“Trustees Need No Permission to Evict Trespassers from Trust Property” – Bombay High Court Holds Consent of Charity Commissioner Not Mandatory Under BPT Act

“Section 50 is not a bar for trustees to institute a suit in exercise of their common law rights” — Justice Sandeep V. Marne affirms trustees’ inherent right to recover possession from trespassers

Civil Suit by Trustees Maintainable Without Charity Commissioner’s Consent — Section 50 BPT Act Declared Enabling, Not Restrictive - In a significant ruling concerning the powers of trustees over public trust property, the Bombay High Court dismissed an application seeking rejection of a civil suit under Order VII Rule 11(d) of the Code of Civil Procedure, affirming that trustees of a public charitable trust are fully competent to sue for possession of trust property without obtaining prior written consent from the Charity Commissioner under Sections 50 and 51 of the Bombay Public Trusts Act, 1950.

Justice Sandeep V. Marne, deciding  Interim Application No. 4436 of 2025 in Suit No. 13 of 2025, held that “Section 50 is not a restriction, but an enabling provision” and does not curtail the natural rights of trustees to protect and recover trust property from trespassers.

“Trustees Stand in the Position of Legal Owners and Can Sue in Their Own Right”

Opening his judgment with a clear reiteration of settled principles, the Court held that trustees do not need to obtain the Charity Commissioner’s sanction to bring a civil action for possession against unauthorized occupants. Dismissing the application filed by one of the defendants — who was alleged to have unlawfully taken possession of the trust’s residential premises in Juhu after the death of the trust’s religious head — the Court observed:

“The trustee who is in the position of a legal owner of property can sue to recover the property from persons who are in occupation without any right, title or interest without obtaining any previous sanction from the Charity Commissioner.”

The plaintiff, Shri Hari Ashram, a public charitable trust registered under the BPT Act as applicable to Gujarat, had filed a suit through its trustees for possession of certain residential portions it claimed to own by virtue of a registered deed of assignment dated 30 July 2012. It was alleged that after the death of its religious head in July 2021, the sons of a co-owner (defendants) forcibly took possession of the premises in November 2021.

The defendants moved an application for rejection of the suit citing three grounds: lack of consent under Sections 50 and 51 BPT Act, the bar of civil jurisdiction under Section 80, and non-joinder of the housing society which leased the land.

“Section 50 of the BPT Act Is Not a Restriction but an Additional Procedural Avenue for Beneficiaries”

Addressing the core issue regarding applicability of Section 50, the Court clarified that the provision is not a mandatory gateway for all suits relating to trust property. Rather, it functions to enable persons who are not trustees — such as interested beneficiaries — to sue, and for that purpose alone, requires the prior written consent of the Charity Commissioner under Section 51.

“Section 50 creates a right to sue in favour of two additional classes of persons in addition to trustees… it only entitles a person having an interest to sue and does not prohibit any suit being filed by trustees of a public trust,” the Court declared.

The argument that the Gujarat-specific version of Section 50 uses broader language — including suits against persons “holding adversely to the trust” — did not persuade the Court to alter the established legal position. Instead, Justice Marne relied on the consistent view taken by courts, particularly the Division Bench judgment in Amirchand Tulsiram Gupta v. Vasant Dhanaji Patil, 1992 SCC OnLine Bom 4, where the Court held:

“Section 50 of the Bombay Public Trusts Act is not a bar for trustees to institute a suit in exercise of their common law rights.”

The Gujarat High Court’s decision in Nadiad Nagarpalika v. Vithalbhai Zaverbhai Patel, AIR 1980 Guj 161, was also cited with approval, where it was held:

“Section 50 is an enabling provision. Ordinarily, trustees as legal owners alone are able to file suits for the recovery of possession of trust properties.”

“Civil Court’s Jurisdiction Not Barred Under Section 80 — Charity Commissioner Cannot Adjudicate Trespass Claims”

The second argument advanced by the defendant was that the civil suit was barred under Section 80 of the BPT Act, which ousts civil jurisdiction for matters that can be decided under the Act.

Rejecting this contention, the Court reasoned that no provision in the BPT Act empowers the Charity Commissioner to adjudicate disputes concerning possession or trespass. Even under the Maharashtra Public Trusts Act, where Section 41E permits injunctions, no power to order eviction exists, much less under the Gujarat Act.

“Charity Commissioner does not have jurisdiction to pass an order against a trespasser to hand over possession… Therefore, the bar under Section 80 would not apply,” the Court held.

“Society Not a Necessary Party — Suit Against Trespasser Does Not Require Joinder of Lessors”

The third objection pertained to non-joinder of the co-operative housing society, which was the original lessor of the land to the trust’s assignor. This, too, was dismissed.

The Court observed that since the relief sought was limited to possession from the defendant trespassers, and not any declaratory relief against the society or questions of ownership, the society was not a necessary party to the suit.

“The Society need not be concerned with possession of the property belonging to its member and cannot be a necessary party when a member decides to sue a trespasser,” the judgment concluded.

Furthermore, the Court reiterated that non-joinder is not a ground for rejection of a plaint under Order VII Rule 11, especially when the suit otherwise discloses a valid cause of action.

Trustees May Enforce Possessory Rights Without Prior Approval

In sum, the Bombay High Court reaffirmed the well-established legal position that trustees, as legal owners of trust property, do not require prior sanction from the Charity Commissioner to initiate civil proceedings against trespassers.

Quoting with approval the Division Bench ruling in Amirchand Tulsiram Gupta, the Court reiterated that common law remedies of trustees remain intact, and Sections 50 and 51 are merely procedural routes for non-trustees. The suit was found maintainable, and the defendant’s application for rejection of plaint was dismissed as misconceived.

“No case is made out by Defendant No.1 for rejection of plaint… The application is accordingly rejected.” — Justice Sandeep V. Marne

Date of Decision: 03 October 2025