Holding

Proceedings under Section 50A of the Bombay Public Trusts Act, 1950 do not abate on the death of an applicant, and the Charity Commissioner may allow belated substitution or addition of parties; such proceedings are not governed by the Civil Procedure Code but by the procedure prescribed for Small Causes Courts.

Summary

The case concerned applications under Section 50A of the Bombay Public Trusts Act, 1950 for settling the scheme of a public trust. One of the original applicants died and, after a long delay, his son sought substitution; another set of applicants also sought to be joined. The Charity Commissioner allowed both substitutions, but the order was challenged on the ground that the proceedings should abate under the Civil Procedure Code because the heirs were not brought on record within the prescribed time and that the Commissioner was bound to follow CPC procedure as per Rule 7 of the Bombay Public Trust Rules, 1951 and Section 6 of the Presidency Small Causes Courts Act, 1882. The High Court dismissed the challenge, and the appeal before this Court affirmed that view. The Court held that proceedings under Section 50A do not abate on the death of an applicant, the Charity Commissioner has the power to permit belated substitution or addition of parties, and such proceedings are not governed by the CPC but by the procedure prescribed for Small Causes Courts. Consequently, the appeal was dismissed.

Issues considered

Whether proceedings under Section 50A of the Bombay Public Trusts Act, 1950 abate on the death of an applicant and failure to substitute heirs within the time prescribed by the Civil Procedure Code.
Whether the Charity Commissioner is bound to follow the procedure laid down in the Civil Procedure Code for proceedings under Section 50A, as alleged on the basis of Rule 7 of the Bombay Public Trust Rules, 1951 and Section 6 of the Presidency Small Causes Courts Act, 1882.

Legislation cited

Bombay Public Trusts Act, 1950s. 3, s. 35, s. 36, s. 36B, s. 37, s. 39, s. 40, s. 41, s. 47A, s. 4/A, s. 4/B, s. 50A, s. 69
Code of Civil Procedure, 1908
Presidency Small Causes Courts Act, 1882s. 6, s. 9

Subjects

public trusttrust schemesubstitution of partiesabatementCharity Commissionerprocedural lawBombay Public Trusts ActSmall Causes CourtCivil Procedure Code

Judgment

A SAIY AD MOHAMMAD BAKER EL-ED ROOS (DEAD) BY LRS.
v.
ABDULHABIB HASAN ARAB AND ORS. ),.._
~,

APRIL 2, 1998

B [K.VENKATASWAMI AND A.P. MISRA, JJ.]

Trusts and Trustees : Bombay Public Trusts Act, 1950-Section 50A-
Application under, moved in the prescribedform by two persons.for initiating
proceeding for settlement of scheme of a public trust-Demise of one of the
c applicants-Belated application for substitution by the son of the deceased
applicant and similar application by another set of two persons for being
joined also as applicants in the said scheme-Applications allowed by the
Charity Commissioner-Challenge to on the grounds that the heirs of the
deceased applicant not being brought on record within the prescribed time,
the proceedings would abate by virtue of provisions under the C.P. C-Held,
D
the proceedings under Section 50A of the Bombay Public Trust Act, 1950
would not abate and the Charity Commissioner has powers to grant
substitution even if belated or add parties in the said proceedings-Sections
3, 35, 36, 36B, 37, 39, 40, 41, 4/A, 4/B, 47A, 69.

E Bombay Public Trust Rules, 1951/Presidency Small Causes Courts Act,
1882-Rule 71 Sections 6, 9-Proceedings before the Charity Commissioner-
Governance of-Held, Civil Procedure Code not applicable to such
proceedings-It is the High Court by rule to prescribe the procedure which
is to be followed by the Small Causes Court and not what is provided under
Civil Procedure Code-Contention that proceedings before the Charity
F Commissioner to be what is provided in Civil Procedure Code, rejected--
A
Code of Civil Procedure,1908.
...
Procedural law-Held, is always subservient to the substantive law, is
always in aid of justice and not in contradiction or to defeat the very object
which is sought to be achieved.
G
An application under Section SOA of the Bombay Public Trusts Act,
1950 was field by two persons before the Charity Commissioner for settling
a scheme of a public trust. One of the applicants died and his son moved an
application for substitution after lapse of long time. Similar application was
made by another set of two persons claiming interest in the said trust. The
H
648
S.M. BAKER EL-EDROOSI v. ABDULHABIB HASAN ARAB 649
Charity Commissioner allowed both the substitution applications. The said A
order of the Charity Commissioner was challenged unsuccessfully by the
appellant before the City Civil Court, Single Judge of the High Court and
finally before the Division Bench of the High Court. Hence, the present
appeal.
On behalf of the appellant it was contended that in view of Rule 7 of B
the Bombay Public Trust Rules, 1951 and section 6 of the Presidency Small
Causes Courts Act, 1882 the Charity Commissioner was bond to follow the
procedure as prescribed by the Civil Procedure Code; and that when one of
the applicants died and his heirs were not brought on record within the
prescribed time, the proceedings would abate by virtue of provisions under
the Civil Procedure Code. C
Dismissing the appeal, this Court
HELD: 1.1. The proceeding under Section 50A of the Bombay Public
Trust Act, 1950 would not abate and the Charity Commissioner has powers
to grants substitution even if belated or add parties in the said proceedings. D
(657-D]
1.2. In view of various provisions, object of the Act, and the Charity
Commissioner being clothed with sufficient power to deal with all exigencies
where public trust or its trustees stay away from its legitimate path and
where the materials are before him or before him by the said two persons,
to hold abatement of proceedings on application of any procedural laws not E
only would amount to the curtailment of his power but make him spineless
and helpless to do anything in the matter of public trust eroding the very
object of the Act. (654-H; 655-A]

1.3. The concept of abatement under Section 50A would never arise,
specially in such a situation where for achieving such an objective the F
Charity Commissioner in addition is capped with power to initiate suo motu.
In this case when initiation of proceedings is in accordance with law which
requires consideration for settling a scheme for better management , the
proceedings cannot culminate or be defeated on the principle of abatement
as provided in Civil Procedure Code. Once the material is brought before G
him, he may on the materials or after inquiry or after giving opportunity to
the person concerned or trustees may or may not exercise of power depending
on facts and circumstances of each case, but his exercise of power cannot
be ousted either on the death of withdrawal of any one of the applicants. Non-
substitution or delayed substitution of such deceased person would make no
difference. (655-D-F] H
650 SUPREME COURT REPORTS [1998) 2 S.C.R.

A 1.4. Even if the son of the deceased applicant would not have been
substituted, the proceedings could have continued and concluded in accordance
with law. Rule 7 of the Bombay Public Trust Rules ,1951 merely deals with
the manner of inquiries. :Vlanner of inquiry was nothing to do with either
initiation of proceedings under Section 50A or power to be exercised by the
B Charity Commissioner for framing the scheme. 1655-G; 656-AI

2.1. It cannot be said that in dealing with an application under Section
50A of the Bombay Public Trust Act, 1950, Charity Commissioner should
follow the procedure as prescribed by CPC. In view of Section 9 of Presidency
Small Causes Court Act, 1882, the procedure to be followed by the Small
C Causes Court is as prescribed by the High Court. The procedure is not what
is under Civil Procedure Code. Hence, the argument that proceeding before
the Charity Commissioner to be what is provided in Civil Procedure Code
is without any foundation. 1657-CI

2.2. Reference to Civil Procedure Code in Section 6 of the 1882 Act
D is for a limited purpose. It is only to indicate that Small Causes Court to be
a court within the meaning of the Code of Civil Procedure and to be a court
subordinate to the High Court. Neither Rule 7 nor Section 6 gives what
procedure is to be followed in a suit by the Small Causes Court. (656-D]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4116 of
E 1986.

From the Judgment and Order dated 12.8.85 of the Gujarat High Court
in L.P.A. No. 275of1985.

Sunil Dogra, (Ms. Monica Sharma) and M/s. Suresh A. Shroff & Co.,
F for the Appellant.

R.P. Bhat and M.N. Shroff for the Respondents.

The Judgment of the Court was delivered by

G MISRA, J. The short question for consideration is, whether the
proceedings under Section 50A of the Bombay Public Trusts Act, 1950 would
abate for the non-substitution of one of the applicants since deceased, and
whether the Charity Commissioner has power under the Act to grant the
belated substitution application made after long delay.

H This appeal is directed against the order of the High Court in appeal
S.l\1. BAKER EL-EDROOS v. ABDULHAB!B HASAN ARAB [MISRA, J.) 651

against the judgment of the learned Single Judge, who summarily dismissed A
the appellant's appeal. Earlier, through an application before the Charity
~ ~
Commissioner, a proceeding was initiated for settling a scheme of a public
trust in a Proceeding No. 5 of 1973 under Section 50A as aforesaid. Admittedly,
the said application was moved in the prescribed from by two persons as per
requirement of the said Section. On 23rd January, 1979 one of the original
applicants, namely, applicant No. 2 Hasan Bin Abubakar, died. It is true that
B
after a lapse of long time, the son of the deceased applicant moved an
application, Ex. 44, on 11th October, 1983 for permitting him to join as a party
to the said proceedings as he has interest in the said Trust. Significantly,
another set of two persons viz. Hussain Bin Avadhabhai, claiming to be one
of the trustees of Hazarat Chhota Edroos Masjid and Durgah Trust and c
another person made similar application under the same section for being
joined also as applicant in the said scheme. The Charity Commissioner allowed
both, the substitution of the son of the aforesaid deceased applicant and
impleadment of the aforesaid second set of two persons as a party to the said
proceedings. The appellant filed a C.M.A against the said order under Section
72(1) of the said Act before the City Civil Court. The City Civil Court (appellate D
authority) confirmed the order of the Charity Commissioner. Against that, an
appeal was preferred before the learned Single Judge in the High Court who
also confirmed the order passed by the City Civil Court. The learned Single
Judge recorded that it is not in dispute that the proposed persons are interested
in the Trust. Thereafter, a Letters Patent Appeal was filed which was also E
dismissed. It is against this, the present appeal arises.

Learned counsel for the appellant submits with vehemence that in all
the aforesaid orders, if Rule 7 of the Bombay Public Trust Rules, 19 51 was
taken into consideration, the conclusion would have been otherwise.
Submission is this, Rule 7 read with Section 6 of the Presidency Small Causes F
Courts Act, 1882 (hereinafter referred as '1882 Act') makes it obligatory on
the Charity Commissioner to follow the procedure as prescribed by the Civil
Procedure Code, so when one of the applicants died and his heirs not beiiig
brought on the record within the prescribed time, the proceedings would
abate by virtue of provisions under the Civil Procedure Code. The relevant
="I portion of Rule 7, as rdied by the appellant is quoted hereunder:-
G
,.._
"'7. Manner of inquiries - Except as otherwise provided in that Act
and these rules, inquiries under ........ or any other inquiry which the
Charity Commissioner may direct to be held for the purposes of the
Act, shall be held, as far as possible, in the Greater Bombay Region H
652 SUPREME COURT REPORTS (1998] 2 S.C.R

A in accordance with the procedure prescribed for the trial of suits
uruler the Presidency Small Cause Courts Act, 1882 and elsewhere
under the Provincial Small Cause Courts Act, 1887. In any inquiry a
,.. ..
party may appear in person or by him recognised agent or by a
pleader duly appointed to act on his behalf."

B Section 6 of the Presidency Small Cause Courts Act, 1882 is quoted
hereunder : -

"6. The Small Causes Court shall be deemed to be a Court subject to
the superintendence of the High Court of Judicature at Fort William,
Madras or Bombay, as the case may be, within the meaning of the
c Letters Patent, respectively, dated the 28th day of December, 1865, for
such High Courts, and within the meaning of the Code of Civil
Procedure and to be a Court subordinate to the High Court within the
meaning of section 6 of the Legal Practitioners Act, 1879 and the High
Court shall have, in respect of the Small Cause Court, the same powers
D as it has under the twenty-fourth and twenty-fifth of Victoria, Chapter
104, section 15, in respect of Courts subject to its appellate jurisdiction."

On this submission, two questions arise. First, even if it could be said,
Civil Procedure Code is applicable to the proceeding before the Charity
Commissioner the proceedings under Section 50A abate on the facts of the
E present case, second, whether Civil Procedure Code would apply to a
proceeding under Section 50A? To answer the first question, it has to be seen
what is the proceeding before him? What is prerequisite before he could
initiate proceedings under Section 50 of the Act ?

Section 50A(l)(2) and (3) is quoted hereunder:-
F
"(l) Notwithstanding anything contained in Section 50, where the
Charity Commissioner has reason to believe that, in the interest of the
proper management or administration of a public trust, a scheme
should be settled for it, or where two or more persons having interest
in a public trust make an application to him in writing in the prescribed
G
manner that, in the interest of the proper management or administration
of a public trust, a scheme should be settled for it, the Charity
Commissioner may, if, after giving the trustees of such trust due
opportunity to be heard, he is satisfied that it is necessary or expedient
so to do, frame a scheme for the management or administration of
H such public trust.
S.M. BAKER EL-EDROOS" ABDULHABIB HASAN ARAB [MISRA, J.] 653
(2) Wi\ere the Charity Commissioner is of opinion that in the interest A
of the proper management or administration, two or more public trusts
may be amalgamated by framing a common scheme for the same, he
may, after -

(a) publishing a notice in the Official Gazette and also if necessary in
any newspaper which in the opinion of the Charity Commissioner is B
best calculated to bring to the notice of persons likely to be interested
in the trust with a wide circulation in the region in which the trust is
registered, and

(b) giving the trustees of such trusts and all other interested persons
due opportunity to be heard. C
frame a common scheme for the same.

(3) The Charity Commissioner may, at any time, after hearing the
trustees, modify the scheme framed by him under sub-section (I) or
sub-section (2)."
D
' This empowers Charity Commissioner to frame, amalgamate or modify
a scheme for the proper management of a Public Trust. Under sub-section (I)
he could initiate proceedings for the proper management or administration of
a Public Trust and to frame and settle a scheme. He has two options either
to initiate proceedings sub motu or when two or more persons having interest E
in the Public Trust make an application before him, in writing, in the prescribed
manner. We find, the object of the aforesaid Bombay Public Trust Act, 1950
as revealed through its preamble is to regulate and make better provisions of
the administration of public religious and charitable Trust within the State of
Maharashtra. The Charity Commissioner is appointed through a notification
under Section 3 having very wide powers and duties conferred primarily F
under Section 69, Chapter VII and other provisions of the Act. It has been
the concern of legislatures to provide with such laws and entrust officers with
such power to regulate, supervise the management and functioning of a
Public Trust and endowment in a manner so as to give optimum benefit to
the public at large. It was primarily this lack of proper machinery the Bombay G
Trust Act, 1935 was r~placed by the present aforesaid Act of 1950. It is for
this- reason, Charity Commissioner and other set of officers are created as
watch dogs for effective control and supervision of Public Trusts of all kind.
Section 35 confers power on the Charity Commissioner in a given circumstance
to issue general or special order to permit the trustees of any public trust to
invest money in any manner. Before alienating any immovable property of a H
654 SUPREME COURT REPORTS [1998] 2 S.C.R.

A public trust, a previous sanction of the Charity Commissioner is required
under Section 36, maintain a register of movable and immovable properties to
be in a manner as prescribed by the Charity Commissioner under Section 368,
power of inspection and supervision under Section 37. Under Section 39 a
report is to be submitted to him regarding findings on the question whether
or not a Trust or the person connected with the Trust has been quality of
B gross negligence, breach of trust, misappropriation or misconduct which
resulted in loss to the Trust. He can issue orders on such reports under
Section 40 and can direct the resultant loss to be charged from such defaulting
person, payable to the public trust under Section 41. Section 4 IA empowers
him to issue directions for proper administration of the Trust and institute
C inquires on receipt of complaints under Section 41 B. He can suspend, remove
or dismiss any trustee of a Public Trust on receipt of report under Section
4 lB. Any person interested in a Public Trust may apply to the Charity
Commissioner under Section 47A for the appointment of a new trustee etc.
In cases of breach of public trust including negligence, misconduct etc., he
can file suit against such Public Trust or trustee under Section 50 and
D notwithstanding this in cases he has reason to believe that for proper
management or administration of a public trust he may frame and settle a
scheme under Section 50A. Section 69 gives duties, functions and powers of
the Charity Commissioner. It is in this background Section 50A, for the
questions raised, has to be screened. Thus, we find that the Charity
E Commissioner is crowned with very wide powers to check and control the
irregularities, malpractices and misconduct in the functioning of any Public
Trust. Also to supervise, regulate, settle a scheme for the proper management
or administration of a public trust, infact involved in almost every step of the
functioning of a Public Trust.

F Section 50A infuses the Charity Commissioner with power in addition
to Section 50 to frame, amalgamate or modify any scheme in the interest of
proper management of a Public Trust. This is exercised either suo motu when
he has reason to believe it is necessary to do so or when two or more persons
having interest in a public trust make an application to him in writing in the
prescribed manner. This merely enables the Charity Commissioner to initiate
G proceedings for settling a scheme for the proper management or administration
of a public trust. In the background of the setting of various provisions,
object of the Act, the Charity Commissioner being clothed with sufficient
power to deal with all exigencies where Public Trust or its trustees strays
away from its legitimate path and where the materials are before him or placed
H before him by the said two persons, then to hold abatement of proceedings
S.!\l. BAKER EL-EDROOS v. ABDULllABIB HASAN ARAB [~!!SRA. J.J 655

on application of any procedural laws not only would amount to the curtailmeni A
of his power but make him spineless and helpless to do an)thing in the matter
of public trust eroding the verv object of the Act. This is too restrictive
interpretation to be accepted.

A procedural law is always in aid of justice. not in contradiction or to
defeat the very object which is sought to be achieved. A procedural law is B
always subservient to the substantive law. Nothing can be given by a
procedural law what is not sought to be given by a substantive law and
nothing can be taken away be the procedural law what is given by the
substantive law.

If the interpretation sought by the learned counsel for the appellant is C
to be accepted, it would tie the hands of a Charity Commissioner not to
proceed with settling a scheme inspite of material placed before him only
because one of the applicants is dead. The concept of abatement under
Section 50A would never arise, specially in such a situation where for achieving
such an objective he in addition is capped with power to initiate suo motu. D
It is not in dispute that the said two persons have nrnde an application in the
prescribed form. The proceeding has been initiated in terms of and in
accordance with Section 50A, this cannot be said to be improper or illegal.
Once the material is brought before him, he may on the materials or after
inquiry or after giving opportunity to the person concerned or trustees may
or may not exercise his power depending on facts and circumstances of each E
case, but his exercise of power cannot be ousted either on the death or
withdrawal of any one of the applicants.

Hence, non-substitution or delayed substitution of such deceased person
would make no difference. In this case when initiation of proceedings is in F
accordance with law which requires consideration for settling a scheme for
the better management, in our considered opinion, the proceeding cannot
culminate or be defeated on the principle of abatement as provided in Civil
Procedure Code.

In fact, as aforesaid, subsequently, another set of two persons also G
joined in the said proceedings which the Charity Commissioner also permitted.
For a public cause, this discretion of the Charity Commissioner cannot be
faulted or could be said to be illegal. In the present case, the second applicant
died on 23rd January, 1979 and his son filed application for joining on the I Ith
October, 1983. This would make no difference, even if he would not have been
substituted, the proceedings could have continued and concluded in H
656 SUPREME COURT REPORTS [1998) 2 S.C.R.

A accordance with law. Thus, the submission of the learned counsel for the
appellant based on Rule 7 is misconceived. Rule 7 merely deals with the
manner of inquiries. Manner of inquiry has nothing to do with either initiation
of proceedings under Section 50A or power to be exercised by the Charity
Commissioner for framing the Scheme . It is not raised in this case that any
B illegality is committed by the Charity Commissioner in the manner of inquiries.
The reference of Rule 7 was made, only to bring in Section 6 of the Presidency
Small Cause Couris Act, 1882 for contending the Civil Procedure Code would
be applicable.

Now, let us examine the second question, whether Civil Procedure Code
C at all is applicable to a proceeding under this Section. Reliance is strongly
placed by the learned counsel on the aforesaid Rule 7 of 19 51 Rules and
Section 6 of the aforesaid 1882 Act. We find Rule 7 prescribes inquiry within
the field. it refers to be as far as possible in accordance with the procedure
as prescribed for the trial of suits by the Small Causes Court under the said
1882 Act. Section 6 of this 1882 Act refers to Civil Procedure Code on which
D strong reliance is placed. But reference to Civil Procedure Code herein is for
a limited purpose. it is only to indicate that Small Causes Court to be a court
within the meaning of the Code of Civil Procedure and to be court subordinate
to the High Court. Neither Rule 7; nor Section 6 gives what procedure is to
be followed in a suit by the Small Causes Court.

E We find Section 9 of 1982 Act provides the procedure to be followed.
Section 9 is quoted hereunder:-

·'9( 1) The High Court may, from time to time, by rules having the force
oflaw:-

F (a) prescribe the procedure to be followed and the practice to be
observed by the Small Cause Court either in Supersession of or in
addition to any provisions which were prescribed with respect to the
procedure or practice of the Small Cause Court on or before the thirty-
first day of December, 1894, in or under this Act or any other enactment
G for the time being in force; and

(a) empower the Registrar to hear and dispose of undefended suits
and interlocutory applications or matters, and

(b) cancel or vary any such rule or rules.

H Rules made under this section may provide, among other matters, for
S.M. BAKER EL-ED ROOS v. ABDULHABIB HASAN ARAB [MISRA, J.] 657

the exercise by one or more of the Judges of the Small Cause Court A
of any powers conferred on the Small Cause Court by this Act or any
other enactment for the time being in force.

(2) The Jaw, and any rules and declarations made, or purporting to be
made, thereunder, with respect to procedure or practice, in force or
treated as in force in the Small Cause Court on the thirty-first day of B
December, 1894, shall be in force, unless and until cancelled or varied
by rules made by the High Court under this section."

So, it is the High Court by rule to prescribe the procedure to be followed
by the Small Causes Court. The procedure is not what is under Civil Procedure
Code. Hence, the argument that proceeding before the Charity Commissioner C
to be what is provided in Civil procedure Code is without any foundation. The
same is accordingly rejected.

So, we hold in view of the aforesaid finding that the proceeding under
Section SOA of the Bombay Public Trust Act, 1950 would not abate and he D
has powers to grant substitution even if bela,ted or add parties in the said
proceedings.

For all the aforesaid reasons, we do not find any merit in this appeal
which is accordingly dismissed. Cost on the parties.

M.P. Appeal dismissed. E