: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2383 OF 2007 FIRST APPEAL NO.2383 OF 2007 FIRST APPEAL NO.2383 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.3865 OF 2007 CIVIL APPLICATION NO.3865 OF 2007 CIVIL APPLICATION NO.3865 OF 2007 Tatyarao Anandrao Jadhav & Ors. ...Appellants V/s. Sevagiri Shikshan Prasarak Mandal . & Ors. ...Respondents Mr.P.B. Shah, Advocate, for the Appellants. Mr.Dilip Bodke, Advocate, for Respondent Nos.1 to 12. Mr.B.H. Mehta, AGP, for Respondent Nos.13 and 14. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 26TH MARCH, 2008. DATE : 26TH MARCH, 2008. DATE : 26TH MARCH, 2008. ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. Heard Advocates appearing for the parties. 2. The dispute relates to a public trust by the name Shri Sevagiri Shikshan Prasarak Mandal, Pusegaon which is duly registered under the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the said Act"). An application was made under Section 50-A(1) of the said Act of 1950 praying for framing scheme for management and administration of the said Trust. The said application was allowed by the learned Assistant Charity Commissioner and a scheme was framed. : 2 : 3. An application was made under section 72 read with section 4 of section 50-A of the said Act of 1950 before the District Court for challenging the order. The said application has been rejected by the District Court. 4. The submission of the learned Advocate appearing for the appellants is that the Trust was initially registered as a society under the Societies’ Registration Act, 1860. He pointed out that at the time of registration there were rules and regulations of the Trust. He submitted that there are provisions under the said Act of 1860 for amending the said rules and regulations and in particular clause No.12 of the rules make a provision for amendment of the said rules by a resolution passed in a general body by the majority. He, therefore, submitted that the Assistant Charity Commissioner could not have exercised the powers under sub-section 1 of section 50-A of the said Act of 1950. 5. His second submission is that the appellant No.1 has been a treasurer of the said Trust and his name appears in the register maintained under the said Act of 1950. The submission is that no notice of the : 3 : application under section 50-A was served to the 1st appellant. It is submitted that the public notice of the proceedings was also not published. Reliance has been placed on certain orders which show that the 1st appellant was a treasurer. 6. Lastly, it is submitted that while appointing the first board of trustees, the Assistant Charity Commissioner has selected persons belonging to only one group and there is no representation given to the appellants. 7. I have carefully considered the submissions. Sub-section 13 of section 2 of the said Act of 1950 defines a "Public Trust". The definition of a Public Trust includes a society formed and registered under the Societies’ Registration Act, 1860. Therefore, by a legal friction, the society becomes a public trust under the said Act of 1950 and admittedly the same has been duly registered as a public trust under the said Act of 1950. 8. The Charity Commissioner under the provisions of the said Act of 1950 is a custodian of all the public trusts and therefore section 50-A(1) confers powers on the Charity Commissioner to frame a scheme : 4 : in the interests of the proper management and administration of a public trust. Therefore, merely because the trust in question was registered as a society under the said Act of 1860, it cannot be said that the Charity Commissioner is divested of the powers under Section 50-A(1) of the said Act of 1950 to frame the scheme. 9. In sofar as the second submission is concerned, sub-section (1) of section 50-A does not contemplate issuance of a public notice before framing the scheme. As far as service of notice to the 1st appellant is concerned, the District Court has referred to the oral evidence of the 1st appellant in which he admitted his signature on the resignation letter allegedly submitted by him in the year 1978. 10. The learned Assistant Charity Commissioner while passing the order was conscious of the fact that there was no notice served to the 1st appellant. The Assistant Charity Commissioner noted that the 1st appellant was no more a Member from the year 1971. My attention was invited to an order passed by the learned Joint Charity Commissioner dated 10th July, 2000 in an Appeal arising out of a change report filed by the 1st appellant. Perusal of paragraph No.25 of : 5 : the said order shows that there is no finding recorded that the 1st appellant continued to be the treasurer. In fact, the learned Joint Charity Commissioner has passed an order of remand. 11. Considering the aforesaid aspects, it is difficult to find fault with the order of the learned Assistant Charity Commissioner on the ground that notice was not served to the 1st appellant. 12. The scheme framed by the learned Assistant Charity Commissioner provides that the term of the first board of trustees will be for a period of five years and thereafter a new board of trustees will be constituted in terms of the scheme. Therefore, there is no reason to interfere with the impugned Order on the ground that the trustees appointed by the Assistant Charity Commissioner belong to one particular group. 13. The rules and regulations of the Trust were framed in the year 1965. The Assistant Charity Commissioner while deciding the application under Section 50-A in the year 2001 found that there was an exigency to frame a scheme for proper administration and management of the Trust. Accordingly, a scheme : 6 : has been framed. 14. Though this Appeal is numbered as First Appeal, in view of settled position of law, the same is governed by the constraints of a second Appeal. No substantial question of law arises. The Appeal is dismissed. 15. In view of dismissal of the Appeal, Civil Application No.3865 of 2007 does not survive and the same is disposed of. 16. It is obvious that all other pending proceedings under the said Act of 1950 will be decided on its own merits and the observations made in this Judgment are for limited purposes of considering the challenge made to the order framing the scheme. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]