JUDGMENT : 1. RULE. Learned Assistant Government Pleader waives service of rule on behalf of the respondent-state. 2. This petition is filed under Article-226 of the Constitution of India against the order dated 31-05-2016 in Misc. Civil Application No. 24 of 2016 passed by the respondent No.1- Joint Charity Commissioner. 3. It is the case of the petitioner who happens to be one of the Trustees of the Kapadia Education Trust that as there are disputes pending between the Trustees of the Trust and several Change Reports are pending before the Joint Charity Commissioner for the purpose of quick and final disposal of such Change Reports, so as to enable the Trust to operate properly, the application was moved by the petitioner invoking Section-41 of Bombay Public Trust Act. 4. Learned Advocate for the petitioner submitted that the dispute is existing between the petitioner no.1 and respondent No.2, who are the Trustees of this Trust. The Trust manages several schools and by way of internal arrangement, some schools are being exclusively managed by respondent No.2, whereas some schools are exclusively managed by the petitioner. It is the grievance of the petitioner that the respondent No.2 over and above managing his own schools, is interfering in the functioning of schools, which are managed by the petitioner, which includes his unruly behavior in the school premises causing an atmosphere not conducive for students and working staff. 5. It is the case of the petitioner that misinterpreting the contention of the petitioner and misreading the relief, the respondent No.1-Joint Charity Commissioner proceed to pass the order purportedly under Section-41(A) of the Bombay Public Trust Act, which in fact is introducing a complete outsider into the Trust and virtually, rendering the functioning of the trust paralyzed. It is the case that respondent No.1- Joint Charity Commissioner was acting at behest of the respondent No.2- Co-Trustee against the interest of the petitioner. 6. Learned Advocate for the petitioner submitted that respondent No.1- Joint Charity Commissioner has traveled beyond the scope of the application made by the petitioner and instead of granting or rejecting such application, has proceeded to give such directions, which would directly affect the working and interest of the Trust. Learned Advocate submitted that powers to be exercised under Section-41(A) does not contemplate the appointment of Assessor. Learned Advocate submitted that powers to be exercised under Section-41(A) does not contemplate the appointment of Assessor. The Assessor is defined under Section-7 and the purpose for which Assessor can be appointed is clearly defined under the Bombay Public Trust Act. It is submitted that the existing dispute between the Trustees for which the proceedings are pending before the Joint Charity Commissioner and it is necessary to take the decision on such Change Reports so as to enable smooth functioning of the Trust. By not deciding issues in the Change Reports, the respondent- Joint Charity Commissioner has erroneously concluded that there is mismanagement in the Trust and therefore, appointed the Assessor. It is submitted that requirements for invoking Section-41(A) is for a limited purpose and such purpose is only restricted to the requirement under Section-32 to 41. 7. As against this, learned Advocate for the respondent No.2 at the outset submitted that the respondent No.2 though is Trustee of the same Trust, is satisfied with the impugned order. It is submitted that the respondent No.2 is aggrieved in the manner in which the petitioner is functioning the Trust. He has also alleged that the petitioner is indulging in such activities especially with regard to the management of the accounts of the Trust, which cannot be termed into the interest of the Trust. It is submitted that in so far as the application under Section-41 is concerned, though Notice was issued to the respondent No.2, it was not duly served upon the respondent No.2 as the respondent No.2 and the petitioner are residing in the same premises and the petitioner succeeded in making a show that the respondent No.2 is factually served with the Notice. In fact respondent No.2 was precluded from making the detailed representation of his case, which would further justify the action on the part of respondent- Joint Charity Commissioner. 8. Learned Advocate for the respondent No.2 further submitted that internally bifurcation of managing exclusively different schools under the Trust, cannot be in principle recognized under the Trust Act as all the Trustees and all the Trust Properties are overall responsibility of the Trust. 9. 8. Learned Advocate for the respondent No.2 further submitted that internally bifurcation of managing exclusively different schools under the Trust, cannot be in principle recognized under the Trust Act as all the Trustees and all the Trust Properties are overall responsibility of the Trust. 9. In so far as the contention of invoking Section-41(A) only for the purpose of mentioned in Section-32 to 41, reliance is placed upon the judgment of Division Bench of this Court in case of Pavankumar Jain V/s. Priyavadan Ambalal Patel reported in 2016(1) GLR 242 in Para-10. 10. Having heard learned Advocates for both the parties and having perused the documents on record, it appears that dispute pertains to the Kapadia Education Trust registered under the Bombay Public Trust Act, registered vide Registration No. E/855/Ahmedabad on 05-03-1956 and is engaged in the field of education by managing Educational Institutions under the Trust. It appears that seven branches of schools under the various names are being managed by the Trust. Some of the schools are administered by the respondent No.2, while some of the schools are being administered by the petitioner. It appears that the since long Change Reports pertaining to the administration of the schools have been filed. It appears that there are allegations and counter allegations to the fact that the respondent No.2 has unauthorizedly filed Change Reports pertaining to the functioning of the schools, which are to be managed by the petitioner. Counter allegations would be that the petitioner is unauthorizedly making Change Reports to indicate that the Trustees of his own choice without referring to the respondent No.2. The grievances are also raised against each other that each of them is interfering with the working of the other and therefore, Change Reports are filed before the Joint Charity Commissioner. Allegations and counter allegations are also to the extent that the petitioner opened a separate Bank Account managed by his wife and the money received under various heads, while admitting the Students, are not being reflected in the accounts of the Trust. 11. However, the Court at this stage, is not inclined to examine threadbare the allegations and counter allegations of Trustees against each other as the same would be required to be decided upon the evidence being laid by the rival parties before the Joint Charity Commissioner. 11. However, the Court at this stage, is not inclined to examine threadbare the allegations and counter allegations of Trustees against each other as the same would be required to be decided upon the evidence being laid by the rival parties before the Joint Charity Commissioner. In this petition, the Court is called upon to examine the correctness of the orders passed purportedly in an application filed by the petitioner for reliefs, which are as under : “(11) Hence, it is prayed that, (a) The respondents themselves or in collusion with their accomplices do not interfere, interrupt or create hindrance in day to day process of the organizations mentioned above. (b) Be pleased to pass permanent injunction order in favour of the applicant and against the respondent that the respondents do not take wrong policy decisions by taking signatures of the trustees other than on records. (c) Be pleased to pass an order to conduct the case related to Change Report No. 35/09, 184/10, 1047/15, 1048/15 and other change reports, if filed any, collectively within six months by consolidating them.” 12. From the pleading also, it appears that several Change Reports are filed including Change Reports for including new Trustees. As the Change Reports are still pending and according to this Court decision on such Change Reports would be vital for the purpose on day to day functioning of the Trust. It appears to the Court that no decision is being taken on such Change Reports for long time, which is affecting the working of the Trust. On account of no decision on such Change Reports, the Joint Charity Commissioner has proceeded to presume the existence of mismanagement in the Trust and thereby appointed the Assessor under the impugned Order. 13. Section-7 of the Gujarat Public Trusts Act, 1950 defines the Assessor as under: “Section-7. Assessors.- (1) The assessors shall be appointed in the manner provided in Chapter-IX for any region or sub-region with respect to any particular public trust or class of public trusts or in connection with any particular matter or class of matters to such trust or class of trusts. (2) The assessors shall perform such functions as may be provided by or under the provisions of this Act.” 14. Chapter-IX provides for manner in which the Assessor is to be appointed. Section-64 prescribes for cases in which the Assessors shall be summoned. (2) The assessors shall perform such functions as may be provided by or under the provisions of this Act.” 14. Chapter-IX provides for manner in which the Assessor is to be appointed. Section-64 prescribes for cases in which the Assessors shall be summoned. Section-64 reads as under: Section-64. Cases in which assessors shall be summoned.- In the following proceedings assessors shall be summoned to assist and advise the Charity Commissioner, Deputy or Assistant Charity Commissioner, as the case the may be, namely:- 136 [(a) an inquiry under Section 19 or an inquiry under section 22 relating to a public trust other than a society referred to in section 2(13);] (b) 137 [***] (c) an inquiry regarding the loss caused to a public trust in consequence of the act or conduct of a trustee of any other person under section 40; (d) any other inquiry in which by rules or a general or special order made by the State Government in this behalf, the assessors are required to assist and advise the Charity Commissioner, the Deputy or Assistant Charity Commissioner or any other officer appointed under this Act; 138 [Provided that in inquiries specified in clause (a) where no contest in involved the Deputy or Assistant Charity Commissioner may for reasons to be recorded in writing order that assessors shall not be so summoned.] 15. A bare perusal of the Section-64, would indicate that purpose for which the Assessor can be appointed like for an inquiry under Section-19 or an inquiry under Section-22 relating to the Public Trust. For an inquiry regarding loss cause to the public trust in schools or conduct of the Trustees or for the purpose any other inquiry, in which by Rules or by special order made by the State Government in this behalf. 16. The Court has perused the impugned order. The Court finds that while passing the impugned order, the Joint Charity Commissioner has presumed existence of many things without there being any discussion on substance or facts. Though the order narrates philosophy for the exercise of power under Section-41(A), the same does not mention facts existing in this case, which would establish the existence of mismanagement. The Court in the order nowhere finds the requirements as per Section-64, which would require the appointment of Assessor. 17. Though the order narrates philosophy for the exercise of power under Section-41(A), the same does not mention facts existing in this case, which would establish the existence of mismanagement. The Court in the order nowhere finds the requirements as per Section-64, which would require the appointment of Assessor. 17. On one hand, the Joint Charity Commissioner has failed to mention in his order the existence of fact to justify the appointment of Assessor. On the other hand, the Joint Charity Commissioner has proceeded to give the directions in the impugned order on an application by the petitioner himself praying for the relief as mentioned in the preceding paras, when there does not exist on facts the requirements for an appointment of Assessor and when there is no relief prayed for in the application. 18. This Court is of the view that there is no justification in issuing directions to appoint Assessor and directions to function in the manner prescribed under the order. 19. The Court therefore, of the view that by accumulating the Change Reports without any decision pertaining to function of Trust, when the decision and making this foundation to conclude mismanagement in the Trust, can't go together. 20. In view of the aforesaid, the directions contained in the impugned order dated 31-05-2016 by the Joint Charity Commissioner, more particularly Direction Nos. 3, 4, 5, 6, 7 and 9 are ordered to be quashed and set aside. 21. Change Reports pertaining to the Kapadia Education Trust filed and pending for decision, are ordered to be decided within a period of six months from the receipt of the order of this Court. Upon examining the merits of Change Reports, it is open for the Joint Charity Commissioner to pass an order in accordance with law, an order that would be in the best interest of the functioning of the Trust without being influenced by the observations made by this Court in this order as these observations are restricted only to the impugned order dated 31-05-2016. 22. With the aforesaid, the petition stands partly allowed. Rule is made absolute to the aforesaid extent. 23. In view of the above, the Civil Application does not survive and stands disposed of accordingly. Direct service is permitted.