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1. This is an appeal against order dated 28th October 1982 passed by the court of 6th Extra Assistant Judge, Pune in Miscellaneous application No. 171 of 1979. This appeal is preferred by one Taher Ali-mohohamad Poonawala (Original Respondent No. 3 in Misc. Application No. 171 of 1979).

2. On 9th February 1976, the Charity Commissioner, Maharashtra State, Bombay issued a notice under section 50-A(2) of the Bombay Public Trusts Act, 1950 numbered as Misc. Proceeding No.50-A/185 of 1975. It was recited in the said notice that the learned Charity Commissioner was of the opinion that (1) Anjuman-e-Taheri Trust B-151 (Poona) and (2) Saifi Mahal Trust B-150 (Poona) ought to be amalgamated and a common scheme was necessary for such amalgamation in the interest of the proper management and administration of the. two trusts referred to therein. By the said order notice, the trustees of the two trusts were called upon to show cause as to why the said trusts should not be amalgamated and as to why a common scheme should not be settled in the interest of the proper management and administration of the said trusts. No grounds in support of the proposed amalgamation or the relevant materials justifying issue of such notice were disclosed in the said notice. It appears that prior to issue of the said notice, the Charity Commissioner had passed an order. A copy of the said order is made available to this Court. A copy of the said order is at page 22 of the appeal paper book. The said order reads as under :--

7. Since the Deputy Charity Commissioner dropped the proposal for amalgamation of the two trusts, no appeal was filed by the trustees of the two trusts or either of the trust before the District Court at Pune in view of the proposal for amalgamation of the two trusts referred to hereinabove having been rejected by the Deputy Charity Commissioner by his order dated 31st January !977.

8. One Sheikh Nomanbhai Taherali preferred Civil Application No. 171 of 1979 before the Court of VI Extra Assistant Judge, Pune at Pune, invoking jurisdiction of the District Court under Section 72 of the Bombay Public Trusts Act, 1950. The said proceeding is liable to be considered as an appeal before the District Court. It has been held by the Supreme Court in a reported judgment that the proceeding under Section 72 of the Act is liable to be treated as an appeal. Shri Sheikh Nomanbhai Taherali was the manager of the said Saifi Mahal Trust at the material time. By the said application, the applicant before the District Court, the impugned order dated 31st January 1977 passed by the Deputy Charity Commissioner in so far as the scheme pertaining to Saifi Mahal Trust was sought to be framed and settled by the said impugned order. It was specifically alleged in para 7 of the said application made under Section 72 of the Bombay Public Trusts Act, 1950 that at no stage, the Deputy Charity Commissioner had intimated to the trustees of the two trusts that he proposed to frame a scheme in connection with the Saifi Mahal Trust. In the said application, it was specifically contended that the Deputy Charity Commissioner had formulated issues in para 6 of his order for the first time without giving any opportunity to the applicant or trustees of the said trust to make their submission in respect of the scheme sought to be settled under the said impugned order and marked Exhibit "A" to the said order. The notice was issued by the District Court in the said proceedings on 15th June 1977. The said notice was served on Mr. K. A. Poonawala on 30th June 1977. It appears that on 11th July 1977. Mr. K. A. Poonawala filed his written submissions in the above referred proceedings. A copy of written submissions filed by and on behalf of Mr. K. A. Poonawala is made available to this Court and the said submissions form part of the paper book consisting this appeal. Mr. K. A. Poonawala contended that the application bearing Misc. Application No. 171 of 1979 was bad in law for non-joinder of Anjuman-e-Taheri Trust as a party thereto. In Para 14 of the said written submissions, it was submitted as under:--

11. The basic question which is required to be considered is as to whether the grounds for proposed amalgamation of the two trusts were formulated and set out in the show cause notice or any other communication addressed to the trustees of the two trusts. In my opinion, it was the duty of the Charity Commissioner or Deputy Charity Commissioner to formulate the grounds for proposed amalgamation of the two trust and indicate at least broadly the material in his possession on the basis of which the requisite opinion was formed so as to initiate the suo motu inquiry under Section 50-A(2) of the Act prima facie conclusion of the Charity 'Commissioner in this behalf must be backed by facts and objective analysis of the material sought to be relied upon howsoever brief. Such factual formulation must be set out at least broadly in the show cause notice issued to the trustees of the two trust. In absence of such formulation, . the trustees can hardly make appropriate submissions in respect of proposal for amalgamation of the two trusts. The Charity Commissioner can initiate inquiry of issue notices under Section 50A (1) or Section 50A (2) of the Act only if he has reason to believe that the proposed scheme is in the interest of proper management or administration of public trust. The words 'reason to believe' are specifically used in Section 50A (1) of the Act. The said words shall have to be read in Section 50A (2) of the Act also by necessary application. Mere use of the words of section in the show cause notice or order authorising initiation of suo motu inquiry is totally insufficient. The Charity Commissioner is required to record his reasons at least briefly in his order sanctioning initiation of suo motu proceedings under either of the two sub-sections. In inquiry of this kind, even evidence may be led by the parties particularly in relation to alleged mismanagement or misfeasance. In this case, the order passed by the Charity Commissioner sanctioning the initiation of suo motu inquiry concerning the proposed common scheme which appears at page 22 of the appeal paper book does not disclose any grounds whatsoever on the basis of which the Charity Commissioner was prima facie satisfied that suo motu inquiry should be started and a common scheme should be framed for amalgamation of the two trusts. Even in the written submissions filed by Mr. K. A. Poonawala, one does not find reference to any concrete material in support of the prayer made in 14 of written submissions filed by him before the District Court on 11th July 1977. In my opinion, the basic procedure required to be followed in cases of this kind has not been followed at all and the entire proceedings suffer from fundamental defections aforesaid.

16. The learned counsel for the respondents Nos. 1 and 2 has submitted that the Court be pleased to clarify that in any such fresh inquiry, if any, it shall be open to the trustees of the two trusts to raise all contentions available to them under the law. These proceedings are not being decided on merits. These proceedings are being decided in favour of the respondents Nos. 1 and 2 basically on the ground that the Charity Commissioner or Mr. K. A. Poonawala had not even formulated the grounds in support of the proposed amalgamation or in support of the proposed settlement of the scheme pertaining to one of the trust as required by law. I have already taken the view that these proceedings shall have to be considered as non est in view of fundamental procedural defect pertaining thereto and the non-compliance of jurisdictional condition by the Charity Commissioner before issuing the show cause notice. There is no material on record on the basis of which this Court can infer that the Charity Commissioner had reason to believe that framing of the scheme was necessary in the interest of the two trusts or either of them or for their better management or better, administration. It is hereby clarified that if any fresh show cause notice is issued by the Charity Commissioner hereafter invoking S. 50A(1) or S. 50A(2) of the Act, it shall be open to the trustees to resist the proceedings on grounds available to them under the law. It is however necessary to clarify one more aspect of the matter. Since no findings are recorded on merits of the allegations made against trustees concerning the management of the two trusts or either of them, the plea of bar of fresh proceedings as grounds analogous to res judicata would not be available.