2005 Supreme(Bom) 1009

IN THE HIGH COURT OF BOMBAY
Pradeep R. Mafatlal
Versus
State
Decided Date: 08/08/05

Headnote:Bombay Public Trusts Act, 1950 - Section 50 - Sanction of proposed amendment of Scheme of Trust. - Writ petition filed by Trustee of Public Charitable Trust for sanctioning proposed amendment of existing scheme of Trust is maintainable.

       Bombay Public Trusts Act, 1950 - Section 50 Scheme of Trust Modification and alteration of Trustees proposed modification and alteration Resisted by intervenors and caveators Trustees have absolute domain over modification and alteration of scheme Advisability of Trustees cannot be questioned by Court. The contention which has been advanced by the learned Chartered Accountant and the Advocate both appearing in person is that the scheme which is proposed is not in the interest of the trust and this Court should either reject the same or modify suitably in the interest of the trust. It has been contended that the provisions providing for expulsion of the member s as proposed should be modified so as to provide for a grading punishment rather that straight away expulsion of the members from the membership of the trust. It has been also contended that the capping of the election of the Managing Committee Trust and the Secretary being six and three times respectively which is sought to be done away by modification of clause 19(dd) and 19(ddd) should be rejected and the capping cover should be retained so as to avoid of the monopoly in the Managing Committee Trust, which will be in the interest of the trust.

       In support of the aforesaid contention the learned counsel has relied upon the judgment of the single Judge of this Court in Misc. Petition No. 31 of 1988 decided on 21.10.1997 in which the original clause 30 was prescribed on the number of times a person can be elected as a Managing Committee Member or a Secretary. The learned counsel for the respondent appearing in person has further contended that he appeared before the learned Judge and the learned Judge modified the scheme so as to avoid capping on the number of times a person can be elected. I have perused the order dated 21.10.1997 passed by the learned single Judge, I do not find any such discussion that the objection of the respondent to provide for capping was taken into consideration. The modification which was proposed to clause 30 itself provided a restriction that no person of the club can be a member of the Managing Committee for more than 6 times. Page 13 of the judgment in para 7(k) provided that no person can be a member of the Managing Committee for more than six times as proposal of the trustees to amend the scheme. In any event both modification or alteration of the scheme are the issues in a absolute domain of the trustees. If the trust have proposed certain modification then the advisability thereof cannot be questioned by the Court nor can propound its own scheme for the purpose of modification in place and instead of the scheme proposed by the trust. In Court view clause 98 does not give to this Court, a completely free hand to frame a fresh scheme altogether which may not be supported by the majority of Trustees or a majority of the members of the Anjuman Committee. In our view, this would not be a correct interpretation of clause 98. Even if assume that the Court has powers to amend or alter the proposals before it is submitted by the Trustees or by the members of the Anjuman Committee, the Court should be slow in exercising such powers. It would not therefore, be proper for Court to ignore the proposals placed before us by the Trustees and frame an altogether different scheme.

       Bombay Public Trusts Act, 1950 - Section 50 Scheme of Trust Amendment of Jurisdiction of Court Proposed amendment sanctioned by Court Objection against Contended that only Charity Commissioner has exclusive jurisdiction to make amendment in Scheme of Trust Contention not tenable High Court framed scheme in a decree passed in earlier suit High Court had jurisdiction to entertain and try application for amendment of scheme under Section 50 of Act. The counsel appearing for the respondent No. 2 has inter alia contended that this Court has no jurisdiction to entertain the petition. He has taken me through the various provisions of Bombay Public Trusts Act, 1950 particularly the definition of the word "Court" under Section 2(4) the provisions of Sections 50, 50(a), 52, 85 and 86 of the Bombay Public Trust Act, 1950. It has been inter alia contended that the word "Court" defined by the provisions of Section 2(a) means in the Great Bombay, the City Civil Court and elsewhere, the District Court. It has been further contended that the application by way of miscellaneous petition would not lie in this Court because for framing of a scheme of variation or alteration therein an application should be made to the Charity Commissioner under Section 50, clause (iv)(j) of the Bombay Public Trusts Act, 1950 and thus he alone would have jurisdiction to alter amend, verify or form a new scheme for the election of Trustees of Parsee Panchayat. It has been contended that under Section 92, the provisions of Sections 52 and 93 of Civil Procedure Code has been repealed and they cease to apply to the Public Trusts and therefore the present proceedings initiated in this Court is totally beyond the jurisdiction of this Court and cannot be entertained. This issue of jurisdiction has also been supported by other intervenors.

       Bombay Public Trusts Act, 1950 - Clause 95 is a consequential clause and it says that any alteration or modification that is sanctioned by the Judge in Chambers shall form part of the scheme. Thus, under the scheme as framed by this Court, the High Court has jurisdiction to entertain a petition for alteration or addition to the provisions of the scheme.