Trustees Don't Need Charity Commissioner's Consent Under S.50 BPT Act to Sue Trespassers: Bombay High Court - 2025-10-08

Trustees Can Sue Trespassers Without Charity Commissioner's Nod, Upholds Bombay High Court

In a significant ruling, the Bombay High Court has affirmed that trustees of a public charitable trust do not require prior written consent from the Charity Commissioner to file a suit for recovering trust property from trespassers. Justice Sandeep V. Marne held that Section 50 of the Bombay Public Trusts Act, 1950 (BPT Act) is an "enabling provision" and does not restrict the trustees' inherent common law right as legal owners to protect trust assets.

Case Background

The plaintiff, Shri Hari Ashram, a public charitable trust registered in Gujarat, filed a suit to recover possession of the second and third floors of a building named 'Usha Villa' in Juhu, Mumbai. The trust claimed it had acquired a 50% undivided share in the property through a Deed of Assignment in 2012. It alleged that in November 2021, the defendants, Vijay Jayantilal Patel and another (sons of the other co-owner), illegally took possession of its portion of the property.

The defendants, in response, filed an Interim Application seeking the rejection of the plaint under Order VII, Rule 11 of the Civil Procedure Code. They argued the suit was not maintainable on several grounds, primarily the lack of prior consent from the Charity Commissioner as mandated by Sections 50 and 51 of the BPT Act.

Key Arguments

Defendant's Position: Senior Advocate Mr. Chetan Kapadia, appearing for the defendant, argued that Section 50 of the BPT Act (as applicable in Gujarat) explicitly requires the Charity Commissioner's consent for suits seeking to recover possession of trust property from any person, "including a person holding adversely to the public trust." He highlighted the difference between the Gujarat (BPT Act) and Maharashtra (MPT Act) versions of the law, noting that the MPT Act exempts suits against trespassers from this requirement, whereas the BPT Act does not. He further contended that the suit was barred by Section 80 of the BPT Act, which ousts the jurisdiction of civil courts on matters decidable by authorities under the Act.

Plaintiff's Position: Senior Advocate Mr. Sharan Jagtiani, representing the trust, countered that the permission was unnecessary. He argued that the trust was exercising a common law right against third-party trespassers, a matter beyond the Charity Commissioner's adjudicatory powers. He relied on established precedents, including a Division Bench judgment in Amirchand Tulsiram Gupta vs. Vasant Dhanaji Patil , which held that Section 50 does not bar trustees from instituting suits in their capacity as legal owners. He also cited a previous case involving the same plaintiff trust where a similar objection had been dismissed by the High Court.

Court's Analysis and Legal Precedents

Justice Marne conducted a detailed analysis of the statutory provisions and relevant case law. The court acknowledged the textual difference between the BPT Act and the MPT Act but ultimately concluded that it did not alter the fundamental legal principle.

The judgment heavily relied on the Division Bench's decision in Amirchand Tulsiram Gupta , which established that Section 50 is not restrictive but cumulative. The court reiterated that the provision's purpose is to empower additional parties, such as the Charity Commissioner or interested beneficiaries (with consent), to sue for the protection of trust property, especially if the trustees fail to act.

In a pivotal observation, the court explained the rationale behind the provision:

"Section 50 of the BPT Act also permits Charity Commissioner to institute such a Suit in the event the Charity Commissioner finds that Trustees have failed to perform their duties in recovering possession of Trust properties... The provision ensures that a random person does not sue a trespasser on behalf of the Trust... However mere enabling provision permitting non-trustees to sue a trespasser with written consent of Charity Commissioner would not mean that the trustees would also need consent of Charity Commissioner for suing a trespasser."

The court also referenced the Gujarat High Court's ruling in Nadiad Nagarpalika vs. Vithalbhai Zaverbhai Patel , which interpreted Section 50 of the BPT Act as an enabling clause that does not create an "embargo on the general powers of the trustees."

Dismissing the defendant's argument regarding the bar under Section 80 of the BPT Act, the court noted that the Charity Commissioner lacks the power to adjudicate on and order the eviction of a trespasser. Therefore, a civil suit for recovery of possession is the appropriate remedy, and the civil court's jurisdiction is not ousted.

Final Decision

Finding no merit in the defendant's application, the Bombay High Court rejected the plea to dismiss the suit. It held that the suit filed by the trustees of Shri Hari Ashram for recovery of possession from alleged trespassers was maintainable without the written consent of the Charity Commissioner. The court concluded that neither the lack of consent nor the bar under Section 80 of the BPT Act, nor the non-joinder of the housing society, were valid grounds for rejecting the plaint.