Hafiz Ahmed Hasan Usmani & Ors v. Peer Hazrat Khwaja Hisamuddin Katallae Zanzani Chisti @ Thorla Shaikh Salla Durgah & Ors.

. On the directions of the Hon’ble the Chief Justice, these First Appeals are assigned to me. 2} Mr.Gorwadkar, learned counsel appearing on behalf of the appellant in 2 First Appeal No.1880 of 2011 submits that although styled as First Appeal, this Appeal is in terms of section 72 of the Bombay Public Trusts Act, 1950 and particularly sub-section 4 thereof and would partake the character of a Second Appeal. The appellant, therefore, will have to satisfy the Court that there is a substantial question of law arising for determination and consideration of this Court. 3} In the submission of Mr.Gorwadkar, the substantial question of law would be as to whether any scheme which has been framed and settled by a Civil Court under section 92 of the Code of Civil Procedure, 1908 (for short, the Code) prior to the enactment of the Bombay Public Trusts Act, 1950 being brought into force can be modified subsequent to this enactment coming into force by the Authority, namely, the Charity Commissioner or his delegates under the Bombay Public Trusts Act, 1950 (the Act, for short) or such modification can only be done and effected by the Civil Court.

In other words, Mr.Gorwadkar submits that the impact of section 52 of the Bombay Public Trust Act has to be noticed and if it had been noticed by the Court below, only one conclusion is possible and that is the power and authority of the Charity Commissioner and his delegate under the Act, is not taken away and rather the Act which is subsequent legislation clarifies this aspect in terms of section 52. 4} On the other hand, it has been contended on behalf of the contesting 3 respondents that the District Court was right in its conclusion, namely that a scheme which is referable to section 50-A of the Act is a scheme which is framed by the Charity Commissioner. It is that scheme alone which can be modified by the Act and that is how sub section 3 of section 50-A of the Act would read. The Charity Commissioner would have no power to modify schemes which are already settled by the Civil Court in terms of sections 92 and 93 of the Code.

Section 52 of the Act, therefore, cannot impact any such settled scheme by a Civil Court and hence the District Court was right in the conclusion that it reached. Resultantly, there is no substantial question of law involved in this Appeal. Hence, it should be dismissed. 5} With the assistance of the learned counsel appearing for the parties, I have perused the order passed by the learned District Judge- I, Pune dated 5 th July 2011. A perusal of the said order with the assistance of parties would indicate that precisely this controversy has been dealt with by the learned District Judge. Hence, in my opinion, the following substantial questions of law will be required to be framed in this First Appeal: (a) Whether a scheme which has been framed by a Civil Court prior to the enactment of the Bombay Public Trust Act, 1950 and under powers conferred vide sections 92 and 93 of the Code of Civil Procedure, 1908 can be modified or varied by the Charity Commissioner by exercising his 4 powers under the Bombay Public Trust Act, 1950 or such schemes can be modified only by the Civil Court even after the Bombay Public Trust, 1950 has been brought into effect?

(b) Whether section 52 of the Bombay Public Trust Act, 1950 can be read as non application of sections 92 and 93 of the Code of Civil Procedure, 1908 to a Public Trust as its long title would read or whether there is any power still left with the Civil Court to modify a scheme settled by it prior to the Bombay Public Trust Act, 1950, coming into force? (c) In other words, whether sections 92 and 93 of the Code would continue to apply to such schemes in relation to Public Charitable Trusts, which have been formed prior to enactment of the Bombay Public Trusts Act, 1950 but are subsequently covered and governed by the same? 6} Since these are substantial questions of law, the Second Appeal is admitted. The contesting respondent No.1 waive service. Rest of the respondents are not contesting parties in the Second Appeal and at the request of Mr.Gorwadkar and at the risk of the appellants their names are deleted from the array of parties.

This Second Appeal is heard forthwith by consent of counsel. 7} After hearing parties at some length and after my attention is invited to 5 section 50-A and 52 of the Bombay Public Trust Act, 1950, I am of the opinion that the attention of the learned District Judge-I, Pune, does not seem to have been invited to any of these aspects particularly section 52 of the Bombay Public Trust Act, 1950. The District Judge was considering an application by the applicants claiming to be Trustees and beneficiaries of Peer Hazrat Khwaja Hisamuddin Katallae Zanzani Chisti @ Thorla Shaikh Salla Dargah. This was an application under section 72 of the BPT Act, 1950. That application challenged the order passed by the Deputy Charity Commissioner, Pune dated 6th August 2007 amending the scheme in relation to this Dargah. One Mr.Kaazi Sayyed Nizamuddin Azizuddin had filed an application under section 50-A(3) of the Act being Scheme Application No.3 of 2006.

The Deputy Charity Commissioner vide order dated 3rd May 2007 framed the scheme. It was challenged before the District Court in Misc. Application No.147 of 2007. The District Court allowed that application and remitted the matter to the Deputy Charity Commissioner for fresh enquiry. After that remand, the Deputy Charity Commissioner has passed an order impugned in the application under section 72, which order was passed on 6th August 2007. It is this order which was challenged in Civil Misc. Application No.833 of 2007 under section 72 of the Act before the District Court, Pune. 8} If point No.1 framed by the learned District Judge-I is perused, it is apparent that he has disposed of the application only on the point of jurisdiction 6 of the Deputy Charity Commissioner to amend, vary and modify a scheme under section 50-A(3) of the Act. The District Judge on perusal of the sub-sections of section 50-A and the undisputed fact that in relation to the said Dargah a scheme was framed by the Civil Court, Pune vide order dated 10 th March 1924 concluded that only the District Court could have been approached for modification of the scheme framed by it.

The Charity Commissioner has no such power. On that conclusion, he has allowed the Misc. Application and set aside the order passed by the Deputy Charity Commissioner. 9} It is this finding which gives rise to the above framed substantial question of law. My attention is invited by Mr.Gorwadkar to the Act and particularly sections 50, 50-A, 51 and 52 to urge that once the Act has come into force, sections 92 and 93 of the Code shall not apply to the Public Trusts. Sub-section 1 of section 52 opens with a non-obstante clause and states that sections 92 and 93 of the Code shall not apply to Public Trust according to Mr.Gorwadkar. Therefore, if section 52 had been noticed by the District Judge-I, Pune, then, his order would not have been that the Deputy Charity Commissioner is denuded of any power and authority to modify the scheme framed prior to the Bombay Public Trusts Act, 1950, coming into force and in relation to a Public Trust.

Once the Bombay Public Trusts Act, 1950 governs the Public Trust, its administration and management, then, such conclusion could not have been arrived at, is the further contention before me. 7 10} The learned counsel appearing for the contesting respondents supported the order passed by the District Judge-I and submitted that in any event the appellant before me cannot claim any relief. 11} Having perused the order under challenge, I am of the opinion that instead of rendering any conclusive finding it would be proper to set aside the order passed by the District Judge-I, Pune and remit the Civil Misc. Application No.833 of 2007 for fresh hearing in accordance with law. The District Judge, Pune to whom the matter will be assigned, shall render his findings and opinion not only on the issue of power and authority of the Deputy Charity Commissioner but also on other points framed and which may be framed for determination in the light of the pleadings.