CHARITY COMMISSIONER v. MAHARAJGIRI SHADULGIRI — 1972 DIGILAW 5 (GUJ)

C. V. RANE, J. M. SHETH, J. ( 1 ) THESE two first appeals arise out of the decision of the learned Assistant Judge Bhavnagar in Misc. Civil Application Nos. 65 and 66 of 1966 in the following circumstances. Shri Maharajgiri Shardulgiri and his two sons had filed an application under sec. 18 of the Bombay Public Trust Act 1950 (hereinafter referred to as the Act) under protest before the Deputy Charity Commissioner Rajkot. The above application dated 18-10-1961 related to Shri Kashi Vishwanath Mahadeo Temple situated in Savarkundla in Bhavnagar district. According to the applicants the temple certain rooms situated in the compound of the temple and the land bearing survey No. 391 admeasuring A. 1 29 Gs. were in the possession of the family for several generations and they were their private properties and that the temple was not liable to be registered as a public trust. One Hiralal Magia however filed an application dated 24 alleging that the above temple was a public trust and the properties attached to it belonged to that trust. He also filed another application on 19-9-1963 alleging that the land bearing survey No. 8 admeasuring A. 7 27 G. which belonged to the above temple had been illegally sold by Maharajgiri Shardulgiri in the year 1955-56 to the Savarkundla Municipality He therefore prayed that the above properties should be declared as belonging to the Kashi Vishwanath Mahadeo Trust. A notice was issued to the Savarkundla municipality according to which the land bearing survey No. 8 had been given to Maharajgiri by the former State of Bhavnagar for the purpose of dhup-deep at Shri Kashi Vishwanath Mahadev Mandir. No compensation was paid by the municipality to Maharajgiri for the said land but an amount of Rs. 11501/was paid to him by the municipality for the improvements made by him on the land and the super structures constructed by him at his own costs. Maharajgiri supported the above stand of the municipality. During the course of inquiry Hiralal Magia made one another application on 28-9-1964 in which he alleged that in addition to the properties mentioned in his earlier application there were several other properties which also belonged to the above temple and those properties were land bearing municipal census Nos. Maharajgiri supported the above stand of the municipality. During the course of inquiry Hiralal Magia made one another application on 28-9-1964 in which he alleged that in addition to the properties mentioned in his earlier application there were several other properties which also belonged to the above temple and those properties were land bearing municipal census Nos. 1/466 1 1 1 3 4 and 4469 A notice in respect of the above application was issued to Maharajgiri and his sons who contended that they were absolute owners of the properties mentioned in the above application. The Assistant Charity Commissioner Rajkot held inquiries in respect of all the above applications under sec. 19 of the Act. After considering the evidence adduced by the parties he came to the conclusion that Shri Kashi Vishwanath Mahadev Temple was a public trust and that the properties mentioned in the application dated 18-10-1961. the land bearing survey No. 8 and the properties bearing municipal census Nos. 1/466 and 1/465 were the properties of the trust. The rest of the properties were held to be belonging to Maharajgiri. Being aggrieved by the above decision Maharajgiri and his sons preferred an appeal being Appeal No. 43/65 before the Charity Commissioner under sec. 70 of the Act. As the land bearing survey No. 8 of Savarkundla was held to be public trust property Savarkundla municipality also preferred an appeal (appeal No. 51/65 ). Hiralal Magia also preferred an appeal being No. 18/66 to challenge that part of the decision of the Assistant Charity Commissioner according to which certain properties were declared to be belonging the Maharajgiri. ( 2 ) THE Charity Commissioner dismissed all the three appeals on 20 Appeal No. 51/65 has been dismissed subject to certain observations made by him in paragraphs 15 and 16 of his order which are however not relevant for the purpose of appeals before us. Being aggrieved by the above order Maharajgiri and his sons and the Savarkundla municipality made applications under sec. 72 of the Act to the District Court Bhavnagar. These applications were numbered as Misc. Civil Application Nos. 65/66 and 66/66. The above applications were heard by the learned Assistant Judge Bhavnagar. Being aggrieved by the above order Maharajgiri and his sons and the Savarkundla municipality made applications under sec. 72 of the Act to the District Court Bhavnagar. These applications were numbered as Misc. Civil Application Nos. 65/66 and 66/66. The above applications were heard by the learned Assistant Judge Bhavnagar. A preliminary point was raised in his court by the applicants that as the members of the Hindu community were interested in the alleged public trust and as no public notice had been issued as contemplated by Order 1 Rule 8 of the Civil Procedure Code the orders passed in the inquiries and consequently by the Charity Commissioner in the aforesaid appeals were bad in law and they should be set aside. Relying on the decision of the High Court of Bombay in the case of Vithobha Balaji Ghodke and others v. Balkrishna Ganesh Bhalerao and others (69 B. L. R. 31) the learned Assistant Judge upheld the above contention and passed the following order:-THE order passed by the Charity Commissioner dated 2-10-1966 is set aside and the matter is remanded to the Deputy Charity Commissioner Rajkot with a direction that a fresh enquiry be made in the matter after issuing a public notice as provided for in Order 1 Rule 8 of the Civil Procedure Code. It is directed that all parties including the parties before me be given an opportunity to lead fresh evidence on the questions arising in this proceeding. There will be no order as to costs before me. Being aggrieved by the above order the Charity Commissioner Ahmedabad has preferred these appeals. As these appeals arise out of one and the same order they as well as the civil applications for interim relief will be disposed of by this judgment. ( 3 ) IT is argued by the learned Government Pleader that looking to the scheme of the Act it is not necessary to issue any public notice. In support of his above argument he has mainly relied on the provisions of secs. 73 and 76 of the Act. On the basis of the provisions of sec. ( 3 ) IT is argued by the learned Government Pleader that looking to the scheme of the Act it is not necessary to issue any public notice. In support of his above argument he has mainly relied on the provisions of secs. 73 and 76 of the Act. On the basis of the provisions of sec. 76 of the Act it is argued by him that the provisions of the Civil Procedure Code apply only to the proceedings before a court and that so far as inquiries under the Act are concerned the officers holding the inquiries have to exercise only limited powers under the Civil Procedure Code as enumerated in sec. 73 of the Act. Thus according to him there is no provision in the Act which contemplates issuance of public notice as contended by the respondents. It is not disputed by the learned advocate for the respondents that the concerned respondents were given all the opportunities to prove their case at the inquiry under sec. 19 of the Act. It is also not disputed that those respondents had not raised any such contention either before the Assistant Charity Commissioner or the Charity Commissioner. Under these circumstances it is contended by the learned Government Pleader that it was not open to the respondents in question to challenge the order of the Assistant Charity Commissioner or that of the Charity Commissioner on the ground that public notice was not issued. According to the learned advocate for the respondents the order passed by the Assistant Charity Commissioner at the inquiry under sec. 19 of the Act is a nullity as no public notice was issued. ( 4 ) IN view of the above contentions raised by the parties the first question that is to be decided in these appeals is whether there is any provision in the Act or the Rules made thereunder for issuing a public notice as contended by the learned advocate for the respondents. According to sec. 19 of the Act on the receipt of an application under sec. 18 or upon an application made by any person having interest in a public trust or of his own motion the Deputy or Assistant Charity Commissioner has to make an inquiry in the prescribed manner for the purpose of ascertaining the facts and the particulars enumerated in that section. The word prescribed has been defined by sec. 18 or upon an application made by any person having interest in a public trust or of his own motion the Deputy or Assistant Charity Commissioner has to make an inquiry in the prescribed manner for the purpose of ascertaining the facts and the particulars enumerated in that section. The word prescribed has been defined by sec. 2 (11) of the Act and it means prescribed by rules. Rule 7 of the Bombay Public trusts Rules 1951 (hereinafter referred to as the Rules) relates to the manner of inquiries and it provides. MANNER of inquiries:- Except as expressly provided these rules inquiries under the Act shall be held as for 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 inquiry 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. IN the present case the Assistant Charity Commissioner and or the Deputy Charity Commissioner was expected to follow the procedure prescribed for the trial of suits under the Provincial Small Cause Courts Act 1887 Sec. 17 of the Provincial Small Cause Courts Act which is relevant in the matter provides:-17 The procedure prescribed in the a code of Civil Procedure 1908 shall save in so far as is otherwise provided by that Code by this Act be the procedure followed in a court of Small Causes in suits cognizable by it and in all proceedings arising out of such suitsit will thus appear that even though according to sec. 17 of the Provincial Small Cause Courts Act the procedure prescribed in the Code of Civil Procedure save in so far as otherwise provided by that Code of the Act is to be the procedure followed in a court of Small Causes Rule 7 of the Rules makes it clear that the inquiries under the Act shall be held as far as possible in accordance with the procedure prescribed for the trial of suits under the Provincial Small Cause Courts Act or under the Presidency Small Cause Courts Act as the case may be. This shows that all the provisions of the Civil Procedure Code are not applicable to the inquiries under the Act. ( 5 ) THE above view is supported by the provisions of secs. 73 and 76 of the Act. Sec. 73 provides:-IN holding inquiries under this Act the officer holding the same shall have the same powers as are vested in courts in respect of the following matters under the Code of Civil Procedure 1908 in trying a suit:- (a) Proof of facts by affidavits. (b) summoning and enforcing the attendance of any person and examining him on oath (c) compelling the production of documents (d) issuing of commissions. IT will thus appear from the above provisions that the officers holding an inquiry under the Act are vested with the powers of courts only in respect of certain matter enumerated in the section. If it were the intention of the Legislature to apply all the provisions of the Code of Civil Procedure to the inquiries under the Act it would have clearly stated so in sec. 73 or at any other place in the Act. Looking to the scheme of the Act including the fact that the inquiries under the Act are as far as possible to be held in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Courts Act or the Provincial Small Cause Courts Act as the case may be it appears that for the purpose of inquiries under the Act the officers concerned have to follow a sort of summary procedure and not an elaborate procedure as prescribed under the Code of Civil Procedure. The above view is further confirmed by the provisions of sec. 76 of the Act which in unequivocal terms provides that the provisions of the Civil Procedure Code shall apply to all the proceedings before the court under this Act. It is hardly necessary to state that if the procedure prescribed by the Code of Civil Procedure was to be followed even for the purpose of inquiries under the Act a clear indication to that effect would have been given in the Act on the lines of sec. 76. Thus the intention of the Legislature becomes abundantly clear when the provisions of sec. 73 of the Act and Rule 7 of the Rules are compared with those of sec. 76 of the Act. 76. Thus the intention of the Legislature becomes abundantly clear when the provisions of sec. 73 of the Act and Rule 7 of the Rules are compared with those of sec. 76 of the Act. Once it is held that the provisions of the Civil Procedure Code except for limited purposes are not applicable to the inquiries under the Act it is difficult to say that the Assistant Charity Commissioner should have issued a notice as contemplated by Order 1 Rule 8 of the Civil Procedure Code. The learned advocate for the respondents Mr. Vakharia also concedes the above point. He however argues that if it is held that it was necessary for the Assistant Charity Commissioner to issue public notice he should have followed the procedure prescribed by Order 1 Rule 8 of the Civil Procedure Code. There is however no provision for issuing a public notice for the purpose of inquiries under sec. 19 of the Act. It appears that wherever public notice is contemplated a provision to that effect has been specifically made in the Act. As an instance on the point it may be pointed out that according to sec. (1)3 of the Act the provisions of the Act shall apply to a public trust or any. class of public trusts on the date specified in the notification under sub sec. (i) which interalia provides that the State Government may by notification in the official gazette specify the date on which the provisions of the Act shall apply to any public trust or any class of public trusts. According to the first proviso to sub-sec. (4) the State Government may by a like notification direct that from the date specified therein any public trust or class of public trusts shall be exempt from the provisions of this Act. There is however no provision for issuing a public notice in the Act for the purpose of holding inquiries under sec. 19 of the Act. ( 6 ) AT one stage Mr. There is however no provision for issuing a public notice in the Act for the purpose of holding inquiries under sec. 19 of the Act. ( 6 ) AT one stage Mr. Vakharia the learned advocate for the respondents argued that an opportunity should have been given to all the persons interested in the subject matter of the trust to be heard at the inquiry and that in order to enable them to do so a public notice should have been issued and that as the persons interested in the trust have not been heard the entire inquiry was void. In support of his above argument he has relied on the following observations of the Division Bench of this High Court in the case of East India Co. v. O. L. Raj Ratna Mills (11 G. L. R. 457):-NOW as pointed out by Lord Reid in Ridgs v. Baldwin (supra) this point has been decided time and again and the consistent view taken by the court in England and India has always been that a decision given in breach of audi alteram partem rule is null and void and not voidable at the discretion of the court. IN the present case however in the first instance as pointed out above no public notice is contemplated under the Act. Moreover the respondents concerned have been heard. Under these circumstances under no stretch of imagination the order in question can be said to be null and void so far as respondents in question are concerned. The plea of audi alteram partem rule can be raised only by the party against whom the order is passed without giving it an opportunity to be heard. It is however not open to the respondents to take recourse to the above rule and the learned advocate for the respondents is fair enough to concede the above point. Even as regards the persons having interest as defined by sec. 2 (10) of the Act it may be pointed out that it would not be open to them to contend that the orders in question are null and void on the ground of non-issuance of public notice for the simple reason that as observed above there is no provision in the Act for issuing any such notice for the purpose of inquiry under sec. 19 of the Act. 19 of the Act. More over there are certain other provisions of the Act to which we shall refer at a later stage by which person having interest can move the authorities concerned to make further inquiries in the matter. Considering all these circumstances it is not open to the respondents to challenge the orders in question on the ground that no public notice had been issued while holding the inquiry under sec. 19 of the Act. ( 7 ) IT appears that the learned Assistant Judge has relied on the decision of Vithobha Babaji Ghodke v. Balkrishna Ganesh Bhalerao (supra) while setting aside the order of the Charity Commissioner on the ground that the inquiry was held without issuing a notice as contemplated by Order 1 Rule 8 of the Civil Procedure Code. In the above case which relates to an inquiry under sec. 19 of the Act Gokhale J. has taken the viewthat in an application of this nature the members of the public belonging to the Hindu community who claimed a right of worship in the temple were necessary parties to the application that the applicant not having taken steps to join them as opponents in the application by invoking the procedure analogous to that provided in Order 1 Rule 8 of the Civil Procedure Code the enquiry conducted by the Assistant Charity Commissioner was an enquiry behind the back of the appellants and the members of the community to which they belonged and that it led to a miscarriage of justice or suffered from a grave irregularity. FOR the reasons already mentioned we are with due respect to the learned Judge unable to agree with the above view. In this connection it may be pointed out that in the case of Taraben Baldevdas Parikh v. The Charity Commissioner Greater Bombay Region (57 Bom. L. R. 1069) to which a reference has been made in the above case the Division Bench of the High Court of Bombay has after considering the scheme of the Act in so far as it relates to the holding of an inquiry under the Act taken the view that no notice is required to be given either generally or to persons who may appear to be interested in the property. For the reasons mentioned above we respectfully agree with the view of the Division Bench. For the reasons mentioned above we respectfully agree with the view of the Division Bench. ( 8 ) IT was further argued by the learned advocate for the respondents that if a public notice was not issued the respondents would be subjected to further litigations by other persons interested in the subject matter of the trust even after the present proceedings were concluded. In this connection it may be pointed out that looking to the scheme of the Act the above contingency cannot be avoided even by issuing a public notice in respect of an inquiry under sec. 19 of the Act. Sec. 20 of the Act provides that on completion of the inquiry provided for under sec. 19 the Deputy or Assistant Charity Commissioner shall record his findings with the reasons therefore as to the matters mentioned in the said section. According to sub-sec. (1) of sec. 21 the Deputy or Assistant Charity Commissioner shall 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. 22 of the Act relates to the steps to be taken by a trustee where any change occurs in any of the entries recorded in the register kept under sec. 17 and also to inquiries to be held by the Deputy or Assistant Charity Commissioner in the matter on the basis of the report of the trustee. According to sub-sec. (3) of sec. 22 the amendments in the entries so made shall subject to any further amendment on the occurrence of a change be final and conclusive. It with thus appear from the above provisions of the Act that the entries made under sec. 21 in pursuance of the order under sec. 2q of the Act as well as the amendments made in the entries under sec. 22 of the Act partake of the character of judgment in rem even in the absence of any provisions for issuing a public notice. ( 9 ) SEC. 21 in pursuance of the order under sec. 2q of the Act as well as the amendments made in the entries under sec. 22 of the Act partake of the character of judgment in rem even in the absence of any provisions for issuing a public notice. ( 9 ) SEC. 22a further provides:-IF at any time after the entries are made in the register under sec. 21 or 22 it appears to the Deputy or Assistant Charity Commissioner that any particular relating to any public trust which was not the subject matter of the inquiry under sec. 19 or sub-sec. (3) of sec 22 as the case may be has remained to be enquired into the Deputy or Assistant Charity commissioner as the case may be may make further inquiry in the prescribed manner record his findings and make entries in the register in accordance with the decision arrived at or if appeals or applications are made as provided by this Act in accordance with the decision of the competent authority provided by this Act. The provisions of secs. 19 20 21 and 22 shall so far as J may be apply to the inquiry the recording of findings and the making of entries in the register under this section. THE above provisions clearly show that even after an inquiry under sec. 19 has concluded and entries are made in the register under sec. 21 or sec. 22 it is open to the Deputy or Assistant Charity Commissioner to hold a further inquiry if it appears to him that any particular relating to any public trust which was not the subject matter of the inquiry under sec. 19 or sub-sec. (3) of sec. 22 has remained to be inquired into. ( 10 ) EVEN according to sec. 70a of the Act it is open to the Charity Commissioner in any of the cases mentioned in sec. 70 to call for and examine the records and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and to pass appropriate orders as contemplated by that section. It cannot be disputed that the Charity Commissioner can exercise the powers of revision under sec. It cannot be disputed that the Charity Commissioner can exercise the powers of revision under sec. 70a either on his own motion or at the instance of the person having interest. If is thus found that the Charity Commissioner can revise the orders enumerated in sec. 70 which include the findings or orders as the case may be under secs. 20 22 and 22a. The above provisions of the Act show that the rights of the persons having interest are in no way prejudiced by holding inquiries under sec. 19 and other relevant sections of the Act without issuing any public notice because a suitable remedy is provided to them by the aforesaid provisions of the Act to move the authority concerned for obtaining adequate relief even after the inquiries as stated above are concluded. In view of what is stated above it will further be found that by merely issuing a public notice as suggested by the learned advocate for the concerned respondents the person having interest cannot be prevented from approaching the Deputy or Assistant Charity Commissioner or the Charity Commissioner as the case may be for re-opening or reconsidering the matter to the extent permissible under the relevant provisions of the Act even after inquiries under secs. 19 22 22 and other relevant sections of the Act are concluded. ( 11 ) FOR the reasons stated above we hold that there is no provision in the Act for issuing a public notice in respect of an inquiry under sec. 19 of the Act. That being so the orders of the learned Assistant Judge setting aside the orders of the Charity Commissioner cannot be sustained. We therefore allow the appeals set aside the above orders of the learned Assistant Judge and remand both the applications to the District Court Bhavnagar with the directions to re-admit them under their original numbers in the appropriate register and proceed to dispose. of the applications in accordance with law. Respondents Nos. 1 2 3 and 5 of First Appeal No. 1350 of 1968 to pay the costs of the appeal to the appellant and bear their own. Respondent No. 4 to bear his own costs if any. Respondents Nos. 1 2 3 and 4 in First Appeal No. 1351 of 1968 to pay the costs of the appeals to the appellant and bear their own. Respondents Nos. Respondent No. 4 to bear his own costs if any. Respondents Nos. 1 2 3 and 4 in First Appeal No. 1351 of 1968 to pay the costs of the appeals to the appellant and bear their own. Respondents Nos. 5 6 and 7 to bear their own costs if any. ( 12 ) IN. view of the decision in the above appeals civil applications Nos. 2720/71 and 2721/71 in First Appeal No. 1350/68 and civil applications Nos. 2718/71 and 2719/71 in First Appeal No. 1351/68 do not survive and they are disposed of accordingly. There would be no order as to costs of these applications. .