Swami Satyaprakashdasji Gurughanshyam Prasad Swami Vs. Jt. Charity Commissioner - Court Judgment

Excerpt:
(i) trust and societies - election of trustees - whether assistant charity commissioner (acc) under section 22 had jurisdiction to enter into question of validity or otherwise of election of trustees - appointment of trustees by election no ground to hold validity of election not be decided by acc - as per section 22 acc entitled to make inquiry regarding validity of elections for purpose of effecting change so as to make entries in public trust register. (ii) notice - whether entire proceedings on basis of which impugned order passed vitiated as other trustees were not served noticed - for adjudication of validity of election requirement of notice inherent by nature of proceedings undertaken under section 22 - in case order to prejudice of party be passed such party required to be given formal notice - validity of election not be touched unless party concerned put to formal notice - held, entire proceedings on basis of which impugned order passed vitiated on ground of violation of principles of natural justice. - - the candidates who were defeated in the election and who were co-plaintiffs in regular civil suit no. charity commissioner, bhavnagar region, was precisely the relief which had been prayed for and already refused by the district court vide order dated 31st january 1998 in civil misc. defeated candidates against the district court's order dated 24th april 1998, passed in civil misc. bhinani as well as their advocates. on 9th october 1998 itself an application of swami bhanuprakash for consideration of the evidence and the inspector's report as well as the change report was entertained and thus all the applications filed on 9th october 1998 as above were allowed, the proceedings were held and concluded in absence of the other side on the same date without giving any opportunity to the petitioner swami satyaprakashdasji or any other elected trustees. thakkar is that they have failed to avail the statutory remedy as provided under the act and they have straightway come before this court and therefore, this petition should be rejected on the said ground alone. if an order is passed in exercise of a statutory power by a statutory authority under an act, such order may give rise to multiple grievances and even if such grievances are not centered around or are not directly against any individual person, such individuals who are members of the trust looking to the body of the trust as well as being their essential constituents, it is open for them to challenge such orders which may directly affect the constitution and functioning of the trust and they can certainly be considered as aggrieved parties even if some other members of the trust are denied to be enrolled as the members and if their names are refused to be entered in the public trust register on the basis of the change report. charity commissioner or not or such a challenge may or may not succeed, but their right to challenge the order passed by the assistant charity commissioner on 17th october 1998 cannot be made to be defeasible on the ground that they failed to avail the remedy of appeal under sec. 15 of 1998 failed to produce the evidence on the adjourned date, i. (3) if the deputy or assistant charity commissioner, as the case may be, after receiving a report under sub-section (1) and holding an inquiry, if necessary, under sub-section (2) or merely after holding an inquiry under the said sub-section (2), is satisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, he shall record a finding with the reasons therefor to that effect. 17. he has submitted that there is no such section like sec.m.r. calla, j.1. all these four petitions are in relation to the board of trustees of swaminarayan sect, gadhada shri gopinathji dev mandir trust and its subordinate temple trusts. the controversy hinges around the entries to be made in the register of trustees based on the election of the trustees and the various orders passed in this regard from time to time in more than one proceedings and such controversy is based on identical facts involving common questions and the disputes raised which are inter connected and therefore, i propose to decide all these four petitions by this common judgment and order.2. the swaminarayan temple trust, gadhada is a trust registered under the bombay public trusts act, 1950 bearing regn.no. a-245, bhavnagar, hereinafter referred to as 'the trust'.-- the elections for the trustees of this trust were held on 14th december 1997 and the result thereof was declared on 15th december 1997.-- on 19th december 1997, a regular civil suit no. 126 of 1997 was filed in the court of civil judge, junior division, gadhada by five persons including shri mavjibhai vashrambhai and shri ghanshyambhai ramjibhai, who are respondents nos. 6 and 7 in special civil application no. 10514 of 1998 before this court.-- on 9th january 1998, swami satyaprakashdasji and shri vimal h.bhinani, i.e. petitioners in special civil application no. 9464 of 1998 filed a change report before the assistant charity commissioner being change report no.15 of 1998 and it is alleged that this changed report was filed with the written consent of other trustees in their capacity as reporting trustee.13th september 1999-- in civil misc.appeal no.244 of 1997 filed by brahmachari swami chandraprakashnanji against the ex parte order dated 19th december 1997 in regular civil suit no. 126 of 1997, an order was passed on 28th january 1998 by the joint district judge, directing the lower court to decide the application exh.5 within 15 days.-- the prayer was for declaration of the election being illegal and void and an alternative prayer was also made by the plaintiffs including mavjibhai vashrambhai and gokulbhai nanjibhai was seeking recounting of the votes.-- on 31st january 1998, an order was passed by the assistant judge, bhavnagar in civil misc. application no. 173 of 1997 rejecting the application exh.5 and the application filed directly in the district court, bhavnagar seeking recounting of votes polled at the said election of the said trust.-- this application was filed in the district court by raghavji naranbhai and swami vishwaswarupdas (both candidates had lost the election) and vallabh mavji vala.-- it may also be mentioned that raghavji naranbhai who was one of the candidates who had lost and his name had been deleted from the list of plaintiffs in the aforesaid regular civil suit no. 126 of 1997. on application exh.41 filed by mavji vashram in regular civil suit no. 126 of 1997 praying for appointment of commissioner for inspection of votes and the recounting, an order was passed on 16th february 1998 by the learned civil judge, junior division, gadhada.-- against this order dated 16th february 1998, civil revision application no. 772 of 1998 was filed before this court and the same was withdrawn on 6th may 1998.-- on the application no. 8 of 1998 filed by the erstwhile trustees of the said trust, an order was passed by the joint charity commissioner, rajkot on 2nd march 1998 to maintain the status-quo with regard to the trust and the properties of the trust registered at s.no. 8/245/bhavnagar, till 17th march 1998.-- on 3rd march 1998, an order was passed by the civil judge, junior division, gadhada allowing the application exh.5 in regular civil suit no. 126 of 1977 and on 22nd april 1998, application exh.16 was filed in change report no.15 of 1998 by one mavji vashram and gokul nanji, i.e. the candidates who were defeated in the election and who were co-plaintiffs in regular civil suit no. 126 of 1997 and who had also filed application exh.41 seeking inspection of the ballot boxes and material by the assistant charity commissioner or such other authorised person.-- it may be pointed out that mavji vashram and gokul nanji were not parties as such in change report no.15 of 1998 and the newly elected and affected trustees were not made parties in the said application exh.16.-- the hearing of the said application exh.16 was fixed on the same date, i.e. 22nd april 1998.-- the order dated 28th january 1998 passed by the district judge in civil misc. appeal no. 244 of 1997 and the order dated 31st january 1998 rejecting the application exh.5 in civil misc. application no. 173 of 1997 seeking recounting of the votes polled in the said election of the said trust as also the order dated 3rd march 1998 allowing the application exh.5 in regular civil suit no. 126 of 1997 filed by the same applicant were produced on the same day.-- the application exh.16 was heard and mr. upadhyay, learned advocate who was engaged in absence of mr. vasavada made oral submissions before the assistant charity commissioner and a grievance has been raised that this arrangement had to be made because adjournment was not granted and it has been argued on the basis of the oral submissions that, it was not known as to when the order would be passed on the said application exh.16.-- an appeal was then filed by gadhada gopinathji dev mandir trust and one shri ghanshyambhai bhurabhai and arjanbhai nagjibhai (newly elected candidates) challenging the order dated 3rd march 1998 passed by the civil judge, junior division and in this appeal, an order was passed on 24th april 1998 by the assistant judge, bhavnagar in civil misc. application no. 655 of 1998 vacating the injunction granted vide impugned order dated 3rd march 1998 and the application exh.5 (in regular civil suit no. 126 of 1997) was rejected.-- the assistant charity commissioner, bhavnagar region, then passed an order on 29th april 1998 for recounting of the votes on the application exh.16 and in this regard, a grievance has been raised that the order was passed without recording evidence and without giving any opportunity of hearing to the newly elected and affected trustees.-- it has been submitted that this course of action was beyond the scope of the reliefs prayed for since the application exh.16 dated 22nd april 1998 was only for inspection of the ballot papers and an inquiry into the alleged irregularities.-- this relief granted by the order dated 29th april 1998 by the asstt. charity commissioner, bhavnagar region, was precisely the relief which had been prayed for and already refused by the district court vide order dated 31st january 1998 in civil misc. application no. 173 of 1997 and by the civil judge, junior division, gadhada vide order dated 16th february 1998.-- the incharge superintendent was informed on telephone on 29th april 1998 about the recounting order dated 29th april 1998 in respect of the election held on 14th december 1997 and concluded on 15th december 1997.-- on 30th april 1998, a notice was issued to swami satyaprakashdasji and one shri bhanuprasadji who were not the contesting candidates that the election material would be inspected on 2nd may 1998 at 12.30 p.m.-- the grievance is that even swami satyaprakashdasji was not informed of that order of recounting as had been passed by the assistant charity commissioner, on 29th april 1998.-- on 1.5.1998 the said notice dated 30th april 1998 addressed to swami satyaprakashdasji was served on somebody on his behalf at the temple premises.-- on 1.5.1998, a telegram had been sent by the advocate of swami satyaprakashdasji to assistant charity commissioner seeking permission for withdrawal of the change report no.15 of 1998 dated 9th january 1998.-- on 2nd may 1998, the inspector and the panchas visited the premises of the temple and on coming to know that the ballot boxes are likely to be opened, an application dated 2.5.1998 was filed by one arjan nagjibhai praying inter alia that the said ballot boxes may not be opened except in presence of all contesting candidates. mr. vasavada who was appearing for swami satyaprakashdasji also produced the district court's order dated 24th april 1998 with a separate list of documents.-- by this order dated 24th april 1998, appeal no. 62 of 1998 was allowed and the application exh.5 filed by the plaintiffs of the regular civil suit no. 126 of 1997 (including mavji vashram and gokul nanji) was rejected.-- the argument has been made that the inspector ought not to have proceeded further with the recounting and the assistant charity commissioner ought not to have permitted the same when the validity of the said election itself was the subject matter of dispute before the civil court in regular civil suit no. 126 of 1997 and civil misc.application no. 173 of 1997.-- the ballot boxes were opened on 2nd may 1998 and the votes had been recounted in absence of the contesting candidates and the candidates who were declared successful at the elections held on 15th december 1997.-- the returning officer mr. m.j.trivedi addressed a letter to the assistant charity commissioner stating inter alia that pursuant to the order dated 29th april 1998, he had remained present at the gopinath devji mandir along with mr. p.p.patel i.e. the supervisor and that on seeing the entire election material including the ballot boxes etc. which were earlier in the possession of the joint secretary of the temple, it appeared that the same were tampered and therefore, appropriate proceedings may be initiated.-- on 5th may 1998, objections were filed against the inspection which was carried out on 2nd may 1998.-- on 6th may 1998, an order was passed by this court in civil revision application no. 771 of 1998 preferred by the original plaintiffs, i.e. defeated candidates against the district court's order dated 24th april 1998, passed in civil misc. application no. 62 of 1998 whereby the injunction granted by the civil judge, junior division was vacated. the civil revision application was then withdrawn and it was observed by this court that the observations made in the said order dated 24th april 1998 in para 15 (regarding the scope of inquiry under sec. 22) are based on the contentions raised at an interlocutory stage.-- the civil revision application no. 772 of 1998 filed by the plaintiffs of the regular civil suit no. 126 of 1997 challenging the order dated 16th february 1998 (whereby the application below exh.41 seeking inspection and recounting was rejected), was withdrawn.-- in a petition filed before the high court, being special civil application no. 4026 of 1998 as filed by the erstwhile trustees, an ad-interim order was passed directing the newly elected trustees to obey the direction as contained in order dated 2nd march 1998 passed by the joint charity commissioner.-- on 15th may 1998, the change report application no.142 of 1998 was filed by laljibhai laxmanbhai (the outgoing trustee of the said trust) seeking insertion of the new names pursuant to the recounting carried out on 2.5.1998 on the ground that the said candidates stood elected on 2nd may 1998 having obtained more votes at the inspection as per the high court's order and that no change whatsoever had occurred on 15th may 1998, i.e. the date on which the change report application was filed.-- since the inspection report based on the inspection dated 2nd may 1998 was prepared on 29th may 1998 and filed before the charity commissioner on 30th may 1998, on 30th may 1998 recounting report of the said date was prepared and filed before the assistant charity commissioner, bhavnagar pursuant to the recounting carried out on 2nd may 1998.-- the grievance has been raised that even in the said report, notices dated 20th april 1998 had been issued only to swami satyaprakashdasji and swami bhanuprasadji. on 1.6.1998 in civil application no. 4656 of 1998 in special civil application no. 4026 of 1998, an order was passed by this court particularly allowing the civil application and vacating the ad-interim relief granted on 12th may 1998, while observing that once the public trust is registered and requisite entries are posted in the register kept under section 17, the enquiry in respect of occurrence of any change is a formal inquiry to the extent that whether such change has occurred in accordance with the provisions contained in the trust deeds or any scheme made for the said trust. under such circumstances, unless the election is set aside by the competent forum, the duly elected trustees cannot be denied their status as the trustees of the trust and cannot be prevented from holding the office or participating in the management of the trust.-- on 16th june 1998, an order was passed by the division bench of this court in letters patent appeal no. 687 of 1998 filed by the erstwhile trustees and the letters patent appeal no. 689 of 1998 filed by swami satyaprakashdasji staying the directions of the single bench of this court and directing that irrespective of the entry in the public trust register, the elected trustees pursuant to 15th december 1997 elections are to function as trustees of the said trust and its subordinate temple trust at gadhada and hence pursuant to the said order, the newly elected trustees took over the charge of the management of the trust.-- on 22nd june 1998, an order was passed by the supreme court in special leave petition no. 10371-72 (subsequently numbered as civil appeal nos.3191-3192 of 1998) filed against the order dt.16.6.98 passed by the division bench of this court as aforesaid. hon'ble supreme court dismissed that appeals and declined to interfere with the interim order dt.16.6.98 passed by the division bench but observed that the observations of this court in the interim order dt.16.6.98 restricting the scope of the inquiry before the assistant charity commissioner will not be binding and it will be open for the parties to raise their respective contentions before the assistant charity commissioner regarding the scope of sec. 22 and the jurisdiction of the assistant charity commissioner to go into the issues. at the same time, the supreme court also clarified in the said order as under:- 'we should not be understood to have expressed anything on the merits regarding the scope of sec. 22 or the jurisdiction of the assistant charity commissioner.' -- pursuant to the order dated 16th june 1998 passed by the division bench of this court, an order was passed on 23rd june 1998 by the asstt.charity commissioner rejecting the change report no.142 of 1998 in view of the order passed in change report no.15 of 1998 and directing the insertions of the entry in public trust register as per the results declared on 15th december 1997.-- on 10th july 1998, final order was passed in the letters patent appeal nos. 687 and 689 of 1998 keeping in view the order dt.22.6.98 passed by the supreme court directing the assistant charity commissioner to proceed de novo and the letters patent appeals were dismissed as withdrawn.-- on 10th september 1998, an application was filed on behalf of the petitioner no.1 swami satyaprakashdasji before the assistant charity commissioner invoking the principles of res judicata in view of the orders dated 24th april 1998 passed by the district court and the high court submitting that these matters could not be reopened in the proceedings before asstt. charity commissioner and a prayer was made for clarification as to whether the assistant charity commissioner yet proposes to enter into the legality and validity of the election of the trustees and also for framing of issues with reference to the scope of inquiry under sec. 22 and 22a.-- on 7th october 1998, the application of swami bhanuprakash vide exh.58 was made giving the list of documents.-- swami satyaprakashdasji then moved an application on 8th october 1998 putting it on record that some of the annexures which earlier formed the part of the record are missing and therefore, the replaced annexures may not be considered.-- no inquiry was ordered by the assistant charity commissioner in these allegations and the application was rejected.-- on 8th october 1998 during the course of proceedings on the said date, a request was made on behalf of swami satyaprakashdasji that the matter may not be kept on 9th october 1998, but no orders were passed by the assistant charity commissioner regarding the said request.-- the proceedings were held on 7th october 1998 before the assistant charity commissioner, the evidence of shri p.p.patel, the inspector was recorded on 8th october 1998 revealing that the matter was adjourned to 9th october 1998. despite the application seeking adjournment, the matter was taken up on 9th october 1998 and the proceedings were held and the application filed by swami bhanuprasad who was neither a contesting candidate nor the outgoing trustee and was not a necessary party to the proceedings of change report no.142 of 1998, seeking closure of the evidence and cross examination and for directing the change of entries as per inquiry report dated 30th may 1998 pursuant to the order of recounting was allowed in absence of swami satyaprakashdasji and shri vimal h. bhinani as well as their advocates.-- on this very day, i.e. 9th october 1998, an application of lalji laxman praying for consideration of oral and written evidence and that he does not seek to adduce any further evidence and that it may be treated as closed for taking the evidence of the other side was moved and on this very day, i.e. 9th october 1998, an application of swami bhanuprakash in change report no.142 of 1998 was moved that the other side was absent and therefore, they do not seek to adduce any evidence and the same may be treated as closed.-- on 9th october 1998 itself an application of swami bhanuprakash for consideration of the evidence and the inspector's report as well as the change report was entertained and thus all the applications filed on 9th october 1998 as above were allowed, the proceedings were held and concluded in absence of the other side on the same date without giving any opportunity to the petitioner swami satyaprakashdasji or any other elected trustees.-- on 17th october 1998, an order was passed by the assistant charity commissioner, bhavnagar region, bhavnagar, holding that there were major irregularities in holding the election as was held by the erstwhile board of trustees and directing the names of the applicants of change report no.142 of 1998 to be entered in the public trust register as per the inquiry report dated 30th may 1998 based on the recounting of the votes.-- though the proceedings had taken place at bhavnagar, the said order dated 17th october 1998 was pronounced at baroda and no reasons were given either with regard to the acceptance of the inspection report or in the matter of the withdrawal of the change report no.15 of 1998 by way of telegram dated 1.5.1998, the letter dated 4.5.1998 addressed by the returning officer to the assistant charity commissioner stating inter alia that the entire election material including the ballot boxes etc. which were earlier in the possession of the joint secretary of the temple, have been tampered and the detailed objections dated 5.5.1998 filed to the inspection carried out on 2.5.1998.-- on 27th october 1998, appeal no. 8 of 1998 was preferred by swami satyaprakashdasji against the order dated 17th october 1998 before the joint charity commissioner at rajkot and on 28th october 1998, an order was passed by the joint charity commissioner in the said appeal staying the operation and implementation of the impugned order dated 17th october 1998.-- in special civil application no. 9211 of 1998 preferred by the applicants of change report no.142 of 1998 against the said ad-interim order dated 28th october 1998, an order was passed by the high court on 4th november 1998 directing the joint charity commissioner to hear and decide the application at exh.4 positively on 7th november 1998 without being influenced by the order dated 28th october 1998.-- thereafter on 9th november 1998, the joint charity commissioner passed an order on the said application in appeal no.8 of 1998 without examining the preliminary objections and contentions raised in the said appeal regarding the jurisdiction of the assistant charity commissioner to examine the validity of the election, vacating the ad-interim order dated 28th october 1998 and further directing that the administration of the affairs of the trust be handed over to the trustees as per the change report no.142 of 1998 dated 17th october 1998.3. on the aforesaid factual premises and in the background as aforesaid these special civil applications have been filed as under:--- special civil application no. 9464 of 1998 has been filed by swami satyaprakashdasji and another namely, shri vimal h. bhinani on 12th nov.1998 against the order dt.17th oct.1998 in change report no. 142/98 and the order dated 9th november 1998 passed by the joint charity commissioner,rajkot, camp ahmedabad in appeal no. 8/98 on application exh.4 annexed with the said petition as annexures 'n' and 'p' respectively.15th september 1999-- special civil application no. 9465 of 1998 has been filed by one shri arjanbhai nagjibhai ningala and another shri ghanshyambhai bhurabhai on 12th november 1998 against the orders dated 17th october 1998 and 9th november 1998 annexed with the said petition as annexures.'b' and 'c' -respectively.-- special civil application no. 10514 of 1998 has been filed on 8th december 1998 by shri swami satyaprakashdasji against the very same orders dated 17th october 1998 and 9th november 1998 annexed with the said petition as annexures. 'p' and 's' respectively.-- special civil application no. 985 of 1999 has been filed on 8th february 1999, by shri bhanuprasadji swami guru harikishandasji, vishwaswarupdasji guru govindswarupdasji swami, prasad nanji bhagat guru ghanshyamdasji swami, mavjibhai vashrambhai and ghanshyambhai ramjibhai, as petitioners, challenging the order dated 1st january 1999 passed by the incharge, charity commissioner, at ahmedabad, in appeal no. 7 of 1998 which was filed before the joint charity commissioner at rajkot by swami satyaprakashdasji guru ghanshyamprasaddasji. this was an appeal under sec. 70 of the public trusts act, 1950 against the judgment and order passed by the assistant charity commissioner, bhavnagar in change report no.15 of 1998. the joint charity commissioner, vadodara, who was at the relevant time also holding the charge of joint charity commissioner, rajkot, entertained the said appeal and passed the order on 28th october 1998 admitting the appeal and issuing the show cause notice of hearing to respondents for 7th november 1998 and in this appeal an order was passed on 9th november 1998 by the joint charity commissioner, rajkot, sitting at ahmedabad, on the stay application therein because by this time, i.e. 9th november 1998, the joint charity commissioner, baroda, relinquished the charge of the joint charity commissioner at rajkot as the joint charity commissioner had taken place at rajkot itself. however, the order dated 9th november 1998 was passed by the joint charity commissioner at rajkot sitting at ahmedabad. while the said appeal no.7 of 1998 filed before the joint charity commissioner at rajkot was still pending with him after the passing of the stay order dated 9th november 1998, the incharge charity commissioner, ahmedabad passed the order dated 1.1.1999 recording that as per the discussion before the high court on 30th december 1998, notices be issued to all the parties in these proceedings to be served personally; that the matter is transferred to the joint charity commissioner, ahmedabad under sec. 69 of the bombay public trusts act, 1950 and that the notice be issued to all the affected parties of the change reports nos.15 of 1998 and 142 of 1998 for the date of 8th january 1998 and further that appeal no. 8 of 1998 may also be heard along with the same and be disposed of expeditiously. it is this order dated 1.1.1999 which has been made the subject matter of challenge in special civil application no. 985 of 1999 at the instance of the petitioners named above. it was given out by mr. p.j.kanabar that the incharge charity commissioner, at ahmedabad who passed the order dated 1.1.1999 was the same officer who was the joint charity commissioner at rajkot and since the subject matter of appeals nos. 7 and 8 of 1998 as had been preferred by the parties was the same, he had passed the order dated 1.1.1999 so that both the matters could be heard by him even if he is sitting at ahmedabad although he was in fact the joint charity commissioner, at rajkot. during the pendency of the petitions, the officer, i.e. incharge charity commissioner, ahmedabad who passed the order dated 1.1.1999 has retired and now both the appeals nos. 7 and 8 of 1998 which were preferred under sec. 70 of the bombay public trusts act are to be heard and decided by the joint charity commissioner, at rajkot and therefore, to that extent, the grievances raised against the order dated 1.1.1999 do not survive. however, mr. kanabar appearing for the petitioners in this petition has submitted that the incharge charity commissioner at ahmedabad while passing the order dated 1.1.1999 has referred to the discussion held before the high court on 30th december 1998 and while inviting the attention of this court to the averments made in para 3.5 of this petition, has submitted that at no point of time either any discussion was held or any order had been passed by the high court in any of the proceedings. he has also submitted that the petitioner no.1 of this petition, namely, shri bhanuprakashdasji swami guru harikishandasji, after obtaining the certified copy of the order dated 1.1.1999 passed by the incharge charity commissioner, ahmedabad, had contested this fact before the high court in the proceedings in special civil application no. 10514 of 1998, through his affidavit dated 27th january 1999. however, it has not been disputed by mr. kanabar for petitioners that the incharge charity commissioner, by his reply affidavit dt.3.2.1999 to the petition reiterated the factum of the discussion said to have taken place before the high court in the proceedings in special civil application no. 10514 of 1998 and yet in para 4 of the petition, i.e. special civil application no. 985 of 1999, it has been stated that neither any discussion had taken place before the high court in the proceedings as aforesaid nor any order had been passed by the high court directing the incharge, charity commissioner at ahmedabad to pass the order dated 1.1.1999. it has been submitted that the incharge, charity commissioner, at ahmedabad even otherwise was not authorised to pass the aforesaid order. the actual grievances which the petitioners seek to raise through this petition, i.e. special civil application no. 985 of 1999 as has been orally submitted by mr. kanabar during the course of arguments is that the incharge, charity commissioner, at ahmedabad was not justified in passing an order to issue the notice to the affected parties of the change report no.15 of 1998 and it has been orally submitted that on the basis of this order dated 1.1.1999 whereby the notice was directed to be issued only to the affected parties, the notices were also issued to the parties who were in fact not arrayed as respondents in appeals nos. 7 and 8 of 1998 filed before the joint charity commissioner, at rajkot against the order dated 17th october 1998. the notices had in fact been issued to the two petitioners in special civil applications nos.9465 of 1998, namely, arjanbhai nagjibhai ningala and shri ghanshyambhai bhurabhai as also shri bhupat jivra and gordhan lakha. according to mr. kanabar, these four persons to whom the notices had been issued and served for the date of 8th january 1999 in pursuance of the order of incharge, charity commissioner, ahmedabad, dated 1.1.1999 were not the parties in the proceedings before the assistant charity commissioner nor they were respondents in appeals nos. 7 and 8 of 1998 before the joint charity commissioner, at rajkot and, therefore, there was no question of taking them as affected parties and to issue notices to them in appeals nos. 7 and 8 of 1998. mr. kanabar has submitted that if these four persons are taken as the affected parties, then the very ground which is raised in the three special civil applications, i.e. nos. 9464 of 1998, 9465 of 1998 and 10514 of 1998 stands concluded in favour of those petitioners and against the present petitioners and for this reason, it became necessary for the petitioners to challenge the order dated 1.1.1999. whether these four persons were really the affected parties or not, whether they should have been given the notices of the proceedings which were pending before the assistant charity commissioner or not and whether they were required to be heard in the proceedings before the assistant charity commissioner before passing the order dated 17th october 1998 or not is directly a question on which all these parties have joined issues in the three special civil applications, nos. 9464 of 1998, 9465 of 1998 and 10514 of 1998 and therefore, that question is to be examined while considering the three petitions as above wherein this question has been argued in detail on behalf of both the sides with regard to pleadings and with reference to the relevant provisions of law and therefore, this question will be dealt with in the later part of this order while dealing with the contentions of the parties.4. having given the background as aforesaid with regard to these petitions as above, to complete the chain of the litigations going on between the parties, it may also be stated that in may 1998, special civil application no. 4026 of 1998 had been filed by one dr.maganbhai bhimjibhai and three others seeking compliance of the order dated 2nd march 1998 passed by the joint charity commissioner, at rajkot against respondents nos. 5 to 11 of that petition, i.e. patel arjanbhai nagjibhai ningala and ghanshyambhai bhurabhai i.e. petitioners in special civil application no. 9465 of 1998 and bhupat jivram and gordhan lakha, i.e. parties to whom the notice was directed to be issued by the incharge, charity commissioner, on 1.1.1999 treating them as affected parties, swami satyaprakashdasji, petitioner no.1 in special civil application no. 9464 of 1998 and petitioner in special civil application no. 10514 of 1998 and ghanshyambhai bhurabhai, petitioner no.2 in special civil application no. 9465 of 1998 and brahmachari swami, the prayer was made that respondents nos.5 to 11 in this petition, i.e. special civil application no. 4026 of 1998 may follow the directions of the joint charity commissioner, rajkot issued on 2nd march 1998 and that these respondents should not take charge of the trust properties and a declaration was sought against them that they had no right or authority to interfere with the administration of the trust and its properties, till their names are registered in the public trust register, schedule-i of shri gopinathji dev mandir trust i.e. respondent no.4 in special civil application no. 4026 of 1998. in this special civil application no. 4026 of 1998, an order was passed in the civil application no. 4656 of 1998 on 1.6.1998 (coram: a.k.trivedi, j.) whereby the ad-interim relief which had been granted in the proceedings had been vacated. against this order passed on 1.6.1998 in civil application no. 4656 of 1998 in special civil application no. 4026 of 1998, two letters patent appeal nos. 687 of 1998 and 689 of 1998 were filed and in one of the letters patent appeals, i.e. in letters patent appeal no. 689 of 1998, an order was passed by the division bench on 16th june 1998. the operative part of this order is reproduced as under:'........accordingly, it is ordered that in the meanwhile, following part of the order passed by the learned single judge in para 16 shall remain stayed: 'under the circumstances, the applicant is not entitled to claim the direction against opponents no.1 to 4 to hand over the possession of the trust property unless change is recorded in the register kept under section 17 of the act.' thus, the aforesaid direction contained in the order of the learned single judge shall not come in the way of the trustees who were elected in the elections held on 14th december, 1997 and the result of which was declared on 15th december, 1997 and irrespective of the question of the entry of their names in the public trust register maintained under section 17 of the act, the elected trustees will be entitled to function as the trustees of shri gopinathji devmandir trust and its subordinate temples trust, gadhda. it is further ordered that the assistant charity commissioner who has been directed by the impugned order passed by the learned single judge to expedite the proceedings of inquiry regarding change report under section 22 of the bombay public trusts act, shall pass the final order before 24th june, 1998 positively and in doing so, he would only take notice of the factum of the elections which took place in december, 1997 and the result of such election as declared by the returning officer appointed by this court without going into the validity, correctness and propriety of the elections including the result because the election dispute is already a subject matter of pending civil litigation. it will be the duty of the assistant charity commissioner to place a copy of the order which he may place on the record of this case on or before 24th june, 1998. direct service permitted.sd/- sd/- (m.r.calla, j.) (j.r.vora, j.)'against this order dated 16th june 1998 passed by the division bench in the letters patent appeals, special leave petitions (civil) nos.10371-72 of 1998 which were converted into civil appeals nos.3191-3192/98 were preferred. the supreme court did not feel inclined to interfere with the order as was passed by the division bench and passed the order dated 22nd june 1998 in the following terms:'leave granted.heard both sides. we are not inclined to interfere with the interim order passed by the high court on 16.6.1998.learned senior counsel for the appellant however submits that the high court ought not to have restricted the scope of inquiry by the assistant charity commissioner by stating that he should only take into notice the factum of the election without going into the validity, correctness and propriety including the result thereof. learned senior counsel submits that the assistant charity commissioner can go into those issues in proceedings under section 22 of the bombay public trust act. on the other hand learned senior counsel for the respondent submits that the gujarat high court has already decided that the assistant charity commissioner cannot go into those issues and that the high court was right in not permitting the assistant charity commissioner to go into the said issues. in reply learned senior counsel for the appellants submits that there are also decisions in his favour which say that the assistant charity commissioner can go into these issues.it is not necessary for this court to say anything on the above disputes. it will be open to the parties to raise their respective contentions before the assistant charity commissioner regarding the scope of section 22 and the jurisdiction of the assistant charity commissioner to go into these issues. it is clarified that the observations of the high court restricting the scope of the inquiry before the assistant charity commissioner will not therefore be binding on him.we would not be understood to have expressed anything on the merits regarding the scope of section 22 or the jurisdiction of the assistant charity commissioner.subject to the above, these appeals are dismissed. sd/- sd/- (m.jagannadha rao) (s.rajendra babu) delhi june 22, 1998.'thereafter the letters patent appeals nos. 687 of 1998 and 689 of 1998 came up before the division bench and both these letters patent appeals were decided by a common order on 10th july 1998 and the part of the said order dated 10th july 1998 is reproduced as under:'in the meantime, the assistant charity commissioner had passed an order on 23rd june 1998 deciding the controversy keeping in view the interim order dated 16th june 1998 passed by this court with regard to the scope of inquiry under section 22.while mr. h.b.shah appearing for the appellant in letters patent appeal no. 689/98 seeks ti withdraw lpa no. 689/98 and mr. nirupam nanavati appearing for the appellant in letters patent appeal no. 687/98 seeks to withdraw lpa no. 687/98 as also the special civil application no. 4026/98, pending at admission stage, mr. nanavati submits that it may be clarified that notwithstanding the order dated 23rd june 1998 passed by the assistant charity commissioner in the light of the interim order dated 16th june 1998 passed by this court in lpa no. 689/98, now he may decide the matter afresh keeping in view the clarification given by the supreme court.it is the common case of the parties that the elected members have already taken over and are now functioning as the trustees of the concerned trust and they have taken over after the interim order dated 16th june 1998 passed by this court.in the facts and circumstances of this case, while both the letters patent appeals nos.687/98 and 689/98 are dismissed as withdrawn and special civil application no. 4026/98 is also dismissed as withdrawn, it is made clear that the assistant charity commissioner would now proceed de novo to pass order afresh in the light of the clarification made by the supreme court as above with regard to the scope of inquiry under section 22. it will be open for both the sides to put up their respective case with regard to the scope of enquiry under section 22 before the assistant charity commissioner and to raise all submissions on all aspects as may be available to them. as and when such order is passed by the assistant charity commissioner it will be that order which will govern the rights of the parties subject to order which may be passed by next higher authority or court in such further legal remedy which may be available to either of them in accordance with law.both these letters patent appeals are accordingly dismissed as withdrawn. a copy of this order will also be included in the record of special civil application no. 4026 of 1998 as the same also stands dismissed as withdrawn in terms of this order and the notice if any issued therein stands discharged. the concerned trust to bear the cost of the assistant charity commissioner for this litigation in accordance with law.'16th september 1999it further appears from the order dated 9th november 1998 passed below application exh.4 in the appeal which had been filed by the appellants that the prayer for staying the order dated 17th october 1998 passed by the assistant charity commissioner was rejected and the joint charity commissioner, rajkot, camp at ahmedabad, declined to stay the order dated 17th october 1998 and that he also set aside the ad interim order dated 28th october 1998 and according to the change report no.142 of 1998, the trustees could take over the administration of the trust in the interest of the trust. this order dated 9th november 1998 was itself stayed till 16th november 1998 and an order was also passed that during the period from 9th november 1998 to 16th november 1998, the appellant shall not take any policy decision with regard to the administration of the trust except the routine work nor they will call any meeting of the trust.5. when this special civil application no. 9464 of 1998 filed on 12th november 1998 came up before the court on 13th november 1998, the matter was made to stand over to 17th november 1998 with the order that the stay granted by the appellate authority to continue till 18th november 1998. the matter was made to stand over on various dates subsequently with the consent of the parties and each time the order as was passed on 13th november 1998 was continued and when the matter came up before the court on 30th april 1999, it was made to stand over to 29th june 1999 and the interim relief was extended till then. on this date, i.e. 30th april 1999, it was also recorded by the court (coram: hon'ble d.c.srivastava,j) that mr. kanabar, learned counsel has stated that he may be permitted to approach the honourable chief justice for listing the case before another bench for hearing at an early date and necessary permission was granted. it further transpires that after the passing of the aforesaid order dated 30th april 1999 and directing the matter to stand over to 29th june 1999, letters patent appeal no. 705 of 1999 was filed in special civil application no. 9464 of 1998 against the adjourning the hearing of this special civil application to 29th june 1999 and when this letters patent appeal came up before the division bench, the submission of the learned counsel was noted by the division bench that by virtue of the interim order passed by the learned single judge, the appellant was unable to assume as office bearer of the trust and it was prayed that the interim order passed by the learned single judge be vacated and the matter be heard afresh. the division bench did not feel inclined to interfere with the order and both the sides agreed before the division bench that they would be ready for the final hearing of special civil application no. 9464 of 1998 along with special civil applications nos. 9465 of 1998 and 10514 of 1998 and the office was directed to post these matters before the learned single judge taking up non-service matters on 29th june 1999 and the letters patent appeal was disposed of as withdrawn. on 29th june 1999 when the matters came up before this bench the matter was made to stand over to 2nd july 1999 as prayed and the interim relief was continued. on 2nd july 1999, the arguments commenced and the interim relief was continued even thereafter on several dates. on 4th august 1999, the rule was issued after hearing both the sides. the service was waived by the respondents and the request was made on behalf of both the sides that the matter may be finally heard on the basis of the existing pleadings and the material on record. accordingly, the matter was taken up for final hearing on that date, i.e. 4th august 1999 itself and the interim relief was ordered to be continued till the final disposal of the matter.6. on behalf of the petitioners in these three petitions as above, the orders dated 17th october 1998 passed by the assistant charity commissioner, bhavnagar at annexure.'n' at page nos.153 to 157 in special civil application no. 9464 of 1998 with regard to the change report no.142 of 1998 and the order dated 9th november 1998 passed by the joint charity commissioner, rajkot at annexure.'q' at page nos.200 to 212 of special civil application no. 9464 of 1998 have been assailed. it may be clarified that the appeals nos.7 and 8 of 1998 under sec.70 of the bombay public trusts act are still pending before the joint charity commissioner and the controversy has come up before this court against the order dated 17th october 1998 itself as passed by the assistant charity commissioner because of the fact that in appeal, the joint charity commissioner has declined to stay the order dated 17th october 1998.7. while the impugned orders dated 17th october 1998 and 9th november 1998 have been assailed on grounds more than one by the petitioners, at the very threshold these petitions were opposed by mr. p.m.thakkar, learned counsel appearing for the respondents by saying that so far as the petitioners in special civil application no. 9464 of 1998 and special civil application no. 10514 of 1998 are concerned, no adverse order has been passed by the assistant charity commissioner and therefore, they cannot be aggrieved if the stay has been declined by the joint charity commissioner against the order dated 17th october 1998 and as such, the petitioners in these two special civil applications cannot have any legitimate cause of grievance to file these petitions and these petitions must be straightway rejected on this ground alone. it has been further submitted by mr. thakkar while opposing the special civil application no. 9465 of 1998 that the petitioners in this petition had not availed the remedy of appeal under sec.70 of the bombay public trusts act before the joint charity commissioner and therefore, they have no locus-standi to maintain this petition before this court nor they have any locus-standi to challenge the order dated 9th november 1998 as has been passed by the joint charity commissioner declining the stay against the order dated 17th october 1998. so far as this special civil application no. 9465 of 1998 is concerned, in sum and substance, the argument of mr. thakkar is that they have failed to avail the statutory remedy as provided under the act and they have straightway come before this court and therefore, this petition should be rejected on the said ground alone. 8. before i proceed further to deal with the rival claims of the parties on merits, it will be proper to decide the aforesaid objections as have been raised by mr. thakkar while opposing these petitions. the basic fact is that the election (election held on 14.12.97 and result declared on 15.12.97) of the trustees was made the basis for the change report so as to enter the new names in the public trust register and such change report was sought to be opposed on the ground that the election itself was not a valid election. in this context when the validity of the whole election was under challenge, all those who were concerned with the election were directly concerned with the question of the change report and therefore, in such matters, when the elections are held and the members are elected belonging to a group, the interests of such members inter-se are interconnected for the purpose of functioning of the trust as a whole and therefore, even if no order has been passed by the assistant charity commissioner against the petitioners of special civil application no. 9464 of 1998 and special civil application no. 10514 of 1998, when the appeals filed by them before the joint charity commissioner have been duly entertained and the order is passed on the application which had been moved, i.e. application exh.4, it cannot be said that since there was no order passed by the assistant charity commissioner against these individuals, they cannot maintain the petition. the order had been passed on application exh.4 in the appeal which had been filed by these petitioners also and in that appeal, if an order was passed rejecting their application, how it can be said that they could not have challenged such order because what is under challenge is the change report and if they feel aggrieved against the order as was passed by the assistant charity commissioner (may not be adverse to these individuals) which does impinge upon the validity of the election of other elected trustees whom they may have supported and in whom they may be interested as against others. therefore it cannot be said that the petitions filed by these petitioners should be thrown out on this ground alone and that they are not aggrieved parties. if an order is passed in exercise of a statutory power by a statutory authority under an act, such order may give rise to multiple grievances and even if such grievances are not centered around or are not directly against any individual person, such individuals who are members of the trust looking to the body of the trust as well as being their essential constituents, it is open for them to challenge such orders which may directly affect the constitution and functioning of the trust and they can certainly be considered as aggrieved parties even if some other members of the trust are denied to be enrolled as the members and if their names are refused to be entered in the public trust register on the basis of the change report. such change report decides as to who ultimately should be the members of the trust so as to function and administer the affairs of the trust and therefore, in the considered opinion of this court, these two petitions cannot be thrown out on this ground alone on the objection which has been raised by mr. thakkar and therefore, this objection as was raised by mr. thakkar while opposing these petitions is hereby rejected.9. the other preliminary point as has been raised by mr. thakkar while opposing the special civil application no. 9465 of 1998 that the petitioners of this petition did not avail the remedy of appeal under sec.70 of the bombay public trusts act and the petition is not maintainable at their instance, also cannot be accepted for reasons more than one. firstly, the question of throwing out a petition on the ground of alternative remedy has to do with the self-imposed discipline by the court while exercising extra ordinary jurisdiction and it is the trite and settled law that the court while exercising the power under article 226 of the constitution of india is not divested of the power to entertain the petition straightway even if the same is filed without availing such a remedy. it depends on the facts and circumstances of each case as to whether the petitions even if filed without availing the alternative remedy should be entertained or not. in the instant case, the petitioners in special civil application no. 9465 of 1998 have come with a grievance that no notice was given to them by the assistant charity commissioner before passing the order dated 17th october 1998 and therefore, there was a complete negation of the principles of natural justice, the order dated 17th october 1998 has been passed without affording any opportunity to these petitioners and therefore, that order as was passed by the assistant charity commissioner is ab-intio, null and void order rather a nonest order and against such an order, it was open for the petitioners to file the petition straightway irrespective of the fact as to whether the remedy of appeal under sec.70 of the bombay public trusts act was availed or not. whether these petitioners were necessary parties to those proceedings or not, or as to whether they were affected parties or not will be considered in the later part of this order, but for the purpose of considering this preliminary objection so as to throw out the petition it will be sufficient to say that as a matter of fact, even this fact has not been pleaded on behalf of the respondents while opposing the petition that in fact a formal notice had been given to these petitioners by the assistant charity commissioner while the case of the petitioners is that no notice was given to them and yet the order had been passed against them by the assistant charity commissioner to the extent of denying them the fruits of the entire result of the election. in the opinion of this court, such an order which impinges upon the election to the trust and the denial of the status of the elected trustees so as to get the names entered in the public trust register on the basis of the election is certainly open to challenge by every elected trustee. the orders which are passed while considering the change report so as to deny the entry of their names as elected trustees in the public trust register is certainly an order to the prejudice of those who have been elected and in such cases, to say that their rights were sought to be represented by some other trustees or that they were otherwise in know of the fact with regard to the proceedings being taken by the assistant charity commissioner as initiated at the instance of some other parties, is no answer to the requirement of the following of principles of natural justice. such a course of action is alien to the basic requirements in proceedings of this nature. in such cases, the requirement of strictly following the principles of natural justice may be burdensome to some minds, but this price, a small price indeed has to be paid if at all we mean the rule of law to prevail. therefore, this court finds that the present special civil application no. 9465 of 1998 filed by the petitioners is not liable to be thrown out on this ground and it is certainly open for them to challenge the order dated 17th october 1998 by way of filing this petition, more particularly when it is not in dispute rather it is an admitted position between the parties that these petitioners had been declared elected, it is a different question as to whether such a declaration that they had been elected is liable to be challenged before asstt.charity commissioner or not or such a challenge may or may not succeed, but their right to challenge the order passed by the assistant charity commissioner on 17th october 1998 cannot be made to be defeasible on the ground that they failed to avail the remedy of appeal under sec.70. it was also pointed out on behalf of the petitioners in special civil application no. 9465 of 1998 that the order as had been passed on 17th october 1998 by the assistant charity commissioner was open to be appealed against uptil 17th december 1998 as the limitation prescribed for filing the appeal under sec.70 is 60 days and whereas one such appeal had already been filed in which the order dated 17th october 1998 had been stayed on 28th october 1998 and the application which had been filed at exh.4 by the petitioners in the appeal before the joint charity commissioner had also been decided on 9th november 1998 and in november 1998 the special civil applications had also been filed before this court against the orders dated 17th october 1998 and 9th november 1998, no effective and useful purpose could have been served by filing the appeal before the joint charity commissioner under sec.70 against the order dated 17th october 1998. this explanation as has been given for not filing the appeal against the order dated 17th october 1998 cannot be brushed aside and the explanation rather appears to be plausible and reasonable inasmuch as the period of limitation was not yet over and even before the expiry of the period of limitation of 60 days i.e. 17th december 1998, the controversy had already reached this court on the basis of the order passed by the joint charity commissioner rejecting the application exh.4 and therefore, the petitioners in this special civil application no. 9465 of 1998 also chose to prefer the petition before this court so that the entire controversy is decided once for all. it is, therefore, clear that the objection raised by mr. thakkar against the maintainability of this special civil application no. 9465 of 1998 cannot be sustained in the eye of law and this court does not feel inclined to throw away this special civil application on this ground alone. this objection is, also, therefore, rejected.10. now coming to the validity, legality, propriety and correctness of the order dated 17th october 1998 as has been passed by the assistant charity commissioner and the order dated 9th november 1998 as has been passed by the joint charity commissioner, it may be stated that in the election results which were declared by the returning officer on 15th december 1997 as appears from annexure.a at page nos.38 to 40 of special civil application no. 9464 of 1998, out of 12 candidates in all in contest, the following four persons were declared elected with the votes polled in their favour as mentioned against their names:(1) arjanbhai nagjibhai, 2665 (2) ghanshyambhai bhurabhai, 2649 (3) bhupatbhai jivrabhai, and 2589 (4) gordhanbhai lakhabhai. 2733as against this, the other candidates who secured votes mentioned against their names could not be declared elected:(1) raghavbhai naranbhai, 2388 (2) manjibhai vashrambhai, 2427(3) gokulbhai nanjibhai, 2453(4) ghanshyambhai ramjibhai, 2434(5) madhubhai dharamshibhai, 143 (6) ghanshyambhai popatbhai, 221 (7) chinulal parshottambhai, and 116 (8) babubhai kanjibhai. 4917th september 1999after declaration of the results as aforesaid before the assistant charity commissioner, bhavnagar, two change reports nos.15 and 142 of 1998 were made and in change report no.15 of 1998, the assistant charity commissioner passed an order dated 21.9.1998 rejecting the application exh.63 and further ordering that if the applicants of change report no.15 of 1998 failed to produce the evidence on the adjourned date, i.e. 7.10.1998, all the rights of leading evidence will be treated as closed. it is further ordered that leading of evidence in change report no.142 of 1998 is further proceeded. thereafter the order dated 17th october 1998 was passed in change report no.142 of 1998. by this order dated 17th october 1998, the names shown in the change report no.142 of 1998, i.e. (1) raghavbhai naranbhai, (2) mavjibhai vashrambhai, (3) gokulbhai nanjibhai, (4) ghanshuambhai ramjibhai, (5) k.p.nanaji bhagat, and (6) swami satyraprakashdasji as were declared elected on 30th may 1998 pursuant to the report of the inspector and the same has been taken into consideration. it was found that these six persons having got more votes than the persons declared elected earlier they are declared elected now, and (7) brahmachari ishwaranandaji is elected uncontested; the persons at sr.nos. 1 to 5 and 7 had submitted their consent letters to act as trustees and hence it was ordered that their names should be entered in the public trust register and as no consent letter of satyaprakashdasji was available, his name may be entered in the public trust register upon receipt of consent letter from him. the said order was passed in pursuance of the report by the inspector mr. patel at exh.12. the note of this order was also made in the public trust register.11. so far as this order dated 17th october 1998 is concerned, this is the basic order under challenge and the proceedings in which the stay order has been passed has also been challenged on grounds more than one. on the basis of these pleadings and the submissions as have been made before this court, this court finds that there are three principle contentions which require consideration of this court: (1) whether the assistant charity commissioner under sec. 22 of the act has jurisdiction to enter into the question of validity or otherwise of the election of the trustees?(2) whether the entire proceedings on the basis of which the order dated 17th october, 1998 has been passed stand vitiated because other trustees were not served with any notice by the asstt. charity commissioner and, therefore, the order dated 17th october, 1998 is rendered illegal?(3) whether there are any procedural lapses in the inquiry held by the assistant charity commissioner so as to render the order dt.17th october, 1998 to be illegal?12. for the purpose of considering the first principle contention as to whether the assistant charity commissioner had the jurisdiction to enter into the validity or otherwise of the election of the trustees is concerned, section 22 of the bombay public trusts act is to be seen which is reproduced as under:section 22. change. (1) where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within ninety days from the date of occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the deputy or assistant charity commissioner in-charge of the public trusts registration office where the register is kept. such report shall be made in the prescribed form. (1a) (new) where the change to be reported under sub-section (1) relates to any immovable property, the trustee shall, along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, forwarding it to the sub-registrar referred to in sub-section (7) of section 17. such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in this behalf. (2) for the purpose of verifying the correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the deputy or assistant charity commissioner may hold an inquiry. (3) if the deputy or assistant charity commissioner, as the case may be, after receiving a report under sub-section (1) and holding an inquiry, if necessary, under sub-section (2) or merely after holding an inquiry under the said sub-section (2), is satisfied that a change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, he shall record a finding with the reasons therefor to that effect. such finding shall be appealable to the charity commissioner. the deputy or assistant charity commissioner shall amend the entries in the said register in accordance with such finding and if appeals or applications were made against such finding, in accordance with the final decision of the competent authority as provided by this act. the amendments in the entries so made shall, subject to any further amendments on the occurrence of a change, be final and conclusive.'although learned counsel for both the sides have relied upon various provisions in this regard with reference to the act and the rules, i find that so far as the civil courts are concerned, the power of jurisdiction has been provided under sec. 80 and according to section 80 of the bombay public trusts act, save and expressly provided in this act, no civil court shall have jurisdiction to decide or deal with any question which by or under this act is to be decided or dealt with by any officer or authority under this act, or in respect of which the decision or order of such officer or authority has been made final and conclusive. although the civil proceedings in these proceedings had also been initiated by the parties represented through mr. thakkar, he too has submitted before this court that the jurisdiction of the civil court is barred and he has also placed reliance on the provisions of sec. 22 to argue that the inquiry into the validity of the election could be held by the assistant charity commissioner under sec. 22 and such a position according to mr. thakkar was sought to be contested by the learned counsel by saying that having invoked jurisdiction by filing the civil suit, it is not open for the party to take a somersault to submit that the validity of the election could be gone into under sec. 22. in such matters, when there are relevant provisions of law governing the matters, there cannot be any estoppel so far as the position of law is concerned and therefore, de-hors the conduct of the parties, the question is required to be decided on the basis of the relevant provisions contained in the act itself. i do agree with the submissions made by mr. vakharia that no party can be allowed to approbate and reprobate, to blow hot and cold in the same breath, to play fast and loose, and to eat the cake and have it too and i also agree with the factual submissions made by mr. vakharia that the civil suit is still pending, yet the scope of sec. 22 requires to be examined independent of the conduct of the parties. in cases where the very basis of the conduct of elections by the returning officer is challenged before making the entries in the public trust register, and the assistant charity commissioner has been clothed with the power to hold the inquiry as to whether any change was warranted or not, it is difficult to say that the assistant charity commissioner could not embark upon the inquiry about the validity, correctness and propriety of the elections before effecting the change as desired on the basis of the elections, the validity of which had been questioned. mr. thakkar has cited the following cases in this behalf: (1) 1962 glr 117 (shantilal khimchand and ors. v. mulchand dalichand and ors.), (2) air 1983 bombay 404 (dinanath ajabrao ingole and anr. v. shetkari shikshan prasarak mandal, wardha and ors.), (3) 1996(3) glr 307 (acharyashree mahaprabhujini ramavaswala bethak mandir trust, godhra and ors. v. chokshi ratilal chandulal and ors.- para 13 and 14 thereof), (4) air 1982 gujarat 129 (maganbhai madhabhai and ors. v. ambalal bhikhabhai patel and ors. - making reference under section 56a, and (5) 1961 (2) glr 564 (kuberbhai shivdas and anr. v. mahant purshottamdas kalyandas and ors.) - laying down that the bombay public trusts act is a complete code and inquiry is conclusive. while making reference to the provisions as contained in sections 22(3), 26t, 2(4), 18, 49 and 50 the suits relating to public trusts, section 56a providing that the district court can be approached and the powers of the trustees to apply directly-- it has been submitted that an inquiry would certainly be made by the assistant charity commissioner. a reference is also made to para 14 of the affidavit of mr. patel at page nos.267 to 282. it has been submitted that the interim order of recounting and rejection of the change report no.15 of 1998 has not been challenged and what has been challenged is the acceptance of the change report no.142 of 1998 only. on the analysis of these relevant provisions, according to the scheme of the act and the decisions which have been relied upon, this court finds that the bombay public trusts act is a complete code and prima facie the jurisdiction of the civil court is barred under sec.80 of the bombay public trusts act and as has been held in the case of shantilal khimchand and ors. (supra), the validity of the appointments made to the trust could be gone into on the basis of the provisions which are pari materia or identical and, therefore, it cannot be said that merely because in the instant case, the appointment of the trustees was by election, the validity of the election could not be gone into by the assistant charity commissioner and accordingly i hold that the assistant charity commissioner in accordance with the provisions of sec. 22 could enter into the inquiry with regard to the validity of the elections for the purpose of effecting the change so as to make the entries in the public trust register.12. the next contention is as to whether the other trustees were required to be served with the notice by the assistant charity commissioner or not before passing the order dated 17th october 1998. in this regard, the contention raised by mr. nanavati and mr. vakharia that no notice had been given to the trustees has not been disputed as a question of fact. all that has been said by mr. thakkar is that they were aware of the proceedings as they were going on before the assistant charity commissioner and their rights were duly represented by the parties by swami satyaprakashdasji in the proceedings. mr. thakkar has very candidly admitted before this court that no formal notice had been given to the other trustees but his contention is that no such notice was required to be given because they themselves knew about the proceedings as they were going on before the assistant charity commissioner and swami satyaprakashdasji has throughout acted for the trustees and they had not suffered any prejudice and it is also submitted that no independent notice is contemplated. he has also cited the cases of (1) air 1991 sc 1309 (s.p. gupta and ors. v. u.p. state electricity board and ors.), and (2) (1998) 6 scc 79 (union of india and anr. v. mustafa & najibai trading co. and ors.- at page 82 head note (f). he has also submitted that there is no statutory requirement of any formal notice and the argument with regard to the notice is only with reference to the principles of natural justice. these submissions as have been made by mr. thakkar have been sought to be contested by mr. vakharia and he has submitted that even if the inquiry under sec. 22 is held by the assistant charity commissioner, the proceedings in this inquiry even according to the provisions of sec. 22(3) are quasi judicial proceedings. he has also submitted that page 213 in special civil application no. 9464 of 1998 would show that so far as the representation through swami satyaprakashdasji is concerned, the other trustees had given only the consent letters indicating their readiness to act as trustees but that did not mean that they had authorised through these consent letters even for the purpose of the proceedings in which any order to their prejudice could be passed so as to set aside the orders, which were in their favour. mr. vakharia has made a reference to the bombay public trusts rules, rule nos.9 and 11 thereof and has also cited the case of charity commissioner, ahmedabad v. state of bombay (now the state of gujarat and ors.) reported in 1993 glh 94, a division bench decision of this court - head note (c) para 69 at page 132 and also sought to distinguish the decision in the case of saiyad mohammad bakar el-edroos (dead) by lrs v. abdullahbib arab and ors.) reported in (1998) 4 scc 343 para 3 at page 346 on the basis that we are not concerned with the presidency small cause courts act and we are in this case concerned with the provincial small cause courts act and the reference has been made to sec.17. he has submitted that there is no such section like sec.17 of the presidency small cause courts act in the provincial small causes courts act and reliance has also been placed on section 50a on the basis of which it was submitted that the notice was not necessary when the action is suo motu.13. mr. p.g.desai, learned government pleader has made reference to page 271 and page 75 of the affidavit-in-reply (see para 14) and page 274. he has also submitted that under sec. 41, the power has been given to the charity commissioner under the bpmc act to issue directions for administration of the trust properties.14. mr. p.j.kanabar has submitted that the inquiry suo motu is also permissible under sec.22. a reference was also made to sec. 20 and he has submitted that even otherwise, the assistant charity commissioner can hold the inquiry. a reference has been made to sec.73 and 76 and he has also placed reliance on the case of a.r. antulay v. r.s. nayak and anr. reported in (1988) 2 scc 602.15. i have considered the submissions made and the law cited on this aspect of the matter in detail by the parties. there is no doubt that even if an inquiry is permissible by the assistant charity commissioner under sec.22 for the purpose of verifying as to whether any change was required and for that matter even if it is taken as has been held in the earlier part of this order that he could enter into the question of the validity of the elections which had been held, it has to be agreed on all hands that such proceedings are certainly the proceedings in the nature of quasi judicial proceedings. while dealing with such matters which may ultimately result into the order to the prejudice of any party to the extent of denying him the benefit of declaration in his favour though he had been elected and so as to set aside such an election and to deny the entry of his name in the public trust register, there cannot be any hearing by proxy or through someone else who had only been authorised to give the consent letter that the other trustees were prepared to function as trustees. no authorisation by the other trustees had been given to swami satyaprakashdasji to act on their behalf. since the consent is required for the purpose of effecting the change, the consent letters were given to him by the other trustees. such consent letters had a very limited scope and on that basis, it cannot be said that the parties' consent to swami satyaprakashdasji was enough to take care of the interest of these trustees for the purpose of adjudication of the validity of their election. it is established from the order dated 17th october 1998 itself that the assistant charity commissioner has gone into the validity of the elections and even ordered the inspection of the ballots, recounted them and on that basis the entire election which had been declared by the returning officer on 15th december 1997 has been revised to the prejudice of such other trustees to whom no notices had been given. the requirement of such notice is inherent by the very nature of the proceedings which are undertaken under sec.22. right from the day one when the proceedings were initiated before the assistant charity commissioner and he initiated enquiry under sec.22 so as to satisfy himself as to whether the change has occurred or not, the interest and rights of such other trustees on the basis of such an election became open and the entire process was undertaken and the entire inquiry was held in their absence. when orders to the prejudice of a party is passed, such party may always have a genuine feeling that the order to his prejudice has been passed at his back and without hearing him and such course of action certainly militates against the basic tenets on which the quasi judicial proceedings are required to be conducted. even in cases when the orders which are penal in nature or orders which can be said to be passed to the prejudice of a particular party are required to be passed in exercise of administrative powers, the action inspired notice is required to be given to such parties. here is a case in which a very valuable right of the other trustees as to whether they could function as the trustees of the trust in question or not was open at large in this inquiry and it is no answer to say that they were aware of the proceedings going on with regard to the change report and in cases when the validity of an election of any elected party is made a subject matter of inquiry, such party is certainly required to be given a formal notice so that he can come and defend himself. in the instant case, when the orders were passed about the inspection of the ballot papers and the inspector's report was obtained and on that basis the exercise of recounting was undertaken, how such an argument can be countenanced that all this exercise could be undertaken by the assistant charity commissioner in absence of those who had been elected. as a matter of fact, the validity of the elected candidates cannot be even touched tangentially, unless the party concerned is put to a formal notice to come and defend his election. but in the instant case not only that their election has been set aside and in their place some other trustees have been declared elected and inducted, they have been permitted to function as the trustees. this court is, therefore, of the considered opinion that the entire proceedings before the assistant charity commissioner which have culminated in to the order dated 17th october 1998 are vitiated and such an order dated 17th october 1998 cannot be sustained in the eye of law and the same deserves to be quashed and set aside.16. while taking up the third principle contention with regard to the procedural lapses in the inquiry held under sec.22 by the assistant charity commissioner, during the course of arguments, the following lapses have been pointed out on the questions with regard to the absence of the application for recounting, absence of the allegations and evidence in this regard so as to justify the order of recounting, and that the order of recounting as such could not have been passed, that the proceedings challenging the elections and recounting were pending before the civil court, the manner in which the proceedings were held under hot haste, the ballot boxes were opened on 2.5.1998, i.e. saturday in presence of the group aspiring to be trustees and that even on 2.5.1998 no application had been moved for recounting based on the result of the inspection dated 29th may 1998 and that the inspector had given his report on 30th may 1998, it was pointed out that on 4th may 1998, the returning officer had sent the letter to the assistant charity commissioner that the election material had been tampered but the assistant charity commissioner did not make any inquiry.17. whereas it has already been held in the earlier part of this order that the inquiry proceedings and the result and the ultimate order dated 17th october 1998 passed by the assistant charity commissioner cannot be sustained for the basic reason that these proceedings are in violation of principles of natural justice and no notice had been given to the other trustees before passing this order, i do not find it necessary to go into the procedural lapses in the course of inquiry held by the assistant charity commissioner. of course, it is true that if these lapses are found to be factually correct with reference to the record, these procedural lapses cannot be said to be insignificant or immaterial, but whereas i have already held that the notice was necessary and the impugned order cannot be sustained, it is no more necessary for this court to adjudicate these procedural lapses although much stress was laid by mr. nanavati and mr. vakharia on these procedural lapses to hold that the proceedings and the impugned order dated 17th october 1998 should also be examined on the basis of these procedural lapses and if the same are found to have culminated into the order dated 17th october 1998 the same should also to be quashed and set aside on these grounds.18. there is no dispute that in these petitions, the order dated 17th october 1998 passed by the assistant charity commissioner as also the order dated 9th november 1998 passed by the joint charity commissioner in appeal have been challenged and in fact it had been filed only after passing the order dated 9th november 1998 and the appeals nos.7 and 8 are pending before the joint charity commissioner, once the basic order dated 17th october 1998 as had been passed by the assistant charity commissioner itself goes as the same cannot be sustained in the eye of law, the subsequent proceedings, i.e. appeals nos.7 and 8 pending before the joint charity commissioner automatically come to an end as the basic order dated 17th october 1998 which had given rise to the filing of the appeals itself has been found to be illegal. it is, therefore, not at all necessary for this court to now examine the impugned order dated 9th november 1998 as this interim order dated 9th november 1998 automatically comes to an end and ceases to be operative, with the end of the proceedings in appeal as the order impugned in the appeal itself has been found to be illegal.19. the net result of the adjudication as aforesaid is that these three special civil applications nos. 9464 of 1998, 9465 of 1998 and 10514 of 1998 succeed. the order dated 17th october 1998 as had been passed by the assistant charity commissioner is quashed and set aside. the impugned interim order dated 9th november 1998 passed in appeal proceedings, i.e. appeals nos. 7 and 8 of 1998 before the joint charity commissioner automatically comes to an end including the proceedings in the appeals themselves and the proceedings in both these appeals automatically stand terminated. the position of the petitioners as was obtaining prior to the passing of the order dated 17th october 1998 stands relegated in their favour with all legal consequences and the assistant charity commissioner shall proceed further in accordance with law on the basis as aforesaid.20. whereas it has been held as above that the other trustees were necessary parties, the limited grievance which remains to be decided in special civil application no. 985 of 1999 is as to whether such other trustees were affected parties or not stands decided against the petitioners in this special civil application no. 985 of 1999 and the grievance raised by these petitioners in special civil application no. 985 of 1999 is not found to be legitimate . accordingly, this special civil application no. 985 of 1999 is hereby dismissed.21. as a result the special civil applications nos.9464 of 1998, 9465 of 1998 and 10514 of 1998 are allowed, the rule is made absolute in each of these three petitions and as special civil application no. 985 of 1999 is dismissed, the rule is discharged therein.22. since the main petitions have been allowed, there is no need to continue the interim order now. the interim order dated 16th july 1999 ceases to be operative. no order as to costs.