1. This is an appeal on behalf of the Charity Commissioner against the order dated December 17, 1965, made by Mr. Judge Zambre directing that clauses 7 and 8 of the scheme framed by the Charity Commissioner be dropped and consequential modifications be made in the scheme.
2.Mr. Naik for the Charity Commissioner has submitted that the finding made by the learned Judge that having regard to the scheme in Sections 47 and 47-AA the power vested in the Charity Commissioner under Section 50-A of the Bombay Public Trusts Act, 1950, to frame a scheme does not include power to appoint trustees, is contrary to the intent of the provisions in Section 50-A and not sustainable. The observation of the learned Judge that a scheme framed in respect of a public trust under Section 50-A by the Charity Commissioner would be a set of rules for guidance of the trustees and may provide for number of the trustees and the mode of appointment of trustees and vesting of the trust properties in trustees so appointed and such similar matters but does not empower the Charity Commissioner to appoint trustees of the scheme is not warranted and is contrary to the scheme of the Act.
3. Mr. Chitale for the respondent I has with some emphasis submitted that the learned Judge's findings are based on the scheme of the Act and the provisions in the above Sections 47 and 47-AA and the findings made by the learned Judge should accordingly be confirmed. (Mr. Chitale further attempted to argue that in so far as the learned Judge confirmed the scheme framed by the Charity Commissioner, the findings of the learned Judge were not correct. In his submission, the facts of the case did not disclose any necessity or expediency of framing of a scheme. The framing of the scheme was not in the interest of the trust in question and the learned Judge should have accordingly set aside the scheme framed by the Charity Commissioner. Now, this second and / or the last contention must be negatived on the simple ground that an appeal has not been filed on behalf of the 1st respondent against the findings made by the learned Judge that the scheme has been properly framed by the Charity Commissioner and he had jurisdiction to frame the same. The second contention accordingly is negatived).
4. As regards the rival contentions made on behalf of the parties on the question of the power of the Charity Commissioner to appoint trustees in the scheme framed by him, the following requires to be noticed :-
5. Under clause (11) of Section 69, being the section relating to duties, functions and powers of the Charity Commissioner, it is specifically provided that the Charity Commissioner has the power to frame or modify scheme under Section 50-A. This Section 50-A and the above clause (11) and Section 47-A have been added to the original Act by amendments made by Bombay Act VI of 1960. Section 50 has reproduced the scheme of Section 92 of the Code of Civil Procedure with certain nominal alterations and inter alia provides for the relief of settlement variations and / or alterations and in a scheme and inter alia, for removal of a trustee, appointment of a new trustee, vesting of property in a trustee and certain other reliefs could also be claimed. By the amended Section 50-A inserted in the Act in 1960, it was provided as follows :-
'50-A (1) Notwithstanding anything contained in Section 50, where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, x x x x x, the Charity Commissioner may, if, x x x x, he is satisfied that it is necessary or expedient so to do. frame a scheme for the management or administration of such public trust x x x x x x x'. The sub-section (4) provided that the scheme framed shall, subject to the decision of the competent Court under Section 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under Section 50. As is stated in the opening part of the Section 50-A, the provisions in this section are notwithstanding anything contained in Section 50. In other words, alternative independent power of framing of the scheme has been created in favour of the Charity Commissioner. This power, prima facie, must be parallel and similar in all respects to the power of the Court to frame a scheme in a suit instituted under Section 50.
Now, apart from the contents of the Sections on which reliance has been placed by Mr. Chitale and which will require to be discussed, it first requires to be stated that the power vested in Court to frame and settle and vary and modify schemes which has continuously existed under Section 92 of the Code of Civil Procedure from the date of its enactment and which otherwise existed by reason of the High Courts being guardians of charity is known to include the incidental power to make provisions for appointment etc. of trustees and for appointing trustees of the scheme itself. This power has been continued in the Courts under Section 50 of the Act and has been, by the Section 50-A added in 1960, vested in and / or delegated to the Charity Commissioner. It would be surprising, therefore, to come to the conclusion that the Legislature whilst delegating under Section 50-A power of Courts to the Charity Commissioner had not intended that he should have power to make initial appointment of the trustees of the scheme framed by him. The language of Section 50-A itself provides that the Charity Commissioner should proceed to frame a scheme under that section after giving an opportunity to be hard to the trustees of the trust concerned. It is a patent that the power to frame a scheme for the management or administration of a trust must include power altogether to amend and nullify the previously existing scheme of appointment, removal, etc. of the trustees. The power must be sufficiently large to enact that the persons in management of the trust as at the date of the framing of the scheme will not continue in the management and cease to be managers and / or trustees. This wider construction is, however, not necessary for the purposes of the present case, because the Charity Commissioner has not sought to remove the respondent No. 1 from continuing in the office of trustee of the trust in question. Now, it is difficult to appreciate the learned Judge's finding that the power to frame scheme is only power to frame a set of rules for the guidance of the trustees and regarding the management and trust pertaining to its actual working. By the clauses 7 and 8 of the scheme (which have been struck down) provision was made for appointment of the first trustees of the trust framed under the scheme shall be a major male Parsi ordinarily residing in the State of Maharashtra. The relevant part of clause 7 provided as follows :-
'7(a) The following persons shall be the first trustees of the said trust under the scheme.
Shri Hirjibhoy M. Kavarana and two others to be appointed by the Charity Commissioner out of the panel of x x x x. If no panels are submitted within 3 months, then the Charity Commissioner may appoint the remaining 2 trustees suo motu. Shri Hirjibhoy M. Kavarana will be in management for life and shall receive Rs. 1,500/- per year as remuneration x x x'. The learned Judge was of the view that the power to frame a scheme did not include even power to appoint initial trustees of a scheme and for that simple reason, he struck off both the clauses 7 and 8 as invalid.
6. The Section 47 provides that any person interested in a public trust of the Charity Commissioner may apply to the Court for the appointment of a new trustee in the circumstances mentioned in clauses (a) to (h) of sub-section (1). The sub-section (2) provides :-
'(2) No such application shall be entertained.- (a) unless the trustee who on account of any of the reasons mentioned in clauses (a) to (h) of sub-section (1) is not fit or available to administer the trust is the sole trustee or unless by the vacation of office by one or more trustees on account of any of the said reasons the minimum number of trustees required by the instrument, scheme, order or decree of the Court or usage or custom of the trust for the administration of the trust is reduced;' Mr. Chitale argued that under Section 47 even Court is not empowered to appoint a new trustee thereby meaning additional trustee on the grounds mentioned in clauses (a) to (h) of sub-section (1) of Section 47, unless the minimum number of trustees fixed by the relevant instrument, scheme, etc. is reached or is not available for administration of the trust. He, therefore, submits that the power of framing scheme conferred under Section 50-A was not larger that the power conferred on the Court under Section 47. New and additional trustees cannot, therefore, by appointed trustees cannot, therefore, be appointed by the Charity Commissioner when he frames scheme under Section 50-A. Now, this argument is without taking notice of the fact that the Section 47 relates to one single small question of administration of public trust, the question being of appointment of additional trustees. The emphasis in the provisions of sub-section (2) is that additional trustees cannot be appointed by Court contrary to the provisions of the trust as appearing in an instrument, a scheme, an order or a decree of the Court. In breach of the provisions in such instrument, scheme, etc. the Court is not enabled to appoint additional trustees. The argument advanced is not tenable, because the section relates to the power of appointing additional trustees under the circumstances discussed above and has no bearing whatsoever on the larger power of the Court and the Charity Commissioner for framing of schemes in pursuance of the jurisdiction conferred under Section 50 and 50-A of the Act. Similarly, the provisions in Section 47-A which relate to ancillary powers of Court in making orders of vesting of properties in additional trustees appointed under Section 47 and the provision in Section 47-AA enabling the Charity Commissioner to make an application to the Court for appointment of new trustees under Section 47 have no relevance to and have no bearing on the question of jurisdiction conferred on the Court and the Charity Commissioner for framing of schemes under Sections 50 and 50-A of the Act. In my view, reliance has been placed on these sections under a misapprehension that they are relevant in considering the scope of jurisdiction of the Court and the Charity Commissioner for framing of schemes under Sections 50 and 50-A. The other sections which are referred to by the learned Judge in his judgment have not even a distant bearing on the question of jurisdiction of the Charity Commissioner to frame a scheme and appoint initial trustees of the scheme framed by him.
7.In the result, the finding made by the learned Judge that the Charity Commissioner had no power and jurisdiction to frame clauses 7 and 8 of the scheme must be held to be incorrect. These findings are set aside. The scheme framed by the Charity Commissioner will continue to include the clauses 7 and 8 as framed by him. The appeal is allowed. Costs of all parties to this appeal will come out of the estate.
8. Appeal allowed.