1 F.A.No.2714/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.2714 OF 2010. Laxminarayan S/o Ganeshlal Sharma ... Appellant. Versus Sakharam S/o Surajmal Agrawal and another. ... Respondents. ... Mr.A.G.Dalal, advocate for the appellant. Mr.S.R.Barlinge, advocate for the Respondent No. 1. ... CORAM : S.V.GANGAPURWALA,J. Date : 08.03.2011. PER COURT 1. The present appellant assails the order passed by the District Judge,Hingoli, thereby dismissing the Misc. Application and confirming the order and judgment passed by the Assistant 2 F.A.No.2714/10 Charity Commissioner, Parbhani, by virtue of which the application filed by the present Respondent U/s 50-A of the Bombay Public Trusts Act, came to be allowed. 2. Mr.Dalal, learned counsel for the appellant strenuously contends that the District Judge committed an error in rejecting the Misc. Application filed by the appellant U/s 56-B of the Bombay Public Trusts Act. It was the duty of the District Judge to issue notice and the proceedings before the District Judge were not bad in law on the ground that the present appellant had not arrayed the Assistant Charity Commissioner as party. Mr.Dalal, learned counsel further contended that the scheme was settled by the Assistant Charity Commissioner without issuing notice to the present appellant, who was an interested person. On that count itself the order of the Assistant Charity Commissioner deserves to be set aside. It was further contended by the learned counsel that the scheme could not have been framed in the present case inasmuch as the property was a disputed property 3 F.A.No.2714/10 of which the litigation is pending even today before the High Court in Writ Petition. The said proceedings are arising out of the judgments delivered by revenue authorities. As there is no trust property in existence, the question of framing of scheme does not arise at all. Mr.Dalal, further contended that the present Respondent does not have any right, title or interest over the suit property of the Trust. All these aspects have not been considered by the authorities below and as such they give rise to substantial question of law. 3. Per contra, Mr.Barlinge, learned counsel for the Respondent submits that it was not mandatory for the Assistant Charity Commissioner to issue notice to the present appellant as he was not the Trustee. According to him, the rights of the present appellant were already negatived in the year 1991 itself in the proceedings before the Joint Charity Commissioner, wherein it was held that the present Respondent was the Manager and he was having right to render the services to the 4 F.A.No.2714/10 Devasthan and his rights are hereditary. According to the learned counsel, no substantial question of law arises in the present matter and the appellant has not even framed the substantial questions of law. 4. This Court in an appeal can frame the substantial questions of law, invoking its power U/s 100(4) of the C.P.C. Just because the appellant has not formulated the substantial questions of law, that would not be sufficient to absolve the Court of its duty to consider the merits of the matter. 5. Section 50-A of the Bombay Public Trusts Act, which deals with the powers of the Assistant Charity Commissioner to frame the scheme is unambiguous. Whenever an application is made for framing of a scheme or for its modification, then as per phraseology of the said section, the Assistant Charity Commissioner, before whom the proceedings for framing of scheme are pending has to issue notice to the Trustees. The said provision does not mandate 5 F.A.No.2714/10 issuance of notice to any other person except the Trustee. In light of the text of the said provision, simply because notice to the present appellant was not issued, the proceedings would not stand vitiated. Moreover, in the proceedings before the Assistant Charity Commissioner taken up by the parties in the year 1990, the rights of the parties were crystallised and it was held that the present Respondent is the Manager and has right to render services to the Devasthan and his rights are hereditary. The said judgment has become final and the alleged rights of the present appellant were negatived. The contention that the property is a disputed one and so no scheme could have been framed does not hold any substance inasmuch as there is no finding of any competent Court that the property in question is either owned by the appellant or is a Inam property. Mere pendency of a Writ Petition arising out of revenue proceedings, would not be sufficient to hold that the scheme could not have been framed. Mr.Dalal, learned counsel fairly states that there are no prohibitory orders passed in the said Writ 6 F.A.No.2714/10 Petition. 6. In light of the above, no substantial question of law arises and as such the appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) asp/office/fa271410