One fine morning, my very good friend Advocate Pratik Chaudhari discussed with me various provisions of The Gujarat Public Trust Act, 1950 ( herein after referred as the Act). One interesting point discussed between us was related to the provisions of section 50-A read with section 72 of the Act. That discussion became the source of inspiration to write this article. Let me discuss it in detail.
The interesting point was that decision taken by the Charity Commissioner under Section 50-A of the Act required a Decree to be drawn. To elaborate this issue, it is obvious to discuss about the provisions of Section 50, 50-A and 72 of the Act and the definition of Decree provided under section 2(2) of Code of Civil Procedure (in short CPC).
Section 50 embodies suit relating to the public Trusts which says that suit is instituted for the various reliefs mentioned in that section. Such as order of recovery of the possession of suit property, removal or appointment of any trustee or manager, vesting any property in a trustee, a direction for taking account or making certain inquiries, declaration as to what proportion of the Trust property or of the interest therein shall be allocated to any particular object of the Trust, a direction authorising the whole or any part of the Trust property to be let, sold, mortgaged or exchanged, the settlement or alterations in a scheme already settled or granting such other relief as the nature of the case may require.
As per the second proviso of Section 50 of the Act, the Charity Commissioner has two options. (1) he may institute a suit or (2) he may make an application to the Court for a variation or alteration in a scheme already settled.
Perusal of Section 50-A of the Act, it transpires that Charity Commissioner has power to frame a scheme for the management or administration of public Trust. Section 50-A is used for the subjects mentioned in sub section 2(A) of Section 50-A such as the number of the trustees, the mode of appointment of trustees which includes appointment of first trustees, vesting the trust property in the trustees so appointed, mode of filing vacancy of a trustee, the remuneration of a trustee or manager of the Public Trust or a clarification of the objects of the Public Trust.
Section 50-A (4) of the Act is very much important to answer the question mentioned in the title of this Article.
Section 50-A (4) says that the scheme framed under sub section (1) or (2) or modified u/s (3) shall have effect as a scheme settled or altered, as the case may be, under a decree of a court under section 50 , subject to the decision of the competent court under section 72.
Now the definition of Decree provided in Section 2(2) of CPC speaks about formal expression an adjudication of a Court which conclusively determines the right of the parties with regards to all or any of the matters in controversy in the suit. It is clear by this definition that Decree is drawn after completion of the suit and not an application.
Section 72 of the Act says to file an application is required to be filed within sixty days before a court to set aside the decision taken by the Charity Commissioner and not the suit as mentioned in the definition of Decree.
Considering the above mentioned legal scenerio, my answer of the issue whether a Decree is followed by the decision of Charity Commissioner under section 50 -A of the Act is as under:
Section 50 -A (4) is in connection with section 50 and section 72 of the Act, however, section 72 is only in connection with section 50-A and not with s.50.
Section 72 is applied in respect of the decision taken by Charity Commissioner under Section 50-A and Section 50-A is read with Section 50 for the purpose of a Decree with regards to get the scheme effected. Section 72 says that an aggrieved person may file an application to the Court to set aside the decision taken by Charity Commissioner u/s. 50-A. The scheme framed by Charity Commissioner shall be effective only under a decree of a Court u/s.50 of the Act.
Section 72(4) plays an important role as it says that an appeal shall lie to the High Court against the decision of the Court under sub section (2) as if such decision was a decree from which an appeal ordinary lies. Now the question is why the word 'as if' is mentioned in section 72 (4) by the Legislature or what should be the intention of them to place the word 'as if' in that section. The reasons are as under.
1) S. 50-A does not speak about suit proceedings.
2) It does not speak about Court proceedings.
3) It speaks about power of Charity Commissioner qua framing the schemes.
4) Section 50-A (4) says that a scheme framed or modified under S.50 (1),(2) and (3) respectively shall have effect as a scheme under a Decree of a court u/s. 50.
5) S.72 says about application and not for suit.
Hence the term 'as if' is mentioned by the Legislature.
To conclude , I am of the considered opinion that a decision of framing the scheme taken by Charity Commissioner is followed by a Decree in accordance with the reading of Section 50-A (4) with Section 50 and Section 72. Further, as per Section 76 of the Act, the provisions of Code of Civil Procedure shall apply to all proceedings before the Court under the Trust Act and appeal is against the decision of the Court under section 72(2), however, the legal dilemma is that if the decree is not executed for a certain period of time, what would be the legal and factual situation is a question and the purpose of section 50-A becomes vitiated.
Chirag Bhatt
Advocate
9824025041
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