Waman Vyankatesh Deshpande ... vs Atul Pandurang Alshi (Dr.) And ...
2004 Latest Caselaw 1009 Bom

JUDGMENT

K.J. Rohee, J.

1. The appellants have challenged the order dated 23-3-1998 passed by the learned Single Judge dismissing their first appeal No. 473/1997 against the order dated 3-10-1997 passed by the Joint Charity Commissioner, Nagpur, appointing 15 persons as the trustees of the public trust.

2. Shri Ambadevi Sansthan Amravati, is a registered public trust. The father of appellant No. 4 was one of the trustees of the said trust. The father of appellant No. 4 died on 3-12-1989. As there were vacancies which were not filled in, appellant No. 4 moved an application before the Joint Charity Commissioner under Section 47 of the Bombay Public Trusts Act, 1950 (for short 'the Act') bearing Application No. 1/1996 for admitting him as a trustee. During the pendency of the application, several persons expressed their desire for being appointed as trustees in the vacant posts. After considering the matter, the Joint Charity Commissioner appointed 15 persons as the trustees of the said trust. Appellant No. 4 was not appointed as trustee.

3. Appellant No. 4 and three more trustees preferred an appeal against the said order before this Court under Section 47(5) of the Act. The learned Single Judge dismissed the appeal by observing that apart from Section 47 of the Act, the Joint Charity Commissioner had an authority to make appointment of trustees if the vacancies are not filled in by the remaining trustees within the time limit.

4. Mr. J. N. Chandurkar, the learned counsel for the appellants while assailing the impugned order submitted that the application under Section 47 of the Act to appoint a trustee itself was not tenable as the power of Charity Commissioner to appoint a trustee under Section 47 is very limited. In this respect the learned counsel for the appellants relied on Gyandeo Tukaram Devre and Ors. v. Ganpat Nathu Devre and Ors., 1995(1) Mh.L.J. 99 in which it has been held as under :

'Section 47 does not confer any general power on the Charity Commissioner to appoint any new trustees. Power under Section 47 of the Act can be exercised only in cases specifically covered by the section.'

5. It may be noted that it was appellant No. 4 himself who had moved an application under Section 47 of the Act for being appointed as trustee and as the Joint Charity Commissioner did not appoint him as trustee, he challenged the order with other trustees. So primarily it does not fit in the mouth of particularly appellant No. 4 to challenge the impugned order by alleging that 15 trustees could not have been appointed by the Joint Charity Commissioner under Section 47 of the Act.

6. Another important aspect is that suo motu proceedings No. 41/63 for framing scheme were initiated by the Joint Charity Commissioner under Section 50-A of the Act in respect of Shri Ambadevi Sansthan and a scheme was framed on 13-9-1965. Clause 6 of the said scheme prescribes that the number of trustees shall not be less than 7 and not more than 30. For the purposes of the present appeal, Clause 9(b) is material. It reads as under :

'Appointment of new trustee :

(b) If any of the trustees shall die or be absent from Maharashtra for a period of one year or be adjudicated an insolvent or be convicted of a criminal offence involving moral turpitude and punished with imprisonment or desire to be discharged from or refuse or in the opinion of the Charity Commissioner of Maharashtra (hereinafter referred to as the "the Charity Commissioner") become unfit or in the like opinion incapable to act in duties and powers reposed in him or them under this Scheme the surviving or continuing trustees or trustees from the time being or if they shall all retire simultaneously or the last surviving trustees shall by writing appoint any other person or persons being permanent residents of Amravati after obtaining the consent of the Charity Commissioner in writing to be a trustee or trustees in the place of the trustee or trustees so doing or being absent from Maharashtra or becoming insolvent or being convicted of a criminal offence involving moral turpitude and punished as aforesaid or desiring to be discharged or refusing or becoming unit or incapable to act as aforesaid. In the event of any such contingency arising and if no appointment of new trustees or new trustee as the case may be shall be made within six months of the happening thereof it shall be lawful for the Charity Commissioner at any time after the expiry of such period by writing to appoint a new trustees or new trustees as the circumstances may require.'

7. The bare perusal of the above clause shows that if no appointment of new trustee/trustees is made by the surviving/continuing trustees within six months from the date of vacancy, it shall be lawful for the Charity Commissioner at any time after expiry of such period to appoint a new trustee. The order passed by the Joint Charity Commissioner shows that he exercised the power to appoint trustee under Clause 9(b) of the Scheme. The learned Single Judge also opined that there is clear authority under the Scheme to the Joint Charity Commissioner to appoint a trustee, in case the vacancy is not filled in within the stipulated period. So though the provisions of Section 47 are not attracted to the present case so as to empower the Joint Charity Commissioner to appoint new trustee, it was well within his competence to appoint new trustees under the powers conferred upon him by the Scheme.

8. It appears to us that Section 47 of the Act is not the only repository of the power of the Charity Commissioner to appoint trustees. A scheme framed by the Charity Commissioner under Section 50-A of the Act may also contain a clause empowering the Charity Commissioner to appoint trustees in case a vacancy arises and the same is not filled in by the remaining trustees. As pointed out earlier, in the present case the Joint Charity Commissioner has exercised his powers under Clause 9(b) of the Scheme under which he is authorised to appoint trustees in the vacant posts. Thus in our view the learned Single Judge rightly held that there was no merit in the appeal. We find no error in the order of the learned Single Judge. Hence the L.P.A. is dismissed with no order as to costs.