Chapter VII OTHER FUNCTION AND POWERS OF CHARITY COMMISSIONER

1[Each Charity Commissioner] shall be a corporation sole and shall have perpetual succession and a common seal and may sue and be sued in his corporate name.

1[43. Maharashtra Charity Commissioner to be Treasurer of Charitable Endowments under Act VI of 1890.- 2[(1)] 3* * * * * 4[(2) Notwithstanding anything contained in the Charitable Endowments Act, 1890 (VI of 1890), the Charity Commissioner shall have the following powers:-

1. (a) power to modify or substitute the scheme for the administration of any charitable endowment framed under the Charitable Endowments Act, 1890 (VI of 1890), after hearing the State Government and the Administrator under section 50A ;
2. (b) power to exercise powers under section 37 ; and
3. (c) power to change the administrator after hearing and in consultation with the State Government if the endowment is not being properly administered.]

[Charity Commissioner can act as trustee of public trusts.] Deleted by Mah. 20 of 1971, s. 31.

[Charity Commissioner may with consent be appointed trustee of settlement by grantor.] Deleted by Mah. 20 of 1971, s. 31.

[Appointment of Charity Commissioner as trustee under will.] Deleted by Mah. 20 of 1971, s. 31.

1[47. Power of Charity Commissioner to appoint, suspend, remove or discharge trustees and to vest property to new trustees.- (1) Any person interested in a public trust may apply to the Charity Commissioner for the appointment of a new trustee, where there is no trustee for such trust or the trust cannot be administered until the vacancy is filled, or for the suspension, removal or discharge of a trustee, when a trustee of such trust,-

1. (a) disclaims or dies;
2. (b) is for a continuous period of six months absent from India without the leave of the Charity Commissioner or the Deputy or Assistant Charity Commissioner or the officer authorised by the State Government in this behalf;
3. (c) leaves India for the purpose of residing abroad ;
4. (d) is declared as insolvent;
5. (e) desires to be discharged from the trust;
6. (f) refuses to act as a trustee ;
7. (g) becomes in the opinion of the Charity Commissioner unfit or physically incapable to act in the trust or accepts a position which is inconsistent with his position as trustee;
8. (h) in any of the cases mentioned in Chapter III, is not available to administer the trust; or
   • (i) is convicted of an offence punishable under this Act or an offence involving moral turpitude.

1. (2) The Charity Commissioner may, after hearing the parties and making such enquiry as he may deem fit, by order appoint any person as a trustee or may also remove or discharge any trustee for any of the reasons specified in sub-section (1).
2. (3) In appointing a trustee under sub-section (2), the Charity Commissioner shall have regard-
   • (a) to the wishes of the author of that trust;
   • (b) to the wishes of the persons, if any, empowered to appoint a new trustee;
   • (c) to the question whether the appointment will promote or impede the execution of the trust;
   • (d) to the interest of the public or the section of the public who have interest in the trust ; and
   • (e) to the custom and usage of the trust.
3. (4) It shall be lawful for the Charity Commissioner upon Making any order appointing a new trustee under sub-section (2) either by the same or by any subsequent order to direct that any property subject to the trust shall vest in the person so appointed and thereupon it shall so Vest. 2[(5) An appeal shall lie to the Court, against the order of Charity Commissioner under sub-section (2), as if such order was a decree of a district court as a court of original jurisdiction from which an appeal lies, within sixty days from the date of the order, which shall otherwise be final.]

[Power of Court to vest property in new trustee.] Deleted by Mah.20 of 1971, s. 33.

[Court not to appoint Charity Commissioner as trustee of religious trust and Charity Commissioner not to accept such trust if management of religious affairs is involved.] Deleted by Mah. 20 of 1971, s. 33.

[Power of Charity Commissioner to apply to Court for appointment of new trustee where convicted under Act.] Deleted by Mah. 20 of 1971, s. 33.

[Levy of administrative charges.] Deleted by Mah. 20 of 1971, s. 33.

[Transfer of property by Charity Commissioner.] Deleted by Mah. 20 of 1971, s. 33.

1[50. Suit by or against or relating to public trusts or trustees or others.- In any case,-

1. (i) where it is alleged that there is a breach of a public trust, negligence, mis-application or misconduct on the part of a trustee or trustees, 2[(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee or any other person but not a person holding adversely to the public trust, trespasser, licensee or tenant,]
2. (iii) where the direction of the Court is deemed necessary for the administration of any public trust, or
3. (iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether contentions 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 :-

1. (a) an order for the recovery of the possession of such property or proceeds thereof;
2. (b) the removal of any trustee or manager;
3. (c) the appointment of a new trustee or manager;
4. (d) vesting any property in a trustee;
5. (e) a direction for taking accounts and making certain enquiries;
6. (f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or wilful default;
7. (g) 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; 3**
   • (i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary;
8. (j) the settlement of a scheme, or variations or alterations in a scheme already settled;
9. (k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
10. (l) an order for winding up of any trust and applying the funds for other charitable purposes;
11. (m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust;
12. (n) an order exhonerating the trustees from techincal breaches, etc;
13. (o) an order varying, altering, amending or superseding any instrument of trust;
14. (p) declaring or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases ; or
15. (q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid relief or is necessary in the interest of the trust: 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: Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of section 1]. 4[Explanation.- In this section, "Court" means, in the Greater Mumbai, the City Civil Court and elsewhere, the District Court.].

1[50A. Power of Charity Commissioner to frame, amalgamate or modify schemes.- (1) Notwithstanding anything contained in section 50, where the 2[Assistant or Deputy Charity Commissioner] has reason to believe that, in the interest of the proper management or administration of 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 it, the 3[Assistant or Deputy 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.

1. (2) Where the 4[Assistant or Deputy Charity Commissioner] is of opinion that in the interest 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 5[and also if necessary in any newspaper which in the opinion of the 6[Assistant or Deputy Charity Commissioner] is 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, frame a common scheme for the same.
2. (3) The 7[Assistant or Deputy Charity Commissioner] may, at any time, after hearing the trustees, modify the scheme framed by him under sub-section (1) or sub-section (2). 8[(4) The scheme framed under sub-section (1) or sub-section (2) or modified under sub-section (3) shall, subject to the decision of the Charity Commissioner under section 70, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under section 50.]

1. (1) If the persons having an interest in any public trust intend to file a suit of the nature specified in section 50, they shall apply to the Charity Commissioner in writing for his consent. 1[If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he] may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. 2[(2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1), the persons applying for such consent may file an appeal to the Court, as if such order was an order passed by the District Court from which an appeal lies, within sixty days from the date of the said order, which shall otherwise be final.]
2. (3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party. 3**

1[(1)] Notwithstanding anything contained in the Code of Civil Procedure, 1908 (V of 1908), the provisions of sections 92 and 93 of the said Code shall not apply to the public trusts. 2[(2) If 3[on the date of the application of the Act to any public trust any legal proceedings in respect of such trust are pending before 4[any Civil Court of competent jurisdiction] to which the Advocate-General or the Collector exercising the powers of the Advocate-General is a party, the Charity Commissioner shall be deemed to be substituted in those proceedings for the Advocate-General or the Collector, as the case may be, and such proceedings shall be disposed of by such Court.] 5[(3) Any reference to the Advocate-General made in any instrument, scheme, order or decree of any Civil Court of competent jurisdiction made or passed, whether before or after the said date, shall be construed as reference to the Charity Commissioner.]

1[52A. Suit against assignee for valuable consideration not barred by time.- Notwithstanding anything contained in the Indian Limitation Act, 1908 (IX of 1908), no suit against an assignee for valuable consideration of any immovable property of the public trust which has been registered or is deemed to have been registered under this Act for the purpose of following in his hands, such property or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.]

1. (1) Where under any will a bequest has been made in favour of a public trust or where such bequest itself creates a public trust, it shall be the duty of the executor under the will to forward copy thereof to the Deputy or Assistant Charity Commissioner for the region or sub-region where 1[such trust] may have been, or is required to be, registered.
2. (2) No probate of any such will or letters of administration with such will annexed shall be granted by any Court whatsoever unless it is satisfied that a copy of such will has been forwarded to the Deputy or Assistant Charity Commissioner as provided by sub-section (1).

1. (1) Where according to the custom or usage of any business or trade or the agreement between the parties relating to any transaction any amount is charged to any party to the said transaction or collected under whatever name, as being intended to be used for a charitable or religious purpose the amount so charged or collected 1[(in this Act called- "dharmada" )] shall vest in the person charging or collecting the same as a trustee.
2. (2) Any person charging or collecting such sums shall within three months from the expiration of the year for which his accounts are ordinarily kept submit an account in such form as may be prescribed to the Deputy or Assistant Charity Commissioner.
3. (3) The Deputy or Assistant Charity Commissioner shall have power to make such inquiry as he thinks fit to verify the correctness of the account submitted and may pass order for the disposal of the amount in the manner prescribed. 2[(4) The provisions of Chapter IV shall not apply to dharmada.].

1[55. Cypres.- (1) If upon an application made to him or otherwise, the Assistant or Deputy Charity Commissioner is of opinion that,-

1. (a) the original object for which the public trust was created has failed ;
2. (b) the income or any surplus balance of any public trust has not been utilised or is not likely to be utilised;
3. (c) in the case of a public trust other than a trust for a religious purpose, it is not in public interest expedient, practicable, desirable, necessary or proper to carry out wholly or partially the original intention of the author of the public trust or the object for which the public trust was created and that the property or the income of the public trust or any portion thereof should be applied to any other charitable or religious object; or
4. (d) in any of the cases mentioned in sections 10 to 13 or in regard to the appropriation of the dharmada sums held in trust under section 54, the directions of the Charity Commissioner are necessary then, the Assistant or Deputy Charity Commissioner shall pass appropriate orders after making an enquiry and make a report to the Charity Commissioner.

1. (2) The Charity Commissioner may suo motu or on the report of Assistant or Deputy Charity Commissioner, give directions and in giving such direction, he shall give effect to the original intention of the author of the public trust or object for which the public trust was created.
2. (3) The Charity Commissioner may direct the property or income of the public trust or any portion thereof to be applied cypress to any other charitable or religious objects. In doing so, it shall be lawful for the Charity Commissioner to alter any scheme already settled or to vary the terms of any decree or order already passed in respect of the public trust or the conditions contained in the instrument of the public trust.
3. (4) An appeal shall lie against the decision or order passed by the Charity Commissioner under sub-section (2) or, as the case may be, sub-section (3) of this section to this section to the Court, as if such order was a decree passed by the District Court from which an appeal lies, within sixty days from the date of the said order, which shall otherwise be final.]

[Court's power to hear application.] Deleted by Mah. 55 of 2017, s. 17.

[Power of trustee to apply for directions.] Deleted by Mah. 55 of 2017, s. 18.

1. (1) In any suit or legal proceedings in which 1** * any question affecting a public religious or charitable purpose is involved, the Court shall not proceed to determine such question until after notice has been given to the Charity Commissioner.
2. (2) If upon the receipt of such notice or otherwise the Charity Commissioner makes any application in that behalf, he shall be added as a party at any stage of such suit or proceedings.
3. (3) In this section "Court" shall mean any Civil Court of competent jurisdiction in the 2[State of Maharashtra].