Dismissed

Pragji Savji Vaja and 2 Ors. v. Chhotalal N. Parmar and 5 Ors.

Bombay HC6 Sept 2013TRP/2/2012

Case brief

AI extract

What is this about?

Beneficiaries sought amendment of a public trust scheme to prefer community members in alienation of trust property. The court rejected the proposed restriction and dismissed the petition. The chamber summons succeeded only in deleting deceased respondents; pending statutory applications were directed to be decided within one year.

What did the court decide?

Deletion of respondent nos. 1 and 2 permitted; Charity Commissioner directed to decide pending applications under sections 41(D) and 36 within one year.

Pragji Savji Vaja and 2 Ors. Vs Chhotalal N. Parmar and 5… — Property and Title | Bombay HC (2013)

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hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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ORDINARY ORIGINAL CIVIL JURISDICTION

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TRUST PETITION NO. 2 OF 2012 ALONG WITH

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CHAMBER SUMMONS NO. 567 OF 2013

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Dr. Pragji Savji Vaja, M.B.B.S. (Mum) F.C.G.P., S.E.O. Hon. Jt. Secretary (2012-2013), Indian Medical Association, Mumbai Branch, B-4/705, Poonam Park, Behind Lalbaug Industrial Estate, Lalbaug, Mumbai 12. 2. Dr. Smt. Chhaya P. Vaja, M.D. (Bom), Consulting Physician & Cardiologist Critical Care Physician, B-4/705, Poonam Park, Behind Lalbaug Industrial Estate, Lalbaug, Mumbai 12. 3. Vipul A. Chauhan, residing at 13, Navi Wadi, Dadiseth Agyari Lane, Mumbai 400 002 .. Petitioners Versus 1. Dr. Chhotalal Narsidas Parmar, 501, Valentia Building, Behind Bhatia Hospital, Tardeo Road, Mumbai 400 007. 2. Shri. Shantilal Motilal Chauhan, 44/6, Sujita Niketan Coop. Hsg. Soc. Ltd. Rani Sati Marg, Malad (East), Mumbai 400 097. 3. Shri. Jagdish Keshaubhai Chudasama, Keshav Bhavan, Telang “X” Road No. 1, Matunga East, Central Railway, Mumbai 400 019. 4. Liladhar Govindji Gohil,

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residing at Saraswati Chawl, Narsipada, Samta Nagar/Hanuman Nagar, Kandivali (East), Mumbai 400 101.

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Tushar Sarviya, residing at B-7, Om Sheetal CHS Ltd. Navghar, Bhayendar (E), Navghar Police Station Lane 401 105. all being the present Old Trustees of the funds and immovable properties of Shree Gujarati Mochi Gnyati Navnat Trust, registered under P.T.R. No.A-1237 (Bom).

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The Charity Commissioner of Mumbai, having his office at Dharmadaya Ayukta Bhavan, Dr. A.B. Road, Worli, Mubai 400 010. … Respondents

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Mr. R.M. Bhagattjee alongwith Mr. Abhay Patki & Ms.Nisha Valani for the applicant.

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Ms. Mamta Sadh along with Mr. S.G. Lakhani for respondent nos. 3, 4 and 5.

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Mr. V.A. Thorat, Sr. Advocate along with Mr. Raj Patel i/by Gandhar Raikar for intervener.

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Mr.D.J. Khambata, Advocate General with Mr. G.W. Mattos, A.G.P. For respondent no. 6.

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CORAM : R.D.DHANUKA J. JUD. RESERVED ON : AUG 14,2013 JUD. PRONOUNCED ON : SEP 06,2013

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ORAL JUDGMENT :

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Petitioners who are claiming to be beneficiaries of Shree Gujarati

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Mochi Gnyati Navnat Trust registered with Charity Commissioner, under the provisions of Bombay Public Trust Act, 1950, by this trust petition seeks

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sanction of the amendment of the scheme which was sanctioned by this

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Court (hereinafter referred to as the said trust). In Chamber summons No.567 of 2013 filed by the applicants, who claims to be beneficiary of the said trust, seek amendment to the trust petition as per schedule appended to the said chamber summons, for deletion of the names of respondent nos. 1 and 2 and for holding of further annul general meeting to carry out further amendments and to appoint new trustees of the said trust. Applicant No. 1 in the Chamber summons is not party to the trust petition. Respondent Nos. 1 and 2 have expired during the pendency of the trust petition. Respondent nos. 3 to 5 are present trustees of the said trust. Respondent no. 6 is the Charity Commissioner of Mumbai.

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The Petitioners and respondent No.1 to 5 all belong to Shree Gujarati Mochi Gnyati Navnat. The said trust is the owner and possessed of the property admeasuring about 725 sq. yards under Collector's No. 11384, New Survey No. 4/7261 having cadastral Survey No. 4 of Malbar Hill, Mumbai 400 006. In the year 1927, a suit was filed in this court (2281 of 1927) in which one Jivan Govind was the plaintiff and Harkar Govind was the defendant. The suit was filed inter alia praying for declaration that the suit properties referred to aforesaid belong to Gujarati Mochi community which are public charitable properties and applied for administration of the

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said charitable properties, appointment of the trustees and incidental reliefs. By a consent decretal order of Reference, this court referred the matter to the Commissioner of this Court to frame a Scheme or administration and management of the said charitable properties and to submit names of five fit and proper persons for being appointed as trustees of the said charitable properties under the said scheme. The Commissioner appointed by this court submitted a report. By decree dated 27/11/1934, this court framed a scheme submitted by the Commissioner for administration of the said charitable properties set out in the said decree and appointed three trustees. In the meeting of the said trust held on 18^th December, 1938, said Jadhavji Jethabhai as a leading member of the said caste and one of the trustees and a managing Trustee of the said Dharmashala and temple declared that he has set apart a sum of Rs.5,001/- (Rupees Five Thousand on one only) partly for the benefit of the said Dharmashala and partly for the benefit of the Mochi Navnyat and subject to the acceptance of the donations by the Navnyat held the amount jointly with his wife Ramabai as trustees to be utilized by them in erecting a house on land forming part of the compound of the said Dharmashala, that after paying municipal rates and taxes cut of the rents and profit of the property he would use net rents for the maintenance upkeep and repairs of the said Dharmashala and the maintenance of the

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worship of the deities installed in the temple standing on the land carried out out of the funds. The relevant clauses of the said scheme sanctioned by this court which provides as under :

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“5A. The Trustees shall stand possessed of the trust properties upon the following trusts : a) The temple shall be opened to all Hindus, for the purpose of worship except Hindus of untouchable class. b) The Dharmashala shall be kept opened for the purpose of the temporary rest houses for the members of the Gujrati Hindu Mochi community, provided that the trustees may at their direction and on such terms and conditions as they think fit, allow other Hindus except Hindus of the untouchable class to use the said Dharmashala as a temporary rest houses.

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Whenever any trustee or trustees either original or substituted under this scheme shall die or be for six continuation month absent from British India, or become Insolvent or be convicted of a criminal offence and punished with imprisonment or desire to be discharged from or refused or become unfit or incapable to act in the trust or powers in him or them under this scheme the surviving or continuing trustee or executor, and administrator or administrators of the last surviving trustee or if they shall be retire simultaneously the last surviving trustee shall be writing appoint on one or more person or persons among the members of the Gujarati Mochi Community to be a trustee or trustees in the place of the trustee of trustees so dying or become absent from British India or becoming insolvent or being convicted as aforesaid or desiring to be discharged of refusing or becoming incapable to act as aforesaid in the event of any such contingency arising and no appointment of fresh trustee being made within a period of three months from the happening of the contingency, it shall be lawful for the Advocate General of Bombay to appoint in writing a new trustee or trustees from the Gujarati Mochi Community in Bombay.

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The trustees shall frame such rules and regulations as they think proper subject to and consistent with the provisions of

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the scheme for the maintenance and worship of deity installed in the temple for the use of Dharmashala for celebrating Utsav in connection with the temple for the maintenance, repair and management of the Dharmashala and for the repairs of the temple.

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The trustees shall be entitled to call for a donation to the temple and for the funds for the maintenance and or repairs of the trust properties.

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In all cases in which the advice or direction of the Court may be necessary or desirable in the conduct management and administration of the trust and also the amendment of this scheme the trustees or any of them shall have a right to apply to the Hon'ble the Sitting Judge in chambers after giving notice in that behalf to the advocate General of Bombay in writing.”

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By the said order dated 27^th November, 1934, this court granted liberty to the plaintiff in the said suit to apply to this court as there may be occasion. It is the case of the petitioner that 90% of the beneficiaries i.e. Gujarati Hindu Mochi Community are residing in Malad, Borivali, Bhayander, Vasai and Virar and to undergo sale, purchase, long lease or development for the beneficiaries of the said Gujarati Mochi Community. It is the case of the Petitioners that the property at Walkeshwar is not fetching any income nor thus the beneficiaries have sufficient finance to develop the same and the property is encumbered. It is the case of the petitioners, that on 21^st April, 2004 the trustees of the said trust, entered into Memorandum of Understanding with M/s. Surti Trade Place Pvt. Ltd for the sale of the trust property for the sum of Rs.6.5 Crores and created tenancies on or about 9^th

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December, 2004 by a single trustee Shri. Shantilal Motilal Chauhan. It is alleged in the petition that respondent no. 2 created tenacny on or about 9^th December, 2004 in respect of the said properties. It is alleged in the petition that the trustees Dr. C.N. Parmar, Mr. Leeladharbhai G. Gohil and Mr. Tusharbhai J. Sarviya had passed two resolutions for amendment of the Trust scheme and also for the sale and exchange of the properties.

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It is the case of the petitioners that the petitioner no.1 and 2 issued notice in the Free Press Journal and Mumbai Samachar for amendment of the trust deed so as to remove the clause of untouchability provided in clause 5A of the scheme sanctioned by this court, to sell and dispose of the plot of land bearing city survey No. 4, area 606.19 sq.mtrs., at Walkeshwar Road, Near Rajbhavan, to dispose of the same belonging to Guajrati Hindu Mochi and/or Maharashtrian Hindu Chamar and if not available for the general public, to remove the present trustees and appoint new trustees. Pursuant to the said advertisement issued by the petitioner Nos. 1 and 2, 4 trustees issued public notice on 13^th July, 1912 notifying that the said meeting proposed to be held was illegal. It is the case of the petitioner that on 15^th July, 2012, the annual general meeting came to be held at Kohinoor Banquet Hall and attended by 50 persons wherein it was

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unanimously decided to remove the clause of “untouchabilty” and the only Trustee present Shri. Shantilal Motilal Chauhan gave sanction to the meeting with unanimous support of all 49/50 present. It is the case of the petitioner that in the said meeting, it was resolved to amend the whole constitution of the trust.

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On 10^th August, 2012, the petitioners filed this petition inter alia praying for sanction of the amendment of the scheme in terms of schedule appended as Exh. A to the petition. Petitioner has prayed for sanction of the amendment to clause 5A and B by deleting the untouchable clause and thereby allowing all Hindus to have worship in the said temple at Walkeshwar and to keep Dharmashala in Mumbai or near Mumbai for the members of Gujarati Hindu Mochi Community. Clause 17A is sought to be inserted by the said amendment which is objected to by the respondents including intervenor. Clause 17A of the said schedule at Exh. A reads as under :

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“The plot of land situated at Malbar Hill Division of Walkeshwar Road, hearing C.S. No. 4, having area about 725 sq. yards situated at 268, Jetha Maghji Bhavan, Rajbhavan Road, Malbar Hill, Mubai 400 006, registered under Bombay Public Trust Act, 1950, the said property to be

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sold/Exchanged/Long Lease or Develop the same which prospective purchaser/developer who must belong to Gujarati Mochi/Chamar Community of Hindu Religion or any mochi or Chamar Community Domicile in Maharashtra of Hindu Religion and if in case non availability of above Mochi/Chamar of Gujarat/Maharashtra than in that event only others are to be permitted to bid for the same at the total and absolute discretion of Trustees.”

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During the pendency of this petition, respondent nos. 1 and 2 expired. It is the case of the applicant no.1 who is third party and applicant no. 2 who is petitioner to the trust petition that on 24^th March, 2013, pursuant to the advertisement issued by the beneficiaries of the said trust, in Mumbai Samachar and Free Press Journal dated 9^th Mach, 2013, meeting was held on 24^th March, 2013 at Kohinur Banquet Hall which meeting was attended by 127 members. It is the case of the applicants in the Chamber summons that two unanimous resolutions came to be passed in the said meeting. It as alleged to have been resolved that the said property be allowed to be sold/exchanged/to be given on long lease or to develop the same with prospective purchaser/developer who must belong to Gujarati Mochi Community only and the same shall be sold for not less than true

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market value as per stamp duty Ready Reckoner of that year (year of sale). However, if no buyer is available as per the true market value Ready Reackoner from within the community than in that even it can be sold outside the community by due tender process. The alleged two resolutions passed in the said meeting are extracted as under :

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“Resolution No. 1:

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The plot of land situated at Malbar Hill Division of Walkeshar Road, bearing C.S. No. 4, having area about 725 sq. yds. Situated at 268, Jetha Meghji Bhavan, Rajbhavan Road, Malbar Hill, Mumbai 400 006, registered under Bombay Pubic Trust Act, 1950 bearing registration No. A/1237 (Bombay) on 9^th May, 1953, the said property to be sold/exchanged/to be given on Long Lease or to Develop the same with prospective purchaser/developer who must belong to Guajrati Mochi community only. The same shall be sold for not less than true market value as per stamp duty Ready Reckoner of that year (year of sale). However, if no buyer available as per the true market value Ready Reckoner from within the community than in that event sold outside the community by due tender process.

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Resolution No.2 :

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The reservation clause for the members of Gujarati Mochi Community will be transferred to any newly purchased property.

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As an incentive for the members of the community buy acquire new plot of land and to erect the structure from the proceeds of the plot at Walkeshar, the benefit of reservation for the Guajrati Mochi community will be transferred to such newly acquired land/property/building.

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However, the reservation for the members of the Guajrati Mochi Community who acquire such rights in the plot at Walkeshar the said reservation will continue for a minimum period of 5 years and thereafter the same can be sold to any one.”

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In the said chamber summons filed by the applicants,the applicants inter alia seek amendment to the trust petition by deleting the names of respondent nos. 1 and 2 in view of their demise and for other reliefs. Notice was issued to learned Advocate General. In response to the said notice, learned Advocate General appeared and made submissions before this court. During the pendency of the trust petition, on application of M/s. Shruti Tradeplace Pvt. Ltd with whom MOU has been entered into by the trustees of the said trust in respect of Walkeshwar property of the said trust sought to be impleaded/intervened in this proceedings. By separate order passed by this court on 17^th July, 2013, said Chamber summons No. 1399 of 2012 filed by M/s. Shruti Tradeplace Pvt. Ltd this court permitted the said applicant to intervene in these proceedings in view of this court passing ad interim order dated 28^th September, 2012 restraining the respondent no. 2, one of the then trustees not to sell trust property to any persons outside the community. The said intervenor also filed separate affidavit opposing the trust petition and made submissions. The learned counsel appearing for respondent No. 3 to 5 who are present trustees according to petitioner also made submission and opposed the petition on various grounds including locus of the petitioner to file this trust petition for amendment of the scheme. The learned Assistant Government Pleader who appeared on behalf of the Charity Commissioner

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also opposed this petition on various grounds. In view of the issue of jurisdiction raised by the learned Advocate General, as well as other parties and view of the issue of locus raised by respondent nos. 3 to 5 against the petitioner, this court heard the respondent and intervenors first on preliminary issues raised by them.

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The learned Advocate General submits that before making any applications for amendment to the scheme sanctioned by this court, such scheme must contain provisions for the amendment of the scheme. My attention is invited to the decree passed by tis court on 27^th November, 1934 sanctioning the scheme of the said trust. It is submitted that by the said decree, plaintiff was granted liberty to apply to this court as there may be occasion. My attention is also invited to clause 18 of the sanctioned scheme which provides that in all case in which advise or direction of the court have been necessary or desirable in the conduct, management and administration of the trust and also amendment of the scheme , the trustees or any of them shall have right to apply to this court after giving notice in that behalf to the Advocate General in writing. The learned Advocate General submits that such liberty granted in favour of the trustees or any of them by this court for carrying out amendment cannot be exercised for carrying out any drastic amendment. It is submitted that the court has to examine whether such

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applicant for amendment is to modify certain clauses of the scheme more effectively for conduct, management and administration of trust or it seeks substitution of the earlier scheme by a new scheme. It is submitted that if the applicant seeks introduction of the new scheme altogether or seeks alteration of the basic structure and or character of the sanctioned scheme, such application would not be maintainable and the amendment of this nature can not be sought by exercising liberty granted by this court while sanctioning the scheme. Learned Advocate General placed reliance on the judgment of this court in the case of Dhirajlal Velji Gucka Versus Pratap Bhogilal and Ors. 1986(3) Bom.C.R. 120 and in particular paragraph 10 and 11 in support of the submission that under the “liberty to apply” clause the original scheme cannot be scrapped and altogether a new scheme cannot be framed. It is submitted that such application for amendment has to be subject to the conditions contemplated in section 50, 50A, 51, 55, 56, 56A and 56B of the Bombay Public Trust Act, 1950. Paragraphs 10, 11 and 15 of the said judgment read thus:

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“10. We are in agreement with the learned Counsel for the petitioners that under the "liberty to apply" clause (being Clause No. 26 with or without amendment), the original scheme cannot be scrapped and an altogether new scheme cannot be framed. "Liberty to apply" clause is at best an enabling clause for seeking amendment in a scheme framed earlier subject to the condition specified in section 92 of the C.P. Code and after coming into force of the Bombay Public Trusts Act subject to the conditions contemplated in sections 50, 50-A, 51, 55, 56, 56-A, and 56-B of the Act. There cannot possibly be any dispute about this proposition as the meaning and scope of

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"liberty to apply" clause is well settled in view of the decisions in the cases of---

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(i) Ratilal Ramchand Gandhi and others v. State of Company and others, MANU/SC/0138/1954 : [1954]1SCR1055

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(ii) Shah Chhotalal Lallubhai and others v. The Charity Commissioner, Bombay and others, MANU/SC/0339/1965 : [1965]2SCR811 .

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(iii) S.P. Mittal v. Union of India and others, : [1983]1SCR729 .

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For the proposition the specific provisions of section 50 of the Act override the general provisions of section 92 of the C.P. Code and that a scheme settled under section 92 of the C.P. Code is not independent of section 50 of the Act, we have an authority of Gujarat High Court in the case of Y.A. Faroqui v. I.A. Sheikh, 17 G.L.R. 54.

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The next pertinent question is whether the trustees' application for amendment of the scheme by taking recourse to Chamber Summons and the Court granting amendment is not proper and if so whether it is so bad as to make the order of the Court without jurisdiction. In order to appreciate the rival contentions, in this regard, it is desirable to mention that this Court has in the case of Chandraprasad Ramprasad v. Jinabharthi Narayanbharti, 33 Bom.L.R. 520 at page 529 observed as under :

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" With regard to the second point that so far as the relief mentioned in section 92 of the Civil Procedure Code is concerned, the remedy is not by way of an application but by a suit with the consent of the Advocate General, it appears to me that the consent of the Advocate General is required under section 92 for the settling of a scheme where no scheme existed before, and not for the modification or alteration of the scheme. Though the provision for the consent of the Advocate General is salutary in so far as it would tend to prevent vexatious suits, I think that when once the Court has seized of a case relating to charitable and religious trust involving the framing of a scheme, the more appropriate and speedy remedy would be by way of an application rather than the cumbrous procedure of a suit, in case a modification is required of the scheme owing to change of circumstances."

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Therefore, even though, section 92 of the C.P. Code contemplates taking of prior permission in writing of the Advocate General before a suit is filed, taking of proceedings by way of chamber summons is not only permissible but also desirable. Further, the Supreme Court has held in paragraph 18 of its decision in the case of Ratilal Panachand Gandhi's case (supra) as under :

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"We now come to section 50 and exception has been taken to Clauses (e) and (g) of that section. It is difficult to see how these provisions can at all be objected to. Section 50, as has been said above, is really a substitute for section 92 Civil P.C. and relates to suits in connection with public trusts Clause (e) of section 92, Civil P.C. and Clause (g) also reproduces substantially the provision of Clause (g) of section 92 Civil P.C. There is no question of infraction of any fundamental right by reason of these provisions."

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This view has been again taken by the Supreme Court in the case of Raje Anandrao v. Shamrao and others, MANU/SC/0356/1961 : [1961]3SCR930 . In the above view of the matter, it can be assumed that at least for limited purpose, section 50 of the Act is a substitute for section 92 of the C.P. Code and, therefore, Chamber Summons would be permissible under the Bombay Public Trusts Act also on parity of reasonings. If the scheme so provides. No doubt, the Supreme Court held in its decision in the case of Shree Gollaleshwar Dev and others v. Gangawwa Kom Shantayya Math and others, MANU/SC/0397/1985 : AIR1986SC231 that the provisions of section 50 of the Bombay Public Trusts Act and section 92 of the C.P. Code were not in pari materia and reversed Mysore High Court's Full Bench decision in the case of Gollaleshwar Dev's case reported in A.I.R. 1972 Mysore 1. However, on carefully going through the decision particularly paragraph 15, it appears to us that Their Lordships held the provisions in two sections to be not in pari materia on account of some distinguishing feature which have nothing to do with the taking of proceedings by way of Chamber Summons. Therefore, we do not agree with the learned Counsel for the petitioners that there has been anything fundamentally wrong or improper in seeking amendment of the scheme by taking recourse to Chamber Summons or in Judge's passing an order in those proceedings. There is one more reason for our taking this view. It is an admitted position that the decree dated 12th September, 1962 passed by the Bombay City Civil Court in Suit No. 1195 of 1962 was obtained by the trustees by taking proceedings in conformity with the provisions of section 50 of the Act. The decree dated 12th September, 1962 has not been challenged in these proceedings in these proceedings as such. Chamber Summons are taken as further step in those proceedings i.e. Suit No. 1195 of 1962. Moreover, we have not been able to appreciate what is so illegal about the procedure adopted in this behalf. Instead of obtaining the consent of the Charity Commissioner in writing before filing the suit under section 50 read with the section 51 of the Act, Charity Commissioner has been made a respondent. The Charity Commissioner has appeared before the Court through his Advocate. If he had any objections, he had ample opportunity to raise. Instead of raising any objection, he has instructed his advocate not to oppose the amendment as he did not find anything wrong with the amendment sought.

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Before concluding, in the interest of justice, we would like to observe that it would be advisable hereafter to seek any amendment of the scheme under the procedure laid down in the Bombay Public Trusts Act, 1950, particularly sections 50, 50-A, 51, 56, 56-A, and 58-B. We are happy to note that the trustees have no objection to following such a course.”

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The learned Advocate General placed reliance on the judgment of the Calcutta High Court in the case of Abdul Khair and another Vs. Nazir Hossain and others reported in AIR 1960 Calcutta 631 and in particular paragraph 16 in support of his submission that though the court is competent to amend section by adding clause found to be necessary subsequently, such power in the liberty to apply clause cannot be exercised to scrap old scheme altogether and substitute it by the new scheme and pass entirely new final decree containing new scheme. Paragraph 16 of the said judgment reads

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thus :

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“16. It seems to me that when in an administration suit the Court frames a scheme in the final decree and liberty to apply is reserved, the suit is not altogether dead. I respectfully agree with the view expressed by the Calcutta and Patna High Courts an the cases above noted. The Court while laying down the scheme having felt that it might be necessary to give directions and orders to work out the scheme, gave the parties liberty to apply in the suit itself, even after the final decree is passed. For the limited purpose of giving effect to the scheme the suit is pending, even though it has come to an end by the passing of a final decree. In Sadupadhya's case, reported in , Sir Asutosh Mukherjee held that the Court has further power than giving orders for working out the scheme. The Court is competent even to amend the scheme by adding a clause found to be necessary subsequently. But in my judgment, that is the limit. The Court has no further power under the 'liberty to apply' clause to scrap the old scheme altogether and substitute it by a new scheme and pass an entirely new final decree containing the new Scheme. This can only be done by filing a new suit under Section 92 of the Code. It appears to me that in such a case there is an

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entirely new cause of action to frame a new scheme and the law contemplates that whether such a new cause of action should be the foundation of a new proceeding has first to be determined by the Advocate-General, before the matter comes to Court. Jurisdiction of the Court is vested to try and determine such a suit only after the sanction of the Advocate-General is obtained. It is true that Section 92 does not apply to applications. That is all the more reason why the Court should not allow a party to ventilate his new grievance by way of an application before the investigation of the Advocate-General. The AdvocateGeneral is the screening authority set up by the Legislature to determine what suits in respect to a Public Trust should be permitted. The Court is not entitled to allow the parties to evade this salutary and beneficial provision by allowing a party to make an application under the 'Liberty to apply' clause in a decree made long before in respect to a new cause of action. What the party is not entitled to do directly should not be allowed to be done indirectly. The applicant wants a new scheme on the averment that the old scheme has proved to be unworkable. It is not a mere amendment of the old scheme, but the total substitution of the old scheme in favour of a new one. That is what the petitioner wants. If that is so, he must file a new suit and must comply with the requirements of Section 92 of the Civil Procedure Code. It cannot be done by an application in this way. ”

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Learned Advocate General placed reliance on section 50A of Bombay Public Trust Act, 1950 which provides for the power of Charity Commissioner to frame amalgamation or modify the scheme. It is submitted that after insertion of section 50A in Bombay Public Trusty Act, 1950 by Bom. Act 6 of 1960, all such powers now vest with the Charity Commissioner. Learned Advocate General placed reliance on the judgment of the Supreme Court in the case of Church of North India Vs. Lavajibhai Ratanjibhai and Others, (2005) 10 Supreme Court Cases 760 in support of the submission that there is bar on Civil Court under section 80 of the Bombay Public Trust Act, 1950 to decide or deal with any question which has to be decided or dealt with by the Charity Commissioner or any authority

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under the provisions of Bombay Public Trust Act, 1950. paragraphs 36 to 42,

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70, 82 and 83 of the said judgment read thus :

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“36. Sections 51, 79 and 80 read as under:

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"51(1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal.

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(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub- section (1) the persons applying for such consent may file an appeal to the Bombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1939, in the manner provided by this Act.

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(3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party.

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(4) Subject to the decision of the Bombay Revenue Tribunal in appeal under section 71, the decision of the Charity Commissioner under sub- section (1) shall be final and conclusive."

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"79. (1) Any question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.

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(2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall, unless set aside by the decision of the court on application or of the High Court in appeal, be final and conclusive."

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"80. Save as expressly provided in this Act, no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive."

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Having noticed the statutory scheme of the said Act, we may consider the

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provisions of Section 26 thereof which is relevant for the purpose of this case, which is as under:

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"26. Any Court of competent jurisdiction deciding any question relating to any public trust which by or under the provisions of this Act is not expressly or impliedly barred from deciding shall cause copy of such decision to be sent to the Charity Commissioner and the Charity Commissioner shall cause the entries in the register kept under section 17 to be made or amended in regard to such public trust in accordance with such decision. The amendments so made shall not be altered except in cases where such decision has been varied in appeal or revision by a court of competent jurisdiction. Subject to such alterations, the amendments made shall be final and conclusive."

¶97

JURISDICTION OF CIVIL COURT - Principles for determination:

¶98

The question as regard ouster of a jurisdiction of a Civil Court must be construed having regard to the Scheme of the Act as also the object and purport it seeks to achieve. The law in this regard is no longer res integra.

¶99

A plea of bar to jurisdiction of a civil court must be considered having regard to the contentions raised in the plaint. For the said purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in their entirety. The Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed de'hors the factual averments made in the plaint. The rules of pleadings postulate that a plaint must contain material facts. When the plaint read as a whole does not disclose material facts giving rise to a cause of action which can be entertained by a civil court, it may be rejected in terms of Order 7, Rule 11 of the Code of Civil Procedure.

¶100

In Dhulabhai and Ors. v. The State of Madhya Pradesh and Anr. MANU/SC/0157/1968 : [1968]3SCR662, Hidayatullah, CJ summarized the following principles relating to the exclusion of jurisdiction of civil courts:

¶101

(a) Where the statute gives a finality to the orders of the special tribunals, the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunals has not acted in conformity with the fundamental principles of judicial procedure.

¶102

(b) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

¶103

Where there is no express exclusion, the examination of the remedies and the

¶104

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scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.

¶106

(c) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.

¶107

(d) When the provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

¶108

(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

¶109

(f) Questions of the correctness of the assessment, apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.

¶110

(g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.

¶111

[See also Rajasthan State Road Transport Corporation and Anr. v. Krishna Kant and Ors. - MANU/SC/0786/1995 : (1995)IILLJ728SC, Dwarka Prasad Agarwal v. Ramesh Chand Agarwal - MANU/SC/0449/2003 : AIR2003SC2696, Sahebgouda v. Ogeppa MANU/SC/0257/2003 : [2003]3SCR90, Dhruv Green Field Ltd. v. Hukam Singh MANU/SC/0643/2002 : [2002]SUPP1SCR449 and Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors., [ MANU/SC/0287/2005 : AIR2005SC2392].

¶112

The same, however, would not mean that in a given case if the court has the jurisdiction to determine a part of the relief claimed, it will not confine itself thereto and reject the plaint in its entirety. For the purpose of determination of question as to whether the suit is barred, the averments made

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in the plaint are germane. [See Sopan Sukhdeo Sable and Ors. v. Assistant Charity Commissioner and Ors., MANU/SC/0071/2004 : AIR2004SC1801]

¶116

ANALYSIS OF BPT ACT:

¶117

The BPT Act is a special law. It confers jurisdiction upon the Charity Commissioner and other authorities named therein. The statute has been enacted by the Parliament in public interest to safeguard the properties vested in the trusts as also control and management thereof so that the trust property may not be squandered or the object or purport for which a public trust is created may not be defeated by the persons having control there over. A society may be created either for charitable or religious purposes as also for other purposes. A society registered under the Societies Registration Act is not a juristic person. It cannot own any property. The properties belonging to a society admittedly vest in the trustees. In terms of Section 2(13) of the BPT Act, a society is also a charitable trust. Both the Acts are regulatory in nature. The object and purport of both the Acts are clear and the provisions thereof do not contain any obscurity. It has not been argued before us, as was done before the learned Trial Judge, that there exists any inconsistency between the provisions of the Societies Registration Act which is a Parliamentary Act, on the one hand, and the BPT Act, which is a State Act, on the other. The core question which had been raised before us is as to whether the Society managing or governing the trust having a separate entity; in relation to its affairs the jurisdiction of the civil court is barred.

¶118

In view of the decision of this Court in Dhulabhai (supra) such finality clause would lead to a conclusion that civil court's jurisdiction is excluded if there is adequate remedy to do what the civil courts would normally do in a civil suit. In this case, we are not concerned with a dispute as regard absolute title of the trust property. We are also not concerned with the question as regard creation of any right by the trust in a third party which would be otherwise beyond the jurisdiction of the Charity Commissioner. It is also not a case where the plaintiffs made a complaint that the provisions of the BPT Act were not complied with or the statutory tribunal had not acted in conformity with the fundamental principles of judicial procedure. In fact no order has been passed on the Appellant's application for changes in the entries made in the registers maintained under Section 17 of the Act. The BPT Act provides for express exclusion of the jurisdiction of the Civil Court. It in various provisions contained in Chapter IV a power of inquiry and consequently a power of adjudication as regard the list of movable and immovable trust property, the description and particulars thereof for the purpose of its identification have been conferred. In fact, the trustee of a public trust is enjoined with a statutory duty to make an application for registration wherein all necessary descriptions of movable and immovable property belonging to

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the trust including their description and particulars for the purpose of identification are required to be furnished. Section 19 provides for an inquiry for registration with a view to ascertaining inter alia the mode of succession to the office of the trustee as also whether any property is the property of such trust. It is only when the statutory authority satisfies itself as regard the genuineness of the trust and the properties held by it, an entry is made in the registers and books, etc. maintained in terms of Section 17 of the Act in consonance with the provisions of Section 21 thereof. Such an entry, it will bear repetition to state, is final and conclusive. Changes can be brought about only in terms of Section 22 thereof.

¶122

The provisions of the Act and the Scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdictional question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the Act will have no jurisdiction to determine the said question.

¶123

With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the reliefs sought for, that civil court has no jurisdiction, Section 26 per force will have no application whatsoever.”

¶124

Learned Advocate General laid emphasis on section 50A(4) of the

¶125

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Bombay Public Trust Act, 1950. Learned Advocate General placed reliance on paragraph 2 and 4 of the judgment of the Division Bench of this court in the case of Khojeste Mistree & Ors. Versus Minoo Rustomji Shroff and Ors. 2008 (4) Bom.C.R. 617 on the ground that in that matter no opportunity was granted by the court to substitute scheme or to give new scheme. Learned Advocate General also placed reliance on paragraph 2, 4 to 6, 11 to 14 of the

¶127

judgment of the Division Bench which read thus :

¶128

“2. The petitioners in Miscellaneous Petition No.17 of 2006 are the six trustees for the time being of the Funds and Immovable Properties of the Parsee Panchayat of Bombay (hereinafter referred to as the BPP). The Scheme for the Election of Trustees of the BPP (hereinafter referred to as the Scheme) was originally sanctioned by this Court on 18/06/1910 in Suit No.689 of 1906 and thereafter amended from time to time by this Court. The necessity for filing this petition had arisen in the following circumstances:

¶129

a) The petition to carry out the last amendments to the Scheme was filed on 27.1.2000. During this period, the petitioners allege that the Parsee community has developed a very strong consensus that the trustees should be elected by a system of universal adult franchise. The same has met with the approval of the petitioners by virtue of their unanimous resolution dated 4.10.2006.

¶130

b) Under the present scheme, the trustees are elected by an Anjuman committee consisting of both elected and Donor members. The elected members of this committee are elected by the Parsee community in general. The electorate numbers approximately 18,000. There are generally 6,000-7000 voters as well as nominated candidates, out of which a total of 3,000 are elected as elected members of the Anjuman Committee. The petitioners contend that this situation is anomalous. c) Since 2006, differences arose among the petitioners interse which led to petitioners No.1,4,5 and 6 submitting their letters of resignation dated 20.6.2006 and 19.6.2006 respectively. However, before the letters were accepted, the matter was resolved through the intervention of community leaders and the four trustees decided to continue as trustees.Chamber summons No.899 of 2006 was taken out by some community members in Miscellaneous Election Petition No.4 of 2000 praying for a declaration that these four trustees can no longer continue in office. This was dismissed by this Court by its order dated 21.8.2006. d) In the earlier Miscellaneous Election Petition No.4 of 2000, an amendment was sought by the then trustees to provide that no person who has been a trustee for a total three terms or for the total number of 21 years shall be eligible for re-election. However, when the Scheme was sanctioned by this Hon’ble Court by its order dated 1.4.2005, the wording

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of the order seems to suggest that even as a trustee whose term of office has not expired must resign prematurely as soon as he completed 21 years in office. The term of petitioner No.1 will expire on 2.8.2007, if one considers the completion of 21 years in office. However, his third term would normally have expired only on 2.8.2010 since his first term under the Scheme was for 10 years. The petitioners allege that a large proportion of the Parsee community profess confidence in Petitioner No.1 and wish him to continue in office up to August, 2010. e) Clause 70 of the Scheme authorises the Trustees to, by a majority, at any time, submit to a Judge of the High Court in Chambers for sanction of this Scheme provided the Trustees give a four clear days notice in writing to the Charity Commissioner o f any application intended to be made by the Trustees under this rule, setting forth in full the proposals to which the sanction of the Court is intended to be asked and the Charity Commissioner and the Charity Commissioner is entitled to appear and be heard on any such application. The petitioner trustees have approached this Hon’ble Court pursuant to the above clause. f) Further Clause 74 of the Scheme makes it mandatory for the Trustees to publish once the notice for every such application mentioned in Rule 73, and the day fixed for hearing thereof together with brief particulars of the proposed alterations and additions, in a Gujarati daily newspaper published in Mumbai, at least 14 days before the day fixed for hearing. The Petitioners had published the said notice in the ’Mumbai Samachar’ as well as the ’Jam-e’Jamshed’. g) The last of amendments to the Scheme were s anctioned on 01/04/2005 (formally on 21/08/2006).

¶134

h) Taking into consideration the view and suggestions received from the members of the Parsee community, the Petitioners held further discussions in respect of the proposed amendments and have reached a unanimous opinion that the proposed changes ought to be made to the scheme. The gist of these proposed changes are set out hereunder: i) The Register of the Elected Members of the Anjuman Committee shall be abolished. In its place a General Register consisting of Parsee Zoroastrians residing in Mumbai who are registered atleast 60 days before the date of election of a Trustee shall be eligible to vote, and each such person shall have one vote at each Trustee election. Every person who is registered on the Donor Register atleast 60 days before the date of election of a trustee is eligible to vote and each Donor shall have two votes at the election of a Trustee.

¶135

j) Clause 13.1 (which has been dealt with in Paragraph iv) dealing with the maximum number of terms that a Trustee can serve in office for, shall be clarified and Petitioner No. 1 , Mr. Minoo Shroff, shall be entitled to continue in office for his original term expiring on 2.08.2010.

¶136

k) There shall be a Vice-chairman who shall preside at the meeting on the Trustees, in the absence of the Chairman. At a meeting held on 26/09/2006, the Petitioner No.3, Mr.Dadi Engineer has been designated as the first Vice-Chairman and whenever Petitioner No.1 ceases to be Chairman, Petitioner No.3 shall be appointed as chairman. However, this arrangement is only for the present situation and not to be treated a precedent.

¶137

l) Presently, the trustee senior most in office is designated as a Chairman. This practice shall be continued, however, if all the trustees other than the senior most trustee resolve to displace the seniority principle for that

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particular appointment, the Chairman shall then be elected by the Board of Trustees by majority vote.

¶140

m) A trustee seeking to resign his office shall address his letter of resignation to the Chairman who shall convene a meeting to consider it. Such resignation shall become effective from the date upon which a change report has been filed to this effect under the provisions of Section 22 of the Bombay Pubilc Trusts Act,1950. n) The trustees submit that after this Court sanctions the proposed amendments, they shall arrange, as soon as it is practicable, to hold trustee elections for all seven seats, with the understanding that the present six trustees shall cease to hold office from the date on which the seven trustees are elected to office.

¶141

In all the above three Appeals, broadly, the following challenges were made. Firstly, the contention was, that this Court has no jurisdiction to modify or sanction the scheme and the said power was vested only with the Charity Commissioner under the provisions of Bombay Public Trusts Act,1950. In this context, it is necessary to note that this very issue that this Court has no jurisdiction to sanction the scheme and only the Charity Commissioner has jurisdiction to decide the same was raised before the Learned Single Judge of this Court in Misc.Petition No.270 of 1969 and by an unreported judgment in the said Petition dated 2nd April,1970, the learned Single Judge had considered the issue in depth and referred to the judgment of the Hon’ble Supreme Court in Raje Anandrao Vs. Shamrao and Ors. AIR 1961 SC 1206 and categorically held that this Court has jurisdiction to entertain the Petition and the Charity Commissioner did not have jurisdiction in that behalf. It is also important to note that the same issue that this Court has no jurisdiction to sanction the scheme was again raised before the learned Single Judge in Misc.Petition No.4 of 2000 which was decided by the learned single Judge on 1st April, 2005 which is reported in 2005(2) MLJ 1135, wherein also the learned Single Judge relying on the aforesaid judgment of the Hon’ble Supreme Court in the case of Raje Anandrao (Supra) holding that this Court has jurisdiction to entertain such a Petition for sanction of a scheme.

¶142

Even apparent from plain reading of Section 50(a)(iii) of the Bombay Public Trust Act a Charity Commissioner can modify the scheme in respect of the trust which has been framed by him. That is to say any scheme framed by this Court in a suit will be outside the purview of powers of the Charity Commissioner under Section 50(a)(iii) of the Act. Accordingly, this Court has jurisdiction to frame the scheme and sanction the scheme. In the light of the above, the above objection has no substance and the same stands rejected. 6. Secondly, the objection raised was that the Petition filed by the Petitioners had no locus-standi to file the above Misc.Petition No.17 of 2006 since four of the Petitioners had already resigned and as such they have no locus-standi to do so. In this context, we have considered the issue of the validity of the said resignations and we have by our judgment of even date in Appeal No.167 of 2007 held that the aforesaid resignations of the said four Petitioners were not at all effective in law in the sense, they were no valid resignations in the eye of law. In view thereof, the Petitioners do have locus-standi to file the above petitions for sanction of Scheme. Even the said objection stands rejected.

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As far as the amendment to Rule 52 with regard to resignation of trustees is concerned, the learned Single Judge has sanctioned the same in the following manner:In the sense that the modification in Rule 52 will have to be re-drafted to the effect that if a Trustee decides to resign, he may send his resignation to the Chairman. The Chairman, in turn will then convene an urgent meeting of all the trustees and table the said resignation before the Board of Trustees. It is only after the Board accepts the resignation, the same has to take effect and not at an earlier point of time. In other words, mere tabling of resignation in the meeting will not be sufficient, the resignation will have to be accepted by the members of the Board of Trustees, so as to make it effective.

¶145

The learned Single Judge has recorded in paragraph 25 of his order that the learned counsel for the Petitioner fairly accepted that the change can be made in the proposed Rule 52. Under these circumstances, we do not find anything wrong in the said proposed amendment to rule 52, and the said proposal is a fair and just one. 14. Under the aforesaid facts and circumstances of the case, we do not find any ground made out for interfering with the judgment and order of the learned Single Judge in sanctioning the above modifications in the proposed scheme. Hence all the above Appeals stand dismissed, however with no order as to costs. We make it clear that the election process for the post of all the seven trustees should commence immediately and the same should be completed expeditiously. To ensure that every eligible Parsee member above the age of 18 years, whose name is entered in the General Register or Donor Register is entitled to take part in the aforesaid Universal Adult Franchise to elect the trustees. We direct that the enrolling of new members and electoral roll shall be completed within a period of two months from today and the entire exercise of election shall be completed within a period of four months thereafter, so that there is a proper elected Board of Trustees to take charge. With the above observations all the aforesaid three Appeals stand dismissed, however, with no order as to costs.”

¶146

Learned Advocate General also distinguished the judgment of this court in

¶147

the case of Minoo Rustomji Shroff and Ors. Vs. Charity Commissioner and Ors. 2005 (4) Bom.C.R. 570. This judgment was also relied upon by the petitioner and distinguished by the other respondents also. Paragraph 2 to 11 of the said judgment which are relied upon and or distinguished by the parties read thus :

¶148

“2. Originally in suit no.689 of 1906 the scheme was sanctioned by this court on 18.6.1990 pertaining to the election of trustees of the funds and immovable properties of the Parsee Panchayat. The said scheme is in force as on date. Briefly speaking the scheme interalia provides for establishment of an Electoral College known as 'Anjuman Committee' to be constituted as contemplated under the scheme. It is contemplated under the scheme that the

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said committee must consist of Parsees coming from two separate streams. One by General Election from the General Register of the Parsee maintained by the Parsee Panchayat and other called as Donor Members of the Anjuman Committee. In a nutshell the constitution of the Anjuman Committee is comprising of two streams of Parsees. One is Donor Members who have donated specific sum of money and by mere donation has become a member of the Anjuman Committee and the second is a general category of Parsees who register themselves with the parsee Panchayat and whose name appears on the register maintained by the Parsees and which is known as 'General Register'. It is these members whose name appears in the General Register are empowered to elect certain members as the members of the 'Anjuman Committee' along with the donor members of the 'Anjuman Committee'. Originally the scheme provided a ratio of 1:1 i.e. one donor member of the anjuman committee will have one elected member from the General Register of the Parsees as an elected member on the Anjuman Committee.

¶152

Sometime in or about January/February 1999, the trustees of the Parsee Panchayat have framed a further amendment to the scheme and objections were invited from the members of the Parsee Community. The trustees have after considering the said objections have now formulated proposals for proposed amendment to the said scheme. In brief following proposals are framed for amendment of the scheme:

¶153

(a) Originally the amount of donation fixed for donor members was Rs.15000/-. It is proposed to enhance this to Rs.25,000/- or more.

¶154

(b) The ratio of 1:1 donor member to the elected members is sought to be altered by providing the ratio 1:2 i.e. one donor member equivalent to have two elected members on the Anjuman Committee.

¶155

(c) It has been provided that if in any constituency there are less number of elected members than the donor member then every constituency will be entitled to fill in deficiency by electing more than one person from the other constituency.

¶156

(d) It has been provided that the term of the trustees should not exceed 21 years and on expiry of his period of 21 years he shall not be re-eligible for election.

¶157

(e) It is proposed that the security deposit for the purpose of contesting the election of trustees to be enhanced from Rs.500 to Rs.5000/- and if a candidate does not get atleast 100 votes the said security deposit is liable to be forfeited.

¶158

The aforesaid proposal was discussed at the meeting of the trustees.

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Majority of the trustees have approved the proposal and accepted the same. However, two of the trustees namely respondent no.2 and 3 before me have dissented from the said proposal and have not agreed to the proposal put forward by the majority of trustees who are 5 in number. According to the respondent no.2 and 3 the scheme for election of trustees by an indirect method through the 'Anjuman Committee' as existing today should be scrapped. According to respondent no.2 and 3 the method of election should be direct i.e. the Parsees whose name appears on the general register should be entitled to elect the trustees on the Principles of Universal, Adult Franchise Respondent no.2 and 3 have also opposed various other amendments on various grounds. However, essentially the ground of challenge has been that Universal Adult Franchise scheme must be introduced and existing scheme which has been formulated by this court should be substantially altered in the aforesaid direction. It has been also prayed that proposed amendment to the scheme should not be adopted because it would only mean that existing scheme of indirect election of the trustees via the Anjuman Committee will continue perpetually.

¶162

At the hearing of the Miscellaneous Petition the proposals are strongly opposed both by respondent no.2 and 3 as well as various intervenors and interalia it has been contended that the scheme should be modified not in terms of proposed amendment as envisaged by trustees but substantial modifications as contended by them should be accepted by the Court.

¶163

a. It has been contended by respondent no.2 that this court has no jurisdiction in view of diverse provision of the Bombay Public Trusts Act, 1950 and Charity Commissioner and/or City Civil Court alone has jurisdiction to consider the present petition for modification of the present scheme of the trust.

¶164

b. It has been contended that the proposals which are put forward are totally absurd. People with money power having donated a paltry sum of Rs.25000 are being entitled to vote for the trustees election whereas poor Parsees are required to contest first election to the Anjuman Committee to become eligible to vote for the election of the trustees. Those Parsees who have not been successful to reach the Anjuman Committee are not in a position to even vote for the trustees of the Parsee Panchayat. It has been also contended that except Bombay all over India the Parsee Panchayats have adopted a universal Adult Franchise as a principle for voting of the trustees and therefore the Parsee Panchayat at Bombay also should adopt the same. Some of the intervenors have contended that the scheme of an indirect election is not a practical one since it requires to elect large number of Anjuman Committee members in the segment of general election which will be now in proportion of 1:2 with the donor members. The right conferred on the donors to vote merely on the donation is absolutely void and cannot be enforced . It also

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tantamounts to discrimination between two Parsees in similar situation. It has been further suggested that there should be a limitation in age of the trustees who are eligible to become member. No trustee should be permitted to be a life time trustee of the Parsee Panchayat.

¶168

c. It has been also contended that the clarification should be issued to the proposed amendment under which now the trusteeship is restricted to a term of 21 years maximum. That no person who has been a trustee for total three terms or for the total number of 21 years shall be eligible for election. With the aforesaid objection it has been contended that this court should not accept the proposal as it is but either reject the same outright or modify the same as required and necessary on the given facts and circumstances of the case.

¶169

The learned counsel Ms.Sethna appearing for the respondent no.2 has interalia contended that this court has no jurisdiction to entertain the petition. He has taken me through the various provisions of Bombay Public Trusts Act, 1950 particularly the definition of the word "Court" under s.2(4), the provision of s.50, s.50(A), s.52, s.85 and s.86 of the Bombay Public Trust Act, 1950. It has been interalia contended that the word court defined by the provisions of s.2(a) means in the Greater Bombay, the City Civil Court and elsewhere, the District Court. It has been further contended that the application by way of Miscellaneous Petition would not lie in this court because for framing of a scheme or variation or alteration therein an application should be made to the Charity Commissioner u.s.50 clause (iv)(j) of the Bombay Port Trusts Act, 1950 and thus, he alone would have jurisdiction to alter, amend, verify or form a new scheme for the election of trustees of Parsee Panchayat. It has been contended that u/sec.52 the provision of s.92 and 93 of Civil Procedure Code has been repealed and they cease to apply to the Public Trusts and therefore the present proceedings initiated in this court is totally beyond the jurisdiction of this court and cannot be entertained. This issue of jurisdiction has also been supported by other intervenors.

¶170

Mr.Sethna has relied upon the Judgment of the Gujarat High Court in the case of Jai Ranchhod Bhogilal Sevan and etc. v. Thakorelal Pranjivandas Jumkhawalal and Ors. etc. reported in AIR 1985 Gujarat 1 Full Bench Pg.1 as well as the Judgment in the case of Yasinmian Amirmian Faroqui & Ors v. I.A.Shaikh & Ors. reported in and has contended that the provision of s.92 and 93 of the Civil Procedure Code would not applicable once the provision of s.52 of Bombay Public Trusts Act 1950 is enacted specifically lays down that the provision of said Civil Procedure Code shall not apply in the case of the public trust and the trusts which are governed by the provision of Bombay Public Trusts Act, 1950.

¶171

The learned counsel Mr.Dada appearing for the petitioner has on the other

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hand drawn my attention to the provisions of s.92 and 93 of Civil Procedure Code, 1908. Mr.Dada the learned counsel for the petitioner has also drawn my attention to the Judgment of the Apex Court in the case of Raje Anandrao v. Shamrao and Ors. MANU/SC/0356/1961 : [1961]3SCR930 particularly para 6 to 10 of the said judgment and has interalia contended that this court will have a power to modify the scheme if the same is settled in a suit by passing a decree reserving thereunder right to apply for alterations and modifications of the scheme much prior to the provision of Bombay Public Trusts Act 1950 are enacted. It has been contended that the provision of s.52 of the Bombay Public Trusts Act, 1950 would only apply if the suit is filed for settlement of the scheme subsequent to the amendment of the Act but in a case where the scheme is already settled u.s.92 and 93 of the Civil Procedure Code and the scheme reserves its power to further act or modify the scheme in such cases the provision of s. 92 and 93 will continue to govern the situation and provision of s.52 of the Bombay Public Trusts Act, 1950 r.w s.50 (4) would not be applicable. Though the aforesaid judgment of the Apex Court do not consider the provisions of Bombay Public Trusts Act. The said judgment of the Apex Court has been followed by the learned Single Judge of this Court in the case of Petitioner itself and the learned single Judge has in his judgment delivered in Miscellaneous Petition No.270 of 1969 decided on 2.4.1970 has held as under:

¶175

"Mr. Zaiwala on behalf of Mr.B.K.Karanjia has raised a preliminary contention to the hearing of this petition. He urged that this Court has no jurisdiction to entertain and dispose of this petition. He submitted that the proper remedy for the Trustees is to file a suit in accordance with the provisions of section 50 of the Bombay Public Trusts Act, 1950. He also opposed the amendments suggests by the Trustees on the ground that they did not give much wider franchise to the members of the Parsee Committee. He said that the members of the Anjuman Committee should be elected on the basis of adult franchise by the members of the Parsee Committee. However, he suggested that such an amendment would be a substantial alteration f the scheme sanctioned by this court and the proper remedy of his client would be to adopt appropriate legal proceedings as may be permitted by law. So far as the Charity commissioner is concerned, he has submitted to the orders of the Court and he has no objection to the petition being allowed.

¶176

The first question that has to be considered is whether this court has jurisdiction to entertain this petition. Clauses 88, 90, 91, 94 and 95 of the Scheme sanctioned by this Court provide for the procedure to be adopted for modification or alteration of the Scheme. Under clause 88 it is competent to a majority of the Trustees at any time, to submit to a judge of the High Court in chambers for sanction any proposals for alteration in or additions to the provisions of this scheme. This clause further provides that the trustees shall

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give notice to the Advocate General, which having regard to the provisions of the Bombay Public trust Act has to be given to the charity Commissioner. Clause 90 provides for the manner in which such an application has to be made. Clause 91 provides for publication of such an application in the newspapers. Clause 94 gives liberty to the Judge in chambers to permit any members of the Parsee Committee to appear in person or through Counsel or attorney. Clause 95 is a consequential clause and it says that any alteration or modification that is sanctioned by the Judge in chambers shall form part of the scheme. Thus, under the scheme as framed by this Court, the High Court has jurisdiction to entertain a petition for alteration or addition to the provisions of the scheme."

¶179

In the aforesaid Judgment the Single Judge of this court has followed the judgment of the Apex Court and has held that the provision of s.50 of Bombay Public Trusts Act, do not apply to the cases of a kind where the scheme is sought to be altered by virtue of the power reserved under the scheme while passing a decree prior to the enactment of Bombay Public Trust Act, 1950. It has been held that irrespective of the provisions of the said Bombay Public Trust Act this court alone shall have jurisdiction to modify the scheme which is settled by it while passing a decree.

¶180

In my opinion in the view of the Judgment of the Apex Court where the provision of s.92 and 93 has been considered and the Judgment of the Single Judge of this court which has been decided following the apex court judgment in the case of Raje Anandrao (Supra) I am of the opinion that the issue of jurisdiction to entertain the present Misc. Petition and decide the same is squarely and directly covered and therefore, I am required to hold that notwithstanding the provisions of s.52 of the Bombay Public Trust Act, 1950 in respect of the scheme settled by this court under the decree prior to enactment of the said Act if it reserves a right to alter or modify the scheme then this court shall continue to have jurisdiction to alter, modify or verify the scheme but shall have no jurisdiction to replace and/or substitute the scheme in its entirety.

¶181

In the present petition admittedly the scheme was framed on 18.6.1910 in Suit No.689 of 1906 which has been amended from time to time by virtue of the power reserved under the said scheme. In view thereto this court has reserved power to amend by virtue of the provisions of the scheme itself by way of an application for amendment the scheme and not by a separate suit . Thus, I am in agreement with the view taken by the learned single Judge in Misc.Petition No. 270 of 69 and accordingly I hold that this court has jurisdiction to entertain the present petition.”

¶182

Learned Advocate General submits that even in the said judgment of this

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court, it has been categorically held that notwithstanding the provisions of section 52 of the Bombay Pubic Trust Act, 1950, settled by this court in the decree, prior to the enactment of the said Act, if it reserves right to alter or modify the scheme, then High Court shall continue to have jurisdiction to alter, modify and or verify the scheme but shall have no jurisdiction to replace and/or to substitute the scheme in its entirety. Learned Advocate General invited my attention to the scheme of the said trust settled by this court. It is submitted that the scheme was framed for the regulations, administration and management of the heritable properties, temple and Dharmashala situated at Walkeshwar and for appointment of trustees thereof. It is submitted that the said scheme was framed for specific temple and Dharmashala and the object of framing such scheme was to look after the said Dharmashala and temple situated at Walkeshwar. He submits that by amendment, the beneficiaries seek to give powers to the trust to sell/develope the said property which amendment would be by way of framing of new scheme which cannot be permitted by exercising any such liberty. The learned Advocate General also objected to the amendment to clause 17 of the said scheme sought by the petitioner on the ground that if the property of the said trust is allowed to be sold only to member of the community who belongs to Guajrathi Mochi/Chamar community of Hindu or any Mochi or chamar community domiciled in Maharashtra of Hindu religion or having specific community, the trust which holds the property for the benefit of the beneficiaries would not be able to receive higher price of sale of said properties and the same would be detrimental to the interest of the trust as well as its beneficiaries. Learned Advocate General placed reliance on the judgment delivered by the Full Bench of this court in the case of Sailesh Developers Vs. Joint Charity Commissioner, Maharashtra reported in 2007 (3) Bom.C.R. 7 and in particular paragraphs 28 to 30 in support of his submission that the trust shall receive best available offer which should be for the benefit of the trust. The property cannot be allowed to be sold to he particular purchaser or of particular community. Paragraph 28

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to 30 of the said judgment read thus :

¶189

“28. While exercising powers under Section 36 of the said Act of 1950, the Charity Commissioner has to safeguard the interests of the trust as well as the interests of beneficiaries. The learned Single Judge in the case of Arunodaya Prefab (supra) has held thus:

¶190

It may not be open for the Charity Commissioner to consider the offers of third parties except only to the extent that they might disclose to him what might be the market value of the land only for the limited purposes of ascertaining the market value of the land.

¶191

The said view was rightly criticised before us by pointing out that if Charity Commissioner was to invite offers only for the purpose of ascertaining the market value of the property, no genuine buyer or purchaser will come forward and offer a genuine competitive price. It was submitted that no genuine buyer would be interested in coming forward with the offer if his offer is to be considered only for a limited purpose of finding out as to what was the market value on the relevant date. If offers are invited only for this purpose, there is every possibility that the offers will not be bonafide and genuine.

¶192

While exercising power either under Clause (b) or Clause (c), the Charity Commissioner can impose conditions having regard to the interest, benefit or protection of the trust. Before passing an order of sanction or authorisation, the Charity Commissioner has to be satisfied that the trust property is required to be alienated. Once the Charity Commissioner is satisfied that the alienation of the trust property is necessary in the interest of the trust or for the benefit of the trust or for the protection of the trust, it is very difficult to accept the submission that the power of the Charity Commissioner is restricted either to grant sanction to a particular proposal of the trustees or to reject it. It is the duty of the Charity Commissioner to ensure that the transaction of alienation is beneficial to the trust and its beneficiaries. He has to ensure that the property is alienated to a purchaser or buyer whose offer is the best in all respects. It is not necessary in every case that the Charity Commissioner has to ensure that property is sold by the trustees to the person offering highest price or consideration. What is the best offer in the interest of the trust will again depend on facts and circumstances of each case. In a given case, while alienating the trust property, the trustees may provide that as a part of consideration for alienation, the purchaser should construct a building on a part of the trust property for the use by the trustees for the objects of the trust. In such a case, it may be necessary to ascertain the reputation and capacity of the purchaser apart from the consideration offered. When the Charity Commissioner is satisfied that trust property needs to be alienated and when he finds that the offer received by the trustees may not be the best offer, he can always direct that bids be invited by a public notice. When a better offer is received in public bidding or auction, it is very difficult to say that the power of the Charity Commissioner is restricted

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and he cannot enjoin the trustees to sell or transfer the trust property to a third party who has given an offer which is the best in the interest of the trust. The Trustees approach the Charity Commissioner only when they are satisfied that there is a necessity to alienate the trust property. The trustees hold the property for the benefit of the beneficiaries and therefore once they express desire to alienate the property, it is obvious that Charity Commissioner can always impose condition while granting sanction that the property shall be sold or transferred to a person who has come with an offer which is the best offer in the interests of the trust. The Section gives a power to the Charity Commissioner to impose conditions and the said conditions will include a requirement of selling or transferring or alienating the trust property to a purchaser who has offered the best deal having regard to the interest and benefit of the beneficiaries and the protection of the trust. The power to impose conditions cannot be a limited power when the law requires the Charity Commissioner to exercise the said power having regard to the interest, benefit and protection of the trust. Once the Charity Commissioner accepts the necessity of alienating the trust property, the trustees cannot insist that the property should be sold only to a person of their choice though the offer given by the person may not be the best offer. The property may be vesting in the trustees but the vesting is for the benefit of the beneficiaries. The Charity Commissioner has jurisdiction to ensure that the property is sold or transferred in such a manner that the maximum benefits are available to the beneficiaries of the Trust. Under Clause (b) of Section 36 of the said Act, the Charity Commissioner has jurisdiction to decide whether it is in the interest of the trust that the property of the trust be sold or transferred. Once the learned Charity Commissioner is satisfied that the property is required to be transferred or sold in the interest of the Trust, the learned Charity Commissioner cannot remain silent spectator when he finds that the transaction proposed by the Trustees is not in the interest of the Trust or its beneficiaries. Once the necessity of sale or transfer is established, the Charity Commissioner can certainly ensure that best available offer is accepted, so that the transaction is for the benefit of the trust. If the trustees were to be the final authority to judge what is in the interest of the Trust, the legislature would not have enacted provision requiring prior sanction. While deciding which is the best offer, the learned Charity Commissioner is bound to take into consideration various factors which cannot be exhaustively listed. However, the paramount consideration is the interest, benefit and protection of the trust. It is obvious from the scheme of Section 36 that legislature never intended that trustees could sell or transfer the trust property vesting in them as if it was their personal property. It is the duty of Charity Commissioner to ensure that the property should be alienated in such a manner that maximum benefits are accrued to the trust. The Charity Commissioner while considering an application under Section 36(1) of the said Act of 1950, in a given case can opt for public auction or can invite bids.

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Thus narrow interpretation sought to be given to the power of Charity Commissioner under Clauses (a) and (b) of Sub section 1 of Section 36 cannot be accepted. Thus the view taken in the case of A.R. Khan Construwell and Co. (supra) is the correct view. The case of Arunodaya Prefab is not correctly decided.

¶198

The second question referred to the Full Bench for decision is regarding locus standi of a person who appears before the Charity Commissioner and offers his bid to challenge the order passed by the Charity Commissioner. The trustees and persons having an interest in the Trust can always challenge the order. We have already held that the proceeding under Section 36 of the said Act before the learned Charity Commissioner is a judicial proceeding. The Apex Court has held that a trust property is on par with a public property so far as its sale or transfer is concerned. It is, therefore, very difficult to say that such a person who appears before the Charity Commissioner and offers his bid has no locus standi to challenge the final order passed by the Charity Commissioner. Such a person will certainly have locus standi to file the petition under Articles 226 and 227 of The Constitution of India for challenging the final order passed under Section 36 of the said Act. However, the scope of challenge will be naturally limited. Such a person will be in a position of a bidder challenging the auction or tender process of sale of a public property. The challenge by such a person to the order will be limited to the decision making process of the Charity Commissioner. In the case of A.R. Khan Construwell the Division Bench has rightly held that after the decision in the case of Arunodaya Prefab, the concept of locus standi has been expanded.”

¶199

Mr. Thorat, the learned senior counsel appearing on behalf of the intervener invited my attention to the sanctioned scheme and in particular paragraph 18 of the scheme in support of the submission that by decree passed by this court while sanctioning the said scheme, liberty was granted to apply for amendment of the scheme by making an application to this court by the trustees or any of them. It is submitted that the petitioners are admittedly not trustees of the said trust and thus cannot maintain this application for seeking amendment of the said scheme by exercising liberty which is granted by this court exclusively in favour of the trustees or any of them. Learned senior counsel submits that after 1950, the trust petition of this nature is not maintainable in this court for seeking modification and or variation of scheme sanctioned by this court prior to 1950. it is submitted that

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Chamber summons could be filed by the trustees in the original petition in which such scheme was framed i.e. in Suit No. 2281 of 1927 as per liberty granted by this court. It is submitted that even if the trustees could have filed such petition for seeking amendment of the scheme, no amendment which would change the character of the scheme can be permitted. It is submitted that by the amendment proposed by the beneficiaries, if granted, it would change the character of the original scheme sanctioned by this court. Learned senior counsel placed reliance on the judgment of this court in the case of Charity Commissioner Vs. Hirjibnhoy Mancherji Kavarana and Ors. AIR 1972 Bom 229 and in particular paragraphs 3 to 6 thereof in support of his submission that the application for amendment of the scheme has to be made before the Charity Commissioner under section 50A and not this court. Paragraph 3 to 6 of the said judgment read thus :

¶202

“3. Mr. Chitale for the respondent I has with some emphasis submitted that the learned Judge's findings are based on the scheme of the Act and the provisions in the above Sections 47 and 47-AA and the findings made by the learned Judge should accordingly be confirmed. (Mr. Chitale further attempted to argue that in so far as the learned Judge confirmed the scheme framed by the Charity Commissioner, the findings of the learned Judge were not correct. In his submission, the facts of the case did not disclose any necessity or expediency of framing of a scheme. The framing of the scheme was not in the interest of the trust in question and the learned Judge should have accordingly set aside the scheme framed by the Charity Commissioner. Now, this second and / or the last contention must be negatived on the simple ground that an appeal has not been filed on behalf of the 1st respondent against the findings made by the learned Judge that the scheme has been properly framed by the Charity Commissioner and he had jurisdiction to frame the same. The second contention accordingly is negative).

¶203

As regards the rival contentions made on behalf of the parties on the question of the power of the Charity Commissioner to appoint trustees in the scheme framed by him, the following requires to be noticed :-

¶204

Under clause (11) 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 50-A. This Section 50-A 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.

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Section 50 has reproduced the scheme of Section 92 of the Code of Civil Procedure with certain nominal alterations and inter alia provides for the relief of settlement variations and / or alterations and in a scheme and inter alia, for removal of a trustee, appointment of a new trustee, vesting of property in a trustee and certain other reliefs could also be claimed. By the amended Section 50-A inserted in the Act in 1960, it was provided as follows :-

¶208

"50-A (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, x x x x x, the Charity Commissioner may, if, x x x x, he is satisfied that it is necessary or expedient so to do. frame a scheme for the management or administration of such public trust x x x x x x x". The sub-section (4) provided that the scheme framed shall, subject to the decision of the competent Court under Section , 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 the Section 50-A, 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.

¶209

Now, apart from the contents of the Sections on which reliance has been placed by Mr. Chitale and which will require to be discussed, it first requires to be stated that the power vested in Court to frame and settle and vary and modify schemes which has 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 known to include the incidental power to make provisions for appointment etc. of trustees and for appointing trustees of the scheme itself. This power has been continued in the Courts under Section 50 of the Act and has been, by the Section 50-A added in 1960, vested in and / or delegated to the Charity Commissioner. It would be surprising, therefore, to come to the conclusion that the Legislature whilst delegating under Section 50-A power of Courts to the Charity Commissioner had not intended that he should have power to make initial appointment of the trustees of the scheme framed by him. The language of Section 50-A itself provides that the Charity Commissioner should proceed to frame a scheme under that section after giving an opportunity to be hard to the trustees of the trust concerned. It is a patent that the power to frame a scheme for the management or administration of a trust must include power altogether to amend and nullify the previously existing scheme of appointment, removal, etc. of the trustees. The power must be sufficiently large to enact that the persons in management of the trust as at the date of the framing of the scheme will not continue in the management and cease to be managers and / or trustees. This wider construction is, however, not

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necessary for the purposes of the present case, because the Charity Commissioner has not sought to remove the respondent No. 1 from continuing in the office of trustee of the trust in question. Now, it is difficult to appreciate the learned Judge's finding that the power to frame scheme is only power to frame a set of rules for the guidance of the trustees and regarding the management and trust pertaining to its actual working. By the clauses 7 and 8 of the scheme (which have been struck down) provision was made for appointment of the first trustees of the trust framed under the scheme shall be a major male Parsi ordinarily residing in the State of Maharashtra. The relevant part of clause 7 provided as follows :-

¶213

"7(a) The following persons shall be the first trustees of the said trust under the scheme.

¶214

Shri Hirjibhoy M. Kavarana and two others to be appointed by the Charity Commissioner out of the panel of x x x x. If no panels are submitted within 3 months, then the Charity Commissioner may appoint the remaining 2 trustees suo motu. Shri Hirjibhoy M. Kavarana will be in management for life and shall receive Rs. 1,500/- per year as remuneration x x x". The learned Judge was of the view that the power to frame a scheme did not include even power to appoint initial trustees of a scheme and for that simple reason, he struck off both the clauses 7 and 8 as invalid.

¶215

The Section 47 provides that any person interested in a public trust of the Charity Commissioner may apply to the Court for the appointment of a new trustee in the circumstances mentioned in clauses (a) to (h) of sub-section (1). The sub-section (2) provides :-

¶216

"(2) No such application shall be entertained.- (a) unless the trustee who on account of any of the reasons mentioned in clauses (a) to (h) of sub-section (1) is not fit or available to administer the trust is the sole trustee or unless by the vacation of office by one or more trustees on account of any of the said reasons the minimum number of trustees required by the instrument, scheme, order or decree of the Court or usage or custom of the trust for the administration of the trust is reduced;" Mr. Chitale argued that under Section 47 even Court is not empowered to appoint a new trustee thereby meaning additional trustee on the grounds mentioned in clauses (a) to (h) of sub-section (1) of Section 47, unless the minimum number of trustees fixed by the relevant instrument, scheme, etc. is reached or is not available for administration of the trust. He, therefore, submits that the power of framing scheme conferred under Section 50-A was not larger that the power conferred on the Court under Section 47. New and additional trustees cannot, therefore, by appointed trustees cannot, therefore, be appointed by the Charity Commissioner when he frames scheme under Section 50-A. Now, this argument is without taking notice of the fact that the Section 47 relates to one single small question of administration of public trust, the question being of

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appointment of additional trustees. The emphasis in the provisions of sub-section (2) is that additional trustees cannot be appointed by Court contrary to the provisions of the trust as appearing in an instrument, a scheme, an order or a decree of the Court. In breach of the provisions in such instrument, scheme, etc. the Court is not enabled to appoint additional trustees. The argument advanced is not tenable, because the section relates to the power of appointing additional trustees under the circumstances discussed above and has no bearing whatsoever on the larger power of the Court and the Charity Commissioner for framing of schemes in pursuance of the jurisdiction conferred under Section 50 and 50-A of the Act. Similarly, the provisions in Section 47-A which relate to ancillary powers of Court in making orders of vesting of properties in additional trustees appointed under Section 47 and the provision in Section 47-AA enabling the Charity Commissioner to make an application to the Court for appointment of new trustees under Section 47 have no relevance to and have no bearing on the question of jurisdiction conferred on the Court and the Charity Commissioner for framing of schemes under Sections 50 and 50-A of the Act. In my view, reliance has been placed on these sections under a misapprehension that they are relevant in considering the scope of jurisdiction of the Court and the Charity Commissioner for framing of schemes under Sections 50 and 50-A. The other sections which are referred to by the learned Judge in his judgment have not even a distant bearing on the question of jurisdiction of the Charity Commissioner to frame a scheme and appoint initial trustees of the scheme framed by him.”

¶219

Mr. Thorat, learned senior counsel submits that after insertion of section 50A of the said Act, provisions of section 92 and 93 of the Code of Civil Procedure would not be applicable for seeking amendment of scheme sanctioned by this court. Only section 50A would be applicable read with section 52 of the said Act. Learned senior counsel submits that under section 52(2) and (3) in all pending matters, the name of the Advocate General has to be substituted by Charity Commissioner. It is submitted that the learned Single Judge of this court in the case of Minoo Shroff (supra) and the Division Bench in the case of Khojeste Mistree and Ors. Vs. Minoo Rustomji Shroff and Ors did not notice the effect of section 52(2) and (3) of the Bombay Public Trust Act.

¶220

In his alternate submission, Mr. Thorat placed reliance on section 50 of the

¶221

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said Act in support of his submission that before filing such proceedings, permission of Charity Commissioner was required in writing as the application is for seeking variation and or alteration in the scheme already settled. It is submitted that for any order varying, altering, amending or superseding any instrument of trust in accordance with section 50 (j) and (o), the control of the trust being with the Charity Commissioner and if the Charity Commissioner feels that the intervention of the court is required, such permission can be granted by the Charity Commissioner. In this case however, no such permission has been obtained by the petitioners before filing this petition or chamber summons. It is submitted that Bombay Public Trust Act, 1950 is a complete code by itself and all the remedies are provided therein. It is submitted that section 92 and 93 of the Code of Civil Procedure does not apply to the Charitable Trust by virtue of section 50A and 80 in Maharashtra.

¶223

Mr. Thorat, learned senior counsel placed reliance on judgment of the Supreme Court in the case of Sayyad Mohd. Vs. Abdul Habib Hasan 1998(2) Gujarat Law Reporter 1781 and in particular paragraphs 4, 6 to 9 on the issue of jurisdiction raised by Mr. Thorat. Paragraphs 4, 6 to 9 of the said judgment read thus :

¶224

“4. On this submission, two questions arise. First, even if it could be said, Civil Procedure Code is applicable to the proceeding before the Charily Commissioner the proceedings under Section 50A abate on the facts of the present case, second, whether Civil Procedure Code would apply to a proceeding under Section 50A? To answer the first question, it has to be seen what is the proceeding before him? What is prerequisite before he could initiate proceedings under Section 50 of the Act?

¶225

This empowers Charity Commissioner to frame, amalgamate or modify a scheme for the proper management of a Public Trust. Under Sub-section (1) he could initiate proceedings for the proper management or administration of a Public Trust and to frame and settle a scheme. He has two options either to initiate proceedings sub motu or when two or more persons having interest in the Public Trust make an application before him, in writing, in the prescribed manner. We find, the object of the aforesaid Bombay Public Trust Act, 1950 as revealed through its preamble is to regulate and make better provisions of the administration of public religious and charitable Trust within the State of Maharashtra. The Charity Commissioner is appointed through a notification under Section 3 having

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very wide powers and duties conferred primarily under Section 69, Chapter VII and other provisions of the Act. It has been the concern of legislatures to provide with such laws and entrust officers with such power to regulate, supervise the management and functioning of a Public Trust and endowment in a manner so as to give optimum benefit to the public at large. It was primarily this lack of proper machinery the Bombay Trust Act, 1935 was replaced by the present aforesaid Act of 1950. It is for this reason, Charity Commissioner and other set of officers are created as watch dogs for effective control and supervision of Public Trusts of all kind. Section 35 confers power on the Charity Commissioner in a given circumstance to issue general or special order to permit the trustees of any public trust to invest money in any manner. Before alienating any immovable property of a public trust, a previous sanction of the Charity Commissioner is required under Section 36, maintain a register of movable and immovable properties to be in a manner as prescribed by the Charity Commissioner under Section 36B, power of inspection and supervision under Section 37. Under Section 39 a report is to be submitted to him regarding findings on the question whether or not a Trust or the person connected with the Trust has been quality of gross negligence, breach of trust, misappropriation or misconduct which resulted in loss to the Trust. He can issue orders on such reports under Section 40 and can direct the resultant loss to be charged from such defaulting person, payable to the public trust under Section 41. Section 41A empowers him to issue directions for proper administration of the Trust and institute inquires on receipt of complaints under Section 41B. He can suspend, remove or dismiss any trustee of a Public Trust on receipt of report under Section 41B. Any person interested in a Public Trust may apply to the Charity Commissioner under Section 47A for the appointment of a new trustee etc. In cases of breach of public trust including negligence, misconduct etc., he can file suit against such Public Trust or trustee under Section 50 and notwithstanding this in cases he has reason to believe that for proper management or administration of a public trust he may frame and settle a scheme under Section 50A. Section 69 gives duties, functions and powers of the Charity Commissioner. It is in this background Section 50A, for the questions raised, has to be screened. Thus, we find that the Charity Commissioner is crowned with very wide powers to check and control the irregularities, malpractices and misconduct in the functioning of any Public Trust. Also to supervise, regulate, settle a scheme for the proper management or administration of a public trust, infact involved in almost every step of the functioning of a Public Trust.

¶229

Section 50A infuses the Charity Commissioner with power in addition to Section 50 to frame, amalgamate or modify any scheme in the interest of proper management of a Public Trust. This is exercised either suo motu when he has reason to believe it is necessary to do so or when two or more persons having interest in a public trust make an application to him in writing in the prescribed manner. This merely enables the Charity Commissioner to initiate proceedings for settling a scheme for the proper management or administration of a public trust. In the background of the setting of various provisions, object of the Act, the Charity Commissioner being clothed with sufficient power to deal with all exigencies where Public Trust or its trustees strays away from its legitimate path and where the materials are before him or placed before him by

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the said two persons, then to hold abatement of proceedings on application of any procedural laws not only would amount to the curtailment of his power but make him spineless and helpless to do anything in the matter of public trust eroding the very object of the Act. This is too restrictive interpretation to be accepted.

¶232

A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away be the procedural law what is given by the substantive law.

¶233

If the interpretation sought by the learned counsel for the appellant is to be accepted, it would tie the hands of a Charity Commissioner not to proceed with settling a scheme inspite of material placed before him only because one of the applicants is dead. The concept of abatement under Section 50A would never arise, specially in such a situation where for achieving such an objective he in addition is capped with power to initiate suo motu. It is not in dispute that the said two persons have made an application in the prescribed form. The proceeding has been initiated in terms of and in accordance with Section 50A, this cannot be said to be improper or illegal. Once the material is brought before him, he may on the materials or after inquiry or after giving opportunity to the person concerned or trustees may or may not exercise his power depending on facts and circumstances of each case, but his exercise of power cannot be ousted either on the death or withdrawal of any one of the applicants.”

¶234

Mr. Thorat, learned senior counsel also placed reliance on the judgment of this court in the case of Raunak Corporation Vs. Sanjay Manohar Kastur, 2012 (6) Mh.L.J. 629 and in particular paragraph 4, 5, 21 to 24 in support of his plea that the trust property cannot be sold to member of the particular community. Said paragraphs read thus :

¶235

“4. The application was filed on 21 June 2011. The application was heard by the Charity Commissioner on 2 August 2011 and 10 August 2011 and matter was closed for orders. The application was allowed by the Charity Commissioner by his order dated 2 September 2011. The operative portion of the order reads as under-

¶236

(1) Application is allowed.

¶237

(2) Sanction is hereby accorded to the trustees of "The Late Rao Bahadur Anant Shivaji Desai Topiwalla Charity, Mumbai", P.T.R. No. A/751/Mumbai for

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development cum sale of the trust property, viz. CTS No. 145A, 1A, 145-4, 145B, C, D, E, F, G. bearing C.S. No. 1443 admeasuring 3999 sq.yards equivalent to 3343.57 sq.mtrs. or thereabout together with structures known as 'Kudaldeshkar Brahmin Niwas', in favour of M/s. Raunak Corporation, a registered partnership firm at Laxmi Narayan Residency, Unnathi Gardens III, Opp. Ma Niketan, Pokhran Road No. 2, Thane (West)-400 610 for the monetary consideration of Rs. 6,00,00,000/- (Rupees Six Crores Only) along with developed area of 4000 sq. ft. built up to be given to the trust, free of costs, and minimum 460 sq. ft. useable carpet area including flower beds, inches and service ducts to the tenants, free of costs, in terms of the Memorandum of Understanding dated 23-05-2011 and on the following additional terms and conditions:-

¶241

a) The deed for development cum sale of the trust property is to be executed within a period six months from the date of this order.

¶242

b) All expenses for stamp duty and registration charges charges and other incidental expenses shall be borne by the developer.

¶243

c) The amount of monetary consideration of Rs. 6,00 Crores shall form part of the corpus of the trust, which shall remain invested in any of the Nationalised Banks/Approved Securities in long term deposits and should not be withdrawn without prior permission of this authority. Trustees shall be at liberty to use only the interest amount, which will be accrued on a sum invested towards accomplishment of the objects of the trust.

¶244

d) This permission shall be subject to all the relevant laws and rule applicable to the development cum sale transaction and the property as well.

¶245

e) Trustees of the trust to report the change under section 22 after completion of the development cum sale transaction to the concerned Assistant/Deputy Charity Commissioner, Greater Mumbai Region.

¶246

Another developer-Siddhivinayak Constructions Ltd. and some tenants challenged the decision of the Charity Commissioner by filing Writ Petitions. Writ Petition No. 11070 of 2011 was filed by Siddhivinayak Construction Private Ltd. Writ Petition No. 1332 of 2012 was filed by Sanjay Manohar Kastur and others-the tenants. Siddhivinayak Constructions Pvt. Ltd. contended that it is also engaged in the business of builders and developers and inspite of it submitting voluntary offers to the trustees for redevelopment of the Trust property the offer was not considered. Some of the tenants who had filed the Writ petition contended that there were several irregularities in the transaction and consents of tenants were fraudulent. Two Civil applications were also taken out in the said Writ petitions by persons who opposed the petitioners as well as

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by those in support of petitioners. The petitions and Civil applications were heard together by the learned Single Judge.

¶250

If the trustees genuinely wanted to entrust the work of development in whom they and tenants had confidence, nothing stopped them from calling for best offers and then narrowing down the choice. There are several reputed developers in Mumbai, who irrespective of their regionality, have acquired reputation through integrity and honesty. If widest possible choice of best offers from all such developers was presented before all concerned then the decision to select Raunak Corporation may or may not have been taken. The selection of Raunak Corporation on the basis that it is the best developer is based on an inadequate data.

¶251

To ascertain whether this was the best option for the Trust there would have to be a credible data on record of the Charity Commissioner. To reach to this conclusion it will have to be considered whether it was a well thought-of and informed decision. The trustees and developers are placing the tenants in the fore-front and contending that it is the tenants' desire that they want a 'Maharashtrian' developer. Admittedly the tenants are staying in the dilapidated chawls for years and do not belong to a very rich class. They may or may not have any idea what is the true worth of the property when it is exploited commercially by a developer. The intricate calculation of FSI, TDR and the manner in which they can be commercially exploited are better known to developers. It is on the basis of these calculations that offers are made for redevelopment of the property. Tenants may know that the property is worth substantial amount but may not know exactly how much, something which a developer would certainly know. If they perceive the property to be worth Rs. 100/- and if someone offers Rs. 150/- then they may happily accept such proposal. But if proposals come from several other developers quoting Rs. 500/- then the occupants may or may not go by their original decision and may even abandon their original demand of having a builder of particular regionality.

¶252

These are matters of speculation but what needs to be stated is that it is when properties such as the present one, i.e. old dilapidated buildings in the heart of commercial areas consisting of tenants, are put up for alienation, only when competitive bids are invited that all concerned will have a good idea of what is the true worth of the properties and how much corpus will be available. Tenants/occupiers may get tenements of fixed area but competitive bids may push up the corpus and offer several other amenities. Then they may discover that it is the builder of their chosen regionality was in fact cheating them. In the present case the tenants were not exposed to the true worth of the properties in their possession and the monies they would receive. Their decision could not be treated as a well informed one. This decision cannot certainly be advanced as a reason for the trustees and the developers to dispense with public

¶253

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advertisement. It appears to be more of an attempt by trustees to whip up emotive issues to keep the tenants in dark about the true worth of the properties.

¶256

The high value of property and no publicity ought to have put the Charity Commissioner on guard. However unfortunately the Charity Commissioner mechanically approved the proposal of Raunak Corporation. The only reason that is given by the Charity Commissioner in respect of not calling public advertisement is in paragraph 12 of the order which reads as under:-

¶257

It was argued by the learned advocate on behalf of the trust that trustees had made strong efforts to search for the developer who shall meet the demands of the tenants as well as the trust to ensure that the redevelopment of the trust property is completed successfully. It was therefore incumbent on the part of the trustees to personally explain the demands of the tenants as well as situation to the prospective developers by personal meeting with them. It was therefore not possible for the trust to give public notice in news papers as purpose of the redevelopment of tenanted trust property can be achieved by personal meetings and negotiations only. In these circumstances, I am of the view that the application filed by the appellants for dispensing with public notice for development cum sale of the trust property at Exh. 3 be allowed.

¶258

This reason to say the least, is highly unsatisfactory and virtually amounts to abdication of the duty to supervise. There are absolutely no reasons as to why when such lucrative property is being alienated, action of not calling for best offer was justified. If the word of trustees in these matters is to be accepted as gospel truth then there is no need to have a supervisory mechanism. The reason given can apply to almost all cases of alienation. The Charity Commissioner ought to have been more circumspect.”

¶259

Mr. Mattows, the learned A.G.P. Appearing on behalf of the Charity Commissioner adopts the submissions made by the learned Advocate General and Mr. Thorat the learned senior counsel appearing for intervenor. It is submitted by Mr. Mattows that in view of the major amendments sought by the petitioner, section 50A would be attracted and no such relief can be granted by this court in this petition. It is submitted that the petitioners now seek that the trust shall be allowed to sell property which would be in the nature of replacement of the earlier scheme which would not be permissible. Instead of raising fund by donation, petitioner seeks permission to sell the property which object is completely different than the objection for which the scheme

¶260

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was sanctioned by this court.

¶262

Ms. Sadh, learned counsel appearing for respondent nos. 3 to 5 who are trustees of the said trust submits that resolution alleged to have been passed by the beneficiaries in the Minutes of the Meeting held on 24^th March, 2013 as well as previous meetings relied upon by the petitioners are disputed. Learned counsel would submit that by an order and decree passed by this court sanctioning the scheme, liberty was granted only to the trustees and not to any other party to apply for modification of scheme. It is submitted that petitioners have no locus to file this petition for seeking amendment of sanctioned scheme by this court or for filing chamber summons for carrying out amendment.

¶263

Ms.Sadh distinguishes the judgment of this court relied upon by the petitioners in case of Minoo Rustomji Shroff (supra) on the ground that dispute before this court in the said matter was between two sets of trustees and not the beneficiaries. It is submitted that issue of locus of the beneficiary has not been decided by the said order and judgment. It is submitted that there are about 1 lakh members of the community who are beneficiaries under the said trust. No individual member can be permitted to seek modification of the scheme. Ms.Sadh, learned counsel however submits that respondent nos. 3 to 5 does not dispute that this court has jurisdiction to entertain the petition filed by the beneficiaries for seeking amendment of the sanctioned scheme. Learned counsel distinguishes the judgment of Supreme Court in case of Charan Singh vs. State of Punjab & Ors. reported in AIR 1997 SC 1052. It is submitted that amendment as proposed by the petitioners is substantial in nature. Sale of the

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said trust property cannot be permitted to be held in favour of the member of the community as it would not fetch the correct market price. It is submitted that amendment proposed by the petitioners is not for proper working of the scheme. Amendment has to be in consonance with clause 18 of the sanctioned scheme.

¶266

Mr. Bhagatjee, learned counsel appearing for the petitioners responded to the submissions made by the learned Advocate General, Mr.Thorat, learned senior counsel appearing for the intervenors, learned AGP appearing for the Charity Commissioner and Ms.Sadh learned counsel appearing for the trustees. Mr.Bhagatjee placed strong reliance on the judgment of this court in case of Minoo Rustomji Shroff & Ors. vs. Charity Commissioner & Ors. reported in 2005(4) Bom.C.R. 570 in support of his submission that this court having sanctioned the original scheme, the petition filed by the petitioners for seeking modification of the said scheme also has to filed in this court. Learned counsel also placed reliance of the Division Bench of this court in case of Khojeste Mistree & Ors. vs. Minoo Rustomji Shroff & Ors. reported in 2008 (4) Bom.C.R. 617 in support of his submission that petition filed by the petitioners in this court for amendment of scheme is maintainable. It is submitted that learned Single Judge of this court as well as Division Bench has considered the principles of law laid down by the Supreme Court in the judgment in case of Raja Andrao vs. Shamrao & Ors. reported in AIR 1961 SCC 1206.

¶267

Mr.Bhagatjee, learned counsel appearing for the petitioners submits

¶268

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that this court had not granted liberty to the parties other than the trustees of the said trust to seek amendment to the scheme sanctioned by this court but the petitioners have filed this petition not by exercising liberty granted to the trustees or any of the trustee of the said trust. Since the trustee are acting contrary to the interest of the trust and beneficiaries of the said trust, petitioners have filed this petition after holding the meeting of the beneficiaries which was attended by large number of beneficiaries and appropriate resolution in that behalf was passed. Learned counsel placed reliance on the definition of 'person having interest' defined under section 2(10) of the Bombay Public Trust Act, 1950 and submits that under section 2(10) (e), beneficiaries are included in the definition of the person having interest and thus have locus to file this petition. Learned counsel submits that learned Single Judge of this court has considered the effect of section 52 of the said Act while holding that application for amendment of the sanctioned scheme by this court is maintainable before the same court. It is submitted that resolution passed in the month of March 2013 was passed by 127 members of the said trust who are beneficiaries and are persons having interest as defined under section 2(10) of the said Act. It is submitted by Mr.Bhagatjee that amendment sought by the petitioners does not alter basic objects of the trust and on the contrary the same would be for the benefit of the members and beneficiaries of the said trust. It is submitted that admittedly the said scheme was framed for the benefit of Gujarati Mochi Community and if the property of the said trust are allowed to be sold to a such member of such Gujarati Mochi Community, it would not defeat the purpose and/or object of the said trust. It is submitted that by proposed amendment, the appropriate safeguard in favour of the trust and beneficiaries have been

¶271

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provided that the sale price shall be on the basis of the ready reckoner and if the member of the said community is not available for the purchase of the property of the said trust, the same shall be permitted to sold to the outsider.

¶273

Learned counsel submits that application filed by the respondent no.2 for sanction of sale u/s 36 of the said Act in favour of the intervenors is pending before the Charity Commissioner and is being opposed by the petitioners and other beneficiaries. It is submitted that the petitioners also have filed a separate application against the trustees under section 41(D) of the said Act for appropriate action which application is also pending before Charity Commissioner. Learned counsel placed reliance on the judgment of this court in case of Prasadnagar Co-operative Housing Soc.Ltd. Nagpur vs. State of Maharashtra and others reported in (2005) (2) Mh.L.J. 310 in support of his submission that price at which property can be sold can be on the basis of the ready recana which would be a market rate. Paragraph 8 to 11 of the said judgment of this court reads as under :-

¶274

“8. Learned Advocate for the petitioner then submitted that now this view of Punjab and Haryana High Court in MANU/PH/0008/1991 (supra) has received a seal of approval may be in a different language holding that the value attached to the Ready Reckoner is that of "prima facie market value" as can be seen in R. Saibharti v. J. Jayalalitha reported in MANU/SC/0956/2003 : 2004CriLJ286 , R. Sai Bharthi v. J. Jayalalita and Ors.. This judgment consists of an observation as to the "true market value" and in para 22 thereof, their Lordships of Supreme Court have observed that :

¶275

"The guideline value has relevance only in the

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context of Section 47-A of the Indian Stamp Act (as amended by T. N. Act 24 of 1967) which provides for dealing with instruments of conveyance which are undervalued. The guideline value is a rate fixed by authorities under the Stamp Act for purposes of determining the true market value of the property disclosed in an instrument requiring payment of stamp duty. Thus, the guideline value fixed is not final but only a prima facie rate prevailing in an area. It is open to the registering authority as well as the person seeking registration to prove the actual market value of property. The authorities cannot regard the guideline valuation as the last word on the subject of market value. This position is made clear in the explanation to Rule 3 of the Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules, 1968."

¶278

The above quotation from the judgment in R. Saibharti v. J. Jayalalitha puts a final seal of interpretation to the controversy including one in the present petition.

¶279

In this situation, it is seen that the State Government who on one hand initially directed the Registering authority by impugned communication to get governed by the Ready Reckoner has now come with a plea that the Ready Reckoner has a value of guidelines and averred that the powers available to the registering authority under the statute are unfettered. While doing so, the State has in very specific terms pleaded that it had every authority to issue such Ready Reckoner and to issue directions, though the State has accepted that the powers of Collector under Section 33-A were intact. It is in this background, the State was once again

¶280

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called to clarify its plea and the District Joint Registrar and Collector of Stamp Nagpur has filed on affidavit in this Court on 17-2-2005 stating that the Ready Reckoner has been prepared pursuant to the Government decision dated 29-9-1988 for the purpose of instantly evaluating the market value by the Registering Authority, however, if the value so represented in the Ready Reckoner is not acceptable to the person presenting document for registration, then in that event, procedure as contemplated under Sections 31 and 32 of the Bombay Stamp Act is always followed. He has further stated that such matters are entertained and in all 33,419 matters were referred under Section 32 of the Bombay Stamp Act. Apart from that such practice is stated to be in vogue.

¶282

The fact remains that the directions were issued to the Registering Authority to strictly follow the Ready Reckoner and it is, therefore, in the light of law as settled by the Apex Court, it has become necessary to render a Judgment and issue directions in present case.

¶283

The petitioner therefore, succeeds and by issue of writ of mandamus, the respondents are directed to treat the Ready Reckoner sheerly as guidelines and as a declaration of "prima facie" market value and further clarify by necessary amendments in the rules that those rules are subject to the powers of the Collector under Sections 31 and 32 of the Bombay Stamp Act, 1958. Since direction is issued as above in clear terms it shall not be necessary to quash the guidelines/ready reckoner, which shall now have the value of prima facie declaration of market value and nothing more.”

¶284

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¶286

Mr. Bhagatjee also placed reliance on the judgment of the Supreme Court in case of Charan Singh vs. State of Punjab & Ors. reported in AIR 1997 SC 1052 and in particular paragraph 10 in support of the submission that plot which was alloted to a particular community cannot be taken away. Paragraph 10 of the said judgment reads thus :-

¶287

It is now settled policy of the Government as enjoined under Article 46 of the Constitution and the Directive Principles, particularly Articles 38 and 39(b) and the Preamble of the Constitution that economic and social justice requires to be done to the weaker sections of the society, in particular to the Scheduled Castes and Scheduled Tribes and to prevent them from social injustice and prevention of all forms of exploitation. In the light of that constitutional objective of economic empowerment, the Government have rightly taken the policy to assign the lease to either to a Cooperative Society composed of the Scheduled Castes or individual members of the Scheduled Tribes members, as the case may be, in accordance with their policy then in vogue at the rate of Rs. 20 per acre or 90 times the land revenue, whichever is less. Under these circumstances, the appellants having been inducted into possession reclaimed the land and remained in possession after the expiry of the lease, the Government is required to regularize their possession and assign the lands in their possession in accordance with its policy. The appellants, therefore, are directed to make necessary application within four weeks from today to the competent authority and the authorities are directed to regularise their possession imposing necessary conditions for their continuance in possession and

¶288

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enjoyment of the same in the light of the constitutional objective of rendering them socioeconomic justice, putting restrictions on sub-letting or selling; all the relevant conditions in that behalf may be imposed so that they remain in possession and enjoy the same to improve their social and economic status as enjoined under the Constitution. The authorities also are directed to dispose of the applications within a period of two months from the date of the receipt of the same. The appellants shall remain in possession until the regularisation is done and shall enjoy the lands without any sub-letting or alienation thereof.

¶290

Mr. Bhagatjee, learned counsel also placed reliance on the judgment of the Supreme Court in case of Zorostrain Co-operative Housing Soc.Ltd. and others vs. District Registrar, Co-operative Soc. and others reported in (2005) 5 SCC 632. Paragraph 39 of the said judgments reads thus :-

¶291

The appellant Society was formed with the object of providing housing to the members of the Parsi community, a community admittedly a minority which apparently did not claim that status when the Constituent Assembly was debating the Constitution. But even then, it is open to that community to try to preserve its culture and way of life and in that process, to work for the advancement of members of that community by enabling them to acquire membership in a society and allotment of lands or buildings in one's capacity as a member of that society, to preserve its object of advancement of the community. It is also open to the members of that community, who came together to form the co-operative society, to prescribe that members of

¶292

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that community for whose benefit the society was formed, alone could aspire to be members of that society. There is nothing in the Bombay Act or the Gujarat Act which precludes the formation of such a society. In fact, the history of legislation referred to earlier, would indicate that such coming together of groups was recognized by the Acts enacted in that behalf concerning the cooperative movement. Even today, we have Women's co-operative societies, we have cooperative societies of handicapped persons, we have co-operative societies of labourers and agricultural workers. We have co-operative societies of religious groups who believe in vegetarianism and abhor non-vegetarian food. It will be impermissible, so long as the law stands as it is, to thrust upon the society of those believing in say, vegetarianism, persons who are regular consumers of non-vegetarian food. May be, in view of the developments that have taken place in our society and in the context of the constitutional scheme, it is time to legislate or bring about changes in Co-operative Societies Acts regarding the formation of societies based on such a thinking or concept. But that cannot make the formation of a society like the appellant Society or the qualification fixed for membership therein, opposed to public policy or enable the authorities under the Act to intervene and dictate to the society to change its fundamental character.

¶294

Mr.Bhagatjee also placed reliance on the judgment of the Supreme

¶295

Court in case of State of Maharashtra & Ors. vs. Karvanagar Sahkari Griha Rachana Sanstha reported in (2000) 9 SCC 295. Paragraphs 5 and 6 of the said judgment reads thus :-

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Rule 10 of the Maharashtra Co-operative Societies Rules, 1961 classifies the housing Societies into three classes, namely, (a) Tenant Ownership Housing Society, (b) Tenant Copartnership Housing Society and (c) Other Housing Societies examples of which are given in column 3 of the statement as House mortgage Societies and House Construction Societies. The first respondent-Society falls in category (a). The object of this Society is to allot a plot of land to each of its members (it is stated that there are 27 members and each member is allotted one plot). Under the bye-laws, an allottee can construct a house of one tenement for his own use but he cannot transfer or let out the house without the permission of the Society . There is a specific prohibition to make use of the plot for any commercial purpose. Having regard to its objects as contained in the bye-laws of the respondentSociety , it declined to carry out the amendment directed by the impugned circulars. The contention of the society is that if the bye-laws are amended, it will destroy the whole concept of the type of the Society as commercialisation of the use of the plots will set in the residential area which is contrary to the concept of the Society itself. It may also be pertinent to note here that respondent no 5 sought permission of the Society to construct a multi-storeyed building prompted by the impugned circulars but his request was turned down by the Society by majority of votes(16:3).

¶299

From the above discussion, it is clear that though the power is conferred on the Registrar to direct amendment of the bye-laws of the Society, yet the paramount consideration is the interest of

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the Society. So also the power of the State Government to issue directions in public interest cannot be exercised so as to be prejudicial to the interest of the Society. In our view, what is in the interest of the society is primarily for the society alone to decide and it is not for an outside agency to say. Where, however, the Government or the Registrar exercises statutory power of issuing directions to amend the bye-laws, such directions should satisfy the requirement of the interest of the Society. In the instant case, having regard to the nature of the Society and its objectives, referred to above, and having also regard to the fact that the Society in the case of 5th respondent has turned down his request for the grant of permission by overwhelming majority, we are unable to say that the amendment directed by Government is in the interest of the Society. The High Court is, therefore, right in quashing the impugned directions/circulars.

¶302

Mr. Bhagatjee also placed reliance on the affidavit in rejoinder dated 13^th August, 2013 in support of his submission that affidavit in reply dated 12^th October, 2012 filed by Mr. Jagdish Keshavbhai Chudasama could not have been filed as he was not present in the meeting of the beneficiaries held on 24^th March, 2013. It is also pointed out that the tenure of Mr.Jagdish Keshavbhai Chudasama as a trustee expired long back and he could not represent himself to be a trustee of the said trust. It is pointed out that several letters addressed by the petitioners to Mr.Jagdish Keshavbhai Chudasama were not replied by him.

¶303

Affidavit in reply of respondent no.2 affirmed on 12^th October, 2012

¶304

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and 31^st October, 2012 were also read out. Respondent no.2 has raised an objection in those affidavits disputing the maintainability of the petition filed by the petitioners in this court. It is submitted that the amendment in the scheme proposed by the petitioners are without any cogent reasons given by the petitioners. Trustees have already filed application for seeking permission of the Charity Commissioner to sale the trust property being Application No. 77 of 2008 which is pending. It is also stated in the said affidavit that he had not signed resolution alleged to have been passed on 15^th November, 2009. It is stated that he had given consent only to the deletion of clause regarding untouchability and for not providing alienation of trust property in favour of any particular community. It is stated that in the said meeting held on 15^th July, 2012, which was attended by him, only resolution passed was by the members of the community was to remove the clause of untouchability. Amendment is also opposed on the ground that it would run contrary to the objects of the trust and would cause potential loss to the said trust.

¶307

Sections 2(10), 41(A), 41(D), 50, 50A, 52 and 80 of the Bombay Public Trust Act which are relied upon by the parties are extracted as under :-

¶308

2 (10) "person having interest"⁶ [ includes]--

¶309

(a) in the case of a temple, person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof,

¶310

(b) in the case of a math, a disciple of the math or a person of the religious persuasion to which

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the math belongs,

¶314

(c) in the case of a wakf, a person who is entitled to receive any pecuniary or other benefit from the wakf and includes a person who has right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, maqbara or other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf,

¶315

(d) in the case of a society registered under the Societies Registration Art, 1860, any member of such society, and

¶316

(e) in the case of any other public trust 2[any trustee or beneficiary];

¶317

[ 41A. Power of Commissioner to issue directions² [ for proper administration of the trust ]

¶318

(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of.

¶319

(2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1).

¶320

41D. Suspension, removal and dismissal of trustees

¶321

(1) The Charity Commissioner may, either on application of a trustee or any person interested in the trust, or on receipt of a report under section 41B or suo motu may

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suspend, remove or dismiss any trustee of a public trust, if he,--

¶324

(a) makes persistent default in the submission of accounts report or return;

¶325

(b) wilfully disobeys any lawful orders issued by the Charity Commissioner under the provisions of this Act or rules made thereunder by the State Government;

¶326

(c) continuously neglects his duty or commits any mal-feasance or misfeasance, or breach of trust in respect of the trust;

¶327

(d) misappropriates or deals improperly with the properties of the trust of which he is a trustee; or

¶328

(e) accepts any position in relation to the trust which is inconsistent with his position as a trustee;

¶329

(f) if convicted of an offence involving moral turpitude.

¶330

(2) When the Charity Commissioner proposes to take action under sub-section (1), he shall frame charges against the trustee or the person against whom action is proposed to be taken and give him an opportunity of meeting such charges of testing the evidence adduced against him and of adducing evidence in his favour. The order of suspension, removal or dismissal shall state the charges framed against the trustee, his explanation and the finding on each charge, with the reasons therefor.

¶331

(3) Pending disposal of the charges framed against a trustee the Charity Commissioner may place the trustee under suspension.

¶332

(4) Where the Charity Commissioner has made an order suspending, removing or dismissing any trustee and such trustee is the sole trustee or where there are more than one trustee and the remaining trustees, according to the instrument of trust cannot function or administer the trust without the vacancy being filled, then in that case the

¶333

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Charity Commissioner shall appoint a fit person to discharge the duties and perform the function of the trust, and such person shall hold office only until a trustee is duly appointed according to the provisions of the instrument of trust.

¶335

(5) A trustee, aggrieved by an order made under subsection (1), may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order.

¶336

(6) An appeal shall lie to the High Court against the decision of the Court under sub-section (5) as if such decision was a decree from which and appeal ordinarily lies.

¶337

(7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final.

¶338

50. Suit by or against or relating to public trusts or trustees or others

¶339

In any case, --

¶340

(i) where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,

¶341

(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, extrustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,

¶342

(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or

¶343

(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof,

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the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs:--

¶346

(a) an order for the recovery of the possession of such property or proceeds thereof;

¶347

(b) the removal of any trustee or manager;

¶348

¶349

(d) vesting any property in a trustee;

¶350

(e) a direction for taking accounts and making certain enquiries;

¶351

(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or wilful default;

¶352

(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

¶353

(h) a direction to apply the trust property or its income cypres on the lines of Section 56 if this relief is claimed along with any other relief mentioned in the section;

¶354

(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;

¶355

(j) the settlement of a scheme, or variations or

¶356

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alterations in a scheme already settled;

¶359

(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;

¶360

(l) an order for winding up of any trust and applying the funds for other charitable purposes;

¶361

(m) an order for handing over of one trust to the trustees for some other trust and deregistering such trust;

¶362

(n) an order exonerating the trustees from technical breaches, etc.;

¶363

(o) an order varying, altering, amending or superseding any instrument of trust;

¶364

(p) declaration or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injuctions in appropriate cases; or

¶365

(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust:

¶366

Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof:

¶367

Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled:

¶368

Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1].

¶369

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50A. Power of Charity Commissioner to frame, amalgamate or modify schemes

¶372

(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, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner 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, after giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame a scheme for the management or administration of such public trust.

¶373

(2) Where the Charity Commissioner is of opinion that in the interest of the proper management or administration, two or more public trusts may be amalgamated by framing a common scheme for the same, he may, after --

¶374

(a) publishing a note in the Official Gazette 2 [ and also if necessary in any newspaper which in the opinion of the Charity Commissioner is best calculated to bring to the notice of persons likely to be interested in the trust] with a wide circulation in the region in which the trust is registered, and

¶375

(b) giving the trustees of such trusts and all other interested persons due opportunity to be heard,

¶376

frame a common scheme for the same.

¶377

(3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under sub-section (1) or sub-section (2).

¶378

(4) The scheme framed under sub-section (1) or subsection (2) or modified under sub-section (3) shall,

¶379

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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.

¶381

Section 52 - Non-application of sections 92 and 93 of Civil Procedure Code to public trusts

¶382

(1) Notwithstanding anything contained in the Code of Civil Procedure, 1908, the provisions of section 92 and 93 of the said Code shall not apply to the public trusts.

¶383

(2) If [on the date of the application of the Act to any public trust any legal proceedings in respect of such trust are pending before [any Civil Court of competent jurisdiction] to which the AdvocateGeneral or the Collector exercising the powers of the Advocate-General is a party, the Charity Commissioner shall be deemed to be substituted in those proceeding for the Advocate-General or the Collector, as the case may be, and such proceedings shall be disposed of by such Court.]

¶384

[(3) Any reference to the Advocate-General made in any instrument, scheme, order or decree of any Civil Court of competent jurisdiction made or passed, whether before or after the said date, shall be construed as reference to the Charity Commissioner.]

¶385

Section 80 - Bar of Jurisdiction

¶386

Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, [and in respect of] which the decision or order of such officer or authority has been made final and conclusive.

¶387

Question that arises for consideration of this court in this

¶388

¶389

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¶391

proceedings is as under :-

¶392

(a) Whether application for amendment of the scheme sanctioned by this court is maintainable in this court or not ?

¶393

(b) Whether the petitioners have locus to file petition for seeking amendment of the sanctioned scheme ?

¶394

(c) Whether amendment proposed by the petitioners are substantial in nature and would be contrary to the objects and purpose of the trust ?

¶395

On perusal of the decree dated 27^th November, 1934 passed by this court in Suit No. 2281 of 1927 read with sanctioned scheme, it is clear that this court had granted liberty to the trustees of any of them to apply to this court for amendment of the scheme in all cases in which advise or direction of the court is necessary or desirable in the conduct management and administration of the said trust. In my view, learned Advocate General, Mr.Thorat learned counsel appearing for the intervenors, the learned A.G.P. And Ms.Sadh, learned counsel appearing for the trustees are right in their submission that no such liberty was granted by this court by the said order and the liberty could not be exercised by the petitioner who claims to be the beneficiaries of the said trust while making an application for amendment of the scheme sanctioned by this court prior to 1950. It is also required to be mentioned at this stage that when confronted with this argument by the respondents. Mr.Bhagattjee, learned counsel appearing on behalf of the petitioners made his stand, clear that the present petition for seeking amendment of the sanctioned scheme by this court is not by exercising any such liberty granted by this court in favour of the trustee or any of them. Learned counsel made it clear that, it is the case of the

¶396

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¶397

petitioner that since the trustees who ought to have exercised such liberty for seeking amendment of the sanctioned scheme has not come forward to apply for amendment of scheme and has not been complying with their obligation as trustees, beneficiaries of the said trust after passing resolution proposed to file this petition for amendment of the scheme. In view of such statement made by the learned counsel appearing for the petitioners, I need not go into the issue whether petitioners could have filed this petition exercising such liberty or not.

¶398

This court in case of Minoo Rustomji Shroff (supra) has after considering the judgment of the Supreme Court in case of Raje Anand Rao (supra) and after considering the provisions of sections 92 and 93 of the Code of Civil Procedure, 1908 and section 52 of the Bombay Public Trust Act, 1950 has held that in respect of the scheme settled by this court under the decree prior to enactment of the said Bombay Public Trust Act, 1950 if it reserves a right to alter or modify the scheme then this court shall continue to have jurisdiction to alter, modify or verify the scheme but shall have no jurisdiction to replace and/or substitute the scheme in its entirety. Division Bench of this court in case of Khojeste Mistree & Ors. (supra) has approved the view of the learned Single Judge of this court in case of Minoo Rustomji Shroff (supra). Learned A.G.P. as well as Ms.Sadh, learned counsel appearing for the trustees have urged that this court would have jurisdiction to entertain the petition for amendment of the scheme if the scheme is settled by this court under the decree prior to the enactment of the Bombay Public Trust Act, 1950 provided the applicant by such petition shall not seek replacement and/or substitution of the scheme in its entirety. On perusal of the record, it is revealed that it is the case of the petitioners that the trustees of the said trust want to sale the property of the trust to an outsider who does not belong to the said community for

¶399

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¶400

whose benefit, the said trust was created and accordingly beneficiaries after issuing public notice in the newspaper passed a resolution and proposed to seek appropriate amendment in the sanctioned scheme so as to authorize the trust to sale the property to a member of the same community and if such person is not available, only in that event the same should be made available to an outsider. Trustees on the other hand who are parties to this petition, are disputing the resolution as illegal and without authority of law. Ms.Sadh, learned counsel appearing for the trustees urged that there are about 1 lac beneficiaries of the said trust and petition at the instance of the beneficiaries for seeking amendment of the sanctioned scheme cannot be entertained by this court while trustees have not thought it proper to apply for such amendment.

¶401

Question that arises is whether beneficiaries can apply for amendment to the scheme settled by this court. Mr. Bhagatjee, learned counsel did not dispute that there are about 1 lacs beneficiaries of the said trust. On perusal of the judgment delivered by the learned Single Judge of this court on which reliance is placed by Mr.Bhagatjee, learned counsel for the petitioners in case of Minoo Rustomji Shroff (supra) that this court would have continue to have jurisdiction to alter, modify or verify the scheme if it reserves a right to alter or modify the scheme. Admittedly, no such right to alter or modify the scheme has been reserved for the beneficiaries and/or member of the trust. Reliance is placed by Mr.Bhagatjee on the definition of “person having interest” defined under section 2(10) of the Bombay Public Trust Act, 1950 which includes beneficiary. Mr.Thorat, learned counsel appearing for the intervenors placed reliance on section 50 of the said Act and particularly section 50(j) and (o) in support of his submission that the permission to file proceedings in court for seeking amendment of scheme or variation or

¶402

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¶403

alteration of the scheme already settled can be only after prior permission in writing obtained from the Charity Commissioner. It is not in dispute that the petitioners did not obtain any such permission from the Charity Commissioner for filing this petition seeking variation or alteration in the scheme already settled by this court. Learned A.G.P. who represent the Charity Commissioner in this proceedings have opposed the petition on various grounds including maintainability of this petition. In my view, without obtaining prior consent of the Charity Commissioner by the petitioners who claims to be beneficiaries and persons having interest could not have filed this proceedings for seeking amendment of the scheme already settled and more particularly in view of the fact that in the decree passed by this court sanctioning scheme, no such liberty was reserved for beneficiaries or an outsider. In my view, Mr.Thorat, learned senior counsel, learned A.G.P. and Ms.Sadh, learned counsel appearing for the trustee is right in their submission that a person claiming to be beneficiaries of the trust cannot apply for amendment of the scheme without obtaining sanction from charity commissioner before filing proceedings in this court. The trustees have also disputed the existence of the resolution passed by the beneficiaries and their powers to pass such resolution.

¶404

It is not in dispute that some of the beneficiaries have already filed proceedings under section 41(D) of the said Act before the Charity Commissioner for appropriate action against the proceeding for their suspension, removal and/or dismissal of trustee and such application is pending before the Charity Commissioner. Out of 1 lac trustees, resolution alleged to have passed by 50 members and/or beneficiaries or 127 beneficiaries as alleged, factum of which is opposed by the trustees, this court cannot allow beneficiaries to maintain such application for amendment. In my view, any

¶405

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¶406

person having interest as defined under section 2(10) have an independent right by seeking appropriate permission from Charity Commissioner to apply for modification and/or alteration of the scheme. Since I have decided to take a view that amendment to the scheme as proposed by the petitioners would be substantial in nature and would not be in the interest of trust or its beneficiaries and in view of the fact that the charity commissioner impleaded as party respondent to this proceedings and has addressed this court on the maintainability of the petition also on the ground of the amendment being substantial and is not in interest of the trust and its beneficiary, I do not propose to dismiss this petition on the ground that the petitioners ought to have obtained permission of the charity commissioner under section 50 of the Bombay Public Trust Act before filing this petition. I have therefore dealt with other larger issues raised by the respondents as to whether such amendment proposed by the petitioners to the scheme sanctioned by this court shall be granted or not.

¶407

Question that now arises for consideration is that amendment proposed by the petitioners to the sanctioned scheme is substantial in nature and if allowed would be contrary to the object and purpose of the trust. On perusal of the sanctioned scheme, it is clear that this court had referred to the Commissioner to frame a scheme for administration of the management of the temple and Dharamshala properties of the said trust and to submit names of five fit and proper persons for being appointed as trustees of the said charitable trust properties. On perusal of the sanctioned scheme, it is clear that the trust properties were for the benefit of the members of Gujarati Hindu Mochi community. It is also revealed that the scheme was sanctioned the regulation, administration and management of the temple properties, temple and

¶408

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Dharamshala situated at Walkeshwar comprised in the decreetal order dated 30^th June, 1933. Learned A.G.P. has urged that the temple and Dharamshala of the said trust situated at Walkeshwar for the benefit of the community was sanctioned by this court while sanctioning the said scheme. Sale and transaction of the property on which temple and Dharamshala is situated if allowed to be sold and shifted somewhere else, it would amount to substitution of the scheme and would amount to change of object and purpose for which the said scheme was sanctioned which is not permissible by an amendment application to the sanctioned scheme. The proposed amendment is also opposed by learned Advocate General, Mr.Thorat, learned senior counsel appearing for the intervenors, Ms.Sadh, learned counsel appearing for the trustees and learned A.G.P. on the ground that the trust properties cannot be allowed to be sold in favour of the member of the particular community as it would not fetch any correct market value in respect of the property and would cause loss to the trust as well as its beneficiaries. On this issue, submission of Mr.Bhagatjee, learned counsel appearing for the petitioners is that since trust was created for the purpose of acquiring its properties including temple and Dharamshala for the exclusive benefit of beneficiaries belonging to Gujarati Hindu Mochi community, sale of such property of the trust meant for benefit of a particular community also shall be permitted to be effected to the member of such community at the first instance and there would be no diversion and/or violation of the objects and purpose of the trust for which the trust was created and scheme was sanctioned by this court. It is submitted that there is no change of basic structure of the scheme proposed to be amended by the petitioners in this petition and chamber summons.

¶410

On perusal of the scheme sanctioned by this court, it is revealed that

¶411

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the trust properties i.e. temple and Dharamshala of the said trust are situated at Walkeshwar and were meant to be used for the benefit of Gujarati Hindu Mochi community. It is the case of the beneficiaries that in view of the fact that more than 90% of the beneficiaries i.e. Gujarati Hindu Mochi community are residing in Malad, Borivali, Bhayander, Vasai and Virar, shifting of the trust property in and around Borivali and to undergo sale, purchase, long lease or development for the beneficiaries of the said Gujarati Hindu Mochi community who are residence of the suburbs would be more beneficial for their members. It is the case of the petitioners that the property at Walkeshwar does not fetch any income nor the beneficiaries have sufficient finance to develop the same and the property is also encumbered. There is no bar under the scheme for selling the trust property situated at Walkeshwar and to acquire another property at any other place at Mumbai. Whether trust property is required to be sold or not and if sold, on what terms and conditions which would be beneficial for the members of the trust and/or beneficiaries or the trust itself, the same has to be decided by the Charity Commissioner while exercising power under section 36 of the Bombay Public Trust Act, 1950. If the majority of the members of the trust have shifted to another locality, this fact also may be considered by the Charity Commissioner while considering sanction of the sale under section 36 of the said Act.

¶413

On perusal of the amendment proposed by the petitioners, it is clear that the petitioners claim to be the beneficiaries of the said trust seek that the plot of land situated at Walkeshwar on which the property of the said trust be sold/exchanged/given as long lease or to be developed by the prospective purchaser/developer who must belong to Gujarati Mochi/Chamar community of Hindus Religion or any Mochi or Chamar community Domicile in

¶414

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¶415

Maharashtra of Hindu Religion and if in case non availability of the member of the said community only then in that event others are to be permitted to bid for the same at the total and absolute discretion of trustees.

¶416

Learned Advocate General and Mr.Thorat, learned senior counsel on this issue placed reliance on the judgment of this court in case of Sailesh Developers vs. Joint Charity Commissioner (supra) and Raunak Corporation (supra) respectively. Full Bench of this Court in the said judgment in case of Sailesh Developers (supra) has held that Charity Commissioner can impose conditions having regard to the interest, benefit or protection of the trust. Charity Commissioner has to be satisfied that the trust property is required to be alienated and that it is necessary in the interest of the trust or for the benefit of the trust or for the protection of the trust to do so. It is held that once the Charity Commissioner accepts the necessity of alienating the trust property, the trustees cannot insist that the property should be sold only to a person of their choice though the offer given by the person may not be the best offer. It is held that the property may be vesting in the trustees but the vesting is for the benefit of the beneficiaries. Charity Commissioner has to ensure that best available offer is accepted, so that the transaction is for the benefit of the trust. It is held that the paramount consideration is the interest, benefit and protection of the trust. It is duty of the Charity Commissioner to ensure that the property should be alienated in such a manner that maximum benefits are accrued to the trust. In case of Raunak Corporation (supra) Division Bench of this court, it is held that if the trustees take decisions behind closed doors and arbitrarily select buyers/developers of their choice, the Charity Commissioner will have to be doubly cautious. Where the properties are of immense value, the trustees from the beginning narrow down their search with a tailor-made criteria, then that

¶417

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may raise a doubt and in such cases the Charity Commissioner will have to be on guard. It is held that only when competitive bids are invited that all concerned will have a good idea of what is the true worth of the properties and how much corpus will be available.

¶419

On perusal of the judgments of this court referred as aforesaid, I am of the view that the property of the trust even if allowed to be sold cannot be allowed to be sold only to the member of a particular community. The property of the trust is for benefit of the trust and its beneficiaries. Trust has to receive the best available price according to the market value of the property. If the property is allowed to be sold by the trustees to a member of the community or to a particular purchase only, it would not fetch the true and correct price of the property which would be in my view detrimental to the interest of the trust and its beneficiaries. The paramount interest of the trust and beneficiaries of the trust has to be considered while permitting sale of the properties by the Charity Commissioner. If the amendment as proposed by the petitioners is allowed, it would give blanket authority and free hand to the trustees to sale the properties of the trust to the member of their own community who may not offer the best and competitive price for sale of such properties of the trust. If any particular member of the community want to purchase the properties of the trust, he can participate in such sale independently by quoting the best offer alongwith other proposed purchasers. If an offer of such member of the community or the particular buyer is the highest and it is in the interest of the trust and the beneficiaries, charity commissioner would have to consider such proposal which shall be in the interest of trust and its beneficiaries. In my view, the proposed amendment for giving power to the trustees to permit the sale of the trust properties to the

¶420

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members of a particular community would not be in the interest of the trust and/or its beneficiaries. If the properties of the trust are allowed to be sold by the Charity Commissioner, at the best price offered by the proposed purchaser, such best price would be untilmately in the interest of the trust as well as beneficiaries. If by offering such property only to a particular member of their community, trust may not achieve the best price of sale of trust property which is meant for the benefit of trust and its members.

¶422

In my view, there is no reasonable nexus between the use of the trust properties by member of the community for which the trust is set up and the properties are possessed and in allowing sale of such properties of the trust only to the members of such community. I am not inclined to accept the submission of Mr.Bhagatjee, learned counsel appearing for the petitioners that there is no deviation from the object of the trust if the properties of the trust would be allowed to be sold to the members of their community for whose benefit the trust is created and the properties are acquired. In my view, use of the properties of the trust for the benefit of the member of a particular community has nothing to do with the sale of the properties to an outsider at the best price. In my view, if such amendment is allowed by the court in the scheme sanctioned by this court, it would amount to substantial changes in the basic structure and purpose of the scheme sanctioned by this court. Court can not sanction any drastic amendment which would destroy the basic purpose for which the trust was created. I am respectfully bound by the principles of law laid down by this court in case of Sailesh Developers (supra) and Raunak Corporation (supra)

¶423

As far as judgment of the Supreme Court relied upon by

¶424

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Mr.Bhagatjee in case of Charan Singh (supra) is concerned, Supreme Court was considering the regulations of the land assigned to the members of the Schedule Caste granted on lease by the government as per policy of the state government which lands were retained by such members of the Schedule Caste and remained in their possession after expiry of lease. Considering those facts, Supreme Court directed the government to regularize their possession and assign the land in their possession in accordance with their policy. In my view, the said judgment relied upon by Mr.Bhagatjee, learned counsel appearing for the petitioners does not assist the petitioners at all.

¶426

As far as judgment of the Supreme Court in case of State of Maharashtra vs.Karvanagar Sahkari Griha Rachana Sanstha (supra) is concerned, Supreme Court has considered the power of Registrar to direct the amendment of bye-laws which was in public interest. Supreme Court held that the power of state government to issue direction in public interest cannot be exercised so as to prejudicial to the interest of the society and interest of the society is primarily for the society alone to be decided and it is not for an outside agency to have say. In my view, the said judgment relied upon by Mr.Bhagatjee is not applicable to the facts in hand and is of no assistance to the petitioners.

¶427

As far as judgment of the Supreme Court in case of Zorostrain Cooperative Housing Soc. Ltd. And ors. (supra) is concerned, Supreme Court has held that membership in the society only to the Parsis was not illegal. The said judgment does not apply to the facts of this case. By the proposed amendment, petitioners seeks sale of the properties of the trust to a particular community. The said judgment of the Supreme Court thus is of no assistance

¶428

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to the petitioners.

¶431

In view of the statement made by Mr.Bhagatjee, learned counsel appearing for the petitioners that the petitioners have not filed this petition exercising liberty granted to the trustees under the sanctioned scheme by this court and therefore judgment relied upon by the learned Advocate General in case of Dhirajlal Velji Gucka (supra), and in case of Abdul Khair and another (supra) need not be dealt with.

¶432

As far as submission of Mr.Thorat, learned senior counsel appearing for the intervenors that in view of the section 52 of the Bombay Public Trust Act, this petition is not maintainable in this court is concerned, on perusal of the judgment of this court in case of Minoo Rustomji Shroff (supra) , it is clear that this court has considered the effect of section 52 of the Bombay Public Trust Act in the said judgment and has held that if the scheme of the trust is sanctioned by this court prior to 1950, all amendment to such scheme can be considered by this court if liberty is granted to seek such amendment. It is not in dispute that no such liberty was granted by this court in favour of the beneficiaries. Since the learned counsel appearing for the parties have also addressed this court on the issue whether such amendment proposed by the petitioners can be at all considered by this court or not, I have considered the submissions made by the learned counsel on this issue. I am of the view that such amendment as proposed by the petitioners cannot be permitted at the instance of the beneficiaries. Even if trustees would have applied for such amendment of the scheme thereby authorizing the trustees to sale property to the members of their community only, this court could not permitt such amendment which is contrary to law and would be detrimental to

¶433

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the interest of the trust and its beneficiaries.

¶436

As far as chamber summons taken out by the applicant is concerned, for the reasons recorded aforesaid, except reliefs in terms of prayer (b) of the Chamber Summons by which the applicant seeks to delete the name of respondent nos. 1 and 2, no other reliefs deserves to be granted.

¶437

I, therefore, pass the following order :-

¶438

(a) Trust Petition No. 2 of 2012 is dismissed. (b) Chamber Summons No. 567 of 2013 is

¶439

allowed in terms of prayer (b).

¶440

¶441

weeks from today.

¶442

(d) Rest of the prayers of the Chamber Summons are rejected.

¶443

(e) Ad interim order passed in testamentary petition is vacated.

¶444

(f) Learned Charity Commissioner is directed to dispose of the pending applications filed by the beneficiaries under section 41(D) as well as by trustees under section 36 of the Bombay Public Trust Act expeditiously and not later than one year from today.

¶445

(g) No order as to costs.

¶446

(R.D.DHANUKA, J.)

Pragji Savji Vaja and 2 Ors. v. Chhotalal N. Parmar and 5 Ors.

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Pragji Savji Vaja and 2 Ors. v. Chhotalal N. Parmar and 5 Ors.

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