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Jagdishchandra Popatlal Dodhiwala Vs. Khandesh Education Society and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 3061 of 1979
Judge
Reported inAIR1981Bom26; 1980MhLJ306
ActsBombay Public Trusts Act, 1950 - Sections 56-A; Constitution of India - Article 227
AppellantJagdishchandra Popatlal Dodhiwala
RespondentKhandesh Education Society and ors.
Appellant AdvocateB.P. Apte, Adv.
Respondent AdvocateM.R. Kotwal and;R.V. Desai, Advs.
Excerpt:
.....1950 - exercise of jurisdiction under section 56a - power can be exercised if question pertains to trust property or income of trust - court not competent to issue any direction if such issue is not involved in petition under section 56a. - - 6 of 1978 preferred by the board of trustees of a public trust khandesh education society for opinion, advice or directions under section 58a of the bombay public trusts act, 1950 (hereinafter the act). the very short but rather interesting question arising herein and on which, i am informed by the learned advocates, there is no direct authority of this court, is; it may as well be characterised as an emergency jurisdiction to be invoked and exercised in unusual circumstances or in unforeseen situations but generally only when the question is..........direction of the court on any question affecting:'...... the management or administration of the trust property or income thereof .....'.that, therefore, is the limited perimeter of this section. the focal centre of section 56a is not the trust or its trustees or its members but only '...... the trust property or income thereof ......'. and there its limit ends, its compass terminates. there is no general power to interfere with the administration of a trust as contradistinguished from trust property or its income. jurisdiction under section 56a is not an open sesame or a master key to all trust questions and problems. indeed, to the contrary. it is a limited and circumscribed jurisdiction. it is essentially advisory and consultative in nature. it may as well be characterised as an.....
Judgment:
ORDER

1. This petition under Article 227 of the Constitution challenges the order passed by the learned Assistant Judge, Dhule, below Miscellaneous Civil Application No. 6 of 1978 preferred by the Board of Trustees of a public trust Khandesh Education Society for opinion, advice or directions under Section 58A of the Bombay Public Trusts Act, 1950 (hereinafter the Act). The very short but rather interesting question arising herein and on which, I am Informed by the learned Advocates, there is no direct authority of this Court, is;

'What is the scope and content of Section 56A of the Act and what are the limitations thereunder?'

It is needless to narrate all the facts, circumstances and the unfortunate controversies between the parties. Suffice to note that Section 56A application in this case sought directions on:

(a) whether it would be proper to convene an annual general meeting during the pendency of an injunction order and/ or during the pendency of a writ petition;

(b) whether an annual general meeting as contemplated in the constitution could be lawfully held without publishing or holding the election;

(c) whether a certain group of 69 persons as also certain class of 23 firms could be allowed to attend such general body meeting; and

(d) what steps could be taken to hold election expeditiously and to prevent obstructions therein.

2. Hearing and considering the rival submissions of Mr. B.P. Apte for the petitioner, Mr. M.R. Kotwal for the contesting respondents Nos. 4 and 5 and Mr. R.V. Desai for the other respondents, I find it difficult to resist the preliminary contention of Mr. B.P. Apte that the instant application for directions was per se not maintainable under Section 56A of the Act.

3. Turning to Section 56A, one finds that it relates to opinion, advice or direction of the Court on any question affecting:

'...... the management or administration of the trust property or income thereof .....'.

That, therefore, is the limited perimeter of this section. The focal centre of Section 56A is not the trust or its trustees or its members but only '...... the trust property or income thereof ......'. And there its limit ends, its compass terminates. There is no general power to interfere with the administration of a trust as contradistinguished from trust property or its income. Jurisdiction under Section 56A is not an open sesame or a master key to all trust questions and problems. Indeed, to the contrary. It is a limited and circumscribed Jurisdiction. It is essentially advisory and consultative in nature. It may as well be characterised as an emergency jurisdiction to be invoked and exercised in unusual circumstances or in unforeseen situations but generally only when the question is one which is capable of being dealt with without much details or difficulty. Disputed questions of law or contested questions of fact, complex rights and titles or questions otherwise of vital importance such as validity of meetings and resolutions, holding of elections and/ or right to vote all fall outside the realm of Section 56A. Moreover, even qua trust property or its income, this section is only an enabling provision. Again, opinion advice or direction is not mandatory if the Court considers the question on which it is sought, to be a question not proper for summary disposal. In such a situation, opinion, advice or direction is not to be given merely because it is asked for. Care and caution is the crux. In a given case, refusal would be perfectly within the competence of the Court. Proceedings under Section 56A are after all of a summary nature. The non-binding character thereof, want of finality thereto and absence of any appeal therefrom are further pointers inter alia to this summary character.

4. Now, in this light, reverting to the application herein, what is the position? One finds that not a single direction is sought on management or administration of the trust property or income thereof. The questions on which directions are sought do not in the least pertain to either the trust property or its income. Questions concerned are all wide off the mark. They fall singularly outside and are totally de-hors the legitimate scope of Section 56A of the Act. The plain words of the section, literally construed, dearly indicate and postulate that the legislature did not intend questions supra to be covered thereunder. To none the less issue directions thereon in the supposed exercise of power and jurisdiction under Section 56A would amount or be akin to rewriting the section with consequences resulting in a dismal subversion of the said provision. In these circumstances, the application in question was liable to be dismissed in limine as not maintainable. It constitutes a misconceived remedy.

5. At this stage, my attention is invited to the fact that the present petitioner's Regular Civil Suit No. 215 of 1976 relating to this very trust and involving inter alia questions relating to elections, rights of members and voters is still pending for the last many years, and that the public trust in question is presently administered by a Board of Trustees appointed by the Charity Commissioner, which arrangement, in the very nature of things, is of a temporary character only till such time as an elected body takes charge. In the circumstances, request for early hearing of the aforesaid suit is justified. Hence direction below accordingly.

6. In the result, this petition succeeds. The impugned order is set aside and Miscellaneous Civil Application No. 8 of 1978 is dismissed as not maintainable. Rule earlier issued is made absolute but in the circumstances with no order as to costs.

7. The Court of the Civil Judge, Junior Division, Amalner, is, however, directed to hear and decide Regular Civil Suit No. 215 of 1976 expeditiously and in any event by 31st March 1980.

8. Writ to be sent down immediately.

9. Petition allowed.


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