1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMONS NO. 151 OF 2007 IN MISC. PETITION NO. 48 OF 1990 The Official Trustee, Maharashtra State .. Petitioner V/s 1) The Indian Red Cross Society, Bombay City Branch 2) M/s Wockhardt Hospitals Ltd. .. Respondents Mr. J.K. Hakani for the petitioner. Mr. E.P. Bharucha, Senior Advocate with Mr. Mohan Salian, Ms. Vijayanta Shete i/b Gagrats for respondent no.1. Mr. J. Dwarkadas, Senior Advocate with Mr. P.K. Shroff, Mr. D.V. Deokar, Mr. B. Kotak, Ms. Bharati Bhagat, Mr. M. Bhatt i/b P.K. Shroff & Co. for respondent no.2. CORAM : D.G. KARNIK, J. DATE : 8TH JULY 2009 P.C. : 1. Heard learned counsel for the parties. 2 2. By this chamber summons, the Official Trustee – Maharashtra State, who is the petitioner herein, prays that the order dated 8th November 1993 passed in Misc. Petition No. 48 of 1990 be recalled and the trust properties be retransferred and/or revested in him. He seeks a further direction that the Memorandum of Understanding dated 7th May 2004 executed between Adams Wylie Memorial Hospital through the respondent no.1 – Wockhardt Hospitals Ltd. should be declared as illegal, invalid and contrary to the order dated 8th November 1993. Other incidental reliefs flowing from the aforesaid two reliefs are also claimed by the chamber summons. 3. Learned counsel for the respondent nos.1 and 2 raised a preliminary objection to the maintainability of the chamber summons and submitted that the court cannot recall its own order dated 8th November 1993 by means of a chamber summons. They also opposed the chamber summons on merits. 4. The facts, which are necessary for the decision of this chamber summons, are stated below:- “Adams Wylie Memorial Hospital”, a charitable trust, was created by Mrs. Lilian Oimara Adams Wylie vide Indenture dated 9th September 1903. Vide Indenture dated 14th August 1933, all the trustees resigned and the Official Trustee – Maharashtra State, the petitioner herein, was appointed as a sole trustee of the trust properties, which inter alia consists of leasehold 3 rights in the property bearing plot no.111 at Gilder Street and a plot of land adjoining to it (hereinafter collectively referred to as “the trust property”). It appears that the petitioner was unable to manage the trust property and the hospital standing thereon to his satisfaction. On an application of the petitioner, by an order dated 30th January 1952 this Court transferred the management of Adams Wylie Memorial Hospital to Bombay City Branch of the Indian Red Cross Society – the respondent no.1 herein. In the month of June 1990, the petitioner made a further petition bearing Misc. Petition No. 48 of 1990 to this Court narrating the circumstances under which the scheme of management, administration and proper working of the Adams Wylie Memorial Hospital was handed over to the respondent no.1 and praying for sanction of the draft scheme of management and administration of Adams Wylie Memorial Hospitals prepared by him. The present respondent no.1 was joined as a party respondent to the said Misc. Petition. On 8th November 1993, this Court disposed of Misc. Petition No. 48 of 1990 by passing an order in terms of the minutes of order signed by the parties and their respective advocates. Under the order, the respondent no.1 – Indian Red Cross Society was appointed as the trustee in place and stead of the petitioner. 5. The respondent no.1 managed the said hospital for few years, but soon it fell in disrepairs and was practically closed down. The respondent no.1 was unable to manage the charitable hospital with the available trust funds. 4 It therefore proposed to enter into a Memorandum of Understanding with the respondent no.2 and approached the Charity Commissioner for a permission under section 36 of the Bombay Public Trusts Act (for short “BPT Act”). By an order dated 3rd November 2004 passed in Misc. Application No. 94 of 2004, the Charity Commissioner held that in view of the fact that Indian Red Cross Society had been exempted from all the provisions of Bombay Pubic Trusts Act except Chapter IV thereof by the Government vide notification dated 24th February 1992, his permission under section 36 of the BPT Act was not necessary. Thereafter the respondent no.1 entered into a Memorandum of Understanding (for short “the MOU”) with the respondent no.2 on 13th July 2005. The present chamber summons has been taken out by the applicant for setting aside the order of this Court dated 8th November 1993 and for a declaration that the MOU was illegal. In my view, the chamber summons is not maintainable for the reasons mentioned below: 7. This chamber summons has been taken out in Misc. Petition No.48 of 1990 which has been decided on 8th November 1993 in terms of the minutes of order. If the petitioner was aggrieved by the decision dated 8th November 1993, he possibly had two remedies; one to challenge the order in appeal and the other to apply for review of the order, if no appeal was filed. By the present chamber summons, the petitioner is not seeking variation of the order but is seeking to scrap/cancel the order. This, in my view, cannot be done by a chamber summons under the provisions of Rule 121 of the 5 Bombay High Court (O.S.) Rules. 8. Learned counsel for the petitioner submitted that the chamber summons has been taken out under the provisions of section 25 read with section 29 of the Official Trustees Act, 1913. Section 25 of the Official Trustees Act reads thus: “25. Power of High Court to make orders in respect of property vested in Official Trustee.- The High Court may make such orders as it thinks fit respecting any trust property vested in the Official Trustee, or the income or produce thereof.” A proceeding, whether by way of a suit or chamber summons or otherwise, for enforcing the rights under section 25 of the Official Trustees Act can be taken only in respect of a trust property which vests in the Official Trustee. By virtue of the order dated 8th November 1993, the trust property ceased to vest in the Official Trustee because the respondent no.1 was appointed as the trustee in place and stead of the Official Trustee. With effect from 8th November 1993, the trust property stood vested in the respondent no.1. Therefore, on the date of the chamber summons the trust property was not vested in the Official Trustee and, therefore, he could not apply under section 25 of the Official Trustees Act. I fail to see how section 29 of the Official Trustees Act helps the petitioner. Section 29 says that nothing in the 6 Act shall be deemed to prevent the transfer by the Official Trustee of any property vested in him to any other lawfully appointed trustee or any other person if the court so directs. In fact, the Official Trustee himself approached the court for a direction that the trust properties should be transferred to the respondent no.1. The order dated 8th November 1993 was passed by the court transferring the trust property to the respondent no.1. The order was clearly passed by virtue of the power conferred upon the court under section 29 of the Official Trustees Act. It cannot be said that the order dated 8th November 1993 in any way violates the provisions of section 29 of the Official Trustees Act. 9. For these reasons, the chamber summons is not maintainable and is dismissed but with no order as to costs. (D.G. KARNIK, J.)