Paraskumar S/O Bhalchand vs Sureshkumar Hukumchandji Kasliwal on 13 August, 2008

[Cites 7, Cited by 3]

Bombay High Court

Paraskumar S/O Bhalchand vs Sureshkumar Hukumchandji Kasliwal on 13 August, 2008

2. These three appeals are directed against the common judgment and order dated 10.3.2008 passed by the District Judge-2, Aurangabad allowing applications bearing MARJI nos. 155 of 2006, 141 of 2006 and 156 of 2006, filed under section 72 of the ::: Downloaded on - 09/06/2013 13:41:32 ::: (8) Bombay Public Trusts Act, 1950 (for short the B.P.T. Act).

3. At the outset it may be mentioned that in Shivprasad Shankarlal Pardeshi v. Leelabai Badrinarayan Kalwar reported in AIR 1998 BOMBAY 131 a Division Bench of this Court has held that an appeal against the order passed by the District Judge in application under section 72 of the Bombay Public Trust Act, is in the nature of second appeal and would be governed by the limitations imposed by section 100 of the Code of Civil Procedure and can be admitted only as regards a substantial question of law.

4. A trust by name Shri Chintamani Parshwanath Digambar Jain Atishay Kshetra Kachner is registered under the B.P.T. Act under registration no.

BTR/A/3054 and the same is hereinafter referred to as "the Trust". It appears that some persons made a complaint about mis-administration and mis-management by the trustees of the Trust. The Assistant Charity Commissioner, appointed an Inspector working in his office to conduct a preliminary enquiry and submit a report. After the preliminary enquiry the Inspector submitted his report on 15.1.2004. On the basis of ::: Downloaded on - 09/06/2013 13:41:32 ::: (9) the report of the Inspector the Assistant Charity Commissioner issued a notice to the trustees. The trustees sent their reply on 14.5.2004. After consideration of the report of the Inspector and the reply of the trustees the Assistant Charity Commissioner, initiated a suo-motu enquiry vide an order dated 25.8.2004 and issued notices of enquiry to the complainant and trustees to show cause why a scheme under section 50-A of the B.P.T. Act be not framed for the better administration of the trust.

All the trustees appeared and filed their response to the notice.

After hearing the trustees the Assistant Charity Commissioner, by his judgment and order dated 31.3.2006, framed a scheme for the better management and administration of the Trust and appointed 11 persons as the first trustees of the trust.

Aggrieved by the decision of the Assistant Charity Commissioner framing the scheme, three groups of persons filed three separate applications under section 72 of the B.P.T. Act before the District Court for setting aside the decision of the Charity Commissioner. All the three applications were heard together and by a common judgment and order dated 10.3.2008 the District Judge 2, Aurangabad allowed the applications and set aside the order of the Assistant Charity Commissioner. That order is ::: Downloaded on - 09/06/2013 13:41:32 ::: (10) impugned in these appeals.

5. Appellants were two of the existing trustees of the Trust before the scheme; they are also the trustees appointed as first trustees under the scheme framed by the Assistant Charity Commissioner under section 50-A of the B.P.T. Act.

However, since the scheme framed by the Assistant Charity Commissioner has been set aside by the District Court fearing that they may lose original trustyship they appear to have approached this Court challenging the order of the District Court setting aside the order of the Assistant Charity Commissioner framing the scheme.

6. Learned counsel for the appellants submitted that the original applications made by three group of applicants under section 72 of the B.P.T. Act were not maintainable as they had no locus standi to challenge the order of the Assistant Charity Commissioner. He therefore submitted that the order of the District Judge requires to be set aside. He further submitted that the observations made by the learned District Judge in paragraph 16 and 25 of his order tend to suggest that the notices were not issued to the original trustees. These ::: Downloaded on - 09/06/2013 13:41:32 ::: (11) observations were patently incorrect inasmuch as notices were issued to all the trustees and they were heard in the matter. The order of the District Judge proceeds on the wrong premise that the Assistant Charity Commissioner passed the order without notice to the trustees and therefore the order of the District Judge is erroneous and perverse and is required to be set aside.

7. As regards the first ground about the maintainability ig of the applications before the District Court, section 72 of the B.P.T. Act provides that any person aggrieved by the decision of the Charity Commissioner under section 40,41, (41C and 43(2) (a) and (c), 50-A, 70 or 70-A or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. Thus any person aggrieved by the decision of the Charity Commissioner under section 50-A of the B.P.T. Act is entitled to file an application under section 72 for setting aside of the order. In my view, a person aggrieved by the decision of the Charity Commissioner need not ::: Downloaded on - 09/06/2013 13:41:32 ::: (12) be a trustee. Any member of a trust, or a beneficiary who has a right to participate in activities of a trust may also feel aggrieved by a decision of the Charity Commissioner framing or refusing to frame a scheme under section 50-A of the B.P.T. Act. For example if by the original trust deed a person has right to do a certain thing and under the scheme proposed and approved by the Charity Commissioner under section 50-A that right of the person is taken away, he would be a person aggrieved.





                                                   
     It     would depend upon facts and circumstances of each

     case     as
                              
                        to who is a person aggrieved.                           No     general

     proposition             can be laid down that only the                          trustees
                             
     would        be     the persons aggrieved by an order                             of     the

Charity Commissioner passed under section 50-A of the B.P.T. Act. A person whose rights under the existing Trust are taken away by a scheme framed under section 50-A of the B.P.T. Act would ordinarily be a person aggrieved. Similarly in case of a religious trust, wherein a member of public has right to worship at a particular place may also feel aggrieved if his right to worship is taken away by the proposed scheme under section 50-A of the B.P.T. Act. The respondent no.1 in second appeal no. 487 of 2008, who was the applicant in MARJI no. 141 of 2006 was a member of a special committee framed in ::: Downloaded on - 09/06/2013 13:41:32 ::: (13) accordance with clause no.17 of the trust deed.

Under the said clause no.17 he had certain rights in the management of the trust. These rights do not appear to have been preserved by the scheme under section 50-A of the B.P.T. Act. Learned counsel for the appellants was unable to point out any provision in the scheme preserving his right which he had as a member of the special committee under the original trust deed. In the circumstances it cannot be said that respondent no.1 in second appeal no. 487 of 2008 was not a person aggrieved by the order of the Assistant Charity Commissioner framing of the scheme.

Consequently he had a right to file an application under section 72 of the B.P.T. Act. Similar appears to be the position in respect of applicants in MARJI no. 155 of 2006 as well as MARJI no. 156 of 2006.

Applicants therein also had certain rights under the original trust deed which were not preserved under the scheme framed by the Charity Commissioner under section 50-A of the B.P.T. Act. In any event even if one application was maintainable that would be sufficient inasmuch as in all the applications the same relief namely setting aside the order of the Assistant Charity Commissioner was claimed.

8. As regards the observations made by the ::: Downloaded on - 09/06/2013 13:41:32 ::: (14) learned District Judge in paragraph 16 and 25 of his judgment they do suggest that notices were not served on all the trustees and they were not given an opportunity of being heard. This appears to be contrary to the observations made by the Assistant Charity Commissioner in his order wherein he has stated that after the receipt of the report of the Inspector notices were issued to the trustees, they appeared and filed their response to the proposed scheme. Thus it appears that these observations made by the District Judge that the trustees were not given a proper opportunity of hearing before framing of scheme under section 50-A are erroneous. However, that is not the ground or the only ground on which the learned District Judge has set aside the order of the Assistant Charity Commissioner. The District Judge has set aside the order on the ground that it was not proved that Assistant Charity Commissioner, Aurangabad had a reason to believe that the scheme should be settled in the interest of the proper management or administration of the public trust.

The first issue framed by the District Court and his answer thereto is quoted below:-

                   Point                                               Finding




                                                         ::: Downloaded on - 09/06/2013 13:41:32 :::
                                             (15)


                   "1.    Whether   Asstt.     Charity
                   Commissioner Aurangabad had reason
                   to believe that in the interest of                      No
                   the    proper     management     or
                   administration   of   the    public




                                                                                
                   trust,   the scheme     should   be
                   settled for it?"




                                                      
     .              Thus       the     order of the    Assistant           Charity




                                                     
     Commissioner          has been set aside not on the ground of

     non-issuance          of       notices to the trustees but on                the

ground that there was no reason to belive that in the interest of proper management or administration the scheme should be settled.

9. No arguments were advanced by the learned counsel for the appellants that this finding is in any way erroneous, much less perverse. As stated earlier the second appeal can be admitted only on a substantial questions of law and not on a finding of fact. In my view no substantial question of law arises in this appeal, requiring its admission.

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 ::: Downloaded on - 09/06/2013 13:41:32 ::: (16) 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 un-briddled. It can be exercised only ig if he is satisfied that in the interest of the proper management or administration of a public trust a scheme should be settled. 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 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 ::: Downloaded on - 09/06/2013 13:41:32 ::: (17) 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 in-sufficient 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 ::: Downloaded on - 09/06/2013 13:41:32 ::: (18) 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.

11. No ground for interference is made out.

Consequently the appeals are dismissed summararily.

(D.G. KARNIK), JUDGE arp/1388/487 ::: Downloaded on - 09/06/2013 13:41:32 :::

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