TaxTMI 
TaxTMI 
1998 (4) TMI 563
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....979 one of the original applicants, namely, applicant No.2 Hasan Bin Abubakar, died. It is true that 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 o the Trust and 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 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 th....
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....er the proceedings under Section 50A abate on the facts of the 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 Sections 50 of the Act ? Section 50A(1)(2) and (3) is quoted hereunder:- "(1) Notwithstanding anything contained in Section 50, where the Charity commissioner has reason to believe that, in the interest of the proper management of 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 manner that, in the interest of the proper management or administration of a public trust, a scheme should be settled for its, 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 such public trust. (2) Where the Charity Commissioner is of opinion that in the interest of the proper management or ad....
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.... 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 36B, 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 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 41A empowers him to issue directions for proper administration of the Trust and institute inquires on receipt of complaints under Section 41B. He can suspend, remove or dismiss any trustee of a public Trust on receipt of report under Section 41B. 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....
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.... 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. It is not in dispute that the said two persons have made an application in the prescribed from. 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 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 accordance with law which requires consideration for settling a scheme for the better management, in our considered opinion, the....