S.K. Keshote, J.
1. Heard learned Counsels for the parties. Challenge is made by the petitioner in this Special Civil Application to the order of the District Judge, Mehsana dated 30th January, 1982 under which execution application filed by the petitioner was dismissed.
2. The petitioner herein is a trust, which has its property at Patan (inclusive of temple). Previously one Sadhu Saligram was the sole trustee and Mahant of the trust. He submitted an application in the year 1961 for registration of the trust and ultimately the trust was registered as a public trust under the order of the Chanty Commissioner dated 7-6-1961. Shri Saligram expired on 1-8-1972. After his death the dispute over the trust property started between Vrajlal and his relative and friends on one side and certain persons of the locality who were taking interest in the trust property on the other side. Complaints were filed against each other. Vrajlal, i.e., the respondent No. 1 herein filed a Civil Suit in the Court of Civil Judge, Jr. Division, Patan for injunction and also filed change report before the Deputy Charity Commissioner, Ahmedabad and contended that Shaligramji had executed a will on 26-1-1970 and bequeathed the properties in favour of the son of Vrajlal and he was appointed as guardian of minor Arvind. That change report was dismissed on 18th August, 1975 by the Charity Commissioner as not pressed. The Civil Suit filed by Vrajlal also came to be dismissed on 23rd June, 1978. Meanwhile one Shyamprasad Shastri, a resident of Patan, submitted an application on 23-6-1975 to the Charity Commissioner to take necessary steps for preservation and protection of the trust property, a temple. The Charity Commissioner, therefore started suo motu proceedings and the matter was heard. The Joint Charity Commissioner by his order dated 18-6-1979 held that Vrajlal had failed to prove that Shaligramji had executed a valid will in favour of Arvind and Vrajlal is entitled to act as a the trustee of the temple during the minority of Arvind. Further, it has been held that it was necessary to frame scheme in respect of the temple and framed a scheme as per Ex. 16 and appointed seven persons named in the order as the first trustees under the scheme. The Joint Charity Commissioner also passed the order in the form of a declaration that the trustees appointed under the scheme get a legal title over the temple properties whereas Vrajlal had no title to retain possession. Vrajlal was directed to hand over possession of the temple properties to the trustees appointed under the scheme, to come in force from the date of the order. The aforesaid order of the Joint Charity Commissioner was challenged by the respondent, Vrajlal by filing an application before the District Court, Mehsana. The matter has been heard and decided by the District Judge, Mehsana and said application was dismissed on 5-3-1980. Against that order of the Assistant Judge, Mehsana, the respondent No. 1 filed an appeal before this Court which came to be dismissed on 7-4-1980. The Letters Patent Appeal has also been preferred, but that too was dismissed on 15-4-1980. Thereafter, the petitioners along with the Joint Charity Commissioner filed Darkhast in the Court of District Judge, Mehsana, being Regular Darkhast No. 1 of 1981, in order to execute the order passed by the learned Joint Charity Commissioner, as a decree and confirmed by the High Court. Under the impugned order, the District Judge dismissed the execution application. Hence, this Special Civil Application.
3. The learned Counsel for the petitioners contended that the District Judge has committed serious error of jurisdiction in rejecting the execution application filed by the petitioners. The scheme framed under Section 50-A of the Bombay Public Trusts Act. 1950 (hereinafter referred 10 as the Act) has the effect as a scheme settled under a decree of the Court under Section 50 of the Act, and as such, it is executable.
4. On the other hand learned Counsel for the respondent Nos. 5 and 6 supported the contentions made by the learned Counsel for the petitioners. Ms. K.G. Brahmbhatt. Counsel for respondent No. 1 conceded that the scheme framed under the Bombay Public Trusts Act for a trust is a decree executable by the Civil Court. Though in view of this concession made by the Counsel for the respondent No. 1 it was not necessary for me to go and decide this issue raised in the present case on merits but as this issue relates to the question of law of vital importance and to avoid any confusion on this issue, I consider it appropriate to decide this question on merits.
5. To appreciate the point arisen in the present case for consideration of this Court. I consider it appropriate to extract the relevant provision of the Act.
Section 50-A. Power of Charily Commissioner to frame, amalgamate or modify schemes:
(1) Notwithstanding anything contained in Section 50, where the Charity Commissioner has reason to believe that, in the interest of the proper management of administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a scheme be settled for it, the Charity Commissioner may, if, after giving the trustees of such trust the 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 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--
(a) publishing a notice in the Official Gazette and also in at least two newspapers (one in English, and the other in the language of the region) with a wide circulation in the region in which the trust is registered, and
(2A) A scheme under this section may provide for the number of trustees, the mode of appointment of trustees including the appointment of the first trustees, vesting of the trust property in the trustees so appointed, mode of filling any vacancy of a trustee, the remuneration of manager of the public trust and where necessary, a clarification of the objects of the public trust.
(3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under Sub-section (1) or Sub-section (2).
(4) The scheme framed under Sub-section (1) or Sub-section (2) or modified under Sub-section (3) shall, subject of the decision of the competent Court under Section 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under Section 50.
Section 72. Application from Charity Commissioner's decision under Sections 40, 41, 50-A, 70 or 70-A etc.
(1) Any person aggrieved by the decision of the Charity Commissioner under Sections 40, 41, 50-A, 70 or 70-A or on the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may within sixty days from the date of the decision, apply to the Court to set aside the said decision.
(1A) No party to such application shall be entitled to produce additional evidence whether oral or documentary, before the Court unless the Deputy or Assistant Chanty Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause the Court thinks it necessary to allow such additional evidence :
Provided that whenever additional evidence is allowed to be produced by the Court the Court shall record the reason for its admission.
(2) The Court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such order as to costs as it thinks proper in the circumstances.
(3) Pending the disposal of an application under Sub-section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order.
(4) An appeal shall lie to the High Court against the decision of the Court under Sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
Explanation : In this section, the expression, 'decision' shall include a scheme framed or modified under Section 50A.
6. The learned District Judge, Mehsana in its order impugned in this Special Civil Application has accepted the position that scheme framed under Sub-section (1) or Sub-section (2) of Section 50-A of the Act has the effect as a scheme settled or altered, as the case may be, under the decree of the Court under Section 50 of the Act, but even after accepting this position, the execution application has been held to be not maintainable on the ground that merely because the scheme settled by the Charity Commissioner is given effect of the decree of the Court, it does not become the decree by the Court. So the learned District Judge has tried to draw a distinction in between the decree passed by the Court and the order made by the Charity Commissioner which was made to be decree by statutory deeming provisions.
7. The learned District Judge, Mehasana has not properly appreciated the provisions of the Act. Those provisions were not appreciated in the correct perspectives. The object and purpose of Section 50-A has not properly been appreciated which has resulted in this erroneous order. Section 50 of the Act, makes a provision for filing of the suit relating to public trust in any case where the direction of the Court is deemed necessary for the administration of any public trust, though after obtaining consent in written of the Charity Commissioner for filing of the suit. The decree under Section 50 may be there for the reliefs as mentioned in Section 50. Section 50-A is a specific provision made. Section 50-A starts with non-obstante clause and as such it has to be given effect to, notwithstanding anything contrary contained in Section 50 of the Act, 1950. So the legislature has conferred a power to the Commissioner also for framing of the scheme for the administration of the public trust. Sub-section 2(A) of Section 50-A of the Act provides that a scheme framed under this section may contain the provisions to the number of the trustees, the mode of appointment of trustees, including the appointment of first trustees, vesting of the trust property in the trustees so appointed, mode of filling any vacancy of trustees, the remuneration of manager of the public trust and where necessary, a clarification of the objects of the public trust. Sub-section (3) empowers the Charity Commissioner to modify the scheme framed by him under Sub-section (1) or Sub-section (2). Sub-section (4) of Section 50-A of the Act is a provision relevant, relating to the controversy which has been raised in this case wherein a statutory deeming provision has been created that the scheme framed under Sub-section (1) or Sub-section (2) or modified under Sub-section (3) have effect as a scheme settled or altered, as the case may be, under a decree of a Court under Section 50 of the Act.
8. The object and intendment of enacting Section 50-A appears to provide alternative forum for framing scheme for the administration of the trusts. The power to frame scheme for the administration of the trust thus does lie with both the Civil Court as well as the Charity Commissioner. A scheme framed under Section 50 of the Act is a decree of the Court and it is executable. The order passed under Section 50-A of the Act by the Charity Commissioner would have been a waste paper or a scheme only in the papers, in ease it would not have been made executable by a statutory deeming provision. It was necessary to make the order passed by the Charity Commissioner under Section 50-A to be a decree executable otherwise the very purpose and object of giving of the power to the Charity Commissioner to frame, amalgamate or modify the scheme would be a nugatory provision. The intention of the legislature was to give this additional power to the Charity Commissioner and this power could have been effective only where the order made under Section 50-A of the Act has been given the force of decree of the Civil Court under Section 50 of the Act, and to make it executable.
9. The learned District Judge has committed an error in holding that the very fact that the provisions of Section 72 of the Act, provides for the application to the Court, i.e., the District Court, for challenging the decision of the Charity Commissioner under Section 50-A of the Act leads to inevitable conclusion that it is not executable by the Court, the District Court. Another finding has been given that if the decision of the Charity Commissioner under Section 50-A of the Act is considered to be the decree by the Court, i.e., the District Court, no provision could be made to challenge the decree of the same Court, i.e., the District Court under Section 72 to the said Court itself. While giving this finding, the learned District Judge has not considered the fact that in case the scheme framed under Section 50-A of the Act, is not made executable then that provision will become nugatory. The legislature never intends to make a provision which has no force or applicability or enforceability. As it is a case where the order has been made by the Charity Commissioner, a right of challenge to that order has been given to the aggrieved party, but it is not a case where an appeal has been provided. It is a case where the remedy has been provided to challenge the order to the Court and from which it cannot be said that the Court to which the remedy is provided to challenge the order of the Charity Commissioner cannot be an executing Court of the very order. Sub-section (4) of Section 50-A of the Act has to be read and the statutory legal fiction created therein has to be given effect to, to its logical conclusion and to make the provision workable and effective. Sub-section (4) of Section 50-A provides that the decision of the Charity Commissioner under Sub-section (1), Sub-section (2) or Sub-section (3) of the said section shall subject to the decision of the competent Court under Section 72, have effect as a scheme settled or altered, as the case may be, under the decree of a Court under Section 50 of the Act. So the ultimate decision given in the matter by the competent Court under Section 72 will have also an effect of decree. It is to be noticed that under Section 72 of the Act the Court competent (District Court) may make changes in the scheme framed by the Charity Commissioner under Section 50-A of the Act. The scheme as changed or modified by the District Court under Section 72 of the Act will not be executable also in case the reasoning given by the District Judge is accepted. Now it is a scheme framed by the Court, may be on an application of the aggrieved person against the scheme framed by the Charity Commissioner. The power given under Section 72 of the Act is only the power of correction of errors, which has nothing to do with the executability of the order of the Charity Commissioner or the order modified under Section 72 of the Act which were by legal fiction created to be at par as a decree passed by the Court. The scheme framed under Section 50 of the Act is executable. So to overcome the difficulty arising in respect of the scheme which would be framed or settled by the Charity Commissioner under Section 50-A of the Act. Sub-section (4) puts that scheme at par with the scheme settled under a decree of the Court under Section 50 of the said Act. When the legislature says that the scheme framed under Section 50-A of the Act would have the same effect as the scheme settled by a decree of a Court under Section 50 of the Act, it clearly means and intends to treat the scheme under Section 50-A of the Act and the scheme settled under the decree of Civil Court on equal footing in all respect because the legislature has given the former the effect of the latter and if this is so, the scheme framed under Section 50-A of the Act for all the purposes is at par to a scheme settled under the decree of a Court under Section 50 of the Act. In case it would not have been made to be a decree then, as stated earlier, the whole purpose of enacting Section 50-A of the Act would have been defeated. It would appear that after the insertion of Section 50-A in the Act, the Charity Commissioner has acquired power to frame a scheme for the management or administration of a public trust as well as to modify the scheme framed by it under Sub-section (1) or Sub-section (2) thereof. So after the enactment of Section 50-A of the Act, the Charity Commissioner has been given two alternatives, i.e., if he wants to settle or frame a scheme in respect of a given trust he can do it under the provisions of Section 50-A of the Act or he can either grant sanction for filing of a Civil Suit in the District Court as provided under Section 50 of the said Act. There is no dispute that the direction contained in scheme which is framed or settled by decree passed under Section 92 of Civil Procedure Code, 1908 may be enforced and executed upon an application by a person interested. The same principle would apply to the decree passed by the District Court under Section 50 of the Act.
10. Under Section 50 of the Act, the suit is there before the District Court and ultimately the Court will pass the decree in that suit under which it settles a scheme. This scheme settled under Section 50 of the Act by the Civil Court in a suit could be declaratory in part and could be directive in part and since the directive part is under a scheme it can be executed by the Court in execution proceedings. Thus, a decree of the Court under Section 50 of the Act, settling a scheme and such a scheme contains a direction to trustees or any other person to do certain things, such a direction can be enforced by executing a decree. In the present case also, in the scheme certain directions were given to the trustees to do a certain thing and in case it is not taken to be a decree then this direction could not be enforced. If interpretation given to Sub-section (4) of Section 50-A of the Act by the Court below is accepted then it will result in absurdity. Scheme framed by the Commissioner under Section 50-A of the Act will be only a waste paper. The intention of the legislature is always to make effective provision and not an unworkable and ineffective provision. In case Sub-section (4) would not have been there in Section 50-A of the Act then certainly this power would have been useless, ineffective and the exercise of the powers therein would have been an exercise in futility. The powers given under See. 50-A of the Act without the power of execution of the directions given therein would be a power without any enforceability. To overcome this difficulty, the legislature has inserted Sub-section (4) to Section 50-A of the Act, and the directions contained in the scheme, settled under the said provision by legal fiction has been given the character of a decree of a Civil Court. The Charity Commissioner is not a Court, and as such, in the absence of Sub-section (4) in Section 50-A of the Act, the scheme settled by him under the said provision would not be under a decree and if it is containing directions it would not be possible to execute the same as it can be done with regard to the scheme containing such a direction settled by the Court under a decree under Section 50 of the Act. It was because of this difficulty and the distinction which existed between the scheme settled by the Charity Commissioner under Section 50-A of the Act and the scheme settled by the Court under a decree passed under Section 50 of the Act, the legislature has to consider the question of the execution of the directive part of the scheme settled by the Charity Commissioner and to fulfil that purpose and the object, Sub-section (4) of Section 50-A of the Act was enacted. This sub-section, as stated earlier, puts a scheme framed under Section 50-A of the Act at par with the scheme settled under the decree of the Court under Section 50 of the said Act. It is obvious that Sub-section (4) to Section 50-A of the Act has been enacted to see that the directive part of the scheme settled under said section could be executed through the Court. There is no provision in the Act for execution of the directive part of the scheme settled under Section 50-A of the Act. Strict construction of a statute leading to unjust result, hardship and defeating legislative object should be avoided. The legislative object and intendment to enact Sub-section (4) of Section 50-A of the Act is to make the order made thereunder by the Charity Commissioner executable. If this provision is construed otherwise, it will result in absurdity, hardship and will defeat the very object and purpose of this provision, for fulfilment of which the legislature enacted it. Sub-section (4) of Section 50-A of the Act is statutory deeming provision. In the absence of this provision, Section 50-A of the Act would have been without enforcement, means a meaningless law. It is settled law that a statutory deeming provision has to be given full effect. The legal fiction created by Sub-section (4) of Section 50-A of the Act has to be given full effect. The role of a provision in a statute, creating legal fiction is by now well settled. Reference in this respect may have to the two decisions of the Hon'ble Supreme Court in the case of Harish Tandon v. A.D.M., Allahabad reported in JT 1995(1) SC 291 and in the case of Voltas Ltd. Bombay v. Union of India reported in : [1995]1SCR947 . In the latter case the former decision is referred. In para No. 7 of the decision in the case of Voltas Ltd., Bombay v. Union of India (supra) the Hon'ble Supreme Court held:
The effect of a statute containing a legal fiction is by now well settled. The Legislature by a statute may create a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, but even then Court has to give full effect to such statutory fiction after examining and ascertaining as to for what purpose and between what parties such statutory fiction has been resorted to. In the well-known case of East End Dwellings Co. Ltd. v. Einsbury Borough Council (1952) AC 109 B, Lord Asquith has said:If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
This Court in the cases of State of Bombay v. Pandurang Vinayak : 1953CriLJ1049 ; Chief Inspector of Mines v. Karam Chand Thapar : (1961)IILLJ146SC ; J.K. Cotton Spinning and Weaving Mills Ltd. v. Union of India. : 1987(32)ELT234(SC) ; M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, Andhra Pradesh : (1994)ILLJ597SC , and recently in the case of Harish Tandon v. Addl. District Magistrate, Allahabad : [1995]1SCR56 , has dealt with in detail the effect of a statutory fiction and the limitation of the Court to ignore the mandate of the Legislature, unless it is violative of any of the provisions of the Constitution. So far Sub-section (1) of Section 33, is concerned, it mandates that agreements covered under different clauses of Sub-section (1) of Section 33, shall be deemed for the purposes of the Act to be agreements relating to restrictive trade practices. By the deeming Clause one is not required to treat any imaginary state of affairs as real but to treat the agreements specified and enumerated in Sub-section (1) of Section 33, as agreements relating to restrictive trade practices. It can be said that Parliament after having examined different trade practices, has identified such trade practices which have to be held as restrictive trade practices for the purposes of the Act. To keep such trade practices beyond controversy in any proceeding a deeming clause has been introduced in Sub-section (1) of Section 33, saying that they shall be deemed to be restrictive trade practices. In this background, according to us, there is not much scope for argument that although a particular agreement, is covered by one or the other clause of Sub-section (1) of Section 33, still it shall not amount to an agreement containing conditions which can be held to be restrictive trade practices within the meaning of the Act.
10.1. Learned Counsel for the respondent No. 1 Kum. K.G. Brahmbhatt sought to raise certain additional points to show that otherwise also the direction contained in the scheme is not executable and the application for execution is not maintainable, but I do not consider it necessary to go on these questions for the obvious reason that the District Judge, Mehsana has decided the matter only on the ground that the decree is not executable as it was not passed by the Civil Court and not on any other point. However, it shall be open to the respondent No. 1 to raise all other objections against the maintainability of the execution application other than the objection, i.e., it is not a decree and as such not executable.
11. In the result, this Special Civil Application succeeds. The order of the District Judge, Mehsana passed in Regular Darkhast No. 1 of 1981 dated 30th January, 1982 impugned in this Special Civil Application is set aside and it is hereby ordered that the directive part of the scheme settled by the Joint Charity Commissioner in the present case is executable by the Civil Court as if a decree of the Civil Court by virtue of the provisions of Sub-section (4) of Section 50-A of the Act. Rule is made absolute in the aforesaid terms with no order as to costs.