Judgments on Bombay Public Trust Act (relvant for state of Gujarat)
-
Upload
hanif-mulia -
Category
Law
-
view
567 -
download
1
Transcript of Judgments on Bombay Public Trust Act (relvant for state of Gujarat)
Section 72: 1. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs. 70 and
72 Civil Procedure Code, 1908 Order 41, Rule 17
Whether Charity Commissioner has inherent power to dismiss
an appeal for default Whether whole of the Civil Procedure
Code applies to the proceeding before Charity Commissioner
If appeal dismissed for default whether it amounts to
decision on merits Whether under the circumstances
application under Sec. 72 of the District Judge
maintainable.
1.1. Order 41, Rule 17 of the Civil Procedure Code,
regarding dismissal of appeal for default, is not
applicable to the proceedings before the Charity
Commissioner. The whole of the Code of the Civil
Procedure is not applicable to the proceeding before the
officers acting under the Bombay Public Trusts Act and
the Code only apply to certain specific matters. The
Deputy Charity Commissioner has no inherent power of
dismissing an appeal for default. It was his duty to
decide the matter on the material before him even if the
appellant was not present on the date of hearing of the
appeal. If the law does not give the Deputy Charity
Commissioner the power of dismissal for default but
obliges him to decide the dispute irrespective of the
appearances of the parties and, if, in breach of such
obligation the Deputy Charitable Commissioner does
happen to pass an order of dismissal, then that order
stands at a much worse footing than if actual decision
had been given on merits. Under the circumstances, if in
breach of his duty, the Commissioner dismisses an
appeal, he must be regarded as having constructively
decided the questions, involved in the appeal. The
application, therefore, under Sec. 72 of the Act to the
District Judge was maintainable. SHAH HIRALAL VIRCHAND
vs. PATEL VITHALBHAI VAGHAJIBHAI, 1961 GLR 548.
2. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs. 18,
19, 20, 21, 22, 22A, 70(2), 72, 79 and 80 Final and
conclusive character of finding by Charity Commissioner
Power to make changes regarding any particular Whether
third party can apply under Sec. 22(A) Nature of inquiry
Whether administrative or judicial Bar of jurisdiction of
Civil Court under Sec. 79A Recourse to Sec. 70(2) not
followed up by remedy under Sec. 72 Whether decision of
Charity Commissioner binding.
2.1. Though retaining the final and conclusive character
of the finding and entries made by the Deputy or
Assistant Charity Commissioner under Secs. 20 and 21 of
the Bombay Public Trust Act, Secs. 22 and 22A make
provisions for changes to be made when such changes
become necessary either as a result of change having
occurred subsequent result of change having occurred
subsequent to the date of the entries or as a result of
some particular having been left out for the
consideration in the previous inquiry. Any person, not
merely trustee, can apply under Sec. 22A for a change in
the entry on a matter or a particular left out from
consideration in a previous inquiry under Sec. 19 of the
Act. The word "particular" in Sec. 22A of the Act would
mean any information or detail as to the trust, for an
example, information regarding suppression of a
particular for the purpose of avoiding a property to be
declared to be property belonging to a public trust. The
inquiry made by a Deputy or Assistant Charity
Commissioner is by no means an administrative or
executive inquiry but a judicial inquiry. The inquiry is
not only for the purpose of registration. A complete
Code is provided in the Bombay Public Trust Act for
dealing with matters set out in Secs. 18, 19 and
recourse must be had to the procedure laid down in the
Act. The provisions of Sec. 80 of the Act bar the
jurisdiction of the Civil Court in the two categories of
matters, viz. (1) Those questions left under the Act to
be decided by the Assistant or the Deputy Charity
Commissioner under Secs. 18 and 19, and (2) Those which
the act has made final and conclusive under Sec. 79(1)
and Sec. 21(2) of the Act. Held on the facts, that the
plaintiffs having had recourse to Sec. 70 and not having
followed up their remedy under Sec. 72 are bound by the
decision by the Charity Commissioner in their appeal
before him. KUBERBHAI SHIVDAS vs. MANANT PURSHOTTAMDAS
KALYANDA, 1961 GLR 564.
3. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs. 71 and
72 Limitation Act, 1908 Secs. 4 and 29(2) Application
to District Judge under Sec. 72 Whether saved by Sec. 4 of
Limitation Act Sec. 75 refers to only appeals Sec. 29(2)
of the Limitation Act makes Sec. 4 applicable in all cases
unless specifically excluded.
3.1. Application to the District Judge under Sec. 72 of
the Bombay Public Trusts Act, against the decision of
the Charity Commissioner is clearly saved by Sec. 4 of
the Indian Limitation Act. The provisions of Sec. 29(2)
of the Indian Limitation Act make it abundantly clear
that the provisions contained in Sec. 4 shall apply to
the extent to which they are not expressly excluded by a
special or local law. Inspite of the provisions of Sec.
75 of the Bombay Public Trusts Act, which would apply
only to appeals, Sec. 29 of the Indian Limitation Act
will hold the field in respect of the matters which are
not appeals. SHANTILAL KHIMCHAND vs. MULCHAND
DALICHAND, 1962 GLR 117.
4. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs. 72 and
75 Limitation Act, 1908 Secs. 12(2) and 29(2)
Application under Sec. 72 is in nature of appeal for the
purpose of Limitation Act Time taken for taking certified
copy to be excluded under Sec. 12(2) of Limitation Act
Whether Charity Commissioner is inferior to District Court
Civil Procedure Code, 1908 Sec. 151 Inherent power of
District Court to act under Sec. 151 to remand a case under
the Bombay Public Trusts Act.
4.1. Section 72 of the Bombay Public Trusts Act provides
for an application made to the Court under that section
a period of limitation a different from the period
prescribed therefore in the First Schedule to the
Limitation Act and Sec. 29(2) of the Limitation Act is,
therefore, attracted and it makes the provisions of Sec.
12(2) of the Limitation Act applicable to such an
application and the time taken for obtaining a certified
copy of the order is, therefore, liable to be excluded
under Sec. 12(2) in computing the period Sof limitation
prescribed by Sec. 72 for such an application. An
application under Sec. 72 cannot be said to be an appeal
within the meaning of Sec. 75 but there is no reason for
saying that an application under Sec. 72 cannot be
regarded as an appeal within the meaning of the
Limitation Act. The Legislature has charterized the
proceeding under Sec. 72 as an application and not an
appeal but that is no determinative of the question. The
right is in substance, if not in form, in the nature of
an appeal. The Charity Commissioner is not subordinate
to the District Court in the sense that the District
Court has no power of superintendence over the Charity
Commissioner but in the matter interalia of his
decisions under Sec. 70 the Charity Commissioner is
inferior to the District Court in that District Court
has power to revoke or modify his decisions. Sec. 151 of
the Code of Civil Procedure would apply to an
application under Sec. 72 and the District Court hearing
such application would have inherent power under that
section to make an order of remand if the District Judge
thinks it necessary to do so in an appropriate case.
CHANDRAKANT HARMANDAS vs. THE CHARITY COMMISSIONER OF
GUJARAT, 1965 GLR 649.
5. Bombay Public Trusts Act, 1950 Secs 70 and 72
Jurisdiction conferred on District Court to deal with
matters under Sec. 72 over decision of Charity Commissioner
though designated as application amounts to appellate
jurisdiction Letters Patent appeal therefore over the
decision of the single Judge can only lie if the said Judge
grants the certificate that the case is a fit one for
appeal.
5.1. Clause 15 of the Letters Patent provides for an
appeal from the judgment of one Judge of the High Court
to a Division Bench of the High Court, but it introduces
a condition that if the judgment of one Judge of the
High Court has been given the exercise of appellate
jurisdiction "in respect of a decree or order made in
the exercise of appellate jurisdiction by a Court
subject to the superintendence of the High Court," the
Judge who passed the judgment must declare that the case
is a fit one for appeal and it is only if such a
declaration is given by the Judge who passed the
judgment that an appeal can be preferred against the
judgment to a Division Bench of the High Court. The
District Court in an application under Sec. 72 of the
Bombay Public Trusts Act is given the power to confirm,
revoke or modify the decision of the Charity
Commissioner and there are no limits or fetters upon
this power. It is true that the Charity Commissioner is
not subordinate to the District Court in the sense that
the District Court has no power of superintendence over
the Charity Commissioner but there can be no doubt that
inter alia in the matter of his decisions under Sec. 70,
the Charity Commissioner is inferior to the District
Court in that the District Court has power to revoke or
modify his decisions. There can, therefore, be no doubt
that though the word "appeal" is not used by the
Legislature and the proceeding under Sec. 72 is
designated as an application, the jurisdiction conferred
on the District Court while dealing with such proceeding
is appellate jurisdiction. Held, that therefore when the
District Court deals with an application under Sec. 72,
it exercises appellate jurisdiction and the order made
by the District Judge in the present case which was
confirmed by the single Judge of the High Court was
consequently an order made in the exercise of appellate
jurisdiction by a Court subordinate to the High Court
and no Letters Patent Appeal against the decision of the
single Judge could be filed by the appellants without
obtaining a certificate from that single Judge that the
case was a fit one for appeal. HIRAGAR DAYAGAR vs.
RATANLAL CHUNILAL, 1972 GLR 181.
6. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs. 41A
and 72(1) Direction issued under Sec. 41A Such direction
cannot be challenged in an application under Sec. 72
Direction under Sec. 41A ordered to be continued when passed
under Sec. 70A Such direction does not cease to be
direction under Sec. 41A.
6.1. It is obvious on a conjoint reading of Secs. 41A
and 72(1) of the Act that the direction or instruction
issued by the Charity Commissioner under Sec. 41A of the
Act cannot be questioned in an application under Sec. 72
before the District Court. That being obvious, the
direction issued during the pendency of the Charity
Commissioner were indisputably not liable to be
challenged or questioned before the District Court under
Sec. 72(1) of the Act. Merely because these directions
are ordered to be continued by the same order by which a
fresh inquiry in respect of certain matters was ordered
by the Charity Commissioner in exercise of his power
under Sec. 70A of the Act, it cannot be said that the
directions issued cease to be directions under Sec. 41A
of the Act. KANBI MANJI ABJI vs. KANBI VELJI MANJI,
1980 GLR 44.
7. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs. 41A
and 72 No application under Sec. 72 lies against an order
under Sec. 41A, but if it is found that the impugned order
is not under Sec. 41A, the District Court can interfere and
pass a proper order.
7.1. No application under Sec. 72 lay against an order
passed under Sec. 41A of the Act and, therefore, the
appeal as regards that order was not competent. Looking
to the provisions of Sec. 72 of the Act, it is clear
that no application can lie to the District Court
against an order passed under Sec. 41A of the Act
because Sec. 72 provides only for applications against
orders passed under Secs. 40, 41, 50A, 70 or 70A of the
Act. Sec. 41A does not find any place in Sec. 72. The
Charity Commissioner is required to issue directions to
any trustee of a public trust or any person connected
therewith i.e. with the public trust. Sec. 41A thus
presupposes that there is in existence a public trust.
When the question whether this Dargah is a public trust
is still not decided and is to be decided after further
inquiry by the Assistant Charity Commissioner, the
Charity Commissioner, could not exercise powers under
Sec. 41A. Subsec. (2) of Sec. 41A says that it shall be
the duty of every such trustee and person to comply with
a direction issued by the Charity Commissioner. This
clearly shows that unless there is a public trust in
existence no direction under Sec. 41A can be given by
the Charity Commissioner. In view of this, it cannot be
said that the learned Joint Charity Commissioner issued
the directions regarding possession under Sec. 41A of
the Act. The order passed by the Joint Charity
Commissioner directing possession to be handed over to
Amrutlal cannot with any stretch of imagination be said
to be directions under Sec. 41A of the Act and,
therefore, liable to be set aside in an application
under Sec. 72 of the Act. AMRUTLAL KESHAVBHAI PATEL
vs. ISMAIL IBRAHIM BADAT, 1986(1) GLR 136.
8. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 72
Though the word used is "application", really speaking the
District Court under Sec. 72 hears an appeal against the
order of the Charity Commissioner.
8.1. The Court may, however, state that after Hiragar
Dayagar, 1972 GLR 181 and Khivaraj Chhagniram, AIR 1972
Bom. 40, the point came up for consideration before the
Supreme Court in Ramchandra Govardhan Pandit v. Charity
Commissioner, State of Gujarat, 1987 (2) GLR 1295 : AIR
1987 SC 1598. The Apex Court was called upon to consider
correctness or otherwise of two conflicting viewsone of
the High Court of Gujarat in Hiragar Dayagar and the
other of the High Court of Bombay in Khivaraj
Chhagniram. Approving the view of the High Court of
Gujarat and overruling the view of the High Court of
Bombay, the Supreme Court observed : "The power of the
District Court in exercising jurisdiction under Sec. 72
is a plenary power. It is true that the Commissioner is
not subordinate to the District Court, but the District
Court has power to correct, modify, review or set aside
the order passed by the Commissioner. All the
characteristics of an appeal and all the powers of an
appellate Court are available to the District Court
while deciding an application under Sec. 72. To decide
this case, we must be guided not only by the
nomenclature used by the section for the proceedings but
by the essence and content of the proceedings. Further
held that the proceedings before the District Court
under Sec. 72(1) are in the nature of an appeal and that
District Court exercises appellate jurisdiction while
disposing the case and hence the case, Clause 15 of the
Letters Patent is directly attracted”. PARVEZ
RUSTAMJI BHARDA vs. NAVROJJI SORABJI TAMBOLY, 2001 (2)
GLR 949.
9. Bombay Public Trust Act, 1950 Secs. 22 & 72 Churches
dissolved and united into one Church Finding given by High
Court that First District Church of Brethren did not cease
to exist Held, Charity Commissioner has jurisdiction to
adjudicate issue pertaining to dissolution of churches etc.
as per provisions of the Act and Civil Court cannot
entertain the dispute Matter remanded to Charity
Commissioner with direction that concerned parties be heard
and determine pending disputes – VINOD KUMAR MATHURSEVA
MALVIA V. MAGANLAL MANGALDAS GAMETI, 2006 (9) SCC 282.
Section 70 & 70A:
10. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
18, 19 and 70 Civil Procedure Code, 1908 Order 23, Rule
3 Act provides complete code for inquiry under Sec. 19
Power of Charity Commissioner under Sec. 70 in appeal
Party in appeal agreeing that certain properties are not
trust properties Whether Charity Commissioner can pass
order in accordance with such agreement or even on
concession made by the party Whether Rule 3 of Order 23
C.P.C. applicable Order held arbitrary and in violation of
law.
10.1. Having regard to the scheme of the Bombay Public
Trusts Act and the relevant provisions thereunder as
also the object of the Act, the Charity Commissioner
sitting in appeal under Sec. 70 of the Act has no power
or jurisdiction to pass an order in accordance with the
agreement between the parties to the appeal or even on a
concession made by a party to the appeal. The provisions
of Order 23 Rule 3 of the Civil Procedure code, which
provide for the passing of a decree by the Court in
accordance with a lawful agreement or compromise, cannot
be made applicable to the proceedings before the Charity
Commissioner in the appeal under Sec. 70 of the Act.
Held that, in the instant case the impugned order having
been found to have been passed in accordance with the
consent terms, was clearly without jurisdiction. Even
assuming that the Charity Commissioner had also
considered the case on merits in the appeal before him,
there is nothing on record to show why he had received
the additional evidence on record. There is no proof of
the document so received. It is not shown that the
Charity Commissioner had examined any witness in this
behalf. The Charity Commissioner cannot in such a
summary and arbitrary manner decide that the properties
are not the properties of the public trust. The exercise
of the power was clearly is excess of jurisdiction,
besides being in breach of the provisions of law and in
conscious violation of the provisions and the procedure
prescribed. The impugned order affects the cause of
public trust and public good and defeats the very object
of the Act. The impugned order, therefore, cannot be
maintained and deserves to be quashed. LALLUBHAI
GIRDHARLAL PARIKH (SINCE DECD BY HIS HEIRS THAKORLAL
LALLUBHAI) vs. ACHARYA SHRI VRIJBHUSHANLALJI
BALKRISHNALALJI, 1967 GLR 42.
11. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
70 and 70A Power of revision of the Charity Commissioner
Even if the order is not liable to be revised in appeal,
Charity Commissioner can exercise revisional power under
Sec. 70 and set aside exparte order.
11.1. Section 70A of the Bombay Public Trusts Act
purposely refers not to the appellate powers conferred
on the Charity Commissioner under Sec. 70 but to the
'cases' mentioned in that section. The idea is that the
categories of cases which are mentioned in Sec. 70 being
important, even if no appeal preferred against the
ultimate order passed in such cases, the Charity
Commissioner can enjoy his revisional powers to set a
particular matter right. Held that in the instant case,
the order of the Assistant Charity Commissioner
refusing to set aside the exparte order passed by him
was a part of the record and proceedings of the case in
which he passed the exparte order under Sec. 20. That
being so this was a case mentioned in Sec. 70, and if
that was a case mentioned in Sec. 70, the Charity
Commissioner was entitled to send for the record of that
case under Sec. 70A of the Act and to satisfy himself as
to the correctness of "any finding or order" recorded or
passed by the Assistant Charity Commissioner. Therefore,
even believing that an order refusing to set aside the
exparte order previously passed by the Assistant
Charity Commissioner was not liable to be revised in
appeal under Sec. 70 of the Act, it was undoubtedly
liable to be revised in exercise of the revisional
powers vested in the Charity Commissioner under Sec. 70
of the Act. ROSHANALI AKBARALLI vs. NABIJI NATHAJI
VOHRA (DECD HIS LEGAL HEIRS), 1974 GLR 116.
Jurisdiction of Civil Court and Civil Procedure Code,
1908:
12. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
50 and 80 Civil Procedure Code, 1908 Sec. 92, Order I,
Rule 3 Sec. 50 of the Bombay Public Trusts Act wider than
Sec. 92 of the C.P.C. Alienee of a trustee can be
impleaded where relief is for possession Joint suit
maintainable Sec. 80 of Trust Act no bar if suit is
competent under Sec. 50.
12.1. The provisions of Sec. 50 of the Bombay Public
Trusts Act are wider than those of Sec. 92 of the Civil
Procedure Code. Under Sec. 50 it is provided that where
a suit is filed as contemplated under Secs. 50(i),
50(ii), and 50(iii), it is competent to the plaintiff to
ask for any of the reliefs mentioned in the sections,
which reliefs include a relief for the recovery of
possession of property. Sec. 50 does not exclude
impleading an alienee of a trustee where a relief is
asked against that alienee for possession of the
property. Where a trustee in breach of trust alienates
property in favour of an outsider and where a suit is
brought against the trustee on the alleged breach of the
trust under the provisions of Order 1 Rule 3 of the
Civil Procedure Code, the alienee who is a party to the
breach of trust, can be properly joined in the same suit
for a relief in respect of or arising out of the same
act or transaction or series of acts or transactions
alleged to be existing against the trustee as well as
the transferee either jointly, severally or
alternatively for in such cases if separate suits were
brought against such persons, common questions of facts
or law would arise and there is no bar under Sec. 50 of
the Bombay Public Trusts Act to impleading an alienee in
such a suit. If a suit is competent under the provisions
of Sec. 50 of the Bombay Public Trusts Act. it cannot be
said that such a suit is barred by reason of Sec. 80 of
the Act. JAMNA W/O BHAGWANDAS VANMALI vs. HAJI AHMED
HAJI YAKUB, 1962 GLE 843.
13. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
50, 52 and 80 Civil Procedure Code, 1908 Sec. 92
Special provision in Sec. 50 of the Bombay Public Trust Act
override the general provision in Sec. 92 of C.P.C. A
scheme settled in a suit under Sec. 92 of C.P.C. is not
independent of that section The rights under the decree
have to be adjusted and reshaped in view of Sec. 50 of the
Bombay Public Trusts Act A scheme passed by the Court
earlier Remedy under the relevant clause in a scheme
decreed by the Court now controlled under the Bombay Public
Trust Act The said section override the relevant clause in
the scheme Any suit, therefore, in regard to Trust can be
only filed after the sanction of the Charity Commissioner.
13.1. In view of the provisions of Sec. 50 of the Bombay
Public Trusts Act which is a special legislation on the
subject, to the extent to which Sec. 50 is repugnant to
or in conflict with Sec. 92 of the Code of Civil
Procedure it must override the general provisions
contained in Sec. 92 of the Civil Procedure Code. If
Sec. 50 has the capacity to override the provisions of
Sec. 92 of C.P.C., it must necessarily have the capacity
to override the relevant clause in any scheme settled in
a suit filed under Sec. 92 of C.P.C. A scheme settled in
a suit filed under Sec. 92 of C.P.C. is not independent
of that section nor can it be placed above it. The
rights or remedies which have been conferred upon the
parties by a scheme settled in a suit under Sec. 92 of
C.P.C. can only survive in their fullest form if Sec. 92
survives. If it does not survive, they have got to be
adjusted and reshaped in light of the provisions of Sec.
50 of the Bombay Public Trusts Act. Section 52 of the
Bombay Public Trusts Act makes it clear that so far as
the Public Trust to which the Bombay Public Trusts Act
applies, Sec. 92 and the rights and remedies provided
thereunder have been repealed. If the remedy of filing a
suit under Sec. 92 of the C.P.C. has been repealed in
relation to public trusts by virtue of Sec. 52(1), it is
clear that any remedy provided by any clause in a scheme
settled in a suit filed under Sec. 92 of the Code of
Civil Procedure must also give way to the provisions of
Sec. 50 of the Bombay Public Trusts Act, 1950. The
remedy which the original applicant had under the
relevant clauses in the scheme in question has now been
controlled and regulated by the provisions of Secs. 50,
52 and 80 of the Bombay Public Trusts Act, 1950. The
conjoint reading of these three sections makes it clear
beyond any doubt that the legislature in the matter of
filing of such a suit by persons interested in a public
trust has expressed a different intention and,
therefore, the provisions of the said sections override
the relevant clauses in the schemes in question as it
comes within the exception provided in Sec. 7 of the
Bombay General Clauses Act. If the remedy provided by
Sec. 92 has been expressly repealed by Sec. 52 and does
not survive even in cases of schemes settled before the
Bombay Public Trusts Act, came into force by virtue of
the provisions of Sec. 80 of the Bombay Public Trusts
Act, 1950, any remedy reserved in a clause in a scheme
settled in a suit under that section must also be held
to have been overridden or superseded by Sec. 52 read
with Secs. 50 and 80 of the Bombay Public Trusts Act.
YASINMIAN AMIRMIAN FAROQUI vs. I A SHAIKH, 1977 GLR 54.
14. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
19(ii), 21, 22, 68(b), 69(b) and 80 Ouster of jurisdiction
of Civil Courts to decide or deal with those questions which
are required to be decided or dealt with by the Deputy or
Assistant Charity Commissioner under the Act.
14.1. The Secs. 19, 68, 69 and 80 of the Bombay Public
Trusts Act clearly show that it is only the Deputy or
Assistant Charity Commissioner who can decide whether
any property is the property of a public trust. These
provisions also go to show that the jurisdiction of the
Civil Court to entertain that question is barred. In
view of this, it is clear that the Civil Court cannot
enter into and decide the question whether a particular
property is the property of a public trust or not. That
was the main question raised, in the present suit and
the appeal before the District Court. It is clear that
neither the trial Court nor the first appellate Court
could have decided the question of title because, on one
hand it is the allegation of the plaintiffs that the
suit properties are of the ownership of the public
trust, which is again duly registered under the Act,
while on the other hand it is the say of the defendants
that the properties were not of the ownership of the
trust and that they have been rightly resumed by th e
Government. In 1972 GLR 955, a question arose whether
notices are required to be issued to the public during
the inquiry proceedings under Sec. 19 of the Act. This
court held in the above case that it was not necessary
to issue any such notice to the public. It is held
therein that the rights of persons having an interest
are not prejudiced as a suitable remedy is provided by
other provisions of the Act. It is held therein that
even after inquiry under Sec. 19 has concluded and
entries are made in the register under Sec. 21 or Sec.
22, it is open to the Deputy or Assistant Charity
Commissioner to hold a further inquiry if it appears to
him that any particular relating to any public trust
which was not the subject matter of the inquiry under
Sec. 19 or subsec. (3) of Sec. 22 has remained to be
inquired into. SHERASIYA SAJI ALAVADI MOMIN vs. STATE
OF GUJARAT, 1985 GLR (1) 513.
15. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
18, 19 and 80 Sec. 80 bars the jurisdiction of the Civil
Court in respect of questions which by or under the Act are
to be decided by any officer or authority under the Act and
in respect of which the decision or order of such officer or
authority is made final and conclusive under the Act
Question as to what are the sources of income of a public
trust being one of the questions which under Sec. 19 of the
Act is required to be decided by the Assistant or Deputy
Charity Commissioner, cannot be decided or dealt with by a
Civil Court. CHARITY COMMISSIONER, AHMEDABAD vs. STATE OF
BOMBAY (NOW THE STATE OF GUJARAT), 1993 (1) GLH 94.
16. CIVIL PROCEDURE CODE, 1908 (V OF 1908) Sec. 9
Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 79
Suit claiming that a particular property was for use as a
Dharmshala where public had a right to free access On
facts found that foundation of plaintiff's claim was
existence of Dharmshala as a public trust Such questions
could be decided only by authorities under the Bombay Public
Trusts Act Held, suit was barred having regard to Sec. 79
of the Bombay Public Trusts Act.
16.1. This cannot be disputed and doubted from the
pleadings in plaint that foundation of plaintiffs' right
is existence of Dharmshala as public trust to which
every member of public, without distinction of caste,
colour, creed or object of visit has a right to seek
accommodation. It is this right breach of which is
alleged by the impugned action under Wakf Act, 1954 by
the Board of Wakfs in publishing the list of Wakfs vide
supplementary list dated 651965. Thus, establishing
the existence of Dharmshala as public trust to which
plaintiffs or public at large has unobstructed right of
access was the primeessential for the plaintiffs, on
which alone their claim to relief can be sustained.
Without establishing such right issue about relief to
declare negatively that the property in question is not
a Wakf property is declaration in vacuum without
reference to right of the plaintiffs to seek that
remedy. Without establishing the basic facts of their
right, the plaintiffs will lose their locus standi to
claim remedy. It is well settled that plaintiff must
succeed on his own case. He cannot succeed on defendants
failure to establish his defence, before he proves his
case.
16.2. The cause of action which occasioned the filing of
suits by the plaintiffs, in the sense infringement of
rights of plaintiff which occasioned setting proceedings
in motion for seeking relief is claim to free access to
property as members of public without distinction of
caste and creed on the assertion that it is property
belonging to public trust. The further averments to act
of infringement of this right by alleged assertions of
defendant about its being a Muslim Wakf is in the realm
of defence against such infringement. From the
conclusion to which the Court has reached above, the
fact necessary for plaintiff to prove for being
successful in claiming relief is their right to free
access to the property in question as public trust
property.
16.3. This enquiry under Sec. 79 of the Act of 1950 is
exclusively within the jurisdiction of authorities under
the Bombay Public Trusts Act, 1950. Such enquiry by
civil Court can only be in proceeding envisaged to be
arising out of findings recorded by authorities under
the Act and not otherwise. Suit dismissed on this
ground.
16.4. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950)
Sec. 87 Wakf Act, 1954 (XXIX of 1954) Sec. 6 Sec.
84 of the Bombay Public Trusts Act providing that the
Act shall not apply to Wakfs to which provisions of the
Wakf Act have continued to apply Question whether a
property is a public trust not falling into a Wakf
Jurisdiction of authorities under the Bombay Public
Trusts Act to decide such question not barred.
16.5. The Wakf Act, 1954 was applied to Kutch from 151
1955 and it continued to apply after it became part of
Maharashtra on commencement of State Reorganisations
Act, 1956 and so continued until 151960, when under
Bombay Reorganisation Act, 1960 it became part of
Gujarat on its formation.
16.6. However, the enquiry whether a Wakf exists and a
particular property is Wakf property or not precedes
application of Act of 1954 to such property. Until such
state is reached, any enquiry which is necessary before
the operation of Act of 1954 is attracted, is not
envisaged to be excluded from the jurisdiction of such
authorities as are competent to hold such enquiry. If
for determining the question whether Wakf Act, 1954
operates in respect of property needs an enquiry into
question whether the property is a public trust, not
falling into Wakf, the exclusive jurisdiction to decide
such issue, before provisions of Wakf Act can be
attracted vest in authorities under the Bombay Public
Trusts Act within the States of Maharashtra and Gujarat.
In such cases first question that requires to be
determined is whether there exists a public trust. Next
question that requires to be determined is whether it is
a public trust in the nature of Wakf. On determination
of second question the operation of or exclusion of
applicability of Bombay Public Trusts Act may depend.
What is primary enquiry and what is ancillary enquiry
must further depend upon the nature of enquiry
contemplated. KACHCHH WAKF BOARD VS. KACHCHH MEMON
JAMAT, 1998(1) GLR 487.
17. Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs.
22 and 73 Civil Procedure Code, 1908 (V of 1908) Order
18, Rule 4 Bombay Public Trusts Rules, 1951 Rule 7
Proceeding of inquiry under Sec. 22 of the B.P.T. Act in
respect of Change Report Competent authority can permit
evidence of facts by affidavit Deputy Charity Commissioner
allowed evidence by affidavit subject to crossexamination
of deponent Challenge to this mode of recording evidence
Petition dismissed with costs.
17.1. On conjoint reading of Sec. 73 of the Act read with
Rule 7 of the Rules, it transpires that the proof of
facts by affidavit is not unknown to the procedure for
holding inquiry and secondly for examination of any
witness on oath the officer will have the same power as
are vested with the Civil Court under Civil Procedure
Code. Order 18 Rule 4 (after amendment with effect from
172002) inter alia provides for examinationinchief
of a witness by affidavit, and therefore, it can
reasonably be construed that the C.P.C. mutatis mutandis
would apply for giving effect to the provisions of Sec.
73 the Act. Rule 7 cannot be read for curtailing the
power of an officer as that of a Civil Court under
C.P.C. for compliance of the procedure prescribed under
the provisions of Rule 4 of Order 18. In any case, even
no rule can be allowed to operate on the face of any
statutory provisions under Sec. 73. NITYANAND M.
THAKORE vs. CHARITY COMMISSIONER, 2004 (2) GLR 971.
18. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 26
The Authority under the B. P. T. Act is bound to record
changes in the B.P.T. Register as per the orders of a Civil
Court.
18.1. Section 26 of the Act clarifies that such entries
cannot be altered except in cases where such decision
has been varied in appeal or revision by a Court of
competent jurisdiction. It is further provided in the
said provision that, subject to such alteration, the
amendments made, shall be final and conclusive. Thus,
the binding effect of the decision of the Court is
explained in very definite terms in Sec. 26 of the Act.
It is an undisputed fact that the order is passed by a
competent Court having jurisdiction and the said
decision of the concerned Court is not challenged till
date, and therefore, the respondentauthority has no
option but to follow the provisions of Sec. 26 of the
Act, and therefore, the order of the authority is
contrary to and inconsistent with Sec. 26 of the Act is
illegal, bad and liable to be set aside. In Court's view
the order of the authority not taking into consideration
Sec. 26 of the Act and thereby not giving effect to the
order passed by the Bombay City Civil Court in the
Public Trust Register maintained under Sec. 17 of the
Act is also illegal and bad in law and the same deserves
to be set aside. (Para 8) SHETH RATANJI AND JIANDAS
CHARITABLE TRUST NO. 2 AND ORS. vs. ASSISTANT CHARITY
COMMISSIONER, BHAVNAGAR, 2005 (4) GLR 3638.
19. Civil Procedure Code, 1908 (V of 1908) Sec. 24
Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs. 50 and
51 Suits filed under Sec. 50 of the Trust Act after
obtaining permission from the Charity Commissioner under
Sec. 50 is a special suit and not an ordinary suit Such a
suit cannot be transferred to the Fast Track Court under
Sec. 24 of C.P.C. It should be heard by the District Court
itself.
19.1. Section 24 of the Code of Civil Procedure, the
judgment and order of the learned Principal District
Judge cannot be upheld. Clause (a) of subsec. (1) of
Sec. 24 of the Code provides two conditions : (1) a
transfer can be made to any Court subordinate to it and
(2) the Court which is competent to try. In the opinion
of this Court, when the Court is defined under the Act
and the Court of Principal District Judge is conferred
power to try the suits relating to the trusts, which are
filed after obtaining the consent of the Charity
Commissioner, such suits have a special status and they
do not stand at par with an ordinary suit. That being
so, when the suit is instituted under the provisions of
a specific Act, the same should have been dealt with in
light of the provisions of that particular Act. That
being so, this Court is of the opinion that the learned
Principal District Judge has erred in allowing the Misc.
Civil Application No. 45 of 2005 and transferring the
Trust Suit No. 1 of 2005 to 2nd Fast Track Court,
Junagadh at Veraval, sitting at Una. – 2006(2) GLR 1190.
Contrary View: Bombay Public Trusts Act, 1950 (XXIX of
1950) Sec. 72 Bombay Civil Courts Act, 1869 (XIV of
1869) Secs. 12 & 13 Gujarat Civil Court Act, 2005
(XXI of 2005) Secs. 5, 6, 7, 11, 12, 12A & 13 A
Judge of a Fast Track Court act is a District Judge –
This Judge can hear and decide all matters including
matters under Sec. 72 of the Bombay Public Trusts Act
which are assigned to him Dhirsinhbhai K. Barad v.
Kanjibhai P. Moti, 2006 (2) GLR 1190 wrongly decided and
not followed. NARESHCHANDRA RAMPRASAD RAJA, PRESIDENT
OF SAMAGRA GUJARAT NAGAR PARISHAD MANDAL V. GAJENDRA
SHUKHLAL PATEL, 2008 (5) GLR 4272.
Limitation Act:
20. LIMITATION ACT, 1908 (IX OF 1908) Sec. 22 Inquiry
into the appointment of trustee Whether covered under Sec.
22.
20.1. The inquiry into the change in the constitution of
the trustees includes the question whether the persons
who were appointed were in fact, appointed as persons to
hold the status of the trustees, by the person who had
power to appoint them. An inquiry into the question
falls within field of inquiry under Sec. 22 of the
Bombay Public Trusts Act. SHANTILAL KHIMCHAND vs.
MULCHAND DALICHAND, 1962 GLR 117.
21. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
72A Limitation Act, 1908 Sec. 12 Application under
Sec. 72 of Bombay Public Trusts Act Whether Sec. 12 of the
Limitation Act applies.
21.1. Section 12 of the Limitation Act does not apply to
an application under Sec. 72 of the Bombay Public Trusts
Act. CHARITY COMMISSIONER OF BOMBAY vs. CHANDRAKANT
HARMANDAS, 1964 GLR 959.
22. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
72 and 75 Limitation Act, 1908 Secs. 12(2) and 29(2)
Application under Sec. 72 is in nature of appeal for the
purpose of Limitation Act Time taken for taking certified
copy to be excluded under Sec. 12(2) of Limitation Act
Whether Charity Commissioner is inferior to District Court
Civil Procedure Code, 1908 Sec. 151 Inherent power of
District Court to act under Sec. 151 to remand a case under
the Bombay Public Trusts Act.
22.1. Section 72 of the Bombay Public Trusts Act provides
for an application made to the Court under that section
a period of limitation a different from the period
prescribed therefore in the First Schedule to the
Limitation Act and Sec. 29(2) of the Limitation Act is,
therefore, attracted and it makes the provisions of Sec.
12(2) of the Limitation Act applicable to such an
application and the time taken for obtaining a certified
copy of the order is, therefore, liable to be excluded
under Sec. 12(2) in computing the period Sof limitation
prescribed by Sec. 72 for such an application. An
application under Sec. 72 cannot be said to be an appeal
within the meaning of Sec. 75 but there is no reason for
saying that an application under Sec. 72 cannot be
regarded as an appeal within the meaning of the
Limitation Act. The Legislature has charterized the
proceeding under Sec. 72 as an application and not an
appeal but that is no determinative of the question.
The right is in substance, if not in form, in the nature
of an appeal. The Charity Commissioner is not
subordinate to the District Court in the sense that the
District Court has no power of superintendence over the
Charity Commissioner but in the matter inter alia of
his decisions under Sec. 70 the Charity Commissioner is
inferior to the District Court in that District Court
has power to revoke or modify his decisions. Sec. 151 of
the Code of Civil Procedure would apply to an appli
cation under Sec. 72 and the District Court hearing such
application would have inherent power under that section
to make an order of remand if the District Judge thinks
it necessary to do so in an appropriate case.
CHANDRAKANT HARMANDAS vs. THE CHARITY COMMISSIONER OF
GUJARAT, 1965 GLR 649.
Section 50 & 50A:
23. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
56B Whether only applies to a public trust not registered
under the Act Question involving public, religious or
charitable purpose Sec. 56B applies and notice to Charity
Commissioner necessary Words "legal proceedings" includes
all legal proceedings without any limitation or restriction
Question of appointment of a trustee is a question
affecting public, religious or charitable purpose of the
public trust.
23.1. There is nothing in Sec. 56B of the Bombay Public
Trusts Act, 1950 which limits its applicability to cases
relating to a public trust which is not registered under
the provisions of the Act. Once a position is reached in
which it is found that in a suit or legal proceeding a
question is involved affecting a public, religious or
charitable purpose, Sec. 56B must apply and notice must
be given to the Charity Commissioner. There is no
synonymity between the expression "public, religious of
charitable purpose" and the expression "public trust."
The expression "public trust" is defined in Sec. 2(13)
to mean an express or constructive trust for either a
public, religious or charitable purpose or both and
includes certain other institutions which is not
necessary to enumerate for the purpose of the present
discussion. This definition clearly brings out the
distinction between the two expressions "public trust"
and the "public, religious or charitable purpose". The
former connotes the trust whether express or
constructive while the latter constitutes the purpose
for which the public trust exists. Every question which
affects a public, religious or charitable purpose would
not necessarily affect a public trust unless the public,
religious or charitable purpose affected by the question
is purpose of public trust. But every question affecting
a public trust would necessarily be a question which
would affect the public, religious or charitable purpose
of such public trust. The words "legal proceedings" must
receive their full and natural meaning and they must be
held to include within their scope and ambit all legal
proceedings without any restriction or limitation
including the proceeding before the District Court for
appointment of a member of the Committee under Clause 7
of the Scheme. The general words even if they are
preceded by particular and specific words must
ordinarily receive their full and natural meaning unless
they are clearly restrictive in their intendment and
their full and natural meaning must not be confined
within narrow limits by application of the rule of
ejusdem generis unless there is a distinct genus
comprising more than one species. There is a direct
nexus between the fitness or competence of the trustees
and the achievement of the public religious or
charitable purpose of the public trust. The former is
bound to react on the latter and it is for this reason
that the Legislature has prescribed in Sec. 47(4)(c)
that in appointing a new trustee of a public trust the
Court must have regard to the question whether the
appointment will promote or impede the execution of the
public trust. This provision puts the question beyond
the pail of doubt and controversy and makes it
abundantly clear that the question of appointment of a
trustee is a question which has a direct and proximate
bearing on the execution of the public trust and that it
is consequently a question affecting a public religious
or charitable purpose within the meaning of Sec. 56B in
the sense that it can promote or impede the achievement
of the public religious or charitable purpose of the
public trust. Therefore the District Court was in error
in taking the view that no not ice was necessary to be
given to the Charity Commissioner under Sec. 56B before
deciding as to who should be appointed a member of the
Committee under Clause 7 of the Scheme. SHAH
JAGMOHANDAS PURSHOTTAMDAS vs. JAMNADAS VRAJLAL GANDHI,
1965 GLR 49.
24. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
50, proviso Distinction between Public Trust and public
trust property Suit against trespasser by trustee Suit
in respect of trust property and not trust Sec. 50 does
not apply Consent of Charity Commissioner not necessary.
24.1. The proviso to Sec. 50 of the Bombay Public Trusts
Act speaks of the institution of a suit in respect of
any public trust and not suits in respect of any public
trust and public trust property. There is a distinction
between a public trust and public trust property. A suit
for the recovery of possession of a public trust
property is not a suit in respect of a public trust and
therefore Sec. 50 of the Act would not apply, if the
suit is by a trustee against a trespasser. Such a suit
would not be in respect of the trust and the consent of
the Charity Commissioner would not be necessary. MALEK
CHITTU RASUL vs. PATHAN MAHMADKHAN KALUKHAN, 1966 GLR
1011.
25. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
50A(2a) Power of appointment of first trustee under the
scheme Appointment of such trustees may result in removal
of all trustees Power to frame scheme implies the
obliteration of earlier management Removal of old trustees
is merely a consequence of the appointment of first trustee
under the scheme.
25.1. The whole phrase reading "the mode of appointment
of trustees including the appointment of first trustees"
deals with the subject of appointment of trustees and
while dealing with this subject it provides that the
scheme may make provisions for the mode of appointment
or trustees as well as for the appointment of the first
trustees. The power of appointment as given under sub
sec. (2A) to the Charity Commissioner while framing a
scheme is limited to the appointment of the first
trustees under the scheme. A scheme framed by the Court
under Sec. 50 or by the Charity Commissioner under Sec.
50 or by the Charity Commissioner under Sec. 50A takes
the place of the management of the trust and its
properties prior to the framing of the scheme. The
scheme would therefore, provide for number of trustees
and the mode of their appointment as well as the
appointment of the first trustees under the scheme. The
power of appointment of trustees is such an important
and integral part of the power of framing of a scheme
that without the former, the latter power would become
useless. Therefore, if the power of appointment of first
trustees under the scheme is an integral part of the
framing of the scheme, the consequence of the exercise
of that power which in a given case may result in the so
called removal of the old trustees, has no bearing upon
the interpretation of subsec. (2A) of Sec. 50A of the
Bombay Public Trusts Act. It is the power of appointment
of first trustees which results, in the eyes of law, in
the socalled removal of the old trustees, and that
consequence must follow. In a case where the scheme is
framed by the Charity Commissioner or by the Court,
where power is given under the statute to make
appointment of first trustees, it is not necessary to
provide specifically for the removal of the old
trustees. This is for the simple reason that management
under the scheme takes the place of the old management;
and the old management is fully eclipsed by the
management under the scheme. The power to frame a scheme
necessarily implies the obliteration of earlier
management of the public trust in question and
substitution of a scheme of proper and better management
in its place. If this is the purpose of framing a scheme
under Sec. 50A, the trustees under the old management
cannot continue inspite of the obliteration of the old
scheme of management. They have got to be either
reappointed under the scheme or removed by appointment
of other trustees in their place as first trustees.
Their removal is merely a consequence of the appointment
of the first trustees under the scheme. It is not
necessary in such a case to provide specifically for the
power of removal of an existing trustee. The phrase
"vesting of the trust property in the trustees so
appointed" also supports the conclusion that by
appointment of first trustees under the scheme in the
place of old trustees, the old trustees are removed. In
order, however, to see that the legal title to the
property of the public trust does not continu e to
remain vested in the old trustees, a specific provision
has been made in subsec. (2A) conferring power on the
Charity Commissioner to vest the trust property in the
first trustees appointed under the scheme. This would
result in divesting the legal title in the old trustees
and vesting of the same in the first trustees appointed
under scheme. It is thus clear that the Charity
Commissioner has ample power so make appointment of
first trustees in the place of the old trustees without
continuing them so as to bring about their removal.
KANTILAL C SHAH vs. THE CHARITY COMMISSIONER, 1975 GLR
594.
26. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 50
Trustees trying to let premises of the trust in violation
of previous resolution Plaintifftrustee filing suit for
declaration as well as injunction Such case does not fall
within the purview of clause (iii) of Sec. 50 Suit filed
therefore completely maintainable.
26.1. In the instant case, the plaintiff was one of the
trustees of the trust. The other trustees, in pursuance
of the mandate from the general body, were trying to let
the newly constructed premises to an outsider in illegal
supersession of a previous resolution passed by the
general body and in disregard of the rules concerning
the trust. According to plaintiff, such an act would be
an unauthorised act having no sanction of law behind it,
and he, therefore, filed the suit for the relief of
declaration, as well as an injunction restraining the
defendants from committing such an unauthorised and
illegal act. Such a case does not fall within the
purview of clause (iii) of Sec. 50 of the Bombay Public
Trusts Act, or any of the other clauses viz. clauses (i)
and (ii) because there is no allegation in the plaint
that there is breach of the public trust nor this is a
case where a direction is required to recover possession
of the property belonging to the public trust or
proceeds thereof or any account of such property or
proceeds. The very condition precedent, therefore, which
would attract the provisions of Sec. 50 is absent in the
instant case. There is no direction sought by the
plaintiff authorising whole or any part of the trust
property to be let, sold, mortgaged or exchanged as is
contemplated under the relief clause (f) in Sec. 50 and,
therefore, the second ingredient which would attract
provisions of Sec. 50(vi), the suit for claiming relief
in terms of one or more of the nine reliefs set out is
the relevant clause in the section, is not satisfied. It
is only when these two conditions are satisfied that the
suit would be covered by Sec. 50 and then, as per the
third part which contains a proviso, it is to be
safeguarded that such a suit claiming any of the reliefs
specified in the section is instituted in respect of a
public trust specifically in conformity with the
provisions thereof. GOVIND KRISHNA ABHYANKAR vs.
KAMALAKAR VISHNU GANPULE, 1979(2) GLR 517.
27. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 50
Trespasser encroaching upon trust property Trustees are
entitled to file suit Sec. 50 under which consent of the
Charity Commissioner is necessarily is not attracted in such
a suit.
27.1. Section 50 of the Bombay Public Trusts Act is an
enabling provision. Ordinarily, trustees as legal owners
alone are able to file suits for the recovery of
possession of trust properties. As for example, a
trespasser, if sued by a third party, would be able to
successfully resists the suit by banking on his de facto
possession of the property. The substantive portion of
Sec. 50, therefore, is to be confined to the power of
Charity Commissioner and the power of the beneficiaries
of the trust to institute those suits enumerated in
clause (a) to (h) of Sec. 50 of the Act, where the
background is one depicted in clause (i) or (ii) or
(iii) of the initial part of Sec. 50. All that the
proviso forbids is that those who are given power in the
earlier part of Sec. 50 are to exercise those powers
only in compliance with the provisions of that Act and
not otherwise. So the proviso is a sort of a restriction
placed on the powers of the Charity Commissioner and on
the powers of the beneficiaries of the trust, who are
designated by section as "persons having an interest in
the trust". The proviso is not to be enlarged in its
connotation to cover even trustees. Section 50,
therefore, could not have been intended to impose an
embargo on the general powers of the trustees to file
suit for the recovery of the possession of the trust
property either from tenants or licensees or from
trespassers. NADIAD NAGARPALIKA, NADIAD vs. VITHALBHAI
ZAVERBHAI PATEL, 1980 GLR 792.
28. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
2(10), 50 and 51 Trustees of a public trust are persons
interested in the trust as per Sec. 2(10) If the suit is
of the nature falling under Sec. 50, the trustees must
obtain the consent of the Charity Commissioner before filing
a suit A suit by some of the trustees for the removal of
the rest is a suit falling under Sec. 50 A suit filed in
contravention of Sec. 51 is liable to be dismissed under
Order 7 Rule 11 of Civil Procedure Code.
28.1. Seven out of 11 trustees filed a suit for removal
of the rest i.e. respondents Nos. 1 to 4. The
respondents contended that the suit was barred by the
provisions of Bombay Public Trusts Act, 1950 inasmuch as
necessary consent of the Charity Commissioner before
filing the suit has not been obtained and hence the suit
is liable to be rejected. Learned Counsel for the
appellants original plaintiffs submitted that the phrase
'the persons having an interest in any public trust'
occurring in Sec. 51 of the Act would not include the
trustees of the trust and therefore, the provisions of
Sec. 51 cannot be invoked against the plaintiffs who are
admittedly the trustees of the trust in question. This
contention cannot be accepted for the simple reason that
the definition of 'person having interest' occurring in
Sec. 2(10) of the Act is an inclusive definition.
Trustees of the public trust would certainly be the
persons having interest in the trust property in wider
sense of the term. There is no reason why restricted
meaning be given to the phrase. If trustees have no
interest in the property of trust, who else would have
interest. When the nature of the suit is such that it
falls within the purview of Sec. 50 of the Act, it would
be proper that before filing such suit the consent of
the Charity Commissioner is obtained by the plaintiff,
even though the plaintiffs are some of the trustees of
the trust. PATEL NANJI DEVJI vs. PATEL JIVRAJ MANJI,
1988 (2) GLR 830.
29. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
50A Appellant was the sole Trustee of a temple at Kanjari
in Halol Taluka of Panchmahals Dist. registered as a public
trust Application by him before the District Court against
the order of the Charity Commissioner to frame the scheme
for the temple, dismissed with certain modifications In
the First Appeal the High Court held that powers under Sec.
50A of the Act are to be exercised by the concerned officer
on subjective satisfaction The appellate Court has only to
examine whether there is any material on the basis of which
the Charity Commissioner could arrive at the decision he has
reached It appears from the record of the instant case
that there was such material on record and therefore, the
decision of the Charity Commissioner to frame a scheme is
unimpeachable. RAM KRASHANADASJI GURU MADHAVDASJI vs.
CHARITY COMMISSIONER, 1992 (2) GLH 192.
30. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 50
Where in a suit reliefs are sought which would have the
effect of interfering with the management of a trust, Sec.
50 is attracted and a suit filed without compliance thereto
is liable to be dismissed.
30.1. The Court has examined the contents of the plaint
and also the reliefs claimed therein. By claiming a
right to have the idols and portraits in the Dharamshala
hall and also the right to read the books propounded by
the followers of Abji Bapa, the respondentsplaintiffs
in pith and substance are asking for alterations in the
Scheme of the trust already settled. In any case, the
right of trustees to decide the place where devotees
would recite the scriptures and also the place where the
idols and portraits are to be installed has been
questioned in the suit. The respondents plaintiffs are
indirectly trying to interfere with the management of
the temple. The main purpose of the suit filed by the
followers of Abji Bapa is to establish the superiority
of their sect and impose their way of thinking and
worship in the management of the temple and as a
consequence in the administration of the trust. In this
view of the matter, there is no escape from the finding
that the suit falls within the purview of Sec. 50 of the
Trusts Act, and as such the trial Court rightly
dismissed the same. KANBI MANJI ABJI vs. KANBI VAGHJI
MAVJI, 1994 (1) GLR 479 (SC).
31. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
50A and 56(A)(1) Mode of succession by inheritance
Cannot be changed by change report Scheme will have to be
framed under Sec. 50A.
31.1. It is, therefore, clear that if hereditary mode of
succession to the trusteeship, which is only mode of
succession, is required to be changed, that prima facie
would not amount to a change in the names of the
trustees simplicitor, which can be recorded by way of
granting change report. If the mode of succession to the
trusteeship is required to be altered, it is plain to
find that that could not be done by recourse to Sec.
56(A)(1) of the Bombay Public Trusts Act. CHARITY
COMMISSIONER, GUJARAT vs. NAGARBHAI MADHAVDAS, 1994 (2)
GLR 1089.
32. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
22, 50A and 56A Scheme of trust Amendment Charity
Commissioner can bring about the amendment under Sec. 50A
Courts advisory jurisdiction under Sec. 50A does not extend
to issue mandate to the Charity Commissioner to bring about
the amendment.
32.1. The said Court while dealing with the said
application under Sec. 56A, completely overlooked the
fact that it was exercising merely advisory
jurisdiction, and that too in a field where the
provision enables the Court to deal with only matters
which are suitable for summary disposal. The Court
failed to appreciate that the trustees had filed the
application as per the mandate given by the Assistant
Charity Commissioner in the Change Enquiry Proceedings,
but failed to appreciate that the trustees had not filed
an application under Sec. 50A for framing a scheme as
per the said mandate. The Court also overlooked the
clear position in law that its advisory jurisdiction
does not extend to issuing a mandate to the Charity
Commissioner to amend the constitution of the Trust
except in accordance with the specific provisions of the
said Act, namely, resorting to the provisions of Sec.
50A. Clearly therefore, the impugned order is beyond the
jurisdiction of the Court. The advisory jurisdiction of
the Court under Sec. 56A does not extend to issuing a
mandate to the Charity Commissioner to bypass the
substantive proceedings contemplated by Sec. 50A. The
framing of a Scheme under Sec. 50A is only within the
exclusive jurisdiction of the court Charity
Commissioner, and this jurisdiction cannot be indirectly
assumed by the Charity court (by issuing a mandate to
the Commissioner) in its advisory jurisdiction under
Sec. 56A. CHARITY COMMISSIONER, GUJARAT STATE vs.
SHAKARLAL DOSABHAI SHAH, 1995 (2) GLH 35 UJ27.
33. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
50 and 50A In the matter of framing a scheme, the Charity
Commissioner and the District Court have the same power A
scheme framed by the Charity Commissioner appointing
trustees, vesting trust properties in trustees and directing
a third party to hand over possession to the trustees is
executable as a decree passed by a Civil Court.
33.1. It has been held that it was necessary to frame
scheme in respect of the temple and framed a scheme. The
Joint Charity Commissioner also passed the order in the
form of a declaration that the trustees appointed under
the scheme get a legal title over the temple properties
whereas Vrajlal had no title to retain possession.
Vrajlal was directed to hand over possession of the
temple properties to the trustees appointed under the
scheme, to come in force from the date of the order. The
petitioners along with the Joint Charity Commissioner
filed Darkhast in the Court of the District Judge,
Mehsana, being Regular Darkhast No. 1 of 1981, in order
to execute the order passed by the learned Joint Charity
Commissioner, as a decree. The District Judge dismissed
the execution application. Hence, this Special Civil
Application.
33.2. When the legislature says that the scheme framed
under Sec. 50A of the Act would have the same effect as
the scheme settled by a decree of a Court under Sec. 50
of the Act, it clearly means and intends to treat the
scheme under Sec. 50A of the Act and the scheme settled
under the decree of Civil Court on equal footing in all
respect because the legislature has given the former the
effect of the latter and if this is so, the scheme
framed under Sec. 50A of the Act for all the purposes
is at par to a scheme settled under the decree of a
Court under Sec. 50 of the Act. In case it would not
have been made to be a decree then, as stated earlier,
the whole purpose of enacting Sec. 50A of the Act would
have been defeated.
33.3. It is hereby ordered that the directive part of the
scheme settled by the Joint Charity Commissioner in the
present case is executable by the Civil Court as if a
decree of the Civil Court by virtue of the provisions of
subsec. (4) of Sec. 50A of the Act. – SATYANARAYAN
MANDIR AND ROKADIA HANUMAN SARVAJANIK TRUST , PATAN AND
ORS vs. SADHU VRAJLAL LAXMIDAS, 1997 (3) GLR 1825.
34. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
50 and 51 Suit for recovery of trust property Trustees
can file such suit in exercise of their own right without
obtaining permisssion of the Charity Commissioner.
34.1. It may also be pertinent to notice that while Sec.
50 authorises Charity Commissioner or two or more
persons having interest in the trust by obtaining
consent in writing of the Charity Commissioner may
institute suit, it does not restrict the right of
trustees in whom the legal ownership of property of
trust vest to file a suit for recovery of trust property
or protect the property in exercise of their own right
without obtaining the permission of the Charity
Commissioner as for exercising of ownership by person in
whom the right of legal ownership vest, no permission is
required. The bar under Sec. 80 which is subject to
other provisions of the Act, therefore, does not apply
to a suit of the nature envisaged under Sec. 50, namely,
a suit by Charity Commissioner having interest in the
trust property or by the trustees for recovery of a
trust property from persons claiming the same adversely
to the trust have encroached upon it. TRUSTEES OF
HARESHWAR MAHADEV TRUST vs. TRUSTEES OF SHRI
JASVANTSINHJI AUDICHYA BRAHMAN BOARDING VIDYARTHI
BHAVAN, 1998 (1) GLR 434.
35. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
50A Power of Charity Commissioner to frame a scheme for
the management of a public trust Charity Commissioner
empowered to act suo motu or on application of two persons
interested in the trust Application moved by two persons
On death of one of them his heir was allowed to join after
long delay Contention that in such a case proceedings
would abate Contention negatived Held, looking to the
scheme of the section proceedings under Sec. 50A would not
abate even if heirs or successors were not joined.
35.1. The Charity Commissioner is crowned with very wide
powers to check and control the irregularities,
malpractices and misconduct in the functioning of any
public trust. Also to supervise, regulate, settle a
scheme for the proper management or administration of a
public trust, in fact involved in almost every step of
the functioning of a Public Trust.
35.2. Section 50A infuses the Charity Commissioner with
power in addition to Sec. 50 to frame, amalgamate or
modify any scheme in the interest of proper management
of a public trust. This is exercised either suo motu
when he has reason to believe it is necessary to do so
or when two or more persons having interest in a public
trust make an application to him in writing in the
prescribed manner. This merely enables the Charity
Commissioner to initiate proceedings for settling a
scheme for the proper management or administration of a
public trust. In the background of the setting of
various provisions, object of the Act, the Charity
Commissioner being clothed with sufficient power to deal
with all exigencies where public trust or its trustees
strays away from its legitimate path and where the
materials are before him or placed before him by the
said two persons, then to hold abatement of proceedings
on application of any procedural laws not only would
amount to the curtailment of his power but make him
spineless and helpless to do anything in the matter of
public trust eroding the very object of the Act. This is
too restrictive interpretation to be accepted.
35.3. If the interpretation sought by the learned Counsel
for the appellant is to be accepted, it would tie the
hands of a Charity Commissioner not to proceed with
settling a scheme in spite of material placed before
him, only because one of the applicants is dead. The
concept of abatement under Sec. 50A would never arise,
specially in such a situation where for achieving such
an objective he in addition is capped with power to
initiate suo motu . It is not in dispute that the said
two persons have made an application in the prescribed
form. The proceeding has been initiated in terms of and
in accordance with Sec. 50A, this cannot be said to be
improper or illegal. Once the material is brought before
him, he may on the materials or after inquiry or after
giving opportunity to the person concerned or trustees
may or may not exercise his power depending on facts and
circumstances of each case, but his exercise of power
cannot be ousted either on the death or withdrawal of
anyone of the applicants.
35.4. Hence, nonsubstitution or delayed substitution of
such deceased person would make no difference. In this
case when initiation of proceedings is in accordance
with law which requires consideration for setting a
scheme for the better management, in the Court's
considered opinion, the proceeding cannot culminate or
be defeated on the principle of abatement as provided in
Civil Procedure Code. SAIYAD MOHAMMAD BAKAR ELEDROOS
(DEAD) BY LRS vs. ABDULHABIB HASAN ARAB, 1998 (2) GLR
1781 (SC).
36. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 50
Sale of public trust property Permission by Charity
Commissioner for sale of trust property Paramount
consideration is whether transfer is in the interest of
public trust Principles in this regard reiterated.
36.1. It cannot be doubted that law does not favour
divesting of immovable properties of public trust
ordinarily. The State Government is paramount guardian
of public charity and it is its bounden duty to see that
the funds and properties of public trusts are not
floundered or misapplied. It is to safeguard the
properties of different trusts from being misused,
provision like the one of seeking permission before
transfer of the property has been made. The principles
governing the application for grant of permission to
sell the properties of public trust have been well
settled. The basic guiding factor for the Charity
Commissioner in considering the application for transfer
of any immovable property of the public trust is whether
such transfer is in the interest of the public trust and
for its benefit, and protection. In order to satisfy
himself before the Charity Commissioner sanctions
alienation of trust property he has to apply his mind to
two material questions, namely, (i) whether there is a
compelling necessity to justify the alienation in
question and (ii) whether the proposed alienation is
fair and does in any way adversely affect the interest
of the trust. The first enquiry is into the factors
which have necessitated the transfer of the immovable
property and the second question envisage inquiry into
the fairness of proposed transaction. That is to say,
whether it results in the best yield to the trust from
its property. HASAM IBRAHIM ABDUL LATIF SUPEDIWALA vs.
BHAICHAND PRANLAL DHONEJA, 1999(3) GLR 2296.
37. Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs.
50A & 73 Inquiry before a Charity Commissioner, including
a scheme proceedings is a quasijudicial proceeding.
JAYMAL THAKORE vs. CHARITY COMMISSIONER, GUJARAT STATE, 2001
(3) GLR 2124.
38. Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs.
50 and 50A Courts and Charity Commissioner's powers and
limitations while framing a scheme There are wide powers
But in the absence of evidence of misfeasance, powers of
trustees should not lightly be curtailed, nor should old
practices be departed from, nor should the method of
appointing trustees be tampered with, and if at all it must
be gradual.
38.1. Where no mismanagement or embezzlement is shown the
Court should so frame the scheme as to meet the
exigencies of the case without unduly interfering with
the powers of the committee, caste or the public or
impairing the authority of a person carrying on the
management. In drawing up a scheme the Court must not
encroach upon the rights and prerogatives of the
existing management and the institutional trust must be
respected subject to the safeguard that the sect and the
body of the worshippers for whose benefit it was set up
have the protection of the Court against their property
being the subject of abuse, speculation and waste.
38.2. It appears to the Court that in view of the fact
that nonmurid Muslims are also beneficiaries of the
trust activities, some participation of the nonmurids
in the management of the trust affairs and its
properties would not only be permissible, but also be
justified. At the same time applying the principles laid
down in the aforesaid authorities, it appears that, the
scheme as framed by the Joint Charity Commissioner and
sanctioned by the City Civil Court goes too far in not
only providing 1/4th number of the trustees on the Board
of Trustees being appointed out of nonmurids, but also
in conferring on the Charity Commissioner the power of
appointment on the new Board of Trustees upon expiry of
the term every six years. In view of the fact that no
allegation of mismanagement or misappropriation has been
made against the existing trustees or any one of them
and that the only ground on which the nonmurids are
sought to be inducted into the Board of Trustees is that
in the past most of the benefits were given to the
murids only and in view of the concession being made by
the learned Counsel for the appellants that the
conditions imposed by this Court in the interim order
dated 771977 may be made a part of the scheme, it
appears to the Court that the power to make appointment
of all the Trustees upon expiry of the term every six
years need not be conferred upon the Charity
Commissioner or any outside agency. ABDULRAHIM
AFAZALBHAI KADIAWALA AND ORS. vs. CHARITY COMMISSIONER,
GUJARAT STATE , 2001 (CD) GLR 285.
39. Bombay Public Trusts Act, 1950 (29 of 1950) Secs. 50
& 51 Disputed plot of land was handed over to the trust by
virtue of gift deed dedicating the property in favour of the
idol Suit by third party to recover the property from the
trust Held, suit could not have been filed without consent
of the Charity Commissioner Decision of the Bombay High
Court, set aside.
39.1. When the disputed plot had already been dedicated
in favour of the idol by virtue of a deed of gift, of
which the appellant is a trustee and the same was acted
upon as possession also was delivered to the appellant
Trust, it was surely necessary for the
plaintiff/respondent Nos. 1 to 7/purchaser of the suit
land and also incumbent upon respondent No. 8/vendor of
the saledeed to seek permission from the Charity
Commissioner before a saledeed could be executed in
regard to the disputed plot and more so before a Civil
Suit could be instituted. The Court therefore, finds
substance in the contention of learned Counsel for the
appellant, that the dedication dated 3111974 of the
plot for charitable purpose in the nature of gift having
been acted upon as a result of which the possession also
was delivered to the appellantTrust, the Civil Suit
filed by the predecessor of contesting respondent Nos.
17 for possession was expressly barred in terms of
Secs. 19, 20, 79 and 80 of the Bombay Public Trusts Act,
1950. (Para 13)In view of the possession of the property
in question of the appellantTrust, it was obligatory on
the part of the purchasers of the plot in
question/respondent Nos. 1 to 7 to seek permission from
the Charity Commissioner under Sec. 51 of the Bombay
Public Trusts Act, 1950 to recover the property by
filing a suit or initiating a proceeding. SAINATH
MANDIR TRUST V. VIJAYA, 2011 (4) GLR 3640 (SC).
40. Bombay Public Trusts Act, 1950 (29 of 1950) Secs. 22
& 50A(2) Societies Registration Act, 1860 (21 of 1860)
Sec. 13 Merger of First District Church of Brethren with
Church of North India A section of former objecting to
merger Held, merger of a religious public trust does not
take effect by mere passing of resolution or by 'Change
report' Merger of a public trust cannot be effected except
in accordance with provisions of Public Trusts Act and
without prior permission of Charity Commissioner A
fortiori, as there is no lawful merger there is no transfer
of properties of F.D.C.B. to C.N.I. Further, estoppel not
applicable even if objectors had earlier agreed to merger
otherwise it would negate freedom of conscience and right to
manage their own affairs in matters of religion, guaranteed
under Arts. 25 & 26 of the Constitution Order by Civil
Court reversing order of Charity Commissioner, confirmed.
SHIRISH CHRISTIAN V. MAGANLAL MANGALDAS GAMEET, 2012 (2) GLR
1629.
Section 55:
41. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 55
Every accumulation of income by itself not surplus
Accumulation only in nature of a reserve which may be
required for future contingencies cannot be considered
surplus Doctrine of cypres would not apply to such
accumulation.
41.1. Every accumulation of income of a trust is not by
itself a 'surplus' to which the doctrine of cypres would
apply. Whenever the question arise whether a particular
accumulation becomes a surplus within the meaning of
Sec. 55 of the Bombay Public Trusts Act, or not, it has
got to be answered only with reference to peculiar facts
of each case. It may be that some reserve from the
income of a public trust would always be necessary to
meet future contingencies of tomorrow, which cannot be
visualized today. It may happen that the balance found
in a particular year cannot be usefully utilised during
the course of that year for the objects of the trust for
variety of reasons, but the said balance would be wiped
out on account of some unforeseeable possibilities,
which the trust affairs would have to encounter in
future. It is for this reason that if the accumulation
in question is found to be only in the nature of a
reserve, which is reasonably required to meet some
future contingencies, the said surplus cannot be
considered as a 'surplus' to which the doctrine of
cypres would apply. In cases of fluctuating income and
expenditure of a public trust, a temporary surplus would
often come into existence. Such a temporary surplus
would prima facie not be the surplus, to which cypres
principle would apply. 1972 GLR 447.
42. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 55
When surplus balance becomes accumulated income depends
upon the facts of each case Capitalization of Income,
constitution of Reserve Fund and such other things may
indicate accumulated income as distinguished from surplus
balance.
42.1. Whether a particular surplus balance within the
meaning of Sec. 55 of the Bombay Public Trusts Act has
become an accumulated income or not is to be decided on
the facts of each case. In the instant case, there is no
evidence to show that any surplus balance was
capitalized or that a Reserve Fund was constituted to
meet any further contingencies. Therefore, there are no
indications to show that the surplus balance or any part
thereof as contemplated by Sec. 55 has been converted
into accumulated income. ANARDAN KASHINATH KARULKAR
vs. CHARITY COMMISSIONER, GUJARAT STATE, 1973 GLR 724.
43. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
55 and 56A Indian Trust Act, 1882 Sec. 34 Closing down
or discontinuing the activities of a public trust Rights
of a trustee and a beneficiary to move the Court or the
Charity Commissioner to seek directions.
43.1. If the trustees fail or disclaim to carry out the
lawful directions of the settlement, it would amount to
a breach of trust and any person having interest in the
trust has a right to approach the competent authority
for appointment of new trustees or for appropriate
directions as the nature of the case may require. Under
Sec. 34 of the Indian Trust Act corresponding to Sec.
56A of the Bombay Public Trust Act, the trustees are
empowered to apply to the Court of competent
jurisdiction for the opinion, advice or direction of the
Court on any question affecting the management or
administration of the trust property or income thereof.
This is a power coupled with the duty that in case of
any difficulty in the management or administration of
the trust, a trustee may seek the opinion or advice of
the Court. Similarly, under Sec. 55 of the Bombay Public
Trusts Act, the trustees may under the directions of the
Charity Commissioner, obtain appropriate directions from
the Court of competent jurisdiction, if it is not
practicable to carry out wholly or partially the
original intention of the author of the public trust. A
person having interest in the administration of the
trust can, therefore, invoke the jurisdiction of this
Court in appropriate cases like the present one where
the trustees fail to obey the lawful directions of the
settlement without obtaining appropriate directions from
competent authority under the aforesaid Act. The High
Court, before exercising the jurisdiction would
certainly consider whether it should exercise such
jurisdiction or should relegate the parties to the
special Machinery provided under the Bombay Public
Trusts Act for redress of their grievances. But this
would not mean that the High Court would have no
jurisdiction to exercise its extraordinary jurisdiction
under Art. 226 of the Constitution for issuance of a
writ of Mandamus in appropriate case where a public
utility like the institute before Court disclaims its
obligation to carry out the lawful directions of the
settlement which it w as hitherto carrying out. A P
SHAH vs. B M INSTITUTE OF MENTAL HEALTH, THROUGH ITS
SECRETARY, 1986 (2) GLR 910.
Section 56A:
44. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
36, 56A and 80 Granting of sanction to sell property etc.
within the exclusive jurisdiction of Charity Commissioner
Court can give direction only in matter to effectuate the
sale Civil Court has no jurisdiction to grant sanction to
any sale under Sec. 56A.
44.1. The neat effect of Sec. 36 and Sec. 56A read with
Sec. 80 of the Bombay Public Trusts Act is that the
power of granting sanction to any transaction of sale,
mortgage or exchange or gift of any immovable property
is within the exclusive competence of the Charity
Commissioner and beyond the competence of Civil Court.
The District Judge exceeded his jurisdiction after
having issued the directions investing the trustees who
were applicants before him the power to sale the
property when he proceeded to accord the sanction to the
sale in question that power of according sanction is
with the Charity Commissioner and by virtue of the
provision contained in Sec. 80 the Civil Court could not
have granted sanction to any sale under Sec. 56A. The
Civil Court could have granted directions only in the
matter of power to effectuate the sale. CHARITY
COMMISSIONER, GUJARAT STATE vs. RUSTOM FARAMROZ DABOO,
1979 GLR 635.
45. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
56A Civil Court's jurisdiction taken away under Sec. 80
However, this is subject to contrary provisions as laid down
in Sec. 56A Sec. 80 will not be attracted in proceedings
initiated under Sec. 56A.
45.1. The District Court is no doubt a Civil Court and
under Sec. 80 of the Bombay Public Trusts Act its
jurisdiction to decide or deal with any question which
is by any officer or authority under this Act is taken
away. But this is subject to contrary the provisions
contained in the Act. In other words, if Sec. 56 of the
Act itself otherwise provides, the bar contained in Sec.
80 would not be attracted. So, if under Sec. 56A the
District Court has got jurisdiction to issue any
direction in respect of the administration or management
of the trust properties. Section 80 will not be able to
step into the picture. This is a special Act containing
special provisions and special provisions are given a
place to meet special requirements and contingencies. So
the bar contained is Sec. 80 will not be attracted when
any proceedings are initiated under Sec. 56A of the Act.
MAGANBHAI MADHABHAI vs. AMBALAL BHIKHABHAI PATEL,
1982(1) GLR 746.
Section 56B:
46. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
56B Suit or proceeding to enforce mortgage Whether
covered by Sec. 56B.
46.1. A suit to enforce a mortgage or a proceeding to
enforce a mortgage decree against property belonging to
a public trust is not a suit or proceeding in which a
question affecting a public, religious or charitable
purpose is involved and, therefore, it is not obligatory
upon the Court to issue notice to the Charity
Commissioner under Sec. 56B of the Bombay Public Trusts
Act. TRIBHOVANDAS PURSHOTTAMDAS THAKKAR vs. RATILAL
MOTILAL PATEL, 1968 GLR 212 (SC) (FB).
Section 80:
47. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 80
Indian Trusts Act, 1882 Sec. 32 Principle of Indian
Trusts Act to apply if not inconsistent Trustees entitled
to reimbursement Allegation of breach of trust Question
whether a particular person is a trustee Whether
jurisdiction of Civil Court barred under Sec. 80 Whether
Civil Court entitled to give directions to Charity
Commissioner.
47.1. Even in cases arising under the Bombay Public
Trusts Act 1950, the principle and spirit underlying
Sec. 32 of the Indian Trusts Act, 1882, can be followed
in so far as it embodies the principles and rules of
English Law and practice on the subject which are not
shown to be inconsistent with the rules and practice of
the Courts in India. Applying Sec. 32 of the Indian
Trusts Act, the trustee is entitled to be reimbursed out
of the trust property all expenses properly incurred in
the execution of the trust or the realization,
preservation or benefit of the trust property. The
material question for consideration is whether the
trustee was guilty to alleged breaches of trust. In
deciding his liability, it has first to be found as a
fact that he was a trustee. This question cannot be said
to be barred under the provisions of Sec. 80 of the
Bombay Public Trusts Act. If in the proceedings for
framing a scheme for the proper and better
administration of a trust and for appointment of new
trustees, the Court directs, the plaintiff to consult
the families of the hereditary trustees, this cannot be
said to be an improper order. BAPALAL GODADBHAI
KOTHARI vs. CHARITY COMMISSIONER, GUJARAT, 1966 GLR 825.
48. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
18, 19 and 80 Sec. 80 bars the jurisdiction of the Civil
Court in respect of questions which by or under the Act are
to be decided by any officer or authority under the Act and
in respect of which the decision or order of such officer or
authority is made final and conclusive under the Act
Question as to what are the sources of income of a public
trust being one of the questions which under Sec. 19 of the
Act is required to be decided by the Assistant or Deputy
Charity Commissioner, cannot be decided or dealt with by a
Civil Court. CHARITY COMMISSIONER, AHMEDABAD vs. STATE OF
BOMBAY (NOW THE STATE OF GUJARAT), 1993 (1) GLH 94.
49. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
18, 19, 21, 79 and 80 Question whether particular property
is of a public trust Once the finding reached by the
authorities under the Act in this regard had become final,
the authorities cannot be required to decide this question
again and again Suit by trustees of one trust praying for
removal of encroachment over its properties by another trust
Property in question shown in the Public Trusts Register
as belonging to plaintifftrust Contention by defendant
trust that since it denied title of plaintiff question had
to be determined by authorities under the Act and Civil
Court's jurisdiction was barred Contention negatived.
49.1. Once a question has arisen about the existence of a
trust and any particular property belonging to it during
enquiry under Sec. 19 of the Act and findings have been
reached by the Deputy/Assistant Charity Commissioner or
if the finding of such authority has been challenged
before the Charity Commissioner in appeal the finding
has been reached by the Charity Commissioner, such
finding becomes final and conclusive unless it is set
aside by the decision of the Civil Court on an
application made in that regard or to the High Court in
appeal. It is not envisaged that once such final and
conclusive finding is reached in respect of the fact
whether in particular property is the property of such
trust or not, it is again to be enquired every time
anybody raises a question about the ownership. If the
question whether or not a particular property belongs to
a particular public trust which is a public trust or not
has arisen during the course of enquiry under Sec. 19
and that question has been decided by the
Deputy/Assistant Charity Commissioner, as the case may
be and in that proceedings by the highest of the
authority if that finding has become final, it becomes
final and conclusive effectively shutting out any
enquiry in future and it is not envisaged that once such
final and conclusive finding has been reached by the
competent authority, subsequently if any proceedings are
taken for enforcement of any right in respect of any
such property, the mere denial of title of the trust
enforcing its right in the property would inhibit the
jurisdiction of the Civil Court to entertain the suit,
and the authorities under the Bombay Public Trusts Act
shall be required to decide the question once over
again. That will be very negation of the declaration of
finality and conclusiveness of the findings earlier
recorded when such question had arisen. The Court,
therefore, does not find any substance in the contention
of the learned Counsel for the appellant that since
defendantappellants in the present case have raised the
question ab out the title of the plaintiff demanding an
enquiry into whether the property in question is the
property of the trust, jurisdiction of the civil Court
to enquire into that question is barred with reference
to Sec. 79 read with Sec. 80.
49.2. Under the scheme of the Act, question whether a
particular property is a property of a trust is raised
at the time when it is to be enquired into by the Deputy
Charity Commissioner or Assistant Charity Commissioner,
including the question whether such trust exists and
such trust is a public trust when application for
registration is made. Question having been raised before
it for determination and determination having been made
after holding enquiry, the findings reached in such
proceedings become final and conclusive in terms of Sec.
79 and no subsequent enquiry into the same question
again is envisaged merely because subsequent to such
finding again the same question is raised. It is only to
obviate necessity to recurrent enquiries into this
question the finality and conclusiveness is attached to
the finding reached by the Deputy/Assistant Charity
Commissioner or other higher authority, as the case may
be in appropriate proceedings, by declaring such
proceedings to be final and conclusive debarring all sub
sequent enquiries by such officers and the jurisdiction
of civil Court too is barred to enquire into such
question and the finding recorded by the competent
authority under the provisions of Sec. 19 or 79 as the
case may be, on the question of any particular property
belonging to any particular trust, except in accordance
with the provisions of the Act for altering such
entries. It is for the person or authority, requiring
such change to have recourse to such proceedings, and
certainly not by raising the question in defence
contrary to finding for the purpose of frustrating the
reliefs founded on such finality and conclusiveness, and
in the process nullify the very purpose and purport of
the provisions.
49.3. The plaintiff had pleaded that the property in
question is entered as property of the plaintiff trust
in the register under the Act. In the face of these
averments, in view of the provisions of Secs. 21 and 79
of the Act, under which finality is attached to such
facts further trial of the issue was not envisaged on
the pleadings of plaint. If the plaintiff fails to prove
such averments, his suit might fail, but jurisdiction of
civil Court will not be ousted at inception and it will
depend on enquiry whether such entry about trust
property exist under the provision of Bombay Public
Trusts Act.
49.4. In the present case, it is not disputed that
property covered by the grant had been found to be
belonging to the public trust plaintiff in the present
case and an entry to that effect has been made in the
register of public trust under Sec. 21. Therefore, the
finding recorded in the proceedings under Sec. 19 as
well as entries made under Sec. 21 are final and
conclusive. The only question which fell for
consideration before the Courts below was whether the
entry made in the register and the findings recorded in
that proceedings relate to the property in question or
identifiable with the property in question, enquiry into
such question by the Civil Court if occasion for such
identification arises. TRUSTEES OF HARESHWAR MAHADEV
TRUST vs. TRUSTEES OF SHRI JASVANTSINHJI AUDICHYA
BRAHMAN BOARDING VIDYARTHI BHAVAN, 1998 (1) GLR 434.
50. Bombay Public Trust Act, 1950 Secs. 79 and 80
Societies Registration Act, 1860 Sec. 13 Registration as
Society and subsequently as Public Trust under relevant Acts
Dissolution of Society under Societies Act contended to be
dissolution of Trust also Automatic dissolution of Trust
not accepted For dissolution at Trust, the provisions qua
dissolution under the Act need to be met by Decision to be
arrived at by Charity Commissioner, and hence, suit in Civil
Court not maintainable Civil Court without jurisdiction to
decide the dissolution of Trust. AMBALAL OKARLAL PATEL vs.
FILOMAN PATHUBHAI PATEL, 2003 (3) GLH 306.
Section 37 & 68:
51. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
37(1)(a) and 68(e) Charity Commissioner has no power to
give inspection of books of accounts to a third party under
Sec. 37 However, such power can be given under Sec. 68
Powers under Sec. 68(e) can be exercised for the purposes of
advancing or effectuating the purposes of the Act. QUAZI
REZIUDDIN BADRUDDIN vs. MAHMAD AMIN HAJI ABDULKADER, 1968
GLR 93.
Sections 19, 22 & 22A:
52. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
22A When inquiry can be made under Sec. 22A If property
already registered as a public trust property no fresh
inquiry can be made in relation thereto.
52.1. Section 22A of the Bombay Public Trusts Act applies
to cases where any particular relating to any public
trust was not the subject matter of the inquiry under
Sec. 19, or subsec. (3) of Sec. 22, as the case may be,
and in respect of which an inquiry is required to be
made. It is only in such cases that Sec. 22A empowers
the Deputy Charity Commissioner to make further inquiry
into the matter. If the subjectmatter of the inquiry
was registered as a public trust property, no fresh
inquiry in relation thereto can be made by the Deputy
Charity Commissioner. Section 22 presupposes the
occurrence of a change and an inquiry to be instituted
in order to determine the facts relating to change and
then to cause the necessary amendment to be made in the
public trust register pursuant to the finding recorded
in relation to a change. Sec. 22 does not contemplate an
inquiry to be made by the Deputy Charity Commissioner
for bringing about a change. SHUKLA RAMANUJACHARYA
GOVINDACHARYA vs. N N SHAH, 1972 GLR 493.
53. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
19 and 22A Entry made by Charity Commissioner under Sec.
19 is conclusive unless deleted by Sec. 22A Property of
the trust validly sold after permission of the Charity
Commissioner under Sec. 36 and such entry existing in public
record cannot be challenged.
53.1. It is settled view that once a finding about a
particular property being the property of the public
trust is reached and an entry is made pursuant thereto
in the register kept under Sec. 19 of the Bombay Public
Trusts Act, the said entry becomes conclusive, unless it
is varied by the subsequent order under Sec. 22A of the
Act. Held that in the instant case, the finding stands
that the property was the property of the trustees of
the trust, the predecessorintitle of the plaintiff,
and that those trustees had validly sold that property
to the plaintiff as per the saledeed and as the said
saledeed had been effected by the trustees after
seeking the Charity Commissioner's permission under Sec.
36 of the Act, the said saledeed was absolutely valid
and it is not open to the defendant to challenge that
entry existing in the public register at the relevant
time. BHUPENDRA RASIKLAL KAPADIA vs. JAYANTILAL
VRAJLAL SHAH, 1982(2) GLR 805.
54. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
19(ii), 21, 22, 68(b), 69(b) and 80 Ouster of jurisdiction
of Civil Courts to decide or deal with those questions which
are required to be decided or dealt with by the Deputy or
Assistant Charity Commissioner under the Act.
54.1. The Secs. 19, 68, 69 and 80 of the Bombay Public
Trusts Act clearly show that it is only the Deputy or
Assistant Charity Commissioner who can decide whether
any property is the property of a public trust. These
provisions also go to show that the jurisdiction of the
Civil Court to entertain that question is barred. In
view of this, it is clear that the Civil Court cannot
enter into and decide the question whether a particular
property is the property of a public trust or not. That
was the main question raised, in the present suit and
the appeal before the District Court. It is clear that
neither the trial Court nor the first appellate Court
could have decided the question of title because, on one
hand it is the allegation of the plaintiffs that the
suit properties are of the ownership of the public
trust, which is again duly registered under the Act,
while on the other hand it is the say of the defendants
that the properties were not of the ownership of the
trust and that they have been rightly resumed by th e
Government. In 1972 GLR 955, a question arose whether
notices are required to be issued to the public during
the inquiry proceedings under Sec. 19 of the Act. This
court held in the above case that it was not necessary
to issue any such notice to the public. It is held
therein that the rights of persons having an interest
are not prejudiced as a suitable remedy is provided by
other provisions of the Act. It is held therein that
even after inquiry under Sec. 19 has concluded and
entries are made in the register under Sec. 21 or Sec.
22, it is open to the Deputy or Assistant Charity
Commissioner to hold a further inquiry if it appears to
him that any particular relating to any public trust
which was not the subject matter of the inquiry under
Sec. 19 or subsec. (3) of Sec. 22 has remained to be
inquired into. SHERASIYA SAJI ALAVADI MOMIN vs. STATE
OF GUJARAT, 1985 GLR (1) 513.
55. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
19, 21, 22, 22 A, 79 and 80 In an inquiry contemplated
under Sec. 19 of the Act, the Authority specified therein
has to make inquiry whether any property is the property of
public trust or of any private individual if any such claim
is made. VILESHKUMAR SHANTILAL ACHARYA vs. DHANSUKHLAL J
GAJJAR, 1985 GLH 889.
56. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 22
Where a change in the office of a trustee is alleged to
have taken place on the strength of an election, the Asst.
or Dy. Charity Commissioner has jurisdiction, while deciding
the change report, to decide whether the election itself is
valid or not Notice to the concerned parties is necessary.
56.1. 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, (1962 GLR
117) 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 The Court
holds 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.
56.2. The requirement of such notice is inherent by the
very nature of the proceedings which are undertaken
under Sec. 22. 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. 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. SWAMI SATYAPRAKASHDASJI
GURU GHANSHYAM PRASAD SWAMI vs. JOINT CHARITY
COMMISSIONER, RAJKOT, 2000 (2) GLR 1450.
57. Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs.
22, 64 and 65 The Deputy or Assistant Charity Commissioner
can hold an inquiry for a matter falling under Sec. 22 with
the aid of assessors Where the list of assessors has on
the expiry of time become obsolete, and the Deputy or
Assistant Charity Commissioner feels that the inquiry should
be conducted at an early date, he must follow the provisions
of Sec. 65(4) of the Act No other course is permissible.
57.1. Since inquiry is under Sec. 22 read with provisions
of Sec. 64 of the Act, it has to be conducted by the
Deputy Charity Commissioner, Assistant Charity
Commissioner, as the case may be, in accordance with the
provisions of the Bombay Public Trusts Rules by taking
assistance of assessors.
57.2. In the facts and circumstances, the contention
raised by learned Counsel for respondent No. 1 is well
founded that there is no provisions either in the Act or
in the Rules permitting parties to submit a list of
assessors from which assessors can be appointed by the
Assistant Charity Commissioner. Such action, therefore,
could not have been taken by the Assistant Charity
Commissioner. At the same time, however, the proviso to
subsec. (4) of Sec. 65 must also be kept in mind. It
enables the Deputy or Assistant Charity Commissioner to
hold inquiry if he is satisfied for sufficient and
adequate reasons to be recorded that the inquiry need
not be delayed and that as soon as inquiry is completed,
he reports to the Charity Commissioner. Therefore, such
course can be adopted by the Assistant Charity
Commissioner if the case in his opinion falls under the
proviso to Sec. 65(4). – SHAH SEVANTILAL DALSUKHRAM AND
ANR. vs. PATEL MITHABHAI TRIBHOVANDAS, 2000 (2) GLR
1682.
58. Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs.
22 and 73 Civil Procedure Code, 1908 (V of 1908) Order
18, Rule 4 Bombay Public Trusts Rules, 1951 Rule 7
Proceeding of inquiry under Sec. 22 of the B.P.T. Act in
respect of Change Report Competent authority can permit
evidence of facts by affidavit Deputy Charity Commissioner
allowed evidence by affidavit subject to crossexamination
of deponent Challenge to this mode of recording evidence
Petition dismissed with costs.
58.1. On conjoint reading of Sec. 73 of the Act read with
Rule 7 of the Rules, it transpires that the proof of
facts by affidavit is not unknown to the procedure for
holding inquiry and secondly for examination of any
witness on oath the officer will have the same power as
are vested with the Civil Court under Civil Procedure
Code. Order 18 Rule 4 (after amendment with effect from
172002) inter alia provides for examinationinchief
of a witness by affidavit, and therefore, it can
reasonably be construed that the C.P.C. mutatis mutandis
would apply for giving effect to the provisions of Sec.
73 the Act. Rule 7 cannot be read for curtailing the
power of an officer as that of a Civil Court under
C.P.C. for compliance of the procedure prescribed under
the provisions of Rule 4 of Order 18. In any case, even
no rule can be allowed to operate on the face of any
statutory provisions under Sec. 73. NITYANAND M.
THAKORE vs. CHARITY COMMISSIONER, 2004 (2) GLR 971.
59. Bombay Public Trust Act, 1950 Secs. 22 & 72
Churches dissolved and united into one Church Finding
given by High Court that First District Church of Brethren
did not cease to exist Held, Charity Commissioner has
jurisdiction to adjudicate issue pertaining to dissolution
of churches etc. as per provisions of the Act and Civil
Court cannot entertain the dispute Matter remanded to
Charity Commissioner with direction that concerned parties
be heard and determine pending disputes – VINOD KUMAR
MATHURSEVA MALVIA V. MAGANLAL MANGALDAS GAMETI, 2006 (9) SCC
282.
60. Constitution of India, 1950 Arts. 25 & 26 Bombay
Public Trusts Act, 1950 (29 of 1950) Secs. 22 & 50A(2)
Societies Registration Act, 1860 (21 of 1860) Sec. 13
Merger of First District Church of Brethren with Church of
North India A section of former objecting to merger
Held, merger of a religious public trust does not take
effect by mere passing of resolution or by 'Change report'
Merger of a public trust cannot be effected except in
accordance with provisions of Public Trusts Act and without
prior permission of Charity Commissioner A fortiori, as
there is no lawful merger there is no transfer of properties
of F.D.C.B. to C.N.I. Further, estoppel not applicable
even if objectors had earlier agreed to merger otherwise it
would negate freedom of conscience and right to manage their
own affairs in matters of religion, guaranteed under Arts.
25 & 26 of the Constitution Order by Civil Court reversing
order of Charity Commissioner, confirmed. SHIRISH
CHRISTIAN V. MAGANLAL MANGALDAS GAMEET, 2012 (2) GLR 1629.
Distinction between religious trust and public charitable
trust
61. BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL
ACT, 1947 (LVII OF 1947) Sec. 13(1)(g) Civil Procedure
Code, 1908 Sec. 92 Bombay Public Trusts Act, 1950 Sec.
2(13) Distinction between religious trust and public
charitable trust Second part of Sec. 13(1)(g) of the Rent
Control Act applies to a public charitable trust Trustees
of public trust of a religious nature not entitled to
maintain a suit under that section.
61.1. It is clear from the language of Sec. 92 of the
Civil Procedure Code and also from Sec. 2(13) of the
Bombay Public Trusts Act that a clear distinction is
maintained between a Public trust of a religious nature
and a Public Trust of a charitable nature. Every Public
Trust is not necessarily a Trust for Public Charitable
purpose. Out of these two kinds of Trusts, viz. Trust
for a public religious nature and a Trust for a public
charitable nature, the Legislature has stated in Sec.
13(1)(g) second part of the Rent Control Act, about
trustees of a public charitable Trust. Therefore, the
trustees of a Public Religious Trust cannot maintain a
suit under Sec. 13(1)(g) second part. It is not open to
the trustees of a public religious trust to maintain the
suit under Sec. 13(1)(g), second parts. Similarly it is
not open to the trustees of a mixed trust, where some
objects are religious and some objects are charitable,
to maintain a suit for possession under Sec. 13(1)(g)
second part, where the trustees seek to recover
possession for the religious purposes of the trust as
distinguished from the charitable purpose of the trust.
SHASHTRI SADHU ANANDPRIYADASJI GURU SHRI
MUKTAJIVANDASJI vs. PATEL ATMARAM REVANDAS, 1973 GLR
917.
62. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
2(13) Public Trust A clause in Will providing money to
University for Scholarship to students and to Brahmin Samaj
for cremation of persons of certain sect Beneficiaries of
these bequests are incapable of ascertainment Such
provision, therefore, amounts to creating "Public Trust"
within the meaning of Sec. 2(13) of the Act. M S UNIVERSITY
OF BARODA vs. SITARAM BHANU MAHARAJ SHIRGARKAR, 1980 (2) GLR
544.
63. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
2(9), (13) and 18 Math Constructed from a family funds,
formed small area of family property and located within
residential area, people visited it on special occasions
Math is a private trust .
63.1. On the basis of the circumstances and the law on
the subject it has to be held that Laxman Maharaj Math
also called Ramji Mandir is the private property of the
family and it is not a public trust. Evidence stands
unchallenged and furthermore there is no evidence to the
contrary to show that the Samadhis and the Mandir were
built by the public or from out of public funds. Once
materials are found to warrant a conclusion that a Math
or Mandir was private in character at the time of its
origin, then unless there is clear and definite evidence
to show that there had later been a dedication of the
institution for the use of the public, the private
character of institution will not get effaced. Even if
at some subsequent point of time, the owners of the Math
had permitted the members of the public to visit the
Math and worship at the Mandir it will only mean that
the members of the public would have visited the Mandir
as invitees and nothing more. Once of the crucial tests
for determining whether a temple is intended for private
worship or public worship is to find out whether the
temple has been constructed within the precincts of
residential quarters or in a separate building. Another
relevant feature which must enter the field of
perception when judging whether a Math or Mandir is a
public or private one is the size of the construction
and its proportion to the entire extent of the property.
Evidence is that the total extent of the property is
150' X 170' whereas the extent of space occupied by a
Samadhi and the Mandir is only 16' X 12'. It is,
therefore, obvious that the Math occupies only a small
area in the total extent of the property. Admittedly,
the other extent of the property is being enjoyed and
has always been enjoyed by the appellant and his
ancestors for their private use and occupation. This
would not be the case if the Math or Mandir was a public
institution. Further, on the basis of construction of
Sabha Mandap hundred years after the original
construction, no inference can be drawn regarding the
character of the Math at the time of its origin. The
necessity for constructing a large Sabha Mandap may have
arisen subsequently due to the increase in the number of
the members of the family and also for conveniently
giving Dharmopdesh and religious lectures to invitees as
the appellant and his ancestors were earning their
livelihood by such religious activities. Even the
provision of the collection boxes for cash and grains
cannot by itself be a decisive factor to conclude that
the Math is a public math. The collection boxes had been
installed in the Sabha Mandap as well as near the
Samadhis. The observations made by the Surveyor that the
Mandir seemed to be a public trust do not carry any
weight because the Surveyor of land is not a competent
authority to determine whether a temple is a public or
private one and secondly he has only given expression to
his surmise and that too in a very guarded manner.
HARIBHANU MAHARAJ OF BARODA vs. CHARITY COMMISSIONER,
AHMEDABAD, AIR 1986 SC 2139.
64. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
2(13) and 2(17) Tests to be applied and principles to be
borne in mind while deciding the question whether a temple
is a public one or a private one Tests enumerated by the
Court The Court on evidence held that the Charity
Commissioner and the High Court were right in deciding in
favour of there being a public temple and the District Court
erred in reaching the conclusion that there was no public
temple True the onus is on the Charity Commissioner to
establish that the temple is a public one.
64.1. It is to be remembered that a trust in the sense in
which the expression is used is English Law is unknown
in the Hindu system, pure and simple. Hindu piety found
expression in gifts to idols and images consecrated and
installed in temple, to religious institution of every
kind and for all purposes considered meritorious in the
Hindu social and religious system. Under the Hindu Law
the image of a deity of the Hindu pantheon is, as has
been aptly called, a 'juristic entity', vested with the
capacity of receiving gifts and holding property. The
Hindu law recognises dedications for the establishment
of the image of a deity and for maintenance and worship
thereof. The property so dedicated to a pious purpose is
placed extracommercium and is entitled to special
protection at the hands of the Sovereign whose duty it
is intervene to prevent fraud and waste in dealing with
religious endowments. Dedication need not always be in
writing and can be inferred from the facts and
circumstances appearing. It would be a leg itimate
inference to draw that the founder of the temple had
dedicated it to the public if it is found that he had
held out the temple to be a public one. In the absence
of written grant, the question whether an endowment by a
private individual is a public endowment or a private
one is a mixed question of fact and law and the scope of
dedication must be determined on the application of
legal concepts of a public and private endowment to the
facts found in each particular case. Facts and
circumstances, in order to be accepted as proof of
dedication of a temple as a public temple, must be
considered in their historical setting viz., the origin
of the temple, the manner in which its affairs are
managed, the nature and extent of the gifts received,
the rights exercised by the devotees in regard to
worship therein. The essence of a public endowment
consists in its being dedicated to the public and in the
absence of any document creating the endowment, long
user is the material factor from which an inference of
dedication may arise. The distinction between a private
and public endowment is that whereas in the former the
beneficiaries are specific individuals, in the latter
they are the general public or a class thereof. The
distinction is succinctly brought out in Mulla's Hindu
Law in 424 at pp. 544545 in these words. When property
is dedicated for the worship of a family idol, it is a
private and not a public endowment, as the members who
are entitled to worship at the shrine of the deity can
only be the members of the family i.e. an ascertained
group of individuals. But where the beneficiaries are
not the members of a family or specified individuals but
the public at large of a specified portion thereof, then
the endowment can only be regarded as public intended to
benefit the general body of worshippers. It was then
laid down that the participation of the members of the
public in the Darshan in the temple and in the daily
acts of worship or in the celebrations of festival
occasions would be a very strong factor in determining
the character of the temple. Several circumstances are
brought out by the Charity Commissioner and the High
Court showing that the temples were public temples,
namely : (1) Although the temples were constructed by
the appellant's ancestor way back in 1872 and 1875,
there was positive evidence showing that the entire cost
of construction was met from the public exchequer i.e.
Patadi State Treasury. (2) The general public and
particularly the members of Vaishnava sect had an
unrestricted right of worship at the temples
participated in the festivals and ceremonies conducted
in the temples right from the very inception, as it
appears from the record, apparently as a matter of right
without any let or hindrance on the part of the
appellants or his predecessors. (3) The Hindu
worshippers at the temples in general and members of the
Vaishnava sects in particular made cash offerings or
bhents into be golak kept at Shri Dwarkadhishji Mandir
or Haveli which was under the exclusive control of the
members of the Vaishnava sect and the remittance from it
used to be made to Goswami Maharaj, Acharya of Vaishnav
sect at Ahmedabad. (4) The public records showed that
the temples stand recorded in the names of the deities,
the appellants and his predecessors shown as mere
Vahivatdars. It was an undisputed fact that separate
accounts being maintained in respect of the income and
expenditure of the temples i.e. the cash offerings,
gifts of ornaments etc. were not intermingled with the
monies belonging to the appellant or the members of the
royal family and the incomes from the temples were
utilised for their upkeep and maintenance and also for
acquisition of properties attached to the temples. (5)
The State used to keep apart a share of vaje i.e.
Darbar's share of the crops grown by the cultivators and
also used to impose and collect "tola", a cess from the
cultivators for the upkeep and maintenance of the
temple. All these circumstances clearly support the
finding reached by the Charity Commissioner and the High
Court that the temples were public temples and therefore
public trusts within the meaning of Sec. 2(17) read with
Sec. 2(13) of the Bombay Public Trusts Act, 1950.
PRATAPSINHJI N DESAI vs. DEPUTY CHARITY COMMISSIONER
GUJARAT, 1987 (2) GLR 1206 (SC).
65. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
2(13) and 2(17) Public temple and private temple Tests
to distinguish one from the other Where members of the
public offer worship as of right and not by leave and
licence, it connotes a public temple A private temple may
by long practice lose its character as a private temple and
may become a public temple Held on facts, the temple has
lost its character as a private temple.
65.1. The following features and characteristics bear
material role in determining and deciding the nature and
character of the disputed temple :
(1) History and origin of the temple;
(2) Intention of the settler;
(3) Dedication to the deity or to the public;
(4) Evidence to show dedication for the use of public in the
course of time;
(5) Public visiting the disputed temple as beneficiaries or
as worshipers;
(6) Source of funds for construction of the temple;
(7) Source of funds for maintenance and upkeep of the
temple;
(8) Collection box for cash, grains etc. (9) Location of
temple;
(10) Extensiveness of temple and grant to it;
(11) Feeding in temple and celebration of festivals;
(12) Vesting of control and management of the temple;
(13) Mode of succession of the Trustees;
(14) Conscience of the management and the conscience of
devotees themselves as to the development of the temple;
(15) Contribution of the public for the maintenance of the
temple. One of the main tests to decide the nature of the
trust, either private or public, is the enjoyment of the
temple for worship and darshan, as of right. It is settled
proposition of law that when the temple in question is used
by the public, as of right for a long period, it would be a
pointer and indication suggesting the character of a public
temple. It would also go to show that the intention of the
founder was to devote the property to public purposes by a
religious or charitable nature. Therefore, the long user by
the public, as of right, would go to show that the nature of
the disputed temple is public and not private. The essence
of a public endowment consists in its being dedicated to the
public and in the absence of any document creating the
endowment, long user is the material factor from which an
inference of dedication may arise. The distinction between a
private and public endowment is that, whereas in the former
the beneficiaries are specific individuals, in the latter
they are the general public or a class thereof. MANEKLAL
SAKARCHAND ZAVERI (SINCE DECD) BY HIS HEIRS AND LRS MRS
URVASHIBEN JAWAHARLAL ZAVERI vs. THE ASSISTANT CHARITY
COMMISSIONER, SURAT VIBHAG, 1991 (1) GLR 454.
66. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
2(17) Public Temple and Private Temple Distinction
between Beneficiaries of a private temple are specific
individuals whereas those of a public temple are general
public or a class thereof True beneficiaries of a
religious endowments are not the idols but the worshippers
Viewed in that light of the property is dedicated for the
worship of a family idol, it is a private endowment, persons
entitled to worship are members of the family which is an
ascertained group of individuals When beneficiaries are
not members of a family or specified individuals, the
endowment can only by regarded as public intended to benefit
the general body of worshippers. CHARITY COMMISSIONER,
GUJARAT STATE vs. BALASHANKER MAHASHANKER BHATTJI, 1992 (2)
GLH 596.
67. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
2(13) and 2(17) Difference between a Private Trust and a
Public Trust Tests for deciding what is Public Trust
Temple Dedication of properties by the Rulers and the
State Large number of devotees Statements made in old
records Indicative of a Public temple Management in the
hands of a family not decisive of the matter.
67.1. A place in order to be a temple, must be a place
for public religious worship used as such place and must
be either dedicated to the Community at large or any
section thereof as a place of public religious worship.
The distinction between a private temple and public
temple is now well settled. In the case of former the
beneficiaries are specific individuals; in the latter
they are indeterminate or fluctuating general public or
a class thereof. Burden of proof would mean that a party
has to prove an allegation before he is entitled to a
judgment in his favour. The one or the other of the
contending parties has to introduce evidence on a
contested issue. The question of onus is material only
where the party on which it is placed would eventually
lose if he failed to discharge the same. Where, however,
parties jointed the issue, led evidence, such evidence
can be weighed in order to determine the issue. The
question of burden becomes academic.
67.2. An idol is a juristic person capable of holding
property. The property endowed to it vests in it but the
idol has no beneficial interest in the endowment. The
beneficiaries are the worshippers. Dedication may be
made orally or can be inferred from the conduct or from
a given set of facts and circumstances. There need not
be a document to evidence dedication to the public. The
consciousness of the manager of the temple or the
devotees as to the public character of the temple; gift
of properties by the public or grant by the ruler or
Government and long use by the public as of right to
worship in the temple are relevant facts drawing a
presumption strongly in favour of the view that the
temple is a public temple. The true character of the
temple may be decided by taking into consideration
diverse circumstances. Though the management of a temple
by the members of the family for a long time, is a
factor in favour of the view that the temple is a
private temple it is not conclusive. It requires to be
considered i n the light of other facts or
circumstances. Internal management of the temple is a
mode of orderly discipline or the devotees are allowed
to enter into the temple to worship at particular time
or after some duration or after the head man leaves the
temple are not conclusive. The nature of the temple and
its location are also relevant facts. The right of the
public to worship in the temple is a matter of
inference.
67.3. The fixed cash grants given by the Rulers Scindias
and the successor British emperors, the large endowment
of lands given to Kalika Mataji temple by the devotees
do indicate that the temple was treated as public
temple. The appropriation of the income and the inter se
disputes in that behalf are selfserving evidence
without any probative value. Admittedly, at no point of
time, the character of the temple was an issue in any
civil proceedings. All the lands gifted to the deity
stand in the name of the deities, in particular large
extent of agricultural lands belong to Kalika Mataji.
The entries in Revenue records corroborated it. The
Gazette and the historical evidence of the temple would
show that the village is the pilgrimage centre.
Situation of the temples on the top of the hill away
from the village and worshipped by the people of Hindus
at large congregated in thousands without any let or
hindrance and as of right, devotees are giving their
offerings in large sums in discharge of their vows, do
establish that it is a public temple. It is true that
there is no proof of dedication to the public. It is
seen that it was lost in antiquity and no documentary
evidence in that behalf is available. Therefore, from
the treatment meted out to the temple and aforesaid
evidence in our considered view an irresistible
inference would be drawn that the temple was dedicated
to the Hindu public or section thereof and the public
treat the temple as public temple and worship thereat as
of right. It is true that there is evidence on record to
show that there was a board with inscription thereon
that "No entry without permission" and that only Darshan
was being had and inside pooja was not permitted. But
that is only internal regulation arranged for the
orderly Darshan and that is not a circumstance to go
against the conclusion that it is a public temple.
Enjoyment of the properties and noninterference by the
public in the management are not sufficient to conclude
that the temple is a private temple. BALA SHANKAR MAHA
SHANKAR BHATTJEE AND ORS vs. CHARITY COMMISSIONER,
GUJARAT STATE, 1995 (1) GLR 711 (SC).
Manager and Trustee Section 8:
68. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
8(2) Manager and Trustee are different categories Once a
manager claims adverse title he forfeits his right to be the
manager Beneficiaries entitled to file a suit for removal
of such trustee and recovering property.
68.1. The definition of the expression 'manager' given in
subsec. (8) of Sec. 2 of the Bombay Public Trusts Act,
1950 makes it clear beyond any doubt that a manager is
different from a trustee though both of them may have in
the matter of administering a trust similar duties to
discharge. It is wrong, therefore, to say that under the
scheme of the Bombay Public Trust Act, a manager is a
trustee and a trustee is a manager. A suit for recovery
of possession of trust properties from the manager of a
public trust who claims adverse title to them and sets
up that title in him is maintainable without any prayer
for his removal from managership. Once a manager claims
an adverse title, he forfeits his right to be the
manager and becomes a trespasser. It is not necessary to
make against such a person prayer for his removal from
his managership in order to maintain against him a claim
for possession of the trust properties. Held that in the
instant case defendant No. 1 had been setting up her
private title to the public trust properties and had
been causing irreparable damage to the public trust.
Therefore, even without applying for her removal it was
open, to the beneficiaries or 'persons having an
interest in the trust' to file this suit for recovery of
possession of the suit properties from her. CHUNILAL
JASHRAJ LODHA vs. MUNSHI MAHMADHUSAIN SHAIKH, 1976 GLR
227.
69. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 8
Proceedings filed in the Court by Power of Attorney of the
trustee of a trust Trustee cannot delegate his powers to
any other person including to the cotrustee except the
trustdeed so provides Appeal dismissed on the preliminary
issue.
69.1. I have considered the submissions made in this
regard. First of all, I called upon Mr. Sathyan Thakkar
to point out as to whether there is any such condition
in the instrument of the Trust itself so as to authorise
him to delegate powers, but Mr. Thakkar failed to point
out any such condition contained in the instrument of
the Trust itself. So far as the fact that the delegation
had become necessary, the only reason which has been
pointed out is that the appellant had to move out and
that he was a Sadhu Sanyasi. If such a reason is to
prevail, then it has to be considered that if a person
has become a Sanyasi, he stands to renounce the whole
world and nothing remains with him for the purpose of
delegation. Merely because one has to move out of town
where the Temple is situated does not in fact
necessitate for the purpose of delegation of all the
powers as has been done in the instant case. In any
case, for the purpose of filing this appeal, at least
there was no question of authorising said Shri
Hariharanand. Even if a person has to file an appeal and
has to move about, he himself has to sign the
Vakalatnama and it is not permissible in view of the
observations as had been held in the Full Bench decision
rendered by this Court that the delegation of the powers
of the Trustee in favour of Shri Hariharanand by the
present appellant was lawful. The authority derived on
the basis of such a Power of Attorney vitiates the whole
edifice and the basis of this appeal and I find that the
preliminary objection as has been raised by Mr. Mehta
has force and the same deserves to be sustained and the
same is hereby sustained. JASODAGIRI SOHANGIRI vs.
POPATLAL J. MAJITHIA, 2001 (4) GLR 3164.
Section 47 & 47AA:
70. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
47 and 47AA Trustee convicted of an offence punishable
under the Act Only Charity Commissioner could move the
Court for appointment of a new trustee.
70.1. Under Sec. 47AA of the Bombay Public Trusts Act, it
is for the Charity Commissioner to move the Court for
the appointment of a new trsutee on the ground that the
trustee is convicted of an offence punishable under the
Act. No application for appointment of a new trustee on
the said ground would, therefore, be maintainable at the
instance of a beneficiary. Nor would such an application
lie under Sec. 47(1)(g) because the word "unfit" therein
used does not comprehend unfitness, if any, arising on
account of conviction for an offence punishable under
the Act. AJAM MOHAMMAD HATIN vs. YUSUF MOHAMMAD
BHARUCHA, 1976 GLR 56.
Section 35:
71. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.
35(1) Investment made by the Trustees without permission
of Charity Commissioner Investment made in manner other
than Sec. 35(1) not invalid or void.
72. The investment made by the trustee or trustees or
Public Trust funds without the permission of the Charity
Commissioner otherwise than as provided by subsec. (1) of
Sec. 35 of the Bombay Public Trusts Act, 1950, is not
invalid or void ab initio. It will appear on a plain reading
of subsec. (1) of Sec. 35 that where a trust property
consists of money and cannot be applied immediately or at
any early date to the purposes of the public trust the
trustees are enjoined upon regardless of the direction
contained in the instrument of trust, to deposit the money
in any Scheduled Bank approved by the State Govt. or in
public securities. If the trustees failed to invest the
trust money as provided in subsec. (1) of Sec. 35 of the
Act, they would be liable to prosecution and conviction
under Sec. 66 of the Act. The section however, does not say
that the transaction shall be void. The section does not
provide that if the trustees make an investment in
contravention of Sec. 35(1) of the Act, the entire
investment shall be void. If the transaction under Sec.
35(1) held to be void in the absence of the permission from
the Charity Commissioner the result would be that the trust
would lose the money without deriving any legal right from
that transaction. SHAH DAHYABHAI PREMCHAND vs. MOHANLAL
PITAMBARDAS, 1977 GLR 1018.
Section 36:
73. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
36, 56A and 80 Granting of sanction to sell property etc.
within the exclusive jurisdiction of Charity Commissioner
Court can give direction only in matter to effectuate the
sale Civil Court has no jurisdiction to grant sanction to
any sale under Sec. 56A.
73.1. The neat effect of Sec. 36 and Sec. 56A read with
Sec. 80 of the Bombay Public Trusts Act is that the
power of granting sanction to any transaction of sale,
mortgage or exchange or gift of any immovable property
is within the exclusive competence of the Charity
Commissioner and beyond the competence of Civil Court.
The District Judge exceeded his jurisdiction after
having issued the directions investing the trustees who
were applicants before him the power to sale the
property when he proceeded to accord the sanction to the
sale in question that power of according sanction is
with the Charity Commissioner and by virtue of the
provision contained in Sec. 80 the Civil Court could not
have granted sanction to any sale under Sec. 56A. The
Civil Court could have granted directions only in the
matter of power to effectuate the sale. CHARITY
COMMISSIONER, GUJARAT STATE vs. RUSTOM FARAMROZ DABOO,
1979 GLR 635.
74. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec. 36
Sale of immovable property belonging to a trust is void if
the permission of the Charity Commissioner is not obtained.
74.1. It must be kept in view that as per Sec. 36 of the
Bombay Public Trusts Act, no immovable property of a
public trust can be alienated in favour of any one by a
trustee without express permission of the Charity
Commissioner. And if such alienation is made, it shall
be invalid. Admittedly, no such permission was taken in
the present case. Consequently the transaction entered
into by defendant No. 2 in favour of the present
appellant remained null and void and not binding on the
trust. HUSEINMIYA SAFIMIYA vs. HABIBSHA HASAMSHA
FAKIR, 1985(2) GLR 928.
75. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Secs.
36 and 50 Previous sanction obtained from the Charity
Commissioner fraudulently Property belonging to the trust
disposed of without a public auction and in violation of the
directions given by the Charity Commissioner The
transaction without any ostensible consideration and in
breach of the terms and conditions of the sanction The
Charity Commissioner justified in filing a suit rather than
approaching the Gujarat Revenue Tribunal as the material and
substantial prayers could not have been granted by the
Gujarat Revenue Tribunal.
75.1. According to learned Counsel for appellant previous
sanction of the Charity Commissioner was already
obtained and that if the Charity Commissioner was of the
opinion that it was not a valid and legal previous
sanction, the only course open for the Charity
Commissioner was to move the Gujarat Revenue Tribunal as
it is open for him to do so under Sec. 36(3) of the
Bombay Public Trusts Act.
75.2. A reading of the provisions contained under Sec. 36
of the Act would go to show that the Charity
Commissioner could have approached the Gujarat Revenue
Tribunal for cancellation of the sanction already
accorded by his office. But, it requires to be
pertinently noticed, as has been done by the learned
single Judge, that the other prayers, which are material
and substantial, could not have been granted by the
Gujarat Revenue Tribunal while exercising its
jurisdiction under Sec. 36(3) of the Trust Act.
75.3. Therefore, looking to the provisions contained
under Secs. 36 and 50 of the Trust Act, we feel that the
learned single Judge was perfectly justified in coming
to the conclusion that the Charity Commissioner wanted
to put forth a case of a breach of public trust within
the purview of Sec. 50(1) of the Act and that therefore,
we do not see any reason to interfere with the orders
pronounced by the learned single Judge. Finding no
warrant for interference, we feel that the present
appeal requires to be dismissed. KAMALSHA GULZARSHA
vs. CHARITY COMMISSIONER, 1993 (2) GLR 1343.
76. Specific Relief Act, 1963 (47 of 1963) Secs. 5 & 6
Bombay Public Trusts Act, 1950 (29 of 1950) Sec. 36
Construction was made over lands belonging to a public trust
and shops given on lease without obtaining permission of the
Charity Commissioner Charity Commissioner had directed
eviction of unauthorised persons and demolition building
Contention on behalf of the occupants that they could be
evicted only by following due process of law i.e. filing of
a suit Contention negatived The principle can be made
applicable "where the rights of parties are not adjudicated
upon by any Court and/or authority". PRABODHKUMAR
MAGANBHAI PATEL V. MODASA KADVA PATIDAR CHHATRALAYA, 2010
(4) GLR 3562.
77. Bombay Public Trusts Act, 1950 (29 of 1950) Secs. 36
& 50 Defendants entered into lease agreement in respect of
trust property without obtaining mandatory permission of the
Charity Commissioner Transaction was void. G. R. GUSAI
(DECEASED) BY HEIR VINODGARJI GOVINDGARJI GUSAI, TRUSTEE OF
GUSAI PANCH AND ORS. V. MANHARGIRI GAGANGIRI GUSAI,
CHAIRMAN/TRUSTEE OF SHRI GUSAI PANCH, 2011 (1) GLR 392.
78. Constitution of India, 1950 Art. 226 Bombay Public
Trusts Act, 1950 (29 of 1950) Sec. 36 Agreement between
petitioner and Board of Trustees to sell property of a
public trust Agreement executed without obtaining
permission of Charity Commissioner Held, agreement to sell
was nonest Sale of property by Charity Commissioner at
substantially higher price upheld. KIRANKUMAR PREMJIBHAI
MAIVAIYA V. RAJESH KESHAVLAL VISAPARMAR, 2011 (2) GLR 966.
Section 32:
79. BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 (LXVII
OF 1948) Sec. 32 Bombay Public Trusts Act, 1950 Secs.
18 and 19 Validity of creation of Trust in respect of land
involved in tenancy proceedings Tenant becoming deemed
purchaser on tillers' day, i.e . on 141957 and hence
entitled to be heard in enquiry under Sec. 19 of Trusts Act
before registration is granted to the Trust. NARANBHAI
DAYABHAI PATEL vs. SULEMAN ISUBJI DADABHAI, 1996 (7) SCC
278.
Power of Charity Commissioner to issue directions
u/s 41A:
80. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec.
41A Scope of power of the Charity Commissioner to issue
directions under The power is administrative in nature and
not even quasijudicial Where judicial determination of a
dispute is involved, the Joint Charity Commissioner cannot
issue any direction The view taken in Syedna M.
Burhanuddin's case (1992 (1) GLH 331) followed.
80.1. Observations made by the Division Bench in 1992 (1)
GLH 331, it is clear that the Jt. Charity Commissioner
will be entitled to exercise the power under Sec. 41A of
the Act in respect to the items which are specified
under Secs. 32 to 41 of the Act. If the averments made
in the application are considered, then it appears that
the basis of the application was that the applicants
therein before the Jt. Charity Commissioner were
asserting that they have a right to be admitted as the
members of the Trust since they are natives of Veraval
and because of the conservative interpretation given by
the Trustees of the Trust, they are not being admitted
as the members. Therefore, if while administering the
Trust, the question arises regarding the interpretation
of making any expenses or running daytoday affairs of
the Trust, it might fall under the scope of Sec. 41A of
the Act. However, the question of right to be admitted
as the members of the Trust is an independent right
which a person may be claiming upon the items and
conditions of the Trust against the Trustees of the
Trust. While ascertaining such right an inquiry is
required to be held for the purpose of deciding the case
as to whether the applicants who are asserting the
right, are covered by the eligibility criteria of
becoming the members or not. Such process would require
adjudication of the facts, and therefore, in view of the
ratio of the Division Bench in case of Syedna Mohamed
Burhanuddin v. Charity Commissioner, Gujarat State, 1992
(1) GLH 331, the adjudication process is not envisaged
under Sec. 41A of the Act.
80.2. It appears that the order passed by the Jt. Charity
Commissioner is not only without jurisdiction, but is
based on the finding which is perverse to the record of
the case, and therefore, the order dated 23121992
passed by the Jt. Charity Commissioner, is quashed and
set aside. NAVINCHANDRA JASANI AND ORS. vs.
PRAVINCHANDRA JASANI, 2003 (1) GLR 392.
81. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec.
41A Bombay Charity Commissioner (Regional Reorganization)
Order, 1960 Clauses 4(b) and (c) Properties of Trust of
Swami Narayan Temple, Vadtal On bifurcation of Bombay
State, the Trust was deemed to be registered in both the
States as one temple of the Trust was situate in Maharashtra
Interpreting the relevant clauses of the 1960 Order, held,
jurisdiction of Charity Commissioner, Bombay "was confined
only to the properties situated in Maharashtra" The said
authority, having regard to the doctrine of lex situs "could
not have assumed jurisdiction in respect of the entire
Trust. NAUTAM PRAKASH D.G.S.V.C., VADTAL AND ORS. vs. K.
K. THAKKAR , 2006(3) GLR 2654 (SC).
82. Bombay Public Trusts Act, 1950 (XXIX of 1950) Secs.
22, 22A & 41A Change report filed with the Charity
Commissioner for recording removal and addition of Trustees
At that stage, Charity Commissioner issued interim
direction under Sec. 41A with regard to the change
Question as to whether general or residue power could be
resorted to when express power is available in respect of a
particular contingency Held, general power to issue
directions could be resorted to "when the action is wholly
without jurisdiction or beyond the scope and ambit of" the
statutory power Removal of Trustees and appointment of new
Trustees found to be de hors the trustdeed Held, Charity
Commissioner was justified in issuing interim directions
under Sec. 41A .
82.1. There cannot be any dispute to the proposition that
when there is express power provided under statute for
dealing with a particular situation, the general power
or the residuary power cannot be made applicable.
Section 22 of the Act read with Sec. 22A of the Act does
provide for the submission of the change report and
holding of inquiry. Therefore, if the matter falls under
Sec. 22 read with Sec. 22A of the Act, it cannot be the
subjectmatter of issuing directions under Sec. 41A of
the Act. However, it is by now well settled that if the
action is wholly without jurisdiction or beyond the
scope and ambit of the power, the matter would fall
outside the applicability of such provision. Merely
because the change report is filed or is objected, would
not be a sufficient ground to oust the jurisdiction
under Sec. 41A of the Act by the Charity Commissioner.
However, if the action of submitting change report or a
change is in purported exercise of power for bringing
about the change, then in that case, it would be a case
to be considered under Sec. 22, read with Sec. 22A of
the Act. But, if the action of brining about the change,
and thereby, consequently filing the change report is de
hors the trustdeed or wholly without jurisdiction on
the part of any of the Trustees, it would be improper to
construe that the matter would not fall in the domain of
proper administration of the Trust under Sec. 41A of the
Act, but would only fall under Sec. 22 read with Sec.
22A of the Act. 2008 (3) GLR 1981.
83. Bombay Public Trusts Act, 1950 (29 of 1950) Secs. 22
& 41A Parameters of powers of the authority under Sec. 22
in respect of change report and power to issue directions
under Sec. 41 General power cannot be exercised when a
statute provides for express power to deal with a particular
situation Power to issue directions under Sec. 41 in
respect of subjectmatter apparently covered by Sec. 22
Such power can be exercised when the action is wholly
without jurisdiction Issues pertained to legality of
appointment of members to particular posts in the Committee
Held, matter falls under the domain of administration of
the trust and power under Sec. 41A could have been invoked.
83.1. If the averments made in the application being
Application No. 41/25 of 2009, filed by the original
applicants are considered, it basically pertain to
challenging the powers of the outgoing 'Kothari' under
the scheme, challenging the authority of the 'Acharya'
to nominate a member in the Committee of the trust,
challenging the validity of appointment of one of the
members to a particular post and also the right of such
member to participate in the meeting of the Committee
and to cast his vote.
83.2. Essentially, the issues relating to running the
daytoday affairs of a public trust fall under the
scope of Sec. 41A of the Act. However, the question
relating to the right of a person to be admitted as a
member of the trust is an independent right, which a
person may be claiming upon the items and conditions of
the trust, against the trustees of the trust. While
ascertaining such right, an inquiry is required to be
held for the purpose of deciding the issue as to whether
such person/s, who are asserting the right, are actually
entitled to claim such right or not. Such process would
require adjudication of the facts by the authority.
83.3. It is well settled that when express power is
provided under a statute for dealing with a particular
situation, then the general power cannot be made
applicable to such situation. Section 22 of the Act
provides for the submission of change report and holding
of an inquiry. Therefore, in a given case, if the issue
pertains to Sec. 22 of the Act, then it cannot be made
subjectmatter of issuing directions under Sec. 41A of
the Act, but if the action is wholly without
jurisdiction, then the matter would fall outside the
applicability of such provision. In other words, the
action of filing of a change report or the raising of an
objection against the filing of such change report,
would not be a sufficient ground to oust the
jurisdiction under Sec. 41A of the Act, but if the
action of filing of a change report is in purported
exercise of the power for bringing about the change,
then it would fall within the purview of Sec. 22 of the
Act.
83.4. If the action of bringing about the change is de
hors the scheme of the trust, then it would fall within
the domain of "proper administration of the trust" under
Sec. 41A of the Act and would not fall within the
purview of Sec. 22 of the Act. The issue involved in
these petitions pertain to the legality of appointment
of some of the members to particular posts of the
Committee and also the powers of a member to participate
in the first meeting of the Committee and to cast the
vote. Such issues could not be gone into by the
authority under the provisions of Sec. 22 of the Act and
could be examined under the provisions of Sec. 41A of
the Act, as it falls under the domain of proper
administration of the trust. BALVANTBHAI JINABHAI
DHAMI V. SHANTILAL KANJIBHAI RATANPARA, 2010 (2) GLR
1399. Note this judgment is partially modified in the
following case.
84. Bombay Public Trusts Act, 1950 (29 of 1950) Secs. 22
& 41A Scheme for administration of Radharaman Dev Temple
Trust Interpreting relevant clauses of the scheme, held,
outgoing Kothari has to convene the first meeting of the
newly elected Committee and to preside over it till the
President is elected Outgoing Kothari has "no right to
vote at such a meeting or to exercise any power as Kothari"
Finding of Single Judge that duty of Kothari "impliedly
confers the right to vote" held erroneous Decision in
Balvantbhai Jinabhai Dhami v. Shantilal Kanjibhai Ratanpara,
2010 (2) GLR 1399, partially modified.
84.1. Clause 12(2) of the scheme specifically provides
that first meeting of the newly constituted Committee
shall be called by the outgoing Kothari. For this
purpose, he will be authorized to undertake necessary
steps however, other than that he shall not exercise any
other powers or exercise his powers as Kothari in any
manner. He shall preside over the first meeting and
continue to do so till the election of President of the
newly elected Committee. (Para 8)In no uncertain terms
the scheme envisages the task of the outgoing Kothari
being limited to convening the first meeting of the
newly constituted Committee and to preside over such a
Committee till the President is elected. His right is,
however, limited to conducting of such meeting. He is
divested of any power to participate in the said meeting
or to vote for any of the resolutions. (Para 9)Intention
of the framer of the scheme could never have been that
the outgoing Kothari would be voting in a decision as
important as election of President of the Committee of
which he is not a part. That the Committee would
comprise of eight elected and one nominated member, who
in turn would appoint a Kothari. A Kothari for the
Committee would, therefore, be appointed by the
Committee itself. It cannot be envisaged that an
outgoing Committee would make provisions for appointment
of a Kothari who would be Kothari for the new Committee.
(Para 11)The entire intention of the scheme appears to
be that the Committee once formed by elected members and
nomination of one member by Acharya, such members would
thereafter, appoint a qualified "Tyagi" as a "Kothari"
who would also be then one of the members of the
Committee. The intention, therefore, is that such
elected and nominated members of the Committee would
appoint their own "Kothari". It cannot be envisaged that
an outgoing Committee would appoint a Kothari for the
newly formed Committee of elected and nominated members.
(Para 12)The scheme does not envisage that the Committee
can make appointment of Kothari for another Committee.
Clause 24 specifically provides that a Kothari once
appointed shall assume his charge as Secretary of the
Committee. Thus, the scheme envisages a "Kothari" of
"the Committee". The scheme does not envisage a Kothari
without a Committee. Clause 4 of the scheme which is a
transitory provision also provides that a Kothari of the
interim Committee shall cease to hold his office the
moment the term of the interim Committee terminates. By
virtue of various provisions in the scheme and in
particular Clause 12(2) thereof, intention of the framer
of the scheme is clear and unambiguous namely that
outgoing Kothari though has to convene the first meeting
of the newly elected Committee and also to preside over
such a meeting till the President is elected, he has no
right to vote at such a meeting or to exercise any power
as Kothari. Learned Single Judge therefore, committed an
error in holding otherwise. SHANTIBHAI KANJIBHAI
RATANPARA AND ANR. V. RADHARAMAN DEV TEMPLE, @ A PUBLIC
TRUST IN THE NAME OF SHREE SWAMINARAYAN TEMPLE,
JUNAGADH, 2010 (3) GLR 2632.
Power to appoint trustee u/s 47:
85. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 47
Appointment of trustee Selection Held, where the
scheme provides for ascertaining of wish of beneficiary
group/community, appointment made without ascertaining same
invalid Appointment required to be made in accordance with
the scheme and in consonance with Sec. 47.
85.1. Considering the scheme, it is clear that firstly
the Court is required to find out whether the Athias are
divided into factions or not, and if it is found that
there is no division, the Court should not select a
member, but the Court is required to direct the Athias
to assemble at Pirana and select a member. There is
nothing on the record, nor the Advocates appearing in
the matter is in a position to point out whether the
Athias are divided into factions. Since, this aspect is
not clear from the order, the order in question is
required to be set aside and the matter is required to
be sent back to the District Court for considering said
aspect. (Para 17)
85.2. Even if the Court is of the opinion that the Athias
are divided into factions, the Court can avail the
procedure prescribed under the Scheme even by asking the
Athias Samast Panch to convey a meeting for selecting
the member or may even appoint a Commissioner for
ascertaining the wishes or opinion or may direct an
election as provided under the Scheme. The Court,
therefore, finds substance in the argument of the
appellants that there was no question of inviting
application by public advertisement as the learned Judge
was required to follow the aforesaid procedure by
availing the options as provided under clause 4 and as
already indicated. VISHNUBHAI BABABHAI THAKORE V.
CHARITY COMMISSIONER, AHMEDABAD, 2007 (4) GLR 3191.
86. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec. 47
Appointment of trustee Held, where the Court invited
applications from eligible persons, rejection of application
on ground that same received beyond timelimit, improper
The Court required to consider application received before
selection process is over The ultimate object is to see
that right person is appointed.
86.1. Further, even assuming that as per clause 4 of the
scheme, the Court can select a person by inviting
applications, then also, at the time of making
selection, the Court can certainly consider the name of
any eligible person as ultimately it is the duty of the
Court to select the right person. Even if somebody might
have applied late, that is not a ground for not
considering the name of that person in case when the
application was made, the Court has not yet made
selection of any member. However, if the application is
received after entire process of selection by the Court
is over, the matter stands on an altogether different
footing. The ultimate object behind the scheme is to
appoint a right person and that is why powers are given
to the Court to select the right candidate who is to be
appointed as member of the Committee. In the instant
case, there is no period of limitation or statutory bar
which prohibits the learned Judge from considering the
name of any candidate even if such candidate has applied
after the prescribed time and it is open to the learned
Judge to consider such name because a fit person is
required to be appointed as member of the Committee. It
is also required to be noted here that neither the
scheme nor the provisions of the Act provide for any
period of limitation. VISHNUBHAI BABABHAI THAKORE V.
CHARITY COMMISSIONER, AHMEDABAD, 2007 (4) GLR 3191.