Gujarat High Court
Rajendrabhai Vasantbhai Shah vs State Of Gujarat on 7 April, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4585 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAJENDRABHAI VASANTBHAI SHAH
Versus
STATE OF GUJARAT & 2 other(s)
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Appearance:
MR NAVIN PAHWA, SENIOR ADVOCATE with MR TARAK DAMANI(6089)
for the Petitioner(s) No. 1
for the Respondent(s) No. 2.7
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
MR SN SOPARKAR, SENIOR ADVOCATE with MR MONAAL J
DAVAWALA(6514) for the Respondent(s) No. 2.9
NOTICE NOT RECD BACK for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 2.1,2.3,2.8
NOTICE UNSERVED for the Respondent(s) No. 2.2,2.5,2.6
SERVED BY AFFIX(N) for the Respondent(s) No. 2.4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/04/2022
ORAL JUDGMENT
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1. The present writ-application is filed under Article 226 of the Constitution of India by the writ-applicants seeking the following reliefs :-
"(A) Your Lordship may be pleased to admit and allow the present Petition.
(B) Your lordship be pleased to issue a writ of certiorari or a writ in nature of certiorari and / or any of the writ, order or direction and be pleased to quash and set aside the impugned order dated 22.02.2022 (Annexure A) passed below Exhibit 56 by the learned Joint Charity Commissioner, Bhavnagar below Scheme Application No. 3 of 2021.
(C) Your Lordship be pleased to direct the learned Joint Charity Commissioner, Bhavnagar firstly to decide preliminary issues as raised by the Petitioner below Exhibit 17 before deciding or passing any order below Scheme Application No. 3 of 2021.
(D) Pending hearing and final disposal of the present Petition, your Lordship be pleased to stay the further proceedings of Scheme Application No. 3 of 2021 pending before the learned Joint Charity Commissioner, Bhavnagar.
(E) This Hon'ble Court may be pleased to grant such other and further relief as deemed just and proper in the interest of justice."Page 2 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022
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2. The facts as stated by the writ-applicants are produced thus :-
2.1 Shri Digambar Jain Swadhyaya Mandir Trust (for short 'the Trust') is a religious charitable Trust registered which is registered vide registration No.A/902 with the office of the Assistant Charity Commissioner Bhavnagar.
2.2 On 27.8.1982, the learned Joint Charity Commissioner, Rajkot framed the scheme in respect of the said trust by an order below Scheme Application No. 7 of 1981. In October, 2020, the Trust issued an agenda notice for calling upon meeting for appointment of new trustees In the meeting convened, two new trustees i.e. present writ-applicant and Mr. Harshad Prabhudas Kamdar were appointed as the trustees of the Trust.
2.3 An application being Application No. 41/A/12/2020 under the Trusts Act, 1950 before the learned Joint Charity Commissioner, Bhavnagar came to be preferred challenging the appointment of the writ-applicant and Harshad Kamdar as trustees of the Trust by Rajesh Jhaveri. By an order dated 29.6.2021 the said application came to be allowed. Against the order dated 29.6.2021 the writ-applicant preferred Special Civil Application No.12856 of 2021 before this Court and the same Page 3 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 writ-application is pending adjudication. On 8.9.2021 two existing trustees of the Trust alongwith one beneficiary filed Scheme Application No.3 before the Joint Charity Commissioner, Bhavnagar seeking modification of the Scheme.
On 9.11.2021, the Joint Charity Commissioner, Bhavnagar registered the application under Section 50A(3) and thereafter the application was fixed for hearing on 8.12.2021. On 19.1.2022, public notice came to be issued. On 8.2.2022 preliminary objections came to be filed below Ex.17 and 18 by the writ-applicant. On 3.2.2022, the writ-applicant below Ex.23 filed the objections to the Scheme Application No.3/2021. On 16.2.2022, the writ-applicant filed written arguments. 22.2.2022 the Joint Charity Commissioner, Bhavnagar by common order below Ex.56 decided the application below Ex.15 to 21 which includes the application filed by the writ-applicant for the purpose of deciding preliminary issue with regard to maintainability of the Scheme Application whereby the respondent No.1 passed an order that all the applications will be decided at the time of deciding the main Scheme Amendment Application.
2.4 In view of above, the writ-applicant is constrained to approach this Court by filing the present writ-application.
3. Mr. Navin Pahwa, the learned Senior Advocate appearing for the writ-applicant submitted that the impugned order Page 4 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 passed by the learned Joint Charity Commissioner dated 22.2.2022 is passed ignoring the provisions of Section 50A of the Act and submitted that it is settled position of law that at the time of considering the application for Scheme modification it is necessary to consider as to whether it is necessary to modify the Scheme in the interest of the Trust, but the said principle has been completely ignored by the respondent No.1 while passing the impugned order.
3.1 Mr. Navin Pahwa, the learned Senior Advocate further submitted that the respondent No.1 ought to have first decided the application preferred by the writ-applicant for deciding the preliminary issues and objections before proceeding further with the main Scheme application.
3.2 Mr. Navin Pahwa, the learned Senior Advocate submitted that the respondent No.1 ought to have firstly recorded the findings as to whether for the better and proper administration and management of the Trust, it is necessary to modify the Scheme as being sought for in Scheme Application No.3 of 2021 and that the learned Joint Charity Commissioner should have given the findings on the said application filed by the writ-applicant.
3.3 Mr. Navin Pahwa, the learned Senior Advocate further submitted that the learned Joint Charity Commissioner did not deal with any of the contentions raised by the writ-applicant Page 5 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 with regard to the maintainability of the main application and if the preliminary issue itself is decided in favour of the writ- applicant, the main Scheme Application itself would not be required to be heard.
3.4 Mr. Navin Pahwa, the learned Senior Advocate submitted that the respondent No.1 while passing the impugned order the learned Joint Charity Commissioner ignored the application filed by the writ-applicant raising preliminary issue and consequently the application filed by the writ-applicant could be said to have been rendered infructuous.
3.5 Mr. Navin Pahwa, the learned Senior Advocate submitted that the main scheme application seeking amendment/modification in the scheme itself is neither
maintainable nor tenable in the eye of law and, therefore, the order impugned passed by the learned Joint Charity Commissioner dated 22.2.2022 being against the settled principles of law is required to be quashed and set aside.
6.6 Mr. Navin Pahwa, the learned Senior Advocate relied on the following case law to substantiate the submissions as made:-
(1) 2007 (2) GLR 1716 (2) 1998 (1) GLH 811. Paragraph 1, 4, 12 and 13 (3) 2002 (1) SCC 475 (4) AIR 2021 SC 2710 Page 6 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022
4. Per contra, Mr. S. N. Soparkar, the learned Senior Advocate assisted by Mr. Monal J. Davawala, the learned advocate appearing for the respondent No.1 submitted that present writ-application was originally filed seeking opportunity for hearing to the writ-applicants. The said prayer does not survive. As far as amended writ-application is concerned, the writ-applicants have challenged the order dated 22.2.2022, wherein the writ-applicants have made an attempt to misdirect and mislead this Court.
4.1 Mr. S. N. Soparkar, the learned Senior Advocate submitted that the respondent herein is a trustee and office bearer in the Trust and one of the applicant of the scheme modification No.3/2021.
4.2 Mr. S. N. Soparkar, the learned Senior Advocate submitted the procedure and principle under Section 50A(1) of the Act is not applicable to the proceedings under Section 50A(3) of the Act.
4.3 Mr. S. N. Soparkar, the learned Senior Advocate submitted even if the first contention is negatived then if the application is filed as preliminary issue it is still open for the Charity Commissioner to decide such an issue alongwith the main application for modification.
Page 7 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 4.4 Mr. S. N. Soparkar, the learned Senior Advocate submitted that the notices with respect to the Scheme modification were issued to the trustees on 22.11.2021. The writ-applicant appeared before the competent authority from time to time and had preferred an application for adjournment in which time came to be granted by the competent authority.
4.5 Mr. S. N. Soparkar, the learned Senior Advocate submitted that the order dated 22.2.2022 states that the application of the writ-applicants and other persons raising such purported preliminary issue shall be decided finally after hearing all the parties. He submitted that in the entire writ- application, the writ-applicants have failed to point out as to how the writ-applicants are prejudiced by the order dated 22.2.2022 and as to how there is legal injury caused to the writ-applicants. It is not even the case of the writ-applicants that sufficient opportunity was not given before passing of the impugned order dated 22.2.2022. Mr. Soparkar, the learned Senior Advocate submitted that the provision of Section 50A(1) is with regard to a fresh Scheme. Lastly Mr. Soparkar, the learned Senior Advocate submitted that this Court may not entertain the present writ-application and it is required to be rejected.
5. Heard Mr. Navin Pahwa, the learned Senior Advocate assisted by Mr. Tarak Damani, the learned advocate appearing Page 8 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 for the writ-applicant and Mr. S. N. Soparkar, the learned Senior Advocate assisted by Mr. Monaal J. Davawala, the learned advocate appearing for the respondent No.2.9.
Analysis :-
6. The writ-applicant is a follower and disciple of Shri Sadguru Dev Shri Kanji Swami and having active interest and participated in the religious activities in relation to the work of Late Shri Sadguru Dev Shri Kanji Maharaj and beneficiary of the Trust. The respondents are trustees of Shri Digambar Jain Swadhyaya Mandir Trust. The said Trust came to be registered vide Registration No.A/902 at Songadh, Dist. Bhavnagar on 25.12.1939. The Joint Charity Commissioner framed the Scheme No.7/1981 with respect to the said Trust on 27.8.1982.
7. The respondents No.2.9 by an application being Application No.41/A/12/2020 under the Trust Act, 1950 before the learned Joint Charity Commissioner challenged the appointment of the writ-applicant and Shri Harshad Kamdar. The said application came to be allowed by the learned Joint Charity Commissioner by order dated 29.6.2021. The writ- applicant herein has filed the Special Civil Application No.12856 of 2021 challenging the said order passed by the learned Joint Charity Commissioner in Application No.41/A/12/2020 which is pending adjudication.
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8. The said Trust is a religious charitable Trust registered in the year 1939. The learned Joint Charity Commissioner framed Scheme No.7/1981 in respect to the said Trust. The two existing trustees of the Trust alongwith one beneficiary filed Scheme Application No.3/2021 before the learned Joint Charity Commissioner, Bhavnagar seeking modification of the Trust on 8.9.2021. The learned Joint Charity Commissioner, Bhavnagar by an order dated 9.11.2021 directed to register the said application under Section 50A(3) of the Act and thereafter the said application was fixed for hearing. The writ-applicant herein filed objections below Ex.17 and 18. The writ-applicant on 8.2.2022 below Ex.23 filed detailed objections for the Scheme Application No.3/2021 alongwith the documents to show that the said modification is illegal and arbitrary on 3.2.2022. The learned Joint Charity Commissioner, Bhavnagar by common order below Ex.56 passed the impugned order dated 22.2.2022. The operative paragraph of the said order dated 22.2.2022 reads thus :-
"In the aforementioned Scheme Amendment Application submitted to this office, in addition to the representations made under the provision of Section-50(a)(3) of the Bombay Public Trust Act, 1950, now the Gujarat Public Trust Act that, The charity commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under sub-section (1) or sub-section(2) and the representations mainly made for the opponent trustees and the applicant trustees of the Page 10 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 Scheme Amendment Application, thousands of representations, opinions, suggestions, objections in writing have been received from the beneficiaries, interested parties of the said trust with respect to the Public Notice issued in the present case. I believe it appropriate and necessary to consider the representations received from the perspective of the section-
provisions, in the interest of the trust. It appears from the circumstances of the case that, if the representations are not considered, it shall not be appropriate. Therefore, it appears appropriate to decide the preliminary objections and issues raised in the applications submitted by the opponents, at the time of deciding the original application and passing an order in the case of the Scheme Amendment Application, along with considering comprehensively the representations received, the representations that the parties and the beneficiaries, in person, intend to make with respect to the present Scheme Amendment Application. It shall be in the interest of the trust if decision is taken considering all the aspects. Considering the present situation of the case, it appears that an interest of the trust, the paramount interest shall be maintained and protected only if all the issues pertaining to the Scheme Amendment Application are decided. In this way also, I believe that, it is necessary, inevitable and appropriate to take into account the fact that the purpose and intent of the legal provisions made for the trust be served. It is not an application for individual rights, interests and entitlements or for the suit. I believe that, the main issue is as to what is in the interest of the public trust and there is a reason to Page 11 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 believe in the light of the provisions of the Act that, the same is an important issue. It is in the interest of the public trust to take into consideration the representations regarding the issues raised in the scheme amendment application along with taking into account that decision making is done for all matters and it appears that, there is no reasonable ground for not considering it accordingly. Therefore, it appears that, there is reasonable and appropriate situation in the procedure of the present case to also take the decision regarding these preliminary objection, issues at the time of the decision of Exhibit-1 keeping in the center as to what is in the interest of the public trust. Therefore, it does not appear appropriate to accept the submissions to reject the applications made in regard with these preliminary objections issues submitted by the applicants. Because, in the interest of the Trust, the decision regarding the preliminary objections will also be taken simultaneously at the time of the decision of Scheme Amendment of Exhibit-1 while considering the issues, objections raised vide these applications.
It is hereby ordered to commence the hearing in the matter of original scheme amendment application so that the present party / advocate and beneficiary / claimant can make their submission, if any. Signature of the present Advocate / Beneficiary / Claimant be obtained after reading over same to them for information and action.
Date : 22/02/2022 Sd/-Illegible Page 12 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 Place : Bhavnagar (R.V. Vyas) Joint Charity Commissioner Bhavnagar Division, Bhavnagar It is hereby certified that this is a certified copy. Sd/-Illegible Superintendent Office of Joint Charity Commissioner, Bhavnagar
9. Section 50A of the Gujarat Public Trust Act - Power of Charity Commissioner for frame, amalgamate, modify the Scheme reads thus :-
"50A.(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 after 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 opinion that in the interest of the proper management or administration, two or Page 13 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 more public trusts may be amalgamated by framing a common scheme for the same, he may, afterPower of Charity Commissioner to frame, amalgamate or modify schemes. 1950:
Bom. XXIX] Bombay Public Trusts Act, 1950 27 of 53
(a) publishing a notice in the Official Gazette and also in at least two newspapers (one in English, and the other in the language of the region) 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.
[(2A) A scheme under this section may provide for the number of trustees, the mode of appointment of trustees including the appointment of the first trustees, vesting of the trust property in the trustees so appointed, mode of filling any vacancy of a trustee the remuneration of a trustee or manager of the public trust and where necessary, a clarification of the objects of the public trust.].
(3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under sub- section (1) or sub-section (2).
(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 competent court under section 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under section 50."
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10. In the case of Chhotubhai L.Patel Versus State Of Gujarat, reported in 2007 (2) GLR 1716.
Heard Note :-
"Bombay Public Trusts Act, 1950 - S. 50A - framing of scheme for Public Trust by Charity Commissioner under S. 50A - application filed by respondent no. 3 to 5 - in said proceedings petitioner filed an application raising preliminary issue regarding expediency and necessity in interest of the Trust for framing of Scheme for said trust - application was rejected - validity of - held, first and foremost requirement of S. 50a is recording of a satisfaction by the Charity Commissioner that it is necessary/expedient to frame a scheme
- in interest of proper management or administration of a public trust regardless of the allegations in application filed under S. 50A by any person or regardless of whether proceedings have been initiated suo motu - in present case, application of petitioner raising preliminary issue was rejected without recording any satisfaction or any reasons for rejecting the same - impugned order also proceeds on an entirely erroneous premises - impugned order set aside as issue raised by petitioner has not been decided as required in law - application of petitioner restored for fresh consideration by respondent no. 2-authority - petition allowed accordingly."
Paragraphs 7 to 11 reads thus :-
(7.) Sec. 50A(1) of the Act reads as under:-Page 15 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022
C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 "50A. Power of Charity Commissioner to frame, amalgamate or modify schemes.
Notwithstanding anything contained in sec. 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 of 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 after 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."
(8.) On a plain reading the provision requires that regardless of what is stated in Sec. 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 Page 16 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 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 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 Page 17 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 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 Sec. 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-sec. (2A) of Sec. 50A of the Act and states that the question is not only whether the scheme should be framed but also whether trustees should be appointed or not. Sub-sec. (2A) of Sec. 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 Sec. 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 Page 18 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 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.
In paragraphs 9 to 11 the Coordinate Bench of this Court held that the learned Charity Commissioner was required to raise a preliminary issue as regard his satisfaction that it is necessary or expedient to proceed further to frame a Scheme or even proceed further in that direction. The decision pertains Page 19 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 to interpretation of Section 50A(1) of the Act which is with regard to framing of a fresh Scheme and not Section 50A(3) which is with regard to the modification of the existing Scheme.
10.1 In the case of Saiyed Mohammad Bakar EI-Edroos vs. Abdulhabib Hasan Arab and Ors., reported in 1998 (1) GLH
811. Paragraph 1, 4, 12 to 14.
"(1.) The short question for consideration is, whether the proceedings under Sec. 50A of the Bombay Public Trusts Act, 1950 would abate for the non-substitution of one of the applicants since deceased, and whether the Charity Commissioner has power under the Act to grant the belated substitution application made after long delay.
(4.) On this submission, two questions arise. First, even if it could be said, Civil Procedure Code is applicable to the proceeding before the Charity Commissioner the proceedings under Sec. 50A abate on the facts of the present case, second, whether Civil Procedure Code would apply to a proceeding under Sec. 50A? To answer the first question, it has to be seen what is the proceeding before him? What is pre-requisite before he could initiate proceedings under Sec. 50A of the Act?
(12.) Now, let us examine the second question, whether Civil Procedure Code at all is applicable to a proceeding under this Section. Reliance is strongly placed by the learned Counsel on Page 20 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 the aforesaid Rule 7 of 1951 Rules and Sec. 6 of the aforesaid 1882 Act. We find Rule 7 prescribes inquiry within the field it refers to be as far as possible in accordance with the procedure as prescribed for the trial of suits by the Small Causes Court under the said 1882 Act. Sec. 6 of this 1882 Act refers to Civil Procedure Code on which strong reliance is placed. But reference to Civil Procedure Code herein is for a limited purpose. It is only to indicate that Small Causes Court to be a court within the meaning of the Code of Civil Procedure and to be court subordinate to the High Court. Neither Rule 7 nor Sec. 6 gives what procedure is to be followed in a suit by the Small Causes Court.
(13.) We find Sec. 9 of 1882 Act provides the procedure to be followed. Sec. 9 is quoted hereunder:
["9 (1). The High Court may, from time to time, by rules having the force of law, ] [(a) prescribed the procedure to be followed and the practice to be observed by the Small Cause Court either in supersession of or in addition to any provisions which were prescribed with respect to the procedure or practice of the Small Cause Court on or before the thirty-first day of December 1894, in or under this ] [Act or any other enactment for the time being in force; and] [(aa) empower the Registrar to hear and dispose of undefended suits and interlocutory applications or matters, and] [(b) cancel or vary any such rule or rules.] [Rules made under this Section may provide, among other matters, for the exercise by one ore more of the Judges of the Small Cause Court of any powers conferred on the Small Cause Court of any powers conferred on the Small Cause Court by this Act or any other enactment for the Page 21 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 time being in force.] [(2) The law, and any rules and declarations made, or purporting to be made, thereunder, with respect to procedure or practice, in force or treated as in force in the Small Cause Court on the thirty-first day of December 1894, shall be in force unless and until cancelled or varied by rules made by the High Court under this Section."] (14.) So, it is the High Court by rule to prescribe the procedure to be followed by the Small Causes Court. The procedure is not what is under Civil Procedure Code. Hence, the argument that proceeding before the Charity Commissioner to be what is provided in Civil Procedure Code is without any foundation. The same is accordingly rejected."
In the above referred judgment the Hon'ble Supreme Court in para-14 held that Code of Civil Procedure does not apply in the proceedings under the Bombay Public Trust Act. That the proceedings under Section 50A of the Bombay Public Trust Act would not abate and the Charity Commissioner has power to act and further held that the Charity Commissioner has power to grant substitution even if belated or add party in the proceedings.
11. Section 50(A) begins with the non-obstante clause which has have an overriding effect on the provision of Section 50. The Charity Commissioner can frame a scheme under this section without filing suit under Section 50 of the Act.
11.1 The Charity Commissioner can move under Section Page 22 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 50A(1) if;
a) He has "reason to believe" that a scheme should be settled for a trust, however the reason for such a belief should be in the interest of proper management or administration of the trust.
(b) or, if two or more persons having interest in the Trust apply to the Charity Commissioner in the prescribed manner, but such application should show that the settlement of a scheme is in the interest of proper management or administration of the Trust.
In either of the cases, the Charity Commissioner is required to give to the trustees of the Trust an opportunity to be heard as to why such Scheme should not be framed.
Thereafter, Charity Commissioner should be satisfied that it is either necessary or expedient to frame a scheme for the management or administration of the Trust.
11.2 Under sub section (2) of section 50A, the Charity Commissioner has been empowered to amalgamate two or more public trusts by framing a common scheme if he is of the opinion that the same is in interest of proper management and/or administration of the Trust.
Page 23 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 The above action can be taken only after publishing a notice for this purpose in official gazette and also in the two newspapers, one in English and the other in the language of the region in which the trust is registered.
Having framed the scheme under Section 50A(1), the Charity Commissioner under sub-section 3 is also conferred power to modify the scheme framed by the Charity Commissioner under sub section 1 and sub-section 2.
The action under Section 50A(1) can be initiated only if the Charity Commissioner has reason to believe that the action is in the interest of proper management or administration of the public trust and after initiating the action, and hearing the trustees, the Charity Commissioner should be satisfied that it is necessary or expedient to frame the scheme.
Similarly, so far as the action for amalgamation is concerned, Charity Commissioner is required to form an opinion that such amalgamation is in the interest of proper management or administration of the Trust.
Sub section 3 of section 50(A) enables the Charity Commissioner at any time after hearing the trustees to modify the scheme.
Page 24 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 While, framing of the Scheme and amalgamation of the Trust, the Charity Commissioner is required to form a reasonable belief that there is interest of proper management or administration of the Trust and the Charity Commissioner can initiate action.
Section 50A(3) enables the Charity Commissioner to modify the scheme. However, the language and wording of sub section 3 is different from sub section 1 and 2 of section 50A.
Sub section 3 enables the Charity Commissioner to modify the scheme. The grounds for the modification may be the same as "in the interest of proper management or administration of public trust" but it is not necessary for Charity Commissioner to provide preliminary hearing and/or record satisfaction/opinion before embarking upon the consideration of need for modification as required under sub section 1 of Section 50A of the Act.
12. In view of above, in the facts of the present case, if the Charity Commissioner on evidence comes to the conclusion that modification is necessary for proper management of the Trust, it is open for the Charity Commissioner to do so and no fault can be found if the Charity Commissioner comes to the conclusion that all the objections of the trustees about formation of opinion on reasonable belief would be taken into Page 25 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 consideration while considering the objections against the application for modification of the Scheme being Application No.3/3021 in the 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 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.
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 the application for modification of Scheme after considering the objections taken by the trustees and all necessary parties but the reasons for Page 26 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022 C/SCA/4585/2022 JUDGMENT DATED: 07/04/2022 modification of the said Scheme must be germane to what is provided under sub section 1 of Section 50A.
13. In view of above, no error of law or jurisdiction could be said to have been committed by the learned Joint Charity Commissioner. This Court is not inclined to exercise extraordinary jurisdiction under Article 226/227 of the Constitution of India as no case for interference is called for in the order passed by the Joint Charity Commissioner, Bhavnagar dated 22.2.2022 below Ex.56 in Scheme Application No.3 of 2021.
14. In terms of the observations made above, the present writ-application fails and the same is rejected. Notice stands discharged.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 27 of 27 Downloaded on : Thu Apr 07 21:34:03 IST 2022