T.D. Sugla, J.
1. By these two petitions under Article 227 of the Constitution of India, the petitioners have challenged the amendments in the scheme of management and administration of the trust 'Seth Motishaw Religious Charitable Trust' allowed in terms of the order dated 5th November, 1977 by Bombay City Civil Court in Chamber Summons No. 991 of 1977, suit being No. 1195 of 1962.
2. Late Seth Khimchand Morichand by his Will dated 13th August, 1869 and Gujarati writing dated 14th August, 1869 settled certain properties on trust. In a suit filed under section 92 of the Code of Civil Procedure, 1908, being Suit No. 82 of 1918, this Court by its judgment and order dated 6th March, 1931 granted a scheme for management and administration of the trust, (hereinafter referred to as the scheme). The scheme evidently envisaged a public trust of a religious nature in which the whole Swetamber Murti Pujak Jain Community is interested. Clause 26 of the scheme provided for liberty to the trustees to apply to a Judge in Chamber for direction as and when necessary on giving notice to the Advocate General. By this Courts order dated 23rd December, 1938, in the same suit, the scheme was modified whereby clause No. 7(b) and Clause No. 23 of the scheme were amended. As a result of the amendment, the objects of the trust became somewhat broad based in the same that while under the original scheme, beneficiaries under Clause 7(b) were Swetamber Murti Pujak Jains only, after the amendment not only the Swetamber Murti Pujak Jains but any Jain in high class vegetarian Hindu and any educational school or institution for boys, girls or ladies also became beneficiaries Amendment of Clause 23 of the scheme is not of significance for deciding these petitions.
3. It is common ground that the Bombay Public Trusts Act, 1950 (hereinafter referred to as the 'Act') came on the statute book on 14th August, 1950 and the trust herein was bound to and got itself registered under the said Act. Another suit, being Suit No. 1195 of 1962, was filed by the trustees against the Charity Commissioner with a prayer that Clause Nos. 12 and 26 of the Scheme be allowed to be amended. This was done by following the procedure in conformity with the provisions of sections 50 and 51 of the Act. By an order dated 12th September, 1962, in the above suit, the Bombay City Civil Court allowed the amendment of Clause Nos. 12 and 26. Clause 26 which is important for decision in this case after amendment reads as under :
'26. In all cases in which it is found necessary to amend this scheme or any clause thereof or to seek advice or directions of the Court on questions of administration or management of the Trust, the Charity Commissioner or the trustees shall have the right under this scheme to apply to the City Civil Court, Bombay. In the case of Trustees so applying they shall give previous notice in writing in that behalf to the Charity Commissioner, Bombay and shall make him a party opponent in such publication.'
On 27th July, 1977, the trustees unanimously passed a resolution for seeking amendment of Clause 5 of the scheme. However, when the actual application came to be made by way of Chembur Summons being No. 991 of 1977 in Suit No. 1195 of 1962, the amendment suggested were many and substantial. The Charity Commissioner was made a respondent who was represented by his Advocate in the proceedings. By its order dated 5th November, 1977, the Bombay Civil Court allowed the amendments.
4. Taking the view that it is necessary to raise large sum for 'Jirnodhar' of the temple and for enhancing facilities to the beneficiaries the trustees thought of a scheme of sale of about 65,000 sq. ft. of the surplus F.S.I. The notices inviting tenders were published in a number of English and other news papers on 15th, 16th and 17th November, 1979. In this resolution dated 28th December, 1979, tenders were considered and it was decided to sell the surplus F.S.I to the highest bidder. Permission of the Charity Commissioner in this regard was sought by making an application under section 36(1)(a) of the Act on 25th February, 1980. Some of the beneficiaries and some other persons interested in the aforesaid surplus F.S.I filed objections, which were rejected by the Charity Commissioner vide his order dated 3rd September, 1980. On 15th September, 1980, the Charity Commissioner passed the order allowing the trustees to sell the surplus F.S.I to the highest bidder.
5. One Shri Prithwiraj T. Jain and Shri B.S. Mehta filed writ petitions challenging the sale of surplus F.S.I. making the trustees as well as the Charity Commissioner as parties on the ground of irregularity in the procedure adopted for sale. Their petitions were rejected. Shri Dhirajlal Velji Gutka and Raviraj Devraj Dhedia had also filed a petition being Writ Petition No. 1399 of 1983 under Article 226 of the Constitution of India in this Court, inter alia, challenging the order of the Charity Commissioner dated 15th September, 1980 granting permission to the trustees to sell the surplus F.S.I. The petitioners had in terms, stated in paragraph 8 of their petition that the amendment sought by the trustees in the original scheme of the trust and sanctioned by Bombay Civil Court vide order dated 5th November, 1977, illegal and bad in law. However, it was stated that they were reserving their rights to take appropriate proceedings in the proper forum for the restoration of the original scheme of the trust. The above mentioned petition was rejected by Pratap. J., on 1st June, 1983. Appeal there against being Appeal No. 473 of 1983 was also dismissed by Kania and Lentin, JJ., vide their order dated 29th June, 1983. Thus, in terms of the aforesaid order of the Appellate Bench in this Court, the transaction of sale of surplus F.S.I has become final.
6. Shri Gursahani, the learned Counsel for the respondent trustees, raised a preliminary objection on the grounds of---
(i) Long delay in the filing of these petitions;
(ii) the principle of constructive res judicata involved; and
(iii) the facts being in dispute.
On behalf of the petitioners, it was stated that the petitions have already been admitted and the respondents' Special Leave Petitions had also been dismissed by the Supreme Court as withdrawn. It is pertinent to mention that these writ were admitted after hearing the parties and the question of delay was specifically taken up and the delay was condoned. Therefore, we agree with the learned Counsel for the petitioners that this aspect of the matter does not require consideration afresh. There is also no merit in the contention that the fact stated in these petitions are in dispute. What is in dispute is the purport and the scope of the amendment made in the scheme, vis-a-vis, the provisions of section 50, 50-A and 51 of the Act and whether the amendment of that magnitude can be carried out by taking Chamber Summons instead of regular proceedings contemplated under the Act in this behalf. These are obviously legal issues. The principle of res judicata seems to apply on the face of it in view of Explanations IV and VI of section 11 of the Code of Civil Procedure, 1908. The aforesaid two Explanations read as under :
'Explanations IV.---Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation VI.---Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.'
The mere fact that the petitioners had reserved their right to take up an aspect of the dispute at a later stage cannot, in our opinion, save the application of the principle of res judicata, as a matter of course. What is required to be seen is whether the particular aspect of the matter which is urged in subsequent proceedings might and ought to have been raised in the earlier proceedings. Considering the case from this point of view, we find ourselves in agreement with Shri Gursahani that the permission for sale granted by the Charity Commissioner which was challenged in the earlier proceedings, could and should have been challenged by attacking the amendment in the scheme itself allowed by the Bombay Civil Court vide order dated 5th November, 1977 in the Chamber Summons. The Counsel for the petitioners urged that the relief claimed in the earlier petition i.e. Writ Petition No. 1399 of 1983, was different from the relief claimed herein. By these petitions they were challenging the amendment of the scheme only. However, in response to a query from the Bench as to whether in the event of these petitions being allowed, the order of the Charity Commissioner dated 15th September, 1980, sanctioning the sale transaction will not be disturbed, the learned Counsels were evasive. In the premises one cannot be too sure of the motive of the petitioners. It may be that they intend to challenge the transaction of sale duly authorised by the Charity Commissioner after and if their impugned petitions are allowed. Having regard to the above discussion and keeping view the facts that Masodkar, J., after hearing the parties passed an order on 20th December, 1983, thought that the ends of justice would be met by directing that both these petitions be placed for hearing before the Division Bench and that not only the order of the Charity Commissioner authorising the sale but the transaction of the sale also stands confirmed by the orders of this Court, we consider it desirable to decide the petitions on merits making it clear that irrespective of fate of these petitions, the transaction of sale already taken place after taking permission of the Charity Commissioner is final and will remain so.
7. A number of decisions were cited by both sides in support of their rival contentions on the question of delay in filing the petitions, principle of res judicata and when the facts are in dispute. It cannot possibly disputed that the decision on these questions has to depend on the facts of each case. It is for this reason, we do not consider it necessary to deal with individual decisions to except to mention their citations hereunder :
(1) Daryao and others v. State of U.P., : [1962]1SCR574 .
(2) Narinder Singh v. Khaliq-ur-Rehman and others, : AIR1974Delhi184 .
(3) State of Uttar Pradesh v. Nawab Hussain, : [1977]3SCR428 .
(4) Indu Bhushan Gupta v. State of Uttar Pradesh, : [1980]1SCR179 .
(5) M/s. Star Sugar Mills v. State of U.P., : AIR1984SC37 .
(6) Mrs. Labhkuwar Bhagwani Shah and others v. Janardhan Mahadeo Kalan and another, : AIR1983SC535 .
(7) State of U.P. v. Bhadur Singh and others, : 1983ECR1556D(SC) .
8. On merits, the learned Counsel S/Shri Singh avi and Vyas for the petitioners raised important contentions, such as :---
(i) After coming into force of the Bombay Public Trusts Act, 1950, the provisions of section 92 of Civil Procedure Code, 1908, are not applicable. There is no scope for seeking amendment in the scheme by taking recourse to Chamber Summons under the said Act. Even the amended Clause 26 of the scheme has to operate within the parameter of section 50 of the Act. Our attention was particularly invited to section 52 of the Act which in terms lays down that the provisions of section 92 and 93 of C.P. Code, 1908 will not apply to the Public Trusts. The order dated 5th November, 1977 by the Bombay City Civil Court in Chamber Summons, is thus, according to the Counsel, without jurisdiction.
(ii) Except in the circumstances mentioned in section 55 of the Bombay Public Truss Act, 1950, the objects of the trust cannot be amended and the scheme of management and administration of the trust alone can be amended and that too within the four corners of the trust.
(iii) The amendment carried out in terms of 1977 order of Bombay City Civil Court has drastically changed not only the scheme of administration and management of the trust but also the objects of the trust which cannot be done. The amendment is, thus bad and illegal. In other words, the submission is that the expression 'liberty to apply' has its limit. The trust was basically a religious trust. In view or the amendment in the scheme, it has become a public charitable trust. However, laudable the objects might be, this, according to the Counsel, cannot be done in law. The Counsel for the Interveners adopted all arguments advanced on behalf of the petitioners.
9. Shri Gursahani, on the other hand, submitted that section 92 of C.P. Code, 1908 also contemplates filing of a suit by persons having interests in the trust after obtaining the consent of the Advocate General in writing and yet the courts have held that Chamber Summons can be restored to for the purpose of carrying out amendments in the scheme. Relying on a Full Bench decision of Mysore High Court in the case Gollaleshwar Dev of Golgeri Trust and others v. Gangawwa Kom Shantayya Math and others, A.I.R. 1972 (Mysore)1, he stated that section 92 of the C.P. Code and section 50 of the Act are in pari materia and, therefore, if Chamber Summons can be taken in the proceedings under section 92 of the C.P. Code, the same procedure can well be followed under section 50 of the Act. His contention, thus, is that City Civil Court had jurisdiction to consider the trustee's application for amendment of the scheme in Chamber Summons proceedings. Further, inviting our attention to the fact that the Charity Commissioner was made a respondent in the proceedings, the objections raised by the petitioners, according to him, were at best technical. He also invited our attention to the amendment of Clause 7(b) of the scheme in the year 1983 to show that the trust is not purely religious trust. According to him, it is a public religious and charitable trust in name and spirit. It is urged that the objects of the trust has not been changed as alleged as the main beneficiaries of the trust continue to be Swetamber Murti Pujak Jains. Shri Sathe, the learned Counsel for the Charity Commissioner supported the stands of the trustees.
10. We are in agreement with the learned Counsel for the petitioners that under the 'liberty to apply' clause (being Clause No. 26 with or without amendment), the original scheme cannot be scrapped and an altogether new scheme cannot be framed. 'Liberty to apply' clause is at best an enabling clause for seeking amendment in a scheme framed earlier subject to the condition specified in section 92 of the C.P. Code and after coming into force of the Bombay Public Trusts Act subject to the conditions contemplated in sections 50, 50-A, 51, 55, 56, 56-A, and 56-B of the Act. There cannot possibly be any dispute about this proposition as the meaning and scope of 'liberty to apply' clause is well settled in view of the decisions in the cases of---
(i) Ratilal Ramchand Gandhi and others v. State of Company and others, : [1954]1SCR1055
(ii) Shah Chhotalal Lallubhai and others v. The Charity Commissioner, Bombay and others, : [1965]2SCR811 .
(iii) S.P. Mittal v. Union of India and others, : [1983]1SCR729 .
11. For the proposition the specific provisions of section 50 of the Act override the general provisions of section 92 of the C.P. Code and that a scheme settled under section 92 of the C.P. Code is not independent of section 50 of the Act, we have an authority of Gujarat High Court in the case of Y.A. Faroqui v. I.A. Sheikh, 17 G.L.R. 54.
12. The next pertinent question is whether the trustees' application for amendment of the scheme by taking recourse to Chamber Summons and the Court granting amendment is not proper and if so whether it is so bad as to make the order of the Court without jurisdiction. In order to appreciate the rival contentions, in this regard, it is desirable to mention that this Court has in the case of Chandraprasad Ramprasad v. Jinabharthi Narayanbharti, 33 Bom.L.R. 520 at page 529 observed as under :
' With regard to the second point that so far as the relief mentioned in section 92 of the Civil Procedure Code is concerned, the remedy is not by way of an application but by a suit with the consent of the Advocate General, it appears to me that the consent of the Advocate General is required under section 92 for the settling of a scheme where no scheme existed before, and not for the modification or alteration of the scheme. Though the provision for the consent of the Advocate General is salutary in so far as it would tend to prevent vexatious suits, I think that when once the Court has seized of a case relating to charitable and religious trust involving the framing of a scheme, the more appropriate and speedy remedy would be by way of an application rather than the cumbrous procedure of a suit, in case a modification is required of the scheme owing to change of circumstances.'
Therefore, even though, section 92 of the C.P. Code contemplates taking of prior permission in writing of the Advocate General before a suit is filed, taking of proceedings by way of chamber summons is not only permissible but also desirable. Further, the Supreme Court has held in paragraph 18 of its decision in the case of Ratilal Panachand Gandhi's case (supra) as under :
'We now come to section 50 and exception has been taken to Clauses (e) and (g) of that section. It is difficult to see how these provisions can at all be objected to. Section 50, as has been said above, is really a substitute for section 92 Civil P.C. and relates to suits in connection with public trusts Clause (e) of section 92, Civil P.C. and Clause (g) also reproduces substantially the provision of Clause (g) of section 92 Civil P.C. There is no question of infraction of any fundamental right by reason of these provisions.'
This view has been again taken by the Supreme Court in the case of Raje Anandrao v. Shamrao and others, : [1961]3SCR930 . In the above view of the matter, it can be assumed that at least for limited purpose, section 50 of the Act is a substitute for section 92 of the C.P. Code and, therefore, Chamber Summons would be permissible under the Bombay Public Trusts Act also on parity of reasonings. If the scheme so provides. No doubt, the Supreme Court held in its decision in the case of Shree Gollaleshwar Dev and others v. Gangawwa Kom Shantayya Math and others, : AIR1986SC231 that the provisions of section 50 of the Bombay Public Trusts Act and section 92 of the C.P. Code were not in pari materia and reversed Mysore High Court's Full Bench decision in the case of Gollaleshwar Dev's case reported in A.I.R. 1972 Mysore 1. However, on carefully going through the decision particularly paragraph 15, it appears to us that Their Lordships held the provisions in two sections to be not in pari materia on account of some distinguishing feature which have nothing to do with the taking of proceedings by way of Chamber Summons. Therefore, we do not agree with the learned Counsel for the petitioners that there has been anything fundamentally wrong or improper in seeking amendment of the scheme by taking recourse to Chamber Summons or in Judge's passing an order in those proceedings. There is one more reason for our taking this view. It is an admitted position that the decree dated 12th September, 1962 passed by the Bombay City Civil Court in Suit No. 1195 of 1962 was obtained by the trustees by taking proceedings in conformity with the provisions of section 50 of the Act. The decree dated 12th September, 1962 has not been challenged in these proceedings in these proceedings as such. Chamber Summons are taken as further step in those proceedings i.e. Suit No. 1195 of 1962. Moreover, we have not been able to appreciate what is so illegal about the procedure adopted in this behalf. Instead of obtaining the consent of the Charity Commissioner in writing before filing the suit under section 50 read with the section 51 of the Act, Charity Commissioner has been made a respondent. The Charity Commissioner has appeared before the Court through his Advocate. If he had any objections, he had ample opportunity to raise. Instead of raising any objection, he has instructed his advocate not to oppose the amendment as he did not find anything wrong with the amendment sought.
13. Subject to the contention that the scheme of the trust is drastically changed which is not permissible, to which aspect we will revert a little later on, let us examine the nature of the amendment in the scheme. In terms of the unamended scheme properties mentioned in schedule 'A' were reserved for religious purpose in the conservative meaning of the term religion. The properties mentioned in Schedule 'B' were also for religious purpose along with some other purposes, like the residence etc. of the members of Swetamber Murti Pujak Jain community. Clause 7(b) which deals with the properties in Schedule 'B' has already undergone an amendment in the year 1938. The beneficiaries under that clause are no longer confined to the members of Swetamber Murti Pujak Jain community. Under the amended clause, any Jain, or high class vegetarian Hindus, any educational school or institution for boys, girls and ladies are also beneficiaries. Under the scheme as stands amended in terms of the order of the Bombay City Civil Court dated 5th November, 1977, it is not as if, Swetamber Murti Pujak Jain religion or community are no longer beneficiaries. They are very much beneficiaries under the amended scheme. When has happened is that the properties under the two schedule are now amalgamated into one schedule and other objects such as medical relief, education and other general charitable objects have been specifically added. On the face of it, it is difficult to imagine that these objects fall outside the tenets of the Swetamber Murti Pujak Jain religion. For the present, we are not going into the validity of the amendment and re-confining ourselves only to the nature of the amendment. With the passage of time, the concept of religion also changes. Changes in times one circumstances cannot be ignored. Thus, one thing is certain that there is no scope for allegation of imputing motive on the part of the trustees. We are satisfied that they have acted bona fide and the objects introduced are laudable. In the circumstances, we find it difficult to accept that there is anything seriously wrong with the procedure followed in seeking the amendment of the scheme in the year 1977 by way of taking recourse to Chamber Summons. While so holding, we have kept in mind that for exercising the writ jurisdiction under Articles 226/227 of the Constitution of India, the paramount consideration has got to be equity and not technicality.
14. The laudable objects or bona fide conduct in seeking the amendment in the scheme by taking recourse to Chamber Summons, however, by themselves, will not justify any and every amendment in the scheme of the management and administration of the trust. As stated by the earlier, the objects can be amended only if there is a situation justifying the amendment within the meaning of section 55 of the Act. Paragraph 9 of the Affidavit filed on behalf of the trustees vindicates the stand of the petitioners that the amendments were sought in the scheme with a desire to expand the activities of the trust and to undertake further charitable activities which the unamended scheme did not authorise. This is clear from the amendments introduced. For example, under the original scheme a considerable portion of the trust property was shown in schedule I which was earmarked for religious purposes. After the amendment all properties as shown in one schedule and are stated to be for the objects of the trust. Sub-clauses (i) to (n) inserted in Clause 5 are altogether new. In any event the amendments sought went beyond the resolution passed by the trustees in this behalf. The Supreme Court has clearly laid down in the case of Ratilal Panachand Gandhi's case, : [1954]1SCR1055 :
'........A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity Commissioner or the Court considers expedient or proper, although the original objects of the founder can still be carried out, is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs'.
In the said judgment, the Supreme Court had further observed as under :
'It is well established, however, that where the donor's intention can be given effect to, the Court has no authority to sanction any deviation from the intentions expressed by the settler on the grounds of expediency and the Court cannot exercise the power of applying the trust property or its income to other purposes simply because it considers them to be more expedient or more beneficial than what the settler had directed'.
The Bombay High Court has also held in the case of Shrinivas R. Acharya v. Purshottam Chaturbhuj, : AIR1953Bom393 as under :
'A scheme once settled by the Court cannot be altered even by the Court except on substantial grounds. Changes in times and circumstances may ex debited justitiae require that alterations should be made in the scheme to carry out the objects of the endowment and to see that the scheme operates beneficially. At the same time, Court has always to exercise caution in this matter and see that what has been done by the Court is not disturbed except where there are substantial grounds for doing so and where satisfactory evidence to sustain those grounds is brought before the Court. The paramount consideration must be the interest of the charity'.
Thus, the scheme once framed cannot and should not be amended except on substantial grounds. Nothing has been shown to us on behalf of the trustees that there were substantial grounds for seeking these amendments or that the trust would have failed or would not have functioned properly except by carrying out the impugned amendments in the scheme. Confronted with this submission, it must be said in fairness to Shri Gursahani, the learned Counsel for the trustees, that on instructions from the trustees, he made a statement at the Bar that the trustees had acted bona fide in seeking the amendment of the scheme and that if the Court feels that legally this could not have been done inspite of the fact that the objects introduced by way of amendments are laudable, the trustees would gladly accept any modification of the scheme as this Court might direct. He graciously furnished before us a copy of the resolution passed by the trustees unanimously agreeing to the modification of the scheme as under :
'Resolved that the Scheme of Seth Motishaw Religious and Charitable Trust be amended as under :---
1. Substitute the following clause as and for the existing Clause 5 :---
'5. The Trustees shall stand possessed of the immoveable property described in the first part of the first schedule hereto upon trust to allow all members of the Swetamber Murti Pujak Jain Community to use the same as a place of worship and for offering prayers and performing rites and ceremonies in accordance with the Jain religion and for giving religious feasts subject nevertheless to such rules and regulations as the trustees may from time to time make as hereinafter provided and subject as aforesaid to all members of the said community to use the said property or any portion therefore for such other religious purposes as the trustees may sanction in accordance with the Jain religion or usage'.2. Add the following as Clause 7 after Clause 6 :
'7. The Trustees shall stand possessed of the immoveable properties and securities respectively described in the 1st and 2nd parts of the second schedule hereto upon trust';
'7(a) To divide the net balance of the rents profits and income of the said immoveable property and securities mentioned in parts 1 and 2 of the second schedule hereto or other property representing the same into three equal parts as provided in the Gujarati Deed dated 14th August, 1869 executed Khimchand Motichand and the Trustees shall pay one of such parts to the Trustees for the time being of Shri Motishaw's Toonk of Palitana another such part to Trustee for the time being of Shri Godiji's temple in Bombay and the Trustees shall retain the remaining part of and hold the same upon the trusts hereinafter mentioned'.
3. Add the following as Clause 8 after Clause 7:---
'8. The Trustees shall stand possessed of immovable properties and securities respectively described in the 1st and 2nd parts of the second schedule hereto upon trust.
(a) To call and convert the securities if and when necessary and to use utilise and spend the net sale proceeds in the construction or erection of buildings or structures upon the land described in Part I of the second schedule hereto and to invest the surplus, if any, in securities authorised by the law for the time being in force for investment of trust funds.
(b) To let out the buildings or structures and the hereditaments and premises which may be erected upon the land described in Part I of the second schedule hereto or any part thereof for residential purpose to Swetamber Murti Pujak Jain's or any Jain or High Class Vegetarian Hindu's or for shops or business to any persons or to any educational School or Institution for boys or girls and/or ladies with power to the trustees to let any portion of the said premises to any Swetamber Murti Pujak Jain for residential purposes only either free of rent or on payment of any small rent as the trustees may think fit.
(c) To pay out of the rents profits and income of the said immoveable properties and securities described in parts 1 and 2 of the second schedule hereto or other property representing the same all rates taxes premises and outgoings in respect of the said property and securities and all costs, charges and expenses in connection therewith including the costs of administration'.
4. Add the following as Clause 20-A after clause 20 :
'20. Subject to the trusts and provisions hereinabove contained with regard to specific properties hereinabove referred to and subject also to the proviso hereinafter contained, the Trustees shall stand possessed of all properties, moneys and securities belonging to the said Trusts Upon Trust from time to time and according to the description to spend use and apply the income derived from or on account of the said Temples and all rents, profits, dividends and income of the immoveable and moveable properties inter alia for all or anyone or more the following purposes :
(a) In payment of salaries, fees or remuneration to Mehta, Bhojak, Hamals and other employees employed in and about the Temple and for the worship threat and in payment of all expenses incurred in or for the maintenance of management of the said Temples and properties including all legal costs, charges & expenses incurred by the trustees.
(b) In purchasing Oil, Ghees, Sandal wood, Musk, Camphor, Sandal wood, Dhoop, Agarbatti, Ambar, Saffron, Clothes, Gold and Silver Varakh, utensils, pots and pans, Ornaments and all paraphernalia articles and things required for the purpose of worship at the said Temples for any religious purposes or for use of worshippers and persons resorting thereto.
(c) In providing hot water bath and vessels and paraphernalia for bathing for the use of worshipers.
(d) In payment of all rates, taxes dues and outgoings payable to the Municipality, Government or any other public body in respect of the properties belonging to the trust or any part thereof.
(e) In making payments, presents or gifts to any Gorjee whether residing within the premises of the said Temples or outside and to pay poor member of the Jain Swetamber Murtipujak Community.
(f) For collecting, printing and making copies of books or manuscripts relating to Jain religion or philosophy and for purchasing such books or manuscripts and presenting the same to any person or institutions.
(g) In repairing or making additions or alterations to the said Temples, the Rangmandap and the buildings and structures belonging to the Trusts whomsoever and to such extent as the trustees may from time to time deem desirable.
(h) For such religious and charitable trusts and purposes authorised by the usage of the Swetamber Murtipujak Jain religion as the trustees may deem fit'.
The scheme so agreed upon by the trustees is practically the same as was framed by this Court in the year 1931 as modified in the years 1938 and in 1962. All the same, it is not exactly the same. Even though Shri Gursahani and his clients have shown so much force and objectivity, we did not find justification for not restoring to the scheme as it stood before its amendment in the year 1977. It must be stated in fairness to the trustees and their Counsel that they concede to this suggestion of the Court also.
15. Before concluding, in the interest of justice, we would like to observe that it would be advisable hereafter to seek any amendment of the scheme under the procedure laid down in the Bombay Public Trusts Act, 1950, particularly sections 50, 50-A, 51, 56, 56-A, and 58-B. We are happy to note that the trustees have no objection to following such a course.
16. Apart from what we have held in paragraph 6 of this judgement, it is proposed to accept the claim of the petitioners that the relief claimed in these petitions is absolutely different from the relief claimed in the earlier petitions particularly in Writ Petition No. 1399 of 1983. The decision of this Court in that petition has become final. The agreement with the purchaser of F.S.I. shows that he has to sell the premises to Swetamber Murti Pujak Jain or any Jains or vegetarian Hindus. In any event the income arising from that transaction is going to be used for advancing the objects of the Trust. In this view of the matter, though the petitions are partly allowed, it is made clear that the sale transaction authorised by the Charity Commissioner by order dated 15th September, 1980 and entered into by the trustees in pursuance thereof is final and continue to remain so. Rule is partly made absolute. In the circumstances of the case, there will be no order as to costs.
At this stage, the learned Counsel for the petitioners prayed for leave to appeal to the Supreme Court. We do not consider that this is a fit case for grant of leave. Hence the prayer for leave to appeal is rejected.