TaxTMI 
TaxTMI 
1962 (11) TMI 83
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.... 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 sugge....
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....istrict 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 12 which 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 therefore from the District Court of Ahemedbad ". Liberty to apply for alteration, modification or addition in resects of the Scheme was also reserved under....
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....e 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 vacancy for reasons set out in their written statement. This suggest....
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....asoning 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 design....
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....cribed 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 to 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 constru....
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....essions "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....
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....ontinued 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 therefore 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.Nanav....
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....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 Sche....
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....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 Sch....
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..... 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 pow....
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....encies 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 (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 l....
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.... 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 Procedure. 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 ....
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.... 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 jur....
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....he 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 ....
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....esignata 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, therefore, 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....
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....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, 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" fo....
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....rder 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 opinion 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 their 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 quali....
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.... 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 p....
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....tion 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 ....
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.... 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 t....
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....ion 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 re....
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.... 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---) JUDGMENT (22) On 24th July 1962 I delivered judgment rejecting the preliminary objection urged by Mr.I.M.Nanavati on behalf of opponents Nos.1 and 5 to 8 against the maintainability of the Revision Applications. I took the view that the power to appoint a member of the Committee under Cl.7 of the Scheme was conferred on the District Court as a Court of Law and not on the District Judge as a persona designata and that the order passes by the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee was, therefore, subject to the revisional jurisdiction of ....
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.... of notice to the Charity Commissioner. Mr. I.M.Nanavati thus attempted to limit the applicability of Section 56B to cases in which a question affecting a public religious or charitable purpose arises in relation to a public trust not registered under the provisions of the Bombay Public Trusts Act, 1950. Now if this contention were correct it is obvious that he public trust in the resent case being registered under the provisions of the Bombay Public Trusts Act, 1950, Section 56B would not apply and not notice would be necessary to be given to the Charity Commissioner even if all the conditions of the Section were otherwise satisfied. But this contention is clearly well-founded. To accede to this contention would involve writing words in Section 56B that are not there. Section 56B in terms clear and explicit provides that if in any suit or legal proceeding it appears to the Court that any question affecting a public religious or charitable purpose is involved, notice must be given to the Charity Commissioner. There is nothing in Section 56B which limits is not registered under the provisions of the Bombay Public Trusts Act, 1950. Section 56B as a matter of fact does not refer to a ....
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....ch affects a public religious or charitable purpose would not necessarily affect a public trust unless the public religious or charitable purpose affected by the question is a purpose of a public trust. But every question affecting a public trust would necessarily be a question which would affect the public religious or charitable purpose of such public trust. I shall presently discuss this question in some detail but it is sufficient to state for the tine being in answer to the contention of Mr.A.D.Desai that both the expression were known to the Legislature and yet the Legislature used the expression "public religious or charitable purpose" and not the expression "public trust". The content of the two expressions is different and to equate the two expressions and to hold that Sec. 56B applies when any question affecting a public trust is involved in any suit or legal proceeding would amount to re-writing the Section quite different from what the Legislature has in clear and unambiguous terms intended to convey. I must, therefore, reject the contention of Mr.A.D.Desai which seeks to equate the expression "public trust" with the expression "public religious or charitable purpose". ....
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....e of interpretation and that in any event the intention of the Legislature as appearing from the language used in Sec. 56B clearly excluded the applicability of this principle of interpretation. These rival contentions bearing upon the true interpretations to be put on the words "legal proceedings" occurring in Sec. 56B raised an interesting question of construction and I will now proceed to examine the same. (26) One salutary rule interpretation founded on the principle of assumed intention of the law-maker is that general words, though when they stand by themselves are to be accorded their full meaning, must, when they follow particular and specific words, be confined to embrace things of the same kind as those before enumerated. This aid to statutory interpretation is the well established principle of ejusdem generis. If the particular and specific words which precede the general words and which constitutes the members of the enumeration constitute a class and that class is not exhausted by the enumeration, the general words construed to the class. The fixation of the meaning of such final general words presents little difficulty when they follow a series of specific words an....
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....' should be licensed, the question rose whether a 'fun-fair' for which no fee was charged for admission was within the Act. It was held to be so, and that the ejusdem generis rule did not apply to confine the words 'other places' to place of the same kind as theatres. So the insertion of such words as 'or things of what ever description' would exclude the rule". This passage clearly shows that the modern tendency of the law is to attenuate the application of the rule of ejusdem generis and unless a genus can be constituted by the species enumerated, the rule of ejusdem generis cannot apply. (27) In the leading case of Allen v. Emerson, (1944) 1 KB 362, the question arose whether the words "other places of public entertainment" occurring after the word "theatres" in a certain English Statute were required to be construed ejusdem generis with the word "theatre". The doctrine of ejusdem generis was invoked for the purpose of excluding "fun-fair" from the ambit of the words "other places of public entertainment". The Court negatived the applicability of the ejusdem generis doctrine on the ground that no genus could be deduced from the mere word "theatr....
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....cision of a Divisional Court of the Kings Bench Division in England where I find the same view has been taken The words which came up fir construction in this case were "any quay or other place" occurring in Section 3, sub-section (1) of the Import, Export and Customs Powers (Defence) Act, 1939. This section of the English statute imposed penalties on the exporter or his agent of any goods were "brought to any quay or other place" for the purpose of being contravention of an order made under that statute. A grocer delivered to the residence of a night watchman employed at London Docks on Swedish ships consignments of coffee amounting in all to 666 lbs. The night watchman sold the coffee to Swedish and other seamen, who took it on board their ships and either consumed it there and then or then or exported it. The night watchman accounted to the grocer for those sales and was paid commission on them. The export of coffee without a licence was prohibited by the Export of Goods (Control) (Consolidation) Order, 1949, made under the relevant section of the statute. On these facts information was preferred against the night watchman as agent of the exporter, for contravening Section 3, su....
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.... natural meaning must not be confined within narrow limits by application of the rule of ejusdem generis unless there is a distinct genus comprising more than one species. (29) On this ground alone the contention of Mr.I.M.Nanavati based on the applicability of the rule of construction ejusdem generis must fall, since in the present case it is apparent that there is enumeration of only one object or species namely "suit" preceding the general words "legal proceedings" and from the enumeration of this single object or species it is not possible to ascertain any definite class or genus to which the general words "legal proceedings" can be confined. (30) But even apart from the objection that there is only one object or specie enumerated which cannot constitute the genus necessary for the application of the doctrine of ejusdem generis, there is another objection and it is moor fundamental. It must be remembered that valid only by virtue of form, the doctrine of ejusdem generis is a dubious yard-stick. It has, therefore, to be applied with restraint and having regard to the fitness of the matter. it must not be pushed to the fitness of the matter. It must not be pushed too far fo....
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....coverage of Sec. 56B all legal proceedings and did not intend that any legal proceeding should be left out of the operation of the Section. (32) The second circumstance which must weigh with the Court in coming to the conclusion that full and natural meaning must be given to the words "legal proceedings" and their meaning should not cut down is the absence of the qualifying word "other" before the words "legal proceedings". This word if present might have indicated that the first word "suit" intended to have a demonstrative meaning or limiting effect and it must have been possible to build up an argument that the legal proceedings" were legal proceedings of the same nature as a suit. But this word is conspicuously absent in sec. 56B and though too much weight must not be attached to this omission, I think in the particular context of this Section of this omission is not particular importance. This is only a small point but it does throw some little light on the intention of the Legislature. (33) But the most weightly circumstance which compels me to reject the narrow construction contended for by Mr.I.M.Nanavati is the consideration of the object which Sec. 56B is intended to....
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....ed, the Court should not proceed to determine such question until notice has been given to the Charity Commissioner, so that the Charity Commissioner can appear before the Court if he think it necessary and make his submissions in order to protect the interests of the charity. The Charity Commissioner being constituted under the sole custodian and entrusted with the duty of securing that public religious or charitable purposes are properly and effectively carried out and that the interests of the charity are not in any way injuriously affected, the Legislature has provided in Section 56B that the Charity Commissioner must have an opportunity of being heard before any question affecting a public religious and charitable purpose is determined. Now if this is the manifest and avowed object of Sec. 56B is there any reason why the achievement of this object should be stultified by limiting the applicability of the Section to any particular case of legal proceedings. It is impossible to conceive of any reason which could have induced the Legislature to enact that notice to enable the Charity Commissioner to protect the interests of charity should be given in one class of legal proceeding....
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....d have the effect of depriving the Charity Commissioner of an opportunity to place his point of view before the Court in such an important matter as the appointment of trustees of a public trust., I may mention here that Mr. B.R.Sompura frankly stated to the Court that the Charity Commissioner was not interested in preferring any one candidate to other in so far as the present appointment to the Committee was concerned, but that it was a question of principle which the Charity Commissioner wanted to be decided by the Court. In answer to a question from me, Mr.B.R.Sompura stated that the Charity Commissioner was not opposing the appointment of Shri Navnitlal Ranchhddas as a member of the Committee and that he did not want to make any submission contrary to the final decision of the District Court but what he was contemplating of was the view of the District Court that no notice was necessary to be issued to him. Now I can appreciate the anxiety of the Charity Commissioner in this connection, for the question as to who should be appointed a trustee of a public trust is undoubtedly a vital question affecting the administration of a public trust and it would indeed be a lamentable stat....
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....rity Commissioner before the suit can be decided by the Court? Mr. I.M.Nanavati also gave another illustration of a case where a suit maybe filed against the trustees to recover a certain sum of money and posed the question, that merely because, if a decree is passed against the trustees, the trust fund would be depleted and that might in its turn affect the execution of the public religious or charitable purpose of the public trust, can it be said that such a suit cannot be disposed of by the Court giving notice to the Charity Commissioner? Mr. I.M.Nanavati is of course right when he says that in both thee cases no notices would be necessary to be given to the Charity Commissioner under Section 56B and the reason is simple, namely, that the question in either case cannot be said to be a question the determination of which would have a direct and proximate effect on the public religious or charitable purpose of the public trust. The effect, if any, would be indirect and remote by the intervention of other acts and circumstances. Mr.A.D.Desai, on the other hand, gave two illustrations which were clearly illustrations of direct and proximate effect. He gave the example of an applicat....
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..... It is the trustees who are charged with the duty of carrying out the public religious or charitable purpose of the public trust and the achievement of such public religious or charitable purpose must, therefore, necessarily depend on competence or incompetence of the trustees. There is a direct nexus between the fitness or competence of the trustees and the achievement of the public religious or charitable purpose of the public trust. The former is bound to react on the latter and it is for this reason that the Legislature has prescribed in Section 47(4)(c) that in appointing a new trustee of a public trust, the Court must have regard to the question whether the appointment will promote or impede the execution of the public trust. This provision, in my view, puts the question beyond the pail of doubt, and controversy and makes it abundantly clear that the question of appointment of a trustee is a question which has a direct and proximate bearing on the execution of the public trust and that it is consequently a question affecting a public religious or charitable purpose within the meaning of Section 56B in the sense that it can promote or impede the achievement of the public reli....
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....sioned or might occasion a substantial failure of justice. The decision of the subordinate Court would not ordinarily be set aside by the High Court in revision upon a mere technicality when there is no real failure of justice. This rule so well settled that no authority is needed in support of it, but if any authority were needed, it is to be found in Ramswaroop Raghuvardayal v. Mataprasad Prabhudayal, AIR 1952 Madh Bha 8 and Narayan Kalit, v. Mt. Bhabitri Deby AIR 1952 Assam 46. These two decisions relate to case where illegally or material irregularity was committed by the subordinate Court and notwithstanding the illegality or material irregularity, the High Court refused to interfere in revision. In the present case also, non-compliance with the requirements of Section 56B constituted an illegality or material irregularity on the part of the District Court in the exercise of it jurisdiction and the ratio of these two decisions would therefore apply, but since an argument was advanced by Mr.A.D.Desai that the rule under lying these two decisions was confined only to cases of illegality or material irregularity and did not extend to cases of illegal assumption of jurisdiction or....
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.... not pressed for setting aside the order of the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee. The grievance against the order of the District Court appointing Shri Navnitlal Ranchhoddas as a member of the Committee has been made only by the petitioners represented by Mr.A.D.Desai. Mr.A.D.Desai contended that the order of the District Court should be set aside on the ground of non-compliance with the requirements of Section 56B since such non-compliance has resulted in failure of justice. Mr.A.D.Desai made a valiant but futile attempt to bring his case within the principles set out above by raising the following contentions. (39) In the first instance, Mr.A.D.Desai contended that the petitioners might not have led full evidence before the District Court, knowing or at least believing that the proceedings before the District Court were illegal by reason of non-compliance with the requirements of Section 56B and that if that be the position, the petitioners would be considerably prejudiced by refusal to interfere with the order of the District Court in revision. This contention of Mr.A.D.Desai is, in my opinion, totally devoid of force. As a mat....
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....sed that I should interfere with the order of the District Court in revision, was that if notice has been issued to the Charity Commissioner, the petitioners would have had an opportunity to persuade the Charity Commissioner to support the candidature of Shrimati Sumatiben Morarji in preference to that of Shri Navnitlal Ranchhoddas and that such opportunity had been denied to them by reason of non-compliance with the requirements of Section 56B. It is a little difficult to appreciate this contention. Section 56B is intended to enable the Charity Commissioner, who is the custodian of the charity, to put forward his point of view before the Court so that the interests of the charity may not be adversely affected by reason of any particular point of view not being presented before the Court. But the Section is not intended to enable a party to a suit or legal proceeding to have an opportunity to persuade the Charity Commissioner to adopt one view or the other in regard to a question involved in the suit or the legal proceeding. No party in a litigation can complain of want of notice to the Charity Commissioner on the ground that by not giving such notice he was deprived of an opportun....