1957 that was filed by one Maneklal Mohanlal Parikh who is the second respondent in this petition in the matter of pubic trust of Bethak Mandir alias Shree Dwarkanathji Mandir situated at Madan Zampa Road in Baroda. The order in appeal annexure A to the petition that was passed by the Charity Commissioner is challenged by petitioner Lallubhai Girdharlal Parikh on the ground that it is against law procedure and is without jurisdiction. The original petitioner has died during the pendency of this petition and his legal representatives have continued this petition.
(2.) The material questions that fall for my consideration in this petition are: (i) what is the nature and scope of the enquiry under sec. 19 of the Act; and (ii) what are the powers and duties of the Deputy or Assistant Charity Commissioner and the Charity Commissioner acting respectively under secs. 19 and 70 of the Act. For the purpose I must consider the scheme of the Act and the functions which the Charity Commissioner exercises in relation to public trusts. Before I do so I may with benefit refer to the following observations made in Re Duncan: In Re Taylors Trusts (1867) 2 Ch. 359:
From time to time various Acts were made by the Government both Central and State for controlling mismanagement in the properties of public trusts. However it was only about 1950 in almost every State that Acts for the supervision of public trusts came to be passed. The purpose of the Act as shown by the preamble is to make better provision for the administration of public religious and charitable trusts in the State and having due regard to the purpose of the Act i. e. it having been passed for the public good it is the duty of the Courts of justice to put such a construction upon it as may tend to the furtherance rather than to the restriction of the powers conferred by it upon the Charity Commissioners. I may now first look to the preamble of the Act. It appears from the preamble of the Act that the Act is enacted to regulate and to make better provision for the administration of public religious and charitable trusts in the State. Preamble of a statute has been said to be a good means of finding out its meaning and as if it were a key to the understanding of it. Sec. 2 of the Act defines the various words and expressions used in the Act. Sub-sec. (13) of sec. 2 of the Act defines Public trust as meaning an express or constructive trust for either a public religious or charitable purpose or both and incudes a temple a math a wakf......... Sub-sec. (17) defines temple as meaning a place by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship. Sub-sec. (18) defines trustee as meaning a person in whom either alone or in association with other persons the trust property is vested and includes a manager. Chapter II of the Act which is under the caption Establishment deals with the powers and the qualifications of the Charity Commissioner and the Deputy and Assistant Charity Commissioner and enables one to understand the nature and extent of the powers of the Charity Commissioner. Sec. 3 therein reads as under:
(3.) The State Government may by notification in the Official Gazette appoint an officer to be called the Charity Commissioner who shall exercise such powers and shall perform such duties and functions as are conferred by or under the provisions of this Act and shall subject to such general or special orders as the State Government may pass superintend the administration and carry out the provisions of this Act throughout the State. Sec. 3 thus shows that the Charity Commissioner has the power of superintendence over the entire administration relating to the public trusts under the Act. He has also been enjoined with duties and functions under the provisions of the Act throughout the State with the specific object of carrying out the provisions of the Act. Secs. 4 and 5 respectively refer to the qualifications for appointment as Charity Commissioner and Deputy or Assistant Charity Commissioner. It is important to note that these authorities must either have held a judicial office as required under the relevant clause or must have been an Advocate an attorney or a pleader for the prescribed period. Chapter V relates to Accounts and Audit. Sec. 32 requires every trustee of a public trust which has been registered under the Act to keep regular accounts in the Form approved by the Charity Commissioner. Sec. 33 requires the accounts kept under sec. 32 to be balanced each year on the day appointed by the Charity Commissioner and the accounts have to be audited annually. Sec. 34 requires the auditor to prepare a balance-sheet of income and expenditure account and to forward a copy of the same to the Deputy or Assistant Charity Commissioner or to the Charity Commissioner if required. Sec. 35 deels with investment of public trust money in any Scheduled Bank or other Banks approved; and the second proviso of sub-sec. (1) empowers the Charity Commissioner by general or special order to permit the trustee of any public trust or classes of such trusts to invest the money in any other manner. Secs. 37 33 39 40 and 41 which find their place under Chapter VI which is under the caption Control relate to the controlling powers of the Charity Commissioner Deputy or Assistant Charity Commissioners and any other officer empowered in that behalf by the State Government. Sec. 37 speaks of their power of inspection and supervision. They are given powers to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust; to call for or inspect any extract from any proceedings of such trust as well as any books of account or documents in possession or under the control of the trustees or any person on behalf of the trustees as also any returns statements account or report. Sub-sec. (2) of sec. 37 enjoins a duty upon the trustees to afford all convenience and reasonable facilities for such examination as also a duty to comply with any order made or direction issued by such officer. Sec. 33(4) of Chapter V of the Act confers a power on the Charity Commissioner to direct a special audit of the accounts of any public trust. Sec 34(1) aforesaid requires every auditor auditing the accounts of a public trust under sec. 33 to prepare balance sheet and account and to forward the same to the Deputy or Assistant Charity Commissioner. Sec. 38 of Chapter VI enjoins a duty upon the Deputy or Assistant Charity Commissioner to call for an explanation of the trustee or other concerned person on such report. Sec. 39 requires the Deputy or Assistant Charity Commissioner to hold an inquiry in the matter and to report to the Charity Commissioner whether the trustees or any other person have been guilty of gross negligence a breach of trust mis-application or misconduct which has resulted in the loss to the public trust. Sec. 40 requires the Charity Commissioner to take a decision on report under sec. 39 and to determine the loss caused to the public trust and the person guilty thereof. Under Sec. 41 the Charity Commissioner has the power to direct that the amount of the loss shall be surcharged on the person found guilty. Thus the powers under Chapter VI are the controlling powers of the authorities working under the Act. The other functions and powers of the Charity Commissioner are provided for under Chapter VII of the Act. Under sec. 47AA the Charity Commissioner is entitled to make an application to the Court for appointment of a new trustee in place of an existing trustee convicted of any offence under the Act. Sec. 47A gives power to the Court to vest property in the new trustee. Sec 50 gives the Charity Commissioner a right to institute suits in cases of breach of trust for recovery of possession of property belonging to any public trust or of proceeds thereof or for directions of the Court where they are necessary. It also provides that any two or more persons having an interest in the trust may institute such a suit after having obtained in writing the consent of the Charity Commissioner as provided in sec. 51 of the Act. Chapter VIII relates to Public Trusts Administration Fund. Sec. 57 therein provides that there shall be established a fund to be called the Public Trusts Administration Fund and this Fund shall vest in the Charity Commissioner. Sub-sec. (2) requires the specified sums to be credited to the said Fund. Sec. 58 requires every public trust to pay to the Public Trusts Administration Fund annually such contribution on such date and in such manner as may be prescribed. Thus it appears from the aforesaid relevant sections that appear in Chapters III V VI VII and VII of the Act that the Charity Commissioner is the head of the administration of the public trusts under the Act and as such he has to exercise the powers of superintendence over the entire administration in the State. He is also required to carry out the provisions of the Act throughout the State.;
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