1994 ALLMR ONLINE 467

D.R. DHANUKA, J.

GYANDEO TUKARAM DEVRE Vs. GANPAT NATHU DEVRE

First Appeal No. 2620 of 1983

13th June, 1994

Petitioner Counsel: Madhav Jamdar, M. A. Rane
Respondent Counsel: Narendra V. Walawalkar

Headnote not Available

JUDGMENT

JUDGMENT :- Mr. Jamdar tenders copy of the rules applicable to the society. Copy of the rules taken on record and marked "A" for identification.

2. A short but interesting point arises in this appeal concerning interpretation and application of section 47 of Bombay Public Trusts Act, 1950 as indicated below. The question before the Court is as to whether the application made under section 47 of the Act for appointing two of the trustees to fill up the vacancy caused on death of two out of nine trustees is maintainable in law.

3. This appeal is preferred by original opponents Nos. 1, 2 and 4 against the Order dated 30th September 1983, passed by the Joint Charity Commissioner, Maharashtra State, Bombay in Application No. 3 of 1983, made under section 47 of the Bombay Public Trusts Act, 1950. By the said Order, the Charity Commissioner has appointed Shri Vishwanath Namdeo Devre and Shri Kadu Eknath Hire as Trustees of "Gram Shikshan Samiti Trust" Umarane Taluka Malegaon, District Nashik [P.T.R. No. F-671 (Nashik)] in the vacancy caused on death of Shri Arjun Malji Devare and Shri Mohanrao Sukhdeo Devre two of the trustees of the said trust prior to their death. By Order dated 11th October 1983, this Court granted stay of operation of the Order passed by the Joint Charity Commissioner referred to hereinabove. The said stay order is operative.

4. Gram Shikshan Samiti is an educational society duly registered under the Societies Registration Act as well as trust under Bombay Public Trusts Act, 1950. The rules of the said society provide that the General Body of the said society shall constitute a managing committee for looking after the management of the said society. Rule 11 of the relevant rules provides that the Managing Committee will consist of two members out of patrons and donors of the society and seven members out of the ordinary members of the society. Rule 12 of the said rules provides that Nine members of the Managing Committee will choose the Chairman from amongst the members of the Managing Committee. The said rules also provides that generally the tenure of the Managing Committee will be for three years. Rule 7 of the said rule provides that the emergency special meeting of the general body will be called on signing of requisition by at least 1/3rd members of the general body. The said rules do not make any specific provision for filling up of the casual vacancy. The members of the managing committee of the society are deemed to be trustees of the said trust. The said rules do not prescribe that the trust must have a particular minimum number of trustees for being able to administer the affairs of the trust. Two questions arise for consideration of the Court in this appeal. Whether seven trustees could continue to administer the affairs of the trust until the vacancy caused on death of two of the trustee was filled up? The answer is in affirmative. Whether the Charity Commissioner had jurisdiction to fill up the vacancies and appoint new trustees under section 47 of Bombay Public Trusts Act, 1950? Having regard to the facts of this case and the restricted powers of the Charity Commissioner under section 47 of the Act read with the above-referred rules of the society, this question must be answered in negative. The general body of the society could fill up the said vacancies in exercise of its discretion and not the Charity Commissioner.

5. Section 47 of the Bombay Public Trusts Act, 1950 reads as under :-

"Any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, where there is no trustee for such trust or the trust cannot be administered until the vacancy is filled, or for the suspension, removal or discharge of a trustee, when a trustee of such trust -

(a) disclaims or dies;

(b) is for a continuous period of six months absent from India without the leave of the Charity Commissioner or the Deputy or Assistant Charity Commissioner or the officer authorised by the State Government in this behalf;

(c) leaves India for the purpose of residing abroad;

(d) is declared as insolvent;

(e) desires to be discharged from the trust;

(f) refuses to act as a trustee;

(g) becomes in the opinion of the Charity Commissioner unfit or physically incapable to act in the trust or accepts a position which is inconsistent with his position as trustee;

(h) in any of the cases mentioned in Chapter III, is not available to administer the trust; or

(i) is convicted of an offence punishable under this Act or an offence involving moral turpitude.

(2) The Charity Commissioner may, after hearing the parties and making such enquiry as he may deem fit, by order appoint any person as a trustee or may also remove or discharge any trustee for any of the reasons specified in sub-section (1),

(3) In appointing a trustee under sub-section (2), the Charity Commissioner shall have regard -

(a) to the wishes of the author of that trust;

(b) to the wishes of the person, if any, empowered to appoint a new trustee,

(c) to the question whether the appointment will promote or impede the execution of the trust;

(d) to the interest of the public or the section of the public who have interest in the trust; and

(e) to the custom and usage of the trust.

(4) It shall be lawful for the Charity Commissioner upon making any order appointing a new trustee under sub-section (2) either by the same or by any subsequent order to direct that any property subject to the trust shall vest in the person so appointed and thereupon it shall so vest.

(5) The order of the Charity Commissioner under sub-section (2) shall be deemed to be the decree of the Court and an appeal shall lie therefrom to the High Court".

6. Section 47 of the Act does not confer any general power on the Charity Commissioner to appoint new trustees. Power under section 47 of the Act can be exercised only in cases specifically covered under the section. In the situation arising in this case, the said section could be invoked if the affairs of the trust could not be administered until the vacancy was filled and the number of surviving trustees had fallen below the prescribed minimum. Having regard to abovereferred rule and the minimum number of members of managing committee or trustees having been not prescribed and seven out of nine trustees surviving, it cannot be said that the affairs of the trust could not be administered until the vacancies caused by death of Arjun Malji Devre and Mohanrao Sukhdeo Devre were first filled up. It is, therefore, obvious that there was no legal impediment in the managing committee continuing to function even with strength of the managing committee being seven instead of nine for the time being. In view of the above facts, section 47 of the Act could not be invoked. I accept the submission made by the learned Counsel for the appellant to the effect that the application made by the two applicants for appointment of new trustee was not maintainable under section 47 of the Act.

7. Section 47(2) of Bombay Public Trust Act, 1950 as applicable in the State of Gujarat makes a specific provision empowering the Charity Commissioner to appoint new trustees where the minimum number of trustees required to be the instrument, scheme, order or decree of the Court or usage or custom of the trust or the administration of the trust is reduced below the minimum. In such a situation, section 47 of the Act as applicable in the State of Maharashtra also would be attracted. Such was not the situation in this case. The general body of the society could undoubtedly fill up the said vacancies and appoint new trustees by convening the necessary meeting and following the prescribed procedure. The learned Charity Commissioner appears to have taken the view that under section 47 of Bombay Public Trusts Act, 1950 the Charity Commissioner had power to fill up the vacancies caused on death of one or more trustees of the said trust. In my opinion, this view is incorrect and not supportable on plain reading of the section.

8. In view of the above I hold that the Order under appeal is patently erroneous and without jurisdiction. I, therefore, hold that the application made by the two applicants on 18th January, 1983 being Application No. 3 of 1983 for appointment of new trustees in the vacancy of the two deceased trustees was not maintainable in law and allow the appeal.

9. In view of the conclusion of the Court that the Charity Commissioner had no jurisdiction to appoint new trustees in the situation discussed above, it is not necessary to go into the question as to whether the new trustees appointed by the Charity Commissioner were fit or proper persons or not. It is for the General Body of the society to elect its managing committee periodically as provided under its rules. It is hereby clarified that this order does not disqualify the persons appointed under the impugned order as trustees for being elected or appointed as trustees in future in accordance with law.

10. In the result the appeal succeeds. The Order under appeal is set aside. Application No. 3 of 1983 is dismissed. Having regard to the facts and circumstances of the case, there shall be no order as to costs.

11. Issue of certified copy is expedited.

Appeal allowed.