( 1 ) THIS writ application arises out of an application under sec. 47 and 47aa of the Bombay Public Trusts Act 1950 (hereina- fter referred to as the Act) made by the petitioners to the District Court for the removal of the first respondent and one Kasam Mohmad Ajam Ismail (since deceased) as trustees and appointment of new trustees of a public trust which is registered under the Act as Sheth Azam Aref Bham 1 Wakf Rander. Since the other trustee whose removal was sought by the applicants died pending the application the only question which survived for consideration of the District Court was whether any ground for the removal of the first opponent as a trustee was made out and the learned Assistant Judge found that no such ground was made out under sec. 47 and that an application for removal of the first opponent as a trustee under sec. 47aa was not maintainable at the instance of the petitioners. It is this decision which is under challenge in the present petition.

( 2 ) NOW the application for removal of the first opponent as a trustee was made on two grounds: first that the said opponent was physically incapable to manage the affairs of the trust on account of his old age and affliction by paralysis and secondly that the said opponent was convicted for an offence punishable under the Act. Paragraphs 4 and 5 of the appli- cation make it clear that for the purposes of the first ground of removal sec. 47 was invoked and for the second ground sec. 47aa was invoked. As regards the first ground the learned Extra Assistant Judge recorded the following finding:the opponent No. 1 by appearing before the court to give evidence has displayed his physical capacity. He has also displayed his mental agility by his forthright manner of giving the evidence before the court. Not a single instance has been cited by the applicant No. 1 wherein the work of the trust might have suffered because of the physical or mental inability of the opponent No. 1 I have seen him in the witness box giving evidence with sufficient physical and mental agility. . . . . . I am inclined to believe him that he is physically capable of managing the affairs of the trust. IN view of this finding the learned Extra Assistant Judge held that the first ground for removal was not made out. As regards the second ground the learned Extra Assistant Judge found that an application for removal of a trustee on the ground that he was convicted for an offence punishable under the Act was maintainable under sec. 47aa at the instance of the Charity Commissioner alone and that the petitioners who claim to be the beneficiaries of the trust could not invoke the aid of the said section and seek removal of the first opponent on such a ground.

( 3 ) SO far as the question of removal on the ground of physical inability is concerned there is a clear finding of fact recorded by the learned Extra Assistant Judge and I am unable to see my way to interfere with the same. In fact Mr. Sanjanwala learned Advocate appearing on behalf of the petitioners fairly stated that in view of the said finding it was not possible for him to assail the impugned decision so far as it related to the first ground.

( 4 ) AS regards the second ground it is not in dispute that the first opponent was convicted for an offence punishable under the Act in his capacity as a trustee of another public trust. The question which arises for consideration however is whether it is open to the petitioners to seek the removal of the said respondent on that ground and to apply for the appoint- ment of a new trustee under sec. 47aa. A bare reading of the said section makes it clear that such a relief cannot be obtained by the petitioners and that an application under the said section is maintainable only at the instance of the Charity Commissioner. Sec. 47aa reads as under : 47 Where a trustee of any public trust is convicted of an offence punishable under this Act or any amount is surcharged on him under sub-sec.