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Shah Jagmohandas Purshottamdas and anr. Vs. Jamnadas Vrajlal Gandhi and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 347 and 349 of 1962
Judge
Reported inAIR1965Guj181; (1965)0GLR49
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(3), 3, 92 and 115; Bombay Public Trusts Act, 1950 - Sections 56-A and 56-B
AppellantShah Jagmohandas Purshottamdas and anr.
RespondentJamnadas Vrajlal Gandhi and ors.
Appellant Advocate A.D. Desai, Adv. and; B.R. Sompura, Asst. Govt. Pleader
Respondent Advocate I.M. Nanavati,; G.T. Nanavati and; A.D. Desai, Advs.
Cases ReferredBaburao v. Harihararao
Excerpt:
(i) trusts and societies - revisional jurisdiction - sections 2 (3), 3, 92 and 115 of code of civil procedure, 1908 and section 56-a and 56-b of bombay public trusts act, 1950 - whether order of district judge subject to revisional jurisdiction of high court - district court referred in clause 7 of scheme was acting as court of law and not not as persona designata - order subject to revisional jurisdiction of high court - held, high court entitled to entertain revision application against order of district judge rejecting application for removal of trustees. (ii) notice - whether petitioners prejudiced by non-compliance of section 56b - notice under section 56b intends to inform charity commissioner that question affecting public religious or charitable purpose was involved in legal.....(1) there is in the town of dakore an ancient temple of shri ranchhod raiji which has since hundreds of years attracted large number of devotees from all over india and become a place of pilgrimage and worship for hindus of all sects and denominations. towards the end of the last century disputes arose as to management of the temple and at last two suits were brought in respect of the management, in one of the suits, a scheme for management of the temple was framed by the district court of ahmedabad which was the court then having s2 over the town of dakore and on appeals being brought to the high court of bombay, the high court made substantial modifications in the scheme as framed by the district court and sanctioned the scheme so modified. it is rather important to note that in the.....
Judgment:

(1) There is in the town of Dakore an ancient temple of Shri Ranchhod Raiji which has since hundreds of years attracted large number of devotees from all over India and become a place of pilgrimage and worship for Hindus of all sects and denominations. Towards the end of the last century disputes arose as to management of the temple and at last two suits were brought in respect of the management, In one of the suits, a Scheme for management of the temple was framed by the District Court of Ahmedabad which was the Court then having s2 over the town of Dakore and on appeals being brought to the High Court of Bombay, the High Court made substantial modifications in the Scheme as framed by the District Court and sanctioned the Scheme so modified. It is rather important to note that in the Scheme a originally framed there were various functions assigned to the District Court of Ahmedabad but when the Scheme was modified by the High Court a department was made in that reference as to the District Judge of Ahmedabad were deleted and instead in relation to some of the functions under the modified Scheme, the District Court of Ahmedabad was substituted for the District Judge of Ahmedabad. What significance must attach to this change of expression is a matter which I shall discuss a little later; but suffice it to state for the present that while modifying the Scheme, the High Court made a change and used the expression 'District Court of Ahmedabad' in substitution of the expression 'District Judge of Ahmedabad' which was used in the Scheme as originally framed by the District Court. From the decision of the High Court, the matter was carried in appeal to the Judicial Committee of the Privy Council; but the Judicial Committee of the Privy Council refused to interfere with the Scheme as sanctioned by the High Court and affirmed the Scheme subject to a few minor modifications which were suggested by Their Lordships of the Judicial Committee and which were assented to by counsel for the respondents.

(2) The Scheme as finally sanctioned by the Judicial Committee of the Privy Council provided for the administration of the properties of the temple to be carries on by a Trust Committee called 'The Dakore Temple Committee'. The Committee was to consist of five members all of whom were required to be Hindus professing faith in Shri Ranchhod Raiji. The first five members of the Committee were appointed by the Clause 3 of the Scheme while the future constitution of the Committee was provided by in Clauses 4,5,6, and 7 which were in the following terms.

'4. The future members of the Committee shall be selected or nominated, as the case may be, in the manner specified below:

1. Three member shall be selected by the District Court of Ahmedabad.

2. The fourth member shall be such male member of the Tambekar family a is, for the time being, the manager of the Swasthan property, or, a representative from the Tambekar family, provided that if the manager for the time being be under disability, then the 4th member shall be such person as the District Court shall appoint to act on his behalf during the disability under the Swasthan Scheme.

3. The fifth member shall be a nominee of the Sevak, subject to the qualification contained in clause 6.

5. All the members of the Committee shall retire at the end of five years from the date of this Scheme, but they shall be eligible for re-appointment, subject to the qualification contained in Clause 6 as regards the nominee of the Sevaks. The terms of membership shall thence forward before life, except in the case of any one appointed by the District Court to act during disability as aforesaid.

6. The nominee of the Sevaks shall be entitled to be on the Committee for the first five years. At the end of this terms, the District Court of Ahmedabad shall determine whether the representation of Sevaks should be further continued, or, whether some other arrangement should be made for keeping up the number of the members to five. If the District Court of Ahmedabad decides in favour of the representation, the nominee of the Sevaks shall be appointed on the Committee for life.

7.Any member of the Committee shall, on good cause shown, be liable to be removed by the District Court of Ahmedabad. Any vacancy occurring in this or in any other manner shall be file up by the District Court of Ahmedabad subject to the reservation mentioned below:

When the Tambekar member vacates his seat, his place will be occupied by another representative from the Tambekar family subject to the proviso 4 in Clause 4.

When the nominee of the Sevaks vacates his seat, his place will (subject to the reservation contained in Clause 6) be occupied by another nominee of the Sevaks'.

Clause 12 of the Scheme enumerated the powers of the Committee and sub- clauses (7) and (16) of Clause 12which are material for the purpose of the present Revision Applications provided that the Committee shall have power:

'(7). To have all the rules framed by them sanctioned by the District Court of Ahmedabad to the intent the rule, when sanctioned shall have the same force of as if they were part of this Scheme'.

'(16). To sell any immovable property belonging to the Temple after obtaining sanction therefor from the District Court of Ahemedbad '. Liberty to apply for alteration, modification or addition in resect of the Scheme was also reserved under Clause 20 which declared that '.

'20. The provisions of the Scheme may be altered modified, or added to by an application to His Majesty's High Court of Judicature at Bombay'.

Ever since the Scheme was finally sanctioned by the Judicial Committee of the Privy Council, the affairs of the Temple have been carried on in accordance with the provisions of the Scheme.

(3) Before I proceed with the narration of the history leading up to the present dispute, I may mention an event in that history - an event on which nothing turns - that though at the date when the Scheme was finally sanctioned by the Judicial Committee of the Privy Council, the town of Dakore was within the jurisdiction of the District Court of Ahemedabad, the District Court of Ahemedabad ceased to have jurisdiction over the town of the Dakore so, me few years later since the territories now forming part of the district of Kaira - which territories comprise the town of Dakore - were taken out of the District of Ahemedabad and constituted into the District of Kaira with its own District Court so that the District Court of Kaira acquired jurisdiction over the town of Dakore. Corresponding to this change, a modification was made in the Scheme substituting the words 'District Court of Ahemedabad' by the words 'District Court of Kaira'. The rest of the Scheme, however, remained unaltered.

(4) Prior to his death which occurred on or about 4th July 1961,Shri Parshottamdas Thaskore a leading citizen of Bombay well known for his piety and philanthropy, was a member of the Committee having been appointed as such by the District Court under clause 7 of the scheme. On his death a vacancy occurred which required to be filled up and the Committee, therefore, passed a resolution on 23rdJuly 1961 authorising the chairman to be appointed a manner of the Committee so that his name could be recommended to the District Court for appointment. Another resolution was also passed by the Committee on the same day to the effect that if Shri Ramanilal G. Saraiyaa was unwilling to be appointed, the Chairman be authorised to recommend the name of either Shri Chatrabhujdas Chimanlal or Shri Navntilal Ranchhoddas to the District Court. It appears that Shri Ramanlal G.Saraiya was, thereafter contacted by the Chairman but he expressed his unwillingness to be nominated a member of the Committee. The Committee thereupon passed another resolution on 13th August 1961, the purport of which was that since Shri. Ramanlal G. Saraiya had declined to be a member, the name of Shri Navanitlal Ranchhoddas be mentioned to the District Court for appointment as a member of the Committee to the District Court for appointment as a member of the Committee. Pursuant to this resolution opponent No. 1 who is the Manager of the Temple, filed an application being Civil Miscellaneous Application No. 50 of 1961 in District Court of Kaira at Nadiad for appointment of the Committee in the vacancy caused by the death of Parshottamdas Thakoredas. The application was admittedly made under Clause 7 of the Scheme. On the application public notices were issued by the District Court and s a result of the public notice various persons including certain Sevaks appeared either to support or to oppose the appointment of Shri Navnitlal Ranchhoddas as a member of the Committee. The petitioners, one of whom is a Sevak, opposed the appointment and contended that instead of Shri Navnitlal Ranchhoddas, Shrimati Sumatiben Morarji should be appointed to fill the vacany for reasons set out in their written statement. This suggestion was however opposed by opponents Nos. 1 and 6 to 8, who maintained that Shri Navnitlal Ranchhdoss and not Shrimati Sumatiben Morarji should be appointed as a member of the Committee. The application was heard on two or three different occasions and on the last date of the hearing, an application was made on behalf of petitioner No.1that the Charity Commissioner was a necessary party to the proceeding under the provisions of the Bombay Public Trusts Act (29) of 1950, and that the Charity Commissioner should, therefore, be joined in the proceedings or at any rate notice of the proceeding should be served on him. The learned District Judge, however, rejected the application and after hearing the parties on merits, made an order appointing Shri Navnitlal Ranchhddoss as a member of the Committee to fill the vacancy caused by the death of Shri Parshotttamdas Thakordas. The petitioners being aggrieved by the order appointing Shri Navnitlal Raanchhdoss in preference to Shrimati Sumatiben Morarji as a member of the Committee preferred Revision Application No. 347 of 1962 in this Court. The Charity Commissioner also preferred Revision Application No. 349 of 1962 complaining of the making of the order without notice to him.

(5) At the outset, Mr. I.M.Nanavati, learned advocate appearing on behalf of opponents Nos. 1 and 5 to 8, raised a preliminary objection to the maintainability of the Revision Application and since the preliminary objection, if well founded, would be fatal to the Revision Application rendering it unnecessary to give any decision on the merits. I heard the parties on the preliminary objection which is no being disposed of by the judgment. The preliminary objection was founded on the well-known distinction between a Court acting as a Court of law and a presiding Officer of a Court acting as a person designata. Mr.I.M.Nanavati contended that the power conferred on the District Court to appoint a member of the Committee not on the District Court as a court of Law but on the presiding of the District Court namely, District Judge, a persona designata and that the District Judge in making an appointment of a member of the Committee, therefore, acted as a persona designata and not as a Court of Law so as to attract the revisional jurisdiction of the High Court. the conclusion which Mr.I.M.Nanavati pressed for my acceptance following this line of reasoning was that the District Judge having and not as a Court of Law, no Revision Application could be lie against such order under Section 115 of the Code of Civil Procedure and that the Revision Applications preferred by the petitioners and the Charity Commissioner were, therefore, not maintainable. Mr. A.D. Desai, however, resisted this conclusion and contended that the power to a point a member of the Committee was conferred in terms clear and explicit on the 'District Court' and the 'District Court' could mean only the District Court as a court of law and not the District Judge acting as a persona designata. Mr. A.D.Desai pointed out that there might have been some scope for doubt or equivocation if the Judge had been having been conferred in clear and unambiguous language on the District Court and not on the District Judge, it was clear that it was the District Court as a Court of law and not the District Court as a Court of Law and not the District Judge as a persona designata who was entrusted with the exercise of the power. The District Court making the appointment of Shri Navnitlal Ranchhdoss, therefore, argued Mr.A.D.Desai, acted a Court of law and no as a persona designata and the order of the District Court was, therefore, subject to the revisional jurisdiction of the High Court. These were broadly the rival contentions of the parties on the preliminary objection and they raised a question of some importance - possibly bearing in some measure also on the merits of the dispute - which I shall now proceed to answer. Before, however, I do so, I must mention that the argument advanced on behalf of Opponents Nos. 1 and 5 to 8nby Mr. I.M.Nanavati was a very able and careful argument but for which I shall presently state, it must fall to carry conviction.

(6) It was common ground between the parties and having regard to the long line of decisions commencing from Lambodar Dhonddeo v. Dharanidhar, 28 Bom LR 64: (AIR 1946 Bom Borough, Jalgoan 47,Bom LR 851: (AIR 1946 Bom 64) it could not be otherwise - that if in making an appointment of a member of the Committee the District Judge acted not as a court of law but as a persona designata, no revision application could lie against hiss order. The main controversy between the parties, therefore, centered round the question whether on a true construction of the various provisions of the Scheme, the power to appoint a member of the committee was vested in the District Court as a Court of Law or was vested in the presiding officer of the District Court, namely the District Judge, as a persona designata.

(7) The question primarily turns on the interpretation to be put on the Clause 7 for it is in this Clause that the power to appoint a member of the Committee is to be found. Clause 7 provide that any member of the committee shall, on good cause shown, be liable to be removed by the District Court of Kaira and any vacancy occurring in this or any other manner shall be filled up by the District Court of Kaira subject to certain reservation with which I am not concerned in this Revision Application. The power to appoint as also to remove a member of the committee is thus conferred on the District Court of Kaira. The question is what in its proper context does the expression 'District Court' signify? Does it mean the District Court as a Court of Law or does it mean the presiding officer of the District Court as a persona designata? If the expression used were District Judge, there might not have been much difficulty in taking the view that the reference to the District Judge was as a persona designata - as an officer described by his official designation - and not as constituting the Court though even in such a case the manner would not have been free from doubt and there might have been considerable debate on it. But the expression used is 'District Court' and not 'District Judge'. The clause in terms clear and explicit entrusts the exercise of the power to appoint or remove a member of the committee to the District Court and not the District Judge and reading the clause in its natural and ordinary sense it is clear that the 'District Court' referred to in the clause must mean the District Court as a court of Law and not the presiding officer of District Court, namely the District Judge as a persona designata. There is well-known principal of interoperation which also guides me to the same conclusion and it is that the Legislature uses words which have well recognized legal meanings, it must be assumed that the words are used in the sense which they bear according toe the well - recognised meaning and that it always requires the strong compulsion of other words in a statute to induce the Court to alter the well-known the meaning of a legal term. The principle though enunciated in regard to construction of statutes is equally applicable in a case of construction of provision of a Scheme, since after all principles of interpretation are merely guide to enable the court to collect the intention of the author of the instrument whether the author be the Legislature which made the enactment or the Court which framed the scheme. Now it cannot disputed -- and this clearly borne out by a reference to provisions of Secs. 2(4) and 3 of the Code of Civil Procedure and Secs, 5, 7, and 8 of the Bombay Civil Courts Act, 1869-that according to legal terminology there is a well- recognised distinction between a 'District Court' and a 'District Judge'; the District Court is the principal Court of original civil jurisdiction in the district which hears the appeals from all decrees and orders passed by the subordinate Courts and which is in its turn subordinate to the High Court and subject to the revisional jurisdiction of the High Court while the District Judge is the Judge who presides over the District Court. It must therefore be presumed that when the High Court sanctioned the Scheme and provided that the power to appoint or remove a member of the Committee shall vested in the District Court, the High Court used the expression 'District Court' according to its well-0recognised legal meaning and mean the principle civil court of original jurisdiction in the District which was subordinate to the High Court and subject to its jurisdiction and not the District Judge presiding over such court. If the mater of appointment and removal of members of the Committee to the presiding officer of the District Court a persona designata, the High Court would have certainly used the more apt expression namely, 'District Judge'. In this connection I might also refer to another rule of construction equally well-settled namely, that if the appears that there are two expressions which might have been used to convey a certain intention, but one of these expressions will convey that intention more clearly than the other, it is proper to conclude that if the Legislature uses that one of the two expressions which would convey the intention less clearly, it does not intend to convey that intention at all and in that event it becomes necessary to discover what intention it did intend to convey., this rule of construction also leads to same conclusion. Even if it be assumed that both the expressions 'District Court' and 'District Judge' are used to convey the intention that the power to appoint or remove members of the Committee should be vested in the District Judge as a persona designata, the expression 'District Judge' would convey that intention more clearly than the expression 'District Court' and it would, therefore, be legitimate to hold that since the High Court used the expression 'District Court' which would convey the intention less clearly, the High Court did not intend to convey that intention at all and the intention of High Court was to vest the power not in the District Judge as a persona designata but in the District Court as a Court of Law. This argument of course proceeds on the assumption that the intention to vest the power in the District Judge as a persona designata could be conveyed by the use of the expression 'District Court'. But, I have pointed out the above, in my opinion, the expression 'District Court' as used by the High Court can only mean the District Court as a Court of Law and not the District Judge as a persona designata.

(8) There is also another consideration which must weigh me in reaching the same conclusion. It is reasonable to presume that the same meaning is implied by the use of the same expression in every part of a document. Accordingly in ascertaining the meaning to be attached to a particular word in a clause of the document, though the proper course would be to ascertain that meaning, if possible, from a consideration of the clause itself, yet if the meaning cannot be so ascertained, other clauses may be looked at to fix the sense which the word is there used. I may, therefore, profitably consider what is the sense in which the expression 'District Court' is used in the other clauses of the Scheme for if that expression is used in the other clauses of the Scheme to mean the District Court as a Court of Law, then it must be a fair presumption to make that that. expression when used in clause 7 has been used in the same sense. Now examining the provisions of the Scheme, I find that apart from clause 7 the expression 'District Court' has been used in Cls.4, 5 and6 and sub-clauses (7) and (16) of Clause 12. The use of the expression 'District Court' in Clauses 4 and 5 does not throw any light on the question whether that expression has been used to mean the District Court as a Court of Law or the presiding officer of the District Court, namely, the District Judge as a persona designata. But light is thrown by the provision contained in Clause 6. Clause 6 provides that the nominee of the Sevaks shall be entitled to be on the Committee for the first five years and at the end of the term, the District Court shall determine whether the representation of the Sevaks should be further continued, or whether some other arrangement should be made for keeping up the number of the members to five. The nature of this provisions clearly shows that the District Court referred to in this Clause is the District Court acting as a Court of Law and not the District Judge as a persona designata. This clause in effect and substance empowers the District Court to consider at the end of the first five years whether the Scheme should continue as it is or should be modified in so far as the representation of the Sevaks on the Committee is concerned. If the District Court determines that the re presentation of the Sevaks should be further continued, the scheme would continue without any modification or change. But if the District Court determines that the representation of the Sevaks should not be continued but that some other arrangement should be made for keeping the number of members to five, the District Court would modify the Scheme by incorporating such arrangement. This function clearly could not be entrusted to the District Judge a persona designata for it involved the power to modify the Scheme which could be done by a Court of Law. Mr.I.M.Nanavati when faced with this clause had to concede that the District Court in this clause must mean the District Court a Court of Law and not the District Judge as a persona designata. The same is the position in regard to the provision contained in sub- clause (16) of clause 12 which empowers the Committee to sell any immovable belonging to the Temple after obtaining sanction therefor from the District Court. Obviously he District Court granting sanction to the Committee to sell any immovable property belonging to the Temple would act as a Court of Law and not as a persona designata. It is difficult to conceive how any power to grant sanction to the Committee to sell any immovable property belonging to the temple could be conferred on any individual as a persona designata. This position also could not be disputed by Mr.I.M.Nanavati. it, therefore follows that at least in two of the provisions contained in the Scheme, namely, Clause 6 and sub-clause (16) of Clause 12, the District Court referred to is the District Court as a court of law and not the District Judge as persona designata. Now if the 'District Court' inclause 6 and sub-clause (16) of Clause 12 means the District Court acting a court of Law, it is apparent that the District Court in clause 7 must also mean he same thing. Alike in clause 7 as in cl.6 and sub-clause (16) of Clause 12,m the District Court would exercise its powers as a Court of Law and not merely 'as a persona designata whose determination are not to he treated a judgments of a legal tribunal'. This is the only conclusion which ca n be arrived at in conformity with the principles set out at the commencement of this paragraph, The argument that though the District Court referred to in Clause 6 and sub-clause (16) of Cl.12 means the District Court acting as a Court of Law, yet the District Court in Clause 7 must mean the presiding officer of District Court, namely, the District Judge acting as a persona designata would offend against those principles and such an argument cannot be accepted.

(9) There is, as I have pointed out above, no vagueness or ambiguity in the expression 'District Court' as used in clause 7 and it can mean only the District Court acting as a Court of Law and not the District Judge acting as a persona designata. But even if two interpretations were possible, it is clear that the High Court in using this expression intended to refer to the District Court as a Court of Law and not to the District Judge as a persona designata. It is well-settled law that where the words used are susceptible of more than one meaning, extrinsic evidence is admissible to show what was intended to be conveyed by those words. When the Scheme was originally framed by the District Court, various functions under the Scheme were assigned to the District Judge. The references in the Scheme in relation to those functions were to the District Judge and not to the District Court. When, however, the appeals from the judgment of the District Court came before the High Court, it was agreed on all hands that the Scheme as framed by the District Court was not satisfactory and so it arranged as a first step towards arriving at a workable Scheme that a draft should, as far as possible, be settled by the pleaders representing the several litigants before the High Court and Mr. Ratanlal, who represented the Advocate General was accordingly requested to draft a Scheme in consultation with the other pleaders in the case, so as to secure the largest measure of agreement between the parties. Mr.Ratanlal accordingly drafted a Scheme in consultation with the other advocates appearing in the appeals and the Scheme so drafted was placed before the High Court for its consideration when the appeals next came up for hearing. it was found that the main points of difference had been reduced to three and the parties were heard on those points of difference and the Scheme as framed by Mr.Ratanlal was ultimately sanctioned by High Court with certain modifications. In the Scheme as sanctioned by the High Court the reference to the District Judge were deleted and certain functions under the Scheme were entrusted not to the District Judge but to the District Court. The High Court thus made a departure from the language used in the Scheme as originally framed by the District Court and instead of assigned any functions to the District Judge as was done in the original Scheme, vested certain powers in the District Court. When the High Court departed from the language used by the District Court in the Scheme as originally framed and changed the expression from 'District Judge ' into 'District Court ' it would be a fair presumption to make that alteration in the language was intentional. Had it been the intention of the High Court that the powers should vested in the District Judge as a persona designata the High Court would have certainly retained the expression 'District Judge ' as appearing in the Scheme as originally framed by District Court. There was no reason for the High Court to make any change in expression unless the intention was that the powers under the modified Scheme should be vested not in the District Judge as a persona designata but in the District Court as a Court of Law. That is the only assumption on which the change of language can be explained. To say that the language was change by the High Court without meaning to bring about a different result would be to attribute to High Court inattentiveness and slovenliness which would hardly be expected in Judge presiding over the High Court. I am, therefore, of the opinion that this is also a circumstance which clearly indicates that it was the District Court acting as a Court of Law and not the presiding officer of the District Court, namely the District Judge as a persona designata that the powers under various provisions of the Scheme including Clause 7 thereof were entrusted by the Scheme.

(10) Before I proceed to discuss the various authorities which were cited before me, I may mention one other contention of Mr. I.M.Nanavati which appeared to receive some support from the judgment of Tyabji J. in Mahadev v. Govind rao 38 Bom LR 1137: (AIR 1937 Bom 124). The contention was that no power could be conferred on the District Court of Law except by the Legislature which alone could en large or diminish the jurisdiction of the District Court and that no provision of the Scheme could, therefore, be construed as vesting any power in the District Court as a Court of Law for such vesting of power belonged properly to the Legislature and not to the Court framing the Scheme. When the Court framing the Scheme conferred any power on the District Court, argued Mr. I.M.Nanavati, the intention could only be to confer such power on the District Judge as a persona designata, for any other view, would involve the assumption of a power in the Court framing the Scheme to enlarge the existing jurisdiction of the District Court as a Court of Law which power manifestly pertains to the Legislature and not to the Court. Mr.I.M.Nanavati, therefore, urged following this line of reasoning that the only view which the Court could take consistently with the legal position was that the power was conferred on the presiding officer of the District Court as a persona designata and not the District Court as a Court of Law. This contention of Mr. I.M.Nanavati, though at first blush attractive and plausible, is on a close analysis defective in that ignores various material and relevant considerations which must weigh with the Court in determining the importance question. It is no doubt true - and this proposition was not disputed - that the Legislature alone can enlarge or diminish the existing jurisdiction of the District Court as a Court of Law and that it is not competent to the Court framing a Scheme to make any provision affecting the jurisdiction of the District Court but this proposition does not lead to the conclusion for by Mr. I.M.Nanavati. And the reason is obvious. When the Court framing a Scheme for the administration of Charity makes provision for the administration of the charity whether permanently or for a short period, various functions may have to be discharged in the course of administration of the charity and sometimes, therefore, some of these functions may be entrusted to the presiding officer of a Court as a persona designata because the Court framing the Scheme feels that by reason of the judicial office occupied by such person and the confidence which such person enjoys from the public, such person would be best fitted to discharge such functions. Such functions, it may be noted may be entrusted equally to any other high officer of the State or any other person enjoying public confidence. But that is not necessarily the only manner in which provision can be made for discharge of various functions which may arise in the course of administration. The Court framing the scheme may very well provide that in relation to some of the matters, for which provision by its very nature cannot be made at the time when the Scheme is framed, directions can be obtained by approaching the Court. Take for example the matter relating to appointment of trustees in vacancies which may be caused from time to time. The Court framing the Scheme can in such a case either leave the matter of appointment of trustees to a persona designata or may provide that the Court itself would have the power of to appoint trustees suo motto or an application made in that behalf by any person interested in the charity. There may also arise occasions when it is necessary to remove trustees and in such a matter also the Court while framing a Scheme can provide that a persona designata shall be entitled to remove the trustees or that the Court shall be entitled to remove the trustees on sufficient cause shown. It would thus be seen that the Court framing the Scheme which admittedly acts as a Court of Law at the time of framing the Scheme-may instead of making a provision for appointment or removal of trustees for all time to time to come may serve to itself the power to appoint or remove trustees as and when occasion may arise. When pursuant to such a power the court is approached for the purpose of appointing or removing trustees, the Court certainly acts as a persona designata. Same would be the position in case off other matters relating to the administration of the charity. It would thus appear that when the Court framing the Scheme reserves to itself any power in regard to the matter arising in the course of the administration of the charity or for the purpose of effectively administering the charity, there is no enlargement of its judicial power by the provision reserving such power. If the District Court frames a scheme the District Court can on this reasoning reserve to itself the power to appoint or remove trustees or to do any other act in relation the administration of the charity as a part of the Scheme. The District Court would under the code of Civil Procedure be in the original Court in regard to the framing of Schemes and if the District Court re serves to itself any of these powers, it cannot be contended that in exercising such power as and when occasion arises, the District Court is acting otherwise as a Court of Law. But the District Court being an original Court an appeal would lie to the High Court from the Scheme framed by the District Court. The High Court in the existence of its appellate jurisdiction may affirm the Scheme or reject the Scheme or modifications in the scheme. Just as the District Court could reserve to itself powers in relation to various matters in the administration of the charity, the High Court also can reserve such power either to itself or to the District Court whose decree the appeal is brought before it. When the High Court reserves such powers to itself, it is clear that here is no enlargement of the jurisdiction of the High Court as a result of the jurisdiction of the High Court as a result of the decree passed by it. Equally there is no enlargement of the jurisdiction of the District Court when the High Court reserves such powers to the District Court. The District Court or the High Court in appeal may thus provide that provide in relation to certain matters which may arise in the course of administration of the charity may be reserved to the District Court and if such a provision is made, it is in my opinion, impossible to contend that there is any enlargement of the jurisdiction of the District Court. All that happens is that the District Court which is the original Court framing the Scheme is empowered to important the Scheme is empowered to implement the scheme or to work out the Scheme as and when occasion arises. The power to appoint or remove trustees or any other similar power in relation to matters concerning the administration of the charity is in noway different from the power which is to be found in various Schemes empowering the District Court to alter, modify or add to the Scheme. If power can be conferred on the District Court as a Court of law to later or add to a Scheme, I do not see why on a party of reasoning power cannot be conferred on the District Court as a Court of Law to appoint or remove trustees or to act in any manner in relation to the administration of the charity under the Scheme. As a mater of fact I find the power to remove trustees was treated as alike to the power to alter, modify or add to a Scheme by a decision of a Division Bench of the High Court of Bombay consisting of Patkar and Broomfield JJ. in Chandraprasan v. Jinabharti, 33 Bom LR 520 : (AIR 1931 Bom 391). In both the cases there is really no conferment of fresh power but merely reservation of existing power. Instead of making a provision for the administration of the charity for all time to time to come - which by its very nature may be impossible or at any rate imprudent - the court reserves to itself the power as a part of the Scheme to provide for contingencies which may arise from time to time in the course of the administration of the charity. There is, therefore, in my opinion, no substance in the argument that if Clause 7 be construed as conferring a power on the District Court as a Court of Law, such construction would have the effect of enlarging the jurisdiction of the District Court as a Court of Law which it would not be open to the High Court to do by a decree framing the Scheme. This argument, as I have pointed out above, proceeds upon a misconception of the true nature and character of the provision made in the scheme of course the judgment of Tyabji J., in 38 Bom LR 1137: (AIR 1937 Bom 124) (supra) support this argument. But for the reasons mentioned above I cannot regard this decision as laying down the correct law, Now ordinarily a decision of a single Judge of the High Court of Bombay would be binding on me having regard to the decision of a Full Bench of this Court in State of Gujarat v. Gordhandas Keshavji : AIR1962Guj128 but it is open to me to disregard this decision of Tyabji J., since it is a decision rendered by Tyabji J., sitting as a member of a Division Bench along with Broomfield J., and in his judgment did not accept or even refer to this line of reasoning adopted by Tyabji J., therefore, reject the contention of I.M.Nanaavati J., that power under Clause 7 was vested in the presiding officer of the District Court as a persona designata and not the Court acting as a Court of Law.

(11) There is one last contention of Mr.I.M.Nanavati which requires to be noted. Mr.I.M.Nanavati contended that the power to appoint or remove trustees by its nature an administrative power and not a judicial power and that such power could not, therefore, be conferred on the District Court as a Court of law but must be regarded as conferred on the presiding officer of the District Court as a persona designata. This contention of Mr.I.M.Nanavati was constrained to put forward in order to escape from the consequences of the argument that if the District Court in Clause 6 and sub-clause (16) of Clause 12 meant the District Court acting as a Court of law, the District Court in Clause 7 must also mean the District Court acting as a Court of law. Mr.I.M.Nanavati sought refuge in the contention that the power conferred under clause 6 as well as sub-clause (16) of Clause 12 was a judicial power and that the reference to District Court in those clauses could, therefore, be regarded as references to the District Court acting as a Court of law but that the power and not a judicial power, no such conclusion followed in regard to this latter clause. This contention of Mr.I.M.Nanavati is, however, in my opinion, unsustainable and cannot provide any answer to the contention based on the analogy of Clause 6 and sub-clause (16) of Cl.12 in the first place the power to remove a member of the Committee on good cause shown is clearly a judicial power and in support of the proposition I cannot do better than quote the high authority of the Judicial Committee of the Privy Council in Balakrishna Udayar v. Vasudeva Udayar, 44 Ind App 261: (AIR 1917 PC 71) where Lord Atkinson delivering th4 judgment of the Judicial Committee observed in relation to a Section of the Madras Religious Endowments Act, 1863, providing for removal of a member of a Committee of Management :

'Section 9 provides that every member of a committee under Secs. 7 and 8 shall hold office for life unless removed for misconduct or unfitness, and no such member shall be removed except by order of the Civil Court. Surely in such a question a the removal of an officer from his office for misconduct or unfitness, the Court which makes the order removing him is exercising judicial functions?'

But apart altogether from this answer, there is another anger which is equally fatal to the contention of Mr.I.M.Nanavati and that answer is provided by the very terms of Sec. 92 of the Code of Civil Proocedure. That section provides that in the circumstances specified there, a suit can be filed in the principal Civil Court of original jurisdiction to obtain a decree removing any trustee or appointing a new trustee. The function of appointing and removing trustees is thus a judicial function properly exercisable by a Court of law. It is, therefore, futile on the part of Mr.I.M.Nanavati to contend that because the power to appoint or remove trustees is an administrative power and not a judicial power, the reference to the District Court in Clause 7 must be regarded as reference to the presiding officer of the District Court as a persona designata and not to the District Court as a Court of Law. This contention of Mr.I.M.Nanavati also suffers from a further defect in that it overlooks the fact that the appointment or removal of trustees is to be made by the District Court under Clause 7 in implementation of the Scheme and for the purpose of giving effect to it and that it is, therefore, entirely irrelevant to consider what is the nature or character of the function to be discharged by the District Court in appointing or removing members of the Committee.

(12) Turning to the decisions, the first decision on which Mr.I.M.Nanavati relied was the decision of the Privy Council in Sevak Jeranchod v. Dakore Temple Committee . That was a case which related to the same Scheme which is now before me. What happened in that case was that under sub-clause (7) of Clause 12 the Committee framed a body of rules which came before Mr.B.C.Kennedy, as the District Judge of Ahmedabad for the sanction of his Court. The learned District Judge made certain alterations in the rules and, as altered by him, sanctioned the rules. Certain members of the Trawadi Mewada Brahmin caste who had exercised certain rights in the temple or were otherwise interested in the management of the temple, presented to the High Court an application under Cl.20 of the learned District Judge. Appeals were also filed to the High Court against the order passed by the learned District Judge sanctioning the rules. The appeals were entertained by the High Court on the basis of that the order passed by the learned District Judge sanctioning the rules was an order in execution under Section 47 of the Code of Civil Procedure and therefore applicable as a decree. The High Court in fact entertained some doubts whether the appeals lay but decided to deal with them as appeals as no objection was taken and in that view of the mater did not to into the application for modification of the Scheme preferred under clause 20. On the matter being carried to the Privy Council held that the appeals did not lie since the order of the District Judge could not be regarded as an order in execution under Section 47 and the appeals being thus not maintainable, the Privy Council took the view that the judgment of the High Court was incompetent and it was accordingly set aside. In the course of his judgment Sir. John Edge delivering th4judgment of the Privy Council made the following observation which were strongly relied on by Mr.I.M.anavati:

'......The High Court at Bombay had power conferred upon it by Clause 20 of the Scheme conferred by His Majesty's Order in Council upon an application made to it with that object to alter, modify or add to the rules sanctioned by the District Judge, but it has no other power, and that power it did not exercise; it may, however, still be exercised upon application properly made to it'. Mr.I.M.Nanavati contended that it was clear from the aforesaid observations that according to the Privy Council the only power which the High Court had was under Clause 20 of the Scheme and that it had no other power which would mean, according to Mr.I.M.Nanavati, that it had also no revisional power. This construction sought to be put by Mr.I.M.Nanavati on the aforesaid observations of the Privy Council is, in my opinion. Not justified. The words 'but it had no other power ' in the context meant only this much namely, that the High Court had no power apart from Clause 20, to alter, modify or add to the rules. Obviously no alteration, modification or addition to the rules could be made by the High Court in revision, for the revisional jurisdiction could be exercised only when a question of jurisdiction was involved and not in all cases where rules were wrongly sanctioned by the District Court. The reference to the revisional jurisdiction would have therefore been inappropriate and merely because no reference to it was made and the opinion was expressed in general terms while dealing with the question whether the High Court has any power to alter, modify or add to the rule, it would not be legitimate to infer that the Privy Council negatiived the existence of a revisional power in the High Court against the order of the District Court under sub-cl (7) of Clause 12, This decision, therefore, does not help Mr.I.M.Nanavati. On the contrary I find that there is an observation in this decision which considerably assists the contention of Mr.A.D.Desai and that observation occurs in the following passage from the judgment:

'The Temple Committee, having been duly appointed framed a body of rules, as the Committee was empowered to do, and those rule came before Mr.B.C.Kennedy, as the District Judge of Ahmedabad, for the sanction of his court and he ......'

The words 'sanction of his court' are very material and clearly show that according to Privy Council the sanction to be obtained was that of the District Court as a court of law and not that of the District Court as a persona designta. If the sanction required was that of the District Judge as a persona designata, the Privy Council which is so careful in the use of language would not have said that rules came before Mr....C.Kennedy, District Judge of Ahmedabad, for the sanction of his court but would have merely observed that those rules came before Mr.B.C.Kennedy District Judge of Ahemdabad, for his sanction. This decisions, therefore, does indicate that the District Court referred to in sub-clause (7) of Clause 12 is the District Court acting as a court of law and not as a persona designata and this in its turn considerably strengthens the conclusion that the District Court in appointing or removing a member of the Committee under Clause 7 acts as a Court of law and not as a persona deisgnata.

(13) The next decision on which reliance was placed by Mr.I.M.Nanavati was that in28 Bom LR 64: (AIR 1926 Bom 167). It was a case relating to Chinchwad Sansthan. Clauses 2,3 and 5 of the Scheme as settled by the High Court of Bombay empowered the District Judge of Poona to appoint a trustee of the Committee of Management. The learned District Judge appointed one of the twelve candidates as a trustee and thereupon three of the disappointed candidates filed appeals in the High Court. An objection was raised to the maintainability of the appeals and the question was also considered where, if no appeal lay, at least a Revision Application could lie against the impugned order. A Division Bench of the High Court consisting of Macleod C. J. and Madgavkar J., took the view that the District Judge appointing a trustee under clauses 2.3 and 5 of the Scheme was acting a persona designata and not as a Court. The application for appointment of a trustee could not, therefore, be treated as an application in execution and if the order of appointment could not be regard as an order in execution, no appeal could lie against it. Equally Section 100 of the Code of Civil Procedure also could not avail the appellants since the District Judge in appointing a trustee was a persona designata and not a Court. For the same reasons no revision application could also lie against an order made by the District Judge appointing a trustee. This conclusion was reached by the Division Bench of the High Court on a consideration of the Scheme. It was pointed out by Macleod C.J., who delivered the judgment of the Division Bench and its various clauses made a distinction between a District Judge and a District Court; for example clause 22 referred to District Court as contrasted with clauses 2,3,4 and5 which referred to District Judge and a reference to the District Judge in clause 2,3,4 and 5 was therefore, to the District Judge as a persona designata and not as a Court of law. This decision was mainly founded on the use of the expression ' District Judge' in Clauses 2,3,4 and5 of the Scheme and a distinction made in the Scheme itself between District Judge and District Court. These two circumstance clearly indicated that the Court framing the scheme was aware of the distinction between District Judge and District Court and employed the expression ' District Judge' when it wanted to refer to the District Judge as a persona designata and otherwise for the purpose of referring to the District Court a Court of Law. The reasoning of this decision can have no application to the present case where th4e expression uniformly used in the Scheme is 'District Court'.

(14) Mr. I.M.Nnavati then relied on another decision of the High Court of Bombay reported in Shridhar v. Ganu, 29 Bom LR 891: (AIR 1927 Bom 422). In that case an appeal was brought from a decision of the District Judge of Ratnagiri under a Scheme holding that the offerings laid before a certain deity should be divided between the Pujaris and the Gurabva in the proportion of six to five. The appeal was held to be incompetent not on the ground that the District Judge acted as a persona designata and not as a Court of Law but on the ground that the order of the District Judge could not be said to be an order in execution under Section 47, following Jeranchod's case and Ranganatha Thatthachariar v. Krishnaswami Thatthachariar, ILR 47 Mad 139: (AAIR 1924 Mad 369) and was therefore, not appealable. The order was attacked not on any legal point but only on merits and since no appeal lay, the appeal was dismissed. No question of jurisdiction was involved and there was, therefore, no occasion to consider whether a Revision Application would lie against the order of the District Judge. If a question of jurisdiction were involved - and not a question of merits - the High Court would have had to consider a revision application lay against the order and in the consideration of that question the High Court would have had to determine whether the District Judge in fixing the proportion acted as a persona designata or as a Court of law. That question, however, did not arise since to use the words of Fawcett J., 'In the present case no legal point arises. The only question is whether the decision of the District Judge is justified on its merits.....'. On the merits it was clear that since no appeal lay. The decision of the District Judge was final - whether the decision of the District Judge as a persona designata or of the District Judge as a Court of Law. This decision, therfore, does not throw any light on the question as to what circumstances a District Judge entrusted with certain functions under a Scheme can be said to be acting as a persona designata or as a Court of law.

(15) The next decision to which my attention was drawn by Mr.I.M.Nanavati was a decision of a Division Bench of the High Court of Bombay consisting of Batchelor and Shah JJ. in Municipality of Belgaum v. Rudrappa, 18 Bom LR 340 : (AIR 1916 Bom 196 (1) ). The question in this case was whether a revision application lay against the decision of the District Court under Clause 3 of Section 160 of the Bombay District Municipalities Act, 1901. Batchelor J., delivering the judgment of the Division Bench held that no revision application lay against the decision of the District Court under Clause 3 of Section 160 on the ground that it had been held by a Division Bench of the High Court in Chunilal Virchand v. Ahmedabad Municipality, 13 Bom LR 958 that no appeal lay against such decision and it would, therefore, be highly anomalous to hold that though no appeal would lie, a revision application would yet lie against such decision. It was pointed to the learned Judge that the expression used in Clause 3 of Section 160 was 'District Court' and not 'District Judge'. But the learned Judge took the view that the distinction between 'District Court' and District Judge' was not sufficient to support the argument that an application for revision was competent although admittedly no appeal would lie. It is a little difficult to appreciate the basis of this decision. The learned Judge it appears was impressed by the argument that if no appeal lies against a decision of the District Court under Clause 3 of Section 160, how can a revision application lie against such a decision. That is an argument which is in my humble opinion a patently erroneous argument. It is when an appeal does not lie that the question arises whether a revision application would lie and it is no argument to say that a revision application cannot lie because an appeal does not lie. It is apparent from the judgment that it was because the learned Judge was considerably impressed by the argument that the decision of the District Court under Clause 3 of Section 160 not being appealable no revision application could lie against such decision, that he came to the conclusion that the mere use of the expression District Court was not sufficient to overweigh the validity of that argument. But if the argument which forms the premise of his decision is incorrect, it is clear that the decision cannot have any persuasive value. I am deliberately using the expression 'persuasive value' for in any event the decision being a decision on Clause 3 of Section 160 of the Bombay Municipalities Act, 1901, it can not be regarded as laying down any rule of law as regards the construction of Clause 7of the Scheme which could be binding on me as an authoritative precedent. This decision cannot, therefore, be invok4d in aid of the argument urged by Mr. I.M.Nanavati on behalf of opponents 1 and 5 to8.

(16) That takes me to the next decision which was relied on by Mr. I.M. Nanavati and that was a decision again of a Division Bench of the High Court of Bombay in Jagmohan v. Venkatesh, 35 Bom LR 89 : (AIR 1933 Bom 105). The Division Bench of the High Court of Bombay held in that a District Judge acting under Section 15 of the Bombay Municipalities Act, 1925, is not a Court but a persona designata and the High Court has, therefore no jurisdiction to revise his order under Section 115 of the Code of Civil Procedure. The argument which was rejected by the High Court in coming to this conclusion was that the making of an application to the District Court whereas under the corresponding Section of the Bombay Municipalities Act, 1901, the application was required to be made to the District Judge and that this change of language while enacting the Bombay city Municipalities Act, 1925, clearly indicated that the District Judge acting under section 15 of the Bombay City Municipalities Act, 1925,was acting as a Court of law. Dealing with this argument Murphy J., delivering the judgment of the Division Bench pointed out that while enacting Section 15 of Bombay City Municipalities Act, 1925, the Legislature had substituted the words 'District Court' for the words 'District Judge' which occurred in the corresponding Section of the Bombay City Municipalities Act, 1901, because of the difficulty experienced in Gangadhar v. Hublie Municipality : AIR1926Bom344 where the application had been presented to the Clerk of the District Court and not to the District Judge personally. The learned Judge observed that though this change of expression was made in sub-section (1) of Section 15, sub-section (2) 15 remained of the same and on a consideration f that sub-section the learned Judge came t the consideration that the District Judge acting under Section 15 was not a Court but a persona designata. This decision does not, in my opinion, help Mr.I.M.Nanavati for the basis of this decision was the provision enacted in sub-section (2) of Section 15. On the contrary this decision suggests that but for the provision enacted in sub-section (2) of Section 15, the High Court would have taken the view relying on the change of the expression 'District Judge' to 'District Court' that the reference in Section 15 was to the District Court as a Court of Law and not to the Judge of the District Court as a persona designata.

(17) The next decision on which Mr.I.M.Nanavati relied was a decision of the Privy Council in Minakshi v. Subramany 11 Bom LR 26 (PC). The question which arose in that case was whether there was a right of appeal against an order made by the District Court under Section 10 of the Madras Religious Endowments Act, 1863. A having occurred on the Committee of the Minakshi Sundraswarar Devasthanam, the District Judge of Madura made an order appointing the appellant to fill up the vacancy. An appeal was presented to the High Court by persons who were either interested as candidates or were in favour of other candidates. The substantial ground of the appeal was that the temple was devoted to the worship of Siva, while the appellant was a Vaishnavite. The High Court entertained the appeal and accepted the ground urged o behalf off the appellants, set aside the order passed by the learned District Judge. The matter was thereupon carried in appeal to the Privy Council and the Privy Council held that neither the Madras Religious Endowments Act, 1863, nor the general law gave any right of appeal against the order of the learned District Judge under section 10 and that there was, therefore, no right of appeal against such order and the High Court had consequently no jurisdiction to hear the appeal. The Privy Council accordingly allowed the appeal; and reversed the judgment of the High Court. Sir Richard Baaggallay delivering the judgment of the Privy Council made certain observations which are strongly relied on by Mr. I.M.Nanavati. those observation are:

'.... In the opinion of their Lordships the tenth section places the right of appointing a member of the Committee in the Civil Court not as a matter of ordinary civil jurisdiction. but because the officer who constitutes the Civil Court is sure to be one of weight and authority, and with the best means of knowing the movements of local o0inion and feelings, and one can hardly imagine a case in which it would be more desirable that the discretion should be exercise by a person acquaintance with the district and with all the surroundings. The exercise of the discretion being so placed in the District Judge th4ir Lordships are unable to find anything in the tenth section which confers a right of appeal'.

'.... Mr.Doyne, in the course of his argument, contended that if a person, very improper and unfit by reason of his religious qualifications or moral conduct, was appointed, there must be a right, either by appeal against the Judge's order, or by suit, or in some other way, to remove the person so appointed. There is force in this argument, but whether a person so improperly appointed could, as has been suggested, be removed by proceedings equivalent to proceedings by quo warranto in England, or whether, upon a full consideration of the merits, the appellant could be considered as a person improperly appointed, are questions upon which their Lordships are not called upon to express an opinion. In their opinion it is clear that there is no appeal from that which was a pure discretion vested in the District Judge.'

Mr. I.M. Nanavati contended that the aforesaid observations clearly showed that the power to appoint a member of the Committee was conferred on the District Judge as a person designata and that this inference was fortified by the absence of any reference to the revisional jurisdiction of the High Court in the judgment of the Privy Council. These observation are undoubtedly susceptible of the interpretation sought to be placed by Mr.I.M.Nanavati, but if regard be had to the fact that no question of considering the revisional jurisdiction of the High Court arose on the facts of the case and the Privy Council was not concerned with the question whether the District Judge acting under Section 10 was a persona designata or a Court of law, it will be immediately apparent that these observations cannot be read as inferentially supporting the contention of Mr.I.M.Nanavati that the Privy Council regarded the District Judge acting under Section 10 as a persona designata. As a matter of fact in a later decision, namely, 44 Ind App 261 : (AIR 1917 PC 71) where the question directly arose whether a revision application lay against an order of the a District Judge under Section 10 was a Court of law and not a persona designata and that a Revision Application, therefore, lay against an order made by him. The Privy Council held on a consideration of the relevant provisions of the Madras Religious Endowments Act, 1863, that it was to the District Court and not to an individual Judge who may preside over or constitute the District Court, that jurisdiction was given under Section 10. The Privy Council examined the other Sections of the Act and observed that if in these Sections the District Court was referred to as a Court of law and not as a persona designata, equally in Section 10 must the District Court be regarded as a Court of Law and not as a persona designata. The Privy Council distinguished the earlier decision in 11 Bom LR 26 (PC) on the ground that in that case no question of jurisdiction was involved. The only question was whether the appellant was unfit for the post by reason of his religious belief. The Privy Council held that the appeal was not maintainable because no right of appeal was conferred by any statute and the appeal was, therefore, dismissed and the order of the High Court was set aside. The Privy Council did not affect to uphold the order of the High Court by reference to its revisional jurisdiction for the conditions for the exercise of the revisional jurisdiction being absent, the revisional jurisdiction did not avail to sustain the validity of the order made by the High Court. That was why the Privy Council referred to proceedings by way of quo warranto and not to revisional proceedings. The decision in 11 Bom LR 26 (PC) cannot, therefore, be regarded as laying down that even though the expression used in Section 10 was Civil Court, the power to appoint a member of the Committee under that Section was considered by the Privy Council to have been referred on an individual Judge who may preside in or constitute the Civil Court as a persona designata and not on the Civil Court as a Court of Law. On the contrary the Privy Council in 44 Ind App 261 : (AIR1917 PC 71) held that the Civil Court acting as a Court of Law and not an individual Judge of the Civil Court as a persona designata. The Privy Council observed in this case that a key to the position of the Civil Court under Section 10 might be found by referring to the position it occupied in the immediately preceding and some of the succeeding Sections of the Act and those Sections clearly showed that the Civil Court there referred to was the Civil Court exercising its power as a Court of Law and not as a persona designata. The same line of reasoning must lead me to the conclusion that in the present case also the District Court referred to in clause 7of the Scheme in the District Court acting as a court of Law and not as a persona designata' whose determinations are not treated as judgments of a legal tribunal'.

(18) The last decision to which reference was made by Mr.I.M.Nanavati was the decision of Wassoodew J., in Baburao v. Harihararao, 41 Bom LR 490 : (AIR 1941 Bom 279). The question which arose in that case was whether an order passed by the District Judge of Sh0lapur was liable to be revised under section 115 of the Code of Civil Procedure. The argument urged before the learned Judge was that the District Judge in making the order was exercising the powers conferred on him under a Scheme and was, therefore, acting as a persona designata and not as a Court of Law. The learned Judge, however, rejected this argument and held that the District Judge had no place whatever in the Scheme and that his authority to make the order was not derived from the Scheme and that he must, therefore, be regarded as having acted as a Court of Law in making the order so as to be subjects to the revisional jurisdiction of the High Court. If the powers sought to be exercised by the District Judge in making the order had been conferred on him under the Scheme - if his authority to make the order had been derived from the Scheme-the question would have arisen whether the powers has been conferred on him as a persona designata or as a Court of Law. This question did not arise and was, therefore, not decided, since in the view taken by the learned Judge the authority of the District Judge to make the order was not derived from the Scheme and the District Judge could not, therefore, have acted otherwise than as a Court of Law in making the order. This decision cannot, therefore, assist in the solution of the present problem. It is no doubt true that the learned Judge observed that 'In the consideration of the question whether a presiding officer of a Court is acting as a persona designata or as a Court, the important point to be investigated is what is the source of his authority and that it might also be relevant to consider the nature of the proceeding and the action taken therein'. But this observation must be read in the context of the question which was being considered by the learned Judge. This observation was not intended for supply either an inclusive or exclusive test for distinguishing whether a particular power is conferred on a District Judge as a persona designata or as a Court of Law but it highlighted merely one aspect of the question, namely, that if the authority of the District Judge to make the order was not derived from the Scheme and the action taken by him was not under the Scheme, his order could not possibly be regarded as the order of a persona designata for in such a case in making the order he could not have acted except as a Court of Law. No argument can, therefore, be founded on this observation of the learned Judge and the reliance placed on it by Mr. I.M.Nanavati is not justified.

(19) As against these decisions cited by Mr. I. M. Nanavati none of which as I have pointed out really supports his argument, there were two decisions cited by Mr.A.D.Desai to support his contention. The first decision which was cited by Mr.A.D.Desai was the decision of the High Court of Bombay in Baldevdas Vallabhdas v. devendraprasad, 49 Bom LR : 306 (AAIR 1947 Bom 462). There an application for directions was made to the District Court in accordance with the provisions of a Scheme framed by the High Court in relation to a temple objecting to certain items of the budget of the institution. Against the order of the District Judge who dismissed the application, the matter was brought before the High Court byway of Revision or in the alternative by way of appeal. The Division Bench of the High Court of Bombay consisting of Macklin and Bavdekar JJ., held that the application in revision was snot competent since it did not come within the purview of Section 115 of the Code of Civil Procedure. The alternative remedy by way of appeal was also held incompetent as the order passed by the District Judge was not an order falling under Section 47 of the Code of Civil Procedure. Mr.A.D.Desai contended that the very fact that the Division Bench considered whether the conditions of Section 115 of the Code of Civil procedure were satisfied or not showed that if in the opinion of the Division Bench the conditions were satisfied, the Division Bench would have interfered with the order of the District Judge in revision and this the Division Bench could not have done unless the Division Bench took the view that the District Judge in making the order was acting as a Court of Law and not as a persona designata. There was thus according to Mr. A.D.Desai implicit in this decision the view that the District Judge in making the order act as a Court of Law and not as a persona designata and that I should also therefore, likewise hold that the District Court acting under Clause 7 of the Scheme is a Court of Law and not a persona designata. This contention of Mr. A.D.Desai is, in my opinion not well-founded. No point was raised before the Division Bench in this case that the order of the District Judge could not be revised under Section 115 of the Code of Civil Procedure on the ground that the District Judge in making the order acted as a persona designata nor was the point either present to the mind of the Division Bench or decided by the Division Bench took the view that none of the conditions of Section 115 of the Code of Civil Procedure was satisfied and it was, therefore, not necessary for them to consider the question whether even if the conditions of Section 115 of had been satisfied the order of the District Judge could be revised. If the Division Bench had revised the order of the District Judge, then an argument perhaps could have been founded implicit in the decision of the Division Bench is the view that the District Judge in making the order acted as a Court of law and not as a persona designata, for otherwise the Division Bench could not have revised the order. No such argument can, however, be supported by reference to this decision since the Division Bench refused to revise the order of District Judge basing itself on one ground which was sufficient to dispose of the mater namely, that none of the conditions of Section 115 of Code of Civil Procedure was satisfied.

(20) The next decisions to which Mr. A.D.Desai referred was the decision of a Division Bench of the Court of Bombay consisting of Patkar and Broomfield JJ., in 33 Bom LR 520 : (AIR 1931 Bom 391). This was also a case relating a Scheme which contained a power in the District Court to remove trustees as also to make alterations or amendments in the rules off Scheme or to add a new rule to the Scheme. An application was made to the District Court under the Scheme claiming in the main two prayers. One prayer was for modification of the Scheme and the other prayer was for removal of two trustees. Both the prayers were covered by the rules in the Scheme. The District Court, however, took the view that the rules were ultra vires as offending Section 92 of the Code of Civil Procedure and accordingly rejected the application as incompetent. The matter was thereupon carried in appeal to the High Court. The High Court held following Jeranchod's case that no appeal lay since the order of the District Court rejecting the application could not be regarded as an order under Section 47 of the Code of Civil Procedure but that the order was liable to be revised by the High Court. The High Court took the view that the rules under which the application was made did not offend Section 92 of the Code of Civil Procedure and that the application was, therefore, competent, and since the District Court had on an erroneous view of the law failed to exercise a jurisdiction vested in him, the High Court set aside the order of the District Court and remanded the application to the District Court for disposal on merits. The order of the District Court rejecting the application for removal of trustees was thus interfered with in revision and the District Court was directed to dispose of the application on the merits. This could only be on the footing that the District Court was acting as a Court of Law and not as a persona designata, Patkar J., in terms stated:

'I would, however, treat the order passed by the lower Court as subject to revision by this Court under Section 15 of the Code of Civil Procedure. The learned District Judge had jurisdiction to entertain the application and failed to exercise the jurisdiction vested in him by law'. To the same effect observed Broomfield J., when he stated:

'A question of jurisdiction is involved, however, and if the District Judge was wrong in holding that he had no jurisdiction to entertain the application'.

Then the learned Judge said immediately after referring to the prayer for removal of the trustees which clearly shows that the observation which he made related not only to the prayer for modification of the Scheme but also to the prayer for removal of the trustees. It is, therefore, apparent that he also regarded the District Court entertaining an application for removal of the trustees as a Court of Law and not as a persona designata. Mr.A.D.Desai contended that this decision must, therefore, be regarded as laying down that in a Scheme where power is reserved to the District Court to remove trustees, the District Court exercising such power acts as a Court of Law and not as a persona designata and that the order of the District Court is subject to the revisional jurisdiction of the High Court. It is no doubt true that though the point whether the District Judge to whom the application for removal of the trustees was made acting as a persona designata or as a Court of Law was not expressly raised before the Court and there is no discussion of it in the judgment of either of the tow learned Judges, it must be regarded as implicit in the decision of the learned Judges that the District Judge was acting as Court of Law and not as a persona designata; for if the District Judge was acting a persona designata the High Court could not have entertained a Revision Application against the order of the District Judge rejecting the application for removal of the trustees. The order could be revised by the High Court only on the basis that it was made by the District Judge a Court of Law. It may be that the argument was not advanced before the High Court that the District Judge entertaining the application was a persona designata and not a Court of Law and that no revision application could, therefore, lie against his order. But merely because there was no argument or the argument was deficient it does not mean that the decision should be regarded as having passed over the point sub silentio. The point decided by the High Court was that a Revision Application lay against the order of the District Judge rejecting the application for removal of the trustee and the decision of the High Court must be deemed to have decided all the contentions which could have been used against the view taken in the decision. I must, therefore, regard this decision as laying down that the Scheme before the High Court in that case the District Court referred to was the District Court acting as a Court of Law and not the presiding officer of the District Court as a persona designata. But that does not help me very much in the determination of the question whether under Clause 7 of the Scheme the District Court referred to is the District Court as a Court of Law or as a persona designata. I must resolve that question for myself and not aid in solution of that for myself and no aid in the solution of that question can be said to be offered by this decision.

(21) For thee reasons I am of the opinion that the District Court referred to in Clause 7 of the scheme is the District Court acting as a Court of Law and not the District Judge acting as a persona designata. It must, therefore, follow that the District Court in making the order appointing Shri Navnitlal Ranchhodoss as a member of the Committee acted a as Court of Law and that the order is, therefore, subject to the revisional jurisdiction of the High Court. In this view of the matter the Revisional Application would have to be heard on the merits and it would have to be decide by me whether any of the conditions specified in Section 15 of Code of Civil Procedure is fulfilled so a to warrant interference with the order made by the District Court. The hearing of the Revision Applications on the merits will be fixed on 28th July 1962.

(The Revision Petition was then heard on merits and the Court delivered the following---)


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