Ramkrushna-Appa S/O ... vs Krushna S/O Udaybhanji Ingale And ...
2005 Latest Caselaw 680 Bom

JUDGMENT

B.R. Gavai, J.

1. By way of present second appeal, the appellants challenge the judgment and order passed by the learned District Judge, Wardha, in Trust Application Nos. 5 of 2002, 3 of 2003 and Regular Civil Appeal No. 133 of 2003, dated 28th July, 2004, thereby allowing the aforesaid applications and the appeal filed challenging the judgment and order passed by the learned Assistant Charity Commissioner, Wardha, in Scheme Application Nos. 335/99 and 64/2000, dated 31st August, 2002.

2. The present litigation has a checkered history. The facts necessary for adjudication of the present second appeal are as under :

That, the Trust in question originally had sixteen members in the General Body. The election to the Managing Committee of the Trust was held in the year 1977. Consequent to the election, the Change Reports were filed before the Assistant Charity Commissioner. The said Change Reports came to be accepted in 1980. The then President, considering that the tenure of the Managing Committee of three years, would commence from the acceptance of the Change Report, held the subsequent elections in the year 1983. It appears that the split in two groups of the trust erupted from that moment. The group led by the then President held the elections in the year 1983 from the electoral college consisting of 28 members. Amongst these 28 members, 16 were the original members and 12 members were shown to be enrolled by the President. On the basis of the said elections, Change Report No. 688 of 1983 came to be filed by the group led by the then President. At the same time, the elections were held to the Managing Committee by the rival group from the electoral college of the 16 original members. The Change Report on the basis of the said election was numbered as 988/1983. Both these Change Reports came to be rejected by the learned Assistant Charity Commissioner, vide order dated 23rd March, 1987. The President, who had filed Change Report No. 688/1983, preferred an appeal before the learned Joint Charity Commissioner, which came to be dismissed on 11th March, 1989. Being aggrieved thereby, the then President filed an application under Section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the said Act) before the learned District Judge, Wardha, being Trust Application No. 2 of 1989. The said Trust Application came to be dismissed on merits vide judgment and order dated 26-9-1990.

3. In the mean-time, there was another round of elections. The then Secretary issued notice for holding elections to the Managing Committee on 12-5-1989. The said notice came to be challenged with an application for stay to the election in the proceedings which were pending before the learned District Judge. However, the said prayer for stay was rejected by the learned District Judge, vide order dated 6th May, 1989. Said order of rejection of stay came to be challenged in this Court vide C.R.A. No. 485/1989, which was dismissed by this Court vide order dated 30th June, 1989. Accordingly, the elections were held on 12th May, 1989 taking the electoral college to be of 16 original members. On the basis of the said elections, Change Report No. 105/1989 came to be filed before the learned Assistant Charity Commissioner. The another group led by the then President, held elections on 3-9-1990. The said election was held on the basis of the electoral college consisting of 32 members. Out of these 32, 16 were the original members and 16 members were shown to be newly inducted. On the basis of the said election, Change Report No. 186/1990 was filed before the learned Assistant Charity Commissioner.

4. In the mean time, being aggrieved by the dismissal of the Trust Application No. 2/89, the then President Onkarappa Ganjiwale filed First Appeal No. 538/1990 before this Court. Another first appeal viz. First Appeal No. 537/1990 was filed by the 12 members who were alleged to have been inducted prior to the elections held by Onkarappa Ganjiwale in the year 1983. It appears that since the group belonging to the President Onkarappa Ganjiwale was forcing to enter into the management of the Trust, an injunction application came to be filed in those first appeals by the rival group. This Court, vide order dated 13-9-1991, granted injunction thereby authorising the group which was elected vide Change Report No. 105/89, to manage the affairs of the Trust. It appears that the said Shri Onkarappa Ganjiwale and the newly inducted 12 members filed application for withdrawal of first appeal before this Court. This Court, vide order dated 14-10-1991, while allowing the said appellants to withdraw the appeal, continued injunction granted by it earlier in favour of the group elected vide Change Report No. 105/1989, till the Change Report No. 105/1989 and Change Report No. 186/1990 were decided by the learned Assistant Charity Commissioner. It further appears that the proceedings under Section 41D of the said Act were initiated against three original members namely (1) Onkarappa Ganjiwale (2) Pandharinath Motiram Sawwalakhe, (3) Dattatraya Pandurang Sawwalakhe. It appears that though in spite of the injunction granted by this Court vide order dated 13th September, 1991, the group belonging to the said president Onkarappa Ganjiwale was trying to impose upon the management of the Trust, the rival group filed an application for contempt in this Court. This Court, vide order dated 17th February, 1994, disposed of the said contempt petition. While disposing of the said contempt petition, an undertaking of one Shri Ramchandra Jawalkar regarding non-interference with the management, was taken on record. In the said contempt proceeding, the then President Onkarappa Ganjiwale also tendered an apology. However, in spite of tendering an apology, this Court imposed fine of Rs. 500/- on the said Shri Onkarappa.

5. It appears that frustrated with the bickering in the management, two applications came to be filed before the Assistant Charity Commissioner for framing of the Scheme under Section 50A of the said Act. Application No. 335/1999 was filed by one Shri Pramod Narayanrao Ingale and Shri Shivaling Siddheshwar Magare. Second application being Application No. 64 of 2000 came to be filed by one Shri Krishna Ingle and Shri Wasudeorao Gopalrao Jalit. One another event that needs to be noted is that vide order dated 25th June, 2002, both the Change Reports filed in pursuance of the elections held in the year 1989 and 1990, i.e. Nos. 105/89 and 186/90 came to be rejected by the learned Joint Charity Commissioner.

6. In the two applications which were filed before the learned Assistant Charity Commissioner, the learned Assistant Charity Commissioner, after noticing the trustees and hearing them, vide order dated 31st August, 2002, rejected both the applications on the ground that they were not tenable. However, while rejecting the said applications, the learned Assistant Charity Commissioner held that in the interest of the proper management or administration of the Trust, it was necessary to frame a Scheme and, therefore, he framed the Scheme. While framing the Scheme, the learned Assistant Charity Commissioner appointed the First Managing Committee consisting of five persons, the present appellants are three amongst the said First Managing Committee.

7. Being aggrieved by the Scheme framed by the learned Assistant Charity Commissioner, two Trust applications and one appeal came to be filed before the learned District Judge under the provisions of Section 72 of the said Act. Trust Application No. 5/2002 was filed by Shri Krishna Ingle, Trust Application No. 3/2003 was filed by Dr. Arvind Malpe and another, and Regular Civil Appeal No. 132/2002 was filed by Shri Ramchandra Jawalkar and another. In the said applications, an application for grant of stay to the Scheme framed by the learned Assistant Charity Commissioner was also filed. However, the learned District Judge, vide order dated 1st November, 2002, rejected the prayer for stay. It is claimed by the appellants that since there was no stay, they have inducted 21 members on 14-5-2003 and the elections were scheduled to be held on 22-5-2003. It also needs to be noted that there was also proceeding under Section 41D of the said Act filed by one K. L. Borade and two others. In the said proceedings, the learned I/c Joint Charity Commissioner granted stay to the elections which were scheduled to be held on 23rd June, 2003, vide order dated 21st June, 2003. It also needs to be noted that some of the members who were inducted on 14-5-2003, filed an application before the learned District Judge under Order 1, Rule 10 Civil Procedure Code read with Section 73A of the said Act, for impleading them as party respondents. However, said application came to be rejected vide order dated 23rd April, 2004. The said order of rejection to implead the said members as respondents, is subject matter of three writ petitions being Writ Petition Nos. 2913/2004, 2914/2004 and 2915/2004. By a separate order, the said writ petitions are rejected.

8. The Trust Application Nos. 5/2002 and 3/2003, and Regular Civil Appeal No. 132/2002 came to be allowed vide order passed by the learned Additional District Judge, Wardha, dated 28th July, 2004, thereby quashing and setting aside the order passed by the learned Assistant Charity Commissioner dated 31st August, 2002 framing the Scheme under Section 50A of the said Act. Thereafter, the learned Joint Charity Commissioner, vide order dated 31-7-2004, appointed a body of seven fit persons to administer the Trust. The said order dated 31-7-2004 is also a subject-matter of Writ Petition No. 3477/2004. In the said writ petition, newly appointed fit persons have given an undertaking that they will not take charge until the necessary orders are passed by this Court. The appellants being aggrieved by the judgment and order passed by the learned Additional District Judge, dated 28th July, 2004, have preferred the present second appeal.

9. Shri Khapre, the learned counsel leading arguments on behalf of the appellants, made following submissions :

That, there was sufficient material before the learned Assistant Charity Commissioner to come to a conclusion that the instrument of Trust had become unworkable and, therefore, it was necessary to frame a Scheme. He submitted that out of the original members, only five are surviving. He further submitted that in accordance with the original constitution, it was necessary to have minimum seven members. He submitted that in view of this fact, the earlier Scheme had totally failed and new Scheme was necessary. He further submitted that there was also material before the learned Assistant Charity Commissioner to show that the trustees had failed to get the accounts of the trust audited for number of years and, therefore, in the interest of proper management or administration of the Trust, it was necessary to frame the Scheme. Secondly, he submitted that the finding of the learned District Judge that after ensuing suo motu proceedings, the learned Assistant Charity Commissioner had not given any notice to the Trustees and, therefore, violated the mandate of Section 50A of the said Act, was totally unsustainable in the eye of law. He submitted that all the trustees were represented before the learned Assistant Charity Commissioner and that they were heard before the Scheme was framed. He submitted that out of seven trustees who were recognised as such on the date of filing of the application, one Dattu Sawwalakhe was removed on 30th January, 1991 vide order under Section 41D of the said Act, which also came to be confirmed by the learned District Judge. He submitted that another trustee namely Shri Namdeo Borade had also died prior to filing of the application for framing of the Scheme. He, therefore, submitted that there remained only five trustees on the date on which the application was filed. Out of the said trustees, Krishna Ingle and Wasudeo Jalit had themselves filed an application for framing of Scheme. He further submitted that remaining two trustees i.e. Ramkrishna Gunjiwale and Pandurang Dhomne had filed their reply to the application before the learned Assistant Charity Commissioner, stating that it was necessary in the interest of proper management or administration of the Trust to frame the Scheme. He further submitted that the fifth trustee, i.e. Marotrao Hole expired during the proceedings before the learned Assistant Charity Commissioner. Shri Khapre, therefore, submitted that all the four surviving trustees were represented before the learned Assistant Charity Commissioner and all of them were unanimous insofar as requirement of framing of the Scheme is concerned. He further submitted that in spite of their rivalry, as urged before the learned Assistant Charity Commissioner, all the trustees were of one voice regarding the necessity to frame a Scheme. Therefore, according to him, the finding of the learned District Judge that the framing of the Scheme in the absence of issuance of notice to the trustees, was not proper in law, is not justified. He further submitted that the perusal of the Scheme filed by both the groups would show that the Schemes submitted by rival groups were almost identical. He further submitted that the only material difference in both the draft Schemes was in regard to the members on the First Managing Committee. He, therefore, submitted that the order of the learned Additional District Judge regarding the non-issuance of the notice was not sustainable in the eye of law.

10. Shri Khapre, the learned counsel, further submitted that the learned Assistant Charity Commissioner, as a matter of fact, had partly allowed both the applications filed by the rival groups.

11. Shri Khapre, the learned counsel submitted that the requirement of Section 50A of the said Act is fulfilled if sufficient facts are brought to the notice of the Charity Commissioner regarding the necessity to frame the Scheme for proper management or administration of the Trust and that if on the basis of such facts, if machinery is set in motion for framing the Scheme, then any other lacuna would not render it to be invalid. In support of his proposition, he relied on the case of Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab and Ors. .

12. Shri Khapre further submitted that the notice under Section 50A(1) of the said Act is contemplated only for the purpose of satisfying as to whether it is necessary to frame a Scheme or not. He submitted that in the present case, when the Trustees themselves were before the learned Assistant Charity Commissioner and when they themselves have urged for framing of the Scheme, notice was not necessary and in any event, if the same was necessary, then the same will have to be considered as waived by the Trustees.

13. Shri Khapre further submitted that even on facts, the findings given by the learned Assistant Charity Commissioner that Application No. 64/2000 was not maintainable, is not sustainable inasmuch as both the applicants in the said application i.e. Krishna Ingle and Wasudeo Jalit were the trustees of the Trust and as such had a locus to prefer the application under Section 50A(1) of the said Act. He submits that though the appellants have not preferred an appeal against the same, the appellants will be still entitled to agitate regarding the impropriety of the said findings in view of the provisions of Order XLI, Rule 33 of the Code of Civil Procedure. He places reliance on the judgment of the Apex Court in the case of Koksingh v. Smt. Deokabai .

14. Shri Gordey, the learned counsel leading the arguments on behalf of rival group has made the following submissions :

The foremost submission canvassed by Shri Gordey is that since the learned Assistant Charity Commissioner has found that the application filed by Krishna Ingle and Wasudeo Jalit was not maintainable and had initiated the proceedings suo motu, it was necessary for him to have given notice to the Trustees, intimating them as to what material weighed with him to come to a prima facie conclusion that it was necessary in the interest of proper management or administration of the Trust to frame a Scheme. He submitted that non-issuances of such notice has resulted in prejudicially affecting the valuable rights available to the Trustees to point out that it was not necessary for the proper management or administration of the Trust to frame such Scheme.

15. Shri Gordey submitted that before contemplating an action under Section 50A(1) of the said Act, the learned Charity Commissioner is required to come to a conclusion that there are reason to believe that framing of Scheme is necessary. He submitted that only if the learned Authority comes to a finding that there are reasons to believe that framing of Scheme is necessary, then only the Authority can proceed further for framing the Scheme. He submitted that there were no reason before the learned Assistant Charity Commissioner to believe that an action as contemplated under Section 50A(1) of the said Act was necessary. In any case, he submitted that the said reasons were not communicated to the Trustees which has vitiated the entire proceedings. He relied on the judgment of this Court in the case of Taker Alimohohamad Poonawala v. Quizar Shaikh Nomanbhoy and Ors. .

16. Shri Gordey further submitted that Section 50A of the said Act will have to be read as a whole. He submitted that Sub-section (3) of Section 50A of the said Act would show that before modifying the scheme framed by the Charity Commissioner, it is necessary for him to give hearing to the Trustees. He, therefore, submitted that before framing the Scheme, it was also necessary for the learned Charity Commissioner to have supplied draft Scheme to the Trustees and invited their comments before framing the final Scheme. Shri Gordey submitted that from the perusal of the order of the learned Assistant Charity Commissioner, it is clear that draft Scheme was never supplied to the Trustees neither they were given an opportunity to offer their comments. He, therefore, submitted that the non-supply of draft Scheme to the Trustees and not inviting their comments, have vitiated the proceedings.

17. Shri Gordey further submitted that taking into consideration the provisions of Sub-section (7A) of Section 2 of the said Act, the intention of the author of the instrument of the Trust has to be given paramount importance. He submitted that if they are to be by-passed then there are required to be good and sufficient reasons to show that the original Trust Deed has failed. He submitted that from the entire order of the learned Assistant Charity Commissioner, it cannot be seen that there is a finding that the earlier instrument has failed or that even after amending it, proper management is not possible. He further submitted that in the absence of such a finding, it was not permissible for the learned Assistant Charity Commissioner to have framed the Scheme. He submitted that mismanagement by the Trustees is not a ground for framing the Scheme under Section 50A(1) of the said Act. According to the learned counsel, unless all other provisions which enable the Authority to take steps for proper management or administration of the Trust are exhausted, recourse to framing of the Scheme under Section 50A of the said Act, is not permissible, Shri Gordey relies on the judgment of this Court is the case of Mallikarjun Basvanappa Masute and Anr. v. Dattatraya Krushnath Wadane and Ors. reported in 2005(2) Maharashtra Law Journal 266, in support of this proposition.

18. The next contention raised by Shri Gordey, the learned counsel, is that the course adopted by the learned Assistant Charity Commissioner in appointing the First Managing Committee is totally unknown to law. He submitted that the learned Assistant Charity Commissioner, while passing the final order, has appointed the First Managing Committee and in the said order, has called for the bio-data and consent of the First Managing Committee. He, therefore submitted that the First Managing Committee has been appointed by the learned Assistant Charity Commissioner, even without perusing their bio-data and applying his mind to the credentials of the persons.

19. Shri Deshpande, the learned counsel appearing on behalf of some of the respondents, has adopted the arguments advanced by Shri Gordey.

20. Shri Khapre, in reply to some of the contentions raised by Shri Gordey, made following submissions :

He submitted that insofar as the reliance placed by Shri Gordey on the judgment of Mallikarjun (cited supra), is concerned, same would not be applicable to the facts of the case. He submitted that in that case, all the trustees had opposed to the framing of the Scheme, whereas in the present case, all the Trustees, in unanimity, urged to frame the scheme. He, therefore, submitted that the facts of the said case would not be applicable to the facts of the present case.

21. Insofar as the objection of the learned counsel for the respondents regarding the appointment of the First Managing Committee is concerned, Shri Khapre submitted that the First Managing Committee has been appointed by the learned Assistant Charity Commissioner from the lists which were annexed to the draft Schemes by rival groups. He submitted that the comments were offered by the rival groups regarding the credential of the persons in the said list and only thereafter the learned Assistant Charity Commissioner has appointed the First Managing Committee. He, therefore, submitted that no fault could be found with the course adopted by the learned Assistant Charity Commissioner in appointing the First Managing Committee.

22. Insofar as the reliance placed on the judgment of the Taker Alimohohamad Poonawala (cited supra) is concerned, he submitted that since the present proceedings were set in motion on the applications filed by the Trustees and other persons interested, the requirement that there should be reason to believe, would not apply to the facts of the present case. He, therefore, submitted that the reliance placed on the aforesaid judgment is of no assistance to the respondents.

23. In view of the rival submissions advanced by the learned counsel, I find that the following substantial questions of law arise for consideration in the present appeal.

Substantial Questions of Law

1. As to whether the Charity Commissioner, in exercise of jurisdiction under Section 50A(1) of the Bombay Public Trusts Act, is competent to suo motu settle a Scheme, if, upon considering all the material placed before it, he finds that it is expedient or necessary in the interest of the proper management or administration of a public trust, to do so?

2) As to whether it can be said that the Scheme has been framed without hearing the Trustees, when in the collateral proceedings by way of application for framing of a scheme which was tried along with the proceedings for framing of the suo motu scheme, the Trustees were already heard?

3) Whether the procedure adopted by the learned Assistant Charity Commissioner with respect to the appointment of the First Managing Committee, is in accordance with law?

24. In order to appreciate the rival submissions, it will be necessary to refer to Sub-section (1) of Section 50A of the said Act, which reads thus :

"50A(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."

From the perusal of the section, it can be seen that the proceedings for framing a Scheme can be initiated by the Charity Commissioner in two eventualities; firstly, where the Charity Commissioner has reason to believe that in the interest of proper management or administration of a Public Trust, a Scheme should be settled for it, and secondly, where two or more persons having interest in a Public Trust make an application to him in writing in a prescribed manner that in the interest of proper management or administration of a Public Trust, a Scheme should be settled for it. It is, thus, clear that when the learned Charity Commissioner has reason to believe or when an application is made to him by two persons interested, that it is necessary in the interest of proper management or administration of a Public Trust, after giving the Trustees of such Trust an opportunity of being heard, if he is satisfied that it is necessary or expedient so to do, he may frame a Scheme for the proper management or administration of such Public Trust.

25. In this respect, it would be necessary to refer to the judgment of the Apex Court in the case of Saiyad Mohammad Bakar El-Edroos (cited supra). Paragraphs 7, 8 and 9 of the said judgment read thus --

"7. 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 the said two persons, then to hold abatement of proceedings on application or 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.

8. 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 by the procedural law what is given by the substantive law.

9. 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 in spite 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."

(Emphasis supplied)

26. The contentions of the learned counsel for the parties will have to be considered in the light of the factual background and the observations of the Apex Court cited supra.

27. It is not in dispute that Trust Application No. 64/2000 for framing Scheme was filed by Krishna Yadaoraoji Ingle and Wasudeo Gopalrao Jalit. It is also a matter of record that while allowing the First Appeal No. 538 of 1990 and 537 of 1990 to be withdrawn vide order dated 14-10-1991, this Court had continued injunction granted by it earlier on 13-9-1991, thereby authorizing the body elected in Change Report No. 105 of 1989 to continue with the management of the Trust, till the Change Reports of rival groups were decided. It can, thus, be seen that on the date on which the application for framing a Scheme being Application No. 64/2000 was filed by Krishnaji Yadaoraoji Ingle and Wasudeorao Gopalrao Jalit, they were the trustees recognized vide order of this Court dated 13-9-1991. It is a matter of record that subsequently, vide order dated 25th January, 2002, both the Change Reports came to be rejected. The appeals preferred by both the rival groups, challenging the rejection of Change Report, are still pending. It is, thus clear that both these persons were Trustees and if not Trustees, atleast persons interested, on the date on which they had filed application for framing the Scheme before the learned Assistant Charity Commissioner. In that view of the matter, I find that the finding recorded by the learned Assistant Charity Commissioner that Application No. 64 of 2000 filed by Krishnaraoji Ingle and Wasudeorao Jalit were not maintainable, is not correct in law. In this respect, reference may be made to Clause (e) of Sub-section (10) of Section 2 of the said Act.

"2(10) "person having interest" includes --

(a)....

(b)....

(c)....

(d)....

(e) in the case of any other public trust any trustee or beneficiary;"

It can, thus, be seen that the term "person having interest" has much wider meaning. The applicants in Application No. 64 of 2000 were recognized to continue with the administration of the Trust and as such, by no stretch of imagination, can be said to be the persons not having interest in the Trust. Though the present appellants have not filed an appeal challenging the said finding by the learned Additional District Judge, I find that in view of the provisions of Order XLI, Rule 33 of Civil Procedure Code, the present appellants would be still entitled to raise the ground regarding erroneous findings by the learned Assistant Charity Commissioner. The case of the appellants in this respect is fully supported by the law laid down by the Apex Court in the case of Koksingh (cited supra)

28. Insofar as the contention raised by Shri Gordey on behalf of the respondents, that since the learned Assistant Charity Commissioner had rejected both the applications as not maintainable, and thereafter initiated suo motu proceedings and as such it was necessary for him to have given notice to the Trustees, is concerned, I am unable to agree with the said contention. Both the Trust Applications were before the learned Assistant Charity Commissioner. The learned Assistant Charity Commissioner, upon consideration of the said material, though found that the applications were not tenable, found it necessary to proceed further for framing a Scheme as contemplated under Section 50A(1) of the said Act.

29. Out of seven persons who were elected on 12-5-1989 and who were permitted to continue with the administration of the Trust vide order of this Court dated 14-10-1991, one Dattu Sawwalakhe was removed on 13-11-1991, vide order passed under the provisions of Section 41D of the said Act, which was confirmed by the learned District Judge. Another Trustee Namdeorao Borade expired prior to filing of Application No. 335/1999. Another Trustee Marotrao Hole also expired during the pendency of the Trust Application. It is, thus, clear that four Trustees namely Ramkrishna Ganjiwale, Pandurang Dhomne, Krishna Ingle and Wasudeo Jalit were the only remaining Trustees when the Trustee, Krishna Ingle and Wasudeorao Jalid had themselves filed an Application No. 64/2000 urging the learned Assistant Charity Commissioner to frame a Scheme. The remaining two Trustees i.e. Ramkrishna Ganjiwale and Pandurang Dhomne filed their reply submitting therein that the Scheme was necessary in the interest of proper management or administration of the Trust. As a matter of fact, Ramkrishna Ganjiwale has himself filed an application for transposition as applicant No. 3 in the Application No. 335 of 1999. It can, thus, be seen that all the four surviving Trustees were before the learned Assistant Charity Commissioner and he has heard them before finding that it was necessary or expedient in the interest of proper management and administration of Trust to frame a Scheme.

30. As observed by the Apex Court in the case of Saiyad Mohammad Bakar El-Edroos (cited supra), the power under Section 50A of the said Act, enables the Charity Commissioner to initiate proceeding for settling the Scheme for proper management or administration of a Public Trust. The Apex Court, in the said case, held that the procedural law is always in aid of justice and that it is always subservient to the substantive law. The Apex Court finds that once the material is brought before the Charity Commissioner, he may on the basis of materials itself 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. In the present case, it can be found that the Trustees themselves were before the learned Assistant Charity Commissioner urging him to frame a Scheme in the interest of proper management or administration of the Trust. Though when the Charity Commissioner initiates proceedings suo motu, it would be necessary for him to come at a subjective satisfaction that there are reasons to believe that in the interest of proper management or administration of the Public Trust, a Scheme should be settled and that this subjective satisfaction has to be supported by the material on record and it would be necessary to give an opportunity to the Trustees to show cause as to why a Scheme should not be framed, in my view, said requirement would not be necessary in the facts of the present case. Herein, the Trustees/persons interested had approached the learned Assistant Charity Commissioner urging him to frame a Scheme, placing before him the material to point out that it was necessary to frame a Scheme in the interest of proper management or administration of the Trust. I find that only because the learned Assistant Charity Commissioner has said that the applications were not tenable and proceeded suo motu, it would not be necessary to give a fresh notice to the Trustees pointing out as to what was the material before him for arriving at a subjective satisfaction, that he had reason to believe that it was necessary in the interest of the proper management and administration of the Trust to frame a Scheme. In the present case, some of the Trustees/persons interested have themselves approached the learned Assistant Charity Commissioner and rest of the trustees had supported the request for framing of the Scheme. As observed the Apex Court in the aforesaid case of Saiyad Mohammad Bakar Ei-Edroos (cited supra), the procedural requirement is always subservient to the substantive law. In the facts of the present case, the Trustees were already heard and no fruitful purpose would have been served by again issuing notices to the Trustees. Even otherwise, I have already held that the findings of the learned Assistant Charity Commissioner that the Trust Application No. 64/2000 was not maintainable, is not correct in law.

31. Insofar as the contention of the learned counsel Shri Gordey that only when the Instrument of trust has failed and that even after amending or modifying the Scheme, proper management or administration of the Trust would not be possible, then only the resort can be had to Section 50A of the said Act and that the mis-management of the trust cannot be a ground for invoking the powers under Section 50A of B.P.T. Act, is concerned, I am unable to agree with the said contention. Though the learned counsel has rightly relied on the judgment of the learned single Judge of this Court in the case of Mallikarjun (cited supra), with due respect, I am unable to agree with the view taken therein. The powers of the learned Charity Commissioner under Section 50A(1) of the Act are wide enough. Sub-section (1) of Section 50A of the said Act begins with the words "Notwithstanding anything contained in Section 50". It is, thus, clear that the powers of the Charity Commissioner under Sub-section (1) of Section 50A of the said Act are in addition to the other powers prescribed in the statute. Under the Act, Charity Commissioner has been given wide powers. However, the powers under Section 50A of the said Act, are in addition to the powers given to him under the other provisions. In my view, if the Charity Commissioner comes to a subjective satisfaction that it is necessary or expedient to settle a Scheme in the interest of proper management or administration of a Public Trust, he is empowered to exercise the powers under Sub-section (1) of Section 50A of the said Act. In my view, to put a restriction on the powers of the Charity Commissioner to the effect that unless other provisions are exhausted and only when the earlier Scheme has failed or even after amending it, proper management is not possible, then only power under Sub-section (1) of Section 50A of the said Act can be exercised, would defeat the purpose of the statute. The power under Sub-section (1) of Section 50A of the said Act are overriding and wide enough and wherever the Charity Commissioner finds, on the basis of the material placed before him, that it is necessary or expedient in the interest of proper management or administration of the Trust, he may or may not exercise the powers under Section 50A(1) of the said Act for settling the Scheme. But the contention that only when all other powers are exhausted then only recourse to Sub-section (1) of Section 50A of the said Act could be taken, in my view, will have to be rejected. I find support from the observations of the Apex Court in the case of Saiyad Mohammad Bakar El-Edroos (cited supra). Though the reliance placed by the learned counsel on the judgment of this Court in the case of Mallikarjun (cited supra) is well placed, I am unable to persuade myself to accept the said view, in view of the observations of the Apex Court in the case of Saiyad Mohammad Bakar El-Edroos (cited supra).

32. Insofar as the next contention of the learned counsel for the respondents that there was no material before the learned Assistant Charity Commissioner for arriving at the subjective satisfaction that it was necessary or expedient in the interest of proper management or administration of the Public Trust to settle a Scheme, is concerned, the said submission also, in my view, is misplaced. Some of the factors that weighed with the learned Assistant Charity Commissioner in arriving at subjective satisfaction that it was necessary or expedient in the interest of proper management or administration of the Trust to settle a Scheme, are as under :

(1) There was a long standing dispute between two rival groups claiming the management of the Trust, leading to various litigations,

(2) 41D proceedings initiated against various trustees,

(3) the requirement of the Trust that there should be minimum 7 members, is frustrated as a matter of fact, only 5 members remained, mismanagement of the Trust,

(4) not auditing the accounts for number of years. Though the material to arrive at such a subjective satisfaction would differs from a case to case and there cannot be any straight jacket formula for deciding as to what material should be sufficient or not sufficient for coming to a subjective satisfaction as required under Section 50A(1) of the said Act, the very fact that the Trustees are litigating since 1983, leading to various proceedings before the Charity Commissioner, before the District Judge and before this Court, including the contempt proceedings, in my view, would be one of the relevant factors for arriving at a subjective satisfaction that it was necessary or expedient in the interest of proper management or administration of the Trust to settle a Scheme. I am, therefore, unable to agree with the contention of the learned counsel for the respondents that there was no material at all to come to a subjective satisfaction that it was necessary or expedient in the interest of proper management or administration of the Trust, to settle a Scheme.

33. Insofar as the contention of Shri Gordey, the learned counsel for the respondents, that under the provisions of Sub-section (1) of Section 50A of the said Act, it is also necessary to hear the trustees on the proposed Scheme, is concerned, in my view, the said contention is not well founded. In support of his submission, Shri Gordey has placed reliance on provisions of Sub-section (3) of Section 50A of the said Act. Sub-section (3) of Section 50A of the said Act reads thus :

(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)."

It can, thus, be seen that Sub-section (1) of said section deals with framing of the Scheme for the proper management or administration of a public trust and that such a right of hearing which is given to the trustees is only limited to find out as to whether it is necessary in the interest of proper management or administration of a public trust to settle the Scheme. However, if the power under Sub-section (3) is subsequent to powers under Sub-section (1) or Sub-section (2). Said sub-sections deal with modifying the Scheme already framed by the Charity Commissioner under Sub-section (1) or Sub-section (2). It is, thus, clear that only when Scheme which is already framed under Sub-section (1) or Sub-section (2) is sought to be modified, in that event alone, the Trustees have right of hearing.

34. Coming to the reliance placed by the learned counsel for the respondents on the judgment of the learned single Judge of this Court in the case of Taker Alimohohamad Poonawala (cited supra), in support of the proposition that before initiating action under Sub-section (1) of Section 50A of the said Act, it was necessary for the Assistant Charity Commissioner to arrive at a subjective satisfaction, that he has reasons to believe to take action as contemplated under said sub-section, I am of the view that said judgment is not applicable to the facts of the present case, I have already observed earlier that there are two eventualities in which the powers under Sub-section (1) of Section 50A of the said Act can be invoked. Firstly, when the Charity Commissioner, suo motu, in the interest of proper management or administration of a Public Trust, has reasons to believe that a Scheme should be settled. Secondly, when 2 or more persons having interest in the Public Trust make an application to him that in the interest of the proper management or administration of a Public Trust a Scheme should be settled. The plain reading of the section would reveal that, Charity Commissioner is required to come to a subjective satisfaction that he has reason to believe to take action as contemplated under Section 50A(1) of the said Act, when the proceedings are initiated suo motu by him. However, the reading of the section would show that when the proceedings are set in motion on an application made by 2 or more persons interested, the machinery is set in motion on the application made by such persons and in that eventuality, it will not be necessary for the Charity Commissioner to arrive at a subjective satisfaction that he has reason to believe to take action as contemplated under the said sub-section. In the first eventuality, the machinery is set in motion suo motu by the Charity Commissioner and, therefore, it is necessary that before proceeding further, he must come to a subjective satisfaction that there are reasons to believe for doing so. Shri Gordey is right in canvassing that before arriving at such a subjective satisfaction, there should be some cogent and relevant material which enables him to prima facie come to a conclusion that it is necessary to proceed further as contemplated under Sub-section (1) of Section 50A of the said Act. However, in the second eventuality, the machinery is set in motion on the application of 2 or more interested persons and material is placed in the nature of the application. I find that in such an eventuality, it would not be necessary for the Charity Commissioner to record as to what are the reasons to believe that it was necessary in the interest of proper management and administration of a public trust to settle a Scheme. I, therefore, find that in the facts of the present case, the judgment in the case of Taker Alimohohamad Poonawala (cited supra) would not be applicable.

35. In that view of the matter, the first question of law as to whether the Charity Commissioner, in exercise of jurisdiction under Section 50A(1) of the Bombay Public Trusts Act, is competent to suo motu settle a Scheme, if, upon considering all the material placed before it, he finds that it is necessary or expedient in the interest of proper management or administration of a public trust, to do so, is answered in the affirmative.

36. The second question as to whether it can be said that the Scheme has been framed without hearing the Trustees, when in the collateral proceedings by way of application for framing Scheme which were tried along with the proceeding for framing of the suo motu scheme, the Trustees were already heard in the applications filed by them, is answered in the negative.

37. Insofar as the third question is concerned, from the record, it is clear that before the First Managing Committee was appointed by the Assistant Charity Commissioner, no bio-data or consent of the proposed Trustees was obtained. Though Shri Khapre, the learned counsel for the appellants, has tried to urge that before the First Managing Committee was appointed, there were deliberation and discussions about the names of the proposed Trustees, there is nothing on record to substantiate the same. On the contrary, it is clear from the operative part of the order passed by the learned Assistant Charity Commissioner that after appointment of the First Managing Committee, he has called for the bio-datas and consents of the persons who have been proposed to be appointed as members of the First Managing Committee. It is needless to state that while appointing the members of the First Managing Committee, the paramount consideration that should weigh with the learned Assistant Charity Commissioner, is safeguarding the interest of the trust. For that, it was necessary to appoint fit persons with honesty and integrity. For that, it is necessary for the learned Charity Commissioner to have first obtained the bio-datas and consents and after examining the credentials of such persons, to have appointed the members of the First Managing Committee. However, I find that the course adopted by the learned Assistant Charity Commissioner in first appointing the members of the Committee and thereafter calling for their bio-datas and consents, is totally erroneous. In that view of the matter the third question as to whether the procedure adopted by the learned Assistant Charity Commissioner with respect to the appointment of the First Managing Committee, is in accordance with law, will have to be answered in the negative.

38. The appeal is, therefore, allowed. The judgment and order passed by the learned Additional District Judge in Trust Application Nos. 5 of 2002, 3 of 2003 and Regular Civil Appeal No. 133 of 2003, dated 28th July, 2004, is quashed and set aside. The judgment and order passed by the learned Assistant Charity Commissioner, Wardha, in Scheme Application No. 335/99, dated 31st August, 2002, to the extent that it frames the Scheme, is upheld. The order insofar as the appointment of the First Managing Committee is concerned, is quashed and set aside.

39. Since I have held that the course adopted by the learned Assistant Charity Commissioner in appointing the members of the First Managing Committee was not in accordance with law, I was inclined to remand the matter to the learned Assistant Charity Commissioner for appointment of the members of the First Managing Committee, with a direction to the learned Assistant Charity Commissioner to call for the bio-datas of the suitable persons along with their consent letters and appoint the First Managing Committee after examining the credentials. However, at this stage, all the learned counsel appearing for the parties, upon instructions from their clients, requested this Court that instead of remanding the matter to the Assistant Charity Commissioner this Court itself should appoint the members of the First Managing Committee by adopting the procedure as envisaged by this Court. The learned counsel state that if this Court appoints the members of the First Managing Committee, the litigation between the rival groups will come to an end and if the matter is remanded to the learned Assistant Charity Commissioner, it will again give rise to the further litigation, and thereby jeopardize the interest of the Trust. It is further agreed between the parties that the First Managing Committee should consists of total seven members. The rival group represented by Shri Khapre, Shri Choudhari and Shri Samarth, on one hand, and the group represented by Shri Gordey, Shri Deshpande and Shri Dharmadhikari, on the other hand, have suggested that three members from each group be appointed on the Committee and the seventh member should be an independent person appointed by this Court, after scrutinizing the bio-datas supplied by all the parties. The learned counsel further submit that the nominees suggested by the rival groups be appointed by this Court, only if, upon appreciation of the bio-datas produced, this Court finds that they are suitable to administer the Trust.

40. It is pertinent to note that the respondent No. 1 - Shri Krishnaji Ingale had also suggested some names to be nominated on the First Managing Committee. However, Shri Ingle, who is personally present in the Court, in the larger interest of the Trust, has graciously withdrawn his request and not pressed for nomination of any person.

41. Accordingly, the learned counsel have placed bio-datas along with consent letters on record. Same are taken on record. The matter be kept for further orders tomorrow.

42. The bio-datas of the proposed members, which were submitted on the last date by the counsel for the respective parties, have been examined by me.

(1) Dr. Kishor Ramchandra Appa Ganjiwale is a Medical Practitioner. He possesses B.A.M.S. degree and belongs to Ashti where the headquarters of the Trust is situated. He is involved in organizing various health camps. He has also engaged himself in mass education pertaining to prevention of Aids.

(2) Dr. Vijay Bapurao Kalambe is also a Medical Practitioner, possessing B.A.M.S. degree and practicing at Ashti. He is also associated with various institutions pertaining to Ayurvedic Education, Yoga Education. He is also connected with Legal Aid Committee at Ashti and also with various other cooperative and educational institutes. He has also conducted and organized various health camps.

(3) Dr. Arvind Govindrao Malpe is also Medical practitioner having M.B.B.S degree and is practicing at Ashti. He is also connected with various social and educational institutions. He is also associated with social upliftment of downtroddens. He is associated with the adult education programme as well as family planning programme. He is also associated with various workers' organizations.

(4) Shri Jawahar Motilalji Bhargava is the resident of Ashti. He possesses B.Com. qualification. He is also associated with the educational and social activities and is also associated with helping farmers in agricultural operations.

(5) Shri Ramesh Baburao Patil possesses qualification B.A., B.Ed. He is also associated with various social and education organizations. He is also associated with Vidarbha Shikshak Sangh and Karmachari Path Sanstha, Ashti. He was Teacher is Hutatma Rashtriya Vidyalaya, Ashti managed by the Trust.

(6) Shri Bharat Liladharji Wanghara has passed XI standard and is the resident of Ashti. He was member of the Gram Panchayat for considerable length of period and was also its Sarpanch. He was also Executive Member of Kharedi-Vikri Sangh and Agricultural Produce Market Committee. He is also associated with various other co-operative movements.

(7) Shri Vinayak Shriram Pare is possessing the qualifications M.Sc. and is Lecturer of Mathematics in Lahoti Vidnyan Mahavidyalaya, Morshi. He is also Member of Board of Studies in Mathematics of Amravati University and also Member of Local Managing Committee of the College.

43. The persons at Sr. No. (1) to (6) are belonging to Ashti which is the headquarters of the Trust and are related to the freedom fighters in whose memory the Trust has been established. Most of the aforesaid members are in the age group of 40 to 60 years and professionals. I, therefore, find that they are fit to safeguard the interest of the Trust till the regular Managing Committee is elected in accordance with the Scheme.

44. I, therefore, direct that the First Managing Committee shall consists of the following seven persons.

(1) Dr. Kishor Ramkrushna-appa Ganjiwale.

(2) Dr. Vijay Bapurao Kalambe.

(3) Dr. Arvind Govindrao Malpe.

(4) Shri. Jawahar Motilalji Bhargava.

(5) Shri. Ramesh Baburao Patil.

(6) Shri Bharat Liladharji Wanghara.

(7) Shri Vinayak Shriram Pare.

45. The said First Managing Committee is directed to meet for its first meeting on 10th July, 2005 at 12 noon at the headquarters of the Trust at Ashti, and elect the President, Secretary and Treasurer amongst themselves. Said meeting shall be presided over by Shri Vinayak Shriram Pare

46. The First Managing Committee shall complete the enrolment of members as per the Scheme within a period of three months from today.

47. The regular elections to the Managing Committee shall be completed by the First Managing Committee within a period of three months from the last date prescribed for enrolment of members.

48. Till the regularly elected Managing Committee is constituted, the First Managing Committee appointed hereinabove, shall exercise all the powers and duties necessary for smooth and proper administration of the Trust.