Bombay High Court
Danial Madhav Bhalerao And Ors vs In The Matter Of The Conference Of ... on 31 October, 2017
Bench: P.R. Bora
1 FA 2219-16
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO.2219 OF 2016
1. Danial Madhav Bhalerao,
Age: 76 years, Occ.Agriculture,
R/o. Old Poultry Farm
Mission Compound, Shrigonda,
District Ahmednagar
2. Jagannath Bandu Awle,
Age: 83 years, Occ.Retired,
R/o. Tilak Nagar, Chembur,
Mumbai.
3. Nitish Haribhau Waghmode,
Age: 61 years, Occ. Agriculture,
R/o. Opp. Chandravijay Housing
Society, T.C. College Road,
Baramati, Dist. Pune
4. Shirish Haribhau Waghmode,
Age: 65 years, Occ. Retired,
R/o. Taware Colony, Sahakar
Nagar, Swargate, Pune
5. Subhash S. Patil,
Age: 72 years, Occ. Retired,
R/o. Irrigation Colony,
At and post. Daund,
Dist. Pune
6. Stevan John Sathe,
Age: 45 years, Occ.Service,
R/o. 194-7479 Kannamwar Nagar,
Vikroli (East), Mumbai 400 079
::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:23 :::
2 FA 2219-16
7. Jayprakash Ratnakar Gaikwad,
Age: 67 years, Occ. Retired,
R/o. Christian Colony,
Behind Shahu High School,
Baramati, Dist. Pune 413 102
8. Vaibhav Vasant Pardhe,
Age: 41 years, Occ. Unemployed,
R/o. Christian Colony,
Behind Shahu High School,
Baramati, Dist. Pune 413 102
9. Harish Aba Satpute,
Age: 53 years, Occ. Service,
R/o. 100/101,
Bombay Christain Center,
Cheddanagar, Chembur,
Mumbai
10. Balkrishna Chaimaji Bhosale,
Age: 87 years, Occ. Retired,
R/o. Near Railway Bridge Nagar,
Mori, Nazareth Niwas,
at and Post. Daund,
Dist. Pune
...APPELLANTS
(Ori. R.Nos. 1 to 9 & 12)
VERSUS
1. In the matter of the Conference
of Churches of Chriest in
Western India PTR
No.179 (ANR)
2. Robert Vasant Gaikwad
Age: 56 years, Occ. Service & Agri.
R/o. Boys Home,
Mission Compound, Patas Road,
Baramati, Dist. Pune
::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:23 :::
3 FA 2219-16
3. Sujit Bahiru Jadhav,
Age: 50 years, Occ. Agri & Business,
R/o. Usha Building, Vasantnagar,
Baramati, Dist. Pune
4. Rajan David Patole,
Age: 70 years, Occ. Retired,
R/o. Usha Building, Vasantnagar,
Baramati, Dist. Pune
5. Smt. Anita Sadanand Vipat,
Age: 51 years, Occ. Household,
R/o. Mission Compound
Baramati, Dist. Pune
6. Shantwan Bhaskar Randive,
Age: 85 years, Occ. Retired,
R/o. Veal Colony, Baramati,
Dist. Pune
7. Bhaskar D. Kakde,
Age: 80 years, Occ. Retired,
R/o. Nagar Mori, Near Railway
Bridge, Shamla Niwas Daund
Dist. Pune
8. Pavlus D. Pawar,
Age: 41 years, Occ. Business,
R/o. P.O. Bhangaon, Tq. Shrigonda,
Dist. Ahmednagar
9. Kanak Yallappa Waghmare,
Age: 76 years, Occ. Retired,
R/o. Mission Compound,
Shrigonda, Dist. Ahmednagar
10. Bapurao G. Gowandi,
Age: 76 years, Occ. Retired,
R/o. Christian Colony,
Baramati, Dist. Pune (Ori. Applicants)
::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:23 :::
4 FA 2219-16
11. Shankar Sahebrao Thawre,
Age: 51 years, Occ. Service,
R/o. 2130, V.P. Street,
Flat No.102, Thakkars Apartment
Pune 411 002
12. Shamwel Jaywat Mantode,
Age: 70 years, Occ. Retired,
R/o.100/101, Bombay Christain Center,
Cheddanagar, Chembur,
Mumbai
13. The Charity Commissioner
of State of Maharashtra
Mumbai, notice to be served on
Assistant Charity Commissioner,
Ganeshwadi, Swastik Chowk
Pune Road, Ahmednagar
...RESPONDENTS
(Ori.Resp. Nos.
10,11 and 13)
...
Shri. V.D. Hon, Senior Advocate for appellants;
Shri. S.K. Shinde, Advocate for resp. nos. 1 & 2.
Shri. A.B. Gatne, Advocate for respondent no.3.
...
CORAM: P.R. BORA, J.
***
Date of reserving the judgment:13/10/2017
Date of pronouncing the judgment: 31/10/2017
***
::: Uploaded on - 31/10/2017 ::: Downloaded on - 01/11/2017 01:53:23 :::
5 FA 2219-16
JUDGMENT:
1. The judgment rendered by the District Judge-
IV, Ahmednagar, on 3rd of January, 2013, in Trust
Application No.1/2011, is challenged in the present appeal
by the original opponent Nos. 1 to 9 and 12.
2. The present respondent nos. 1 to 10 had filed
the aforesaid Trust Application under Section 72(1) of the
Bombay Public Trusts Act, 1950 ( hereinafter referred to as
the `Trust Act', taking exception to the judgment and
order passed by the Assistant Charity Commissioner,
Ahmednagar, in Scheme Application No.13/2001, decided
on 4th of May, 2011.
3. The present appellant no.4, namely, Shirish
Haribhau Waghmode and applicant no.10 Balkrishna
Chimaji Bhosale had filed the Scheme Application
No.13/2001 before the Assistant Charity Commissioner,
Ahmednagar Region, Ahmednagar, for framing of a
Scheme under Section 50-A(1) of the Bombay Public
Trusts Act, 1950, for efficient management of the trust
6 FA 2219-16
known as the Conference of Churches of Christ in Western
India having PTR No.F.179 (Ahmednagar). Previously,
Scheme Application No.21/1997 was filed by the present
appellant no.3, namely, Nitish Waghmode and one
Dayanand Govindrao Bansode for framing of the scheme
for the aforesaid trust. Both the aforesaid applications
were placed before the Maha Lok Adalat held on 6th of
February, 2011, for amicable settlement, however, since
one of the applicant, namely, Dayanand Govindrao
Bansode remained absent before the panel of Maha Lok
Adalat, compromise could not take place and both the
Scheme Applications were remitted back for their disposal
in accordance with law before the Court wherein they were
pending for adjudication. Subsequently, Scheme
Application No.21/1997 was withdrawn by the applicants
therein and the hearing took place only in respect of
Scheme Application No.13/2001.
4. In Scheme Application No.13/2001, it was the
contention of the applicants therein that though the trust
was having its own rules and regulations, they were not
sufficient for proper administration of the trust. It was
7 FA 2219-16
the further contention of the applicants that various
change reports were pending before the Assistant Charity
Commissioner in respect of change in trustees because of
which the trust activities were slowed down. The
applicants had, therefore, prayed for framing of an
exhaustive scheme for better management of the said
trust. The learned Assistant Charity Commissioner vide
the order passed on 4th of May, 2011, allowed the said
application and settled the scheme annexed to the said
order as Annexure A for the management of the trust.
The Assistant Charity Commissioner, after framing of the
said scheme, appointed the first Board of Trustees for a
period of five years i.e. from 4.5.2011 to 3.5.2016.
5. The order passed by the learned Assistant
Charity Commissioner was assailed before the District
Court at Ahmednagar vide Trust Application No.1/2011 by
the present respondent nos. 1 to 10. It was the
contention in the said application that when the Scheme
for administration of trust was already in existence, there
was no necessity of framing any new scheme. It was the
8 FA 2219-16
further contention that no opportunity of hearing was
given to the members of the Committee of Management
( COM) before settling the scheme vide order passed on
4.5.2011. The order passed by the Assistant Charity
Commissioner was also criticized on the ground of non
application of mind by the learned Assistant Charity
Commissioner. According to the said applicants, in view
of the provisions under Section 50-A(1) of the Trusts Act,
it was mandatory for the learned Assistant Charity
Commissioner to give opportunity of hearing to the
existing trustees / or the members of the Committee of
management before settling the new Scheme. The
application before the District Judge was contested by the
present appellants. The learned District Judge, vide
impugned judgment and order set aside the order passed
by the learned Assistant Charity Commissioner on
4.5.2011, and consequently, set aside the Scheme
(Annexure A) appended to the order passed by the learned
Assistant Charity Commissioner. Aggrieved thereby, the
appellants have filed the present appeal.
6. Shri V.D.Hon, learned Senior Counsel appearing
9 FA 2219-16
for the appellants, assailed the impugned judgment and
order on various grounds. The learned Senior Counsel
submitted that due opportunity was given to all concerned
by the learned Assistant Charity Commissioner before
settling the Scheme. The learned Counsel submitted that
since 1983, no audit was conducted of the subject trust
and no change reports were filed in respect of the changes
occurred in the management of the trust.The learned
Senior Counsel further submitted that,one Robert Gaikwad
had sold the properties of the trust without following due
procedure of law and without obtaining prior permission
for the same from the office of the Charity Commissioner.
The learned Senior Counsel further submitted that both
the parties in Scheme Application Nos.21/1997 and
13/2011 had jointly prayed for keeping the matter before
the Maha Lok Adalat scheduled to be held on 6th February,
2011,however, on some technical ground, the compromise
could not be recorded. The learned Senior Counsel further
submitted that, however, the material on record would
reveal that there was consensus amongst the parties for
framing of a new exhaustive scheme for proper and better
administration of the subject trust. The learned Senior
10 FA 2219-16
Counsel submitted that the learned Assistant Charity
Commissioner had rightly allowed the scheme application
and no interference was required in the scheme so framed
by the learned Assistant Charity Commissioner. The
learned Senior Counsel submitted that there was no proper
application of the trust money and the properties of the
trust were also not being properly looked after and, in
such circumstances, it was the need of time to frame
proper scheme for effective and better administration of
the trust and the activities of the trust.
7. The learned Senior Counsel further submitted
that the opponents have not explained as to what
prejudice is caused to them because of the scheme framed
by the Assistant Charity Commissioner. In such
circumstances, according to the learned Senior Counsel,
there was no reason for causing any interference in the
order passed by the Assistant Charity Commissioner and
the scheme accordingly framed by him under Section
50A(1) of the Trust Act.
8. Shri A.B.Gatne, the learned Counsel appearing
11 FA 2219-16
for respondent no.3 and Shri S.K.Shinde, learned Counsel
appearing for respondent nos. 1 and 2, supported the
impugned judgment and order. The learned Counsel
submitted that without recording a finding that framing of
scheme was needed for the administration of the subject
trust, the Assistant Charity Commissioner has framed the
Scheme. Shri A.B.Gatne, learned Counsel, appearing
for respondent no.3, taking me through the constitution of
the trust, submitted that an exhaustive scheme was
already in existence for management of the trust activities
and the trust property. In such circumstances, according
to the learned Counsel, framing of new scheme was not at
all required.
9. The learned Counsel further submitted that the
learned Assistant Charity Commissioner did not give the
due opportunity to the existing trustees to put forth their
contentions in regard to the request made by the
applicants for framing of the scheme for administration of
the subject trust. The learned Counsel further submitted
that giving of such an opportunity was mandatory in view
of the provisions under Section 50A(1) of the Trust Act.
12 FA 2219-16
The learned Counsel submitted that on this count alone the
order passed by the learned Assistant Charity
Commissioner was liable to be set aside.
10. The learned Counsel further submitted that the
subject trust was formed in the year 1923 and since then
was efficiently carrying out its activities. The learned
Counsel further submitted that after the subject trust was
registered under the provisions of the Trust Act, after the
Trust Act was enacted in the year 1950, till 1996, the
subject trust was being governed by the Rules and
Regulations framed under the provisions of the Societies
Registration Act and was successfully carrying out its
activities on the basis of the existing constitution. The
learned Counsel further submitted that necessary
changes / amendments were incorporated time to time for
better management and smooth working of the trust. In
such circumstances, according to the learned Counsel
there was absolutely no reason for substituting the
existing constitution with a new scheme as suggested by
the opponents in the Scheme Application No.13/2001.
13 FA 2219-16
11. The learned Counsel further submitted that in
the Scheme Application there was no such allegation of the
applicants that the properties of the trust are being
mismanaged by the existing trustees. The learned
Counsel further submitted that the allegation made by the
applicants that no audit has been conducted of the trust
since 1983 is also incorrect. The learned Counsel further
submitted that there is also no substance in the allegation
raised against Shri Robert Gaikwad that he sold the
properties of the trust without obtaining prior permission
of the Charity Commissioner.
12. Learned Counsel further submitted that the
learned Assistant Charity Commissioner, without verifying
the record, merely on assumption that the parties to the
Claim Application Nos. 21/1997 and 13/2001, jointly want
that the scheme shall be framed, has allowed Scheme
Application No.13/2001 and has accepted the scheme
submitted by the applicants therein with some
modifications. The learned Counsel submitted that the
learned Assistant Charity Commissioner failed in
appreciating that the existing trustees were not made
14 FA 2219-16
party to the aforesaid applications and without hearing the
existing trustees, the new scheme could not have been
framed under Section 50A(1) of the Trust Act.
13. The learned Counsel further submitted that the
learned Assistant Charity Commissioner failed in
appreciating that it was an attempt of the applicants of
Scheme Application No.13/2001 to get the backdoor entry
as the trustees of the subject trust by filing the said
Scheme Application. The learned Counsel further
submitted that the learned Assistant Charity Commissioner
was not having any power to remove the existing trustees
before they complete the tenure of their office and to
appoint the new trustees in their place.
14. The learned Counsel submitted that for all the
aforesaid reasons, the learned District Judge has rightly
set aside the order passed by the learned Assistant Charity
Commissioner and has also rightly set aside the scheme
framed by the Assistant Charity Commissioner appended
to the order as Annexure A. The learned Counsel
submitted that no interference is warranted in the
15 FA 2219-16
impugned judgment and order. The learned Counsel,
therefore, prayed for dismissal of the appeal.
15. After having heard the learned Counsel
appearing for the parties and on perusal of the impugned
judgment and other material on record, a question which
falls for my consideration is whether the learned District
Judge has committed any error in setting aside the scheme
framed by the learned Assistant Charity Commissioner in
Scheme Application No.13/2001. Perusal of the impugned
judgment reveals that the learned District Judge has set
aside the order passed and the scheme framed by the
learned Assistant Charity Commissioner mainly on two
grounds; first that before framing the Scheme, the
Assistant Charity Commissioner did not give due
opportunity of hearing to the existing trustees of the
subject trust and the other that without recording any
reason, necessitating framing of the scheme, the same has
been framed by the Assistant Charity Commissioner.
16. Section 50-A of the Trust Act empowers the
Charity Commissioner to frame, amalgamate or modify the
16 FA 2219-16
Schemes. Sub-clause (1) of it reads thus:
"50A. Power of Charity Commissioner to frame,
amalgamate or modify schemes:
(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 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."
Reading of the aforesaid provision makes it clear that the
Charity Commissioner may, suo motu, frame a scheme for
administration of the public trusts, if he has reason to
believe that in the interest of proper management or
administration of the public trusts, a scheme should be
settled. Such a scheme can also be settled if two or
more persons having interest in the public trust make an
application in that regard in the prescribed manner.
However, while framing a scheme on such an application
being made, the Charity Commissioner is expected to give
due opportunity of hearing to the trustees of the said trust
17 FA 2219-16
and, secondly, the Charity Commissioner must record his
satisfaction that it is necessary or expedient to frame a
scheme for management or administration of the public
trust.
17. While deciding Scheme Application No.13/2001,
the learned Assistant Charity Commissioner had, therefore,
framed an issue whether it is expedient to frame a scheme
and had answered the said issue in affirmative. I deem it
appropriate to reproduce hereinbelow the discussion made
by the learned Assistant Charity Commissioner in
paragraph no.9 of his order in regard to the said point no.2
which reads thus:
"9. As the opponents have consented for the
present scheme application then, the foremost important
question which needs to be considered is whether it is
expedient and necessary to settle a scheme for the trust
in question. It is settled law that, for better
administration or management of the trust, there must be
a scheme framed. As already discussed above, in the
interest of the trust, compromise took place between both
the parties hence : I hold that it is expedient and
necessary to settle a scheme for the trust for its better
administration or management. Accordingly, this point
is answered in affirmative. "
From the discussion made as above by the learned
18 FA 2219-16
Assistant Charity Commissioner, it is quite clear that the
Assistant Charity Commissioner did not independently
apply his mind to reach to the conclusion whether it was
really necessary to frame a scheme. It is discernible that
the conclusion so recorded by the Assistant Charity
Commissioner is based on an assumption that there was a
compromise between the applicants of the said application
and the opponents therein for framing of the scheme.
18. Such an approach adopted by the Assistant
Charity Commissioner was wholly erroneous. What is
required under the relevant statute is the objective
satisfaction of the Charity Commissioner that it is
necessary or expedient to frame a scheme for
management or administration of a public trust. The
parties to the application may agree or disagree on the
issue of framing a scheme and there may be several
reasons for such agreement or disagreement but the
Assistant Charity Commissioner was under an obligation to
independently record his reasons for reaching to the
conclusion that it was necessary to frame a scheme for
management or administration of the subject public trust.
19 FA 2219-16
The learned Assistant Charity Commissioner has not
recorded any such reasons. This was one of the reason for
the learned District Judge to set aside the order passed by
the learned Assistant Charity Commissioner in Scheme
Application No.13/2001. I do not see any infirmity in
recording such conclusion by the learned District Judge.
19. As noted hereinabove, another ground on
which the order passed by the learned Assistant Charity
Commissioner has been set aside by the learned District
Judge is that the Assistant Charity Commissioner did not
give due opportunity of hearing to the existing trustees of
the subject trust before framing the new scheme. The
material on record reveals that present applicant nos. 2 to
10 are the members of the Committee of Management of
the subject trust. In Scheme Application No.13/2001,
admittedly, most of them were not made party and,
obviously therefore, they were not heard by the learned
Assistant Charity Commissioner before framing the
scheme. In view of the provision under Section 50A(1) of
the trust Act, it was incumbent on the part of the learned
Assistant Charity Commissioner to give notice to the
20 FA 2219-16
existing trustees before framing any such scheme and due
opportunity must have been given to the said trustees to
make their submissions on the request made by the
applicants to frame a scheme for administration of the
subject trust.
20. As has been held by this Court in the case of
Taher Alimohommad Poonawala Vs. Quizar Shaikh
Nomanbhoy and others (1995 (1) Bom.C.R. 1984),
issuance of notice to the existing trustees of the trust
before framing of the scheme and providing them an
opportunity of hearing is not an empty formality. As
further held in the aforesaid judgment, such an
opportunity must be reasonable, effective and real. In
view of the fact that such an opportunity was not given to
the majority of the existing trustees, the learned District
Judge has held the order passed by the learned Assistant
Charity Commissioner to be unsustainable. I see no
reason to disagree with the conclusion so recorded by the
learned District Judge.
21. Similar points as are involved in the present
21 FA 2219-16
appeal were raised in the case of Vasantrao
Vishwanathrao Mane and others Vs. Apparao Baibanna
Sidore and others ( 2008(2) Bom.C.R. 662, and while
deciding the said controversy, this Court ( V.R.Kingaonkar,
J.) has observed thus:
"28. There cannot be duality of opinion that the Charity
Commissioner may exercise power available under
Section 50A in appropriate case where, he is of opinion
that in the interest of proper management or
administration of a public trust, such scheme should be
settled. He may act suo motu or may act upon application
filed by two or more persons, who have interest in the
public trust. A plain reading of Section 50A (1) reveals
that after giving the trustees due opportunity to be heard,
the Charity Commissioner must be satisfied that it is
necessary or expedient to frame a scheme for the
management or administration of such trust. Thus, the
criteria, which is required to be complied with, before a
new scheme is framed, maybe stated thus :
(a) That, there must be some material available,
which if considered objectively, would furnish the
Charity Commissioner to reach conclusion that there
exists reason to believe that in the interest of the
proper management or administration of a public
trust, a scheme should be settled;
(b) That, the Charity Commissioner is required to
give the trustees of such trust due opportunity to be
heard;
(c) That, he ought to record his satisfaction, on
strength of material available before him, that it is
necessary or expedient to frame a scheme for the
proper management or administration of such a
trust; and
22 FA 2219-16
(d) That, his opinion regarding necessity of the
scheme ought to be supported by written reasons.
29. Obviously, the discretionary power conferred under
the B.P.T. Act is required to be exercised in a special
contingency. The words "necessary" and "expedient"
would mean existence of a situation occasioned, which
makes it necessary or indispensable to frame a new
scheme, if already there exists a scheme, to ensure
proper administration of such a trust. In "Dr.R.P.Kapoor
vs. Charity Commissioner" (AIR 1989 SC 274), the
expression "expedient" and "necessary" is succinctly
made clear. It is held that recourse cannot be had to
Section 50A for the mere purpose of filling any of the
vacancies of trustees. In such a case, resort can be had to
Section 41D and 47 rather than Section 50A. Therefore, a
new scheme cannot be framed only on the ground that
the trustees were not managing the trust properly. This is
what appears to have occurred in the instant case. The
members of the Managing Committee of the trust were
removed. Therefore, the Assistant Charity Commissioner
decided to frame the new scheme without ascribing
adequate reasons. It is difficult to see as to how he
formed opinion that "it was expedient and necessary" to
frame a new scheme for better management of the trust
in question. The 1st Ad-hoc Additional District Judge also
did not properly appreciate the said requirements of law."
22. The order passed by the learned Assistant
Charity Commissioner in Scheme Application No.13/2001,
in no case, would sustain in the light of the observations
made and the conclusions recorded by this Court in the
aforesaid judgment. The order passed by the learned
Assistant Charity Commissioner, nowhere, reveal as to
what was the material available and was considered by it
to reach to the conclusion that there exists reasons to
23 FA 2219-16
believe that in the interest of proper management or
administration of the subject trust, it was necessary to
settle the scheme. On going through the order passed by
the learned Assistant Charity Commissioner one can hardly
see any specific reason for framing of a new scheme.
23. As noted earlier, the Assistant Charity
Commissioner has vaguely observed in paragraph no.9 of
his order that since the compromise had arrived at
between the parties, it is expedient and necessary to settle
the scheme for its better administration or management.
The order passed by the learned Assistant Charity
Commissioner does not show which of the present needs
of the trust are not taken care of by the existing scheme
and which were the inadequacies that did not match with
the present needs of the trust. No such particulars are
given by the Assistant Charity Commissioner in his order.
There is no discussion of reasons to justify the framing of a
new scheme. The mere fact that the parties to the said
Scheme Application had arrived at compromise, cannot be
regarded as substantial reason to prepare the new
scheme. Moreover, as has been pointed out by the
24 FA 2219-16
learned Counsel Shri A.B.Gatne, it also cannot be certainly
said that any compromise was arrived at between the
parties. The material on record shows that some of the
signatoriies to the alleged compromise have complained
that their signatures were forged and they had not signed
the said compromise. In the aforesaid circumstances, the
learned District Judge was fully justified in setting aside
the scheme framed by the learned Assistant Charity
Commissioner.
24. The order passed by the learned Assistant
Charity Commissioner was liable to be set aside for one
more reason that he exceeded his powers in appointing
completely new managing committee as per his will. As
has been held by this Court in the case of Vasantrao
Vishwanathrao Mane and others Vs. Apparao Baibanna
Sidore and others (cited supra), if the existing scheme
does not include a clause empowering the appointment of
the trustees by the Charity Commissioner, no such
appointments can be made by the Assistant Charity
Commissioner on his own. As has been further observed
by this Court in the said judgment, the Assistant Charity
25 FA 2219-16
Commissioner cannot accelerate, assist and encourage the
denting process by depriving the members of the trust
from their right to elect their own panel of managing
committee and make appointment of a completely new
managing committee as per his sweet will. The
Assistant Charity Commissioner cannot usurp powers
which are not expressly available under Section 50-A of
the Trust Act. It was rightly submitted by Shri Gatne,
learned Counsel for the respondents that the Assistant
Charity Commissioner illegally removed the existing
trustees by allowing the Scheme Application No.13/2001
and consequently gave backdoor entry to the applicants of
the said application to become the members of the
committee of management.
25. It is not in dispute that there exists Rules and
Regulations of the Conference of Churches of Christ in
Western India i.e. the subject trust. No doubt, the said
Rules and Regulations are framed under Section 12 of the
Societies Registration Act. However, it is also a matter of
record that the said Rules continued to govern the
management of the subject trust even after the Trust Act
26 FA 2219-16
was enacted in the year 1950 and there was no complaint
at least till the year 1996 that the existing Rules and
Regulations are insufficient and inadequate to safeguard
the interests of the subject trust. It was also not the case
of the applicants that the interests of the trust cannot be
safeguarded by the existing Rules and Regulations even by
making variations, alterations and amendment in the same
and hence the existing rules and regulations were liable to
be substituted with a entire new scheme.
26. Further, as was submitted by Shri Gatne,
learned Counsel appearing for the contesting the
respondents, no specific instances were brought on
record to show that the existing trustees i.e. the members
of the Committee of Management neglected in performing
their duties or committed any malfeasance or misfeasance
or breach of the trust in respect of the trust. No such
case was also made out by the applicants that the existing
Rules and Regulations were inadequate for proper
management of the subject trust. Non filing of Change
Reports or pendency of Change Reports or not conducting
the Audit may provide a cause of action for an action
27 FA 2219-16
under the relevant provision of the Trust Act but the same
cannot be a ground for a prayer to settle a New Scheme.
In the circumstances, as held by this Court in the case of
Mallikarjun Basvanappa Masute & another vs. Dattatraya
Krushnath Wadane and others ( 2005 (4) Bom.C.R. 806),
there was no reason for the Assistant Charity
Commissioner to frame an entire new Scheme.
27. This Court, in the aforesaid matter, has
observed that the powers under Section 50-A of the Trust
Act ordinarily cannot be exercised to frame a new scheme
and substitute the same for the existing one. Such an
exercise would be in a very exceptional circumstances and
only upon arriving at a conclusion that the existing scheme
proves to be inadequate to safeguard the interests of the
public trust and cannot operate in the interest of trust
even by making variations, alterations and amendments
therein. As further held by this Court in the said
judgment, a finding that settlement of a scheme for proper
management of the public trust is necessary or expedient
without finding inadequacies in the existing scheme would
be illogical and, therefore, unsustainable.
28 FA 2219-16
28. In the foregoing circumstances and for the
reasons discussed hereinabove, I do not see any reason
for causing any interference in the order passed by the
learned District Judge. I reiterate that since the Assistant
Charity Commissioner has not recorded any reason for
arriving at conclusion that it is necessary or expedient to
settle a scheme for proper management of the trust and as
because no opportunity of hearing was given to the
existing trustees before settling the scheme, the order
passed by the learned Assistant Charity Commissioner
was liable to be set aside and has been rightly set aside by
the District Judge.
29. It has to be further stated that while setting
aside the order passed by the Assistant Charity
Commissioner, the learned District Judge has sufficiently
safeguarded the interest of the trust and has kept the legal
options open of making needed amendments in the
existing constitution of the trust by issuing necessary
further directions. The learned District Judge has issued
the directions to the present members of the managing
29 FA 2219-16
committee to call the meeting and collect views of the
trustees about the constitution adopted under the
provisions of Section 12 of the Societies Registration Act,
1816, as afresh and to take the decision by passing a
resolution in that regard whether there is any need to
submit an application for replacing the constitution by a
new scheme to meet the new challenges of the subject
trust.
The First Appeal (No.2219/2016) being devoid of
substance deserves to be dismissed and is accordingly
dismissed, however, without any order as to the costs.
(P.R.BORA)
JUDGE
...
AGP/2219-16fa
