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2009 Supreme(Bom) 1654
In the High Court of Bombay at Nagpur
THE HONOURABLE MR. JUSTICE A.P. BHANGALE
Ajit Shankarrao Deshmukh & Others
Versus
The Joint Charity Commissioner, Civil Lines & Others
First Appeal No.248 of 2009 with Civil Application No.704 of 2009
Decided on : 04-12-2009
For the Appellants:Rohit Deo, Advocate. For the Respondent: K.H. Deshpande, Sr.counsel. For the Intervenor:V.K. Paliwal, Advocate.
Headnote:Bombay Public Trusts Act, 1950 - Sections 41-D, 47 and 47(5) - Application under Section 47(5) of Act - For appointment of trustees - Allowed by joint Charity Commissioner - Challenged by way of appeal - Had - Charity Commissioner not prohibited to appoint new trustees - Appellants acting provisionally as "fil persons" - Have no legal right to stall course adopted by joint Charity Commissioner for appointment of new trustees under Section 47 of Act - Impugned order being well reasoned justified - Warrants no interference - Appeal dismissed. - Section 41-D(4) of the Act is enabling provision for the Charity Commissioner who has made an order of suspension, removal or dismissal of any trustee/truste to appointing suitable competent person/persons to discharge duties and perform functions of the Trust. The tenure of such person/s exist only until a trustee is duly appointed in accordance with instrument of Trust. It is purely a provisional interim arrangement lasting until new trustee/trustees is/are appointed. Any person interest in a public trust can apply to the Charity Commissioner for to appoint new trustee/trustees. The Charity Commissioner may upon hearing the parties and making inquiry such as he may deem fit, appoint any person as a trustee to fill up vacancy/ies or may also remove or discharge any trustee for any reason as mentioned in Section 47(1)(a) to (i). The Charity Commissioner can order that any property which is subject of the trust shall vest in the trustee appointed. Unless ordered otherwise to wait for a final decision in any pending case before the appellate authority, there is no prohibition for the Charity Commissioner to appoint new trustee on the ground that scheme of the trust is yet to be finalized due to pendency of other proceeding. New trustees were appointed by impugned judgment and order after the Joint Charity Commissioner issued notice to persons interested and after giving opportunity to oppose application under Section 47 of the Act. An useful reference can be made to the ruling in (State of Andhra Pradesh v. S.M.K. Parasurama Gurukul), reported in 1973 DGLS (Soft) 194 : (1973) 2 SCC 232. The test to determine whether a decision is administrative or quasi judicial is :
(a) there must be a lis ;
(b) the opinion of the tribunal should be formed on the objective and not on the subjective satisfaction of the tribunal; and
(c) there must be duty on the part of the tribunal to act judicially. Legislature has left the matter to the discretion of the appointing authority subject to guidelines.
Normally the appointing authority would exercise the discretion as to who are best fitted to discharge duties and functions of the trustees. But that is not to say that appointing authority must set out reasons or record speaking order as to why he has appointed a particular person as a trustee and not somebody else.
Considering the observations made earlier by this Court it must be concluded that appellants were acting provisionally as "fit persons" and cannot have legal right to stall or stultify the course adopted by learned Joint Charity Commissioner for the appointment of new trustee in exercise of power under Section 47 of the Act of 1950. The Charity Commissioner can exercise power under the Act of 1950 to make better provision for the administration of the public Charitable Trust and had exercised discretion as permissible according to law. Considering the reasons explained above, the appellants as "fit persons" were appointed provisionally for the time being and cannot be said to have a legal grievance nor have suffered any serious prejudice by the impugned judgment and order. The learned Joint Charity Commissioner had power to appoint in new trustees in view of Section 47 with implied discretion to take effective decision in the interest of the public trust concerned. The impugned order is well reasoned. It can not be said that learned Charity Commissioner acted beyond his jurisdiction.
The appeal therefore lacks merits and deserved to be dismissed appeal is accordingly dismissed with costs.
1. By this Appeal filed under section 47 (5) of the Bombay Public Trusts Act, 1950 ( hereinafter referred to as “the Act of 1950”), the appellants challenge the order dated 19.3.2009 passed in Application No. 20 of 2008 by the learned Joint Charity Commissioner, Nagpur, whereby an application under section 47 (1) of the Act of 1950 for appointment of trustees so as to manage the administration of the Ideal Education Society, Umred Dist. Nagpur { bearing Public Trust Registration No. F 164 (N)} was allowed, with necessary directions to newly appointed nine trustees ( i.e. Respondent Nos. 2 to 10) for management of the said Public Trust and its property in accordance with rules and regulations and Memorandum of Association.
2. It is not in dispute that the aforesaid Public Trust was formed and registered with the aim and object to impart education from elementary stage to highest possible standards for students in the area of Umred Tahsil. The Trust is also running a Junior College, by name, Nutan Adarsha Arts, Commerce & Smt. M H Wajed Science College, New Ideal High School and New Ideal Girls’ High School at Umred.
3. The facts of the case,in brief, are these:
As far back as on 13.10.1936, Ideal Education Society, was registered as society under the Societies Registration Act, 1860. It came to be registered as “Public Trust” with effect from 20.1.1963. On or about 27.11.1989, the Joint Charity Commissioner, Nagpur by suo motu Proceeding No.12 /1981 initiated under section 41D of the Act of 1950 removed the existing trustees and appointed S/Shri (i) R.V. Nathani ; (ii) Dr.Shrawan Parate; (iii) T.B.Deshmukh (iv) Kanjibhai Vegad; and , (v) K B Chandle, to look after and manage the affairs of the Public Trust. On 8.1.1999 by an order passed in Application No.13 /1998 & 25/ 1998 Joint Charity Commissioner suspended members of adhoc body of fit persons appointed by an order dated 27.11.1989 and reconstituted the body of fit persons by appointing S/Shri (i) B B Taywade; (ii) S M Sorte, (iii) J R Sadavarte;
(iv) R.N. Khandude; and, (v) I.D. Nagdevte as members of adhoc body of fit persons to look after and manage the affairs of the said Public Trust. By an order dated 15.6.2002 in proceedings Application No.13 of 1998 and 25/1998 Joint Charity Commissioner dismissed (1) S.Shri T.B.Deshmukh (2) Dr. Shrawan Parate (3) Kanjibhai Wegad (4) K B Chandle who were members of adhoc body of fit persons who challenged their removal before the District Court, Nagpur by an appeal which is still pending.
4. By order dated 17.1.2005 in proceedings Application No.13 & 25 both of 2004, the Joint Charity Commissioner by initiating suo motu Inquiry Case No. 7 of 2005 reconstituted the body of fit persons. By order dated 11/12th September, 2006, the Joint Charity Commissioner appointed appellants as adhoc body of fit persons to look after the affairs of the said Public Trust and since then appellants are looking after affairs of the Public Trust.
5. Respondent No.2 by an application No.20/2008 under section 47 of the Act of 1950 before the learned Joint Charity Commissioner, Nagpur prayed for appointment of Respondent Nos. 3 to 10 as trustees. Appellants opposed the application. But by order dated 19.3.2009, the learned Joint Charity Commissioner appointed Respondent Nos. 2 to 10 as trustees and directed appellants to hand over charge to them.
6. The appellants have sought to impugn the aforesaid order on the ground that the same is without jurisdiction and contrary to Section 47 of the Act of 1950 as the Joint Charity Commissioner did not enter into detailed inquiry while appointing trustees and did not invite every interested person to offer his services a trustee.
7. In support of the Appeal, it is contended that no inquiry was conducted as envisaged by Section 47 (2) of the Act of1950 and names suggested by Respondent No.2 were blindly accepted as trustees and Respondent Nos. 2 to 10 were appointed as Trustees of Ideal Education Societ
