M. U. SHAH, J. ( 1 ) THIS is a petition instituted under Article 227 of the Constitution of India and is directed against the order passed by the Charity Commissioner of the State of Gujarat in Appeal No. 61 of 1960 on April 4 1962 The appeal before the Charity Commissioner was filed against the order of the Assistant Charity Commissioner Baroda passed in Miscellaneous Application No. 175 of 1957 on January 22 1960 The proceedings were initiated on original application Exhibit 1 dated June 6 1957 that was filed by one Maneklal Mohanlal Parikh who is the second respondent in this petition in the matter of pubic trust of Bethak Mandir alias Shree Dwarkanathji Mandir situated at Madan Zampa Road in Baroda. The order in appeal annexure A to the petition that was passed by the Charity Commissioner is challenged by petitioner Lallubhai Girdharlal Parikh on the ground that it is against law procedure and is without jurisdiction. The original petitioner has died during the pendency of this petition and his legal representatives have continued this petition. ( 2 ) THE material questions that fall for my consideration in this petition are: (i) what is the nature and scope of the enquiry under sec. 19 of the Act; and (ii) what are the powers and duties of the Deputy or Assistant Charity Commissioner and the Charity Commissioner acting respectively under secs. 19 and 70 of the Act. For the purpose I must consider the scheme of the Act and the functions which the Charity Commissioner exercises in relation to public trusts. Before I do so I may with benefit refer to the following observations made in Re Duncan: In Re Taylors Trusts (1867) 2 Ch. 359:from time to time various Acts were made by the Government both Central and State for controlling mismanagement in the properties of public trusts. However it was only about 1950 in almost every State that Acts for the supervision of public trusts came to be passed. 359:from time to time various Acts were made by the Government both Central and State for controlling mismanagement in the properties of public trusts. However it was only about 1950 in almost every State that Acts for the supervision of public trusts came to be passed. The purpose of the Act as shown by the preamble is to make better provision for the administration of public religious and charitable trusts in the State and having due regard to the purpose of the Act i. e. it having been passed for the public good it is the duty of the Courts of justice to put such a construction upon it as may tend to the furtherance rather than to the restriction of the powers conferred by it upon the Charity Commissioners. I may now first look to the preamble of the Act. It appears from the preamble of the Act that the Act is enacted to regulate and to make better provision for the administration of public religious and charitable trusts in the State. Preamble of a statute has been said to be a good means of finding out its meaning and as if it were a key to the understanding of it. Sec. 2 of the Act defines the various words and expressions used in the Act. Sub-sec. (13) of sec. 2 of the Act defines Public trust as meaning an express or constructive trust for either a public religious or charitable purpose or both and incudes a temple a math a wakf. . . . . . . . . Sub-sec. (17) defines temple as meaning a place by whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship. Sub-sec. (18) defines trustee as meaning a person in whom either alone or in association with other persons the trust property is vested and includes a manager. Chapter II of the Act which is under the caption Establishment deals with the powers and the qualifications of the Charity Commissioner and the Deputy and Assistant Charity Commissioner and enables one to understand the nature and extent of the powers of the Charity Commissioner. Chapter II of the Act which is under the caption Establishment deals with the powers and the qualifications of the Charity Commissioner and the Deputy and Assistant Charity Commissioner and enables one to understand the nature and extent of the powers of the Charity Commissioner. Sec. 3 therein reads as under: ( 3 ) THE State Government may by notification in the Official Gazette appoint an officer to be called the Charity Commissioner who shall exercise such powers and shall perform such duties and functions as are conferred by or under the provisions of this Act and shall subject to such general or special orders as the State Government may pass superintend the administration and carry out the provisions of this Act throughout the State. Sec. 3 thus shows that the Charity Commissioner has the power of superintendence over the entire administration relating to the public trusts under the Act. He has also been enjoined with duties and functions under the provisions of the Act throughout the State with the specific object of carrying out the provisions of the Act. Secs. 4 and 5 respectively refer to the qualifications for appointment as Charity Commissioner and Deputy or Assistant Charity Commissioner. It is important to note that these authorities must either have held a judicial office as required under the relevant clause or must have been an Advocate an attorney or a pleader for the prescribed period. Chapter V relates to Accounts and Audit. Sec. 32 requires every trustee of a public trust which has been registered under the Act to keep regular accounts in the Form approved by the Charity Commissioner. Sec. 33 requires the accounts kept under sec. 32 to be balanced each year on the day appointed by the Charity Commissioner and the accounts have to be audited annually. Sec. 34 requires the auditor to prepare a balance-sheet of income and expenditure account and to forward a copy of the same to the Deputy or Assistant Charity Commissioner or to the Charity Commissioner if required. Sec. 35 deels with investment of public trust money in any Scheduled Bank or other Banks approved; and the second proviso of sub-sec. (1) empowers the Charity Commissioner by general or special order to permit the trustee of any public trust or classes of such trusts to invest the money in any other manner. Secs. Sec. 35 deels with investment of public trust money in any Scheduled Bank or other Banks approved; and the second proviso of sub-sec. (1) empowers the Charity Commissioner by general or special order to permit the trustee of any public trust or classes of such trusts to invest the money in any other manner. Secs. 37 33 39 40 and 41 which find their place under Chapter VI which is under the caption Control relate to the controlling powers of the Charity Commissioner Deputy or Assistant Charity Commissioners and any other officer empowered in that behalf by the State Government. Sec. 37 speaks of their power of inspection and supervision. They are given powers to enter on and inspect or cause to be entered on and inspected any property belonging to a public trust; to call for or inspect any extract from any proceedings of such trust as well as any books of account or documents in possession or under the control of the trustees or any person on behalf of the trustees as also any returns statements account or report. Sub-sec. (2) of sec. 37 enjoins a duty upon the trustees to afford all convenience and reasonable facilities for such examination as also a duty to comply with any order made or direction issued by such officer. Sec. 33 (4) of Chapter V of the Act confers a power on the Charity Commissioner to direct a special audit of the accounts of any public trust. Sec 34 (1) aforesaid requires every auditor auditing the accounts of a public trust under sec. 33 to prepare balance sheet and account and to forward the same to the Deputy or Assistant Charity Commissioner. Sec. 38 of Chapter VI enjoins a duty upon the Deputy or Assistant Charity Commissioner to call for an explanation of the trustee or other concerned person on such report. Sec. 39 requires the Deputy or Assistant Charity Commissioner to hold an inquiry in the matter and to report to the Charity Commissioner whether the trustees or any other person have been guilty of gross negligence a breach of trust mis-application or misconduct which has resulted in the loss to the public trust. Sec. 40 requires the Charity Commissioner to take a decision on report under sec. 39 and to determine the loss caused to the public trust and the person guilty thereof. Sec. 40 requires the Charity Commissioner to take a decision on report under sec. 39 and to determine the loss caused to the public trust and the person guilty thereof. Under Sec. 41 the Charity Commissioner has the power to direct that the amount of the loss shall be surcharged on the person found guilty. Thus the powers under Chapter VI are the controlling powers of the authorities working under the Act. The other functions and powers of the Charity Commissioner are provided for under Chapter VII of the Act. Under sec. 47aa the Charity Commissioner is entitled to make an application to the Court for appointment of a new trustee in place of an existing trustee convicted of any offence under the Act. Sec. 47a gives power to the Court to vest property in the new trustee. Sec 50 gives the Charity Commissioner a right to institute suits in cases of breach of trust for recovery of possession of property belonging to any public trust or of proceeds thereof or for directions of the Court where they are necessary. It also provides that any two or more persons having an interest in the trust may institute such a suit after having obtained in writing the consent of the Charity Commissioner as provided in sec. 51 of the Act. Chapter VIII relates to Public Trusts Administration Fund. Sec. 57 therein provides that there shall be established a fund to be called the Public Trusts Administration Fund and this Fund shall vest in the Charity Commissioner. Sub-sec. (2) requires the specified sums to be credited to the said Fund. Sec. 58 requires every public trust to pay to the Public Trusts Administration Fund annually such contribution on such date and in such manner as may be prescribed. Thus it appears from the aforesaid relevant sections that appear in Chapters III V VI VII and VII of the Act that the Charity Commissioner is the head of the administration of the public trusts under the Act and as such he has to exercise the powers of superintendence over the entire administration in the State. He is also required to carry out the provisions of the Act throughout the State. ( 4 ) CHAPTER IV of the Act runs under the caption Registration of Public Trusts. Secs. He is also required to carry out the provisions of the Act throughout the State. ( 4 ) CHAPTER IV of the Act runs under the caption Registration of Public Trusts. Secs. 14 and 15 therein provide for the formation of regions and sub-regions and public trust registration offices to be created for the purposes of administration of the public trusts under the provisions of the Act. Sec. 16 provides that the Deputy Charity Commissioner or Assistant Charity Commissioner is to be in charge of one or more public trusts registration offices or joint public trusts registration offices. Sec. 17 provides for maintenance in every such office of books indices and other registers in the manner prescribed. Sec 18 of the Act provides for registration of public trusts. A duty is cast upon the trustee of a public trust to which the Act applies to make an application for registration of the public trust. The application is to be made in such form and to be accompanied by such fee as may be prescribed and it is to contain particulars required to be set out as specified in sub-sec. (5) of sec. 13. Sub-sec. (6) requires that the application under sub-sec. (1) of sec. 18 is to be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in that behalf. Subsec. (7) thereof casts upon the trustee of the public trust a duty to send the memorandum in the prescribed form containing the particulars relating to the immovable property of such public trust to the specified officers and authorities for the purposes of registration in the registers maintained under sec. 283. Sec. 19 which is the material section for my consideration provides for enquiry for registration. The section reads under : ( 5 ) ON the receipt of an application under sec. 18 or upon an application made by any person having interest in a public trust or on his own motion the Deputy or Assistant Charity Commissioner shall make an enquiry in the prescribed manner for the purpose of ascertaining: (I) whether a trust exists and whether such trust is a public trust (ii) whether any property is the property of such trust (iii ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (iv) the names and addresses of the trustees and manager of such trust (v ). . . . . . . . . . . . . . . . . . . . . . . . . . . (vi) the origin nature and object of such trust (vii) the amount of gross average annual income and expenditure of such trust and (viii ). . . . . . . . . . . . . . . . . . . . . . . . . Sec. 20 of the Act requires that on completion of the enquiry provided for under sec. 19 the Deputy or Assistant Charity Commissioner shall record his findings with the reasons therefor as to the matters mentioned in the said section. Sec. 21 requires the Deputy or Assistant Charity Commissioner to make entries in the register kept under sec. 17 in accordance with the findings recorded by him under sec. 20 or if appeals or applications are made as provided by the Act in accordance with the final decision of the competent authority provided by the Act. Sub-sec. (2) of sec. 21 provides that the entries so made shall subject to the provisions of the Act and subject to any change recorded under the following provisions be final and conclusive. Sec. 70 of the Act which finds its place in Chapter Xt under the caption Functions of Charity Commissioners Procedure Jurisdiction and Appeals provides for an appeal against the finding or order of the Deputy or Assistant Charity Commissioner to be filed before the Charity Commissioner in the stated four cases one of which is as stated in clause (a) of sub-sec. (1) of sec. 70 the finding and order if any under sec. 20. Sub-sec. (2) provides the period of limitation for filing of the appeal. Sub-sec. (3) which is material reads as under:the Charity Commissioner may after hearing the appellant or any person appearing on his behalf for reasons to be recorded in writing either annul reverse modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further enquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence. Sec. 72 of the Act provides for an application to be made within 60 days from the date of the decision of the Charity Commissioner under secs. 40 41 70 or 70a on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust. Sub sec. (1a) of sec. 72 provides that:no party to such application shall be entitled to produce additional evidence whether oral or documentary before the Court unless the Deputy or Assistant Charity Commissioner or the Charity 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. Sec. 73 vests in the officers holding enquiries under the Act the same powers as are vested in the Courts under the Code of Civil Procedure 1908 in trying a suit in respect of the matters provided for in clauses (a) (b) (c) and (d) of sec. 73 or the Act. Sec. 74 provides that all enquiries and appeals under the Act shall be deemed to be judicial proceedings within the meaning of secs. 193 219 and 228 of the Indian Penal Code. By sec 75 the provisions of secs. 4 5 12 and 14 of the Indian Limitation Act 1908 are made applicable to the filing of an appeal under Chapter XI. Sec. 76 does not deal with the powers of the authorities and officers acting under the Act but deals with the procedure to be followed by the Court under the Act and provides that the provisions of the Code of Civil Procedure 1908 shall apply to all proceedings before the Court under the Act. The Court as defined in sub-sec. (4) of sec. 2 of the Act means in the Greater Bombay the City Court and elsewhere the District Court. The Court as defined in sub-sec. (4) of sec. 2 of the Act means in the Greater Bombay the City Court and elsewhere the District Court. Sec. 79 of the Act which finds its place under Chapter XII of the Act provides that any question whether or not a trust exists and such trust is a public trust or particular property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. Sub-sec. (2) of sec 79 provides that the decision at the Deputy or Assistant Charity Commissioner in appeal as the case may be shall unless set aside by the decision of the Court on application or of the High Court in appeal be final and conclusive. Sec. 80 creates a bar of jurisdiction of the Civil Court to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer or authority has been made final and conclusive. It thus follows from the scheme of the Act and the relevant provisions thereunder that the Deputy Charity Commissioner or the Assistant Charity Commissioner acting under secs. 18 19 and 20 of the Act and the Charity Commissioner acting in appeal under sec. 70 of the Act have judicial or quasi-judicial powers of determining certain questions under the Act. The duties and powers of the Charity Commissioner enumerated in the earlier paragraph of the judgment refer to the powers of superintendence and inquisitional powers or jurisdiction which the Charity Commissioner exercises under the Act. The powers under secs. 18 19 20 70 and also under secs. 22 and 22a of the Act are the powers to be exercised by the authorities prescribed under the Act including the Charity Commissioner are the judicial or quasi-judicial powers to be exercised in a prescribed manner. The powers of the Court invoked under sec. 72 of the Act are strictly judicial powers and an appeal from the decision of the Court under the section lies to the High Court. The Charity Commissioner has thus a dual function. ( 6 ) NOW the Act provides its own procedure. The powers of the Court invoked under sec. 72 of the Act are strictly judicial powers and an appeal from the decision of the Court under the section lies to the High Court. The Charity Commissioner has thus a dual function. ( 6 ) NOW the Act provides its own procedure. Sec. 19 of the Act which enjoins upon the Deputy or Assistant Charity Commissioner the duty of making an enquiry for registration lays down that the enquiry is to be made in the matters stated in clauses (i) to (viii) of sec. 19 in the manner prescribed. It provides that the enquiry is to be made by the appropriate authority on receipt of an application made under sec. 18 or upon an application made by any person having interest in a public trust or suo motu. But in making this enquiry under sec. 19 the authority which in this case was the Assistant Charity Commissioner has to act in the prescribed manner. Rule 7 of the Rules provides for the manner of enquiries. It reads as under:7 Manner of enquiries. Except as expressly provided in these rules enquiries under the Act shall he held as far as possible in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small cause Courts Act 1882 and elsewhere under the Provincial Small Cause Courts Act 1887 In any enquiry a party may appear in person or by his recognized agent or by a pleader duly appointed to act on his behalf: provided that any such appearance shall if the Deputy or Assistant Charity Commissioner so directs be made by the party in person. 92rule 11 of the Rules prescribes the manner of recording evidence of witnesses and the relevant part of it reads as under:11 Manner of recording evidence of witness. (1) At any enquiry or other proceeding under the Act as the examination of each witness proceeds the officer holding the enquiry or proceedings shall make a memorandum in English of the substance of what each witness deposes and such memorandum shall be signed by the officer and shall form part of the record. (2 ). . . . . . Rule 34 provides for list of assessors to be maintained under sec. 62 of the Act. Rule 37 provides for the manner of filing an appeal under sec. 70. (2 ). . . . . . Rule 34 provides for list of assessors to be maintained under sec. 62 of the Act. Rule 37 provides for the manner of filing an appeal under sec. 70. Thus there are prescribed rules to be followed by the authorities under the Act for the purpose of making an enquiry in the matters required to be ascertained under sec. 19 of the Act. It is significant to note that the manner of enquiry in the prescribed form is provided for the specific purpose of ascertaining the eight matters which are enumerated in sec. 19 of the Act in clauses (i) to (viii) and has application also to the particulars which are stated under sub-sec. (5) of sec. 18 of the Act. The procedure to be followed for the purpose of ascertaining these facts is the one that is prescribed for the trial of suits under the Presidency Small Cause Court Act 1882 and this is qualified under rule 7 by the words as far as possible. Now the Act in question with which I will here be concerned is not the Presidency Small Cause Courts Act 1882 but the Provincial Small Cause Courts Act 1887 (Act IX of 1887 ). Sec. 17 of the Provincial Small Cause Courts Act 1887 which deals with the application of the Code of Civil Procedure provides that the procedure prescribed in the Code of Civil Procedure 1908 shall save in so far as is otherwise provided by that Code or by this Act be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits. The record of the evidence in a case triable under the Provincial Small Cause Courts Act is to be maintained as provided by Order 18 Rule 13 of the Code of Civil Procedure. Rule 11 of the Rules makes a similar provision for the manner of recording evidence of witnesses at any enquiry or other proceeding under the Act. Rule 11 of the Rules requires that the memorandum shall be maintained in English and such memorandum shall be signed by the officer. Rule 11 of the Rules makes a similar provision for the manner of recording evidence of witnesses at any enquiry or other proceeding under the Act. Rule 11 of the Rules requires that the memorandum shall be maintained in English and such memorandum shall be signed by the officer. Sub-rule (2) of Rule 11 which corresponds to Rule 14 (1) of Order 18 of the Code of Civil Procedure requires that an officer who is unable to make a memorandum in English shall record the reason of his inability and shall cause the memorandum of writing ready from his dictation. Provisions of the Civil Procedure Code contained in Orders XLI to XLIV relating to appeals are not applicable to the proceedings under the Act which provides a special machinery and procedure for the appeals and applications to be made under the appropriate provisions of the Act itself. Thus the Act and the Rules provide a complete machinery to be followed in the matter and manner of enquiry under sec. 19 of the Act. ( 7 ) THE aforesaid consideration of the scheme of the Act and the relevant provisions thereof clearly show that the Charity Commissioner has a dual function to perform: one as a delegate of the Governments power of superintendence over trusts and second as an authority vested with quasi-judicial powers of deciding questions under the Act. It is therefore not correct to say that the Charity Commissioner has merely inquisitorial powers and that all the proceedings before him are in the nature of inquisitorial proceedings. The Charity Commissioner is also a judicial or quasi-judicial authority who has to determine certain questions which are brought before him under the relevant provisions of the Act. It cannot be disputed that in exercise of his powers under secs. 18 19 and 20 as also under sec. 70 of the Act the Charity Commissioner has the defined limits of his authority and has to follow a prescribed procedure. He has to act strictly within the limits of his authority. There cannot be any scope for doubt that the Government is parens patrix in respect of wards and is also the protector of charities in general. (Vide Tudor on Charities 5 Edition p. 174 ). ( 8 ) THIS High Court has on two earlier occasions considered the scheme of the Act. There cannot be any scope for doubt that the Government is parens patrix in respect of wards and is also the protector of charities in general. (Vide Tudor on Charities 5 Edition p. 174 ). ( 8 ) THIS High Court has on two earlier occasions considered the scheme of the Act. In Kuberbhai Shivdas and another v. Mahant Purshottamdas Kalyandas and others (1961) II G. L. R. 564 Mr. Justice Shelatdas he then was) had an occasion to consider the scheme of the Act. On a close examination of the relevant sections of the Act the learned Judge has reached a conclusion that the enquiry to be made by the Deputy or the Assistant Charity Commissioner under the Act was by no means an administrative or an executive enquiry but a judicial enquiry. The enquiry is not only for the purpose of registration. The learned Judge has further held that a complete Code is provided in the Bombay Public Trusts Act for dealing with matters set out in secs. 18 and 19 and recourse must be had to the procedure laid down in the Act. In Shah Hiralal Virchand and others v. Patel Vithalbhai Vaghjibhai and others (1961) II G. L. R. 548 a Division Bench of the High Court has found that the decision to be given in appeal must be on merits Mr. Justice Miabhoy (as he then was) speaking for the Division Bench has examined the scheme of the Act while considering the question whether the Charity Commissioner had power of dismissal of an appeal for default of an appearance. The learned Judge has in this connection observed as under :order 41 Rule 17 of the Civil Procedure Code regarding dismissal of appeal for default is not applicable to the proceedings before the Charity Commissioner. The whole of the Code of Civil Procedure is not applicable to the proceedings before the officers acting under the Bombay Public Trusts Act and that the Code only applied to certain specified matters. The Division Bench accordingly held that the decision of the Charity Commissioner must be given on merits. It was observed that the provisions of sec. 73 of the Act by implication showed that the whole of the Code of Civil Procedure was not applicable to proceedings before these officers and that that Code only applied to certain specified matters. The Division Bench accordingly held that the decision of the Charity Commissioner must be given on merits. It was observed that the provisions of sec. 73 of the Act by implication showed that the whole of the Code of Civil Procedure was not applicable to proceedings before these officers and that that Code only applied to certain specified matters. ( 9 ) NOW it is not shown in the case before me how the provisions of Order 23 Rule 3 of the Code of Civil Procedure which provide for the passing a decree by the Court in accordance with a lawful agreement or compromise can be made applicable to the proceedings before the Charity Commissioner in the appeal before him under sec. 70 of the Act. The Charity Commissioner sitting in appeal in exercise of his powers under sec. 70 of the Act although he exercises judicial authority is not a Court within the meaning of the Act. Again it has to be considered that a person aggrieved by the decision of the Charity Commissioner under secs. 40 41 70 or 70a or on the question whether a trust exists and whether such trust is a public trust has a right to make an application within the prescribed time to the Court to set aside the said decision. The Court as defined in sec. 2 (4) of the Act will be in Ahmedabad the City Civil Court and elsewhere the District Court Now powers to pass a decree in accordance with any lawful agreement or compromise of a suit can be exercised by a Court only. The proceedings before the Charity Commissioner in appeal under sec 70 of the Act cannot be said to be the proceedings before a `court. Furthermore; the powers of the Charity Commissioner in appeal under sec. 70 (3) of the Act are not as extensive as the powers of a Court sitting in appeal as will appear from Order 41 Rule 32 of the Code of Civil Procedure. Furthermore; the powers of the Charity Commissioner in appeal under sec. 70 (3) of the Act are not as extensive as the powers of a Court sitting in appeal as will appear from Order 41 Rule 32 of the Code of Civil Procedure. Order 41 Rule 32 of the Code deals with what a judgment may direct and provides that ;the judgment may be for confirming varying or reversing the decree from which the appeal is preferred or if the parties agree as to the form which the decree in appeal shall take or as to the order to be made in appeal the appellate Court may pass a decree or make an order accordingly. Thus the Judge sitting in appeal can under Order 41 Rule 32 of the Code pass a decree or make an order in accordance with the agreement of the parties if any. It is significant that such powers are not given to the Charity Commissioner sitting in appeal under sec. 70 of the Act as will appear from a reading of sub-sec. (3) of sec. 70 of the Act which limits his powers to ``either annul reverse modify or confirm the finding or the order appealed against or to direct the Deputy or Assistant Charity Commissioner to make further enquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence. Thus having regard to the scheme of the Act and the relevant provisions thereunder and also to the corresponding provisions under the Code of Civil Procedure as also to the object of the Act in my view the Charity Commissioner sitting in appeal under sec. 70 of the Act has no power or jurisdiction to pass an order in accordance with the agreement between the parties to the appeal or even on a concession made by a party to the appeal It has to be remembered that the larger interest of the public trust and public good has to be considered. It may be that in a given case the original applicant may give up the case or there may be a collusion between the parties to the proceedings. In such a case there will be a greater duty cast upon the Charity Commissioner to decide the appeal on merits and see that the interest of the charity or the public trust does not suffer. In such a case there will be a greater duty cast upon the Charity Commissioner to decide the appeal on merits and see that the interest of the charity or the public trust does not suffer. In every case the Charity Commissioner has to apply his own mind to the merits of the case and decide it in accordance with law after following the prescribed procedure. ( 10 ) THIS will take me to the next question viz. whether the impugned order is one in accordance with the agreement or in the form of the agreement arrived at by the parties to the appeal before the Charity Commissioner or as Mr. Zaveri has put in based on a concession made by the appellant therein who it may be remembered is the first respondent in the petition before me. I may at once say that even if the order is based on a concession made by a party to the appeal the order cannot be said to be one given on the merits of the case and will be bad in law and liable to be struck down. However I will examine the contentions raised. To determine this question one need not confine himself to the form of the order. The substance has to be looked into and it has to be ascertained what must have weighed with the Charity Commissioner and what has impelled him to pass the impugned order annexure A to the petition. In order to find out the real nature of the order one must necessarily look to the order that was under appeal before the Charity Commissioner as also the original application on which an enquiry was held by the Assistant Charity Commissioner and to the findings recorded. It may be recalled that in application Exhibit 1 which was filed by the original applicant who is the second respondent before me it was stated that besides the Bethak property of the temple there were twelve other buildings belonging to the temple and all these properties of the temple were the properties of the public trust. The matter was set in motion on this application. the Assistant Charity Commissioner held the enquiry under sec. 19 of the Act in the prescribed manner. He ascertained points Nos. 1 to 8 which were required to be ascertained under sec. 19 of the Act. The matter was set in motion on this application. the Assistant Charity Commissioner held the enquiry under sec. 19 of the Act in the prescribed manner. He ascertained points Nos. 1 to 8 which were required to be ascertained under sec. 19 of the Act. On the evidence and material on record before him he found that a public trust existed and Acharya Shree Vrajbhushanlalji Balkrishnalalji (the first respondent) who was residing at Kankroli (Rajasthan) was the trustee and one Jamnadas was the manager of the trust. He had further ascertained that the properties situated at Baroda as stated in purshis Ex. 8 were the properties of the trust and their value was Rs. 1 1/2 lacs. The properties stated in purshis Ex. 8 (taken on record with the consent of the parties) were the 13 properties as can be gathered from the order of the Assistant Charity Commissioner annexure B read with the impugned order of the Charity Commissioner produced as annexure A. The Assistant Charity Commissioner had ordered the trust to be registered as a public trust in section A of Baroda District. The opponent therein who is the first respondent herein was required to submit all due accounting returns within two months the trustee and the manager were directed to file within two months a list of movables of the trust including ornaments and other valuables along with their proper valuations. Thus in pursuance of this order annexure B to the petition the first respondent was required to file due accounting returns and had also to file a list of movables of the trust including the ornaments and other valuables along with their proper valuations. A show cause notice was also ordered to issue against the trustee and the manager as to why they should not be prosecuted for not applying for registration within the prescribed time. It was against this order that the first respondent had filed the appeal before the Charity Commissioner. During the pendency of the appeal an application (joint settlement purshis Ex. 9 taken on record with the consent of the parties) was given by the original applicant who was respondent in the appeal on January 6 1962 wherein as set out earlier the applicant-respondent had stated that he had then examined the documents of title and found that the stated properties were of the private ownership of the appellant therein. 9 taken on record with the consent of the parties) was given by the original applicant who was respondent in the appeal on January 6 1962 wherein as set out earlier the applicant-respondent had stated that he had then examined the documents of title and found that the stated properties were of the private ownership of the appellant therein. Below this application there was a consent of the appellant therein. The consent stated that this was agreeable to we the appellant and this on the condition that there is a compromise on the stated terms. It was in pursuance of this application that the Charity Commissioner had ordered issuance of the public notice to be published in the local daily paper named Lok Satta and as aforesaid it was published in the daily issue of February 11 1962 In the said public notice the whole purshis Ex. 9 has been set out. In the proceedings-sheet of the appeal before the Charity Commissioner this purshis has been referred to as the joint settlement purshis. The objections were then filed by one Hathibhai Amthabhai Patel who however did not remain present at the date fixed for hearing. The matter then came up finally before the Charity Commissioner on April 4 1962 The date was the adjourned date fixed for the hearing of the application (purshis given by the respondent in the appeal) for settlement of the matter and also for deciding the appeal. This is so stated in the public notice produced at annexure J. On this date of hearing the appellant therein was present along with his Advocate Mr. Patwari and the respondent was present in person. The Charity Commissioner then appears to have taken on record four uncertified copies of documents Y/1 to Y/4. These documents purport to have relation to the title deeds of the four properties which were agreed between the parties to the appeal to belong to the present respondent No. 1. It is stated in the impugned order annexure A that the Charity Commissioner had seen the original documents of which Y/3 and Y/4 were copies. It is not stated that he had seen the original documents Y/1 and Y/2. As stated in the impugned order the Charity Commissioner had first considered what he has called consent statements produced at Ex. 9. It is not stated that he had seen the original documents Y/1 and Y/2. As stated in the impugned order the Charity Commissioner had first considered what he has called consent statements produced at Ex. 9. These consent terms have been incorporated in the public notice annexure J. In this connection the Charity Commissioner has in the impugned order at first observed as under:during the course of the hearing of appeal the appellant and the respondent have arrived at a settlement. They have filed a consent statement at Ex. 9 in this appeal. I have tried to ascertain that the settlement is not as a result of inducement or pressure brought on the respondent by the appellant who is a religious head. I have found that the settlement is genuine and bona fide; under the settlement the respondent has given up a part of the claim in that he gives up the contention that the following properties are the properties of trust: (1) Property shown at item No. 1 in Ex. 8 i. S/3. 212 a house in Padi Pole at Baroda. (2) Property shown at item No. 9 in Ex. 8 i. e. Y/1-50-a shop at Chokhandi at Baroda. (3) Property shown at item No. 3 in Exhibit 8 i. e. (S/6. 10) (entire property) at Mehta Pole Baroda. (4) A part of item No. 11 in Exhibit 8 i. e. 3835 square yards out of property known as Bethak Mandir (B-4. 404 ). The Charity Commissioner has then stated that the respondent had admitted that the four properties which were valuable properties were the properties belonging to the appellant and they were not trust properties. It is further stated that the respondent had said so after examining the documents pertaining to those properties the true copies of which were produced before him and were marked Y/1 Y/2 Y/3 and Y/4. It may here be stated that in the proceeding-sheet (Roznama) of the appeal maintained by the Charity Commissioner it has been stated that the following documents four documents uncertified marked with Y/1 to Y/4 were presented by the appellants Advocate. The Charity Commissioner has then further stated that he had seen the original documents of which Y/3 and Y/4 were the copies. The Charity Commissioner has then further stated that he had seen the original documents of which Y/3 and Y/4 were the copies. He has then stated that he is induced to accept the settlement as genuine and bona fide for two reasons namely (i) because the respondent who has been keenly contesting this proceeding before the learned Assistant Charity Commissioner as well as here has satisfied himself about the appellants claim and (ii) because the appellant has admitted before him and in the consent statement and the statement marked R filed before the Charity Commissioner on the date of the order that not only the properties (barring the four properties mentioned above) held to be the properties of the trust but other properties of the value of about a lac of rupees are also the properties of the trust. The Charity Commissioner thus appears to have considered the terms of settlement as genuine and bona fide for the two reasons stated by him his order. He has then gone on to consider that: As stated above only certain immovable properties were held to be the propriety of trust. But to-day the appellant (as shown in the statement to marked R) has shown an amount of Rs. 26 605 np. an amount due from Sheth Lallubhai Girdharlal Dhobiwala of Baroda Shares of the value of Rs. 24 983 np. gold and silver ornaments and articles worth Rs. 34 555 and lands about acres 33-23 gunthas as the property of the trust. This additional property as stated above would be worth Rs. 1/lac The Charity Commissioner has then considered that when the appellant himself had come forward and admitted this property as the property of the trust he was certainly honest to that extent. I may say that in this connection it was rightly contended by Mr. This additional property as stated above would be worth Rs. 1/lac The Charity Commissioner has then considered that when the appellant himself had come forward and admitted this property as the property of the trust he was certainly honest to that extent. I may say that in this connection it was rightly contended by Mr. Pradhan appearing for the petitioner that the order of the Assistant Charity Commissioner which was under appeal had itself directed that the first respondent herein was to submit all due accounting returns within two months and that the trustee and the manager were also directed to file within two months a list of the movables of the trust along with the ornaments and other valuables along with its valuation and as such the respondent No. 1 was bound to disclose the cash outstandings and other properties and to recover the outstandings from Sheth Lallubhai Dhobiwala and therefore the statement R produced in the appeal could not be taken as a voluntary statement of the appellant and as showing his bona fides. It also appears from the contents of the original application Exhibit 1 which the present respondent No 2 had filed before the Charity Commissioner under sec. 19 of the Act as also from purshis Ex. 9 that respondent No 2 had clearly referred to 13 immoveable properties as belonging to the trust. Besides he had referred to the cash lying in deposit with Sheth Shree Lallubhai Dhobiwala. He had also referred to the ornaments and jewellery. It is clear therefore that before the Assistant Charity Commissioner the cash deposit that was lying with Sheth Shree Lallubhai Dhobiwala who was the original petitioner herein as also the ornaments the jewellery and other immoveable properties were the subject-matter of enquiry. These facts do not appear to have been brought to the notice of the Charity Commissioner nor has he considered the same. ( 11 ) THE Charity Commissioner after having considered that the aforesaid additional properties which according to him were made available to the trust by way of a concession by an honest appellant in the appeal before him has further stated in his order that he had issued a public notice embodying verbatim the consent statement Exhibit 9 that was filed before him. In answer to this public notice one Mr. In answer to this public notice one Mr. Hathibhai Amthabhai Patel a lawyer had filed his objections at Exhibit 17 (produced as annexure F to this petition ). He has stated that however said Hathibhai did not appear and make good his contentions. I may here say that in any case it cannot be disputed that the objections of Mr. Hathibhai were on record and were in answer to the public notice that was issued by the Charity Commissioner. Thus far from his order it appears that the Charity Commissioner had considered the terms of settlement as being genuine and bona fide and arising as a result of a concession made by the appellant therein. ( 12 ) IT appears that the Charity Commissioner was conscious of the fact that mere consent of the parties will not suffice in such matters and that finding had to be recorded. He has said so in terms in the subsequent paragraph of the order wherein he has observed that: In such a matter the mere consent of the party will not suffice and no finding in the appeal could be given merely because the respondent agrees if the effect of the finding is to vary or modify the finding given by the learned Assistant Charity Commissioner. The Charity Commissioner has earlier stated in his order that he had examined the finding and the record of the case heard Mr. Patwari for the appellant in the appeal and heard the respondent in person. He had also examined the documents. He has then observed that he felt satisfied not only that the consent statement was genuine and acceptable but that the properties which were taken out were not the properties of the public trust. He has then stated that he had examined further evidence in the form of documents pertaining to those properties which were being given up and had found that the documents were in the names of the predecessors-in-title of the appellant. As stated by him three of the documents were the documents of gift and the fourth was a document of sale in the name of the ancestor of the appellant. The Charity Commissioner has then observed that in the face of those documents it would be difficult to hold that the properties were dedicated to the temple or to the deity. The Charity Commissioner has then observed that in the face of those documents it would be difficult to hold that the properties were dedicated to the temple or to the deity. According to him there was on record no evidence worth the name to support the finding of the learned Assistant Charity Commissioner. He has stated that whatever little evidence was adduced before the Assistant Charity Commissioner was not very clear or convincing. It is further stated that under all those circumstances he felt that in the absence of any admission on the part of the appellant a finding that these four properties are the properties of the trust will hardly be justified. He has then stated that The trust really benefits on account of the appellant having fairly conceded that there are other valuable properties of the trust which though not shown in the application or finding are in his possession as the properties of the trust. He has then passed the penultimate order which I have set out in the earlier part of this judgment and which it is not necessary to repeat. Suffice it to say that as a result of his aforesaid considerations he reached a conclusion that the properties in respect of which the contention was given up by the original applicant who is the second respondent herein will not be considered to be the properties of the trust. He further modified the order stating that property of item No. 11 that is Bethak Mandir 3385 square yards as shown in the sketch Exhibit 18 will not also be the property of the trust. He has ordered that the trust will thus have no claim on these properties and that the Public Trusts Register be corrected accordingly. ( 13 ) IT is clear from the reading of the impugned order that the Charity Commissioner before whom the purshis or agreement of settlement was produced had first notified the settlement in the daily issue of a local Gujarati paper which was circulated in Baroda. He had invited the objections if any of the persons concerned. In the said notice it was stated that on the specified day there will be a hearing of the application for settlement and also of the appeal. The objections of Mr. Hathibhai Patel were before the Charity Commissioner at the date of hearing. He had invited the objections if any of the persons concerned. In the said notice it was stated that on the specified day there will be a hearing of the application for settlement and also of the appeal. The objections of Mr. Hathibhai Patel were before the Charity Commissioner at the date of hearing. The order of the Assistant Charity Commissioner which inter alia stated that he had with the aid and assistance of the assessors ascertained the points required to be ascertained in an enquiry under sec. 19 of the Act and that agreeing with the opinion of the assessors he had recorded a finding that the properties stated in the application were the properties of the public trust was also before him. In his previous order Exhibit 30 the Assistant Charity Commissioner had relied upon the deposition of the applicant on the question of dedication. In his subsequent order annexure B in remand proceeding the Assistant Charity Commissioner has referred to the application Ex. 37 given on behalf of the respondent No. 1 for registration of the trust which was filed in the course of the enquiry that was being held by him on the application of the original applicant (present respondent No. 2 ). In his order annexure B the Assistant Charity Commissioner has relied upon what he has called to be the admissions contained in Ex. 37 the form filled in by the power of attorney holder of the opponent which is also signed by the Chartered Accountant who appears in this enquiry on behalf of the opponent. The first respondent had not appeared in any of the earlier proceedings and also in the remand proceedings before the Assistant Charity Commissioner although he was represented for some time by his manager. The first respondent having filed an appeal notice was issued to the original applicant who in the appeal filed a purshis giving up his contentions as regards the aforesaid four immoveable properties which included a part of the Bethak Mandir. All these facts must have been on the record of the Charity Commissioner when he had heard the learned Advocate for the appellant therein Despite all these facts before him the Charity Commissioner has made what appears to be a different approach to the questions which arose for his determination in the appeal. All these facts must have been on the record of the Charity Commissioner when he had heard the learned Advocate for the appellant therein Despite all these facts before him the Charity Commissioner has made what appears to be a different approach to the questions which arose for his determination in the appeal. Instead of deciding the appeal on merits the Charity Commissioner first considered whether the settlement (consent statement or purshis Ex. 9) was genuine and bona fide. He himself examined the documents produced by the learned Advocate of the appellant therein. He took the uncertified copies of the documents on record as what appears to be additional evidence and this without recording the reasons for doing so and without any witness having been examined to prove the documents. In his order the Charity Commissioner does not give any description of the documents taken on record; nor does he give any summary thereof or refer to the relevant recitals in the document which can show to the Court the nature of the documents and the reasons for his findings. He simply formed an opinion that the settlement was genuine and bona fide for the two reasons given by him in his order which I have set out earlier. He then considered that the appellant was giving up on his own as a concession some property to the public trust. The material fact that these properties were already the subject-matter of an enquiry before the Assistant Charity Commissioner appear to have been lost sight of. However the Charity Commissioner came to take the view that the appellant therein was honest and therefore the settlement was genuine. He was all along conscious of the fact that mere consent of the parties will not suffice for modifying the order of the Assistant Charity Commissioner. He then reads some documents and finds that these documents were in the name of the ancestor of the appellant. He says that because this was so it was difficult for him to hold that the properties were dedicated to the temple or to the deity. He then says that there was no evidence worth the name to support the finding of the Assistant Charity Commissioner. He appears to have been of the view that because there was no admission of the appellant the order under appeal could not be sustained. He then says that there was no evidence worth the name to support the finding of the Assistant Charity Commissioner. He appears to have been of the view that because there was no admission of the appellant the order under appeal could not be sustained. His approach to the case in appeal the tenor of the order and the ultimate findings as appear in the impugned order annexure A when considered in the surrounding circumstances aforesaid leave no manner of doubt in my mind that he has in substance passed an order in terms of the agreement arrived at between the parties to the appeal. The parties to the appeal had agreed as to the form which the order in appeal shall take and the Charity Commissioner has made an order accordingly. In my opinion as aforesaid the Charity Commissioner sitting in appeal under sec. 70 of the Act has no power or jurisdiction to pass an order in accordance with the agreement between the parties to the appeal or even on a concession made by a party to the appeal under the Act. The impugned order must therefore be struck down as without jurisdiction and in conscious violation of law. Furthermore the procedure followed and the approach made by the Charity Commissioner is arbitrary and has brought about grave and manifest injustice to the cause of public trust and public good. In any view of the matter therefore the impugned order cannot be sustained and must be set aside. This is thus a fit case which calls for my interference under Article 227 of the Constitution of India. ( 14 ) BEFORE I pass the final order in the petition I must consider the three preliminary objections which were raised by Mr. Zaveri appearing for the first respondent. The first contention raised was that the petition was not bona fide. It was contended that a large amount of about Rs. 26 500 was lying as deposit in the firm of which the original petitioner Lallubhai was a partner and this amount was ordered to be recovered from the firm by the Charity Commissioner under the impugned order passed by him in appeal and the petition was therefore filed to resist the recovery and as such was not made in good faith. It was further contended that petitioner had colluded with the present respondent No. 2 (original applicant) in the matter. Now a reference to original application Exhibit 1 clearly shows that in the very application itself respondent No. 2 had stated that there was a large sum lying with the present petitioner and that it was the property of public trust It cannot therefore be said that initially there was any collusion in the matter between the petitioner and the respondent No. 2. As regards the moneys lying in deposit with the firm the original petitioner since deceased has in his affidavit-in-rejoinder stated that he had acted in the past on behalf of the respondent No. 1 by virtue of a power of attorney. He has admitted that a sum of Rs. 26 605 np. was lying in deposit in his firm but he says it was lying to the credit of Dwarkanathji Mandir Trust. He has further stated that in response to the respondent No. 2s notice annexure C dated June 12 1960 demaning the return of Rs. 26 605 np. he had sent two cheques one of Rs. 12 95 np. and another of Rs. 1 474 np. to the Assistant Charity Commissioner Baroda which after some correspondence the latter had accepted. The two cheques were sent on June 21 1962 The amounts were standing respectvely in the name of Shree Dwarkanathji Bethak Khata and Shree Dwarkanathji Bethak Sakhadi Bhog Khata. The petitioner has also stated that the remaining amount was withheld for the temples repairs for which purpose the amounts were collected by way of contribution. I may say that Mr. Darus two affidavits filed in support of respondent No. 1 in this petition do not contain any specific averment. The affidavits are vague. Besides it is significant that in demand notice annexure C there is not even a suggestion as to Mr. Daru having gone to the petitioner and demanded the return of the deposit amount. The petitioner has further stated that he was working as a Trustee-cum-Banker of the temples money. I am not here concerned with the merits of these contentions. But the fact remains that the petitioner had sent cheques of substantial amounts prior to the filing of this petition. Petitioner is a devotee of the Vaishnav sect. He says that he was thus a person interested to file the petition. I am not here concerned with the merits of these contentions. But the fact remains that the petitioner had sent cheques of substantial amounts prior to the filing of this petition. Petitioner is a devotee of the Vaishnav sect. He says that he was thus a person interested to file the petition. There is nothing to disbelieve his assertion. No case of collusion between the petitioner and respondent No. 2 is made out. The first contention of Mr. Zaveri that petition was collusive and not bona fide must therefore) be rejected. ( 15 ) I may say that the petitioner has alleged collusion between respondent No. 1 and respondent No. 2 in compromising the issue in the appeal below. Mr. Pradhan appearing on behalf of the petitioner has in this connection invited my attention to the settlement terms Ex. 9 and to the letter of respondent No. 1s Advocate. He has read out the letter of the learned Advocate which I have set out in the earlier part of my judgment. Mr. Pradhan has relying on this contended that respondent No. 2 (Original applicant) had filed the settlement terms in collusion with respondent No. 1 and under the influence of the Advocate. In view of the fact that I am striking down the impugned order on the ground that it was an order passed on a compromise between the parties to the appeal and therefore was without jurisdiction and was in conscious violation of law and even otherwise not maintainable as aforesaid it is not necessary for me to consider this question any further ( 16 ) MR. Zaveri has pleaded bar of the rule of exhaustion to the maintenance of this petition. He has contended that the petitioner had not exhausted all the available remedies which were open to him under the Act and as such the petition was not maintainable. Mr. Zaveris submission was that if the petitioner was aggrieved by the impugned order he had a right of filing an application under sec. 72 of the Act and he having failed to avail of that adequate legal remedy cannot invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution. In this connection I may say that the petitioner himself was not a party to the appeal. 72 of the Act and he having failed to avail of that adequate legal remedy cannot invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution. In this connection I may say that the petitioner himself was not a party to the appeal. His affidavit is that he did not know of the impugned order until he received the demand notice annexure C from respondent No. 1 requiring him to return the amount of deposit that was lying in the petitioners firm on account of the trust. Now the notice annexure C bears date June 12 1962 The impugned order was passed on April 4 1962 It is clear therefore that on the date of the service of this demand notice the application was beyond the precribed period of 60 days within which time the application is to be filed as required by sub-sec. (1) of sec. 72 of the Act. Mr. Pradhan has contended that sec. 75 of the Act as it then stood at the date of the demand notice did not include an application under sec. 72 so as to be considered in computing the period of filing an application. It cannot be disputed that at the date of the demand notice the words or of application under sec. 72 were not to be found in sec. 75 of the Act. These words were inserted by an amendment published in the Gujarat Government Gazette Part IV dated September 20 1962 Therefore although it is true that at the date of the filing of this petition namely September 28 1962 there was the necessary amendment aforesaid the prescribed period of limitation in filing the application had by this time already run out. Besides the case-law on the point obtaining at the time when the demand notice annexure C was issued was not clear. Raju J. had in First Appeal No. 78 of 1960 held that sec. 12 of the Limitation Act did not apply to an application under sec. 72 of the Act and the applicants were not entitled to exclusion of the time taken up in obtaining the certified copy of the decision of the Charity Commissioner. Raju J. had in First Appeal No. 78 of 1960 held that sec. 12 of the Limitation Act did not apply to an application under sec. 72 of the Act and the applicants were not entitled to exclusion of the time taken up in obtaining the certified copy of the decision of the Charity Commissioner. The legal position was subsequently settled by a judgment of the Division Bench of this Court delivered in the case of Chandrakant Harmandas and others v. The Charity Commissioner of Gujarat on March 8 1965 in Letters Patent Appeal No. 40 of 1964 (1965) VI G. L. R. 649 to which I was a party. This was against the aforesaid decision of Raju J. In this judgment it has been held that although an application under sec. 72 of the Act cannot be said to be an appeal within the meaning of sec. 75 of the Act there was no reason for saying that an application under sec. 72 cannot be regarded as an appeal within the meaning of the Limitation Act. Thus prior to this pronouncement the law on the point was not settled. Amendment to sec. 75 was published in the Gazette dated September 20 1962 that is to say only nine days prior to the institution of the present petition. There is therefore some justification in Mr. Pradhans submission that at the date of the filing of the petition he was under the impression that sec. 75 could not be invoked in filing an application under sec. 72 of the Act. Furthermore it appears from the record that after the receipt of the demand notice annexure C the petitioner had applied for a true copy of the impugned order on June 22 1962 from the office of the Charity Commissioner. However the Charity Commissioner by his letter dated July 12 1962 which is annexure B informed the petitioner that the record had been sent to the office of the Assistant Charity Commissioner at Baroda and therefore the true copy cannot be made available and that the petitioner should ask for the true copy from the Assistant Charity Commissioner. However the Charity Commissioner by his letter dated July 12 1962 which is annexure B informed the petitioner that the record had been sent to the office of the Assistant Charity Commissioner at Baroda and therefore the true copy cannot be made available and that the petitioner should ask for the true copy from the Assistant Charity Commissioner. Now in the proceedings-sheet of the appeal before the Charity Commissioner I find a proceedings of April 5 1962 stating that the record and proceedings be returned to the Assistant Charity Commissioner Baroda along with the copy of the order passed by the Charity Commissioner on June 4 1962 It follows that the original order had remained in the office of the Charity Commissioner. Ordinarily the original order remains in the office of the authority passing the order. It is therefore difficult to understand why the original petitioner was asked to apply for the copy from the office of the Assistant Charity Commissioner. Whatever it may be the true copy was not supplied. It appears that the petitioner had made an application to the Charity Commissioner on June 22 1962 to revise the order. The application was however rejected by the Charity Commissioner by his order dated July 7 1962 The petitioner had then sent another application (annexure E) to the Charity Commissioner on July 13 1962 for review of the order. This application was also rejected. By letter dated July 23 1962 annexure M the Charity Commissioner had informed the petitioner to take action under sec. 72 of the Act if advised. The petitioner had then sent a registered application dated July 26 1962 annexure H to the petition for obtaining consent of the Charity Commissioner to file a suit relating to the trust. Thus the petitioner appears to have pursued the matter all along although he did not take appropriate legal proceedings and this appears to have been under the erroneous advice of his advocate. The petitioner then filed the present petition on September 28 1962 Now as aforesaid there is nothing on record to show thatthe petitioner came to know of the impugned order prior to the date of receipt of the demand notice annexure C dated June 12 1962 and by this time the period of limitation to file an application under sec. 72 had already run out. 72 had already run out. Moreover the delay does not under the circumstances of the case appear to be inordinate and inexcusable. Again this is a case in which there was lack of jurisdiction in the Charity Commissioner to pass the impugned order in terms of a settlement. The order relates to and affects the interests of a public trusts. The petitioner has no personal interest. The original applicant (respondent No. 2) who had initiated the proceedings had given up his material contentions and was a party to an agreement with respondent No. 1. The lack of jurisdiction is patent on the face of record and the objection goes to the root of the case. This is therefore not a case in which I can persuade myself to dismiss the petition on the ground of delay or on the ground of the alternative statutory remedies not being availed of by the petitioner. ( 17 ) I may say that Mr. Vidyarthi learned Assistant Government Pleader appearing for the Charity Commissioner who is the third respondent herein has supported Mr. Zaveri in this technical defence and has further contended that the petitioner has not exhausted the remedy available to him under sec. 22a of the Act. Now sec. 22a of the Act which provides for a further enquiry would have application only when any particular relating to any public trust which was not the subject-matter of enquiry under sec. 19 has remained to be enquired into. Here we have it on record that all the 13 immovable properties referred to in the original application Ex. 1 and the other moveable properties including cash were the subject-matter of an enquiry under sec. 19. Therefore sec. 22a could not have been invoked. Furthermore it appears that the petitioner had nonetheless made an application to the Charity Commissioner for reviewing his order and this application annexure D-1 was made on June 22 1962 and this was rejected by the Charity Commissioner. This ground of defence is therefore not available to Mr. Vidyarthi. ( 18 ) MR. Vidyarthi has in support of his submission that alternative remedy bars the certiorari relied upon a decision of this Court in Kuberbhai Shirdas and another v. Mahant Purshottamdas Kalyandas and others (1961) II G. L. R. 564 wherein it has been held on the facts of that case that the plaintiffs having had recourse to sec. ( 18 ) MR. Vidyarthi has in support of his submission that alternative remedy bars the certiorari relied upon a decision of this Court in Kuberbhai Shirdas and another v. Mahant Purshottamdas Kalyandas and others (1961) II G. L. R. 564 wherein it has been held on the facts of that case that the plaintiffs having had recourse to sec. 70 and not having followed up their remedy under sec. 72 ar e bound by the decision of the Charity Commissioner in their appeal before him. This decision can have no application in the instant case when the petitioner himself was not a party to the proceedings in the appeal. Mr. Vidyarthi had also relied upon two unreported decisions of this Court one in Civil Miscellaneous Application No. 68 of 1965 (Chandrakant alias Jivanlal Motilal Bhatt and others v. State of Gujarat and others) decided on August 11 1965 and another in Special Civil Application No. 567 of 1962 (Kantilal Punamchand Raval v. The Charity Commissioner of the State of Gujarat at Ahmedabad and others) decided on September 23 1964 These decisions were given on the special facts of the case where the petitioner had not resorted to the available alternative remedy. In these two cases there was no question of a patent lack of jurisdiction nor was there any question of injury to a public trust. A decision of the Bombay High Court in Special Civil Application No. 386 of 1956 (Shri Kushaba Babaji Tanpure and another v. Shri Yeshwant Tukaram Shinde and others) decided on its facts on January 14 1957 was also relied upon. Now the present case has its special considerations. The enquiry was initiated on the application of the present respondent No. 2. In the enquiry that was held by the Assistant Charity Commissioner in pursuance of the application under sec. 19 of the Act as many as 13 immovable properties were the subject-matter of enquiry. Besides the question of cash lying in deposit with the petitioner some ornaments and jewellery were also being enquired into. The first respondent who was the trustee had not made any application for registration of the trust. He did not appear during the hearing of the proceedings in the enquiry and this in spite of the specific order that was made by the Assistant Charity Commissioner calling upon him to remain present and to discover the documents. The first respondent who was the trustee had not made any application for registration of the trust. He did not appear during the hearing of the proceedings in the enquiry and this in spite of the specific order that was made by the Assistant Charity Commissioner calling upon him to remain present and to discover the documents. The Assistant Charity Commissioner had held with the aid and assistance of the assessors and accepting their opinion that all the properties were the properties of the public trust and had called upon the first respondent to file accounts and make an inventory of the properties of the trust. Against this order the first respondent had filed an appeal before the Charity Commissioner. In this appeal settlement terms were filed and an order in terms thereof and modifying the order of the Assistant Charity Commissioner was passed which is the impugned order. Cases of this type require careful scrutiny of the Charity Commissioner. In my opinion in a case of this type the High Court can suo motu entertain the petition notwithstanding the existence of an alternative remedy even if available to the petitioner. I have given my most anxious consideration to this petition which has been argued at great length by the learned advocates of the parties and I have come to take the view that this is a fit case in which the High Court must exercise its powers as protector of the charities in general. Therefore even apart from the question of delay or the rule of exhaustion being applicable to the instant case or not I am inclined to interfere with the impugned order under my powers under Article 227 of the Constitution of India and this is in order to keep the Tribunal namely the Charity Commissioner functioning within the limits of his authority and to prevent grave and manifest injustice being caused to the cause of the public trust which is a cause of the public good. ( 19 ) AS observed by me earlier this is a case in which the Charity Commissioner has acted without jurisdiction in modifying the order of the Assistant Charity Commissioner in terms of the agreed settlement that was arrived at by the original applicant and the original opponent who are respectively the second and the first respondents before me. ( 19 ) AS observed by me earlier this is a case in which the Charity Commissioner has acted without jurisdiction in modifying the order of the Assistant Charity Commissioner in terms of the agreed settlement that was arrived at by the original applicant and the original opponent who are respectively the second and the first respondents before me. The Act provides a complete Code for dealing with the matters set out in secs. 18 and 19 and recourse must be had to the procedure laid down in the Act. The powers of the Charity Commissioner Sitting in appeal under sec. 70 of the Act are to be found in the Act and the authority must function within the limits of his power and in a manner prescribed in and under the Act. As aforesaid the Act does not make any provision for passing an order in the form in which the parties to the appeal agree and desire. The impugned order having been found to have been passed in accordance with the consent terms is clearly without jurisdiction. I have also taken the view that even assuming that the Charity Commissioner had also considered the case on merits in the appeal before him there is nothing on record to show why he had received the additional evidence on record. There is no proof of the documents so received. It is not shown that the Charity Commissioner had examined any witness in this behalf. Simply by a reading of the documents one cannot reach a conclusion that the property is the personal property or is the one dedicated to or for the benefit of or used as of right by the Hindu community. The Charity Commissioner cannot in such a summary and arbitrary manner decide that the properties are not the properties of the public trust. It may be remembered that the Assistant Charity Commissioner had with the aid and assistance of the assessors and agreeing with the opinion of assessors reached a particular conclusion. It was certainly open to the Charity Commissioner sitting in the appeal to reconsider the evidence and the case on merits; but he could not have in such a summary manner taken on record four documents read two original documents and found that the properties were not the properties of the public trust. It was certainly open to the Charity Commissioner sitting in the appeal to reconsider the evidence and the case on merits; but he could not have in such a summary manner taken on record four documents read two original documents and found that the properties were not the properties of the public trust. This exercise of the power in my view was clearly in excess of jurisdiction besides being in breach of the provisions of law and in conscious violation of the provisions and the procedure prescribed The impugned order affects the cause of the public trust and public good and defeats the very object of the Act. The impugned order therefore cannot be maintained and it deserves to be quashed. This is a fit case in which the High Court should exercise its power of superintendence over the Tribunal viz. the Charity Commissioner who must be kept within the bounds of law. The law and the prescribed procedure must be strictly followed in a matter of this type. I cannot accept Mr. Vidyarthis contention that such orders are discretionary orders with the Charity Commissioner and that the Charity Commissioner can have regard to the historical background custom user and other circumstances not on record and that he can modify the order of the Assistant Charity Commissioner and pass an order substantially in terms of the agreed formula presented by the original applicant who had given up his contentions and the original opponent. The impugned order which is annexure A to this petition and which has been passed by the Charity Commissioner Gujarat State in Appeal No. 61 of 1960 on April 4 1962 is therefore hereby quashed. The matter must be sent back to the Charity Commissioner for rehearing of Appeal No. 61 of 1960. ( 20 ) A writ of certiorari quashing the impugned order to issue. I direct the Charity Commissioner to rehear the appeal and decide it in accordance with law. . ( 21 ) RULE made absolute. Rule made absolute. .