The Charity Commissioner has the power to appoint trustees of a scheme framed by him under Section 50A of the Bombay Public Trusts Act, 1950.

Headnote:
CHARITY COMMISSIONER - SCHEME FRAMING - POWER TO APPOINT TRUSTEES - BOMBAY PUBLIC TRUSTS ACT, 1950 - SECTIONS 47, 47A, 47AA, 50, 50A - SCOPE AND INTERPRETATION.
Fact of the Case:

The Charity Commissioner framed a scheme for the management of a public trust under Section 50A of the Bombay Public Trusts Act, 1950. The scheme included clauses 7 and 8, which provided for the appointment of the first trustees of the trust and their remuneration. The respondent, a trustee of the trust, challenged the validity of these clauses, arguing that the Charity Commissioner did not have the power to appoint trustees.
Finding of the Court:

The court held that the Charity Commissioner had the power to appoint trustees of the scheme framed by him under Section 50A of the Act. The court found that the power to frame a scheme included the power to make provisions for the appointment of trustees and that the provisions of Sections 47, 47A, and 47AA of the Act did not limit the Charity Commissioner's power in this regard.
Issues: Whether the Charity Commissioner has the power to appoint trustees of a scheme framed by him under Section 50A of the Bombay Public Trusts Act, 1950.
Ratio Decidendi: The court interpreted Section 50A of the Act to mean that the Charity Commissioner has the same power to frame a scheme as the Court has under Section 50 of the Act. The court found that the power to frame a scheme includes the power to make provisions for the appointment of trustees and that the provisions of Sections 47, 47A, and 47AA of the Act do not limit the Charity Commissioner's power in this regard.
Final Decision: The court allowed the appeal and held that the Charity Commissioner had the power to frame clauses 7 and 8 of the scheme, which provided for the appointment of the first trustees of the trust and their remuneration.

JUDGMENT :- This is an appeal on behalf of the Charity Commissioner against the order dated December 17, 1965, made by Mr. Judge Zambre directing that clauses 7 and 8 of the scheme framed by the Charity Commissioner be dropped and consequential modifications be made in the scheme.

2. Mr. Naik for the Charity Commissioner has submitted that the finding made by the learned Judge that having regard to the scheme of Sections 47 and 47 AA the power vested in the Charity Commissioner under section 50A of the Bombay Public Trusts Act, 1950, to frame a scheme does not include power to appoint trustees is contrary to the intent of the provisions in section 50 A and not sustainable. The observation of the learned Judge that a scheme framed in respect of a public trust under section 50A by the Charity Commissioner would be a set of rules for guidance of the trustees and may provide for number of the trustees and the mode of appointment of trustees and vesting of the trust properties in trustees so appointed and such similar matters but the Charity Commissioner is not empowered to appoint trustees of the scheme is not warranted and is contrary to the provisions of the Act.

3. Mr. Chitale for respondent No.1 has with some emphasis submitted· that the learned Judges findings are based on the scheme of the Act and the provisions in the above sections 47 and 47AA and the findings made by the learned Judge should accordingly be confirmed As regards the rival contentions made on behalf of the parties on the question of the power of the Charity Commissioner to appoint trustees of the scheme framed by him, the following requires to be noticed :-

Under clause (II) of section 69, being the section relating to duties, functions and powers of the Charity Commissioner, it is specifically provided that the Charity Commissioner has the power to frame or modify scheme under section 50A. This section 50A and the above clause (11) and section 47 A have been added to the original Act by amendments made by Bombay Act VI of 1960. Section 50 has reproduced the scheme of section 92 of the Code of Civil Procedure with certain nominal alterations and inter alia mentions for the reliefs of settlement, variations and for alterations in a scheme, removal of trustees, appointment of new trustees, vesting of property in trustees and such other matters By the amended section 50A inserted in the Act in 1960, it was provided as follows:

"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, the Charity Commissioner may, 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 .... "

Sub-section (4) of this section provided that the scheme framed 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. As is stated in the opening part of section 50A, the provisions in this section are notwithstanding anything contained in section 50. In other words, alternative independent power of framing of the scheme has been created in favour of the Charity Commissioner. This power, prima-facie, must be parallel and similar in all respects to the power of the Court to frame a scheme in a suit instituted under section 50. Now, before noticing the contents of the sections on when reliance has been placed by Mr. Chitale, it first requires to be stated that the power vested in Court to frame and settle and vary and modify schemes which continuously existed under section 92 of the Code of Civil Procedure from the date of its enactment and which otherwise existed by reason of the High Courts being guardians of charity is included the incidental power to make provisions for appointment etc. of trustees and for appointing

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