The first and fore most reason for the same is that Section 50 is an enabling provision. Ordinarily, trustees as legal owners alone are able to file suits for the recovery of possession of trust properties. As for example, a trespasser, if sued by a third, party, would be able to successfully resist the suit by banking on his de facto possession of the property. To put it in legal parlance, possession is a good point, except against the true owner. That is the established dictum of law. Ordinarily, the Charity Commissioner or the persons claiming to be interested as beneficiaries, but having no legal title in them, would fail in their suits, if they file the same -for the recovery of possession of the trust property, even if they allege that the defendant is in adverse possession and the interest of such beneficiaries are likely to be jeopardised in the ultimate analysis. Such a suit, according to general property law and general procedural law, is bound to fail. In the general interest of public trust properties, which are close to the heart of the Legislature, a special provision has, therefore, been made in Section 50 of the Act clothing the Charity Commissioner or the beneficiaries of the public trust to institute suits for various reliefs set out in clauses (a) to (h) of Section 50 of the Act. But for this enabling provision, the Charity Commissioner or the beneficiaries would not be in a position to institute such suits. The Charity Commissioner, however, is given power to file such suits on his own. The beneficiaries at times might be tempted to raise the disputes under the alleged guise of their interest in the trust properties and may at times work counter to the powers of the trustees. That is why, a condition has been imposed on their right to file such suits and the condition is that they must procure the permission of the Charity Commissioner before they embark on such litigation under the assumed colour of safeguarding the interests of the public trust. The substantial portion of Section 50, therefore, is to be confined to the power of Charity Commissioner and the power of the beneficiaries of the trust to institute those suits enumerated in clauses (a) to (h) of Section 50 of the Act, where the background is one depicted in clauses (i) or (ii) or (iii) of the initial part of Section 50.
5. Mr. Shah's submission, however, is that the proviso disables all persons to file suits claiming any of the reliefs specified in that section. In his submission, this provision, which is mandatory in character, takes away the right of all other persons. It is difficult to subscribe to this view canvassed by Mr. Shah. All that the proviso forbids is that those who are given powers in the earlier part of Section 50 are to exercise those powers only in compliance with the provisions of that Act and not otherwise. S9 the proviso is a sort of a restriction placed on the powers of the Charity Commissioner, and on the powers of the beneficiaries of the trust, who are designated by Section 50 as "persons having an interest in the trust". The proviso is not to be enlarged in its connotation to cover even trustees.
IN THE HIGH COURT OF GUJARAT
Civil Revn. Appln. No. 1139 of 1979
Decided On: 08.01.1980
Nadiad Nagarpalika, Nadiad Vs. Vithalbhai Zaverbhai Patel
Hon'ble Judges/Coram:
N.H. Bhatt, J.
Citation : AIR 1980 Guj 161
1. This is a revision application by the Nadiad Municipality, the, defendant in the Special Civil Suit No. 208 of 1975, filed by the respondents original plaintiffs against the municipality in the court of the Civil Judge, (S. D.) Nadiad. The suit is filed for recovery of possession of the suit land on the ground that the petitioner-municipality has trespassed upon the land of the plaintiffs, who are trustees of a registered public trust. The Municipality appeared in the suit and inter alia contended that the petitioner-municipality had been put into possession of the suit land by the then Manager of the Public Trust for the purpose of, making a public garden on the suit land and acting on that permissive possession, the Municipality had put up a public garden for the use of the public, after incurring heavy expenditure. The Municipality, therefore, contended 'that the suit for possession, which was filed without the permission of the Charity Commissioner is required under Section 50 of the Bombay Public Trusts Act, was still-born and on ' that ground was liable to be dismissed. That particular preliminary contention taken up by the Municipality was negatived by the learned trial Judge and this has occasioned the present revision application.
2. The question that has been raised by the petitioner-municipality and canvassed vigorously by Mr. M. C. Shah for that public authority, is of considerable importance and, therefore , requires to be closely examined and neatly decided.
3. Section '50 of the Bombay Public Trust Act, as applicable to the State of Gujarat reads as follows:-
"50 in any case -
(i) Where it is alleged that there is a breach of a public trust;
(ii) Where a direction is required to recover possession of a property belonging, to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust,
Or
(iii) Where the direction of the court is deemed necessary' for the administration of any public trust.
The charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit whether contentious or not in the court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs --
(a) An order for the recovery of the possession of such property or proceeds thereof: -
(b) The removal of any trustee or manager -
(c) The appointment of a new trustee or manager;
(cc) vesting any property in a trustee;
(d) A direction for taking accounts and making certain inquiries.
(e) A declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust.
(f) A direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged.
(g) The settlement of a scheme or variations or alterations in a scheme already settled, or
(h) Granting such further or other relief as the nature of the case may require;
Provided that no suit claiming any of the reliefs specified in this section 'shall be instituted in respect of any public trust except in conformity with the provisions thereof:
Provided further that the Charity Commissioner may, instead of instituting a suit, make an application to the Court for a variation or alteration in a scheme already settled".
Mr. Shah submits that Section 50 by necessary implication takes away the normal right of trustees, who are legal owners, to institute suits for the recovery of the possession of such property belonging to a public trust from any person including a person holding adversely to the public trust, Mr. Shah's submission is that this is a case where there is an allegation, of course of the defendant, that there was assumedly a breach of the public trust by the then trustee-cum-manager of this public trust and so clause (i) of Section 50 is attracted. Mr. Shah's next submission is that the case is the one where a direction is required to recover possession of a property belonging to a public trust from the defendant, who according to the plaintiff, is holding adversely to the public trust. So, according to Mr. Shah, clause (ii) of Section 50 is also attracted to the present case. Mr. Shah's further submission is that the suit in the present case is "for the recovery of the possession of the trust property" and therefore, it is the suit of the type mentioned in clause (a) of Section 50 of the Act. The sum and substance of the, argument of Mr. Shah, therefore, is that this is a suit clearly falling within the strait jacket of Section 50 of the Act and, therefore, by virtue of the first proviso of that section, no suit could be instituted in respect of the public trust except in conformity with the provisions of this section. Mr. Shah's submission in final analysis, therefore, is that by virtue of the proviso, the present suit claiming reliefs set out in clause (a) of the Section 50, could be instituted only in conformity with the provisions of this Act and not otherwise.
4. 1 frankly says that Mr. Shah has put forward his submissions in a very ingenious manner. However, on the close scrutiny of the provisions of Section 50 of the Act, in the light of the general property law, his submissions cannot be accepted. The first and fore most reason for the same is that Section 50 is an enabling provision. Ordinarily, trustees as legal owners alone are able to file suits for the recovery of possession of trust properties. As for example, a trespasser, if sued by a third, party, would be able to successfully resist the suit by banking on his de facto possession of the property. To put it in legal parlance, possession is a good point, except against the true owner. That is the established dictum of law. Ordinarily, the Charity Commissioner or the persons claiming to be interested as beneficiaries, but having no legal title in them, would fail in their suits, if they file the same -for the recovery of possession of the trust property, even if they allege that the defendant is in adverse possession and the interest of such beneficiaries are likely to be jeopardised in the ultimate analysis. Such a suit, according to general property law and general procedural law, is bound to fail. In the general interest of public trust properties, which are close to the heart of the Legislature, a special provision has, therefore, been made in Section 50 of the Act clothing the Charity Commissioner or the beneficiaries of the public trust to institute suits for various reliefs set out in clauses (a) to (h) of Section 50 of the Act. But for this enabling provision, the Charity Commissioner or the beneficiaries would not be in a position to institute such suits. The Charity Commissioner, however, is given power to file such suits on his own. The beneficiaries at times might be tempted to raise the disputes under the alleged guise of their interest in the trust properties and may at times work counter to the powers of the trustees. That is why, a condition has been imposed on their right to file such suits and the condition is that they must procure the permission of the Charity Commissioner before they embark on such litigation under the assumed colour of safeguarding the interests of the public trust. The substantial portion of Section 50, therefore, is to be confined to the power of Charity Commissioner and the power of the beneficiaries of the trust to institute those suits enumerated in clauses (a) to (h) of Section 50 of the Act, where the background is one depicted in clauses (i) or (ii) or (iii) of the initial part of Section 50.
5. Mr. Shah's submission, however, is that the proviso disables all persons to file suits claiming any of the reliefs specified in that section. In his submission, this provision, which is mandatory in character, takes away the right of all other persons. It is difficult to subscribe to this view canvassed by Mr. Shah. All that the proviso forbids is that those who are given powers in the earlier part of Section 50 are to exercise those powers only in compliance with the provisions of that Act and not otherwise. S9 the proviso is a sort of a restriction placed on the powers of the Charity Commissioner, and on the powers of the beneficiaries of the trust, who are designated by Section 50 as "persons having an interest in the trust". The proviso is not to be enlarged in its connotation to cover even trustees. The above-mentioned view that I have taken also can be deduced from one clear indicia in the section itself. The section provides for two or more persons who can institute such suits after obtaining the permission of the Charity Commissioner. Suppose, there is a sole trustee of a public trust. If what Mr. Shah has canvassed is to be accepted as an absolute proposition of law, namely, Section 50 of the Act, such a sole trustee will not be able to file the suit of the nature of clause (a) of Section 50 of the Act. The idea, therefore, paramount in the mind of the Legislature is to clothe the Charity Commissioner or minimum two or more persons having interest in the trust to institute suits of the nature even de hors the trustees. Such a situation ordinarily would arise when the trustees are remiss or slack in their duties. Section 50, therefore, could not have been intended to impose an embargo on the general powers of the trustees to file suits for the recovery of the possession of the trust property either from tenants or licensees or from trespassers.
6. In above view of the matter, the contention put forward by the petitioner municipality deserves to be rejected. Rule is accordingly discharged with no order as to costs.
7. Rule discharged.
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