Gujarat High Court
Rajendrakumar Vinodray Kamdar vs Rajesh Nanubhai Zaveri on 20 September, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
C/LPA/545/2022 JUDGMENT DATED: 20/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 545 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 2572 of 2022
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 545 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
==============================================================
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==============================================================
RAJENDRAKUMAR VINODRAY KAMDAR
Versus
RAJESH NANUBHAI ZAVERI
==============================================================
Appearance:
MR BHARAT T RAO(697) for the Appellant(s) No. 1,2
for the Respondent(s) No. 7
DS AFF.NOT FILED (N) for the Respondent(s) No. 2,3,4,5,6,8
MR MONAAL J DAVAWALA(6514) for the Respondent(s) No. 1
MR VISHAL T. PATEL(6518) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 20/09/2022
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI) Page 1 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 1.0. This appeal is preferred challenging the judgment and order of the learned Single Judge in Special Civil Application No.2572 of 2022, whereby the Court dismissed the petition filed by the appellants.
2.0. The brief facts leading to the present appeal are as follows:
2.1. The Digambar Jain Swadhyay Mandir Trust Sonagadh is a Trust registered in the year 1939 as A/902. It is established with an object to spread the teachings of Shri Sadguru Kanji Swami and to educate the followers about Jainism by holding various programmes at Songadh and the Trust also has Temples, Library, Dharmshalas at Sonagadh.
2.2. The trust deed is settled in 1939. The scheme was framed in respect of the trust on 27.08.1982, which provides for the objects and reasons in the area of the operation of the trust. It is averred that every aspect has been taken care of in the said scheme and till the year 2021 everything worked by smoothly. It is a grievance on the part of the appellants that in 2022, for the first time, the dispute started when the trust decided to induct new trustee one Shri Rajendra V Shah. An application came to Page 2 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 be preferred under Section 41 A by Kund Kund Kahan Paramaarthik Trust and another application was filed by Shri Rajesh Zaveri.
2.3. Two Trustees viz. Shri Rajesh Zaveri and Shri Navin P Shah approached the Joint Charity Commissioner for modification of the Scheme under Section 50A (3) of the Act and on 08.09.2021 the documents were produced along with the said application.
The Joint Charity Commissioner registered the application under Section 50A(3) and issued the notice in Scheme Application on 22.11.2021 and first hearing was fixed on 8.12.2021. The notice also came to be dispatched on 22.11.2021.
2.4. The appellants raised preliminary objection and urged to dismiss the main application on the ground of maintainability on 17.1.2022. It is objected on the ground that the Scheme is for removal of trustees and except the person who have made application for modifying the Scheme and for bringing the new trustees, the application is not maintainable in view of Section Page 3 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 50 of the Act where specific procedure has been prescribed for removal of the trustees. None of the provisions for amendment or modification of the Scheme had been attracted and Joint Charity Commissioner had no power to frame the Scheme for removal of the trustees.
2.5. The application before the Joint Charity Commissioner on 19.1.2022 was moved for framing the preliminary issue as to whether the Joint Charity Commissioner had power to remove the trustee by modifying the Scheme and that too by bypassing the process of law.
2.6. On 2.2.2022 such application for raising preliminary objection was submitted where appellants raised objection. On 22.2.2022 the order passed had reflected that the preliminary objection of maintainability of the Scheme shall be decided at the time of final hearing.
2.7. This was assailed before the learned Single Judge on various grounds. The Court chose not to interfere by rejecting the petition on 7.4.2022. This, according to the appellants, is not an acceptable proceeding.
Page 4 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 2.8. This has aggrieved the appellants and hence, they are before this Court, urging that there is an error on the face of the record and again the basic issue raised before the Court has not been addressed. According to the appellants, there is a difference between the preliminary issue and the preliminary objection. The issue would be in relation to the pure question of law whereas preliminary objection could be in relation to anything. It would also mean objection on documentary evidence. In absence of any resolution of the trust, the first issue of maintainability ought to have been allowed by the Court. Various decisions are sought to be relied upon. The prayers sought for is to quash and set aside the order dated 17.4.2022 passed by the learned Single Judge and to allow the petition and direct the Joint Charity Commissioner, Bhavnagar to decide the preliminary objections and preliminary issue raised.
3.0. This Court issued the notice (Coram: Justice R.M. Chhaya and Justice Hemant M Prachchhak) on 25.4.2022. At the time of admission the matter has been finally heard at the request of both the sides. We have extensively heard the learned advocate Mr. B.T. Rao who has taken us through the material contents of Page 5 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 Section 50A(1) to Section 50A(3). He also further urged that whenever there is a question of modification of the Scheme, there shall be a requirement to decide this issue preliminarily before actually the notice is issued to others. He has also drawn the attention of this Court to Clause 14 and 18 of the Trust deed to urge that the 2/3rd of the trustees would need to permit other trustees to go to the Joint Charity Commissioner. Unless done independently, they are not permitted to approach the authority under Section 50A of the Act. He also further urged that application has been moved by both the trustees where they had made a request to the Joint Charity Commissioner to decide the issue preliminarily, however he has not grasped this and therefore, there is a need for him to approach the learned Single Judge and thereafter to this Court. He has sought to rely upon the following authorities.
1. Chhotubhai L Patel vs. State of Gujarat reported in 2007(2) GLR 1716
2. R.P. Kapoor vs. Charity Commissioner, Maharashtra State reported in 1989 BLR 529
3. Shivajirao Bhavanrao Patil vs. Shikshan Prasarak Mandal Malshiras reported in 2017(3) BCR 333 Page 6 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 4.0. Per contra, learned Senior Advocate, Mr. Soparkar, has argued with the assistance of learned advocate Mr. Monaal Davawala and learned advocate Mr. Vishal Patel. It is urged by the Senior Counsel that what is vital and crucial for this Court to consider is whether at the preliminary stage the maintainability aspect needs to be decided by the Court. The Scheme has been finalized on 8.9.2021. On 22.11.2021 the Joint Charity Commissioner issued the notice and 18.1.2022 the order inviting the objection from the public and the order impugned is passed on 22.2.2022. There is an ample opportunity to be given to the other side. The objection raised before deciding the matter preliminarily is having no basis. The clause 18 of the Scheme provides for two or more trustees to move the Joint Charity Commissioner. Accordingly, they have moved and even Joint Charity Commissioner can suo motu initiate such power. It is emphatically urged that Section 50A(3) provides for no permission to give any findings on preliminary issue. Section 50A(1), details can be projected in 50A(3) but not at a preliminary stage. Again, there is no likely prejudice to the appellants and they have failed to also point out to this Court as to how it is going to be cause prejudice, if the issue is not decided at the preliminary stage. He, therefore, urged that there Page 7 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 is no requirement of any interference in the order of the learned Single Judge.
5.0. Before adverting to the facts on record, it is desirable for the Court to firstly consider the provisions of the Gujarat Public Trusts Act and in particular, Section 50A, which reads thus:
"50A. Power to Charity Commissioner to frame, amalgamate or modify schemes :-
(1) Notwithstanding anything contained in section 50 .
where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, the Charity Commissioner may, if alter giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame a scheme for the management or administration of such public trust.
(2) Where the Charity Commissioner is of the opinion that in the proper management or administration, two or more public trusts may be amalgamated by framing a common scheme for the same, he may, after-
(a) publishing a notice in the Official Gazette [and also if necessary in any newspaper which in the opinion of the Charity Commissioner is best calculated to bring to the notice of persons likely to be interested in the trust] with a wide circulation in the region in which the trust is registered, and
(b) giving the trustees of such trusts and all other interested persons due opportunity to be heard, frame a common scheme for the same.
(3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under sub-section (1) or subsection (2).
Page 8 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 (4) The scheme framed under sub-section (1) or sub- section (2) or modified under sub-section (3) shall, subject to the decision of the section 72 , have effect as a scheme settled or altered, as the case may be, under a decree of a Court under section 50."
5.1. This provision makes it quite clear starting with non obstante clause that the Charity Commissioner, if has reason to believe that in the interest of proper management or administration of a public trust, there is a requirement of settling the Scheme or where two or more persons having interest in the public trust, make an application in writing in prescribed manner and that in the interest of proper management or administration of a public trust, a Scheme should be settled, after giving the trustees of such trust due opportunity to be heard and the Charity Commissioner has a discretion to frame the Scheme, if he satisfied that it is necessary or expedient to so do it. Such a Scheme can be for the management or administration of a public trust. Sub-Section (2) of Section 50A permits the amalgamation of two or more public trusts by framing a common scheme by the Charity Commissioner, if he is of the opinion that in the interest of proper management or administration such scheme is to be framed. This of-course shall be after publishing the notice in official gazette and also in at least two newspapers and giving the Page 9 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 trustees of such trusts and all other interested persons due opportunity of being heard. Sub-section (2A) of Section 50A provides for a Scheme under this Act to be provided for number of trustees, the mode of appointment of the trustees including the appointment of the first trustees, vesting of the trust property in the trustees etc. which in the present matter is not necessary to be further dilated.
5.2. Sub-section (3) of Section 50A is vital to be amplified as discretion is given to the Charity Commissioner who can at any time after hearing the trustees modify the Scheme framed by him under sub-section(1) or sub-section (2). Sub-section(4) provides that the Scheme framed under sub-section(1) or sub-section (2) modified under sub-section(3) shall subject to the decision of the competent Court under Section 72 shall have an effect as a Scheme settled or altered, under a decree of a Court under Section 50.
5.3. Thus, it becomes quite clear that sub-section(1) of Section 50A in detail provides for a Scheme to be settled on an application made by two or more persons having an interest in a public trust making an application in writing in the prescribed Page 10 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 manner. When the Charity Commissioner after availing an opportunity to the trustees of the trust is satisfied that it is necessary and expedient to so do it for proper management and administration of a public trust it can so direct. Whereas for modification of the Scheme framed by the Charity Commissioner under sub-section(1) or sub-section (2) which is for the purpose of framing of a common Scheme by amalgamating two or more public trusts, what is provided is of giving of an opportunity of hearing to the trustees and then modify the Scheme framed. This provision has been interpreted by this Court in the decision of Chhotubhai L Patel (supra) where the question of framing of the Scheme for public trust by Charity Commissioner under Section 50 A was adjudicated, where the petitioner filed an application raising preliminary issue regarding expediency and necessity in interest of the trust for framing the scheme. Such an application was rejected. The Court held that the first and foremost requirement of Section 50A is recording of satisfaction by the Charity Commissioner that it is necessary and expedient to frame a Scheme in the interest of proper management or administration of a public trust regardless of the allegations in the application filed under Section 50A are by any person or having been initiated suo motu. It appears that the application of Page 11 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 the petitioner raised by way of preliminary issue was rejected without recording any satisfaction or any reasons for such rejection. The Court therefore, held that the same was not a sustainable order and moreover, it had proceeded entirely on erroneous premises. As the issue raised by the petitioner was not decided as required in law, the application was, therefore, restored for fresh consideration by allowing the petition. While so doing, the findings and observations of the Court will be relevant. Para 8 to 11 read thus:
"8. On a plain reading the provision requires that regardless of what is stated in Section 50 of the Act, it would be open to the Charity Commissioner where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled of the trust; another contingency is, where two or more persons having interest in a public trust make an application to the Charity Commissioner in the prescribed manner, and such application in writing states that in the interest of the proper management or administration of a public trust, a scheme should be settled for the trust; in either of the contingencies the Charity Commissioner, may, after giving the trustees of such trust due opportunity to be heard, if he is satisfied that it is necessary or expedient so to do, frame a scheme for the management or administration of such public trust. Meaning thereby, the Charity Commissioner has to record a satisfaction, after hearing the trustees of the existing trust, that it is necessary or expedient, in the interest of the proper management or administration of a public trust, to frame a scheme. Therefore, regardless of what the allegations are in the application moved by any person, or regardless of whether the proceedings have been initiated suo motu on the basis of a reason to believe, the first and foremost requirement of the Page 12 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 provision is recording of a satisfaction by the Charity Commissioner that it is necessary or expedient to frame a scheme in the interest of proper management or administration of a public trust.
9. The section, therefore, envisages a specific finding in the form of satisfaction that there is material and evidence on record to show that a scheme is required to be framed in the interest of proper management or administration of a public trust. In other words, the existing trust, or the scheme, under which the existing trust functions, is not conducive for proper management or administration or such a public trust. This satisfaction, as envisaged by the provision, has to be only of the Charity Commissioner and such a satisfaction has to be recorded by the Charity Commissioner before the Charity Commissioner proceeds any further in the direction of framing a scheme. The section requires that the satisfaction is the prerequisite condition which is required to be satisfied before the Charity Commissioner can proceed further to frame a scheme or even proceed further in that direction. The authority is entitled to record, in the first instance, a finding as to the satisfaction envisaged by the provision before adverting to other issues. Though the order may be a consolidated order, a specific, categorical finding as to the satisfaction has to be recorded first in unambiguous terms on the basis of cogent and relevant evidence, uncluttered by any other issues or considerations.
10. Testing the impugned order dated 12.01.2007 wherein application Exh.77 has been rejected at the anvil of the aforesaid requirement of Section 50A(1) of the Act it is apparent that not only is the order silent as to recording of any satisfaction, in fact there are no reasons forthcoming for rejecting the application Exh.77. It is not a question as to whether such an application could or could not have rejected. The question is : whether the impugned order satisfies the legislative requirement ? Not only does the order does not assign any reason for rejecting application Exh.77 but proceeds on an entirely erroneous premise. Respondent No. 2 authority refers to provision of Sub- section (2A) of Section 50A of the Act and states that the question is not only whether the scheme should be Page 13 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 framed but also whether trustees should be appointed or not. Sub-section (2A) of Section 50A of the Act is an enabling provision. The said sub-section provides for a situation where the scheme, as and when framed, provides for the number of trustees, the mode of appointment of trustees including the appointment of first trustees, vesting of the trust property in the trustees so appointed, etc. which is a stage very much later in the legislative scheme of Section 50A of the Act. In fact, these are factors which are required to be taken into consideration at the point of time when the scheme is being framed. They cannot be factors relevant for the purposes of testing whether or not it is necessary or expedient to frame a scheme. The position in law is well settled. Once the authority in exercise of quasi-judicial powers while arriving at a decision takes into consideration an irrelevant factor, it is not possible to state to what extent the decision making process is vitiated while arriving at such a decision on the basis of consideration of such an irrelevant factor. In such circumstances, the entire order falls to the ground and cannot be sustained.
11. In light of what is stated hereinbefore, it is apparent that the impugned order dated 12.01.2007, to the extent it rejects application Exh.77, cannot be sustained and is required to be quashed and set aside. The petitioner has raised a preliminary issue and that issue has in fact not been decided as required in law. The order made by respondent No. 2 authority on 12.01.2007 to the extent it rejects application Exh.77 is hereby quashed and set aside. Application Exh.77 stands restored to file for taking a decision afresh in accordance with law. Respondent No. 2 authority is directed to decide the said preliminary issue as a separate issue, even if the respondent authority comes to the conclusion that it would be in the interest of all concerned to decide all the issues together."
6.0. The Bombay High Court in the case of R.P. Kapoor (supra) was considering the matter where application was filed before the Joint Charity Commissioner who passed the order under Page 14 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 Section 50A of the Bombay Public Trusts Act and disposed of the application finally. The Joint Charity Commissioner framed the issues for determination (1) Whether it was necessary, expedient and in the interest of the trust to settle a scheme? (2) Whether it was necessary to appoint additional trustees? (3) What scheme should be settled? He determined all these three issues and the matter was carried in appeal. Application since was under
Section 50A(1) where the Joint Charity Commissioner had given due opportunities to the trustees and framed the scheme for management or administration of the suit. The question in dispute was whether he could be said to have been satisfied that it was necessary or expedient to frame a scheme for the management or administration of such public trust. The Court said that it could be judged by two different angles whether his satisfaction which is subjective and is not justiciable and is perverse and whether the new scheme framed by him really serves any purpose. For examining this, the nature of application and allegations made therein were needed to be considered. Certain allegations were against the manner in which the management of the trust was carried out and not against the provisions in the original trust deed. The Court held that it was desirable to deal with the allegations as a result of Page 15 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 which the Joint Charity Commissioner was satisfied and the learned City Civil Court Judge also agreed with him. Answering these three questions, the Court held thus:
"14.Coming to the three pertinent questions posed by me in the earlier paras of this judgment, on the face of it I do not think that recourse can be had to S.50A for the mere purpose of filling in of vacancies of trustees not filled in by the existing trustees for quite some time. On the other hand particular having regard to the nature of complaints against the existing trustees the proper course would have been to resort to Ss. 14D and 47 of the Act rather than S.50A. here again I would agree with the learned counsel for the appellants without hesitation that the appointment of the new trustees has to be made objectively by finding the best suited public spirited persons and not just choose one or more of the applicants/complainants. Record clearly shows that the Charity Commissioner did not take any steps in this regard. He has simply referred to the brief bio-date of the applicants and appointed four of them as trustees. This is certainly not a satisfactory manner in which the trustees should be appointed. Moreover complaint filed under S.41D si still pending. Continuing the present trustees under the new scheme framed under S.50A without disposing the said complaint might be an impediment in the way of proper adjudication of the complaint particularly after this Court's decision. In this view of the matter, it is considered desirable to set aside the judgment and order of the Charity Commissioner as well as that of the learned City Civil Court Judge. The nature of the complaint is different which requires to be death with in accordance with the provisions of Ss. 14D and 47 of the Act rather than S.50A.
15. Before concluding reference may briefly be made to the comments in the Commentary "Scott on Trust", 1939 Edition, Volume, 1, page 566. This was relied upon by the counsel for the respondents for the purpose of showing that the Court can appoint trustee or trustees in certain circumstances. There is no dispute about such a power. It is not necessary to refer Page 16 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 to the commentary at length. The Gujarat High Court decision in the case of Bipinchandra Purshottamdas Patel v. Jashwant Lalbhai Naik, generally refers to and defines the scope of s.50A(I). According to me, the manner in which I have dealt with the issue is in accordance with the manner in which Gujarai High Court dealt with the issue Comments of the learned commentator Shah in Shah on The Bombay Public Trusts Act 1950, 6th Edition, Page 475 also do not carry the case of the respondents further. In this context the learned commentator has, while referring to the words "necessary" and "expedient", observed at page 479-Necessary" and "Expedient"Meaning of ;- This is a power conferred under the Act in a special contingency when it is necessary or expedient to frame a scheme in the interest of a public trust. Recently the Gujarat High Court explained the words - "Necessary" and "Expedient".
The term "necessary" means what is indispensable, needful, essential. The term has a precise meaning and connotation and there is nothing vague or nebulous about it. The term "expedient" has no doubt a wide ambit and gives large scope to the exercise of power. But this expression has also a recognised connotation in the eye of law. The dictionary meaning of the term "Expedient" that would in the context in which it is used and which a most fitting is "useful for effecting a desired result; fit or suitable for the purpose". Jauantilal Prashottamdas Kapali v. State of Gujarat, (1970) 11 Guj LR 403."
7.0. It is needed to be noted that at this stage that the Bombay High Court interpreted by referring to the Gujarat High Court decision and particularly interpreted the words "necessary" and "expedient" as given under Section 50A are held to have a precise meaning and connotation. Neither anything ambiguous or nebulous is seen about it. The term "expedient" has a wide Page 17 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 ambit and gives large scope to the exercise of powers and this expression has also a recognized connotation in the eye of law. The dictionary meaning of the term "Expedient" would be in the context in which it is used and which most fitting and useful for effecting a desired result. The Charity Commissioner is said to have a discretion to make inquiry in any manner he deems fit as the Legislature has not advised any specific nature of inquiry. 7.1. This judgment of Bombay High Court speaks of the powers of Charity Commission to frame, amalgamate or modify the scheme and while so doing the kind of satisfaction he needs to arrive at. It does not speak anywhere about the duties of the Joint Charity Commissioner at the preliminary stage. When the Charity Commissioner proceeds to frame a scheme for the management or administration of such trust, he has to satisfy himself that it is necessary or expedient to do so in public interest, however, while considering the request of modification would be required to satisfy himself at the outset requires redressal?
8.0. In the case of Shivajirao Bhavanrao Patil vs. Shikshan Prasarak Mandal Malshiras reported in 2017(3) BCR 333 Page 18 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 Assistant Charity Commissioner framed the new scheme purporting to exercise the powers under Section 50A for the management and administration of the trust in substitution of the existing scheme. The new scheme involved the curtailment of tenure of existing trustees and reduction in the strength of the governing body from 17 to 7 trustees.
The appeal had been filed by the then existing trustees before the District Court invoking provisions of Section 72(2), which was dismissed, against which, appeal had been preferred under Section 72(4) before the High Court. The Court on examining the scheme of the Act and the provision of the Bombay Public Trusts Act held that Section 50A mandated the affording of opportunity of hearing to the exiting trustees before framing or modification of the existing scheme for management and administration of the trust. Furnishing of such opportunity is mandatory even upon plain reading of provisions of Section 50 A. The principles of natural justice and fair play also would require that the decision of modification of scheme should precede availment of due opportunities to the existing trustees. There has to be valid services of notice upon the existing trustees. The Court also further held that the Assistant Charity Commissioner had overlooked the scope and ambit of the Page 19 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 provision of Section 50A since it proceeded on the basis that there was no challenge from any of the existing trustees in relation to the new scheme and since the new scheme had provided for usual clauses with regard to the membership, election, property rights etc. the same needed to be framed in terms of Section 50A. According to the Bombay High Court, the powers and jurisdiction conferred by Section 50A are expected to be exercised in a special manner by the Assistant Charity Commissioner and findings and observations are as follows:
"25. Before the ACC exercises power and jurisdiction undersection 50Ain the matter of framing of or modification of any existing scheme for the management and administration of a public trust, the ACC must have 'reason to believe' that it is in the interest of proper management or administration of the public trust that such a proposal must be considered. Thereafter, the ACC is required to afford the trustees 'due opportunity to be heard'. The ACC after due application of mind to the predicates of the scheme or the modified scheme and upon due consideration of the submissions, if any, which the trustees may make, is then required to record his satisfaction that it is 'necessary or expedient' to frame a scheme or to modify any existing scheme for the management or administration of such public trust. The perusal of the order dated 29 May 2009, at once indicate that the ACC has been oblivious to the jurisdictional parameters of section 50A. The learned District Judge has also not adverted to the provisions of section 50Aandskc JUDGMENT-FA-1346-10 upheld the new scheme on grounds, which are not very different from the grounds stated by the ACC in his order dated 29 May 2009.
26. Taher vs. Quizar(supra) was a case of suo moto exercise of powers by the Charity Commissioner under section 50A(2)in the matter of amalgamation of two or more public trusts by the frame of a common scheme for the same. The learned Single Judge of this Court took cognizance of the circumstance that expressions like 'reason to believe' or 'is satisfied that it is necessary or expedient to do so' as obtain Page 20 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 in section 50A(1)find no place in section 50A(2). Even then, it was held that such expressions will have to be read in section 50A(2)by way of necessary implication. Therefore, even where the Charity Commissioner exercises powers under section 50A(2), he is required to record his reasons, at least briefly as to why he had reasons to believe that the framing of a common scheme was necessary for the interests of the two trusts or either of them or for their better management and administration. In the present case, there is nothing to indicate that the ACC had any 'reason to believe' that the new scheme was in the interest of proper management or administration of the trust. In the impugned order, there is nothing to indicate that the ACC was indeed satisfied that it was 'necessary and expedient' to frame the new scheme in substitution of the existing scheme for the management and administration of the trust.
27.In Paraskumar vs. Sureshkumar(supra), another learned Single Judge of this court has considered and explained the scope of section 50Aby emphasizing that a Charity Commissioner cannot frame a scheme at his whim or caprice. The existence of necessity or expediency to frame a scheme in the interest of proper management or administration of the public trust is a sine qua non for the exercise of powers under section 50A. The scheme so framed, was set aside for want of such a sine qua non. In paragraph 10, the learned Single Judge has made the following observations, which are quite apposite :
"10. Section 50-A of the B.P.T. Act provides that where the Charity Commissioner has a reason to believe that in the interest of proper management, or administration of public trust, a scheme should be settled for it, or where two or more persons having interest in public trust make an application to him in writing in prescribed manner that in the interest of proper management, or administration of the public trust a scheme should be settled for it, the Charity Commissioner may, after giving the trustees of such trust opportunity to be heard, after he is satisfied that it is necessary or expedient so to do, permit a scheme for the management or administration of such trust. The power of the Charity Commissioner to frame a scheme is not unbriddled. It can be exercised only The Charity Commissioner must have a reason to believe so. That reason to believe must be based on objective assessment of facts. He cannot frame a scheme at the whim or caprice. The existence of a necessity to frame a scheme in the interest of the proper management or administration of a Page 21 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 public trust is a sina-qua-non for framing of a scheme under section 50-A of the B.P.T. Act. Whether the trust is ancient and it's origin is not known, the trust has no written constitution or a proper set of rules for the management and administration of trust and there exist circumstances from which it can be reasonably inferred that a trust is not well managed or mismanaged and that mismanagement can reasonably be attributed to absence of a trust deed or a written constitution or set of rules of governance or management the Charity Commissioner may readily believe that it is necessary to frame a scheme for the proper management or administration of the trust. But where a trust is created by a trust deed which contains the basic objects of the trust and the set of rules for the proper management or administration of the trust, the Charity Commissioner's must have due regard to the wishes of the settlor and cannot on his whim say that the trust could be better managed if it is governed by another set of rules or another constitution settled by a scheme framed under section 50-A of the B.P.T. Act. In the present case the trust was created by written deed of indenture dated 28.4.1961, a copy of which is annexed to the appeal memo. It does contain the rules for the administration and management of the trust. The order of the Charity Commissioner does not disclose how these rules are insufficient for the proper management and administration of the trust. In the circumstances the finding recorded in the negative by the learned District Judge that the Assistant Charity Commissioner could not in law had a reason to believe that in the interest of the proper management or administration of the Trust a scheme should be settled for it was in any way erroneous, much less perverse".
[Emphasis supplied]
28. Mallikarjun vs. Dattatraya(supra) was a case involving frame of a new scheme in substitution of a existing scheme for management and administration of the trust. In this context, the learned Single Judge of this court has held that power and jurisdiction undersection 50Acannot be ordinarily exercised to frame an entirely new scheme in substitution of the existing one.Such power or jurisdiction can be exercised in very very exceptional circumstances upon arriving at a conclusion that the existing scheme is proved to be inadequate to safeguard the interests of the public trust and such interest cannot be safeguarded even by making variations, alterations or amendments to the existing scheme. Further, frame of an Page 22 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 entirely new scheme without a finding as to necessity or expediency would be illogical and therefore unsustainable. By reference to the decision in the case of Dr. R. P. Kapoor & Ors. vs. Charity Commissioner, Maharashtra11, the learned Single Judge of this Court has made the following observations which are quite apposite in the facts of the present case:
"What is necessary or expedient is borrowed in para 15 of the judgment in the matter of Dr. R. P. Kapoor from commentary on The Bombay Public Trusts Act, 1950, which reads as follows :
" 'Necessary' and 'Expedient' -meaning : This is a power conferred under the Act in a special contingency, when it is necessary or expedient to frame a scheme in the interest of a public trust. Recently the Gujarat High Court explained the words 'necessary' and 'expedient'. The term 'necessary' means what is indispensable, needful and essential. The terms has a precise meaning and a connotation and there is nothing vague or nebulous about it. The term 'expedient' has no doubt a wider ambit and gives much scope to the exercise of power. But this expression has also a recognized connotation in the eye of law. The dictionary meaning of the term 'expedient' that what in the context it is used and which is most fitting is 'useful for effecting a desired result, fit or suitable for the purpose."
Even taking into consideration the wider meaning of the term 'expedient', the Court ought to come to a conclusion that it is desirable for achieving the necessary result i.e. safeguarding the charity, to settle a new scheme and. therefore, unless the learned Charity Commissioner can arrive at a conclusion that existing scheme is insufficient for the purpose, or that even after amendment to the existing scheme the purpose of the trust would not be served, the Charity Commissioner would not be in a position to record a finding that it is expedient in the interest of trust to settle a new scheme".
[Emphasis supplied]
29. In Vasantrao s/o. Vishwanathrao Mane & Ors. vs. Apparao s/o. Baibanna Sidore & Ors.12, once again the learned Single Judge of this Court, has interpreted the provisions of section 50Aand listed out the criteria, which is required to be complied with, before a new scheme is framed. Page 23 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 In paragraphs 28 and 29, the learned Single Judge has observed thus :
"28. There cannot be duality of opinion that the Charity Commissioner may exercise power available under Section 50A in appropriate case where, he is of opinion that in the interest of proper management or administration of a public trust, such scheme should be settled. He may act suo motu or may act upon application filed by two or more persons, who have interest in the public trust. A plain reading of Section 50A(1) reveals that after giving the trustees due opportunity to be heard, the Charity Commissioner must be satisfied that it is necessary or expedient to frame a scheme for the management or administration of such trust. Thus, the criteria, which is required to be complied with, before a new scheme is framed, may be stated thus:
(a) That, there must be some material available, which if considered objectively, would furnish the Charity Commissioner to reach conclusion that there exists reason to believe that in the interest of the proper management or administration of a public trust, a scheme should be settled;
(b) That, the Charity Commissioner is required to give the trustees of such trust due opportunity to be heard;
(c) That, he ought to record his satisfaction, on strength of material available before him, that it is necessary or expedient to frame a scheme for the proper management or administration of such a trust; and
(d) That, his opinion regarding necessity of the scheme ought to be supported by written reasons.
29. Obviously, the discretionary power conferred under the B.P.T. Act is required to be exercised in a special contingency.The words "necessary" and "expedient" would mean existence of a situation occasioned, which makes it necessary or indispensable to frame a new scheme, if already there exists a scheme, to ensure proper administration of such a trust.In Dr. R.P. Kapoor v. Charity CommissionerAIR 1989 SC 274, the expression "expedient"and "necessary" is succinctly made clear. It is held that recourse cannot be had to Section 50A for the mere purpose of filling any of the vacancies of trustees. In such a case, resort can be had to Section 41D and 47 rather than Section 50A. Therefore, a Page 24 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 new scheme cannot be framed only on the ground that the trustees were not managing the trust properly. This is what appears to have occurred in the instant case. The members of the Managing Committee of the trust were removed. Therefore, the Assistant Charity Commissioner decided to frame the new scheme without ascribing adequate reasons. It is difficult to see as to how he formed opinion that "it was expedient and necessary" to frame a new scheme for better management of the trust in question. The 1 st Ad-hoc Additional District Judge also did not properly appreciate the said requirements of law."
In the matter before the Bombay High Court, the question was of framing of one entirely new scheme in substitution of existing scheme of management and administration of the trust. According to the Court, the Assistant Charity Commissioner as well as learned District Judge failed to appreciate the scope of provisions contained in Section 50A and accordingly had set aside the order on the ground of non application of mind. 9.0. Thus, what is far more important is that while exercising the powers available under Section 50A of the Act an opinion needs to be formed that in the interest of proper management or administration of a public trust, such scheme should be settled. It can be either suo motu or while acting upon the application filed by two or more persons who would have an interest in the public trust. This exercise has to be undertaken after availing an opportunities to the existing trustees and on hearing them the Charity Commissioner shall need to satisfy himself that it is Page 25 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 necessary or expedient to frame a scheme for the management or administration of such trust. This will need to be on the basis of the material available which on considering objectively would enable the Charity Commissioner to conclude that there existed reasons to believe that in the interest of proper management or administration of a public trust, such scheme needs to be settled. His opinion regarding necessity of the scheme shall need to be supported by the written reasons. The word necessary and expedient are very significant which would mean that it is utmost necessary and indispensable to frame a new scheme. The Courts have gone to the extent of saying that for filling any of vacancies of the trustees exercise of powers under Section 50 A recourse in such should be under Section 41 D and 47. It is only in case of modification of the scheme by ascribing the adequate reasons that it was expedient and necessary that such powers are needed to be exercised.
10. In case of President, Purohit Sangh vs. Prabhakar Ramchandra Gokhale reported in 2003(5) MhL.J 73, the Court considered the powers of Charity Commissioner to frame, amalgamate or modify the schemes. The question that was addressed by the Court was of the power of the Charity Page 26 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 Commissioner for appointing, suspending, removing and discharging the trustees and to vest properties to new trustees. The Court examined Section 72(4) of the Act where substantial question of law raised for consideration of the Court was as to whether the Charity Commissioner has reason to believe that in the interest of proper management or administration of a pubic trust, existing scheme needs to be modified. The broad factors to be borne in mind, in such circumstances by the Charity Commissioner are enlisted thus:
"i) When the Charity Commissioner has reason to believe that "in the interest of the proper management or administration of a Public Trust" an existing scheme needs to be modified, what are the broad factors to be borne in mind?
ii) When it is a case of the management and administration of a public religious trust such as the Trimbakeshwar Devasthan, is it not appropriate to ensure diversified representation and involvement of all concerned or the section of the public who have interest in the trust and in particular associated with the day today activities of the temple or the Devasthan, unless the appointment was to impede the objective or working of the trust?
iii) Whether disqualification on account of "conflict of interest"
is a matter of fact attached to an individual and purely personal one or can it be generalized so as to exclude all the persons belonging to the families of "Tungars", "Purohits" and Pujaris", a class as a whole?
iv) When section 47 of the Act mandates that "any person interested in a trust" should be made a trustee, coupled with the definition of "person having interest" in section 2(10)(a) of the Act which postulates that a person who is entitled to or is in the habit of attending the performance of worship or service in the temple or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof, will it be appropriate to totally exclude the "Tungars", "Pujaris" and Page 27 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 "Purohits" from the management or administration of the trust? v) When no oral or documentary evidence was adduced before the Charity Commissioner in the suo motu enquiry under section 50-A of the Act however, when District Court in the proceedings under section 72 of the Act having rejected the request made by the parties for permission to lead evidence, could a finding of fact be recorded merely on the basis of an inspection report that the "Tungars" and "Purohits" have interest in the earning from the devotees thereby disentitling them from participating in the management on the specious ground that their presence was likely to create conflict of interest?
vi) When the trust was fully capable of regulating the activities within the complex of the Devasthan for maintaining discipline so as to facilitate convenience and interest of the devotees, and especially when the provisions in the present scheme make such provision, could the presence of one representative of "Tungars", "Purohits" or "Pujaris" each on the Board of Trustees not ensure promotion of the execution of the trust and its policies?
vii) What could be an ideal composition of the Board of Trustees in a religious trust such as the "Shri Trimbakeshwar Devasthan Trust"?
viii) Whether the tenure of "Life Term" of the trustees is appropriate? If not, the term should be fixed and for what period?
ix) Should this Court undertake the exercise of filing up the vacancy caused due to the death of trustees i.e. Damodar Adasare and Mulirdhar Pawar respectively-
13.Reverting to the first question formulated above, I have no manner of doubt that the factors and parameters which are required to be kept in mind while formulating a scheme as spelt out by the Division Bench of this Court in A.I.R. 1976 Bombay 304, Fakir Mohamad Abdul Razak v. The Charity Commissioner, Bombay and others, will apply with full force even at the time of modification of the scheme in exercise of powers under section 50-A(3) of the Act. It will be use to advert to some of the extracts of this decision. In paragraph 35 the Court has observed thus:
"It is well-settled that in suits like the suits for setting the scheme, the Court has a duty once it is found that it is a trust Page 28 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 for public purposes, to consider what is best in the interests of public. Settling a scheme is one of the most important reliefs relating to the administration of public trust. The primary duty of the Court is to consider the interest of the public for whose benefit the trust has been created. It has large powers to frame suitable schemes in cases where trust property has been diverted from it proper purposes, and the objects of the trusts are not being carried out and the persons in management are not properly accounting for the realisation from the trust property or otherwise misconducting themselves. Further in settling a scheme for the administration of a charitable trust involving the appointment of trustees or managers, the Court is bound to secure persons whom it regards as suitable. A Court cannot abandon its duties lightly relying on mere statements of Advocates without placing any material on record to show who is who and what is what as was done by the learned District Judge in the present case".
Again in paragraph 36 it is observed thus:
".....Appointing trustees is not like appointing sub-committee in association dealing generally with public affairs. The Court is called upon to appoint such trustees men who can apply their mind to the management of the trust and to find out whether those persons have got necessary physical and intellectual capacity and social standing which would justify their appointment as trustees of the public trust......."
In paragraph 37 it is observed thus:
"The Court has further to consider in settling the scheme the past history of the institution and the way in which the management of the trust has been carried on till the settlement of the scheme and the appointment of the trustee. The Court has also to find out whether the persons who are interested, and particularly the devotees of the religious institutions like a Dargah, are satisfied with the new scheme of management which the Court purposes."
In paragraph 40 while adverting to the other precedents, the Court observed thus:
"In Mahomed Ismail Arief v. Ahmed Moolla Dawood, 43 Ind Page 29 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 App. 127 : A.I.R. 1916 P.C. 132, the Privy Council laid down the principle that the Court has complete discretion in settling a scheme of management, it may defer to the wishes of the founder so far as they are conformable to changed conditions and circumstances, but its primary duty is to consider the interests of the general body of the public for whose benefit the trust was created. It may vary any rule of management which it finds either not practicable or not in the best interest of the institution. Mr. Ameer Ali, J., who delivered the judgment observed at page 136 as follows:-
"The present case, however, in their Lordships' opinion illustrates the mischief of leaving the power of appointing or electing trustees in the hands of an indeterminate and necessarily fluctuating body of people, whether they call themselves Panchayat or Jamat. In order to avoid so far as possible a recurrence of the trouble that has brought about this long-drawn litigation, their Lordships think it desirable, in the interest of the institution which form the primary matter for consideration, that the appointment of future trustees should be entrusted to a Committee of the worshippers the composition of which should be in the discretion of the Judge, with due regard to local conditions and needs, subject to the provisions that, so long as circumstances do not vary, a majority of such committee should be Randherias, and that in settling the scheme the Judge should lay down rules for their guidance in the discharge of any supervisitorial functions that may appear necessary to confide to them and for filling up vacancies on their body subject to his control."
"These principles were followed by the Privy Council in Ram Dularey v. Ram Lal, A.I.R. 1946 P.C. 34."
13A.Undeniably, the factors or parameters which would apply for framing or settling of the scheme would apply with full force even for the purpose of modification of the scheme. The parties in this case have accepted the position that modification of the earlier scheme was imperative."
This decision essentially deals with the powers of the Charity Commissioner to appoint, suspend, remove or discharge the trustees and to vest the property to the new trustees. Page 30 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 However, the broad factors and parameters necessary to apply for framing or settling the scheme have been also detailed in the said judgment. The Court has also further added that these very parameters would apply for the purpose of modification of the scheme. In the matter on hand, the disputed question that begs redressal is whether his subjective satisfaction of preliminary stage is a must while exercising powers and modification of the scheme.
None of these decisions has spoken of the necessity of the Charity Commissioner to satisfy himself and opine on the necessity of making the changes or modifying the scheme or considering it expedient to so do it at the stage of issuance of notice. What has been insisted by the petitioner before this Court is the requirement of this to have been done at an interim stage. Apt would be to refer to the facts of this case and particularly the application that has been moved for praying for dismissal of the main application filed by the applicants on the ground of maintainability. According to this application, the whole design is to remove all the trustees except the opponents themselves while praying for the appointment of the new trustees through different process. If there is need for removal of Page 31 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 the trustees who has to file a case before the District Court after filing an application before the Joint Charity Commissioner seeking permission to apply to the District Court for removal of the trustees. The application for amendment and drafting the scheme would not satisfy. According to these applicants, the ingredients enacted by the law and the Charity Commissioner has no power or authority to remove the trustees by drafting or amending the scheme and that too by bypassing the process. The Charity Commissioner chose not to entertain the application right at the stage of preliminary hearing and instead directed the same to be heard along with main application and further directed the parties to proceed with the hearing of the main application.
11. It appears that two of the trustees viz. Shri Rajesh Zaveri and Shri Navin P Shah approached the Joint Charity Commissioner, Bhavnagar for modification of the scheme on 8.9.2021. According to the petitioner, this ought to be decided at the preliminary stage where subjective satisfaction of the Joint Charity Commissioner is a must before issuance of notice. Relevant would be to refer to the scheme / trust deed at this juncture which provides for Clause 14. This clause says that any Page 32 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 change that needs to be made in the scheme shall be by 2/3rd trustees present in the meeting and provided as a part of agenda. Whereas Clause 18 of the same provides that for any modification either trustees of the trust or any two persons having interest in the trust can by a written application move the office of the Joint Charity Commissioner and on availing the opportunities to other trustees by issuance of notice, such changes can be made. Such a request on the part of the petitioners was denied by the Joint Charity Commissioner.
12. When the order impugned was challenged before the learned Single Judge, the Court chose not to interfere with the order by giving detailed reasons. Profitable it would be to reproduce:
"15. In view of above, in the facts of the present case, if the Joint Charity Commissioner on evidence comes to the conclusion that modification is necessary for proper management of the Trust, it is open for the Joint Charity Commissioner to do so and no fault can be found if the Joint Charity Commissioner comes to the conclusion that all the objections of the trustees about formation of opinion on reasonable belief would be taken into consideration while considering the objections against the application for modification of the Scheme being Application No.3/2021 in Original Scheme No.7/1981.
The present writ-application cannot be entertained at this stage as Section 50A(3) does not provide for the same requirement as contemplated under Section 50A(1) and Section 50A(2) of the Act.
Section 50A(3) stands alone wherein learned Charity Page 33 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 Commissioner after hearing the trustees can modify the scheme under Section 50A(1). The applicants are required to make out a case that said modification in the Scheme is necessary for proper management of the Trust. The test for modification would be stricter than that contemplated under sub section 1 of Section 50A.
In the facts of the present case, it is open to the Joint Charity Commissioner to consider the entire application for modification after hearing the trustees and hearing all the necessary parties and come to a conclusion as to whether modification is necessary or not. The contention that the Joint Charity Commissioner must first come to the conclusion about formation of opinion/satisfaction as sub section 1 of Section 50A is not warranted. It is open for the Joint Charity Commissioner to decide application for modification of Scheme after considering the objections taken by the trustees and all necessary parties but the reasons for modification of the said Scheme must be germane to what is provided under sub section 1 of Section 50A."
12.1 The essential challenge before this Court is the need of the Joint Charity Commissioner to satisfy itself with regard to the necessity and expediency of the modifying the scheme prior to giving of the notice and hearing the parties, we are not in agreement with the petitioner on that count. There are no two stages contemplated of (1) to record the reasons by the Joint Charity Commissioner of satisfying oneself for the need to issuance of the notice and (2) to determine this aspect finally. Any observations at that initial stage also would have a tendency to prejudice the rights of the other side. It is sufficient for the Joint Charity Commissioner to satisfy that this is a case of issuance of the notice and avail an opportunities to the parties Page 34 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 for the purpose of deciding the application which is being placed before it. Clause 14 and 18 of the trust deed, if are read together along with Section 50A of the Act, such powers to move the authority for modification of the scheme of trust are not restricted only to the trustees (two or more) but two or more persons who are public spirited and interested in the trust can also take recourse to such provision by making such request to the Charity Commissioner for modifying the existing scheme. While so doing, the parameters and criteria set out in Section 50A(1) shall need to be regarded.
13. Close examination of various decisions and the very provisions if are appreciated, it emerges without a semblance of doubt that Section 50A(1) and its requirement of determining necessity and expediency of making of scheme shall need to be read into Section 50A(3) while determining the necessity of modification at the instance of person permitted under the Scheme of the Trust so far as the final adjudciation of such an application of modification is undertaken at the hands of Joint Charity Commissioner. Neither side in fact, has disputed that aspect at the time of what has been seriously contested and rightly so is the insistence of such requirement to be fulfilled at Page 35 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 the preliminary stage. It is nowhere provided in the provisions explicitly nor any of the authorities tendered before this Court lays down such requirement. Even on independently looking at this issue, it fails every rationale inasmuch as when such satisfaction once is arrived at a preliminary stage, the same would surely result into serious prejudice to the other side.
14. Therefore, we are of the firm opinion that non entertainment of the application at a preliminary stage by the Joint Charity Commissioner as well as by the learned Single Judge would not warrant any kind of interference at the hands of this Court, in absence of any error of law, jurisdiction or interpretation while applying law to the facts of this case. We draw our strength from the decision of the Bombay High Court in case of Shivajirao Bhavanrao Patil (supra) where it says that requirement of applying the parameters provided in Section 50A(1) shall need to be read even at the time of determining of modification of the scheme essentially under Section 50 A(3). Absence of such explicit requirements in the very provision also would not make the task of the office of the Charity Commissioner or Joint Charity Commissioner, vulnerable or leave these authorities without guiding factors for making such Page 36 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 modifications.
14.1. Again, it also is logical to comprehend that making of a scheme, when has a strict parameters, the modification would surely need a far more stricter considerations, as some of the persons would approach for such changes, whereas as held above, it will be their onus to satisfy the Joint Charity Commissioner or Charity Commissioner as to why it is so necessary or expedient in the public interest to make such modification. By following all the parameters as mentioned in the decision detailed at para 10, Joint Charity Commissioner shall need to determine and finalize such issue.
14.2. Entire thrust is to reiteratively remind the office of Charity Commissioner that its very statutory existence is for the purpose of ensuring public interest in the functioning of trusts and that prime consideration of regarding best interest of public shall never take a backseat during process of adjudication.
15. From the foregoing discussion, the appeal challenging the impugned judgment and order dated 7.4.2022 of the learned Single Judge passed in Special Civil Application No.2572 of 2022 Page 37 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022 C/LPA/545/2022 JUDGMENT DATED: 20/09/2022 and in turn, challenging the order of Joint Charity Commissioner dated18.1.2022, deserves rejection and is accordingly dismissed.
16. In the order impugned, the Charity Commissioner had already directed the parties to proceed with the final hearing of the matters, let all concerned cooperate and matter be decided as expeditiously as possible preferably within a period of four months from the date of receipt of the present order.
17. In view of the disposal of the main Letters Patent Appeal, Civil Application also stands disposed of.
sd/-
(SONIA GOKANI, J) sd/-
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 38 of 38 Downloaded on : Sun Dec 25 02:15:42 IST 2022