JUDGMENT Naik V.A., J.
1. Heard.
2. By this second appeal, the appellants challenge the Order passed by the Asstt. Charity Commissioner, Amravati Region, Amravati, on 26th June, 2006, as also the Order passed by the District Judge, Amravati, in Misc. Civil Application No. 140 of 2006 on 17th October, 2006.
Brief facts giving rise to the second appeal and to the controversy involved therein are stated as under:
3. The appellants [original applicants] are the recorded trustees of one Shri Maharudra Maroti Sansthan, Jahangirpur. The said Sansthan bears Registration No. A-1381/ Amravati. The appellants had filed an application before the Asstt. Charity Commissioner, Amravati, for framing of a scheme under the provisions of Section 50-A of the Bombay Public Trusts Act. The scheme for the aforesaid Trust was framed by the Asstt. Charity Commissioner on 23rd April, 1991. It is the case of the appellants that after framing of the scheme by the authority, the Trust is being managed and administered by the appellants along with other trustees on the Board of Trustees. Since the appellants were desirous of modifying the scheme by incorporating certain objects in the Object Clause of the Scheme, the appellants approached the Deputy Charity Commissioner, Amravati, for modification of the scheme under the provisions of Section 50-A[i] of the Bombay Public Trusts Act, 1950. According to the appellants, it was necessary to insert the aforesaid objects in the scheme to seek donations from the Members of Parliament and the Members of the Legislative Assembly, and the necessary resolution was passed by the Board of Directors on 12th March, 2006.
4. After hearing the parties and considering the evidence tendered by the parties on record, the Deputy Charity Commissioner rejected the application filed by the appellants. The appellants challenged the order passed by the Deputy Charity Commissioner on 26th June, 2006 before the District Judge, Amravati, in Misc. Civil Application No. 140 of 2006 under Section 72 of the Bombay Public Trusts Act. The District Judge, Amravati, however, dismissed the application by the judgment dated 17th October, 2006. The orders passed by the Deputy Charity Commissioner and the District Judge are challenged in the instant second appeal.
5. Shri J.T. Gilda, learned Counsel for the appellants, submitted that the judgment passed by the District Judge, Amravati, is clearly illegal, as the District Judge committed a serious error in holding that the application filed by the appellants before the Deputy Charity Commissioner was not maintainable under the provisions of Section 50-A[3] of the Bombay Public Trusts Act, as the application for modification of the scheme ought to have been filed before the Charity Commissioner. The Counsel for the appellants submitted that the District Judge lost sight of the Notification issued by the State of Maharashtra on 2nd January, 1986, whereby the powers exercisable by the Charity Commissioner under Section 50-A of the Act are delegated to the Assistant and Deputy Charity Commissioners of the particular region. The Counsel for the appellants submitted that the District Judge was further not justified in holding that the appellants ought to have challenged the order passed by the Deputy Charity Commissioner on 26th June, 2006 before the Joint Charity Commissioner under Section 72 of the Act, and could not have straight way preferred an application before the District Judge.
6. Lastly, it is submitted on behalf of the appellants that the District Judge, Amravati, did not independently apply his mind to the facts of the case and mechanically confirmed the order passed by the Deputy Charity Commissioner. It was submitted on behalf of the appellants that no reasons were recorded by the District Judge, Amravati, for endorsing the findings recorded by the Deputy Charity Commissioner and since the District Court had a duty to consider the case on merits, in any case, the matter is liable to be remanded to the District Judge, Amravati, for considering it afresh on merits.
7. Shri Agrawal, learned Asstt. Govt. Pleader, appearing on behalf of the respondent, on the other hand, supported the orders passed by the Deputy Charity Commissioner and the District Judge, Amravati. It was submitted on behalf of the respondent that the Deputy Charity Commissioner had appreciated the evidence on record to hold that the permission for modification of the scheme could not have been granted, as the proposed modification/amendment was beyond the purview of the objects of the Trust. The Counsel for the respondent then submitted that the judgment of the District Judge was not a reversing judgment, and since the Deputy Charity Commissioner had considered the entire evidence produced by the parties on record, the judgment passed by the District Judge is liable to be confirmed though it may not be well reasoned.
8. Since the question involved in this second appeal was a short one, this Court had, by an Order dated 26th February, 2007, issued notice of final disposal to the respondents. As it prima facie appeared to this Court that the District Judge had not recorded any reason for dismissing the appeal on merits, this Court found it fit to finally hear the second appeal at the admission stage.
9. This second appeal is, therefore, admitted on the following Substantial Questions of Law:
[a] Whether the application for modification of the scheme under the provisions of Section 50-A[l] was maintainable before the Deputy Charity Commissioner, Amravati?
[b] Whether the District Judge, Amravati, had jurisdiction to entertain an application against the Order of the Deputy Charity Commissioner under Section 72 of the Bombay Public Trusts Act, or whether the appeal would lie before the Joint Charity Commissioner, as held by the District Judge, Amravati?
[c] Whether the District Judge, Amravati, as a final fact-finding-authority should have independently considered the evidence and recorded the reasons while deciding the matter on merits?
10. For considering the aforesaid Substantial Questions of Law, it is necessary to consider the provisions of Section 50-A, Section 70 and Section 72 of the Bombay Public Trusts Act. It is further necessary to consider the notification issued by the State of Maharashtra on 2nd January, 1986, whereby the powers exercisable by the Charity Commissioner under Section 50-A of the Bombay Public Trusts Act are delegated to the Deputy Charity Commissioners and Asstt. Charity Commissioners.
11. Perusal of the provisions of Section 50-A of the Bombay Public Trusts Act, specially the one pertaining to Maharashtra Region, makes it clear that the Charity Commissioner is empowered, after hearing the trustees, to modify the scheme framed by him under the provisions of sub-sections (1) and (2) of Section 50-A. In the instant case, the District Judge, Amravati, held that the application for modification of scheme ought to have been filed before the Charity Commissioner in view of the provisions of Section 50-A(3) of the Act. The District Judge, Amravati, however, lost sight of the Notification issued by the Government of Maharashtra on 2nd January, 1986 notified in the Government Gazette dated 9th January, 1986. In view of the aforesaid Notification issued by the State of Maharashtra in exercise of powers under Section 8(2) of the Act, delegating the powers, duties and functions exercisable by the Charity Commissioner to the Deputy Charity Commissioners and the Assistant Charity Commissioners of the Region and the provisions of Section 50-A(3) of the Act, it is apparent that the Deputy Charity Commissioner, Amravati, had ample jurisdiction to hear the trustees and modify the scheme framed by him under the provisions of sections 50-A(1) and (2) of the Act. The District Judge, Amravati, was, therefore, not justified in holding that the jurisdiction to entertain an application for modification of a scheme vested only with the Charity Commissioner, and not with the Deputy Charity Commissioner, Amravati. I, therefore, answer the first Substantial Question of Law in the affirmative and in favour of appellants.
12. For answering the second Substantial /Question of Law, it is necessary to peruse the provisions of Section 72 of the Bombay Public Trusts Act. Section 72 of the Bombay Public Trusts Act entitles a person aggrieved by the decision of the Charity Commissioner under the provisions of Section 50-A of the Act to apply to the Court to set aside the said decision, within a period of 60 days from the date of decision. The word "Court" is defined under the provisions of Section 2(4) of the Bombay Public Trusts Act to mean the City Civil Court in Greater Bombay and elsewhere the District Court. Since the person aggrieved by the decision under Section 50-A could apply to a Court to set aside the said decision under the provisions of Section 72(1) of the Bombay Public Trusts Act, the appellants had rightly approached the District Judge, Amravati, by preferring an application under Section 72 of the Bombay Public Trusts Act against the order of the Deputy Charity Commissioner dated 26th June, 2006. An order or decision under Section 50-A of the Bombay Public Trusts Act, though it pertained to the modification of the scheme, could be challenged only before the District Court under the provisions of Section 72 of the Bombay Public Trusts Act. In view of the aforesaid position of law, the District Judge, Amravati had committed a serious error in holding that an application against the order passed by the Deputy Charity Commissioner would lie before the Joint Charity Commissioner, and not the District Judge. For the aforesaid reasons, I answer the second Substantial Question of Law in the affirmative and in favour of the appellants.
13. Perusal of the impugned order passed by the District Judge discloses that the District Judge has not considered the evidence tendered by the appellants before the Deputy Charity Commissioner before holding that it was not necessary to modify the scheme framed in the year 1991. The judgment reveals that the District Judge, Amravati, has mechanically confirmed the order passed by the Deputy Charity Commissioner, Amravati, without independently applying his mind to the facts of the case. Though Section 72 of the Bombay Public Trusts Act speaks of an application and not an appeal, the powers exercisable by the District Court while deciding the application are those of the Appellate Court and as a final fact finding authority, it is incumbent for the District Judge to consider the evidence and independently apply its mind to the facts of the case before deciding the application on merits. Sub-section (4) of Section 72 further lends support to this finding as it provides an appeal against the decision of the District Judge to the High Court, as if such decision was a decree from which an appeal ordinarily lies. As already pointed out herein above, since the District Judge, Amravati, has not even referred to the evidence tendered by the appellants on record to confirm the findings recorded by the Deputy Charity Commissioner, Amravati, it is necessary, in the interest of justice, to remand the matter to the District Judge, Amravati, to consider the same afresh on merits. The third Substantial Question of Law is, therefore, answered in the affirmative and in favour of the appellants.
14. For the reasons aforesaid, the second appeal is allowed. The judgment passed by the District Judge, Amravati, on 17th October, 2006 is hereby set aside. The matter" is remanded to the District Judge, Amravati, for a fresh adjudication of the matter on merits. Since the question involved in the case pertains to the modification of the scheme, this Court expects that the District Judge, Amravati, would decide the application filed by the appellants as early as possible and within a period of four months from today. Parties undertake to remain present before the District Judge, Amravati, on 06th June, 2007, so that the notice to the appellants could be dispensed with. In the facts of the case, there will be no order as to costs.