Judgmentsonbombaypublictrustact 150514092457 Lva1 App6892

Section72:
1. BOMBAYPUBLICTRUSTSACT,1950(XXIXOF1950)Secs.70and
72 Civil Procedure Code, 1908 Order 41, Rule 17
WhetherCharityCommissionerhasinherentpowertodismiss
anappealfordefaultWhetherwholeoftheCivilProcedure
CodeappliestotheproceedingbeforeCharityCommissioner
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
Procedureisnotapplicabletotheproceedingbeforethe
officersactingundertheBombayPublicTrustsActand
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
decidethematteronthematerialbeforehimevenifthe
appellantwasnotpresentonthedateofhearingofthe
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
standsatamuchworsefootingthanifactualdecision
hadbeengivenonmerits.Underthecircumstances,ifin
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,underSec.72oftheActtothe
DistrictJudgewasmaintainable.SHAHHIRALALVIRCHAND
vs.PATELVITHALBHAIVAGHAJIBHAI,1961GLR548.
2. BOMBAYPUBLICTRUSTSACT,1950(XXIXOF1950)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
thirdpartycanapplyunderSec.22(A)Natureofinquiry
WhetheradministrativeorjudicialBarofjurisdictionof
Civil Court under Sec. 79A Recourse to Sec. 70(2) not
followedupbyremedyunderSec.72Whetherdecisionof
CharityCommissionerbinding.
2.1. Thoughretainingthefinalandconclusivecharacter
of the finding and entries made by the Deputy or
AssistantCharityCommissionerunderSecs.20and21of
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
subsequenttothedateoftheentriesorasaresultof
some particular having been left out for the
consideration in the previous inquiry. Any person, not
merelytrustee,canapplyunderSec.22Aforachangein
the entry on a matter or a particular left out from
considerationinapreviousinquiryunderSec.19ofthe
Act.Theword"particular"inSec.22AoftheActwould
meananyinformationordetailastothetrust,foran
example, information regarding suppression of a
particularforthepurposeofavoidingapropertytobe
declaredtobepropertybelongingtoapublictrust.The
inquiry made by a Deputy or Assistant Charity
Commissioner is by no means an administrative or
executiveinquirybutajudicialinquiry.Theinquiryis
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
recoursemustbehadtotheprocedurelaiddowninthe
Act. The provisions of Sec. 80 of the Act bar the
jurisdictionoftheCivilCourtinthetwocategoriesof
matters,viz.(1)ThosequestionsleftundertheActto
be decided by the Assistant or the Deputy Charity
CommissionerunderSecs.18and19,and(2)Thosewhich
theacthasmadefinalandconclusiveunderSec.79(1)
andSec.21(2)oftheAct.Heldonthefacts,thatthe
plaintiffshavinghadrecoursetoSec.70andnothaving
followeduptheirremedyunderSec.72areboundbythe
decision by the Charity Commissioner in their appeal
beforehim.KUBERBHAISHIVDASvs.MANANTPURSHOTTAMDAS
KALYANDA,1961GLR564.
72LimitationAct,1908Secs.4and29(2)Application
toDistrictJudgeunderSec.72WhethersavedbySec.4of
LimitationActSec.75referstoonlyappealsSec.29(2)
oftheLimitationActmakesSec.4applicableinallcases
unlessspecificallyexcluded.
3.1. ApplicationtotheDistrictJudgeunderSec.72of
the Bombay Public Trusts Act, against the decision of
theCharityCommissionerisclearlysavedbySec.4of
theIndianLimitationAct.TheprovisionsofSec.29(2)
of the Indian Limitation Act make it abundantly clear
thattheprovisionscontainedinSec.4shallapplyto
theextenttowhichtheyarenotexpresslyexcludedbya
specialorlocallaw.InspiteoftheprovisionsofSec.
75 of the Bombay Public Trusts Act, which would apply
only to appeals, Sec. 29 of the Indian Limitation Act
willholdthefieldinrespectofthematterswhichare
not appeals. SHANTILAL KHIMCHAND vs. MULCHAND
DALICHAND,1962GLR117.
75 Limitation Act, 1908 Secs. 12(2) and 29(2)
Application under Sec. 72 is in nature of appeal for the
purposeofLimitationActTimetakenfortakingcertified
copy to be excluded under Sec. 12(2) of Limitation Act
WhetherCharityCommissionerisinferiortoDistrictCourt
CivilProcedureCode,1908Sec.151Inherentpowerof
DistrictCourttoactunderSec.151toremandacaseunder
theBombayPublicTrustsAct.
4.1. Section72oftheBombayPublicTrustsActprovides
foranapplicationmadetotheCourtunderthatsection
a period of limitation a different from the period
prescribed therefore in the First Schedule to the
LimitationActandSec.29(2)oftheLimitationActis,
therefore,attractedanditmakestheprovisionsofSec.
12(2) of the Limitation Act applicable to such an
applicationandthetimetakenforobtainingacertified
copyoftheorderis,therefore,liabletobeexcluded
underSec.12(2)incomputingtheperiodSoflimitation
prescribed by Sec. 72 for such an application. An
applicationunderSec.72cannotbesaidtobeanappeal
withinthemeaningofSec.75butthereisnoreasonfor
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
appealbutthatisnodeterminativeofthequestion.The
rightisinsubstance,ifnotinform,inthenatureof
an appeal. The Charity Commissioner is not subordinate
to the District Court in the sense that the District
CourthasnopowerofsuperintendenceovertheCharity
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
haspowertorevokeormodifyhisdecisions.Sec.151of
the Code of Civil Procedure would apply to an
applicationunderSec.72andtheDistrictCourthearing
such application would have inherent power under that
sectiontomakeanorderofremandiftheDistrictJudge
thinksitnecessarytodosoinanappropriatecase.
CHANDRAKANT HARMANDAS vs. THE CHARITY COMMISSIONER OF
GUJARAT,1965GLR649.
5. Bombay Public Trusts Act, 1950 Secs 70 and 72
Jurisdiction conferred on District Court to deal with
mattersunderSec.72overdecisionofCharityCommissioner
though designated as application amounts to appellate
jurisdiction Letters Patent appeal therefore over the
decisionofthesingleJudgecanonlylieifthesaidJudge
grants the certificate that the case is a fit one for
appeal.
5.1. Clause 15 of the Letters Patent provides for an
appealfromthejudgmentofoneJudgeoftheHighCourt
toaDivisionBenchoftheHighCourt,butitintroduces
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
subjecttothesuperintendenceoftheHighCourt,"the
Judgewhopassedthejudgmentmustdeclarethatthecase
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
BombayPublicTrustsActisgiventhepowertoconfirm,
revoke or modify the decision of the Charity
Commissioner and there are no limits or fetters upon
thispower.ItistruethattheCharityCommissioneris
notsubordinatetotheDistrictCourtinthesensethat
theDistrictCourthasnopowerofsuperintendenceover
theCharityCommissionerbuttherecanbenodoubtthat
interaliainthematterofhisdecisionsunderSec.70,
the Charity Commissioner is inferior to the District
CourtinthattheDistrictCourthaspowertorevokeor
modifyhisdecisions.Therecan,therefore,benodoubt
that though the word "appeal" is not used by the
Legislature and the proceeding under Sec. 72 is
designatedasanapplication,thejurisdictionconferred
ontheDistrictCourtwhiledealingwithsuchproceeding
isappellatejurisdiction.Held,thatthereforewhenthe
DistrictCourtdealswithanapplicationunderSec.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
consequentlyanordermadeintheexerciseofappellate
jurisdiction by a Court subordinate to the High Court
andnoLettersPatentAppealagainstthedecisionofthe
single Judge could be filed by the appellants without
obtainingacertificatefromthatsingleJudgethatthe
case was a fit one for appeal. HIRAGAR DAYAGAR vs.
RATANLALCHUNILAL,1972GLR181.
6. BOMBAYPUBLICTRUSTSACT,1950(XXIXOF1950)Secs.41A
and72(1)DirectionissuedunderSec.41ASuchdirection
cannot be challenged in an application under Sec. 72
DirectionunderSec.41Aorderedtobecontinuedwhenpassed
under Sec. 70A Such direction does not cease to be
directionunderSec.41A.
6.1. It is obvious on a conjoint reading of Secs. 41A
and72(1)oftheActthatthedirectionorinstruction
issuedbytheCharityCommissionerunderSec.41Aofthe
ActcannotbequestionedinanapplicationunderSec.72
before the District Court. That being obvious, the
direction issued during the pendency of the Charity
Commissioner were indisputably not liable to be
challengedorquestionedbeforetheDistrictCourtunder
Sec.72(1)oftheAct.Merelybecausethesedirections
areorderedtobecontinuedbythesameorderbywhicha
freshinquiryinrespectofcertainmatterswasordered
by the Charity Commissioner in exercise of his power
underSec.70AoftheAct,itcannotbesaidthatthe
directionsissuedceasetobedirectionsunderSec.41A
of the Act. KANBI MANJI ABJI vs. KANBI VELJI MANJI,
1980GLR44.
7. BOMBAYPUBLICTRUSTSACT,1950(XXIXOF1950)Secs.41A
and72NoapplicationunderSec.72liesagainstanorder
underSec.41A,butifitisfoundthattheimpugnedorder
isnotunderSec.41A,theDistrictCourtcaninterfereand
passaproperorder.
7.1. No application under Sec. 72 lay against an order
passed under Sec. 41A of the Act and, therefore, the
appealasregardsthatorderwasnotcompetent.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
orderspassedunderSecs.40,41,50A,70or70Aofthe
Act.Sec.41AdoesnotfindanyplaceinSec.72.The
CharityCommissionerisrequiredtoissuedirectionsto
any trustee of a public trust or any person connected
therewith i.e. with the public trust. Sec. 41A thus
presupposesthatthereisinexistenceapublictrust.
WhenthequestionwhetherthisDargahisapublictrust
isstillnotdecidedandistobedecidedafterfurther
inquiry by the Assistant Charity Commissioner, the
Charity Commissioner, could not exercise powers under
Sec.41A.Subsec.(2)ofSec.41Asaysthatitshallbe
thedutyofeverysuchtrusteeandpersontocomplywith
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
theCharityCommissioner.Inviewofthis,itcannotbe
saidthatthelearnedJointCharityCommissionerissued
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
Amrutlalcannotwithanystretchofimaginationbesaid
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.ISMAILIBRAHIMBADAT,1986(1)GLR136.
8. BombayPublicTrustsAct,1950(XXIXof1950)Sec.72
Thoughthewordusedis"application",reallyspeakingthe
District Court under Sec. 72 hears an appeal against the
orderoftheCharityCommissioner.
8.1. The Court may, however, state that after Hiragar
Dayagar,1972GLR181andKhivarajChhagniram,AIR1972
Bom.40,thepointcameupforconsiderationbeforethe
SupremeCourtinRamchandraGovardhanPanditv.Charity
Commissioner,StateofGujarat,1987(2)GLR1295:AIR
1987SC1598.TheApexCourtwascalledupontoconsider
correctnessorotherwiseoftwoconflictingviewsoneof
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,theSupremeCourtobserved:"Thepowerofthe
DistrictCourtinexercisingjurisdictionunderSec.72
isaplenarypower.ItistruethattheCommissioneris
notsubordinatetotheDistrictCourt,buttheDistrict
Courthaspowertocorrect,modify,revieworsetaside
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
whiledecidinganapplicationunderSec.72.Todecide
this case, we must be guided not only by the
nomenclatureusedbythesectionfortheproceedingsbut
bytheessenceandcontentoftheproceedings.Further
held that the proceedings before the District Court
underSec.72(1)areinthenatureofanappealandthat
District Court exercises appellate jurisdiction while
disposingthecaseandhencethecase,Clause15ofthe
Letters Patent is directly attracted. PARVEZ
RUSTAMJI BHARDA vs. NAVROJJI SORABJI TAMBOLY, 2001 (2)
GLR949.
9. Bombay Public Trust Act, 1950 Secs. 22 & 72 Churches
dissolvedandunitedintooneChurchFindinggivenbyHigh
CourtthatFirstDistrictChurchofBrethrendidnotcease
to exist Held, Charity Commissioner has jurisdiction to
adjudicateissuepertainingtodissolutionofchurchesetc.
as per provisions of the Act and Civil Court cannot
entertain the dispute Matter remanded to Charity
Commissionerwithdirectionthatconcernedpartiesbeheard
and determine pending disputes VINOD KUMAR MATHURSEVA
MALVIAV.MAGANLALMANGALDASGAMETI,2006(9)SCC282.
Section70&70A:
10. BOMBAYPUBLICTRUSTSACT,1950(XXIXOF1950)Secs.
18,19and70CivilProcedureCode,1908Order23,Rule
3ActprovidescompletecodeforinquiryunderSec.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
concessionmadebythepartyWhetherRule3ofOrder23
C.P.C.applicableOrderheldarbitraryandinviolationof
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
sittinginappealunderSec.70oftheActhasnopower
orjurisdictiontopassanorderinaccordancewiththe
agreementbetweenthepartiestotheappealorevenona
concessionmadebyapartytotheappeal.Theprovisions
of Order 23 Rule 3 of the Civil Procedure code, which
provide for the passing of a decree by the Court in
accordancewithalawfulagreementorcompromise,cannot
bemadeapplicabletotheproceedingsbeforetheCharity
Commissioner in the appeal under Sec. 70 of the Act.
Heldthat,intheinstantcasetheimpugnedorderhaving
been found to have been passed in accordance with the
consent terms, was clearly without jurisdiction. Even
assuming that the Charity Commissioner had also
consideredthecaseonmeritsintheappealbeforehim,
thereisnothingonrecordtoshowwhyhehadreceived
theadditionalevidenceonrecord.Thereisnoproofof
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
summaryandarbitrarymannerdecidethattheproperties
arenotthepropertiesofthepublictrust.Theexercise
of the power was clearly is excess of jurisdiction,
besidesbeinginbreachoftheprovisionsoflawandin
consciousviolationoftheprovisionsandtheprocedure
prescribed. The impugned order affects the cause of
publictrustandpublicgoodanddefeatstheveryobject
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,1967GLR42.
70and70APowerofrevisionoftheCharityCommissioner
Even if the order is not liable to be revised in appeal,
Charity Commissioner can exercise revisional power under
Sec.70andsetasideexparteorder.
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'mentionedinthatsection.Theideaisthatthe
categoriesofcaseswhicharementionedinSec.70being
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
particularmatterright.Heldthatintheinstantcase,
the order of the Assistant Charity Commissioner
refusingtosetasidetheexparteorderpassedbyhim
wasapartoftherecordandproceedingsofthecasein
whichhepassedtheexparteorderunderSec.20.That
beingsothiswasacasementionedinSec.70,andif
that was a case mentioned in Sec. 70, the Charity
Commissionerwasentitledtosendfortherecordofthat
caseunderSec.70AoftheActandtosatisfyhimselfas
tothecorrectnessof"anyfindingororder"recordedor
passedbytheAssistantCharityCommissioner.Therefore,
evenbelievingthatanorderrefusingtosetasidethe
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
powersvestedintheCharityCommissionerunderSec.70
of the Act. ROSHANALI AKBARALLI vs. NABIJI NATHAJI
VOHRA(DECDHISLEGALHEIRS),1974GLR116.
Jurisdiction of Civil Court and Civil Procedure Code,

1908:
50and80CivilProcedureCode,1908Sec.92,OrderI,
Rule3Sec.50oftheBombayPublicTrustsActwiderthan
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
competentunderSec.50.
12.1. The provisions of Sec. 50 of the Bombay Public
TrustsActarewiderthanthoseofSec.92oftheCivil
ProcedureCode.UnderSec.50itisprovidedthatwhere
a suit is filed as contemplated under Secs. 50(i),
50(ii),and50(iii),itiscompetenttotheplaintiffto
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.Whereatrusteeinbreachoftrustalienates
property in favour of an outsider and where a suit is
broughtagainstthetrusteeontheallegedbreachofthe
trust under the provisions of Order 1 Rule 3 of the
CivilProcedureCode,thealieneewhoisapartytothe
breachoftrust,canbeproperlyjoinedinthesamesuit
forareliefinrespectoforarisingoutofthesame
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
alternativelyforinsuchcasesifseparatesuitswere
broughtagainstsuchpersons,commonquestionsoffacts
orlawwouldariseandthereisnobarunderSec.50of
theBombayPublicTrustsActtoimpleadinganalieneein
suchasuit.Ifasuitiscompetentundertheprovisions
ofSec.50oftheBombayPublicTrustsAct.itcannotbe
saidthatsuchasuitisbarredbyreasonofSec.80of
theAct.JAMNAW/OBHAGWANDASVANMALIvs.HAJIAHMED
HAJIYAKUB,1962GLE843.
50, 52 and 80 Civil Procedure Code, 1908 Sec. 92
SpecialprovisioninSec.50oftheBombayPublicTrustAct
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
havetobeadjustedandreshapedinviewofSec.50ofthe
Bombay Public Trusts Act A scheme passed by the Court
earlier Remedy under the relevant clause in a scheme
decreedbytheCourtnowcontrolledundertheBombayPublic
TrustActThesaidsectionoverridetherelevantclausein
theschemeAnysuit,therefore,inregardtoTrustcanbe
onlyfiledafterthesanctionoftheCharityCommissioner.
13.1. InviewoftheprovisionsofSec.50oftheBombay
PublicTrustsActwhichisaspeciallegislationonthe
subject,totheextenttowhichSec.50isrepugnantto
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.50hasthecapacitytooverridetheprovisionsof
Sec.92ofC.P.C.,itmustnecessarilyhavethecapacity
tooverridetherelevantclauseinanyschemesettledin
asuitfiledunderSec.92ofC.P.C.Aschemesettledin
asuitfiledunderSec.92ofC.P.C.isnotindependent
of that section nor can it be placed above it. The
rights or remedies which have been conferred upon the
partiesbyaschemesettledinasuitunderSec.92of
C.P.C.canonlysurviveintheirfullestformifSec.92
survives. If it does not survive, they have got to be
adjustedandreshapedinlightoftheprovisionsofSec.
50 of the Bombay Public Trusts Act. Section 52 of the
BombayPublicTrustsActmakesitclearthatsofaras
thePublicTrusttowhichtheBombayPublicTrustsAct
applies, Sec. 92 and the rights and remedies provided
thereunderhavebeenrepealed.Iftheremedyoffilinga
suit under Sec. 92 of the C.P.C. has been repealed in
relationtopublictrustsbyvirtueofSec.52(1),itis
clearthatanyremedyprovidedbyanyclauseinascheme
settled in a suit filed under Sec. 92 of the Code of
CivilProceduremustalsogivewaytotheprovisionsof
Sec. 50 of the Bombay Public Trusts Act, 1950. The
remedy which the original applicant had under the
relevantclausesintheschemeinquestionhasnowbeen
controlledandregulatedbytheprovisionsofSecs.50,
52 and 80 of the Bombay Public Trusts Act, 1950. The
conjointreadingofthesethreesectionsmakesitclear
beyondanydoubtthatthelegislatureinthematterof
filingofsuchasuitbypersonsinterestedinapublic
trust has expressed a different intention and,
therefore,theprovisionsofthesaidsectionsoverride
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.92hasbeenexpresslyrepealedbySec.52anddoes
notsurviveevenincasesofschemessettledbeforethe
BombayPublicTrustsAct,cameintoforcebyvirtueof
the provisions of Sec. 80 of the Bombay Public Trusts
Act,1950,anyremedyreservedinaclauseinascheme
settledinasuitunderthatsectionmustalsobeheld
to have been overridden or superseded by Sec. 52 read
withSecs.50and80oftheBombayPublicTrustsAct.
YASINMIANAMIRMIANFAROQUIvs.IASHAIKH,1977GLR54.
19(ii),21,22,68(b),69(b)and80Ousterofjurisdiction
ofCivilCourtstodecideordealwiththosequestionswhich
arerequiredtobedecidedordealtwithbytheDeputyor
AssistantCharityCommissionerundertheAct.
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
provisionsalsogotoshowthatthejurisdictionofthe
Civil Court to entertain that question is barred. In
view of this, it is clear that the Civil Court cannot
enterintoanddecidethequestionwhetheraparticular
propertyisthepropertyofapublictrustornot.That
was the main question raised, in the present suit and
theappealbeforetheDistrictCourt.Itisclearthat
neither the trial Court nor the first appellate Court
couldhavedecidedthequestionoftitlebecause,onone
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,
whileontheotherhanditisthesayofthedefendants
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
noticesarerequiredtobeissuedtothepublicduring
theinquiryproceedingsunderSec.19oftheAct.This
courtheldintheabovecasethatitwasnotnecessary
to issue any such notice to the public. It is held
therein that the rights of persons having an interest
arenotprejudicedasasuitableremedyisprovidedby
other provisions of the Act. It is held therein that
even after inquiry under Sec. 19 has concluded and
entriesaremadeintheregisterunderSec.21orSec.
22, it is open to the Deputy or Assistant Charity
Commissionertoholdafurtherinquiryifitappearsto
him that any particular relating to any public trust
which was not the subject matter of the inquiry under
Sec.19orsubsec.(3)ofSec.22hasremainedtobe
inquiredinto.SHERASIYASAJIALAVADIMOMINvs.STATE
OFGUJARAT,1985GLR(1)513.
18,19and80Sec.80barsthejurisdictionoftheCivil
CourtinrespectofquestionswhichbyorundertheActare
tobedecidedbyanyofficerorauthorityundertheActand
inrespectofwhichthedecisionororderofsuchofficeror
authority is made final and conclusive under the Act
Questionastowhatarethesourcesofincomeofapublic
trustbeingoneofthequestionswhichunderSec.19ofthe
Act is required to be decided by the Assistant or Deputy
CharityCommissioner,cannotbedecidedordealtwithbya
CivilCourt.CHARITYCOMMISSIONER,AHMEDABADvs.STATEOF
BOMBAY(NOWTHESTATEOFGUJARAT),1993(1)GLH94.
16. CIVIL PROCEDURE CODE, 1908 (V OF 1908) Sec. 9
BombayPublicTrustsAct,1950(XXIXof1950)Sec.79
Suitclaimingthataparticularpropertywasforuseasa
Dharmshala where public had a right to free access On
facts found that foundation of plaintiff's claim was
existenceofDharmshalaasapublictrustSuchquestions
couldbedecidedonlybyauthoritiesundertheBombayPublic
TrustsActHeld,suitwasbarredhavingregardtoSec.79
oftheBombayPublicTrustsAct.
16.1. This cannot be disputed and doubted from the
pleadingsinplaintthatfoundationofplaintiffs'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
allegedbytheimpugnedactionunderWakfAct,1954by
theBoardofWakfsinpublishingthelistofWakfsvide
supplementary list dated 651965. Thus, establishing
the existence of Dharmshala as public trust to which
plaintiffsorpublicatlargehasunobstructedrightof
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
declarenegativelythatthepropertyinquestionisnot
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
succeedonhisowncase.Hecannotsucceedondefendants
failuretoestablishhisdefence,beforeheproveshis
case.
16.2. Thecauseofactionwhichoccasionedthefilingof
suits by the plaintiffs, in the sense infringement of
rightsofplaintiffwhichoccasionedsettingproceedings
inmotionforseekingreliefisclaimtofreeaccessto
property as members of public without distinction of
caste and creed on the assertion that it is property
belongingtopublictrust.Thefurtheravermentstoact
ofinfringementofthisrightbyallegedassertionsof
defendantaboutitsbeingaMuslimWakfisintherealm
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
exclusivelywithinthejurisdictionofauthoritiesunder
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.87WakfAct,1954(XXIXof1954)Sec.6Sec.
84 of the Bombay Public Trusts Act providing that the
ActshallnotapplytoWakfstowhichprovisionsofthe
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
TrustsActtodecidesuchquestionnotbarred.
16.5. TheWakfAct,1954wasappliedtoKutchfrom151
1955anditcontinuedtoapplyafteritbecamepartof
Maharashtra on commencement of State Reorganisations
Act, 1956 and so continued until 151960, when under
Bombay Reorganisation Act, 1960 it became part of
Gujaratonitsformation.
16.6. However, the enquiry whether a Wakf exists and a
particular property is Wakf property or not precedes
applicationofActof1954tosuchproperty.Untilsuch
stateisreached,anyenquirywhichisnecessarybefore
the operation of Act of 1954 is attracted, is not
envisagedtobeexcludedfromthejurisdictionofsuch
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
fallingintoWakf,theexclusivejurisdictiontodecide
such issue, before provisions of Wakf Act can be
attracted vest in authorities under the Bombay Public
TrustsActwithintheStatesofMaharashtraandGujarat.
In such cases first question that requires to be
determinediswhetherthereexistsapublictrust.Next
questionthatrequirestobedeterminediswhetheritis
apublictrustinthenatureofWakf.Ondetermination
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)GLR487.
17. BombayPublicTrustsAct,1950(XXIXof1950)Secs.
22and73CivilProcedureCode,1908(Vof1908)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
evidenceoffactsbyaffidavitDeputyCharityCommissioner
allowed evidence by affidavit subject to crossexamination
ofdeponentChallengetothismodeofrecordingevidence
Petitiondismissedwithcosts.
17.1. OnconjointreadingofSec.73oftheActreadwith
Rule 7 of the Rules, it transpires that the proof of
factsbyaffidavitisnotunknowntotheprocedurefor
holding inquiry and secondly for examination of any
witnessonoaththeofficerwillhavethesamepoweras
are vested with the Civil Court under Civil Procedure
Code.Order18Rule4(afteramendmentwitheffectfrom
172002) inter alia provides for examinationinchief
of a witness by affidavit, and therefore, it can
reasonablybeconstruedthattheC.P.C.mutatismutandis
wouldapplyforgivingeffecttotheprovisionsofSec.
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.forcomplianceoftheprocedureprescribedunder
theprovisionsofRule4ofOrder18.Inanycase,even
no rule can be allowed to operate on the face of any
statutory provisions under Sec. 73. NITYANAND M.
THAKOREvs.CHARITYCOMMISSIONER,2004(2)GLR971.
TheAuthorityundertheB.P.T.Actisboundtorecord
changesintheB.P.T.RegisteraspertheordersofaCivil
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
explainedinverydefinitetermsinSec.26oftheAct.
Itisanundisputedfactthattheorderispassedbya
competent Court having jurisdiction and the said
decisionoftheconcernedCourtisnotchallengedtill
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
contrarytoandinconsistentwithSec.26oftheActis
illegal,badandliabletobesetaside.InCourt'sview
theorderoftheauthoritynottakingintoconsideration
Sec.26oftheActandtherebynotgivingeffecttothe
order passed by the Bombay City Civil Court in the
Public Trust Register maintained under Sec. 17 of the
Actisalsoillegalandbadinlawandthesamedeserves
to be set aside. (Para 8) SHETH RATANJI AND JIANDAS
CHARITABLE TRUST NO. 2 AND ORS. vs. ASSISTANT CHARITY
COMMISSIONER,BHAVNAGAR,2005(4)GLR3638.
19. Civil Procedure Code, 1908 (V of 1908) Sec. 24
BombayPublicTrustsAct,1950(XXIXof1950)Secs.50and
51 Suits filed under Sec. 50 of the Trust Act after
obtaining permission from the Charity Commissioner under
Sec.50isaspecialsuitandnotanordinarysuitSucha
suit cannot be transferred to the Fast Track Court under
Sec.24ofC.P.C.ItshouldbeheardbytheDistrictCourt
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
transfercanbemadetoanyCourtsubordinatetoitand
(2)theCourtwhichiscompetenttotry.Intheopinion
ofthisCourt,whentheCourtisdefinedundertheAct
andtheCourtofPrincipalDistrictJudgeisconferred
powertotrythesuitsrelatingtothetrusts,whichare
filed after obtaining the consent of the Charity
Commissioner,suchsuitshaveaspecialstatusandthey
do not stand at par with an ordinary suit. That being
so,whenthesuitisinstitutedundertheprovisionsof
aspecificAct,thesameshouldhavebeendealtwithin
light of the provisions of that particular Act. That
beingso,thisCourtisoftheopinionthatthelearned
PrincipalDistrictJudgehaserredinallowingtheMisc.
Civil Application No. 45 of 2005 and transferring the
Trust Suit No. 1 of 2005 to 2nd Fast Track Court,
JunagadhatVeraval,sittingatUna.2006(2)GLR1190.
ContraryView:BombayPublicTrustsAct,1950(XXIXof
1950)Sec.72BombayCivilCourtsAct,1869(XIVof
1869)Secs.12&13GujaratCivilCourtAct,2005
(XXI of 2005) Secs. 5, 6, 7, 11, 12, 12A & 13 A
JudgeofaFastTrackCourtactisaDistrictJudge
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.
KanjibhaiP.Moti,2006(2)GLR1190wronglydecidedand
notfollowed.NARESHCHANDRARAMPRASADRAJA,PRESIDENT
OF SAMAGRA GUJARAT NAGAR PARISHAD MANDAL V. GAJENDRA
SHUKHLALPATEL,2008(5)GLR4272.
LimitationAct:
20. LIMITATIONACT,1908(IXOF1908)Sec.22Inquiry
intotheappointmentoftrusteeWhethercoveredunderSec.
22.
20.1. Theinquiryintothechangeintheconstitutionof
the trustees includes the question whether the persons
whowereappointedwereinfact,appointedaspersonsto
holdthestatusofthetrustees,bythepersonwhohad
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.
MULCHANDDALICHAND,1962GLR117.
21. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.

72A Limitation Act, 1908 Sec. 12 Application under
Sec.72ofBombayPublicTrustsActWhetherSec.12ofthe
LimitationActapplies.
21.1. Section12oftheLimitationActdoesnotapplyto
anapplicationunderSec.72oftheBombayPublicTrusts
Act. CHARITY COMMISSIONER OF BOMBAY vs. CHANDRAKANT
HARMANDAS,1964GLR959.
72and75LimitationAct,1908Secs.12(2)and29(2)
Application under Sec. 72 is in nature of appeal for the
purposeofLimitationActTimetakenfortakingcertified
copy to be excluded under Sec. 12(2) of Limitation Act
WhetherCharityCommissionerisinferiortoDistrictCourt
CivilProcedureCode,1908Sec.151Inherentpowerof
DistrictCourttoactunderSec.151toremandacaseunder
theBombayPublicTrustsAct.
22.1. Section72oftheBombayPublicTrustsActprovides
foranapplicationmadetotheCourtunderthatsection
a period of limitation a different from the period
prescribed therefore in the First Schedule to the
LimitationActandSec.29(2)oftheLimitationActis,
therefore,attractedanditmakestheprovisionsofSec.
12(2) of the Limitation Act applicable to such an
applicationandthetimetakenforobtainingacertified
copyoftheorderis,therefore,liabletobeexcluded
underSec.12(2)incomputingtheperiodSoflimitation
prescribed by Sec. 72 for such an application. An
applicationunderSec.72cannotbesaidtobeanappeal
withinthemeaningofSec.75butthereisnoreasonfor
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.
Therightisinsubstance,ifnotinform,inthenature
of an appeal. The Charity Commissioner is not
subordinatetotheDistrictCourtinthesensethatthe
DistrictCourthasnopowerofsuperintendenceoverthe
Charity Commissioner but in the matter inter alia of
hisdecisionsunderSec.70theCharityCommissioneris
inferior to the District Court in that District Court
haspowertorevokeormodifyhisdecisions.Sec.151of
the Code of Civil Procedure would apply to an appli
cationunderSec.72andtheDistrictCourthearingsuch
applicationwouldhaveinherentpowerunderthatsection
tomakeanorderofremandiftheDistrictJudgethinks
it necessary to do so in an appropriate case.
CHANDRAKANT HARMANDAS vs. THE CHARITY COMMISSIONER OF
GUJARAT,1965GLR649.
Section50&50A:
56BWhetheronlyappliestoapublictrustnotregistered
under the Act Question involving public, religious or
charitablepurposeSec.56BappliesandnoticetoCharity
CommissionernecessaryWords"legalproceedings"includes
alllegalproceedingswithoutanylimitationorrestriction
Question of appointment of a trustee is a question
affecting public, religious or charitable purpose of the
publictrust.
23.1. Thereis nothinginSec.56B oftheBombay Public
TrustsAct,1950whichlimitsitsapplicabilitytocases
relatingtoapublictrustwhichisnotregisteredunder
theprovisionsoftheAct.Onceapositionisreachedin
whichitisfoundthatinasuitorlegalproceedinga
question is involved affecting a public, religious or
charitablepurpose,Sec.56Bmustapplyandnoticemust
be given to the Charity Commissioner. There is no
synonymitybetweentheexpression"public,religiousof
charitable purpose" and the expression "public trust."
Theexpression"publictrust"isdefinedinSec.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
forwhichthepublictrustexists.Everyquestionwhich
affectsapublic,religiousorcharitablepurposewould
notnecessarilyaffectapublictrustunlessthepublic,
religiousorcharitablepurposeaffectedbythequestion
ispurposeofpublictrust.Buteveryquestionaffecting
a public trust would necessarily be a question which
wouldaffectthepublic,religiousorcharitablepurpose
ofsuchpublictrust.Thewords"legalproceedings"must
receivetheirfullandnaturalmeaningandtheymustbe
heldtoincludewithintheirscopeandambitalllegal
proceedings without any restriction or limitation
including the proceeding before the District Court for
appointmentofamemberoftheCommitteeunderClause7
of the Scheme. The general words even if they are
preceded by particular and specific words must
ordinarilyreceivetheirfullandnaturalmeaningunless
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
nexusbetweenthefitnessorcompetenceofthetrustees
and the achievement of the public religious or
charitable purpose of the public trust. The former is
boundtoreactonthelatteranditisforthisreason
that the Legislature has prescribed in Sec. 47(4)(c)
thatinappointinganewtrusteeofapublictrustthe
Court must have regard to the question whether the
appointmentwillpromoteorimpedetheexecutionofthe
public trust. This provision puts the question beyond
the pail of doubt and controversy and makes it
abundantlyclearthatthequestionofappointmentofa
trusteeisaquestionwhichhasadirectandproximate
bearingontheexecutionofthepublictrustandthatit
isconsequentlyaquestionaffectingapublicreligious
orcharitablepurposewithinthemeaningofSec.56Bin
thesensethatitcanpromoteorimpedetheachievement
of the public religious or charitable purpose of the
publictrust.ThereforetheDistrictCourtwasinerror
intakingtheviewthatnonoticewasnecessarytobe
giventotheCharityCommissionerunderSec.56Bbefore
decidingastowhoshouldbeappointedamemberofthe
Committee under Clause 7 of the Scheme. SHAH
JAGMOHANDAS PURSHOTTAMDAS vs. JAMNADAS VRAJLAL GANDHI,
1965GLR49.
50, proviso Distinction between Public Trust and public
trustpropertySuitagainsttrespasserbytrusteeSuit
inrespectoftrustpropertyandnottrustSec.50does
notapplyConsentofCharityCommissionernotnecessary.
24.1. TheprovisotoSec.50oftheBombayPublicTrusts
Act speaks of the institution of a suit in respect of
anypublictrustandnotsuitsinrespectofanypublic
trustandpublictrustproperty.Thereisadistinction
betweenapublictrustandpublictrustproperty.Asuit
for the recovery of possession of a public trust
propertyisnotasuitinrespectofapublictrustand
therefore Sec. 50 of the Act would not apply, if the
suitisbyatrusteeagainstatrespasser.Suchasuit
wouldnotbeinrespectofthetrustandtheconsentof
theCharityCommissionerwouldnotbenecessary.MALEK
CHITTU RASUL vs. PATHAN MAHMADKHAN KALUKHAN, 1966 GLR
1011.
50A(2a) Power of appointment of first trustee under the
schemeAppointmentofsuchtrusteesmayresultinremoval
of all trustees Power to frame scheme implies the
obliterationofearliermanagementRemovalofoldtrustees
ismerelyaconsequenceoftheappointmentoffirsttrustee
underthescheme.
25.1. The whole phrase reading "the mode of appointment
oftrusteesincludingtheappointmentoffirsttrustees"
deals with the subject of appointment of trustees and
while dealing with this subject it provides that the
schememaymakeprovisionsforthemodeofappointment
ortrusteesaswellasfortheappointmentofthefirst
trustees.Thepowerofappointmentasgivenundersub
sec. (2A) to the Charity Commissioner while framing a
scheme is limited to the appointment of the first
trusteesunderthescheme.AschemeframedbytheCourt
underSec.50orbytheCharityCommissionerunderSec.
50orbytheCharityCommissionerunderSec.50Atakes
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
appointmentofthefirsttrusteesunderthescheme.The
power of appointment of trustees is such an important
and integral part of the power of framing of a scheme
thatwithouttheformer,thelatterpowerwouldbecome
useless.Therefore,ifthepowerofappointmentoffirst
trustees under the scheme is an integral part of the
framingofthescheme,theconsequenceoftheexercise
ofthatpowerwhichinagivencasemayresultintheso
calledremovaloftheoldtrustees,hasnobearingupon
theinterpretationofsubsec.(2A)ofSec.50Aofthe
BombayPublicTrustsAct.Itisthepowerofappointment
offirsttrusteeswhichresults,intheeyesoflaw,in
the socalled removal of the old trustees, and that
consequencemustfollow.Inacasewheretheschemeis
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.Thisisforthesimplereasonthatmanagement
undertheschemetakestheplaceoftheoldmanagement;
and the old management is fully eclipsed by the
managementunderthescheme.Thepowertoframeascheme
necessarily implies the obliteration of earlier
management of the public trust in question and
substitutionofaschemeofproperandbettermanagement
initsplace.Ifthisisthepurposeofframingascheme
under Sec. 50A, the trustees under the old management
cannotcontinueinspiteoftheobliterationoftheold
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.
Theirremovalismerelyaconsequenceoftheappointment
of the first trustees under the scheme. It is not
necessaryinsuchacasetoprovidespecificallyforthe
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
placeofoldtrustees,theoldtrusteesareremoved.In
order, however, to see that the legal title to the
property of the public trust does not continu e to
remainvestedintheoldtrustees,aspecificprovision
hasbeenmadeinsubsec.(2A)conferringpoweronthe
CharityCommissionertovestthetrustpropertyinthe
first trustees appointed under the scheme. This would
resultindivestingthelegaltitleintheoldtrustees
andvestingofthesameinthefirsttrusteesappointed
under scheme. It is thus clear that the Charity
Commissioner has ample power so make appointment of
firsttrusteesintheplaceoftheoldtrusteeswithout
continuing them so as to bring about their removal.
KANTILALCSHAHvs.THECHARITYCOMMISSIONER,1975GLR
594.
26. BOMBAYPUBLICTRUSTSACT,1950(XXIXOF1950)Sec.50
Trusteestryingtoletpremisesofthetrustinviolation
ofpreviousresolutionPlaintifftrusteefilingsuitfor
declarationaswellasinjunctionSuchcasedoesnotfall
withinthepurviewofclause(iii)ofSec.50Suitfiled
thereforecompletelymaintainable.
26.1. In theinstant case, theplaintiffwas oneofthe
trusteesofthetrust.Theothertrustees,inpursuance
ofthemandatefromthegeneralbody,weretryingtolet
thenewlyconstructedpremisestoanoutsiderinillegal
supersession of a previous resolution passed by the
general body and in disregard of the rules concerning
thetrust.Accordingtoplaintiff,suchanactwouldbe
anunauthorisedacthavingnosanctionoflawbehindit,
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
purviewofclause(iii)ofSec.50oftheBombayPublic
TrustsAct,oranyoftheotherclausesviz.clauses(i)
and (ii) because there is no allegation in the plaint
thatthereisbreachofthepublictrustnorthisisa
casewhereadirectionisrequiredtorecoverpossession
of the property belonging to the public trust or
proceeds thereof or any account of such property or
proceeds.Theveryconditionprecedent,therefore,which
wouldattracttheprovisionsofSec.50isabsentinthe
instant case. There is no direction sought by the
plaintiff authorising whole or any part of the trust
propertytobelet,sold,mortgagedorexchangedasis
contemplatedunderthereliefclause(f)inSec.50and,
therefore, the second ingredient which would attract
provisionsofSec.50(vi),thesuitforclaimingrelief
intermsofoneormoreoftheninereliefssetoutis
therelevantclauseinthesection,isnotsatisfied.It
isonlywhenthesetwoconditionsaresatisfiedthatthe
suitwouldbecoveredbySec.50andthen,asperthe
third part which contains a proviso, it is to be
safeguardedthatsuchasuitclaiminganyofthereliefs
specifiedinthesectionisinstitutedinrespectofa
public trust specifically in conformity with the
provisions thereof. GOVIND KRISHNA ABHYANKAR vs.
KAMALAKARVISHNUGANPULE,1979(2)GLR517.
TrespasserencroachingupontrustpropertyTrusteesare
entitledtofilesuitSec.50underwhichconsentofthe
CharityCommissionerisnecessarilyisnotattractedinsuch
asuit.
27.1. Section 50 of the Bombay Public Trusts Act is an
enablingprovision.Ordinarily,trusteesaslegalowners
alone are able to file suits for the recovery of
possession of trust properties. As for example, a
trespasser,ifsuedbyathirdparty,wouldbeableto
successfullyresiststhesuitbybankingonhisdefacto
possession of the property. The substantive portion of
Sec. 50, therefore, is to be confined to the power of
CharityCommissionerandthepowerofthebeneficiaries
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
provisoforbidsisthatthosewhoaregivenpowerinthe
earlier part of Sec. 50 are to exercise those powers
onlyincompliancewiththeprovisionsofthatActand
nototherwise.Sotheprovisoisasortofarestriction
placedonthepowersoftheCharityCommissionerandon
the powers of the beneficiaries of the trust, who are
designatedbysectionas"personshavinganinterestin
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.NADIADNAGARPALIKA,NADIADvs.VITHALBHAI
ZAVERBHAIPATEL,1980GLR792.
2(10),50and51Trusteesofapublictrustarepersons
interestedinthetrustasperSec.2(10)Ifthesuitis
of the nature falling under Sec. 50, the trustees must
obtaintheconsentoftheCharityCommissionerbeforefiling
asuitAsuitbysomeofthetrusteesfortheremovalof
therestisasuitfallingunderSec.50Asuitfiledin
contravention of Sec. 51 is liable to be dismissed under
Order7Rule11ofCivilProcedureCode.
28.1. Sevenoutof11trusteesfiledasuitforremoval
of the rest i.e. respondents Nos. 1 to 4. The
respondents contended that the suit was barred by the
provisionsofBombayPublicTrustsAct,1950inasmuchas
necessary consent of the Charity Commissioner before
filingthesuithasnotbeenobtainedandhencethesuit
is liable to be rejected. Learned Counsel for the
appellantsoriginalplaintiffssubmittedthatthephrase
'the persons having an interest in any public trust'
occurring in Sec. 51 of the Act would not include the
trusteesofthetrustandtherefore,theprovisionsof
Sec.51cannotbeinvokedagainsttheplaintiffswhoare
admittedlythetrusteesofthetrustinquestion.This
contentioncannotbeacceptedforthesimplereasonthat
thedefinitionof'personhavinginterest'occurringin
Sec. 2(10) of the Act is an inclusive definition.
Trustees of the public trust would certainly be the
personshavinginterestinthetrustpropertyinwider
sense of the term. There is no reason why restricted
meaning be given to the phrase. If trustees have no
interestinthepropertyoftrust,whoelsewouldhave
interest. When the nature of the suit is such that it
fallswithinthepurviewofSec.50oftheAct,itwould
be proper that before filing such suit the consent of
the Charity Commissioner is obtained by the plaintiff,
eventhoughtheplaintiffsaresomeofthetrusteesof
the trust. PATEL NANJI DEVJI vs. PATEL JIVRAJ MANJI,
1988(2)GLR830.
50AAppellantwasthesoleTrusteeofatempleatKanjari
inHalolTalukaofPanchmahalsDist.registeredasapublic
trustApplicationbyhimbeforetheDistrictCourtagainst
the order of the Charity Commissioner to frame the scheme
for the temple, dismissed with certain modifications In
theFirstAppealtheHighCourtheldthatpowersunderSec.
50AoftheActaretobeexercisedbytheconcernedofficer
onsubjectivesatisfactionTheappellateCourthasonlyto
examinewhetherthereisanymaterialonthebasisofwhich
theCharityCommissionercouldarriveatthedecisionhehas
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.
CHARITYCOMMISSIONER,1992(2)GLH192.
Whereinasuitreliefsaresoughtwhichwouldhavethe
effectofinterferingwiththemanagementofatrust,Sec.
50isattractedandasuitfiledwithoutcompliancethereto
isliabletobedismissed.
30.1. The Court has examined the contents of the plaint
and also the reliefs claimed therein. By claiming a
righttohavetheidolsandportraitsintheDharamshala
hallandalsotherighttoreadthebookspropoundedby
the followers of Abji Bapa, the respondentsplaintiffs
inpithandsubstanceareaskingforalterationsinthe
Scheme of the trust already settled. In any case, the
right of trustees to decide the place where devotees
wouldrecitethescripturesandalsotheplacewherethe
idols and portraits are to be installed has been
questionedinthesuit.Therespondentsplaintiffsare
indirectly trying to interfere with the management of
the temple. The main purpose of the suit filed by the
followersofAbjiBapaistoestablishthesuperiority
of their sect and impose their way of thinking and
worship in the management of the temple and as a
consequenceintheadministrationofthetrust.Inthis
viewofthematter,thereisnoescapefromthefinding
thatthesuitfallswithinthepurviewofSec.50ofthe
Trusts Act, and as such the trial Court rightly
dismissedthesame.KANBIMANJIABJIvs.KANBIVAGHJI
MAVJI,1994(1)GLR479(SC).
50A and 56(A)(1) Mode of succession by inheritance
CannotbechangedbychangereportSchemewillhavetobe
framedunderSec.50A.
31.1. Itis,therefore,clearthatifhereditarymodeof
succession to the trusteeship, which is only mode of
succession,isrequiredtobechanged,thatprimafacie
would not amount to a change in the names of the
trustees simplicitor, which can be recorded by way of
grantingchangereport.Ifthemodeofsuccessiontothe
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,GUJARATvs.NAGARBHAIMADHAVDAS,1994(2)
GLR1089.
22, 50A and 56A Scheme of trust Amendment Charity
CommissionercanbringabouttheamendmentunderSec.50A
CourtsadvisoryjurisdictionunderSec.50Adoesnotextend
toissuemandatetotheCharityCommissionertobringabout
theamendment.
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
CharityCommissionerintheChangeEnquiryProceedings,
butfailedtoappreciatethatthetrusteeshadnotfiled
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
exceptinaccordancewiththespecificprovisionsofthe
said Act, namely, resorting to the provisions of Sec.
50A.Clearlytherefore,theimpugnedorderisbeyondthe
jurisdictionoftheCourt.Theadvisoryjurisdictionof
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,andthisjurisdictioncannotbeindirectly
assumed by the Charity court (by issuing a mandate to
the Commissioner) in its advisory jurisdiction under
Sec. 56A. CHARITY COMMISSIONER, GUJARAT STATE vs.
SHAKARLALDOSABHAISHAH,1995(2)GLH35UJ27.
50and50AInthematterofframingascheme,theCharity
CommissionerandtheDistrictCourthavethesamepowerA
scheme framed by the Charity Commissioner appointing
trustees,vestingtrustpropertiesintrusteesanddirecting
a third party to hand over possession to the trustees is
executableasadecreepassedbyaCivilCourt.
33.1. It has been held that it was necessary to frame
schemeinrespectofthetempleandframedascheme.The
JointCharityCommissioneralsopassedtheorderinthe
formofadeclarationthatthetrusteesappointedunder
theschemegetalegaltitleoverthetempleproperties
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,tocomeinforcefromthedateoftheorder.The
petitioners along with the Joint Charity Commissioner
filed Darkhast in the Court of the District Judge,
Mehsana,beingRegularDarkhastNo.1of1981,inorder
toexecutetheorderpassedbythelearnedJointCharity
Commissioner,asadecree.TheDistrictJudgedismissed
the execution application. Hence, this Special Civil
Application.
33.2. When the legislature says that the scheme framed
underSec.50AoftheActwouldhavethesameeffectas
theschemesettledbyadecreeofaCourtunderSec.50
of the Act, it clearly means and intends to treat the
schemeunderSec.50AoftheActandtheschemesettled
underthedecreeofCivilCourtonequalfootinginall
respectbecausethelegislaturehasgiventheformerthe
effect of the latter and if this is so, the scheme
framedunderSec.50AoftheActforallthepurposes
is at par to a scheme settled under the decree of a
Court under Sec. 50 of the Act. In case it would not
havebeenmadetobeadecreethen,asstatedearlier,
thewholepurposeofenactingSec.50AoftheActwould
havebeendefeated.
33.3. Itisherebyorderedthatthedirectivepartofthe
schemesettledbytheJointCharityCommissionerinthe
present case is executable by the Civil Court as if a
decreeoftheCivilCourtbyvirtueoftheprovisionsof
subsec. (4) of Sec. 50A of the Act. SATYANARAYAN
MANDIRANDROKADIAHANUMANSARVAJANIKTRUST,PATANAND
ORSvs.SADHUVRAJLALLAXMIDAS,1997(3)GLR1825.
50and51SuitforrecoveryoftrustpropertyTrustees
canfilesuchsuitinexerciseoftheirownrightwithout
obtainingpermisssionoftheCharityCommissioner.
34.1. ItmayalsobepertinenttonoticethatwhileSec.
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
trustvesttofileasuitforrecoveryoftrustproperty
orprotectthepropertyinexerciseoftheirownright
without obtaining the permission of the Charity
Commissionerasforexercisingofownershipbypersonin
whomtherightoflegalownershipvest,nopermissionis
required. The bar under Sec. 80 which is subject to
otherprovisionsoftheAct,therefore,doesnotapply
toasuitofthenatureenvisagedunderSec.50,namely,
a suit by Charity Commissioner having interest in the
trust property or by the trustees for recovery of a
trustpropertyfrompersonsclaimingthesameadversely
to the trust have encroached upon it. TRUSTEES OF
HARESHWAR MAHADEV TRUST vs. TRUSTEES OF SHRI
JASVANTSINHJI AUDICHYA BRAHMAN BOARDING VIDYARTHI
BHAVAN,1998(1)GLR434.
50APowerofCharityCommissionertoframeaschemefor
the management of a public trust Charity Commissioner
empoweredtoactsuomotuoronapplicationoftwopersons
interestedinthetrustApplicationmovedbytwopersons
Ondeathofoneofthemhisheirwasallowedtojoinafter
long delay Contention that in such a case proceedings
would abate Contention negatived Held, looking to the
schemeofthesectionproceedingsunderSec.50Awouldnot
abateevenifheirsorsuccessorswerenotjoined.
35.1. TheCharityCommissioneriscrownedwithverywide
powers to check and control the irregularities,
malpractices and misconduct in the functioning of any
public trust. Also to supervise, regulate, settle a
schemeforthepropermanagementoradministrationofa
publictrust,infactinvolvedinalmosteverystepof
thefunctioningofaPublicTrust.
35.2. Section 50A infuses the Charity Commissioner with
power in addition to Sec. 50 to frame, amalgamate or
modifyanyschemeintheinterestofpropermanagement
of a public trust. This is exercised either suo motu
whenhehasreasontobelieveitisnecessarytodoso
orwhentwoormorepersonshavinginterestinapublic
trust make an application to him in writing in the
prescribed manner. This merely enables the Charity
Commissioner to initiate proceedings for settling a
schemeforthepropermanagementoradministrationofa
public trust. In the background of the setting of
various provisions, object of the Act, the Charity
Commissionerbeingclothedwithsufficientpowertodeal
withallexigencieswherepublictrustoritstrustees
strays away from its legitimate path and where the
materials are before him or placed before him by the
saidtwopersons,thentoholdabatementofproceedings
on application of any procedural laws not only would
amount to the curtailment of his power but make him
spinelessandhelplesstodoanythinginthematterof
publictrusterodingtheveryobjectoftheAct.Thisis
toorestrictiveinterpretationtobeaccepted.
35.3. IftheinterpretationsoughtbythelearnedCounsel
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
conceptofabatementunderSec.50Awouldneverarise,
speciallyinsuchasituationwhereforachievingsuch
an objective he in addition is capped with power to
initiatesuomotu.Itisnotindisputethatthesaid
twopersonshavemadeanapplicationintheprescribed
form.Theproceedinghasbeeninitiatedintermsofand
inaccordancewithSec.50A,thiscannotbesaidtobe
improperorillegal.Oncethematerialisbroughtbefore
him,hemayonthematerialsorafterinquiryorafter
giving opportunity to the person concerned or trustees
mayormaynotexercisehispowerdependingonfactsand
circumstances of each case, but his exercise of power
cannot be ousted either on the death or withdrawal of
anyoneoftheapplicants.
35.4. Hence, nonsubstitution or delayed substitution of
suchdeceasedpersonwouldmakenodifference.Inthis
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
bedefeatedontheprincipleofabatementasprovidedin
CivilProcedureCode.SAIYADMOHAMMADBAKARELEDROOS
(DEAD) BY LRS vs. ABDULHABIB HASAN ARAB, 1998 (2) GLR
1781(SC).
Sale of public trust property Permission by Charity
Commissioner for sale of trust property Paramount
consideration is whether transfer is in the interest of
publictrustPrinciplesinthisregardreiterated.
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
ofpubliccharityanditisitsboundendutytoseethat
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
transferofthepropertyhasbeenmade.Theprinciples
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
Commissionerinconsideringtheapplicationfortransfer
ofanyimmovablepropertyofthepublictrustiswhether
suchtransferisintheinterestofthepublictrustand
for its benefit, and protection. In order to satisfy
himself before the Charity Commissioner sanctions
alienationoftrustpropertyhehastoapplyhismindto
twomaterialquestions,namely,(i)whetherthereisa
compelling necessity to justify the alienation in
question and (ii) whether the proposed alienation is
fairanddoesinanywayadverselyaffecttheinterest
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,
whetheritresultsinthebestyieldtothetrustfrom
itsproperty.HASAMIBRAHIMABDULLATIFSUPEDIWALAvs.
BHAICHANDPRANLALDHONEJA,1999(3)GLR2296.
50A&73InquirybeforeaCharityCommissioner,including
a scheme proceedings is a quasijudicial proceeding.
JAYMALTHAKOREvs.CHARITYCOMMISSIONER,GUJARATSTATE,2001
(3)GLR2124.
50 and 50A Courts and Charity Commissioner's powers and
limitationswhileframingaschemeTherearewidepowers
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
appointingtrusteesbetamperedwith,andifatallitmust
begradual.
38.1. Wherenomismanagementorembezzlementisshownthe
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
existingmanagementandtheinstitutionaltrustmustbe
respectedsubjecttothesafeguardthatthesectandthe
bodyoftheworshippersforwhosebenefititwassetup
havetheprotectionoftheCourtagainsttheirproperty
beingthesubjectofabuse,speculationandwaste.
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.Atthesametimeapplyingtheprincipleslaid
downintheaforesaidauthorities,itappearsthat,the
schemeasframedbytheJointCharityCommissionerand
sanctionedbytheCityCivilCourtgoestoofarinnot
onlyproviding1/4thnumberofthetrusteesontheBoard
ofTrusteesbeingappointedoutofnonmurids,butalso
inconferringontheCharityCommissionerthepowerof
appointmentonthenewBoardofTrusteesuponexpiryof
thetermeverysixyears.Inviewofthefactthatno
allegationofmismanagementormisappropriationhasbeen
made against the existing trustees or any one of them
and that the only ground on which the nonmurids are
soughttobeinductedintotheBoardofTrusteesisthat
in the past most of the benefits were given to the
muridsonlyandinviewoftheconcessionbeingmadeby
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
appearstotheCourtthatthepowertomakeappointment
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
AFAZALBHAIKADIAWALAANDORS.vs.CHARITYCOMMISSIONER,
GUJARATSTATE,2001(CD)GLR285.
39. BombayPublicTrustsAct,1950(29of1950)Secs.50
&51Disputedplotoflandwashandedovertothetrustby
virtueofgiftdeeddedicatingthepropertyinfavourofthe
idolSuitbythirdpartytorecoverthepropertyfromthe
trustHeld,suitcouldnothavebeenfiledwithoutconsent
of the Charity Commissioner Decision of the Bombay High
Court,setaside.
39.1. When the disputed plot had already been dedicated
infavouroftheidolbyvirtueofadeedofgift,of
whichtheappellantisatrusteeandthesamewasacted
uponaspossessionalsowasdeliveredtotheappellant
Trust, it was surely necessary for the
plaintiff/respondent Nos. 1 to 7/purchaser of the suit
landandalsoincumbentuponrespondentNo.8/vendorof
the saledeed to seek permission from the Charity
Commissioner before a saledeed could be executed in
regardtothedisputedplotandmoresobeforeaCivil
Suit could be instituted. The Court therefore, finds
substanceinthecontentionoflearnedCounselforthe
appellant, that the dedication dated 3111974 of the
plotforcharitablepurposeinthenatureofgifthaving
beenacteduponasaresultofwhichthepossessionalso
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.19,20,79and80oftheBombayPublicTrustsAct,
1950.(Para13)Inviewofthepossessionoftheproperty
inquestionoftheappellantTrust,itwasobligatoryon
the part of the purchasers of the plot in
question/respondentNos.1to7toseekpermissionfrom
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
MANDIRTRUSTV.VIJAYA,2011(4)GLR3640(SC).
&50A(2)SocietiesRegistrationAct,1860(21of1860)
Sec.13MergerofFirstDistrictChurchofBrethrenwith
Church of North India A section of former objecting to
mergerHeld,mergerofareligiouspublictrustdoesnot
take effect by mere passing of resolution or by 'Change
report'Mergerofapublictrustcannotbeeffectedexcept
in accordance with provisions of Public Trusts Act and
without prior permission of Charity Commissioner A
fortiori,asthereisnolawfulmergerthereisnotransfer
ofpropertiesofF.D.C.B.toC.N.I.Further,estoppelnot
applicable even if objectors had earlier agreed to merger
otherwiseitwouldnegatefreedomofconscienceandrightto
managetheirownaffairsinmattersofreligion,guaranteed
under Arts. 25 & 26 of the Constitution Order by Civil
CourtreversingorderofCharityCommissioner,confirmed.
SHIRISHCHRISTIANV.MAGANLALMANGALDASGAMEET,2012(2)GLR
1629.
Section55:
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. Everyaccumulationofincome ofatrustisnot by
itselfa'surplus'towhichthedoctrineofcypreswould
apply.Wheneverthequestionarisewhetheraparticular
accumulation becomes a surplus within the meaning of
Sec.55oftheBombayPublicTrustsAct,ornot,ithas
gottobeansweredonlywithreferencetopeculiarfacts
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
visualizedtoday.Itmayhappenthatthebalancefound
inaparticularyearcannotbeusefullyutilisedduring
thecourseofthatyearfortheobjectsofthetrustfor
varietyofreasons,butthesaidbalancewouldbewiped
out on account of some unforeseeable possibilities,
which the trust affairs would have to encounter in
future.Itisforthisreasonthatiftheaccumulation
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
cypreswouldapply.Incasesoffluctuatingincomeand
expenditureofapublictrust,atemporarysurpluswould
often come into existence. Such a temporary surplus
would prima facie not be the surplus, to which cypres
principlewouldapply.1972GLR447.
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
meaningofSec.55oftheBombayPublicTrustsActhas
becomeanaccumulatedincomeornotistobedecidedon
thefactsofeachcase.Intheinstantcase,thereisno
evidence to show that any surplus balance was
capitalized or that a Reserve Fund was constituted to
meetanyfurthercontingencies.Therefore,thereareno
indicationstoshowthatthesurplusbalanceoranypart
thereof as contemplated by Sec. 55 has been converted
into accumulated income. ANARDAN KASHINATH KARULKAR
vs.CHARITYCOMMISSIONER,GUJARATSTATE,1973GLR724.
55and56AIndianTrustAct,1882Sec.34Closingdown
ordiscontinuingtheactivitiesofapublictrustRights
of a trustee and a beneficiary to move the Court or the
CharityCommissionertoseekdirections.
43.1. If thetrusteesfail ordisclaim tocarryoutthe
lawfuldirectionsofthesettlement,itwouldamountto
abreachoftrustandanypersonhavinginterestinthe
trust has a right to approach the competent authority
for appointment of new trustees or for appropriate
directionsasthenatureofthecasemayrequire.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
jurisdictionfortheopinion,adviceordirectionofthe
Court on any question affecting the management or
administrationofthetrustpropertyorincomethereof.
Thisisapowercoupledwiththedutythatincaseof
any difficulty in the management or administration of
thetrust,atrusteemayseektheopinionoradviceof
theCourt.Similarly,underSec.55oftheBombayPublic
TrustsAct,thetrusteesmayunderthedirectionsofthe
CharityCommissioner,obtainappropriatedirectionsfrom
the Court of competent jurisdiction, if it is not
practicable to carry out wholly or partially the
originalintentionoftheauthorofthepublictrust.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
thetrusteesfailtoobeythelawfuldirectionsofthe
settlementwithoutobtainingappropriatedirectionsfrom
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
jurisdictiontoexerciseitsextraordinaryjurisdiction
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)GLR910.
Section56A:
36,56Aand80Grantingofsanctiontosellpropertyetc.
withintheexclusivejurisdictionofCharityCommissioner
Court can give direction only in matter to effectuate the
saleCivilCourthasnojurisdictiontograntsanctionto
anysaleunderSec.56A.
44.1. TheneateffectofSec.36andSec.56Areadwith
Sec. 80 of the Bombay Public Trusts Act is that the
powerofgrantingsanctiontoanytransactionofsale,
mortgageorexchangeorgiftofanyimmovableproperty
is within the exclusive competence of the Charity
Commissioner and beyond the competence of Civil Court.
The District Judge exceeded his jurisdiction after
havingissuedthedirectionsinvestingthetrusteeswho
were applicants before him the power to sale the
propertywhenheproceededtoaccordthesanctiontothe
sale in question that power of according sanction is
with the Charity Commissioner and by virtue of the
provisioncontainedinSec.80theCivilCourtcouldnot
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,
1979GLR635.
56ACivilCourt'sjurisdictiontakenawayunderSec.80
However,thisissubjecttocontraryprovisionsaslaiddown
inSec.56ASec.80willnotbeattractedinproceedings
initiatedunderSec.56A.
45.1. The District Court is no doubt a Civil Court and
under Sec. 80 of the Bombay Public Trusts Act its
jurisdictiontodecideordealwithanyquestionwhich
isbyanyofficerorauthorityunderthisActistaken
away. But this is subject to contrary the provisions
containedintheAct.Inotherwords,ifSec.56ofthe
Actitselfotherwiseprovides,thebarcontainedinSec.
80 would not be attracted. So, if under Sec. 56A the
District Court has got jurisdiction to issue any
directioninrespectoftheadministrationormanagement
ofthetrustproperties.Section80willnotbeableto
stepintothepicture.ThisisaspecialActcontaining
special provisions and special provisions are given a
placetomeetspecialrequirementsandcontingencies.So
thebarcontainedisSec.80willnotbeattractedwhen
anyproceedingsareinitiatedunderSec.56AoftheAct.
MAGANBHAI MADHABHAI vs. AMBALAL BHIKHABHAI PATEL,
1982(1)GLR746.
Section56B:
56B Suit or proceeding to enforce mortgage Whether
coveredbySec.56B.
46.1. A suit to enforce a mortgage or a proceeding to
enforceamortgagedecreeagainstpropertybelongingto
apublictrustisnotasuitorproceedinginwhicha
question affecting a public, religious or charitable
purposeisinvolvedand,therefore,itisnotobligatory
upon the Court to issue notice to the Charity
CommissionerunderSec.56BoftheBombayPublicTrusts
Act. TRIBHOVANDAS PURSHOTTAMDAS THAKKAR vs. RATILAL
MOTILALPATEL,1968GLR212(SC)(FB).
Section80:
IndianTrustsAct,1882Sec.32PrincipleofIndian
TrustsActtoapplyifnotinconsistentTrusteesentitled
toreimbursementAllegationofbreachoftrustQuestion
whether a particular person is a trustee Whether
jurisdictionofCivilCourtbarredunderSec.80Whether
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.32oftheIndianTrustsAct,1882,canbefollowed
in so far as it embodies the principles and rules of
English Law and practice on the subject which are not
showntobeinconsistentwiththerulesandpracticeof
the Courts in India. Applying Sec. 32 of the Indian
TrustsAct,thetrusteeisentitledtobereimbursedout
ofthetrustpropertyallexpensesproperlyincurredin
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
factthathewasatrustee.Thisquestioncannotbesaid
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
thefamiliesofthehereditarytrustees,thiscannotbe
said to be an improper order. BAPALAL GODADBHAI
KOTHARIvs.CHARITYCOMMISSIONER,GUJARAT,1966GLR825.
18,19and80Sec.80barsthejurisdictionoftheCivil
CourtinrespectofquestionswhichbyorundertheActare
tobedecidedbyanyofficerorauthorityundertheActand
inrespectofwhichthedecisionororderofsuchofficeror
authority is made final and conclusive under the Act
Questionastowhatarethesourcesofincomeofapublic
trustbeingoneofthequestionswhichunderSec.19ofthe
Act is required to be decided by the Assistant or Deputy
CharityCommissioner,cannotbedecidedordealtwithbya
CivilCourt.CHARITYCOMMISSIONER,AHMEDABADvs.STATEOF
BOMBAY(NOWTHESTATEOFGUJARAT),1993(1)GLH94.
18,19,21,79and80Questionwhetherparticularproperty
is of a public trust Once the finding reached by the
authoritiesundertheActinthisregardhadbecomefinal,
theauthoritiescannotberequiredtodecidethisquestion
againandagainSuitbytrusteesofonetrustprayingfor
removalofencroachmentoveritspropertiesbyanothertrust
PropertyinquestionshowninthePublicTrustsRegister
asbelongingtoplaintifftrustContentionbydefendant
trustthatsinceitdeniedtitleofplaintiffquestionhad
to be determined by authorities under the Act and Civil
Court'sjurisdictionwasbarredContentionnegatived.
49.1. Onceaquestionhasarisenabouttheexistenceofa
trustandanyparticularpropertybelongingtoitduring
enquiryunderSec.19oftheActandfindingshavebeen
reachedbytheDeputy/AssistantCharityCommissioneror
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
applicationmadeinthatregardortotheHighCourtin
appeal. It is not envisaged that once such final and
conclusive finding is reached in respect of the fact
whetherinparticularpropertyisthepropertyofsuch
trust or not, it is again to be enquired every time
anybody raises a question about the ownership. If the
questionwhetherornotaparticularpropertybelongsto
aparticularpublictrustwhichisapublictrustornot
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
authorityifthatfindinghasbecomefinal,itbecomes
final and conclusive effectively shutting out any
enquiryinfutureanditisnotenvisagedthatoncesuch
final and conclusive finding has been reached by the
competentauthority,subsequentlyifanyproceedingsare
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
jurisdictionoftheCivilCourttoentertainthesuit,
andtheauthoritiesundertheBombayPublicTrustsAct
shall be required to decide the question once over
again.Thatwillbeverynegationofthedeclarationof
finality and conclusiveness of the findings earlier
recorded when such question had arisen. The Court,
therefore,doesnotfindanysubstanceinthecontention
of the learned Counsel for the appellant that since
defendantappellantsinthepresentcasehaveraisedthe
questionaboutthetitleoftheplaintiffdemandingan
enquiry into whether the property in question is the
propertyofthetrust,jurisdictionofthecivilCourt
toenquireintothatquestionisbarredwithreference
toSec.79readwithSec.80.
49.2. Under the scheme of the Act, question whether a
particularpropertyisapropertyofatrustisraised
atthetimewhenitistobeenquiredintobytheDeputy
CharityCommissionerorAssistantCharityCommissioner,
including the question whether such trust exists and
such trust is a public trust when application for
registrationismade.Questionhavingbeenraisedbefore
itfordeterminationanddeterminationhavingbeenmade
after holding enquiry, the findings reached in such
proceedingsbecomefinalandconclusiveintermsofSec.
79 and no subsequent enquiry into the same question
again is envisaged merely because subsequent to such
findingagainthesamequestionisraised.Itisonlyto
obviate necessity to recurrent enquiries into this
questionthefinalityandconclusivenessisattachedto
the finding reached by the Deputy/Assistant Charity
Commissionerorotherhigherauthority,asthecasemay
be in appropriate proceedings, by declaring such
proceedingstobefinalandconclusivedebarringallsub
sequentenquiriesbysuchofficersandthejurisdiction
of civil Court too is barred to enquire into such
question and the finding recorded by the competent
authorityundertheprovisionsofSec.19or79asthe
casemaybe,onthequestionofanyparticularproperty
belongingtoanyparticulartrust,exceptinaccordance
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
contrarytofindingforthepurposeoffrustratingthe
reliefsfoundedonsuchfinalityandconclusiveness,and
intheprocessnullifytheverypurposeandpurportof
theprovisions.
49.3. The plaintiff had pleaded that the property in
questionisenteredaspropertyoftheplaintifftrust
in the register under the Act. In the face of these
averments,inviewoftheprovisionsofSecs.21and79
of the Act, under which finality is attached to such
facts further trial of the issue was not envisaged on
thepleadingsofplaint.Iftheplaintifffailstoprove
suchaverments,hissuitmightfail,butjurisdictionof
civilCourtwillnotbeoustedatinceptionanditwill
depend on enquiry whether such entry about trust
property exist under the provision of Bombay Public
TrustsAct.
49.4. In the present case, it is not disputed that
property covered by the grant had been found to be
belongingtothepublictrustplaintiffinthepresent
caseandanentrytothateffecthasbeenmadeinthe
registerofpublictrustunderSec.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
entrymadeintheregisterandthefindingsrecordedin
thatproceedingsrelatetothepropertyinquestionor
identifiablewiththepropertyinquestion,enquiryinto
such question by the Civil Court if occasion for such
identification arises. TRUSTEES OF HARESHWAR MAHADEV
TRUST vs. TRUSTEES OF SHRI JASVANTSINHJI AUDICHYA
BRAHMANBOARDINGVIDYARTHIBHAVAN,1998(1)GLR434.
50. Bombay Public Trust Act, 1950 Secs. 79 and 80
SocietiesRegistrationAct,1860Sec.13Registrationas
SocietyandsubsequentlyasPublicTrustunderrelevantActs
DissolutionofSocietyunderSocietiesActcontendedtobe
dissolutionofTrustalsoAutomaticdissolutionofTrust
notacceptedFordissolutionatTrust,theprovisionsqua
dissolutionundertheActneedtobemetbyDecisiontobe
arrivedatbyCharityCommissioner,andhence,suitinCivil
CourtnotmaintainableCivilCourtwithoutjurisdictionto
decidethedissolutionofTrust.AMBALALOKARLALPATELvs.
FILOMANPATHUBHAIPATEL,2003(3)GLH306.
Section37&68:
37(1)(a) and 68(e) Charity Commissioner has no power to
giveinspectionofbooksofaccountstoathirdpartyunder
Sec.37However,suchpowercanbegivenunderSec.68
PowersunderSec.68(e)canbeexercisedforthepurposesof
advancingoreffectuatingthepurposesoftheAct.QUAZI
REZIUDDIN BADRUDDIN vs. MAHMAD AMIN HAJI ABDULKADER, 1968
GLR93.
Sections19,22&22A:
22AWheninquirycanbemadeunderSec.22AIfproperty
already registered as a public trust property no fresh
inquirycanbemadeinrelationthereto.
52.1. Section22AoftheBombayPublicTrustsActapplies
to cases where any particular relating to any public
trust was not the subject matter of the inquiry under
Sec.19,orsubsec.(3)ofSec.22,asthecasemaybe,
and in respect of which an inquiry is required to be
made. It is only in such cases that Sec. 22A empowers
theDeputyCharityCommissionertomakefurtherinquiry
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
occurrenceofachangeandaninquirytobeinstituted
inordertodeterminethefactsrelatingtochangeand
thentocausethenecessaryamendmenttobemadeinthe
public trust register pursuant to the finding recorded
inrelationtoachange.Sec.22doesnotcontemplatean
inquiry to be made by the Deputy Charity Commissioner
for bringing about a change. SHUKLA RAMANUJACHARYA
GOVINDACHARYAvs.NNSHAH,1972GLR493.
19and22AEntrymadebyCharityCommissionerunderSec.
19isconclusiveunlessdeletedbySec.22APropertyof
the trust validly sold after permission of the Charity
CommissionerunderSec.36andsuchentryexistinginpublic
recordcannotbechallenged.
53.1. It is settled view that once a finding about a
particular property being the property of the public
trustisreachedandanentryismadepursuantthereto
intheregisterkeptunderSec.19oftheBombayPublic
TrustsAct,thesaidentrybecomesconclusive,unlessit
isvariedbythesubsequentorderunderSec.22Aofthe
Act.Heldthatintheinstantcase,thefindingstands
that the property was the property of the trustees of
the trust, the predecessorintitle of the plaintiff,
andthatthosetrusteeshadvalidlysoldthatproperty
to the plaintiff as per the saledeed and as the said
saledeed had been effected by the trustees after
seekingtheCharityCommissioner'spermissionunderSec.
36oftheAct,thesaidsaledeedwasabsolutelyvalid
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
VRAJLALSHAH,1982(2)GLR805.
19(ii),21,22,68(b),69(b)and80Ousterofjurisdiction
ofCivilCourtstodecideordealwiththosequestionswhich
arerequiredtobedecidedordealtwithbytheDeputyor
AssistantCharityCommissionerundertheAct.
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
provisionsalsogotoshowthatthejurisdictionofthe
Civil Court to entertain that question is barred. In
view of this, it is clear that the Civil Court cannot
enterintoanddecidethequestionwhetheraparticular
propertyisthepropertyofapublictrustornot.That
was the main question raised, in the present suit and
theappealbeforetheDistrictCourt.Itisclearthat
neither the trial Court nor the first appellate Court
couldhavedecidedthequestionoftitlebecause,onone
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,
whileontheotherhanditisthesayofthedefendants
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
noticesarerequiredtobeissuedtothepublicduring
theinquiryproceedingsunderSec.19oftheAct.This
courtheldintheabovecasethatitwasnotnecessary
to issue any such notice to the public. It is held
therein that the rights of persons having an interest
arenotprejudicedasasuitableremedyisprovidedby
other provisions of the Act. It is held therein that
even after inquiry under Sec. 19 has concluded and
entriesaremadeintheregisterunderSec.21orSec.
22, it is open to the Deputy or Assistant Charity
Commissionertoholdafurtherinquiryifitappearsto
him that any particular relating to any public trust
which was not the subject matter of the inquiry under
Sec.19orsubsec.(3)ofSec.22hasremainedtobe
inquiredinto.SHERASIYASAJIALAVADIMOMINvs.STATE
OFGUJARAT,1985GLR(1)513.
19,21,22,22A,79and80Inaninquirycontemplated
under Sec. 19 of the Act, the Authority specified therein
hastomakeinquirywhetheranypropertyisthepropertyof
publictrustorofanyprivateindividualifanysuchclaim
ismade.VILESHKUMARSHANTILALACHARYAvs.DHANSUKHLALJ
GAJJAR,1985GLH889.
Whereachangeintheofficeofatrusteeisallegedto
havetakenplaceonthestrengthofanelection,theAsst.
orDy.CharityCommissionerhasjurisdiction,whiledeciding
thechangereport,todecidewhethertheelectionitselfis
validornotNoticetotheconcernedpartiesisnecessary.
56.1. On the analysis of these relevant provisions,
according to the scheme of the Act and the decisions
whichhavebeenreliedupon,thisCourtfindsthatthe
Bombay Public Trusts Act is a complete Code and prima
facie the jurisdiction of the civil Court is barred
underSec.80oftheBombayPublicTrustsActandashas
beenheldinthecaseofShantilalKhimchand,(1962GLR
117)thevalidityoftheappointmentsmadetotheTrust
couldbegoneintoonthebasisoftheprovisionswhich
areparimateriaoridenticaland,therefore,itcannot
be said that merely because in the instant case, the
appointment of the Trustees was by election, the
validityoftheelectioncouldnotbegoneintobythe
AssistantCharityCommissionerandaccordinglyTheCourt
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
electionsforthepurposeofeffectingthechangesoas
tomaketheentriesinthePublicTrustRegister.
56.2. The requirement of such notice is inherent by the
very nature of the proceedings which are undertaken
underSec.22.Whenorderstotheprejudiceofaparty
ispassed,suchpartymayalwayshaveagenuinefeeling
thattheordertohisprejudicehasbeenpassedathis
backandwithouthearinghimandsuchcourseofaction
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
electedcandidatescannotbeeventouchedtangentially,
unlessthepartyconcernedisputtoaformalnoticeto
comeanddefendhiselection.SWAMISATYAPRAKASHDASJI
GURU GHANSHYAM PRASAD SWAMI vs. JOINT CHARITY
COMMISSIONER,RAJKOT,2000(2)GLR1450.
22,64and65TheDeputyorAssistantCharityCommissioner
canholdaninquiryforamatterfallingunderSec.22with
theaidofassessorsWherethelistofassessorshason
the expiry of time become obsolete, and the Deputy or
AssistantCharityCommissionerfeelsthattheinquiryshould
beconductedatanearlydate,hemustfollowtheprovisions
ofSec.65(4)oftheActNoothercourseispermissible.
57.1. SinceinquiryisunderSec.22readwithprovisions
of Sec. 64 of the Act, it has to be conducted by the
Deputy Charity Commissioner, Assistant Charity
Commissioner,asthecasemaybe,inaccordancewiththe
provisionsoftheBombayPublicTrustsRulesbytaking
assistanceofassessors.
57.2. In the facts and circumstances, the contention
raisedbylearnedCounselforrespondentNo.1iswell
foundedthatthereisnoprovisionseitherintheActor
in the Rules permitting parties to submit a list of
assessorsfromwhichassessorscanbeappointedbythe
AssistantCharityCommissioner.Suchaction,therefore,
could not have been taken by the Assistant Charity
Commissioner.Atthesametime,however,theprovisoto
subsec.(4)ofSec.65mustalsobekeptinmind.It
enablestheDeputyorAssistantCharityCommissionerto
hold inquiry if he is satisfied for sufficient and
adequate reasons to be recorded that the inquiry need
notbedelayedandthatassoonasinquiryiscompleted,
hereportstotheCharityCommissioner.Therefore,such
course can be adopted by the Assistant Charity
Commissionerifthecaseinhisopinionfallsunderthe
provisotoSec.65(4).SHAHSEVANTILALDALSUKHRAMAND
ANR. vs. PATEL MITHABHAI TRIBHOVANDAS, 2000 (2) GLR
1682.
22and73CivilProcedureCode,1908(Vof1908)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
evidenceoffactsbyaffidavitDeputyCharityCommissioner
allowed evidence by affidavit subject to crossexamination
ofdeponentChallengetothismodeofrecordingevidence
Petitiondismissedwithcosts.
58.1. OnconjointreadingofSec.73oftheActreadwith
Rule 7 of the Rules, it transpires that the proof of
factsbyaffidavitisnotunknowntotheprocedurefor
holding inquiry and secondly for examination of any
witnessonoaththeofficerwillhavethesamepoweras
are vested with the Civil Court under Civil Procedure
Code.Order18Rule4(afteramendmentwitheffectfrom
172002) inter alia provides for examinationinchief
of a witness by affidavit, and therefore, it can
reasonablybeconstruedthattheC.P.C.mutatismutandis
wouldapplyforgivingeffecttotheprovisionsofSec.
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.forcomplianceoftheprocedureprescribedunder
theprovisionsofRule4ofOrder18.Inanycase,even
no rule can be allowed to operate on the face of any
statutory provisions under Sec. 73. NITYANAND M.
THAKOREvs.CHARITYCOMMISSIONER,2004(2)GLR971.
59. Bombay Public Trust Act, 1950 Secs. 22 & 72
Churches dissolved and united into one Church Finding
givenbyHighCourtthatFirstDistrictChurchofBrethren
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
MATHURSEVAMALVIAV.MAGANLALMANGALDASGAMETI,2006(9)SCC
282.
60. Constitution of India, 1950 Arts. 25 & 26 Bombay
PublicTrustsAct,1950(29of1950)Secs.22&50A(2)
SocietiesRegistrationAct,1860(21of1860)Sec.13
MergerofFirstDistrictChurchofBrethrenwithChurchof
North India A section of former objecting to merger
Held, merger of a religious public trust does not take
effectbymerepassingofresolutionorby'Changereport'
Merger of a public trust cannot be effected except in
accordancewithprovisionsofPublicTrustsActandwithout
prior permission of Charity Commissioner A fortiori, as
thereisnolawfulmergerthereisnotransferofproperties
of F.D.C.B. to C.N.I. Further, estoppel not applicable
evenifobjectorshadearlieragreedtomergerotherwiseit
wouldnegatefreedomofconscienceandrighttomanagetheir
ownaffairsinmattersofreligion,guaranteedunderArts.
25&26oftheConstitutionOrderbyCivilCourtreversing
order of Charity Commissioner, confirmed. SHIRISH
CHRISTIANV.MAGANLALMANGALDASGAMEET,2012(2)GLR1629.
Distinction between religious trust and public charitable

trust
61. BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL
ACT,1947(LVIIOF1947)Sec.13(1)(g)CivilProcedure
Code,1908Sec.92BombayPublicTrustsAct,1950Sec.
2(13) Distinction between religious trust and public
charitabletrustSecondpartofSec.13(1)(g)oftheRent
ControlActappliestoapubliccharitabletrustTrustees
of public trust of a religious nature not entitled to
maintainasuitunderthatsection.
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
maintainedbetweenaPublictrustofareligiousnature
andaPublicTrustofacharitablenature.EveryPublic
TrustisnotnecessarilyaTrustforPublicCharitable
purpose. Out of these two kinds of Trusts, viz. Trust
forapublicreligiousnatureandaTrustforapublic
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
trusteesofaPublicReligiousTrustcannotmaintaina
suitunderSec.13(1)(g)secondpart.Itisnotopento
thetrusteesofapublicreligioustrusttomaintainthe
suitunderSec.13(1)(g),secondparts.Similarlyitis
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
distinguishedfromthecharitablepurposeofthetrust.
SHASHTRI SADHU ANANDPRIYADASJI GURU SHRI
MUKTAJIVANDASJI vs. PATEL ATMARAM REVANDAS, 1973 GLR
917.
2(13)PublicTrustAclauseinWillprovidingmoneyto
UniversityforScholarshiptostudentsandtoBrahminSamaj
forcremationofpersonsofcertainsectBeneficiariesof
these bequests are incapable of ascertainment Such
provision, therefore, amounts to creating "Public Trust"
withinthemeaningofSec.2(13)oftheAct.MSUNIVERSITY
OFBARODAvs.SITARAMBHANUMAHARAJSHIRGARKAR,1980(2)GLR
544.
2(9),(13)and18MathConstructedfromafamilyfunds,
formed small area of family property and located within
residentialarea,peoplevisiteditonspecialoccasions
Mathisaprivatetrust.
63.1. On the basis of the circumstances and the law on
thesubjectithastobeheldthatLaxmanMaharajMath
alsocalledRamjiMandiristheprivatepropertyofthe
family and it is not a public trust. Evidence stands
unchallengedandfurthermorethereisnoevidencetothe
contrarytoshowthattheSamadhisandtheMandirwere
built by the public or from out of public funds. Once
materialsarefoundtowarrantaconclusionthataMath
or Mandir was private in character at the time of its
origin,thenunlessthereisclearanddefiniteevidence
to show that there had later been a dedication of the
institution for the use of the public, the private
characterofinstitutionwillnotgeteffaced.Evenif
atsomesubsequentpointoftime,theownersoftheMath
had permitted the members of the public to visit the
Math and worship at the Mandir it will only mean that
themembersofthepublicwouldhavevisitedtheMandir
asinviteesandnothingmore.Onceofthecrucialtests
fordeterminingwhetheratempleisintendedforprivate
worship or public worship is to find out whether the
temple has been constructed within the precincts of
residentialquartersorinaseparatebuilding.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
anditsproportiontotheentireextentoftheproperty.
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,obviousthattheMathoccupiesonlyasmall
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
wouldnotbethecaseiftheMathorMandirwasapublic
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
necessityforconstructingalargeSabhaMandapmayhave
arisensubsequentlyduetotheincreaseinthenumberof
the members of the family and also for conveniently
givingDharmopdeshandreligiouslecturestoinviteesas
the appellant and his ancestors were earning their
livelihood by such religious activities. Even the
provision of the collection boxes for cash and grains
cannotbyitselfbeadecisivefactortoconcludethat
theMathisapublicmath.Thecollectionboxeshadbeen
installed in the Sabha Mandap as well as near the
Samadhis.TheobservationsmadebytheSurveyorthatthe
Mandir seemed to be a public trust do not carry any
weightbecausetheSurveyoroflandisnotacompetent
authoritytodeterminewhetheratempleisapublicor
privateoneandsecondlyhehasonlygivenexpressionto
his surmise and that too in a very guarded manner.
HARIBHANU MAHARAJ OF BARODA vs. CHARITY COMMISSIONER,
AHMEDABAD,AIR1986SC2139.
2(13)and2(17)Teststobeappliedandprinciplestobe
borneinmindwhiledecidingthequestionwhetheratemple
isapubliconeoraprivateoneTestsenumeratedbythe
Court The Court on evidence held that the Charity
Commissioner and the High Court were right in deciding in
favouroftherebeingapublictempleandtheDistrictCourt
erred in reaching the conclusion that there was no public
temple True the onus is on the Charity Commissioner to
establishthatthetempleisapublicone.
64.1. Itistoberememberedthatatrustinthesensein
whichtheexpressionisusedisEnglishLawisunknown
intheHindusystem,pureandsimple.Hindupietyfound
expressioningiftstoidolsandimagesconsecratedand
installed in temple, to religious institution of every
kindandforallpurposesconsideredmeritoriousinthe
Hindusocialandreligioussystem.UndertheHinduLaw
theimageofadeityoftheHindupantheonis,ashas
beenaptlycalled,a'juristicentity',vestedwiththe
capacity of receiving gifts and holding property. The
Hindu law recognises dedications for the establishment
oftheimageofadeityandformaintenanceandworship
thereof.Thepropertysodedicatedtoapiouspurposeis
placed extracommercium and is entitled to special
protectionatthehandsoftheSovereignwhosedutyit
isintervenetopreventfraudandwasteindealingwith
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
dedicatedittothepublicifitisfoundthathehad
heldoutthetempletobeapublicone.Intheabsence
ofwrittengrant,thequestionwhetheranendowmentbya
private individual is a public endowment or a private
oneisamixedquestionoffactandlawandthescopeof
dedication must be determined on the application of
legalconceptsofapublicandprivateendowmenttothe
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
consideredintheirhistoricalsettingviz.,theorigin
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
consistsinitsbeingdedicatedtothepublicandinthe
absence of any document creating the endowment, long
useristhematerialfactorfromwhichaninferenceof
dedicationmayarise.Thedistinctionbetweenaprivate
andpublicendowmentisthatwhereasintheformerthe
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
Lawin424atpp.544545inthesewords.Whenproperty
isdedicatedfortheworshipofafamilyidol,itisa
privateandnotapublicendowment,asthememberswho
areentitledtoworshipattheshrineofthedeitycan
only be the members of the family i.e. an ascertained
group of individuals. But where the beneficiaries are
notthemembersofafamilyorspecifiedindividualsbut
thepublicatlargeofaspecifiedportionthereof,then
theendowmentcanonlyberegardedaspublicintendedto
benefit the general body of worshippers. It was then
laiddownthattheparticipationofthemembersofthe
public in the Darshan in the temple and in the daily
acts of worship or in the celebrations of festival
occasionswouldbeaverystrongfactorindetermining
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,
therewaspositiveevidenceshowingthattheentirecost
ofconstructionwasmetfromthepublicexchequeri.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
appearsfromtherecord,apparentlyasamatterofright
without any let or hindrance on the part of the
appellants or his predecessors. (3) The Hindu
worshippersatthetemplesingeneralandmembersofthe
Vaishnava sects in particular made cash offerings or
bhentsintobegolakkeptatShriDwarkadhishjiMandir
orHaveliwhichwasundertheexclusivecontrolofthe
membersoftheVaishnavasectandtheremittancefromit
usedtobemadetoGoswamiMaharaj,AcharyaofVaishnav
sect at Ahmedabad. (4) The public records showed that
thetemplesstandrecordedinthenamesofthedeities,
the appellants and his predecessors shown as mere
Vahivatdars. It was an undisputed fact that separate
accountsbeingmaintainedinrespectoftheincomeand
expenditure of the temples i.e. the cash offerings,
giftsofornamentsetc.werenotintermingledwiththe
moniesbelongingtotheappellantorthemembersofthe
royal family and the incomes from the temples were
utilisedfortheirupkeepandmaintenanceandalsofor
acquisition of properties attached to the temples. (5)
The State used to keep apart a share of vaje i.e.
Darbar'sshareofthecropsgrownbythecultivatorsand
alsousedtoimposeandcollect"tola",acessfromthe
cultivators for the upkeep and maintenance of the
temple. All these circumstances clearly support the
findingreachedbytheCharityCommissionerandtheHigh
Courtthatthetempleswerepublictemplesandtherefore
publictrustswithinthemeaningofSec.2(17)readwith
Sec. 2(13) of the Bombay Public Trusts Act, 1950.
PRATAPSINHJI N DESAI vs. DEPUTY CHARITY COMMISSIONER
GUJARAT,1987(2)GLR1206(SC).
2(13)and2(17)PublictempleandprivatetempleTests
to distinguish one from the other Where members of the
public offer worship as of right and not by leave and
licence,itconnotesapublictempleAprivatetemplemay
bylongpracticeloseitscharacterasaprivatetempleand
maybecomeapublictempleHeldonfacts,thetemplehas
lostitscharacterasaprivatetemple.
65.1. The following features and characteristics bear
materialroleindetermininganddecidingthenatureand
characterofthedisputedtemple:
(1)Historyandoriginofthetemple;
(2)Intentionofthesettler;
(3)Dedicationtothedeityortothepublic;
(4)Evidencetoshowdedicationfortheuseofpublicinthe
courseoftime;
(5)Publicvisitingthedisputedtempleasbeneficiariesor
asworshipers;
(6)Sourceoffundsforconstructionofthetemple;
(7) Source of funds for maintenance and upkeep of the
temple;
(8) Collection box for cash, grains etc. (9) Location of
temple;
(10)Extensivenessoftempleandgranttoit;
(11)Feedingintempleandcelebrationoffestivals;
(12)Vestingofcontrolandmanagementofthetemple;
(13)ModeofsuccessionoftheTrustees;
(14) Conscience of the management and the conscience of
devoteesthemselvesastothedevelopmentofthetemple;
(15)Contributionofthepublicforthemaintenanceofthe
temple.Oneofthemainteststodecidethenatureofthe
trust, either private or public, is the enjoyment of the
templeforworshipanddarshan,asofright.Itissettled
propositionoflawthatwhenthetempleinquestionisused
bythepublic,asofrightforalongperiod,itwouldbea
pointerandindicationsuggestingthecharacterofapublic
temple.Itwouldalsogotoshowthattheintentionofthe
founderwastodevotethepropertytopublicpurposesbya
religiousorcharitablenature.Therefore,thelonguserby
thepublic,asofright,wouldgotoshowthatthenatureof
thedisputedtempleispublicandnotprivate.Theessence
ofapublicendowmentconsistsinitsbeingdedicatedtothe
public and in the absence of any document creating the
endowment, long user is the material factor from which an
inferenceofdedicationmayarise.Thedistinctionbetweena
privateandpublicendowmentisthat,whereasintheformer
the beneficiaries are specific individuals, in the latter
theyarethegeneralpublicoraclassthereof.MANEKLAL
SAKARCHAND ZAVERI (SINCE DECD) BY HIS HEIRS AND LRS MRS
URVASHIBEN JAWAHARLAL ZAVERI vs. THE ASSISTANT CHARITY
COMMISSIONER,SURATVIBHAG,1991(1)GLR454.
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
religiousendowmentsarenottheidolsbuttheworshippers
Viewedinthatlightofthepropertyisdedicatedforthe
worshipofafamilyidol,itisaprivateendowment,persons
entitledtoworshiparemembersofthefamilywhichisan
ascertained group of individuals When beneficiaries are
not members of a family or specified individuals, the
endowmentcanonlybyregardedaspublicintendedtobenefit
the general body of worshippers. CHARITY COMMISSIONER,
GUJARATSTATEvs.BALASHANKERMAHASHANKERBHATTJI,1992(2)
GLH596.
2(13)and2(17)DifferencebetweenaPrivateTrustanda
Public Trust Tests for deciding what is Public Trust
Temple Dedication of properties by the Rulers and the
StateLargenumberofdevoteesStatementsmadeinold
recordsIndicativeofaPublictempleManagementinthe
handsofafamilynotdecisiveofthematter.
67.1. A place in order to be a temple, must be a place
forpublicreligiousworshipusedassuchplaceandmust
be either dedicated to the Community at large or any
sectionthereofasaplaceofpublicreligiousworship.
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
theyareindeterminateorfluctuatinggeneralpublicor
aclassthereof.Burdenofproofwouldmeanthataparty
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
contestedissue.Thequestionofonusismaterialonly
wherethepartyonwhichitisplacedwouldeventually
loseifhefailedtodischargethesame.Where,however,
parties jointed the issue, led evidence, such evidence
can be weighed in order to determine the issue. The
questionofburdenbecomesacademic.
67.2. An idol is a juristic person capable of holding
property.Thepropertyendowedtoitvestsinitbutthe
idol has no beneficial interest in the endowment. The
beneficiaries are the worshippers. Dedication may be
madeorallyorcanbeinferredfromtheconductorfrom
agivensetoffactsandcircumstances.Thereneednot
beadocumenttoevidencededicationtothepublic.The
consciousness of the manager of the temple or the
devoteesastothepubliccharacterofthetemple;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
diversecircumstances.Thoughthemanagementofatemple
by the members of the family for a long time, is a
factor in favour of the view that the temple is a
privatetempleitisnotconclusive.Itrequirestobe
considered i n the light of other facts or
circumstances. Internal management of the temple is a
modeoforderlydisciplineorthedevoteesareallowed
toenterintothetempletoworshipatparticulartime
oraftersomedurationoraftertheheadmanleavesthe
templearenotconclusive.Thenatureofthetempleand
itslocationarealsorelevantfacts.Therightofthe
public to worship in the temple is a matter of
inference.
67.3. ThefixedcashgrantsgivenbytheRulersScindias
andthesuccessorBritishemperors,thelargeendowment
oflandsgiventoKalikaMatajitemplebythedevotees
do indicate that the temple was treated as public
temple.Theappropriationoftheincomeandtheinterse
disputes in that behalf are selfserving evidence
withoutanyprobativevalue.Admittedly,atnopointof
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
Gazetteandthehistoricalevidenceofthetemplewould
show that the village is the pilgrimage centre.
Situation of the temples on the top of the hill away
fromthevillageandworshippedbythepeopleofHindus
at large congregated in thousands without any let or
hindrance and as of right, devotees are giving their
offeringsinlargesumsindischargeoftheirvows,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
inferencewouldbedrawnthatthetemplewasdedicated
to the Hindu public or section thereof and the public
treatthetempleaspublictempleandworshipthereatas
ofright.Itistruethatthereisevidenceonrecordto
show that there was a board with inscription thereon
that"Noentrywithoutpermission"andthatonlyDarshan
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.
Enjoymentofthepropertiesandnoninterferencebythe
publicinthemanagementarenotsufficienttoconclude
thatthetempleisaprivatetemple.BALASHANKARMAHA
SHANKAR BHATTJEE AND ORS vs. CHARITY COMMISSIONER,
GUJARATSTATE,1995(1)GLR711(SC).
ManagerandTrusteeSection8:
8(2)ManagerandTrusteearedifferentcategoriesOncea
managerclaimsadversetitleheforfeitshisrighttobethe
managerBeneficiariesentitledtofileasuitforremoval
ofsuchtrusteeandrecoveringproperty.
68.1. Thedefinitionoftheexpression'manager'givenin
subsec.(8)ofSec.2oftheBombayPublicTrustsAct,
1950makesitclearbeyondanydoubtthatamanageris
differentfromatrusteethoughbothofthemmayhavein
the matter of administering a trust similar duties to
discharge.Itiswrong,therefore,tosaythatunderthe
scheme of the Bombay Public Trust Act, a manager is a
trusteeandatrusteeisamanager.Asuitforrecovery
ofpossessionoftrustpropertiesfromthemanagerofa
publictrustwhoclaimsadversetitletothemandsets
upthattitleinhimismaintainablewithoutanyprayer
forhisremovalfrommanagership.Onceamanagerclaims
an adverse title, he forfeits his right to be the
managerandbecomesatrespasser.Itisnotnecessaryto
makeagainstsuchapersonprayerforhisremovalfrom
hismanagershipinordertomaintainagainsthimaclaim
forpossessionofthetrustproperties.Heldthatinthe
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,evenwithoutapplyingforherremovalitwas
open, to the beneficiaries or 'persons having an
interestinthetrust'tofilethissuitforrecoveryof
possessionofthesuitpropertiesfromher.CHUNILAL
JASHRAJ LODHA vs. MUNSHI MAHMADHUSAIN SHAIKH, 1976 GLR
227.
ProceedingsfiledintheCourtbyPowerofAttorneyofthe
trusteeofatrustTrusteecannotdelegatehispowersto
any other person including to the cotrustee except the
trustdeedsoprovidesAppealdismissedonthepreliminary
issue.
69.1. I have considered the submissions made in this
regard.Firstofall,IcalleduponMr.SathyanThakkar
topointoutastowhetherthereisanysuchcondition
intheinstrumentoftheTrustitselfsoastoauthorise
himtodelegatepowers,butMr.Thakkarfailedtopoint
out any such condition contained in the instrument of
theTrustitself.Sofarasthefactthatthedelegation
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,thenithastobeconsideredthatifaperson
has become a Sanyasi, he stands to renounce the whole
world and nothing remains with him for the purpose of
delegation.Merelybecauseonehastomoveoutoftown
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.Evenifapersonhastofileanappealand
has to move about, he himself has to sign the
Vakalatnama and it is not permissible in view of the
observationsashadbeenheldintheFullBenchdecision
renderedbythisCourtthatthedelegationofthepowers
of the Trustee in favour of Shri Hariharanand by the
present appellant was lawful. The authority derived on
thebasisofsuchaPowerofAttorneyvitiatesthewhole
edificeandthebasisofthisappealandIfindthatthe
preliminary objection as has been raised by Mr. Mehta
hasforceandthesamedeservestobesustainedandthe
same is hereby sustained. JASODAGIRI SOHANGIRI vs.
POPATLALJ.MAJITHIA,2001(4)GLR3164.
Section47&47AA:
47 and 47AA Trustee convicted of an offence punishable
under the Act Only Charity Commissioner could move the
Courtforappointmentofanewtrustee.
70.1. UnderSec.47AAoftheBombayPublicTrustsAct,it
is for the Charity Commissioner to move the Court for
theappointmentofanewtrsuteeonthegroundthatthe
trusteeisconvictedofanoffencepunishableunderthe
Act.Noapplicationforappointmentofanewtrusteeon
thesaidgroundwould,therefore,bemaintainableatthe
instanceofabeneficiary.Norwouldsuchanapplication
lieunderSec.47(1)(g)becausetheword"unfit"therein
useddoesnotcomprehendunfitness,ifany,arisingon
account of conviction for an offence punishable under
the Act. AJAM MOHAMMAD HATIN vs. YUSUF MOHAMMAD
BHARUCHA,1976GLR56.
Section35:
35(1)InvestmentmadebytheTrusteeswithoutpermission
of Charity Commissioner Investment made in manner other
thanSec.35(1)notinvalidorvoid.
72. The investment made by the trustee or trustees or
Public Trust funds without the permission of the Charity
Commissionerotherwisethanasprovidedbysubsec.(1)of
Sec. 35 of the Bombay Public Trusts Act, 1950, is not
invalidorvoidabinitio.Itwillappearonaplainreading
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
containedintheinstrumentoftrust,todepositthemoney
in any Scheduled Bank approved by the State Govt. or in
public securities. If the trustees failed to invest the
trustmoneyasprovidedinsubsec.(1)ofSec.35ofthe
Act, they would be liable to prosecution and conviction
underSec.66oftheAct.Thesectionhowever,doesnotsay
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)heldtobevoidintheabsenceofthepermissionfrom
theCharityCommissionertheresultwouldbethatthetrust
wouldlosethemoneywithoutderivinganylegalrightfrom
that transaction. SHAH DAHYABHAI PREMCHAND vs. MOHANLAL
PITAMBARDAS,1977GLR1018.
Section36:
36,56Aand80Grantingofsanctiontosellpropertyetc.
withintheexclusivejurisdictionofCharityCommissioner
Court can give direction only in matter to effectuate the
saleCivilCourthasnojurisdictiontograntsanctionto
anysaleunderSec.56A.
73.1. TheneateffectofSec.36andSec.56Areadwith
Sec. 80 of the Bombay Public Trusts Act is that the
powerofgrantingsanctiontoanytransactionofsale,
mortgageorexchangeorgiftofanyimmovableproperty
is within the exclusive competence of the Charity
Commissioner and beyond the competence of Civil Court.
The District Judge exceeded his jurisdiction after
havingissuedthedirectionsinvestingthetrusteeswho
were applicants before him the power to sale the
propertywhenheproceededtoaccordthesanctiontothe
sale in question that power of according sanction is
with the Charity Commissioner and by virtue of the
provisioncontainedinSec.80theCivilCourtcouldnot
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,
1979GLR635.
Saleofimmovablepropertybelongingtoatrustisvoidif
thepermissionoftheCharityCommissionerisnotobtained.
74.1. ItmustbekeptinviewthatasperSec.36ofthe
Bombay Public Trusts Act, no immovable property of a
publictrustcanbealienatedinfavourofanyonebya
trustee without express permission of the Charity
Commissioner.Andifsuchalienationismade,itshall
beinvalid.Admittedly,nosuchpermissionwastakenin
the present case. Consequently the transaction entered
into by defendant No. 2 in favour of the present
appellantremainednullandvoidandnotbindingonthe
trust. HUSEINMIYA SAFIMIYA vs. HABIBSHA HASAMSHA
FAKIR,1985(2)GLR928.
36 and 50 Previous sanction obtained from the Charity
CommissionerfraudulentlyPropertybelongingtothetrust
disposedofwithoutapublicauctionandinviolationofthe
directions given by the Charity Commissioner The
transaction without any ostensible consideration and in
breach of the terms and conditions of the sanction The
CharityCommissionerjustifiedinfilingasuitratherthan
approachingtheGujaratRevenueTribunalasthematerialand
substantial prayers could not have been granted by the
GujaratRevenueTribunal.
75.1. AccordingtolearnedCounselforappellantprevious
sanction of the Charity Commissioner was already
obtainedandthatiftheCharityCommissionerwasofthe
opinion that it was not a valid and legal previous
sanction, the only course open for the Charity
CommissionerwastomovetheGujaratRevenueTribunalas
it is open for him to do so under Sec. 36(3) of the
BombayPublicTrustsAct.
75.2. AreadingoftheprovisionscontainedunderSec.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
singleJudge,thattheotherprayers,whicharematerial
and substantial, could not have been granted by the
Gujarat Revenue Tribunal while exercising its
jurisdictionunderSec.36(3)oftheTrustAct.
75.3. Therefore, looking to the provisions contained

underSecs.36and50oftheTrustAct,wefeelthatthe
learned single Judge was perfectly justified in coming
to the conclusion that the Charity Commissioner wanted
toputforthacaseofabreachofpublictrustwithin
thepurviewofSec.50(1)oftheActandthattherefore,
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.CHARITYCOMMISSIONER,1993(2)GLR1343.
76. SpecificReliefAct,1963(47of1963)Secs.5&6
Bombay Public Trusts Act, 1950 (29 of 1950) Sec. 36
Constructionwasmadeoverlandsbelongingtoapublictrust
andshopsgivenonleasewithoutobtainingpermissionofthe
Charity Commissioner Charity Commissioner had directed
evictionofunauthorisedpersonsanddemolitionbuilding
Contention on behalf of the occupants that they could be
evictedonlybyfollowingdueprocessoflawi.e.filingof
asuitContentionnegativedTheprinciplecanbemade
applicable"wheretherightsofpartiesarenotadjudicated
upon by any Court and/or authority". PRABODHKUMAR
MAGANBHAI PATEL V. MODASA KADVA PATIDAR CHHATRALAYA, 2010
(4)GLR3562.
&50Defendantsenteredintoleaseagreementinrespectof
trustpropertywithoutobtainingmandatorypermissionofthe
CharityCommissionerTransactionwasvoid.G.R.GUSAI
(DECEASED)BYHEIRVINODGARJIGOVINDGARJIGUSAI,TRUSTEEOF
GUSAI PANCH AND ORS. V. MANHARGIRI GAGANGIRI GUSAI,
CHAIRMAN/TRUSTEEOFSHRIGUSAIPANCH,2011(1)GLR392.
78. ConstitutionofIndia,1950Art.226BombayPublic
TrustsAct,1950(29of1950)Sec.36Agreementbetween
petitioner and Board of Trustees to sell property of a
public trust Agreement executed without obtaining
permissionofCharityCommissionerHeld,agreementtosell
was nonest Sale of property by Charity Commissioner at
substantially higher price upheld. KIRANKUMAR PREMJIBHAI
MAIVAIYAV.RAJESHKESHAVLALVISAPARMAR,2011(2)GLR966.
Section32:
79. BOMBAYTENANCYANDAGRICULTURALLANDSACT,1948(LXVII
OF1948)Sec.32BombayPublicTrustsAct,1950Secs.
18and19ValidityofcreationofTrustinrespectofland
involved in tenancy proceedings Tenant becoming deemed
purchaser on tillers' day, i.e . on 141957 and hence
entitledtobeheardinenquiryunderSec.19ofTrustsAct
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/s41A:
80. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec.
41AScopeofpoweroftheCharityCommissionertoissue
directionsunderThepowerisadministrativeinnatureand
notevenquasijudicialWherejudicialdeterminationofa
disputeisinvolved,theJointCharityCommissionercannot
issue any direction The view taken in Syedna M.
Burhanuddin'scase(1992(1)GLH331)followed.
80.1. ObservationsmadebytheDivisionBenchin1992(1)
GLH331,itisclearthattheJt.CharityCommissioner
willbeentitledtoexercisethepowerunderSec.41Aof
the Act in respect to the items which are specified
underSecs.32to41oftheAct.Iftheavermentsmade
intheapplicationareconsidered,thenitappearsthat
the basis of the application was that the applicants
therein before the Jt. Charity Commissioner were
assertingthattheyhavearighttobeadmittedasthe
membersoftheTrustsincetheyarenativesofVeraval
andbecauseoftheconservativeinterpretationgivenby
theTrusteesoftheTrust,theyarenotbeingadmitted
as the members. Therefore, if while administering the
Trust,thequestionarisesregardingtheinterpretation
ofmakinganyexpensesorrunningdaytodayaffairsof
theTrust,itmightfallunderthescopeofSec.41Aof
theAct.However,thequestionofrighttobeadmitted
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
requiredtobeheldforthepurposeofdecidingthecase
as to whether the applicants who are asserting the
right, are covered by the eligibility criteria of
becomingthemembersornot.Suchprocesswouldrequire
adjudicationofthefacts,andtherefore,inviewofthe
ratio of the Division Bench in case of Syedna Mohamed
Burhanuddinv.CharityCommissioner,GujaratState,1992
(1)GLH331,theadjudicationprocessisnotenvisaged
underSec.41AoftheAct.
80.2. ItappearsthattheorderpassedbytheJt.Charity
Commissioner is not only without jurisdiction, but is
basedonthefindingwhichisperversetotherecordof
the case, and therefore, the order dated 23121992
passedbytheJt.CharityCommissioner,isquashedand
set aside. NAVINCHANDRA JASANI AND ORS. vs.
PRAVINCHANDRAJASANI,2003(1)GLR392.
81. Bombay Public Trusts Act, 1950 (XXIX of 1950) Sec.
41ABombayCharityCommissioner(RegionalReorganization)
Order,1960Clauses4(b)and(c)PropertiesofTrustof
Swami Narayan Temple, Vadtal On bifurcation of Bombay
State, the Trust was deemed to be registered in both the
StatesasonetempleoftheTrustwassituateinMaharashtra
Interpretingtherelevantclausesofthe1960Order,held,
jurisdiction of Charity Commissioner, Bombay "was confined
onlytothepropertiessituatedinMaharashtra"Thesaid
authority,havingregardtothedoctrineoflexsitus"could
not have assumed jurisdiction in respect of the entire
Trust.NAUTAMPRAKASHD.G.S.V.C.,VADTALANDORS.vs.K.
K.THAKKAR,2006(3)GLR2654(SC).
22, 22A & 41A Change report filed with the Charity
CommissionerforrecordingremovalandadditionofTrustees
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
resortedtowhenexpresspowerisavailableinrespectofa
particular contingency Held, general power to issue
directionscouldberesortedto"whentheactioniswholly
withoutjurisdictionorbeyondthescopeandambitof"the
statutorypowerRemovalofTrusteesandappointmentofnew
TrusteesfoundtobedehorsthetrustdeedHeld,Charity
Commissioner was justified in issuing interim directions
underSec.41A.
82.1. Therecannotbeanydisputetothepropositionthat
whenthereisexpresspowerprovidedunderstatutefor
dealing with a particular situation, the general power
or the residuary power cannot be made applicable.
Section22oftheActreadwithSec.22AoftheActdoes
provide for the submission of the change report and
holdingofinquiry.Therefore,ifthematterfallsunder
Sec.22readwithSec.22AoftheAct,itcannotbethe
subjectmatter of issuing directions under Sec. 41A of
theAct.However,itisbynowwellsettledthatifthe
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
becausethechangereportisfiledorisobjected,would
not be a sufficient ground to oust the jurisdiction
underSec.41AoftheActbytheCharityCommissioner.
However,iftheactionofsubmittingchangereportora
change is in purported exercise of power for bringing
aboutthechange,theninthatcase,itwouldbeacase
to be considered under Sec. 22, read with Sec. 22A of
theAct.But,iftheactionofbriningaboutthechange,
andthereby,consequentlyfilingthechangereportisde
hors the trustdeed or wholly without jurisdiction on
thepartofanyoftheTrustees,itwouldbeimproperto
construethatthematterwouldnotfallinthedomainof
properadministrationoftheTrustunderSec.41Aofthe
Act, but would only fall under Sec. 22 read with Sec.
22AoftheAct.2008(3)GLR1981.
&41AParametersofpowersoftheauthorityunderSec.22
in respect of change report and power to issue directions
under Sec. 41 General power cannot be exercised when a
statuteprovidesforexpresspowertodealwithaparticular
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
appointmentofmemberstoparticularpostsintheCommittee
Held,matterfallsunderthedomainofadministrationof
thetrustandpowerunderSec.41Acouldhavebeeninvoked.
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
memberstoaparticularpostandalsotherightofsuch
member to participate in the meeting of the Committee
andtocasthisvote.
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
relatingtotherightofapersontobeadmittedasa
member of the trust is an independent right, which a
personmaybeclaimingupontheitemsandconditionsof
the trust, against the trustees of the trust. While
ascertaining such right, an inquiry is required to be
heldforthepurposeofdecidingtheissueastowhether
suchperson/s,whoareassertingtheright,areactually
entitledtoclaimsuchrightornot.Suchprocesswould
requireadjudicationofthefactsbytheauthority.
83.3. It is well settled that when express power is
providedunderastatutefordealingwithaparticular
situation, then the general power cannot be made
applicable to such situation. Section 22 of the Act
providesforthesubmissionofchangereportandholding
ofaninquiry.Therefore,inagivencase,iftheissue
pertainstoSec.22oftheAct,thenitcannotbemade
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
actionoffilingofachangereportortheraisingofan
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,
thenitwouldfallwithinthepurviewofSec.22ofthe
Act.
83.4. If the action of bringing about the change is de
horstheschemeofthetrust,thenitwouldfallwithin
thedomainof"properadministrationofthetrust"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
Committeeandalsothepowersofamembertoparticipate
in the first meeting of the Committee and to cast the
vote. Such issues could not be gone into by the
authorityundertheprovisionsofSec.22oftheActand
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.Notethisjudgmentispartiallymodifiedinthe
followingcase.
&41ASchemeforadministrationofRadharamanDevTemple
TrustInterpretingrelevantclausesofthescheme,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
voteatsuchameetingortoexerciseanypowerasKothari"
Finding of Single Judge that duty of Kothari "impliedly
confers the right to vote" held erroneous Decision in
BalvantbhaiJinabhaiDhamiv.ShantilalKanjibhaiRatanpara,
2010(2)GLR1399,partiallymodified.
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
stepshowever,otherthanthatheshallnotexerciseany
other powers or exercise his powers as Kothari in any
manner. He shall preside over the first meeting and
continuetodosotilltheelectionofPresidentofthe
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
newlyconstitutedCommitteeandtopresideoversucha
CommitteetillthePresidentiselected.Hisrightis,
however, limited to conducting of such meeting. He is
divestedofanypowertoparticipateinthesaidmeeting
ortovoteforanyoftheresolutions.(Para9)Intention
oftheframeroftheschemecouldneverhavebeenthat
the outgoing Kothari would be voting in a decision as
importantaselectionofPresidentoftheCommitteeof
which he is not a part. That the Committee would
compriseofeightelectedandonenominatedmember,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
outgoingCommitteewouldmakeprovisionsforappointment
ofaKothariwhowouldbeKothariforthenewCommittee.
(Para11)Theentireintentionoftheschemeappearsto
bethattheCommitteeonceformedbyelectedmembersand
nominationofonememberbyAcharya,suchmemberswould
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
appointtheirown"Kothari".Itcannotbeenvisagedthat
an outgoing Committee would appoint a Kothari for the
newlyformedCommitteeofelectedandnominatedmembers.
(Para12)TheschemedoesnotenvisagethattheCommittee
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
"theCommittee".TheschemedoesnotenvisageaKothari
withoutaCommittee.Clause4oftheschemewhichisa
transitoryprovisionalsoprovidesthataKothariofthe
interim Committee shall cease to hold his office the
momentthetermoftheinterimCommitteeterminates.By
virtue of various provisions in the scheme and in
particularClause12(2)thereof,intentionoftheframer
of the scheme is clear and unambiguous namely that
outgoingKotharithoughhastoconvenethefirstmeeting
ofthenewlyelectedCommitteeandalsotopresideover
suchameetingtillthePresidentiselected,hehasno
righttovoteatsuchameetingortoexerciseanypower
asKothari.LearnedSingleJudgetherefore,committedan
error in holding otherwise. SHANTIBHAI KANJIBHAI
RATANPARAANDANR.V.RADHARAMANDEVTEMPLE,@APUBLIC
TRUST IN THE NAME OF SHREE SWAMINARAYAN TEMPLE,
JUNAGADH,2010(3)GLR2632.
Powertoappointtrusteeu/s47:
Appointment of trustee Selection Held, where the
scheme provides for ascertaining of wish of beneficiary
group/community,appointmentmadewithoutascertainingsame
invalidAppointmentrequiredtobemadeinaccordancewith
theschemeandinconsonancewithSec.47.
85.1. Considering the scheme, it is clear that firstly
theCourtisrequiredtofindoutwhethertheAthiasare
divided into factions or not, and if it is found that
there is no division, the Court should not select a
member,buttheCourtisrequiredtodirecttheAthias
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
Athiasaredividedintofactions.Since,thisaspectis
not clear from the order, the order in question is
requiredtobesetasideandthematterisrequiredto
besentbacktotheDistrictCourtforconsideringsaid
aspect.(Para17)
85.2. EveniftheCourtisoftheopinionthattheAthias
are divided into factions, the Court can avail the
procedureprescribedundertheSchemeevenbyaskingthe
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
applicationbypublicadvertisementasthelearnedJudge
was required to follow the aforesaid procedure by
availingtheoptionsasprovidedunderclause4andas
already indicated. VISHNUBHAI BABABHAI THAKORE V.
CHARITYCOMMISSIONER,AHMEDABAD,2007(4)GLR3191.
Appointment of trustee Held, where the Court invited
applicationsfromeligiblepersons,rejectionofapplication
ongroundthatsamereceivedbeyondtimelimit,improper
TheCourtrequiredtoconsiderapplicationreceivedbefore
selectionprocessisoverTheultimateobjectistosee
thatrightpersonisappointed.
86.1. Further,evenassumingthatasperclause4ofthe
scheme, the Court can select a person by inviting
applications, then also, at the time of making
selection,theCourtcancertainlyconsiderthenameof
anyeligiblepersonasultimatelyitisthedutyofthe
Courttoselecttherightperson.Evenifsomebodymight
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
selectionofanymember.However,iftheapplicationis
receivedafterentireprocessofselectionbytheCourt
is over, the matter stands on an altogether different
footing. The ultimate object behind the scheme is to
appointarightpersonandthatiswhypowersaregiven
totheCourttoselecttherightcandidatewhoistobe
appointed as member of the Committee. In the instant
case,thereisnoperiodoflimitationorstatutorybar
which prohibits the learned Judge from considering the
nameofanycandidateevenifsuchcandidatehasapplied
aftertheprescribedtimeanditisopentothelearned
Judge to consider such name because a fit person is
requiredtobeappointedasmemberoftheCommittee.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.
CHARITYCOMMISSIONER,AHMEDABAD,2007(4)GLR3191.

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Section72:

Jurisdiction of Civil Court and Civil Procedure Code,

21. BOMBAY PUBLIC TRUSTS ACT, 1950 (XXIX OF 1950) Sec.

Distinction between religious trust and public charitable

75.3. Therefore, looking to the provisions contained

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