-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.2698 OF 2007 APPEAL NO.2698 OF 2007 APPEAL NO.2698 OF 2007 Deo Siddheshwar Rawalnath ...Appellant vs. Bhikaji Babaji Rawool & Ors. ...Respondents Mr.A.S.Khandeparkar i/b M/s.Khandeparkar & Associates for the Appellant Mr.P.N.Karlekar for the Respondents. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 7, 2008. : MARCH 7, 2008. : MARCH 7, 2008. P.C.: P.C.: P.C.: 1. Heard learned Advocate for the Appellant. This Appeal is preferred under sub section 4 of section 72 of the Bombay Public Trusts Act,1950 (hereinafter referred to as the said Act). The learned Assistant Charity Commissioner has passed an order under section 50-A (1)of the said Act and has framed a scheme for proper management and administration of the Appellant-trust. An application was preferred before the District Court under section 72 of the said Act read with sub section 4 of the section 50-A of the said Act. The application was preferred by the preset Appellant. The present Appellant is the trust represented by only one trustee. By the impugned Judgment and order, the learned Principal District Judge has partly allowed the application filed by the Appellant. The operative part of the order reads thus : -2- "1. The Civil Misc. Appln. No.25/207 and 38/2007 are partly allowed with no costs. 2. The Scheme at Schedule ‘A’, so framed by the Assistant Charity Commissioner, Sindhudurg, Oros for the management of the Trust "Shri Deo Siddheshwar Fawalnath, Khanoli, Taluka Vengurla, District Sindhudurg", is hereby set aside and the learned Assistant Charity Commissioner is hereby directed to frame the Scheme afresh or modify in material clauses in the light of observations and the directions given by this Court in the judgment. 3. The order of the learned Assistant Charity Commissioner Sindhudurg-Oros of framing of the Scheme for the Trust passed in Scheme proceeding No.3/2001, for the better and efficient management of the Trust, is hereby confirmed and upheld." 2. The submission of the learned Advocate for the Appellant is that while exercising power under section 72 of the said Act, the learned District Judge could have himself modified the scheme or by setting aside the entire order of the Assistant Charity Commissioner directed him to frame the scheme afresh. He pointed out that the Assistant Charity Commissioner has been directed to modify the scheme in the light of the observations and directions contained in the -3- impugned order. He submitted that thus the learned Assistant Charity commissioner will not have any choice but to modify the scheme in the light of the observations made in the impugned Judgment. He placed reliance on the decision of this Court dated 26th August 1936 in Appeal No.852 of 1932. He submitted that as a result of the directions contained in the impugned order, servants (chakars) will get majority and other trustees who have hereditary right will be in minority. He submitted that the directions incorporated in the impugned order will defeat the right of family of "Gaonkars i.e. Prabhu Khanolkars" to issue directions to the servants (Sevaks) who belong to Rawool family. 3. I have carefully considered the submissions. In view of settled position of law, though this Appeal is numbered as a First Appeal, it will be governed by the constraints of section 100 of the Code of Civil Procedure,1908. The power of the District Court while dealing with the application under section 72 of the said Act is very wide. The court has power to confirm, revoke or modify the decision of the Assistant Charity Commissioner. In the present case, the District Judge was of the view that the certain modifications were required in the scheme framed by the Assistant Charity Commissioner. The said modifications have been incorporated in the Judgment and in terms of the directions contained in the Judgment, the learned Assistant Charity Commissioner has been directed to -4- frame the scheme afresh or to modify the material clauses of the scheme which is already framed by him. I find that order passed by the District Court is well within the scope of power under section 72 of the said Act. 4. In paragraph 25 of its Judgment, the District Judge has held thus : "25...In short, the appointment of the trustees by way of election, which has been proposed by Assistant Charity Commissioner, has taken out the hereditary rights of the Gaonkars and particularly of three groups known as ‘Vakals’ i.e Wainkankar, Niavatkar and Amdoskar. In fact, the learned Assistant Charity Commissioner ought to have carved out a special category for the appointment of the members of the three Vakals i.e. Waingankar Nivatkar and Amdoskar as the trustees. In short, no due representation has been given to the hereditary trustees or to the families or the groups known as ‘Waingankar, Nivatkar and Ambdoskar’. Furthermore the learned Assistant Charity Commissioner has not given a representation to the devotees in the board of trustees. Apart from this, it appears to me that the seven persons who belonged to Rawool family, Khanolkar family and Aavlegaonkar family, are the persons belonged to one group. No reasons have been assigned as to why the -5- person at Sr.Nos. 5 to 11 have been appointed as the trustees of the Trust in the panel of the trustees. If at all the learned Assistant Charity Commissioner wanted to give representation to the Chakars, then he should have considered that there are various types of Chakars such as dream beaters, torch lighters (Mashalwale), clothes washers, (Parit), Poojari of three deities. One can understand a representation to one person from each classes or categories of Chakars, but I cannot understand the appointment of seven persons as trustees of the trust whose interest is common. If such seven persons are appointed as the trustee then it is nothing but handing over the management of the Trust to Chakars class or the servant class in the breach of the hereditary rights of the Gavakars of becoming the trustees of the Trust. As such, I find that the appointment of the trustees whose names are mentioned at Sr.Nos.1 to 10 in Clause No.9 of the scheme at Schedule ‘A’, is totally unsustainable." The directions given by the learned Principal District Judge read thus : "1) Size of the Board of trustees or the number of the trustee. 2) The due representation to the Gaonkars in the board of -6- trustees so that their hereditary right to become the trustees should not be defeated. 3) If at all the representation to the various classes of Chakars is required to be given then it should be limited to one person belonged to each category. 4) Further the due representation is required to be given to the devotees and the local residents ie. the residents of the village Khanoli and adjoining area where the temples are situated. 5) Above all, nominal fees for becoming the member of the Trust is prescribed. In fact the fees for becoming the member of the trust ought to have been prescribed at Rs.1000/- or above. Further for generating the funds of the Trust, the separate category for Donor members or the donor trustees is required to be carved out. 27. So all in all. I find the scheme requires modification in the material clauses, which I have mentioned above. Further while carving out the constitution of the trustees, the representation is required to be given to the Gaonkars, villagers, devotees, donors in equal numbers. The hereditary rights of the Gaonkars to become the trustees should be kept intact." -7- 5. Thus, what has been observed by the Principal District Judge is that only one person belonging to each class or category of the servants (Chakars) will be given a place in the board of trustees. Clause 2 of the directions contemplate that due representation to the members of the Gaonkar family will be given in the board of trustees so that their hereditary right to become trustees will not be affected. Notwithstanding the said directions, it is obvious that the employees of the trust will be naturally performing their duties subject to the directions issued by the board of trustees. Therefore, the directions incorporated in the impugned order are not contrary to the aforesaid decision of this court. 6. I find no error in the view taken by the learned Principal District Judge. No substantial question of law arises. Second Appeal is dismissed with no order as to costs. 7. In view of dismissal of the Appeal, Civil Application No.992 of 2008 does not survive and the same is disposed of. JUDGE JUDGE JUDGE