J.M.SHETH - (1.)First Appeal No. 90 of 1973 has been filed by the appellants who were alongwith respondent No. 1. trustees of the trust known as Shri Sanskar Bharati Trust which was registered under the Bombay Public Trusts Act 1950 (which will be hereinafter referred to as the Act). against the order passed by the learned District Judge Bulsar at Navsari in Civil Miscallaneous Application No. 23 of 1969 filed by them under sec. 28 of the Act against the order passed by the learned Charity Commissioner in suo motu scheme proceeding No. 31 of 1966 framing the scheme for the trust in question. The learned District Judge has dismissed the aforasaid civil application filed by the applicants under sec. 72 of the Act. Respondent No. 2 is the Charity Commissioner. ... ... ... .. .. ... ...
(2.)Mr. I. M. Nanavati appearing for the appellants made the following submissions:
(1) On a true interpretation of sec. 50-A of the Act the Charity Commissioner has jurisdiction to frame a scheme only in a case where a trust exists but there is no scheme for its administration. (2) Even if the power under sec. 50-A of the Act can be exercised despite a scheme being in existence for administration or management in the instrument of trust no additional trustees can be appointed by the Charity Commissioner under sec. 50-A of the Act. (3) If sec. 50-A of the Act is construed to be a parallel provision of sec. 50 of the Act then inquiry must be held as a judicial inquiry and no statements recorded on the back of the party and not disclosed to him and not allowed to be tested by cross-examination can form the basis of either for an order initiating inquiry under sec. 50-A of the Act or framing a scheme under sec. 50-A of the Act where it involves appointment of new trustees or a removal of a trustee. (4) In the instant case judicial-inquiry has not been held either at the stage prior to actual initiation of the proceedings under sec. 50 of the Act or in the course of the proceedings under sec. 50 of the Act.
Mr. Nanavati has also alternatively made a few submissions in regard to particular clauses of the scheme Ex. I23 framed by the Charity Commissioner.
(3.)Sec. 50-A of the Act reads:
(1) Notwithstanding anything contained in sec. 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 0expedient so to do frame a scheme for the management or administration of such public trust.

(2) Where the Charity Commissioner is of opinion that in the interest of the proper management of administration two or more public trusts may be amalgamated by framing a common scheme for the same he may after (a) publishing a notice in the Official Gazette and also in at least two newspapers (one in English and the other in the language of the region) with a wide circulation in the region in which the trust is registered and (b)giving the trustees of such trusts and all other interested persons due opportunity to be heard. frame a common scheme for the same. (2-A) A scheme under this section may provide for the number of trustees the mode of appointment of trustees including the appointment of the first trustees vesting of the trust property in the trustees so appointed mode of filling any vacancy of a trustee the remuneration of a trustee of manager of the public trust and where necessary a clarification of the objects of the public trust.

(3) The Charity Commissioner may at any time after bearing the trustees modify the scheme framed by him under sub-sec. (1) or sub-sec. (2).

(4) The scheme framed under sub-sec. (2) or sub-sec. (2) or modified under sub-sec. (3) shall subject to the decision of the competent Court under sec. 72 have effect as a scheme settled or altered as the case may be under a decree of a Court under sec. 50. There is a non-obstante clause. It is therefore evident that in spite of the provisions of sec. 50 of the Act the Charity Commissioner has got over-riding powers. Sub-sec. (i) of sec. 50-A of the Act in which that non-obstante clause is found clearly indicates that the Charity Commissioner has been empowered by the legislature to frame a scheme for the management or administration of such public trust if he is satisfied that it is necessary or expedient so to do. He himself has been empowered to initiate proceedings if he has reason to believe that in the interest of a proper ma management or administration of a public trust a scheme should be settled for it. It will naturally depend upon his subjective decision. It cannot be said even by any stretch of imagination that for such satisfaction of his meaning thereby for coming to the conclusion that he has reason to believe that in the interest of proper management or administration of a public trust a scheme should be settled for it any judicial inquiry was necessary. Mr. Nanavati has conceded to that position that for initiating such proceedings no such judicial inquiry will be necessary. I therefore need not dilate on that point further.

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