The provincial assembly of Khyber Pakhtunkhwa has passed bill to amend the Charitable and Religious Trust Act, 1920 (Act No XIV of 1920) and in wake of 18th Constitutional Amendment devolve the subject to province.
The Khyber Pakhtunkhwa Charitable and Religious Trust Act, 2014 would be extended to the whole province would come into force; provided that government may, by notification in the official Gazette direct that this Act, or any specified part thereof, would not extend to any specified area in the province or to any specified trust or class of trusts.
Under the legislation, any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature may apply by petition to the District Judge or any other court empowered in this behalf by government within the local limits of whose jurisdiction any substantial part of the subject matter of the trust is situate to obtain an order embodying all or any of the following directions, namely:
(a) Directing the trustee to furnish the petitioner through the court with particulars as to the nature and objects of the trust, and of the value, condition, management and application of the subject matter of the trust, and of the income belonging thereto, or as to any of these matters; and
(b) Directing that the accounts of the trust shall be examined and audited. Provided that no person shall apply for any such direction in respect of accounts relating to a period more than three years prior to the date of the petition. The petition would show in what way the petitioner claims to be interested in the trust, and would specify, as far as may be, the particulars and the audit which he seeks to obtain. The petition would be in writing and would be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908 (Act No V of 1908) for assigning and verifying plaints.
If the court on receipt, of a petition under Section 3, after taking such evidence and making such inquiry, if any, as it may consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies, and that the petitioner has an interest therein, it would fix a date for the hearing of the petition, and would cause a copy thereof, together with notice of the date so fixed, to be served on the trustee and upon any other person to whom in its opinion notice of petition would be given.
If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the court would order a stay of the proceedings and if such suit is so instituted, would continue the stay, until the suit is finally decided.
If no such undertaking is given, or if after the expiry of the three months no such suit has been instituted, the court would itself decide the question. On completion of the inquiry provided for sub-section (2), the court would either dismiss the petition or pass thereon such other order as it thinks fit: Save as provided in this section, the court would not try or determine any question of title between the petitioner and any person claiming title adversely to the trust.
If a trustee without reasonable excuse fails to comply with an order made under sub-section 5, such trustee would, without prejudice to any other penalty or liability which he may incur under any law for the time-being in force, be deemed to have committed a breach of trust affording ground for a suit under the provisions of section 92 of the Code of Civil Procedure, 1908 (Act No V of 1908); and any such suit may, so far as it is based on such failure, be instituted without the previous consent of the Advocate General of the province.
Any trustee or an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for opinion, advice or direction of the court on any question affecting the management or administration of the trust property, and the court would give its opinion, advice or direction, as the case may be, thereon.
Provided that the court would 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. The court on a petition under sub-section (1), may either give its opinion, advice or direction thereon forthwith, or fix a date for hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the persons interested in the trust, or to be published for information in such manner.
On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the court before giving any opinion, advice or direction, would afford a reasonable opportunity of being heard of all persons appearing in connection with the petition.
A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the court thereon, would be deemed, as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.
The costs, charges and expenses of and incidental to any petition, and all proceedings in connections therewith, under the foregoing provisions of this Act, would be in the direction of the court, which may direct the whole or any part of any part of any such costs, charges and expenses to be met from the property or income of the trust in respect of which the petition is made, to be borne and paid in such manner and by such persons as it thinks fit.
Provided that no such order would be made against any person other than the petitioner who has not received notice of the petition and had reasonable opportunity of being heard thereon.
No petition under the foregoing provisions of this Act in relation to any trust would be entertained in any of the following circumstances, namely: (a) If a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure, 1908 (Act No V of 1908), is pending in respect of the trust in question;
(b) If the trust property is vested in the Treasurer of Charitable Endowments, the Administration-General, the official Trustee, or any society registered under the Societies Registration Act, 1860 (Act XXI of 1860); and if a scheme for the administration of the trust property has been settled or approved by any court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
The court trying such suite may, if, on application of the plaintiff and after hearing the defendant and making such inquiry as it thinks fit, it is satisfied that such an order is necessary in the public interest, direct the defendant either to furnish security for any expenditure incurred or likely to be incurred by the plaintiff in instituting and maintaining such suit, or to deposit from any money in his hands as trustees of the trust to which the suit relates such sum as such court considers sufficient to meet such expenditure in whole or in part.
When any money has been deposited in accordance with an order made under sub-section (1), the court may make over to the plaintiff the whole or any port of such sum for the conduct of the suit. Before making over any sum to the plaintiff, the court would take security from the plaintiff for the refund of the same in the event of such refund subsequently ordered by the court.
The provisions of the Code of Civil Procedure, 1908 (Act No V of 1908), relating to the proof of facts by affidavit; the enforcing of the attendance of any person and his examination on oath;, the enforcing of the production of documents; and the issuing of commissions, would apply to all proceedings under this Act, and the provisions relating to the service of summonses would apply to the service of notices there under.
The provisions of the said Code relating to the execution of decrees would, so far as they are applicable, apply to the execution of orders under this Act. Under the Act, appeals have been barred and no appeal would lie from any order passed or against any opinion, advice or direction given under this Act.