MALEK CHITTU RASUL Vs. PATHAN MAHMADKHAN KALUKHAN
LAWS(GJH)-1966-2-2
HIGH COURT OF GUJARAT
Decided on February 08,1966

MALEK CHITTU RASUL Appellant
VERSUS
PATHAN MAHMADKHAN KALUKHAN Respondents

JUDGEMENT

V.B.RAJU - (1.) The point of law involved in this second appeal is whether the trustee of a public trust can file a suit against a trespasser for recovering possession of trust property without the consent of the Charity Commissioner under sec. 50 of the Bombay Public Trusts Act 1950 In this connection secs. 50 and 51 of the Public Trusts Act are relevant and they read as under :- 50 In any case (i) Where it is alleged that there is a breach of a public trust (ii) where a declaration is necessary that a particular property is a property belonging to a public trust or where a direction is required to recover the possession of such property 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 having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in sec. 51 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 property 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 authorising 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. 51 (1) If the persons having an interest in any public trust intend to file a suit of the nature specified in sec. 50 they shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner after hearing the parties and after making such inquiry as he thinks fit may within a period of six months from the date on which the application is made grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-sec. (1) the persons applying for such consent may file an appeal to the Bombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act 1939 in the manner provided by this Act. (3) In every suit filed by persons having interest in any trust under sec. 50 the Charity Commissioner shall be a necessary party. (4) Subject to the decision of the Bombay Revenue Tribunal in appeal under sec. 71 the decision of the Charity Commissioner under sub-sec. (1) shall be fin and conclusive. The trial Court held that permission was necessary and the first appellate Court held that it is not necessary. In order to decide this question we are materially concerned with the interpretation of sec. 50 of the Bombay Public Trusts Act 1950 which will hereinafter be referred to as the Act. In a sense sec. 50 of the Act provides that in certain cases a suit can be filed by the Charity Commissioner or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner for any of the reliefs specified in the said section. The section then enumerates the reliefs for which the suit can be filed. In other words the section consists of three parts with the proviso at the end. The first part enumerates the conditions under which the section would come into operation. Then the section provides that where these conditions apply a suit can be filed by certain persons for certain specified reliefs including the relief for an order of recovery of possession of trust property. Then the proviso reads as follows :- 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.
(2.) We have first to see whether the conditions in the first part of sec. 50 of the Act are applicable viz.:- (i) where it is alleged that there is a breach of a public trust (ii) where a declaration is necessary that a particular property is a property belonging to a public trust or where a direction is required to recover the possession of such property 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. The first clause does not apply in this case. The question is whether in this case a direction is required to recover the possession of the property belonging to the public trust. Ordinarily speaking when a suit is filed in a Civil Court for the recovery of a trust property a direction is required to recover the possession of such property. Perhaps we can say that when persons interested in the trust and who are not trustees want to file a suit then they might go to the Charity Commissioner and ask for a direction to file a suit for recovering possession of the property. Ordinarily speaking therefore the conditions specified in the first part of the section (sec. 50 of the Act) apply to a case where persons who are not the trustees want to file a suit to recover possession of the property of the trust which is alleged to have been trespassed upon by a trespasser. But it is contended that the suit is one for the relief of recovery of possession of property of the public trust and therefore sub-sec. (a) mentioned in the second part of the section would apply. It is true that the suit is one for an order of the Court to recover the possession of the trust property. It is also true that the proviso says that provided that no suit claiming any of the reliefs specified in sec. 50 shall be instituted in respect of any public trust except in conformity with the provisions thereof. No doubt a suit to obtain a decree for the recovery of possession of the public trust property is a suit claiming one of the reliefs specified in the second part of the section and therefore we can say that by reason of the proviso sec. 50 of the Act would come into play and the consent of the Charity Commissioner is necessary. But it must he remembered that the proviso speaks of the institution of a suit in respect of any public trust and not to suits in respect of any public trust property. There is therefore a distinction between a public trust and public trust property. We can put a rational interpretation of sec. 50 only by holding that a suit for the recovery of possession of a public trust property is not a suit in respect of a public trust and therefore sec. 50 would not apply if the suit is by a trustee against a trespasser. It is on this basis that the first part of the section must be reconciled with the proviso. A suit by a trustee for the appointment of a new trustee or manager or for 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 would fall within the proviso to sec. 50. In my opinion sec. 50 would not apply to a suit by a trustee in respect of the recovery of the possession of the property of a public trust. Such a suit would not be in respect of the trust. It is only on this basis that we can reconcile the first part of sec. 50 with the proviso to sec. 50 of the Act. I therefore hold that the present suit relates to the property of a public trust and not to a public trust and therefore the proviso does not apply. Sec. 50 of the Act does not apply because this is not a case where a direction is necessary. I therefore hold that sec. 50 does not apply to the present case and the consent of the Charity Commissioner is not necessary.
(3.) The learned counsel for the appellant relies on Gurusiddappa v. Miraj Education Society 63 Bom. L. R. 312. But in that case the proviso to sec. 50 of the Act has not been considered. A suit relating to property may in certain cases also be a suit in relation to a public trust e.g. in a suit for a declaration that that property does or does not belong to the public trust. But in this case the property admittedly belongs to the public trust and therefore the present suit for the recovery of the trust property from a trespasser is not in my opinion a suit relating to public trust The appellate Court is therefore right in holding that the consent of the Charity Commissioner was not necessary and this is the only point argued before me.;


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