: 1 : IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO. 2755 OF 2007 APPEAL NO. 2755 OF 2007 APPEAL NO. 2755 OF 2007 Shri.Janardan Aanadrao Patil ... Appellants and Ors. Versus Shri. Guruprasad Raghunath Patil ... Respondents and Ors. Shri.Amit Sale for the Appellants. Shri.Vikas Mali for the Respondents. CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE ON WHICH JUDGMENT IS RESERVED : 13th March, 2008. ON WHICH JUDGMENT IS RESERVED : 13th March, 2008. ON WHICH JUDGMENT IS RESERVED : 13th March, 2008. DATE DATE DATE ON WHICH JUDGMENT IS PRONOUNCED: 2nd April, 2008. ON WHICH JUDGMENT IS PRONOUNCED: 2nd April, 2008. ON WHICH JUDGMENT IS PRONOUNCED: 2nd April, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard the learned advocates appearing for the parties. Considering the nature of the dispute involved, the Appeal is taken up for final disposal at admission stage with the consent of the parties. 2. It will be necessary to briefly refer to the facts of the case. An application was made by the Respondents No. 1 to 5 herein under Section 50-A(1) of the Bombay Public Trusts Act, 1950 praying for framing a Scheme for management and administration of a Public Trust by the name Shri. Trambakeshwar Dev, Mardwadi, Ashta, Taluka Walwa, District Sangli. The said application was allowed by the learned Assistant Charity Commissioner, Sangli Region, Sangli by an order dated 9th February, 2005. Being aggrieved by the said Judgment and Order, the present Appellants filed an Application under Section 72 of the said Act, 1950 : 2 : before the District Court. The said application was rejected by the learned District Judge-1 at Islampur. 3. Though, this Appeal is registered as a First Appeal, in view of the setted legal position, the same will be governed by the constraints of Section 100 of the Code of Civil Procedure, 1908. The questions involved in this Appeal are whether an error was committed by the learned Assistant Charity Commissioner by not giving representation to the legal representatives of all the original trustees while nominating the first board of trustees. Another question which arises is whether the learned Assistant Charity Commissioner committed an error by incorporating in the Scheme a clause to the effect that the eldest son of deceased trustee shall be entitled to be appointed as a trustee in place of the deceased trustee. 4. The submission of the learned Advocate appearing for the Appellants is that there was no necessity of framing a scheme by exercising powers under Section 50-A of the said Act of 1950. It is submitted that there was no proper opportunity given by the learned Assistant Charity Commissioner to the legal representatives of the deceased trustees for representing their case. It is submitted that while appointing the first board of trustees, there is no representation given to the legal representatives of atleast four to five deceased trustees. It is : 3 : submitted that more representation ought to have been given to the legal representatives of the deceased trustees. The precise submission is that as a result of the constitution of the board of trustees made by the learned Charity Commissioner, the original trustees and or their legal representatives will be in minority. 5. The learned advocate for the contesting Respondents invited my attention to the affidavit of the 5th Respondent filed on behalf of Respondent No.1 to 14. It is pointed out in the affidavit that there were six original trustees. It is stated that five out of six trustees died prior to the year 2005. The names of the male legal representatives of the said deceased trustees have been set out in the said affidavit. The advocate for the Respondents pointed out that all the Appellants are not the legal representatives of the deceased original trustees. It is submitted that the legal representatives of many of the deceased trustees did not come forward before the learned Assistant Charity Commissioner and, therefore, representation has not been given to them. It is submitted that there are no existing Rules and Regulations governing the day-to-day administration of the trust. It is submitted that the Temple has a very large income and, therefore, it was necessary that a Scheme should be framed for day-to-day administration of the trust. The learned advocate, therefore, submitted that no interference was called for as no substantial question of law is involved in the Appeal. : 4 : 6. The learned advocate for the Appellants accepts that the persons mentioned at item Nos. 1 to 3 and 5 in paragraph No.2 of the affidavit dated 28th February, 2008 of the 5th Respondent are the deceased trustees. It is stated that one Ganu Patil, whose name appears at Sr.No.3 was a trustee. This position is accepted by the advocate for Respondents. 7. I have carefully considered the submissions. The perusal of the impugned Order shows that there were no Rules and Regulations governing the trust in question. The temple of the trust has some income. At the time of registration of the trust, the mode of succession of the trustees was mentioned as "hereditary". While passing the impugned order and framing a Scheme, the learned Assistant Charity Commissioner recorded a clear finding that there are no Rules and Regulations for the management of the trust and the object of the trust recorded at the time of registration was only pooja, archa and maintenance of the Temple. He found that the trustees had never submitted any change report and the trustees had not submitted any accounts. Therefore, the learned Assistant Charity Commissioner found that there was a necessity of framing the Scheme. The perusal of the Judgment of the learned District Judge shows that the Assistant Charity Commissioner had issued notice to the surviving trustees before framing the Scheme. The learned Judge observed that out of original 6 Trustees, : 5 : 4 had expired and no one had given any information about the deceased trustees to the office of the Charity Commissioner. The learned Judge observed that there was a large income of the trust but the trust was not governed by any Rules and Regulations. Therefore, the learned Judge accepted the finding of the authority that it was necessary and expedient to frame the Scheme. It is very difficult to find fault with the aforesaid finding recorded of the necessity of framing the Scheme. 8. I have perused the Scheme framed by the Authority. The Scheme provides that there will be 15 trustees forming part of the board of trustees and the tenure of the Board of Trustees will be 5 years. The Scheme provides that the original trustees will be hereditary trustees and remaining trustees will be elected by members after the tenure of 5 years is over. The Scheme provides that eldest son of a hereditary trustee will become a trustee after the demise of the original trustee. The Scheme specifically records that the rights of the hereditary trustees have been kept intact. 9. As pointed out earlier, there were 6 original trustees. Therefore, out of 15 Trustees, 6 will be the hereditary trustees and remaining 9 will be elected amongst the members. This is in consonance with democratic principles. If the submission made by the advocate for the Appellants is accepted, the entire : 6 : management of the Trust will continue to vest in few selected families and other members and the devotees will have no representation in the Board of trustees. Therefore, the contention that the members of the families of the hereditary trustees should be in majority cannot be accepted. 10. Clause No.10 of the Scheme provides that the eldest son of the deceased hereditary trustee will become a trustee in his place. In my view, even this Clause needs modification. Before appointing the eldest son as a trustee in place of deceased hereditary trustee, the Assistant Charity Commissioner will have to ascertain whether he is a fit and proper person to act as a trustee. If the Assistant Charity Commissioner finds that the eldest son is not a fit and proper person to become a trustee or that the eldest son is not willing to become a trustee or that the deceased trustee dies without leaving a son, it will be open for the legal representatives of the deceased trustee to nominate one of the legal representatives to become a trustee. Such nomination will have to be made by consent of all the legal representatives of the deceased trustees. In the event, the legal representatives are unable to reach an agreement within stipulated time from the date of death of the hereditary trustee, the Assistant Charity Commissioner will have to appoint one of the legal representatives of the deceased trustee as a trustee after notice to all the legal representatives and after ascertaining : 7 : fitness of such legal representative. After a legal representative is nominated by consent or is appointed under the order of the Assistant Charity Commissioner, such legal representative will become a hereditary trustee and same procedure will have to be followed after his demise. 11. In the affidavit dated 28th February, 2003 filed by the Respondent No.5 Shri.Shankar Shripati Deshmukh, the names of legal representatives of the deceased Trustees have been set out and there is no dispute between the parties the said persons are the legal representatives of the deceased trustees. The legal representatives of all 6 Trustees will have to be given representation as per the Scheme and, therefore, the first board of trustees appointed by the learned Assistant Charity Commissioner will have to be reconstituted after hearing of concerned parties. In my view, subject to what is held earlier, no other Clause of the Scheme needs any modification. 12. Therefore, for limited purpose, Order of Remand will have to be passed. 13. Hence, I pass following order:- (i) The impugned Judgments and Orders are modified. (ii) The parties are directed to appear : 8 : before the learned Assistant Charity Commissioner on 6th May, 2008 in Application No.552 of 2004. (iii) The Scheme already framed by the Assistant Charity Commissioner is confirmed, save and except, the Clause No.7 and 10 thereof. (iv) The learned Assistant Charity Commissioner will modify Clause No.10 of the Scheme only in sofar as the mode of succession of six hereditary trustee is concerned in the light of the observations made in this Judgment. (v) The first Board of Trustee constituted by the Assistant Charity Commissioner shall be reconstituted after hearing all concerned parties. While reconstituting the board of trustees, representation will be given to the legal representatives of the deceased original Trustees in terms of the Scheme. (vi) This exercise shall be completed by the learned Assistant Charity Commissioner on or before 31st August, 2008. (vii) Till the board of trustees is : 9 : reconstituted, the trustees appointed under the impugned Order will continue to discharge duty as trustees without taking any major policy decisions. 14. Appeal is partly allowed in the above terms with no order as to costs. 15. All parties and concerned authority to act upon an authenticated copy of this Order. (A.S. (A.S. (A.S. Oka, J) Oka, J) Oka, J)