CHARITY COMMISSIONER MAHARASHTRA STATE BOMBAY Vs. HIRJIBHOY MANCHERJI KAVARANA

JUDGEMENT

(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).