Bombay High Court
Aadesh Shivaji Narke vs Shree Dnyaneshwar Maharaj Sansthan And … on 22 April, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:17947
wp-2012-2025 final.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2012 OF 2025
SHABNOOR
AYUB
PATHAN
Adesh Shivaji Narke
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2025.04.22
15:13:57 +0530
Age - 35 Yuears, Occupation : Agri.
R/at: S. No.80/1/16, Rutuja Park,
Balewadi Phata, Baner, Pune 411045.
... Petitioner
V/s.
1. Shree Dnyaneshwar Maharaj Sansthan, Alandi
Add: Alandi, Tal. Khed, District Pune.
2. Bhavarth Ramchandra Dekhane
Age - 39 Years, Occu: Service
R.at:- C-3/4, D.S.K. Chintamani,
513, Sadashiv Peth,
Appa Balwant Chowk, Pune - 411030.
3. Rajendra Baburao Umap
Age - 55 years, Occu: Lawyer
R.at:- S. No.49/2, First Floor, Pathare Complex,
Chandannagar, Kharadi, Pune - 411014.
4. Yogi Niranjannath Gurushantinath
Age - 48 Years, Occu: Business
R.at:- Shree Dnyaneshwar Maharaj
Sansthan Committee,
Alandi Devachi, Pune - 412105.
5. President, Shree Dnyaneshwar Maharaj
Sansthan Alandi, Pune, & Principal District
& Sessions Judge, Pune
(Persona Designata as per Shree Dnyaneshwar
Maharaj Sansthan, Alandi Scheme, 1852) ...Respondents
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Mr. S. M. Gorwadkar, Sr. Advocate i/b Mr. Pratap Patil,
for petitioner.
Mr. Rajesh Datar i/b Mr. Ravindra Pachundkar, for
respondent Nos.1 to 4.
Mr. O. A. Chandurkar, Addl. Government Pleader with
Mr. J. P. Patil, AGP for State - respondent.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 28, 2025
PRONOUNCED ON : APRIL 22, 2025
JUDGMENT:
1. By this writ petition filed under Articles 226 and 227 of the
Constitution of India, the petitioner has approached this Court
assailing the judgment and order dated 5th December 2024 passed
by the President of Shree Dnyaneshwar Maharaj Sansthan, Alandi,
Pune, who also functions as the Principal District and Sessions
Judge, Pune. The said order was passed below Exhibit 16 and
Exhibit 31A in Persona Designata Civil Suit No. 1 of 2023, whereby
the learned President was pleased to allow the application filed at
Exhibit 16, thereby dismissing the suit filed by the petitioner, and
simultaneously rejecting the application moved at Exhibit 31A.
2. The relevant factual backdrop, as presented by the petitioner,
is briefly set out hereunder:
3. The present dispute concerns the manner and procedure for
the appointment of trustees to respondent No.1, a public trust,
namely Shree Dnyaneshwar Maharaj Sansthan, associated with the
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sacred Samadhi of Saint Dnyaneshwar Maharaj, Alandi. The legacy
of this holy site is one that spans over seven centuries. Historically,
the temple and its endowments have been under varying regimes.
Initially, the Peshwa Government had granted an inam village to
the temple for its sustenance. Thereafter, the administration passed
successively into the hands of the Scindias of Gwalior and
subsequently the East India Company.
4. In the year 1851, the place of worship at Alandi was formally
declared to be a public trust. For the purpose of managing the
affairs of the Samadhi and temple, the then Collector of Pune
constituted a Panch Committee in 1852 and appointed six panchas
(trustees) based on a list (yadi) prepared for that purpose. It is
pertinent to note that this arrangement, though foundational, did
not amount to a formal scheme under law.
5. Thereafter, by reason of the enactment of Act XX of 1863, the
jurisdiction of the Government and Revenue authorities over
religious institutions in the Bombay Province was abolished. Over
the years, devotees initiated several legal proceedings before Civil
Courts and even the High Court, seeking structured oversight, but
all such attempts remained unsuccessful until 1934, when a Civil
Suit No. 7 of 1934 was filed in the District Court, Pune under
Section 92 of the Code of Civil Procedure, 1908. This suit sought
the framing of a formal scheme for management of the trust.
6. By judgment and order dated 11th December 1937, the
learned District Judge held that although the original Panch
arrangement of 1852 was not a formal scheme under Section 92,
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the said structure, having endured the test of time, required no
replacement but only supplementation through a proper scheme
under Section 92 CPC. Consequently, the Court proceeded to
modify and formalize the arrangement into a scheme. Clause (3)
of the scheme provided that the appointment to vacancies in the
body of trustees would be carried out by the District Judge acting
as a Persona Designata. Further, by Clause (16) of the scheme,
power was conferred upon the Panch Committee to frame Rules in
respect of trust administration and religious observances, subject
to sanction of the District Judge. These Rules, once sanctioned,
were to carry the same force as that of the scheme.
7. This decree was challenged before the High Court in First
Appeal No. 92 of 1938 by the existing trustees, and cross-
objections were also filed by some devotees. However, vide
judgment dated 16th November 1939, the High Court, taking note
of a settlement between the parties, dismissed both the appeal and
cross-objections and directed that the scheme be amended as
agreed. Accordingly, Clause (15) was substituted.
8. Thereafter, on 5th April 1940 and again on 10th May 1940,
the Panch Committee submitted proposed Rules under Clause (16)
for the District Judge’s approval. Despite objections from certain
devotees (filed vide Exhibits 310 to 312, 391, and Exhibits 56 and
57), the District Judge approved the Rules on 8th June 1943.
These came to be known as “Shree Dnyaneshwar Maharaj
Sansthan Rules of 1945”. The Rules laid down detailed provisions
for the performance of puja, processions, customs, and overall
administration of the Trust, all within the bounds of the larger
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scheme.
9. As per the scheme, the management of the Sansthan
continued to vest in a body of six trustees referred to as pancha.
Importantly, Rules 67 to 69 conferred specific powers upon the
District Judge in addition to those under Clause (3). In exercise of
these powers, the District Judge, Pune, by order dated 9th August
2006, discharged three trustees and appointed an advisory
committee for recommending new appointments. In doing so, the
District Judge reiterated that the discretion to appoint trustees
vests exclusively in the office of the District Judge.
10. It is in this historical and legal background that the
petitioner, claiming to be a devotee and a person interested in the
proper management of the Trust, instituted Persona Designata Civil
Suit No. 1 of 2023 before the Principal District Judge, Pune, who
also functions as the President of respondent No.1 Sansthan. In
this suit, the petitioner prayed for modification of Clause (3) of the
scheme so as to enable appointment of trustees from a broader
societal base, with due representation for women through
reservation. The petitioner further sought that trustees henceforth
should not be appointed solely on nominations made by the
existing trustees.
11. On 27th April 2023, defendant No.3 moved an application
below Exhibit 16 praying for dismissal of the suit on the ground
that the remedy lay exclusively under Section 92 CPC and not
before the District Judge as a Persona Designata. The petitioner
filed his reply on 28th April 2023. Subsequently, the petitioner
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moved another application below Exhibit 31A dated 25th
September 2024 praying for a direction to call all eligible
applicants for interview in respect of proposed trustee
appointments.
12. The learned President, Shree Dnyaneshwar Maharaj
Sansthan, who is also the Principal District Judge, Pune, vide
judgment and order dated 5th December 2024, allowed the
application at Exhibit 16, holding the suit to be not maintainable
before the Persona Designata forum and rejected the application at
Exhibit 31A. Aggrieved thereby, the petitioner has invoked the
extraordinary writ jurisdiction of this Court.
13. Shri Gorwadkar, learned senior counsel appearing for the
petitioner, submitted that the learned District Judge has failed to
correctly appreciate the true import and scope of clause (16) of the
trust scheme. He submitted that clause (16) explicitly empowers
the committee to frame Rules for the administration of the
Sansthan, subject to sanction by the District Judge. Further, clause
(16) also permits variation or modification of such Rules, again
subject to the approval of the District Judge. The clause goes a step
further by providing that once the Rules are so sanctioned, they
shall have the same binding force as the scheme itself.
14. Learned counsel contended that the Rules framed and
sanctioned by the District Judge on 8th June 1943, therefore, did
not merely supplement the scheme, but became an integral part
thereof. As such, the power to vary the Rules with the District
Judge’s sanction, by necessary implication, also includes the power
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to vary any part of the scheme itself, including clause (3) which
governs the appointment of trustees.
15. He further submitted that when clause (16) is read
harmoniously with Rules 67 to 69, which also derive their force
from the scheme, it becomes clear that the District Judge is clothed
with comprehensive jurisdiction to consider any proposal for
amendment or variation of the scheme. According to him, such
exercise of jurisdiction is not in the capacity of a regular civil court,
but in the capacity of a Persona Designata, as specifically
contemplated by clause (3) of the scheme.
16. To reinforce this submission, learned senior counsel placed
reliance on the decision of the Hon’ble Supreme Court in R.
Venugopala Naidu & Ors. v. Venkatarayulu Naidu Charities & Ors.,
1989 Supp (2) SCC 356, to contend that where a scheme has been
framed in a representative suit under Section 92 of the CPC, any
person interested in the trust can seek modification thereof by
appropriate proceedings.
17. He also relied upon the decision of this Court in Minoo
Rustomji Shroff & Ors. v. Charity Commissioner & Ors., 2005 (2)
Mh.L.J. 1135, to argue that schemes framed prior to the coming
into force of the Bombay Public Trusts Act, 1950, retain their
character and that the District Judge, acting as a Persona
Designata, continues to possess the power to modify or alter the
scheme under the express provisions of clause (16). He referred to
the judgment of this Court in Miscellaneous Application No. 17 of
2006 (arising from the same Minoo Shroff proceedings), and the
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Hon’ble Supreme Court’s ruling in Raje Anandrao v. Shamrao &
Ors., AIR 1961 SC 1206. He also drew attention to the Division
Bench judgment in Khojeste Mistree & Ors. v. Bombay Parsi
Punchayet & Ors., (2008) 5 Mh.L.J. 783.
18. Relying on this line of authority, Shri Gorwadkar urged that
the impugned judgment of the learned District Judge deserves to
be quashed and set aside, as it proceeds on a legally untenable
interpretation of the scheme and the powers vested in the District
Judge thereunder.
19. Per contra, Shri Datar, learned counsel appearing on behalf
of the respondents, supported the impugned judgment and order
in its entirety and submitted that it calls for no interference.
20. He submitted that on a plain reading of clause (3) of the
scheme, the District Judge is designated only for the limited
purpose of filling up vacancies among the trustees. This clause,
according to him, does not confer upon the District Judge the
power to amend or alter the scheme itself. To stretch the meaning
of clause (3) so as to include within it the power to modify the
scheme would be plainly impermissible.
21. He further submitted that clause (16), which provides for the
framing and variation of Rules with the sanction of the District
Judge, pertains only to internal administrative matters for the
guidance of trustees. It does not empower the District Judge to
modify the principal provisions of the scheme. In particular, clause
(16) does not authorise any change in the mode of appointment of
trustees as laid down in clause (3), nor does it enable any
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structural alteration of the scheme.
22. With respect to Rules 67 to 69, learned counsel submitted
that they too are procedural in nature and do not contemplate any
authority with respect to amendment of the foundational
provisions of the scheme. He emphasized that the petitioner has
not been able to point to any provision either in the original decree
passed in Civil Suit No. 7 of 1934 or in the scheme as amended
thereafter that expressly reserves such power of modification in
the District Judge.
23. He further contended that even if the scheme was originally
framed prior to the enactment of the Bombay Public Trusts Act,
1950, that by itself is not sufficient to confer jurisdiction on the
District Judge to entertain and decide a prayer for amendment of
the scheme. He submitted that the original scheme was framed by
the Collector of Pune and was subsequently settled by the District
Judge, Pune in the suit of 1934, which was affirmed in First
Appeal No. 92 of 1938 on the basis of a consent settlement
between the parties. Thus, in the absence of any express
reservation of power to modify the scheme, the District Judge
cannot assume such jurisdiction by implication.
24. Learned counsel also contended that Section 92 of the CPC
has no application in the present case, as recourse to it is barred by
Section 52 of the Bombay Public Trusts Act, 1950. The petitioner, if
aggrieved, must resort to the remedy available under Section 50 of
the said Act.
25. He placed reliance upon paragraphs 9 and 10 of the
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judgment in Minoo Rustomji Shroff (supra), contending that they
actually support the respondent’s case that there is no inherent
power of the District Judge to modify the scheme, unless such
power was expressly reserved at the time of framing the scheme.
This view, according to him, was also affirmed by the Division
Bench in Khojeste Mistree (supra), which had distinguished the
Supreme Court’s decision in R. Venugopala Naidu (supra), on the
ground that the said judgment did not consider the bar contained
in Section 52 of the Bombay Public Trusts Act, 1950.
26. With respect to the judgment in Raje Anandrao (supra), he
submitted that it was rendered in the peculiar facts of that case
and has no direct application here. He also placed reliance on
Miscellaneous Petition No. 17 of 2007 arising from Minoo Shroff
(supra), to submit that the present petition is misconceived.
27. In view of the above submissions, Shri Datar submitted that
the impugned judgment and order passed by the learned District
Judge, Pune is consistent with law and warrants no interference by
this Court in its writ jurisdiction.
28. The rival contentions raised by the learned counsel for the
parties now fall for determination.
29. It is easy to understand that when a Court frames a scheme
for the management of a trust, it may not always be possible to
anticipate every situation or difficulty that may arise in the future.
Life is uncertain, and trusts often have to deal with changing
circumstances in the form of new challenges, emergencies, or
unforeseen developments. The Court, therefore, may consciously
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choose not to fix every single detail for all time to come. Instead, it
may decide to limit its immediate directions to what is necessary
and practical at that point of time and leave room for future
adjustments.
30. This approach is often based on the Court’s past experience
that rigid, one-time schemes may become unworkable when
circumstances change. Rather than trying to predict everything,
the Court may wisely reserve the right to itself to review and
decide how the trust should be run when new situations actually
arise.
31. To ensure flexibility, the Court may say that the scheme will
work for a limited period–say ten years–and that it will review
the working and administration of the trust again after that period.
Sometimes, instead of fixing a number of years, the Court may say
that the scheme will remain in force until something specific
happens, such as a change in law, significant change in
circumstances, or some difficulty in implementation. The idea is to
allow the trust to function properly, and at the same time retain
control to adapt the scheme as required by future realities.
32. These principles show that even when the scheme appears
to be changed later, in substance, the Court is not altering what it
had already done, but is simply extending or supplementing the
scheme in light of new developments. What was originally framed
by the Court was not meant to be permanent or final for all time,
but rather a first stage to be added to or expanded later, as needed.
33. So when the Court frames a second set of directions after a
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certain time or upon certain developments, it is not going back on
its earlier order. It is adding to the scheme, not revising what was
already in place. The original part of the scheme continues to
operate for the period it was meant for. The new directions begin
where the earlier ones stop.
34. It is, therefore, wrong to think that such additions are like
reviewing or appealing against the Court’s own earlier order. They
are more like continuations or adjourned decisions, kept pending
by the Court with full awareness that the complete picture would
emerge only over time. It is important to understand that a scheme
is a special kind of judicial order, not rigid like a final decree in a
civil suit, but designed to evolve over time as the needs of the trust
change.
35. The argument that a Court-framed scheme must remain
unchangeable for all time rests on the assumption that the Court
had already provided for every possible future situation, and had
followed all necessary procedures to do so. But in reality, as seen
earlier, Courts do not always aim to regulate the trust forever in
one go. They may exercise jurisdiction gradually, first dealing with
the present and reserving the right to decide about the future
when the need arises.
36. Thus, even when the Court appears to “alter” the scheme
later, what it actually does is to fill in the gaps left earlier. It is not
rewriting what was already decided, but simply completing what
was left unfinished, because the original framing had intentionally
kept those matters open.
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37. Much of the confusion in understanding the District Judge’s
role comes from mixing up his two separate capacities, one as a
judicial officer heading a Court, and another as an individual given
special responsibilities under a trust scheme. When the Court
frames a scheme for a trust, it may decide that the trust should not
be left entirely in the hands of trustees alone. It may feel that some
outside supervision is necessary, and may choose to assign this
supervisory role to someone trustworthy–often a judicial officer
like a District Judge.
38. However, when a District Judge is appointed under such a
scheme to supervise or regulate the trust, he is not acting as a
Judge of a regular Court. He is acting in a special capacity, as a
nominated person, given specific functions under the scheme. His
role is administrative, not judicial, though it is conferred on him
because he holds a judicial office and is expected to discharge his
duties with impartiality and competence.
39. It would be more accurate if such an officer were described
using a different term such as a “referee” or “controller” to show
that he is not acting in his capacity as a presiding Judge in a Court,
but as a designated functionary under the scheme. This helps
clarify that his powers come from the scheme itself, and that his
decisions are part of the trust’s administrative framework, not
judgments of a civil court.
40. The fact remains, however, that the Court while framing the
scheme has full authority to divide responsibilities between
trustees and such a controlling officer. The trustees may be given
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primary powers of administration, while certain residual powers
such as removal, suspension, or approval of actions may be vested
in the District Judge or similar officer to ensure accountability and
protect the interest of the trust.
41. It is also necessary to consider an issue as to whether the
District Court when exercising the powers under the scheme
framed for administration of the public religious trust acts as the
Court of law or merely as “persona designata”. In the facts of the
case, the scheme framed uses of expression “District Judge” and
not “District Court”. Under the CPC and the Bombay Civil Courts
Act, the “District Court” refers to legal institution while the
“District Judge” refers to the individual presiding over it. Both are
well-recognized legal expressions, they must be interpreted in their
accepted legal sense unless the context indicates otherwise. The
use expression “District Judge” in place of “District Court” appears
to be intentional indicating that the Court framing scheme wanted
to confer the power of an individual officer not as a judicial body.
Moreover, the scheme categorically refers to the District Judge as
“persona desigata” for the purpose of making appointment and
supervisory trust’s affairs. A plain reading of the scheme indicates
that similar designation extends to the other functions assigned to
the District Judge.
42. It is well-settled that a persona designata is “a person who is
pointed out or described as an individual, as opposed to a person
ascertained as a member of a class, or as filling a particular
character” the test is whether the authority is intended to act
judicially as a Court or in an individual capacity. It is also well
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settled that an authority can be styled to be persona designata if
powers are conferred on a named person or authority and such
powers cannot be exercised by anyone else. The distinguishing
between the person designated, and the Court may broadly be
stated that the Court acts in its judicial capacity whereas a person
designated i.e. an individual authorised to act not as Court but in
his personal capacity designated by the statute or the scheme.
Once the scheme expressly mentioned as “persona designata” such
designation must be held for other reference to the District Judge
throughout the scheme. Therefore, he is not acting as a judicial
forum of the Court system under CPC. Where the functions
conferred on the District Judge are supervisory, administrative, as
per clauses (3) and (16), and Rule 69 of the scheme, the District
Judge acts not as the Court but as “persona designata”. The power
exercised under the said clauses are administrative, supervisory
and no adjudication of inter-se between parties rights akin to civil
suit was undertaken.
43. Upon perusal of the documentary record and the history of
the proceedings, it is evident that the origin of the trust scheme
can be traced back to the Yadi prepared by the then Collector of
Pune on 24th May 1852. That Yadi had nominated six individuals
as Panchas for the management of the Samadhi of Saint
Dnyaneshwar Maharaj and for the administration of revenue from
the allotted village. However, even at that stage, the Civil Court
had observed that the Yadi did not amount to a formal scheme
within the meaning of law, and merely comprised certain general
instructions concerning appointment of Panchas and maintenance
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of accounts.
44. Subsequently, a regular proceeding came to be instituted as
Civil Suit No. 7 of 1934 under Section 92 of the Code of Civil
Procedure, 1908. This suit culminated in a judgment and decree
dated 11th December 1937 passed by the learned District Judge,
Pune. The Court held that the appointment of the then trustees
was valid and there was no necessity to remove them. It was
further held that though the Yadi of 1852 did not constitute a
formal scheme, it required supplementation rather than
replacement. Accordingly, the Court issued directions under
Section 92 CPC and framed a formal scheme based on the existing
practice, thereby giving it legal sanctity.
45. The scheme thus framed was appended to the judgment as
an annexure and was to govern the functioning of the Sansthan
thereafter. In First Appeal No. 92 of 1938, this Court approved
certain modifications to the scheme based on consent terms
arrived at between the parties. As a result of those modifications,
the revised and operational framework came to be known as the
Shree Dnyaneshwar Maharaj Sansthan Alandi Scheme.
46. On 8th June 1943, the District Judge, acting under clause
(16) of the scheme, approved a set of Rules framed by the trustees.
These are known as the Shree Dnyaneshwar Maharaj Sansthan
Rules of 1945. Under the amended scheme, the administration of
the Sansthan was vested in a body of six trustees, referred to as
Panchas, to be appointed and replaced in accordance with clause
(3) of the scheme. Thus, from a plain reading of the operative part
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of the decree in Civil Suit No. 7 of 1934 and the judgment itself,
particularly paragraph 23, it is evident that what began as an
informal structure in 1852 matured into a judicially sanctioned
scheme prior to the coming into force of the Bombay Public Trusts
Act, 1950.
47. The petitioner has specifically relied upon clauses (3) and
(16) of the scheme to urge that the District Judge, in the capacity
of a Persona Designata, is empowered to amend or modify the
scheme. In order to examine the tenability of this contention, it
would be appropriate to reproduce the said clauses herein:
Clause (3): Any vacancy in the committee shall be filled up
by the District Judge, Pune (as a Persona Designata), from
among those nominated for co-option by the committee,
provided that the committee nominates not less than five
names for each vacancy. The District Judge shall also have
the right to call for additional names from the trustees if
deemed necessary. The clause further lays down
disqualifications for appointment as trustee.
Clause (16): Subject to the sanction of the District Judge, the
committee shall frame rules for the guidance of the trustees
in the administration of the Sansthan and in the observance
of customs such as puja and processions, as per traditional
practices. These rules may be varied from time to time with
the sanction of the District Judge. Once sanctioned, the rules
shall have the same force as the scheme.
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48. On a plain reading of clause (3), it is manifest that the
District Judge has been appointed as a Persona Designata
specifically and exclusively for the purpose of filling up vacancies
in the committee of trustees. The power conferred is procedural
and not substantive. It is further limited by the requirement that
nominations for such appointments must come from the existing
trustees, and the District Judge can only select from among the
nominees, or seek additional names. The clause also lists
disqualifications to ensure that trustees meet a standard of
eligibility. It does not, by any stretch, confer a power to amend the
scheme itself.
49. Likewise, clause (16) authorizes the committee to frame
administrative rules to ensure proper functioning of the trust,
particularly in relation to religious observances and traditional
practices. These rules are to be submitted for the approval of the
District Judge, whose sanction is a condition precedent for the
rules to attain binding force. The clause also allows for the rules to
be varied, but again, only with the sanction of the District Judge.
Importantly, the rules so sanctioned are to be treated as having the
same status as the scheme, but clause (16) does not say that the
District Judge has the power to alter the scheme itself.
50. A conjoint reading of clauses (3) and (16) reveals that while
the District Judge does perform certain supervisory functions,
including appointment of trustees and approval of rules, neither
clause confers jurisdiction to alter or amend the substantive terms
of the scheme. The scheme itself was framed by the Civil Court in
exercise of powers under Section 92 CPC. Any modification or
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variation to such a scheme would necessarily require recourse to
the same process which is subject to Section 52 of the Act, unless
the scheme expressly reserves the power of modification to the
District Judge.
51. In the light of the above, I am of the considered opinion that
the petitioner’s reliance on clauses (3) and (16) to urge a
modification of the scheme is wholly misplaced and unsustainable
in law. The District Judge, acting as Persona Designata, is not
conferred with any express or implied power to amend the
scheme. The authority under the scheme is limited to appointment
of trustees and approval of rules framed by the committee, not to
alter the fundamental structure of the scheme itself.
52. Shri Gorwadkar, learned Senior Advocate appearing on
behalf of the respondents, has next submitted that Clause 16 of the
Scheme expressly empowers the Committee to frame rules for the
administration of the Sanstha, subject to the sanction of the
learned District Judge. The said clause further provides that upon
such sanction, the rules so framed shall have the same binding
force as the Scheme itself. Thus, the learned Senior Advocate
contends that the rules, once sanctioned by the District Judge, are
to be treated as an integral part of the Scheme. The learned
Advocate for the petitioner next submitted that Rules 67 to 69,
framed under the authority of clause (16) of the scheme, confer
upon the Sansthan Committee and the District Judge the power to
amend, alter, or modify the scheme.
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53. In my opinion, the said submission deserves to be examined
in the light of the authoritative pronouncement of the Division
Bench of this Court in the case of Shankarlal Purshottam v. Dakor
Temple Committee, AIR 1926 Bom 179. In the said case, the
Division Bench was dealing with a scheme framed for the
management of the Dakor Temple, wherein sub-clauses (7) and
(8) of Clause 12 specifically provided that all rules framed by the
Committee and sanctioned by the District Court at Ahmedabad
“shall have the same force as if they were part of the Scheme”. For
clarity, sub-clauses (7) and (8) of Clause 12 of the Scheme read
thus:
“(7) The Committee shall have power to have all the rules
framed by them sanctioned by the District Court,
Ahmedabad, to the intent that the rules, when sanctioned,
shall have the same force as if they were part of the
Scheme.”
“(8) The Committee shall have power to modify, alter and
rescind any of the rules made by them with similar sanction.”
54. The Division Bench observed that upon a plain reading of
sub-clause (7), it is evident that the legislative intent behind the
incorporation of such a provision was to create a legal fiction,
whereby the rules framed by the Committee, once sanctioned by
the District Court, would assume the same legal force and status as
that of the Scheme itself. The Division Bench, in no uncertain
terms, held that the expression “shall have the same force as if
they were part of the Scheme” must not be interpreted in a narrow
or restrictive manner. Rather, the said phrase confers upon the
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rules the character of being co-extensive in authority and binding
nature with the parent Scheme. The Court further held that as a
matter of both logic and law, once such rules are sanctioned by the
competent authority, they cannot be treated as subordinate or
inferior to the Scheme; they acquire parity in enforceability.
Consequently, it was held that such rules are also subject to the
same modifying or amending powers as may be applicable to the
Scheme itself.
55. In the facts of the present case, Clause 16 of the Scheme
empowers the Committee to frame rules for administration,
subject to the sanction of the District Judge, Pune. The clause
further declares that once sanctioned, such rules shall have the
same force as the Scheme. Following the ratio laid down by the
Division Bench in Shankarlal Purshottam (supra), it would be
reasonable to hold that the rules framed under Clause 16, once
sanctioned, would attain the same binding character as the
Scheme itself.
56. In order to appreciate the nature and extent of these Rules, it
is necessary to reproduce them as follows:
“Rule 67: In case of any ambiguity or in respect of matters
for which there is no specific rule, the committee shall have
the power to regulate and decide the same, and its decision
shall be final unless set aside by a competent court of law at
the instance of an aggrieved person.
Rule 68: The Sansthan Committee shall have, subject to any
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Rule 69: The Committee is at liberty to take directions from
the District Judge, if necessary, from time to time, in the
working of the scheme, and shall also have the right to make
any necessary changes due to emergency and other
unforeseen events.”
57. On a careful and conjoint reading of the above three rules, it
is evident that these provisions have been inserted to facilitate day-
to-day functioning and administrative decision-making by the
Sansthan Committee. Rule 67 contemplates situations where
ambiguity exists or where the scheme or rules are silent. In such
cases, the committee is vested with temporary and provisional
authority to regulate and decide, subject to judicial oversight. This
rule does not authorize the committee to modify the substantive
provisions of the scheme itself, but merely to address lacunae on
operational issues until clarified through legal recourse.
58. Rule 68 further vests the committee with residuary
management powers, which are subject to restrictions laid down
elsewhere in the scheme. These powers relate to administrative
matters which are not expressly covered by other provisions.
Again, such authority is to be exercised within the contours of the
existing scheme, and not to alter its core structure or modify its
legal framework.
59. Coming to Rule 69, which is central to the petitioner’s
submission, it is necessary to distinguish between the nature of
directions that may be taken from the District Judge and the extent
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of changes the committee may make in emergencies.
60. The first part of Rule 69 permits the committee to seek
directions from the District Judge, if necessary, for the purpose of
working the scheme. This clearly contemplates administrative
supervision and interpretative assistance, but not the power to
substantively amend the scheme. Directions contemplated under
this rule are advisory or clarificatory in nature and meant to
resolve issues relating to the implementation of the existing
scheme. They cannot be construed as judicial orders passed in
exercise of power to amend the scheme, which would require a
formal judicial process with due notice to stakeholders and an
opportunity of hearing, as contemplated under the legal
framework applicable to public trusts.
61. The second part of Rule 69 refers to the committee’s power
to make necessary changes due to emergency and unforeseen
events. This part must be interpreted in a practical and purposive
manner. The phrase “necessary changes” must be understood in the
context of the emergency or unforeseen circumstances that may
arise during administration. These changes are clearly temporary
and administrative in nature, meant to ensure continuity and
smooth functioning of the Sansthan.
62. Examples of such permissible changes would include
rescheduling of a religious procession due to inclement weather,
temporary relocation of meetings, extension of procedural
deadlines owing to natural calamities, or similar adaptations in the
interest of public safety or religious propriety.
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63. However, the appointment of trustees, alteration in eligibility
criteria, change in the number or composition of the Panchas, or
any such act that impacts the structure, representation, or legal
rights of stakeholders, would clearly fall within the category of
scheme modification, which can be effected only through judicial
proceedings under the authority originally invoked for the creation
or amendment of the scheme i.e. under Section 50 or Section 50A
of the Bombay Public Trusts Act, 1950, where applicable.
64. Therefore, Rule 69 cannot be interpreted to confer a general
or residuary power upon the District Judge to modify the scheme
outside the formal judicial framework. Nor can the committee
invoke it to make permanent or structural alterations. To interpret
otherwise would be to dilute the sanctity of judicially framed
schemes and allow their alteration without due process.
65. Accordingly, I am of the considered view that Rule 69 does
not confer upon the District Judge the power to amend the
scheme, nor does it authorize the committee to effect structural
changes under the garb of emergency management. The scope of
Rule 69 is confined to functional continuity and administrative
adjustments, and does not extend to modification of the
foundational provisions of the scheme.
66. However, a significant distinguishing feature in the present
Scheme, as opposed to Shankarlal Purshottam (supra), is the
absence of a specific enabling clause equivalent to sub-clause (8)
of Clause 12 therein, which expressly empowered the District
Court to modify, alter or rescind the rules with sanction. Moreover,
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Clause 20 of the Dakor Temple Scheme conferred upon the District
Court the power to modify the Scheme itself. In contrast, in the
present Scheme, there is no express conferment of such power on
the District Judge, either to amend the Scheme or to modify the
rules post-sanction.
67. Thus, while the rules framed and sanctioned under Clause
16 acquire the same legal status and binding force as that of the
Scheme, in the absence of a specific provision empowering the
District Judge to modify such rules, it cannot be inferred by
implication that the District Judge (as a persona designata) is
competent to alter, amend, or rescind the said rules. The legal
fiction created by Clause 16 ends with the conferment of binding
force, but does not extend to confer modification powers, which
would require express legislative authorization, either under the
Scheme or by statute.
68. In the present case, much emphasis was placed on the
general clause of the Scheme, which states that the Committee
may seek directions from the District Judge in the working of the
Scheme and that the Committee shall have the right to make
necessary changes due to emergency and other unforeseen events.
It was sought to be contended that such a clause indirectly or
inferentially authorizes the District Judge to effect modifications in
the rules, which by virtue of sanction, have become part of the
Scheme.
69. However, this submission must be rejected. The distinction
between giving directions for working of the Scheme and
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modifying the Scheme or rules which are treated as part of the
Scheme must be clearly maintained. The power to issue directions
for proper implementation or functioning of the Scheme cannot be
equated with or expanded into a power to alter the substantive
provisions of the Scheme or its annexed rules. The modification or
alteration of a scheme, or of the rules incorporated therein, affects
the foundational rights and obligations created thereunder, and
hence, such power must flow either from statute or from a specific
clause under the Scheme expressly conferring such power. Absent
such express conferment, it would not be legally permissible to
imply such a power.
70. Where a scheme creates a mechanism for exercising a
particular power, any modification or amendment must be made
only by adhering to that express mechanism and cannot be
assumed by implication.
71. Therefore, the absence of a clause similar to Clause 20 of the
Dakor Scheme (which empowered the District Court to modify the
Scheme), or sub-clause (8) of Clause 12 (which authorized
modification of rules by the District Court with sanction), leads to
an inevitable conclusion that the District Judge, Pune, in the facts
of the present case, lacks jurisdiction to amend or rescind the rules
which, once sanctioned, are treated as part of the Scheme.
72. The legal fiction enacted under Clause 16 of the Scheme is
limited to granting equal binding force to the rules as that of the
Scheme. It does not extend to endowing the District Judge with an
amending power over the same. A legal fiction cannot be extended
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beyond the purpose for which it was created, and its operation
must be confined strictly to the terms of the clause creating it.
73. In view of the aforesaid discussion, it must be held that
Rules 67 to 69, framed by the Committee and sanctioned by the
learned District Judge, Pune, form part of the Scheme by virtue of
Clause 16. However, in the absence of a provision akin to Clause
20 or sub-clause (8) of Clause 12 of the Dakor Temple Scheme, it
would not be permissible to interpret any provision of the Scheme
as conferring upon the District Judge the power to modify such
rules once sanctioned. Such power cannot be read by necessary
implication.
74. As already discussed above, the scheme in question was
framed and subsequently modified by the learned District Judge,
Pune in Civil Suit No. 7 of 1934, in exercise of powers under
Section 92 of the Code of Civil Procedure, 1908. This fact has not
been disputed and finds support from the records as well as the
judgment dated 11th December 1937. Once it is accepted that the
scheme was framed under Section 92 CPC, it becomes necessary to
examine the effect of Section 52 of the Bombay Public Trusts Act,
1950 (hereinafter referred to as “the 1950 Act”), which deals with
the applicability of Section 92 of CPC to public trusts after the
1950 Act came into force.
75. For proper understanding, the relevant provision is extracted
below:
Section 52 of the 1950 Act – Non-application of Sections 92
and 93 of the Code of Civil Procedure to public trusts:
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(1) Notwithstanding anything contained in the Code of Civil
Procedure, 1908, the provisions of Sections 92 and 93 of the
said Code shall not apply to public trusts.
(2) If, on the date of the application of the Act to any public
trust, any legal proceedings in respect of such trust are
pending before a Civil Court of competent jurisdiction to
which the Advocate General or the Collector is a party, the
Charity Commissioner shall be deemed to be substituted in
such proceedings.
(3) Any reference to the Advocate General made in any
instrument, scheme, order, or decree of any Civil Court shall
be construed as a reference to the Charity Commissioner.
76. A plain reading of Section 52 of the 1950 Act makes it
abundantly clear that after the coming into force of the said Act,
Sections 92 and 93 of the CPC cease to apply to public trusts
governed by the Act. In other words, after the commencement of
the 1950 Act, any scheme framed for a public trust, whether before
or after the Act, can no longer be modified or challenged by
invoking Section 92 CPC, as was permissible earlier. Instead, the
procedure laid down in the 1950 Act must be followed.
77. Further, sub-section (3) of Section 52 clarifies that any
reference in a scheme, order, or decree passed by a Civil Court
before the Act came into force, to the Advocate General, shall now
be read as a reference to the Charity Commissioner. This
substitution is not limited to formal appearances but carries
substantive implications. It signifies that where a Court earlier
reserved control or supervisory authority to an officer like the
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Advocate General or Collector, such functions shall now be
exercised by the Charity Commissioner.
78. In this context, it was, therefore, necessary for the petitioner
to approach the Charity Commissioner under the provisions of the
1950 Act, if he desired any variation, amendment, or modification
of the scheme. The appropriate forum for redressal after the
enactment of the 1950 Act is now the Charity Commissioner or a
competent authority under the Act, and not the District Judge
acting as a persona designata, unless such authority was expressly
preserved or continued under the scheme or under the Act itself.
79. Furthermore, on examining the scheme of the 1950 Act, it
becomes evident that the only provisions that deal with settlement
or modification of schemes for public trusts are Sections 50 and
50-A. Section 50 permits a suit to be filed in respect of a public
trust, including for the purpose of modifying, altering, or replacing
a scheme, but only after obtaining the prior consent of the Charity
Commissioner. In other words, without the Charity Commissioner’s
sanction, a civil suit for this purpose is not maintainable. Section
50-A, on the other hand, empowers the Deputy or Assistant
Charity Commissioner to frame or modify a scheme, but only in
limited circumstances and subject to procedural safeguards. Sub-
section (3) of Section 50-A allows modification of a scheme that
was either framed by the Deputy/Assistant Charity Commissioner
under Section 50-A(1), or by a Court under Section 50-A(2), i.e.,
schemes falling under the Act’s domain.
80. There is no provision in the Act which permits a person to
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approach the District Judge in his capacity as persona designata
for seeking alteration of a scheme after the 1950 Act has come into
force, particularly where the original scheme was framed under
Section 92 CPC and now stands governed by the overriding
provisions of Section 52.
81. In the present case, therefore, the petitioner’s act of filing a
suit before the District Judge, as persona designata, praying for
modification of Clause (3) of the scheme, is clearly not sustainable
in law. The proper course would have been to approach the
Charity Commissioner under Section 50 or Section 50-A, and only
in accordance with the statutory procedure laid down therein.
82. In view of the above discussion, it must be held that the
District Judge lacked jurisdiction to entertain the suit, and the
petitioner’s grievance regarding the scheme could have been
addressed only before the Charity Commissioner under the 1950
Act.
83. Shri Gorwadkar, learned Senior Advocate appearing for the
petitioner, placed reliance on the decision of this Court in Minoo
Rustomji Shroff & Ors. (supra), to argue that since the original
scheme in the present case was framed prior to the enactment of
the Bombay Public Trusts Act, 1950, and in the said decree, the
power to modify the scheme was not expressly vested in the
Charity Commissioner, only the District Judge acting as persona
designata would continue to have the authority to amend or alter
the scheme. However, upon careful reading of the facts in Minoo
Shroff‘s case, it becomes clear that the scheme involved there had
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been framed by this Court under Sections 92 and 93 of the Code of
Civil Procedure, 1908, and it specifically related to the election of
trustees and management of immovable properties of the Bombay
Parsi Panchayat. Crucially, in that case, the scheme itself expressly
reserved the power to amend or modify its provisions. This Court,
therefore, held that because the scheme itself provided a clause
enabling amendment, an application filed before the same Court
(and not under Section 50 or 50A of the 1950 Act) was
maintainable. In short, the Court’s jurisdiction to entertain a
request for modification flowed directly from the express terms of
the scheme itself.
84. However, in the present case, as discussed earlier, the scheme
framed in Civil Suit No. 7 of 1934 does not contain any express
clause which reserves power in the District Judge, as persona
designata, to amend or alter the scheme. In the absence of such an
express reservation, the principle laid down in Minoo Shroff has no
application to the facts of this case. Reliance placed on that
judgment is therefore misplaced and does not advance the
petitioner’s case.
85. The petitioner has also relied upon the decision in Khojeste
Mistree & Ors. (supra), where the issue concerned whether the
Charity Commissioner could modify a scheme framed by this Court
under Section 50A(3) of the 1950 Act. In that case, the Court had
framed the scheme on 18th June 2010, and the question arose as
to whether the Charity Commissioner could alter the scheme
framed by the High Court. The Division Bench rightly held that
once a scheme is judicially settled by the High Court, it cannot be
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modified by the Charity Commissioner under Section 50A(3). The
ratio of the said judgment is therefore limited to the question of
jurisdictional competence, i.e. once the High Court frames a
scheme, the Charity Commissioner cannot interfere with it unless
expressly permitted.
86. This principle too, however, does not apply to the present
case. Here, the question is not whether the Charity Commissioner
can override a High Court scheme, but whether a District Judge as
persona designata can entertain a modification application when
the scheme itself does not reserve such a power.
87. Coming next to the decision of the Supreme Court in Raje
Anandrao (Supra), the legal issue was whether modification of a
trust scheme framed in 1935 could be permitted by the District
Judge based on a clause in the scheme itself, without requiring the
parties to file a fresh suit under Section 92 CPC. The High Court in
that case had relied on the view taken by the Madras High Court,
which held that any modification to a scheme framed under
Section 92 must be done only by a fresh suit, and that no power of
modification could be reserved or exercised outside such a process.
However, the Supreme Court disagreed with that restrictive
approach and endorsed the view taken by the Bombay, Allahabad,
Patna, and Calcutta High Courts. The Court held that where the
scheme itself contains a clause permitting future modification,
such a clause is legally valid and serves a practical purpose. It
allows the Court to provide flexibility in the working of the trust
and to make administrative changes without compelling the
parties to engage in repeated litigation through fresh suits. The
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Supreme Court also clarified that the power to settle a scheme
under Section 92 CPC inherently includes the power to provide for
its modification. In doing so, the Court recognised the realities of
trust administration and held that such clauses facilitate efficient
and responsive management of public charitable trusts.
88. In view of this legal position, the principle that emerges is
clear: modification of a scheme can be made by the Court or
Charity Commissioner only if such a power is expressly reserved in
the scheme itself. Where no such power is reserved, the general
procedure under the 1950 Act must be followed, including
approaching the Charity Commissioner under Section 50 or 50A.
In the present case, as already observed, the scheme framed in
1937 and modified in 1939 does not contain any clause reserving
the power of modification to the District Judge. Hence, unlike in
Raje Anandrao(Supra), the present case does not involve the
exercise of an expressly reserved power, and therefore, the
principle laid down by the Supreme Court cannot be extended to
assist the petitioner.
89. The petitioner has also placed reliance on the decision of
this Court in Miscellaneous Application No. 17 of 2006 and the
earlier case of Minoo Rustomji Shroff (supra), to contend that the
Charity Commissioner has no authority to modify a scheme framed
by a Court, and that only the Court or District Judge can do so.
However, a closer reading of both these judgments shows that the
principle laid down therein is more nuanced. What the judgments
clarify is that if a scheme has been framed by the Charity
Commissioner, then its modification or alteration can be sought
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before the same authority under the powers given in the Bombay
Public Trusts Act, 1950, particularly under Sections 50 and 50-A.
On the other hand, if the scheme was framed by the High Court in
a suit under Section 92 of the Code of Civil Procedure, then its
modification is not within the purview of the Charity
Commissioner, and would have to be dealt with by the Court that
framed it, if the scheme itself reserves such power.
90. However, the present case is distinguishable. The scheme in
question was indeed framed by the District Court under Section 92
CPC before the 1950 Act came into force, but nowhere in the
scheme is there an express clause reserving the power of
modification to the District Judge, either in his judicial capacity or
as persona designata. Therefore, the judgment in Minoo Shroff
does not assist the petitioner, because the central requirement,
that the scheme itself must reserve such a power, is not satisfied in
the present facts.
91. The last judgment relied upon by the petitioner is the
decision of the Supreme Court in R. Venugopala Naidu (supra). In
that case, the core issue was whether the term “parties” mentioned
in Clause 14 of the scheme-decree referred only to the named
plaintiffs and defendants in the suit or included all persons
interested in the trust, given the representative nature of the suit.
The Supreme Court held that since the suit was filed in a
representative capacity under Section 92 CPC, the plaintiffs were
not acting in their individual capacity but were representing the
interests of the public who had a stake in the trust. Therefore, it
was observed that all persons interested in the trust would be
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treated as parties to the scheme and would be bound by it.
92. However, the present case turns not on the question of who
is bound by the scheme, but on the question of who is empowered
under the scheme to apply for modification or appointment of
trustees. In the present scheme, as this Court has already found,
clauses (3), (16), and Rule 69 clearly vest that authority in the
committee alone. These provisions empower the committee to
nominate persons for appointment as trustees and to seek
administrative guidance from the District Judge when needed. The
scheme does not confer any right or power on a “person
interested” to independently apply for modification or
appointment. Importantly, the scheme in Venugopala Naidu
expressly contained Clause 14, which permitted such persons to
invoke the Court’s jurisdiction. No such clause exists in the present
case. Therefore, in the absence of an enabling provision in the
scheme, the judgment in R. Venugopala Naidu is clearly
distinguishable and does not aid the petitioner’s case.
93. In the result, it must be held that:
(i) The rules framed by the Committee and sanctioned by the
District Judge under Clause 16 of the Scheme attain the
same binding force as the Scheme itself.
(ii) However, in the absence of any specific provision under
the Scheme or rules conferring upon the District Judge the
power to modify, alter, or rescind such scheme or rules, it is
not open to the District Judge to entertain or decide any
application seeking modification of the same.
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94. In light of the above detailed discussion and for the reasons
recorded hereinabove, this Court is of the considered view that the
judgment and order passed by the District Judge does not suffer
from any legal infirmity or jurisdictional error. The District Judge
rightly held that in the absence of a specific power reserved in the
scheme, and in view of the provisions of the Bombay Public Trusts
Act, 1950, the application filed by the petitioner for modification
of the scheme was not maintainable before the District Judge as
persona designata.
95. Hence, the writ petition stands dismissed. There shall be no
order as to costs.
96. Pending interlocutory application(s), if any, stands disposed
of.
(AMIT BORKAR, J.)
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