Back
In the High Court of Bombay at Nagpur
R.K. DESHPANDE, J.
Anil s/o Govindrao Shirkhedkar
Versus
Babanrao Ganpatrao Wadaskar & Others
Second Appeal No.94 of 2011
Decided On : 16-04-2013
Failure to report change under Section 22 of Act upon death of original trustee, not deprives hereditary trustee, a due opportunity to be heard in matter under Section 50-A(1) of Act. - It is an undisputed position upon the death of the original Trustee in the year 1979, no change was reported to the Office of Assistant/Deputy Charity Commissioner, as required under Section 22 of the BPT Act.
If the appellant claims to be the hereditary Trustee, then it was his obligation to report such a change to the said office, within a stipulated period. The question is whether failure to discharge such an obligation deprives the appellant of an opportunity to be heard in the matter under sub-section (1) of Section 50-A of the BPT Act. It is a fact that a change occurred on account of death of original Trustee in the year 1979. The only consequence of not reporting such change by the Trustee provided under Section 66 of the BPT Act, is of imposition of fine to the extent of Rs. 10,000/-. It cannot, therefore, be said that failure to discharge the obligation of reporting a change under Section 22 of the BPT Act deprives the appellant of an opportunity to be heard in the matter.
The District Judge, dealing with an appeal under Section 72 of the BPT Act, ought to have seen that when Rule 7 of the BPT Rules contemplates the manner of inquiry under Section 50-A of the BPT Act, it includes an inquiry to find out as to whether any hereditary Trustee existed upon the death of the original Trustee. Such an inquiry ought to have been made by the Deputy Charity Commissioner. Perusal of the judgment and order passed by the Deputy Charity Commissioner does not reveal any such inquiry made in the matter before settling a Scheme. Hence, the judgment and order passed by the District Judge suffers from an error apparent on the fact of record, holding that there was no Trustee after the demise of Shri Govind Balkrishna Shirkhedkar and that no notice was required to be issued to the appellant.
In view of above, the substantial question of law framed, is answered, holding that failure to discharge an obligation of reporting change under Section 22 of the Bombay Public Trusts Act, 1950, would not deprive the appellant claiming to be hereditary Trustee, a due opportunity to be heard in the matter under sub-section (1) of Section 50-A of the BPT Act.
1. Admit. Heard finally by consent of the learned counsels appearing for the parties.
2. The learned Deputy Charity Commissioner, Amravati, by the judgment and order dated 14-8-2000 passed in Application No.31 of 2000, filed by the respondent Nos.1 to 9 under sub-section (1) of Section 50A of the Bombay Public Trusts Act, 1950 (for short, “the BPT Act”), framed a Scheme in respect of “Shri Hanuman Mandir, Wedapur, Tq. Warud, Distt. Amravati” (for short, “the said Trust”), bearing PTR No.A-1287 (Amravati), as per Annexure-A appended to the said judgment and order. This was the subject-matter of challenge by the appellant in Misc. Civil Appeal No.168 of 2009, which has been dismissed by the learned District Judge-2, Amravati, by his judgment and order dated 14-9-2010. Hence, this second appeal.
3. The learned Deputy Charity Commissioner, by his judgment and order dated 14-8-2000, settled a Scheme in respect of the said Trust under sub-section (1) of Section 50A of the BPT Act, as per Annexure-A to the said judgment and order. He accepted that the said Trust has neither any Constitution nor any rules or regulations to suggest the manner in which the affairs of the said Trust are to be governed, which is likely to give rise to a chaotic situation in smooth running of the affairs of the said Trust. Accepting that the respondents Nos.1 to 9 were appointed by the villagers/devotees in a meeting held on 21-5-2000 (Exhibit 3), they were appointed as the first Board of Trustees for a period of two months to hold the meeting and to elect themselves the President, Vice-President, Secretary, Joint Secretary and Treasurer for a period of five years. After every five years, the provision is to elect the office bearers of the said Trust by the Board of Trustees by majority of votes, and accordingly, the Change Reports are required to be filed. It is observed that the settled mode of succession is hereditary. The proposal of the respondents Nos.1 to 9 that the Trustees shall be permanent and any vacancy caused shall be filled in by the remaining Trustees, is accepted. The tenure of the Trustees is held to be life long and the mode of succession shall be that any vacancy arising due to death, resignation, incapability of the Trustee to work or any other reason, as mentioned in Clause No.11 of the Scheme, shall be filled in by the remaining or surviving Trustees by majority of votes within three months from the date of occurrence of such vacancy. In para 9 of the judgment and order of the learned Deputy Charity Commissioner, it is laid down that all movable and immovable properties of the said Trust shall be vested in the Board of Trustees appointed under the Scheme and it shall be in their possession, which shall be looked after and managed by the Trustees.
4. In Misc. Civil Appeal No.168 of 2009 preferred by the appellant under Section 72 of the BPT Act before the learned District Judge-2, Amravati, it was urged that after the death of his father, he automatically became a Trustee of the said Trust, in view of the fact that the Trusteeship devolved upon him by survivorship. A specific question was raised that the provision of sub-section (1) of Section 50A of the BPT Act read with Rules 7 and 7A of the Bombay Public Trusts Rules, 1951 (for short, “the BPT Rules”) requires a personal notice as well as a public notice to be issued to the Trustees while framing a Scheme. Undisputedly, no such notice was issued and, therefore, the order framing a Scheme stands vitiated. The learned District judge has held that no personal notice or public notice was required to be issued, while framing a Scheme under Section 50A of the BPT Act read with Rules 7 and 7A of the BPT Rules. It is further held that after the demise of the original Trustee, there was no Trustee and no Change Report under Section 22 of the BPT Act was filed by the appellant. Hence, the appellant cannot be said to be a Trustee of the said Trust, entitled to issue of such notice
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
