These matters raise a ,common question, namely, whether the 'power of appointment of trustee in accordance with the instr1imelit of trust is subject to the provisions of S, 50 of the Bombay Public Trusts Act, 1956 (hereinafter referred to as' the Act') when such power is conferred on the District Court? The judgment of the Division Bench in the case of Yasinmian Amirmian Faroqui v. L A. Shaikh. 11977) l8, Guj LR 54 holds that in view of the provisions of S. 50 of the Act the provision in the scheme already settled would be overridden and would have to be adjusted and reshaped subject to the provisions of S. 50 of the Act. No suit oil proceeding for any of the reliefs mentioned therein (including the appointment of a new trustee) would be maintainable without the consent of the Charity Commissioner. When these matters came up for final hearing before our learned brother late A. N. Surti J. he could not agree with the reasoning of the Division Bench in Yasinmian case and therefore he directed that these matters be placed before the learned Chief Justice for orders as the decision of the Division Bench in the case of Yasinmian (supra) required reconsideration. That is how these matters have come up before the Full Bench.
2. The facts in brief are as follows:
There is an ancient temple of Ranchhod Raiji at Dakor in District Kaira. A scheme has been settled long back for the administration of this temple under S. 92 of C.P.C. At that time Dakor was within Ahmedabad district and Ahmedabad District Court had framed the scheme which was substituted by the Bombay High Court and confirmed subject to some modification by the Privy Council. (vide Sevak Kirapashanker Daji v. Gopalrao Mapohar Tambekar (1913) 15 Born LR 13). The Bombay High Court held that it was a common ground that there should be a committee of management and that it should comprise of not less than 5 members. It was also conceded that some be them should be independently selected. Ultimately the scheme provided that three members shall be selected by the District Court of Ahmedabad (now Kairai and one shall be a male member of Tambekar family and one shall be a nominee of the sevaks. The Committee was called ' The Dakor Temple Committee' which was to administer all the properties of the Dakor temple. The members of the committee are for a term and are eligible for reappointment. Clause 7 of the scheme, so far, as it is relevant for the present purpose reads as under:
'Any member of the committee shall on good cause shown. be liable to be removed by the District Court of Ahmedabad. Any vacancy occurring in this or any other manner shall be filled up by the District Court of Ahmedabad.........(now it is District Court of Kaira).
One of the trustees Shri Krishnaraj Thakarshi was appointed under the scheme by the District Court at Kaira. He expired on 4th Feb. 1978 and, therefore under CL 7 the Manager of the Temple Committee gave an application being Misc. C. A. No. 16/78 to the District Court at Kaira for filling in the vacancy by appointment of a new trustee. Another trustee Shri Chaturbhuj Chimanlal was due to retire on 9th Jan. 1979. Therefore in that application itself a prayer was made to fill in that vacancy which was to arise in near future on 9th Jan. 1979. By its judgment and order dt. 27th Sept. 1978 the District Court appointed Shrimati Sumati Morarji in the vacancy caused by the death of Shri Krishnaraj Thakarshi. However the application for appointment in the anticipated vacancy was rejected on the ground that the application was premature. Against that part of the impugned order holding the application premature. Civil Revision Application No, 1452 of 1978 was preferred to the High Court and the High Court (R. C. Mankad, J.) allowed the Revision Application by judgment and order dt. 29 t h Nov. 1978 and directed the Dis1rict Court to make appointment in the anticipated vacancy which was to arise on 9th Jan. 1979, when Shri Chaturbhuj Chimanlal was due to retire. After the remand by an application ex.294 dt. 26th Dec. 1978 the name of Shri D. G. Desai was proposed for being appointed as a trustee. Along with that application, another application ex.29-5 was also filed for condonation (if delay in making the application proposing the name of Shri D. G. Desai. Ex.12W is the consent of Shri D. G. Desai. The Court ordered notice to the parties and after hearing the parties the delay , was condoned on 5th Jan. 1979 and the matter was heard on merits and by the impugned order the District Court appointed Shri D. G. Desai after considering several other names also which were proposed. This order is under challenge in First Appeal No. 89/79.
3. Shrimati Sumati Morarji member of the Temple Committee and another member of the Temple Committee Shri N.H. Bhatt (an honorable sitting Judge of this High Court) resigned as members of the Temple Committee and the said resignations were accepted by the District Court and therefore by Misc. C. A. No. 18/79 made by the Manager it was prayed that the vacancies caused by their resignations be filled in by the District Court under CL 7 of the Scheme. A public notice of the same was given. By ex. 20 one Shah Thakorlal Punjalal submitted that in view of provisions of S. 50 of the Act and in view of the judgment in Yasinmian's case 1977-18 Guj LR 54) (supra) the District Court would have no jurisdiction to entertain the application for appointment of new trustees. The District Court by its judgment and order dt. 24th Jan. 1980 allowed the application ex. 20 and held that the District'. Court had no jurisdiction to grant the reliefs prayed for in Misc. C. A. No. Ih/79 in the present proceedings following the judgment of the Division Bench in Yasinmiana's case (1977) 18 Guj LR 54) (supra). This judgment and order are challenged in C. R.)AL No. 505/80 by the Manager of the Temple Committee.
4. As pointed out earlier these matters had come up for hearing before late A. N. Surti J. and in view of his observation for reconsideration of the judgment of the Division Bench, the matters have come up for hearing before the Full Bench.
5. It would be useful to refer to some of the relevant provisions of the Act at this stage. Bombay Public Trusts Act 1958 has been enacted to regulate and to make, better provision for the administration of public religious and charitable trusts in the State. Section 20 defines court' to mean 'the District Court or 'City Civil Court Section 2(7A) reads asunder:
'Instrument of trust means the instrument by which the trust is created by the author of the trust and includes a scheme framed by competent authority.' Chapter IV relates to Registration of Public Trusts. Sections 18 to 22 provide for details of registration application, inquiry, findings entries in the public trust register and changes therein. S. 18(4) provides for registration of a public trust created before the commencement of the Act. S. 18(5) provides for the particulars which are to be contained in such application, and sub-clause Oil requires that the application shall state the mode of succession to the office of the trustee. Section 19(vi) provides that the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed manner for the purpose of ascertaining the mode of succession to the office of the trustee of such trust' and S. 20 provides for recording of findings with reasons there for as to the matters mentioned in S. 19. and under S. 21 entries are required to be made in the register kept under S. 17 in accordance with the findings recorded under S. 20 and S. 21(2) provides that the entries so made shall subject to the provisions of this Act and subject to any change recorded under the following provisions. be final and conclusive, and S. 22 provides for change in the entries recorded.
6. Chapter VII of the Act deals with other functions and powers of the Charity Commissioner containing Ss. 42 to 568. Section 47 provides that any person interested in a public trust or the Charity Commissioner may apply to the Court for the appointment of a new trustee when a trustee of such trust (a) disclaims or dies; (el desires to be discharged from the trust. (f) refuses to act as a trustee. Sub-section (2) provides that no ' such application shall be entertained unless the trustee who is not fit or available-to administer the trust is the sole trustee or unless by the vacation of the office on account of any of the said reasons the minimum number of trustees required by the instrument. Scheme order or decree of the Court is reduced. Section 47AA provides for appointment of a new trustee where a trustee of a public trust is converted of an offence under the Bombay Public Trusts Act or any amount is surcharged on him under Sub-s(i) of S. 41. The next most relevant section is S. 50 and that deserves to be reproduced in full. It reads as under:
'50. In any case: -
(i) where it is alleged that there is a breach of a public trust.
(ii) where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or
(iii) where the direction of the Court is deemed necessary for the administration of any public trust, either, the Charity Commissioner after making such inquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in section5l may institute a suit whether contentious or not in the Court within the local limits of whose Jurisdiction the whole or part of the subject matter of the trust is situate, to obtain a decree for any of the following reliefs: -
(a) an order for the recovery of the possession of such property or proceeds thereof,
(b) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager,
(cc) vesting any prop6rty in a trustee,
(d) a direction for taking accounts and making certain inquiries,
(e) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust.
(f) a direction authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged,
(g) the settlement of a. scheme or variations or alterations in a scheme already settled or
(h) granting such further or other relief as the nature of the case may require :
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof:
Provided further that the Charity Commissioner may, instead of instituting -suit, make an application to the Court for a variation or alteration in a scheme already settled.'
7. Section 52 provides that notwithstanding anything contained in the Civil P. C. 1908, t he provisions of Ss. 92 and 93 of the said Code shall not apply to the public trusts. Sub-section (2) refers to pending proceedings and provides for substitution of Charity Commissioner in the place of Advocate- General or Collector and sub-section (3) provides for reference to the Charity Commissioner in place of Advocate- General in any instrument, scheme, order or decree. Section 80 deals with bar of jurisdiction of Civil Court. It reads as follows :
'80. Save as expressly provided in this Act, no civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive'.
8. From the above relevant provisions. it is clear that S. 92 of the C. P.C. has ceased to apply to the public trusts after the commencement of the Bombay Public Trusts Act. The question is what is the effect thereof coupled with the enactment of a corresponding provision in S. 50 of the Act. The Division Bench in Yasinmian's case, ((1977) 18 Guj LR 54) in paras 10 and 11 observed as under:
'In view of the provisions of S. 50 which is a special legislation on the subject we are of the opinion that to the extent to which S. 50 is repugnant to or in conflict with S. 92 of the Civil P. C. it must override the general provisions contained in S. 92 of the Civil P. C. If S. 50 has the capacity, as we hold, to override the provisions of S. 92 of the Civil P. C. it must necessarily have the capacity to override the relevant clause in any scheme settled in a suit filed under S. 92, C. P.C. A scheme settled in a suit filed under S. 92 C.P.C. is not independent of that section nor can it be placed above it. The rights or remedies which have been conferred upon the parties by a scheme settled in a suit under S. 92, C.P.C. can only survive in their fullest form if S. 92 survives. If it does not survive, they have got to be adjusted and reshaped in the light of the provisions of S. 50 of the Bombay Public Trusts Act, 1950.
11. Section 52 of the Bombay Public Trusts Act, 1950 goes a step further and enables us to take this view with greater force. Sub-section (1) of S. 52 provides as follows:
'Notwithstanding anything contained in the Civil P. C. 1908, the provisions of Ss. 92and 93 of the said Code shall not apply to public trusts'.
It is, therefore, clear that so far as the public trusts to which the Bombay Public Trusts Act, 1950 applies are concerned, S. 92 and the rights and remedies provided there under have been repealed. There from resort by anyone can be had to S. 92 in order to invoke his remedy there under. Therefore, it is not merely by virtue of the fact that there is a special legislation in the shape of S. 50 which overrides the general legislation in the shape of S. 92 of the Civil P. C. but also on account of the provision of sub-section (1) of S. 52 which in terms repeals or renders inoperative S. 92 of the Civil P. C. in relation to the public trusts that we say that the remedy provided under. S. 92 of the Civil P. C. cannot be resorted to in respect of matters concerning public trusts governed by the provisions of the Bombay Public Trusts Act, 1950. If the remedy of filing a suit under S. 92 of the Civil P. C. has been repealed in relation to public trusts by virtue of sub-section (1) of S. 52, it is clear that any remedy provided by any clause in a scheme settled in a suit filed under S. 92 of the Code of Civil P. C. must also give way to the provisions of S. 50 of the Bombay Public Trusts Act, 1950. If the remedy provided under S. 92 does not survive by virtue of the provisions of Ss. 50 and 52 of the Bombay Public Trusts Act, 1950, the relevant clause of a scheme which provides a remedy either for the removal of a trustee or for the modification of a scheme or for any other purpose concerning a public trust and falling under the provisions of the Bombay Public Trusts Act, 1950 cannot, be given the super legislative status so as to override the provisions of Ss. 50 and 52 of the Bombay Public Trusts Act, 1950.'
Thus the Division Bench took the view that the relevant clause of the scheme which provides a remedy either for the removal of a trustee or for modification of a scheme or for any other purpose concerning a public trust and falling under the provisions of the Bombay Public Trusts Act cannot override the provisions of S. 50. The facts in that judgment show that the Division Bench was concerned with two-cases, which were disposed of by common judgment. One case related to removal of a trustee (vide para 2) and another case related to modification of a scheme (vide para 6) and in para 1, the Court has framed the question which had arisen for its consideration as follows:
'Whether an application either for removal of trustees or for modification of the scheme filed under the relevant clause or in the scheme settled in a suit filed under S. 92 of the Code of Civil Procedure before the Bombay Public Trusts Act, 1950 came into force is maintainable in view of the provisions of S. 50 of the Bombay Public Trusts Act, 1950?'
It is thus clear that the Division Bench was called upon to decide the question regarding the procedure to be followed for removal of a trustee and modification of a scheme. Section 50 provides for both these reliefs in CL (b) and (g). The Division Bench is right in holding that as far as these questions of removal of trustees and modification of the scheme are concerned, the rights and remedies have got to be adjusted and reshaped in the light of provisions of S. 50 of the Act. However the further and wider observation extending it 'for any other purpose concerning a public trust- was not necessary for the Division Bench to refer to and the Division Bench has, in fact, not considered any other purpose in respect of which the remedy is required to be adjusted or reshaped in the light of provisions of S. 50 of the Act.
9. The present question of appointment of a trustee in accordance with the scheme (instrument of trust) was not before, the Division Bench and, in fact, the Division Bench has not considered the question of appointment of new trustee as per the existing scheme in a vacancy arising in ordinary course by death or resignation and not by removal.
10. The learned counsel far the appellant in First Appeal and the respondents in the Revision Application, has submitted that the District Court under Clause (7) of the Scheme is a Court of law as held by P. N. Bhagwati, J. (as he then was in this court) and not a persona designate in the case of Jagmohandas v. Jamnadas. 6 Guj LR 49: (AIR 1965 Guj 181). It was also a case regarding Dakar Temple, and the learned counsel has submitted that under Clause 7 when the District Court is given power to appoint trustee and no procedure is prescribed, the District Court has to follow the procedure of S. 50 and if the requirements of S. 50 (consent of the Charity Commissioner) is not fulfilled, the application is not maintainable and the District Court has no jurisdiction to entertain that application.
11. However the question is whether S. 50 has any application when an application is made under Clause 7 of the instrument of trust. It is not an application for removal of a trustee and appointment of a new trustee in that place. Every instrument of trust, whether created by author of the trust or under a scheme, has to provide for mode of succession to the office of the trustee. The author or the scheme may provide for succession of trustee and filling in the vacancy in the office of the trustee in numerous us diverse ways, some of which may be, election, cooption, nomination, appointment and the power of nomination or appointment may be located in specified authorities. In a given case it could be the Collector, it could be the Government it could be a Court or a District Court. There are thousands of public trusts register under the Act having different modes of succession and filling in the vacancies raiser', in ordinary and natural course by death and resumption and the instrument of trust is required to make provision for the same and the Charity Commissioner after due inquiry under S. 19 is required to record his findings with reasons as to the mode of succession to the office of the trustee and that finding is required to be entered into the public trust register. Such entries are final and conclusive under S. 21(2) of the Act. In the present case the instrument of trust provides for filling in vacancies by the District Court. Therefore, in accordance with the instrument of trust, the District Court is called upon to fill in the vacancy by appointment of a new trustee. Such an application to the District Court cannot be said to be in the nature of a suit because, the instrument of trust itself provides for a specified number of trustees and for mode of succession in the office of the trustees and filling in the vacancies arising in the office of the trustees. If the instrument of trust had provided for any other authority than the District Court for filling in the vacancies. no question would have arisen of obtaining permission of the Charity Commissioner under S. 50 of the Act or making an application to such specified authority. It would not make any difference whatsoever when such specified authority in the present case happens to be the District Court. The District Court is not called upon to fill in the vacancy under S. 50 of the Act. Appointment of trustees and the mode of succession are ordinarily the matters for the author of the trust and these are the matters pertaining- to its constitution and in giving effect to the same, if the authority specified in the instrument of trust is approached in accordance with the constitution of a trust (the instrument of a trust) no question arises of a Court under the Bombay Public Trusts Act exercising any power of appointment of a trustee under S. 50. Section 50 contemplates invoking the jurisdiction of a Court in one of the three contingencies; namely, 0 breach of a public trust~ ( ii) recovery of possession of property of public trust and (iii) where the permission of the Court is deemed necessary for the administration of the new public trust. Admittedly conditions Q and (ii) are not attracted. The learned counsel for the appellant submits that condition No. (iii) is attracted that the permission of the Court is deemed necessary for the administration of a public trust, by seeking a relief of appointment of a new trustee. Appointment of a new trustee is not always a necessary direction for administration of a public trust. The instrument of trust provides for the mode of succession to the office of a trustee. It is only then independent of the instrument of trust or as a consequence of a removal of any trustee by Court if any direction becomes necessary f or appointment of a new trustee for the administration of public trust that third condition would be attracted. In case of ordinary and natural vacancies mode of succession provided by the instrument of trust has to be followed and the authority specified in the instrument of trust has to be approached and merely because that authority happens to be District Court in the present case it cannot be held that condition No. (iii) is attracted. The order of the Court is necessary for appointment of a new trustee, in this case because the District Court happens to be the authority under the instrument of trust for filling in the vacancy. Therefore, the District Court is invited to fill in the vacancy under CL 7 of the instrument of trust and not under S. 50 and it is not necessary to move the Court under S. 50 of the Act in the present case. As pointed out earlier instead of the District Court if any other authority was specified to fill in the vacancy, no question would have arisen of applicability of S. 50 of the Act and the authority specified in the trust would have and could have made valid appointments and filled in the vacancy. Here the District Court is exercising the same power 'under the instrument of trust. If independent of CL (7) any direction was necessary for appointment of a trustee then third condition would have been attracted and the consent of the Charity Commissioner under S. 50 would have been necessary. However. in the present case such consent is not necessary because, the application does not attract the applicability of S. 50 of the Act.
12. In view of this, the observations 0I the Division Bench in so far as they seek to cover application for any other purpose' under S. 50 cannot be approved. In fact, the Division Bench has also not decided that question and there is no discussion thereon. The Division Bench was concerned with the questions of removal of a trustee and modification of the scheme and on those two questions the Division Bench is right in holding that provisions of S. 50 got attracted.
13. In view of the above the C.R.A. No. 505/80 will have to be allowed and the Misc. C.A. No. 181,79 for appointment of two trustees in the vacancies caused by the two resignations will have to be restored to the file of the District Court and remanded for disposal on merits because that application was dismissed only on the ground' that it was not maintainable following the judgment in the case of Yasinmian, ((1977) 18 Guj LR 54) (supra). Interim order dt. 30th June 1983 in C.A. No. 2310/83 in C.R.A. No. 505/80 will stand vacated forthwith and the District Court is directed to consider the application for filling in the vacancies at the earliest by considering all proposals that may be before it. Since the vacancies have arisen since long and proceedings are now being remanded for decision on merits the District Court may invite fresh proposals for the vacancies by intimating to the general public about the remanded proceedings. It is directed that the proceedings before the District Court shall be expedited and the District Court shall pass final orders filling in the vacancies as expeditiously as possible and in any case on or before10th Sept., 1984.
14. In First Appeal No. 89/79 the learned counsel for the respondents has raised a preliminary objection that the appeal was not maintainable because there was no suit and there was no decree. Therefore, the learned counsel for the appellant had made an oral request that the appeal may be permitted to be converted into Civil Revision Application and may he heard as Revision Application and submitted that the District Court had acted without jurisdiction in entertaining the application without permission of the Charity Commissioner. Since we have already held that application was maintainable this ' question does not survive for further consideration. The learned counsel for the appellant has further submitted that there were several proposals before the District Court and several names were suggested and the proposal of the name of Shri D. G. Desai was beyond time. In fact there was no proposal of his name when the District Court had considered the question of filling in the vacancy and had filled in the vacancy caused by the death of Shri Krishnaraj Thakarshi. The vacancy of Chaturbhuj Chimanlal was due to arise on 9th Jan. 1979 and that application was held to be premature by the District Court and, therefore, the District Court had not considered any names at that stage. However, when the High Court remanded the matter and directed that before occurring of the vacancy but in view of its anticipated certainty, the District Court ought to have decided the question of filling in the vacancy within reasonable time before the occurring of the vacancy and when the matter was remanded to the District Court, the name of Shri D. G. Desai was proposed and, on that application notice was given to the interested parties. Even, though there was no question of limitation, the application for condensation of delay ex.295 was given and after hearing the parties. On that application. the court had condoned the delay. On the application proposing the name of Shri D. G. Desai notices are given to the parties. The present appellant had not suggested any name nor was he a candidate for any vacancy nor did 'he object to the proposal of the name of Shri D. G. Desai. Therefore, there is really speaking no merit in the objection sought to be raised at the present stage by the appellant. Even the Charity Commissioner has stated that he has no objection to the appointment of Shri D. G. Desai and his continuing. Even otherwise on merits it appears that the District Court has given consideration to all the names before it. The name of the retiring member Shri Chaturbhai Chimanial was also considered and the District Court considered that he had served a full terms of 10 years and he had reached the age of about 74 years. The Court also considered that the tenure was fairly long and a person who is not only likely to complete the tenure but who should also be in a position to make effective contribution for the entire term deserved selection. The Court was also conscious of the fact that second line of administrators should also be brought into existence if other suitable persons were available. The District Court also had referred to the earlier similar case of Maneklal Gandhi who was also left out because of his advanced age. The 'Court has also considered other names three of whom were practicing advocates. One was a merchant, one was a businessman, one was a shroff and one was a M. L.A. and one was a member of Harijan community and a social worker of repute. The Court was also conscious of the fact that it had to fill in only one vacancy and therefore out of all candidates it had 'to select only one of the fittest and considered the background of Shri D. G. Desai who is holding degrees from two faculties, namely, Arts and Law and a student of Hindu Scriptures and Secretary of 'the Gujarat Legislative Assembly and who had also worked as Additional Registrar of Gujarat High Court; he had also got some literary works to his credit and was professing faith in Ranchhod Raiji and he was comparatively of young age of 52 years. In view of these circumstances, it is clear that there is no case for interference with the order made by the District Court appointing Shri D. G. Desai.
15. At one stage it was contended that even if the application was not under S. 50 of the Act, in any proceeding before the Court notice to the Charity Commissioner is necessary, under S. 56B of the Act. However, when it was ascertained from record that the notice was in fact issued to the Charity Commissioner by the District Court, the point was, not pressed. Even at the bearing of this matter, the Charity Commissioner has stated that he has no objection t6 the appointment and continuance of Shri D. G. Desai as a member of the Dakor Temple Committee.
16. Therefore, this Revision Application converted from First Appeal is deserves to be dismissed.
17. In the result C.R.A. converted from F.A. No. 89/79 is dismissed and rule is discharged.
18. In C.R. A. No. 505/80 rule is made absolute and the impugned order is quashed and set aside and the matter is remanded to the District Court with a direction to restore Misc. CA, No. 18/79 on its file and to dispose of the same in accordance with law latest by 30th Sept. 1984 by considering all the proposals and proceedings relating thereto, and the names of the persons before it.
19. Costs of the Charity Commissioner shall be paid out of the trust funds. Other parties shall bear their own costs.
20. Rule made absolute.