Chapter VII OTHER FUNCTIONS AND POWERS OF CHARITY COMMISSIONER.

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

Notwithstanding anything contained in the Charitable Endowments Act, 1890, the Charity Commissioner, Bombay (hereinafter in this section referred to as "the Charity Commissioner") shall be deemed to be and to have always been the Treasurer of Charitable Endowments for that part of the State of Bombay to which this Act extends appointed under the provisions of the said Act and the property vesting in the said Treasurer before the date on which this Act comes into force shall be deemed to vest in the Charity Commissioner as the Treasurer of Charitable Endowments; and the provisions of the said Act shall apply to the Charity Commissioner as the Treasurer of Charitable Endowments appointed under the said Act.

(1) Subject to the provisions of this Act and the rules made there under the Charity Commissioner may be appointed to act as a trustee of a public trust by a Court of competent jurisdiction or by the author of the trust. (2) Save as herein provided, the Charity Commissioner acting as a trustee of a public trust shall have the same powers, duties and liabilities and be entitled to the same rights and privileges as any other trustee of a public trust. (3) The Charity Commissioner may decline, either absolutely or except on such conditions as he may impose, to accept any trust. (4) The Charity Commissioner shall be the sole trustee and it shall not be lawful to appoint him as a trustee alongwith other persons.

(1) Any person intending to create a public trust may by the instrument creating the trust and with the consent of the Charity Commissioner appoint him by that name or any other description to be the trustee of such trust: Provided that the consent of the Charity Commissioner shall be recited in the said instrument and that such instrument shall be executed by the Charity Commissioner or any officer duly authorised by him in that behalf. (2) Upon such appointment the trust property shall vest in the Charity Commissioner and shall be held by him upon the terms declared in such instrument.

Where the Charity Commissioner by that name or any other sufficient description has been appointed a trustee of any public trust under any will, the executor of the will of the testator or the administrator of his estate shall within a period of three months from the date of obtaining probate or letters of administration, notify in the prescribed manner, the contents of such will to the Charity Commissioner and if the Charity Commissioner consents to accept the trust then upon the execution by such executor or administrator of an instrument in writing transferring the property subject to the trust to the Charity Commissioner, such property shall vest in the Charity Commissioner and shall be held by him upon the trust expressed in the will: Provided that the consent of the Charity Commissioner shall be recited in the instrument and that such instrument shall be executed by the Charity Commissioner or any officer duly authorised by him in that behalf : Provided further that where, under any law for the time being in force, no probate or letters of administration are necessary for the administration of the estate of the testator, the executor or administrator, as the case may be, shall notify the contents of the will within the period of three months from the time when the contents of the will become known to him.

(1) Any person interested in a public trust or the Charity Commissioner may apply to the Court for the appoinment of a new trustee, when a trustee of such trust- (1) (a) disclaims or dies; (b) is for a continuous period of six months absent from India without the leave of the Charity Commissioner or Deputy or Assistant Charity Commissioner or the officer authorised by the State Government in this behalf; (c) leaves India for the purpose Of residing abroad; (d) is declared an insolvent; (e) desires to be discharged from the trust; (f) refuses to act as a trustee; (g) becomes in the opinion of the Court unfit or physically incapable to act in the trust or accepts a position which is inconsistent with the trust; or (h) in any of the cases mentioned in Chapter III is not available to administer the trust. (2) No such application shall be entertained,- (a) unless the trustee who on account of any of the reasons mentioned in clauses (a) to (h) of sub-section (1) is not fit or available to administer the trust is the sole trustee or unless by the vacation of office by one or more trustees on account of any of the said reasons the minimum number of trustees required by the instrument, scheme, order or decree of the Court or usage or custom of the trust for the administration of the trust is reduced; (b) (i) until the expiration of a period of three months from the date on which the trustee is not so fit or available to administer the trust; and (ii) if a new trustee has been appointed in the said office during the said period in accordance with the instrument, scheme, order or decree of the Court, or custom or usage of the trust. (3) The Court after making an inquiry may by order appoint the Charity Commissioner or any other person as the trustee to fill up the vacancy. (4) In appointing the trustee under sub-section (3) the Court shall have regard- (a) to the wishes of the author of the trust; (b) to the wishes of the person, 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. (5) Where the Charity Commissioner is appointed a trustee, he shall be the sole trustee. (6) The order of the Court under sub-section (3), shall be deemed to be the decree of the Court and an appeal shall lie therefrom to the High Court.

It shall be lawful for the Court upon making any order appointing a new trustee under sub-section (3) of section 47 or section 47AA 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.

Nothing in section 44, 47 or 47AA- (a) shall empower any Court to appoint the Charity Commissioner to be a trustee of any public trust for a religious purpose, or (b) shall entitle the Charity Commissioner to accept any trust, if such acceptance requires the Charity Commissioner to manage the affairs of any religious denomination or any section thereof in the matter of religion: Provided, that if the author of the public trust for a religious purpose so intends, or the person or the authority in whom or which the property of such public trust vest deems it expedient in public interest, the Court may appoint the Charity Commissioner, the sole trustee of such public trust or the Charity Commissioner may accept such trust.

Where a trustee of any public trust is convicted of an offence punishable under this Act, or any amount is surcharged on him under sub-section (1) of section 41, the Charity Commissioner may apply to the Court for the appointment of a new trustee, and thereupon the provisions of subsections (3), (4), (5) and (6) of section 47 shall apply as they apply to an application made under sub-section (1) of that section.

(1) When the Charity Commissioner is appointed a trustee of any public trust, there shall be levied such administrative charges whether by way of percentage or otherwise, as the State Government may prescribe. (2) The charges so levied may be at different rates for different properties or classes of properties or for different duties.

(1) Nothing in this Act shall be deemed to prevent the transfer, by the Charity Commissioner, of any property vested in him as a trustee, to- (a) the original trustee (if any), (b) any other lawfully appointed trustee, or (c) any other person, if the court so directs. (2) Upon such transfer, such property shall vest in such trustee and shall be held by him upon the same terms as those upon which it was held prior to the transfer and the Charity Commissioner shall be exempt from all liability as trustee of such property except in respect of acts done before such transfer: Provided that in the case of any transfer under this section, the Charity Commissioner shall be entitled to retain out of the property any fees and administrative charges leviable in accordance with the provisions of this Act.

In any case- (i) where it is alleged that there is a breach of a public trust, (ii) where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or (iii) where the direction of the court is deemed necessary for the administration of any public trust, the Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in section 51 may institute a suit whether 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: — (a) an order for the recovery of the possession of such property or proceeds thereof, (b) the removal of any trustee or manager, (c) the appointment of a new trustee or manager, (cc) vesting any property in a trustee, (d) a direction for taking accounts and making certain inquiries, (e) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust, (f) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged, (g) the settlement of a scheme or variations or alterations in a scheme already settled, or (h) granting such further or other relief as the nature of the case may require: Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof: Provided further that the Charity Commissioner may, instead of instituting a suit, make an application to the Court for a variation or alteration in a scheme already settled.

(1) 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 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 such public trust (2) Where the 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-

(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. The Charity Commissioner, after hearing the parties and after making such inquiry as he thinks fit, 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) 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 Bombay Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1939, in the manner provided by this Act. (3) In every suit filed by persons having interest in any trust under section 50, the Charity Commissioner shall be a necessary party. (4) Subject to the decision of the Bombay Revenue Tribunal in appeal under section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive.

(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 the 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 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. (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 a reference to the Charity Commissioner.

Notwithstanding anything contained in the Indian Limitation Act, 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) 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 a copy thereof to the Deputy or Assistant Charity Commissioner for the region or sub-region where such trust may have been, or is required to be registered. (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) 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 (in this Act called "dharmada") shall vest in the person charging or collecting the same as a trustee. (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) 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. (4) The provisions of Chapter IV shall not apply to dharmada.

(1) If upon an application made to him or otherwise the Charity Commissioner is of opinion that- (a) the original object for which the public trust was created has failed, (b) the income or any surplus balance of any public trust has not been utilized or is not likely to be utilized, (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, (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 court are necessary, the Charity Commissioner shall require the trustees to apply within the prescribed time for directions to the Court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate. (2) If the trustees fail to make the application as required under sub-section (1) or if the Charity Commissioner himself is trustee or if there is no trustee of the public trust, the Charity Commissioner shall make an application to the court.

(1) On such application being made, the court after hearing the parties and making an inquiry shall decide the matter and shall give directions. In giving the directions, the court shall, so far as may be expedient, practicable desirable necessary or proper in public interest, give effect to the original intention of the author of the public trust or the object for which the public trust was created. If the Court is of opinion that the carrying out of such intention or object is not wholly or partially expedient, practicable, desirable necessary or proper in public interest the court may direct the property or income of the public trust or any portion thereof to be applied cypres to any other charitable or religious object. In doing so, it shall be lawful for the court 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. (2) Any decision or order passed by the court under sub-section (1) shall be deemed to be a decree of such court and an appeal shall lie therefrom to the High Court.

(1) Save as hereinbefore provided in this Act, any trustee of a public trust may apply to the Court, within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or, administration of the trust property or income thereof, and the Court shall give its opinion, advice, or direction, as the case may be, thereon: Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal. (2) The Court, on an application under sub-section (1), may give its opinion, advice or direction thereon after giving notice to the Charity Commissioner. The Court before giving any opinion, advice or direction shall afford a reasonable opportunity of being heard to all persons appearing in connection with the application. (3) A trustee stating in good faith the facts of any matter relating to the trust in an application under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the application was made. (4) No appeal shall lie against any opinion, advice or direction given under this section.

(1) In any suit or legal proceedings in which it appears to the Court that 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) 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.