2010(6) ALL MR 755
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.A. BOBDE AND P.D. KODE, JJ.
Dr. Laxman Dharuba Balkhande Vs. The Joint Charity Commissioner, Nagpur & Anr.
Letters Patent Appeal No.155 of 2010,Writ Petition No.2002 of 2005
30th March, 2010
Petitioner Counsel: Shri. SUNIL V. MANOHAR
Respondent Counsel: Shri. D. P. THAKRE,Shri. F. T. MIRZA
Bombay Public Trusts Act (1950), S.41D - Suspension, removal and dismissal of trustees - Discretion of Charity Commissioner (C.C.) - C.C. by his order removed appellant from his post of Secretary and not only from trusteeship - However, High Court in writ petition ordered removal of appellant also from trusteeship - No reason given why appellant should not be suspended instead - Improper exercise - When authority in which power is vested does not exercise its discretion properly, correct course is to remand - In case High Court chooses not to remand matter and exercise discretion itself, it can do so only on the basis of adequate materials and reasonings - Impugned order of High Court lacks such reasoning - Liable to be set aside - Matter remanded back to C.C.. 2009(1) SCALE 157 - Rel. on. (Paras 15, 17)
4. The appellant has preferred this L.P.A. against the judgment and order dated 21.1.2010 passed by learned Single Judge in Writ Petition No.2002 of 2005 holding that order dated 17.12.2004 passed by Joint Charity Commissioner Nagpur refusing to remove the appellant as a trustee of registered public trust "Pravarsem Shikshan Sanstha" and merely removing him from the post of Secretary of the said trust is illegal. The learned Single Judge while reversing said order has further held that Joint Charity Commissioner ought to have removed the appellant as a trustee and ordered accordingly.
5. Suo motu proceedings - Enquiry No.26/2002 under Section 41-D of the Bombay Public Trusts Act,1950 were initiated by Joint Charity Commissioner upon the receipt of complaint of four trustees i.e. respondent no.2, Dr. Taresh Shende, Shri. Jagtap Gajbhiye and Shri. M. H. Patil of the said trust alleging that trust accounts were never audited, appellant had failed to place before the General Body audited accounts of the trust, failed to convene general body meetings and that he was managing affairs of the society as per his whims. The provisions of the said section under which the said proceedings were initiated are as under :-
"41-D. Suspension, removal and dismissal of trustees-
(1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under Section 41-B or suo motu may suspend, remove or dismiss any trustee of a public trust, if he-
(a) makes persistent default in the submission of accounts report or return;
(b) willfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made thereunder by the State Government;
(c) continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust;
(d) mis-appropriates or deals improperly with the properties of the trust of which he is a trustee; or
(e) accepts any position in relation to the trust which is inconsistent with his position as a trustee;
(f) if convicted of an offence involving moral turpitude.
(2) When the Charity Commissioner proposes to take action under sub-section (1), he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges of testing the evidence adduced against him and of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefor.
(3) Pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspension.
(4) Where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustees, according to the instrument of trust, cannot function or administer the trust without the vacancy being filled, then in that case the Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust.
(5) A trustee, aggrieved by an order made under sub-section (1) may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order.
(6) An appeal shall lie to the High Court against the decision of the Court under sub-section (5) as if such decision was a decree from which and appeal ordinarily lies.
(7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final."
6. The Joint Charity Commissioner, on the basis of the report dated 18.9.2002 received from the Inspector had come to the conclusion that there existed a prima facie case for framing charges under Section 41-D(1)(a) and (c) of BPT Act against the appellant and framed six charges. After giving due opportunity to the appellant to contest the said proceedings and after duly hearing him, the Joint Charity Commissioner for reasons recorded in the order dated 17.12.2004 came to the conclusion of the appellant having failed to (a) submit audited statements of accounts to the office of Assistant Charity Commissioner for the years 1983 to 2002; (b) convene meetings of Executive Committee regularly since the year 1993; (c) convene annual general body meeting regularly and to hold election of Executive Body after every three years from the year 1985 to 2002; (d) fill up the vacant posts of the trustees and file necessary change report; (e) place before the Executive Body and General Body the income and expenditure statements since the year 1983 to 2002 for approval and (f) maintain the cash book and ledger book about income and expenditure of the trust and place it before Executive Body for approval, the charges were proved and thereby was liable for an action respectively under Section 41-D(1)(a), (c) for which the charges were framed.
7. By the said orders dated 26.9.2003 and 17.12.2004 the Joint Charity Commissioner directed that the appellant Balkhande who was functioning as a Secretary be suspended and the respondent no.2 should function as a Secretary. The Joint Charity Commissioner having regard to the fact of the appellant being founder member of the trust, asked him to act as an ordinary member of Executive Body of the society till elections were held. By the same order, the Joint Charity Commissioner also gave certain directions regarding elections to be held including that of permission to the Executive Body to enhance the membership of the trust.
8. The respondent no.2 challenged the said order by preferring Writ Petition No.2002/2005 which was decided by the learned Single Judge by order dated 21.1.2010 by ordering the removal of the appellant also from the trusteeship and not only as a Secretary as done by the Joint Charity Commissioner. The appellant has preferred the present appeal against the said order.
9. Shri. Manohar, the learned counsel for the appellant, submitted that by the judgment in appeal the learned Single Judge, has virtually exercised the discretion vested in the Charity Commissioner under Section 41-D of the Bombay Public Trusts Act, 1950, to suspend, dismiss or remove the trustees, without, however, considering the other options provided by the Section such as suspension etc. and has merely directed the removal of the appellant from trusteeship. According to the learned counsel, the learned Single Judge instead of doing so ought to have remanded the matter back to the Charity Commissioner for exercising the discretion vested in the Charity Commissioner by Section 41-D of the Act.
10. Shri. Firdos Mirza, the learned counsel for respondent no.2 at the out set raised a preliminary objection as to the tenability of the appeal on the ground that the judgment in appeal that has been passed by the learned Single Judge is in exercise of jurisdiction under Article 227 of the Constitution of India and, therefore, this Letters Patent Appeal is not maintainable. We find from the writ petition itself that the respondent no.2 while preferring the Writ Petition No.2002 of 2005 had invoked the jurisdiction of this Court both, under Articles 226 and 227 of the Constitution of India. He had further prayed for issuing of writ of certiorari which is contemplated only by Article 226 of the Constitution of India. The learned Single Judge while deciding the matter has stated at the out set in the judgment, that the Court was dealing with the petition under Article 226 and 227 of the Constitution of India. In these circumstances, we have no reason to suppose that the learned Single Judge had exercised jurisdiction only under Article 227 of the Constitution of India while passing judgment challenged in the appeal.
11. Shri. Mirza, the learned counsel for respondent no.2, however, relied on some observations of the Supreme Court in Surya Dev Rai Vs. Ram Chander Rai and others reported in (2003)6 Supreme Court Cases 675 : [2003(4) ALL MR 761 (S.C.)] where their Lordships have stated a broad distinction between the writ of certiorari under Article 226 and supervisory jurisdiction under Article 227. While doing so, in paragraph 25 of the judgment, their Lordships observed as follows :
"25. ................Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court................"
12. According to Shri. Mirza, the judgment and order challenged in appeal passed by the learned Single Judge clearly reveals that not only the order passed by the Joint Charity Commissioner refusing to remove the appellant as a trustee has been set aside but the learned Single Judge had gone ahead and further directed that the appellant should be removed from the trusteeship also. Relying on the aforesaid observations of the Supreme Court, the learned counsel contended that wherever the High Court merely quashes and sets aside the decision of the inferior Court or tribunal it means that the High Court has done so on consideration germane to a writ of certiorari under Article 226 and wherever, in addition to setting aside the impugned order the High Court gives a positive direction, it exercises the superintending power under Article 227 of the Constitution of India. The learned counsel thus submitted that the learned Single Judge having given a further positive direction to remove the appellant from trusteeship, the judgment can only be under Article 227. It is not possible for us to accept this submission. Article 226 does not impose any such fetter as contended on behalf of the respondent no.2 that the High Court can only set aside the impugned order and do no more. Neither do we see any such fetter read into the exercise of power under Article 226 by the Supreme Court while making the aforesaid observations. In fact it is apparent from this very case that the respondent/petitioner who has made this submission before us that he sought a writ of certiorari and no other writ and prayed for issue of certiorari against the order of the Joint Charity Commissioner. The respondent has thus invoked Article 226 of the Constitution of India alone and even got relief on the basis of such prayer. It cannot be said that the learned Single Judge exercised the power under Article 227 merely because in addition to setting aside the order of the Joint Charity Commissioner, refusing to remove the appellant as a trustee, gave a further direction to remove the appellant as a trustee. Thus we find the present appeal is maintainable.
13. Now examining the merits of the matter, it must be noticed that by the order impugned before the learned Single Judge the Joint Charity Commissioner had refused to remove the appellant as a trustee but instead directed that he should be removed from the post of Secretary of the trust and further directed that the elections for the trust be held. The learned Single Judge was certainly right in holding that the Charity Commissioner was seized with the issue "whether the appellant should be continued as a trustee or not and whether the appellant should be continued as Secretary or not" and, therefore, undoubtedly the learned Single Judge was right in observing that the respondent ought not to have been merely removed from the post of Secretary.
14. However, Shri. Manohar, the learned counsel for the appellant has raised a serious objection to the order passed by the learned Single Judge, directing removal of the appellant as a trustee. The objection raised by the learned counsel for the appellant is in the context of the prayer made against the appellant in the proceeding before the Charity Commissioner. The respondent had sought an order under Section 41-D of the Bombay Public Trusts Act, 1950 for suspension, removal or dismissal of the appellant as a trustee. According to the learned counsel for the appellant, the learned Single Judge committed an error in simply resorting to one of the options namely removal of the trustee without considering the other two. According to the learned counsel, the same is an error of law as the learned Single Judge exercised the power vested in the Charity Commissioner. According to the learned counsel, if the learned Single Judge was of view that the order refusing to remove the appellant as a trustee was bad, he should have remanded the matter back to the Charity Commissioner for considering whether the appellant should be removed, dismissed or suspended as a trustee rather than ordering removal of the appellant as a trustee. The said submission is based on the judgment of the Supreme Court in Indian Charge Chrome Ltd. Vs. Jagdish Rai Puri and others reported in 2009(1) SCALE 157 where the Supreme Court observed as follows :
"7. Recently, in Civil Appeal Nos.6387-6390 of 2002 decided on 20th November, 2008 titled Union of India & Another Vs. Bilash Chand Jain & Another, this Court held that the High Court cannot itself perform the functions which are to be performed by some other authority. If that authority passed an order which the High Court finds is not sustainable in law, the High Court can set aside the said order and remit the matter to the concerned authority for deciding the same afresh in accordance with law, but the High Court should not take over the functions of the authority itself."
15. Applying the ratio to the circumstances of the present case, we are of the view that since the exercise of power by the Charity Commissioner was in question and since the Charity Commissioner had not exercised it properly, it would have been the correct course to set aside the order of the Joint Charity Commissioner and remand the matter back to that authority for exercising the discretion vested in it by law by Section 41-D which we have already quoted hereinabove.
16. Furthermore, we find that no reasons have been given by the learned Single Judge as to why the appellant should be removed from trusteeship instead of being suspended or dismissed. We make it clear that it is not our view that this Court must in all such cases remand the matter back to the Charity Commissioner for a decision as this Court can indeed in exercise of full width of power under Articles 226 and 227 consider whether a trustee should be suspended, removed or dismissed by giving adequate reasons. We must note that the judgment of the Supreme Court in Indian Charge Chrome Ltd. (supra) refers to the course of action that may be adopted by the High Court in relation to the decisions of authorities other than Courts or Tribunals and the ratio of that case must be understood accordingly. It is common experience that this Court is often called upon to take a decision on the basis of the full powers vested in the Sub-ordinate Court or a Tribunal by a statute and consider the options. But in all such cases, where this Court choses to exercise the powers itself, instead of remanding the matter to the Sub-ordinate Court or Tribunal, we are of the view that Court must do so only upon adequate material being placed before it and upon giving of reasoning for the exercise of the powers conferred upon the Subordinate Court or Tribunal.
17. Accordingly we allow the appeal and remand the issue of the suspension, dismissal or removal of the appellant as a trustee back to the Joint Charity Commissioner for a fresh decision in accordance with law.