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IN THE HIGH COURT OF BOMBAY
RAMKRUSHNA-APPA and VISHWESHWAR-APPA
Versus
KRUSHNA and UDAYBHANJI INGALE
Decided on 27.6.2005
Where the Assistant Charity Commissioner appointed members of the Managing Committee first and thereafter called for their biodatas and consents, the course adopted was erroneous.
Bombay Public Trusts Act, 1950 - Section 50-A(1) - Settling of scheme suo motu to protect charity. - While initiating proceedings suo motu under Section 50-A(1) of Act for proper administration of Trust, Charity Commissioner required to record his subjective satisfaction. - When the Charity Commissioner initiates proceedings suo motu under Section 50-A(1) of the Bombay Public Trusts Act, 1950, it would be necessary for him to come at a subjective satisfaction that there are reasons to believe that in the interest of proper management or administration of the Public Trust, a Scheme should be settled and that this subjective satisfaction has to be supported by the material on record and it would be necessary to give an opportunity to the Trustees to show cause as to why a Scheme should not be framed.
When the trustees themselves had approached the Assistant Charity Commissioner for framing a scheme and the applications moved by them were held to be not maintainable after which the Assistant Charity Commissioner proceeded suo motu to frame the scheme, fresh notice to the trustees was not necessary in the facts of the case as the trustees themselves sought framing of the scheme and no fruitful purpose would have been served by again issuing notices to the trustees. AIR 1998 SC 1624 - Relied on.
Bombay Public Trusts Act, 1950 - Section 50-A(1) - Powers under Section 50-A(1) of Act, 1950. - Powers under Section 50-A(1) of Act, 1950 are overriding and wide enough for settling schemes to protect charity. - The powers under sub-section (1) of Section 50-A of the Bombay Public Trusts Act are overriding and wide enough and wherever the Charity Commissioner finds, on the basis of the material placed before him, that it is necessary or expedient in the interest of proper management or administration of the trust, he may or may not exercise the powers under Section 50-A(1) for settling the scheme. To put a restriction on the powers of the Charity Commissioner to the effect that unless other provisions are exhausted and only when the earlier scheme has failed or even after amending it, proper management is not possible, then only power under sub-section (1) of Section 50-A of the Act can be exercised, would defeat the purpose of the statute. 2005 (2) Mh LJ 266 - Dissented and AIR 1998 SC 1624 - Relied on.
Bombay Public Trusts Act, 1950 - Section 50-A(1) and (3) - Right of trustees. - Trustees have no right of hearing under Section 50-A(1) of Act, 1950 on proposed scheme for proper administration of Trust. - Sub-section (1) of Section 50-A of the Bombay Public Trusts Act deals with framing of the scheme for the proper management or administration of a public trust and that such a right of hearing which is given to the trustees is only limited to find out as to whether it is necessary in the interest of proper management or administration of a public trust to settle the scheme. However, if the power under sub-section (3) is subsequent to powers under sub-section (1) or sub-section (2). Said sub-sections deal with modifying the scheme already framed by the Charity Commissioner under sub-section (1) or sub-section (2). It is, thus, clear that only when scheme which is already framed under sub-section (1) or sub-section (2) is sought to be modified, in that event alone, the trustees have right of hearing.
Bombay Public Trusts Act, 1950 - Section 2 First Managing Committee Appointment of. In appointment of Members of First Managing Committee interest of Trust in question should be weighed.
( 1 ) BY way of present second appeal, the appellants challenge the judgment and order passed by the learned District Judge, Wardha, in Trust Application Nos. 5 of 2002, 3 of 2003 and Regular Civil Appeal No. 133 of 2003, dated 28th July, 2004, thereby allowing the aforesaid applications and the appeal filed challenging the judgment and order passed by the learned assistant Charity Commissioner, Wardha, in Scheme Application Nos. 335/99 and 64/2000, dated 31st August, 2002.
( 2 ) THE present litigation has a checkered history. The facts necessary for adjudication of the present second appeal are as under : that, the Trust in question originally had sixteen members in the General body. The election to the Managing Committee of the Trust was held in the year 1977. Consequent to the election, the Change Reports were filed before the assistant Charity Commissioner. The said Change Reports came to be accepted in 1980. The then President, considering that the tenure of the Managing committee of three years, would commence from the acceptance of the Change report, held the subsequent elections in the year 1983. It appears that the split in two groups of the trust erupted from that moment. The group led by the then president held the elections in the year 1983 from the electoral college consisting of 28 members. Amongst these 28 members, 16 were the original members and 12 members were shown to be enrolled by the President. On the basis of the said elections, Change Report No. 688 of 1983 came to be filed by the group led by the then President. At the same time, the elections were held to the Managing committee by the rival group from the electoral college of the 16 original members. The Change Report on the basis of the said election was numbered as 988/1983. Both these Change Reports came to be rejected by the learned assistant Charity Commissioner, vide order dated 23rd March, 1987. The president, who had filed Change Report No. 688/1983, preferred an appeal before the learned Joint Charity Commissioner, which came to be dismissed on 11th March, 1989. Being aggrieved thereby, the then President filed an application under section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the said Act) before the learned District Judge, Wardha, being Trust application No. 2 of 1989. The said Trust Application came to be dismissed on merits vide judgment and order dated 26-9-1990.
( 3 ) IN the mean-time, there was another round of elections. The then secretary issued notice for holding elections to the Managing Committee on 12-5-1989. The said notice came to be challenged with an application for stay to the election in the proceedings which were pending before the learned District Judge. However, the said prayer for stay was rejected by the learned District Judge, vide order dated 6th May, 1989. Said order of rejection of stay came to be challenged in this Court vide C. R. A. No. 485/1989, which was dismissed by this Court vide order dated 30th June, 1989. Accordingly, the elections were held on 12th May, 1989 taking the electoral college to be of 16 original members. On the basis of the said elections, Change Report No. 105/1989 came to be filed before the learned Assistant Charity Commissioner. The another group led by the then president, held elections on 3-9-1990. The said election was held on the basis of the electoral college consisting of 32 members. Out of these 32, 16 were the original members and 16 members were shown to be newly inducted. On the basis of the said election, Change Report No. 186/1990 was filed before the learned Assistant Charity Commissioner.
( 4 ) IN the mean time, being aggrieved by the dismissal of the Trust application No. 2/89, the then President Onkarappa Ganjiwale filed First Appeal no. 538/1990 before this Court. Another first appeal viz. First Appeal No. 537/1990 was filed by the 12 members who were alleged to have been inducted prior to the elections held by Onkarappa Ganjiwale i
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