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1989 DIGILAW 464 (KAR)

SHIVALINGAPPA MURIGEPPA KADI v. SHIVAYOGAPPA

1989-12-15

M.RAMA JOIS, M.RAMAKRISHNA RAO, S.RAJENDRA BABU

body1989
RAMAKRISHNA, J, J. ( 1 ) THE Division Bench by an order made on 18-7-1989, has referred the following question of law for the opinion of the Full Bench: "whether an application under Section 72 of the Bombay Public Trust Act, 1950 is maintainable before the District Judge against an order of the Charity Commissioner made in exercise of power of revision under Section 70a of the Act setting aside the order of the Assistant Charity commissioner made under Section 18 read with Section 19 of the Act, notwithstanding the fact that after setting aside the order of the Assistant Charity Commissioner, the matter has been remitted to the Assistant Charity Commissioner for fresh enquiry. " ( 2 ) A few facts that are necessary for answering the question referred to the Full Bench are as follows: A temple called "jaligidada Basaveswara Devalaya" situates in the town of Muddebihal of the district of Bijapur. On an application filed by one S. M. Kadi of Muddebihal along with a few others on 31-5-1952 under Section 13 of the Bombay Public Trusts Act, 1950 (hereinafter called 'the Act') for registration of the said temple as a public trust, the Assistant Charity Commissioner registered his application in No. 7734 of 1952, held an enquiry as required under Section 19 of the Act and, in the enquiry, as nobody objected for registering the said temple as a public trust, registered the said temple as a public trust by his order dated 14-1-1954. The said order is found at page 21 of the lower Court records. A certificate of Registration was also issued on the same date to Sri S. M. Kadi and that is found at page 29 of the original records. About 25 years thereafter, an application under Section 70a of the Act was presented by respondents 1 and 2 before the Charity Commissioner, Belgaum, praying for setting aside the order of the Assistant "charity Commissioner made in enquiry No. 7734 of 1952. This application was resisted by the appellant. The Charity Commissioner, however, made an order on 22-3-1980 allowing the revision Petition presented by the 1st and 2nd respondents. He set aside the order of the assistant Charity Commissioner and remitted the matter for holding de novo enquiry after issuing notice to both parties. This application was resisted by the appellant. The Charity Commissioner, however, made an order on 22-3-1980 allowing the revision Petition presented by the 1st and 2nd respondents. He set aside the order of the assistant Charity Commissioner and remitted the matter for holding de novo enquiry after issuing notice to both parties. ( 3 ) AGGRIEVED by the said order, the appellant presented an application under Section 72 of the act before the learned District Judge, Bijapur, contending, inter alia, that though no period of limitation was fixed for entertaining a Revision Petition arising under Section 70a of the Act, the power could be exercised only within a reasonable time and therefore the Charity commissioner was not justified in entertaining the Revision Petition after 25 years after the registration of the temple as a public trust and setting aside the order of the Assistant Charity commissioner and remitting the matter for fresh enquiry. The learned District Judge dismissed the application on the ground that the Charity Commissioner had not only set aside the order of the Assistant Commissioner but had also remitted the matter for fresh enquiry and therefore the order of the Charity Commissioner was not a decision at all, within the meaning of that expression used in Section 72 of the Act and therefore the application was not maintainable, in view of the ruling of the Division Bench of this Court in the case of SAYYAD SULTAN v. ABDUL AZIZ SAHEB 1964 (1) Mys. L. J. 565: ILR (Kar) SNRD 147. ( 4 ) AGGRIEVED by the order of the learned District Judge, the appellant has presented this appeal under Section 72 (4) of the Act. ( 5 ) THE Division Bench of this Court doubting the correctness of the view expressed in Syyed sultan's case felt that same requires reconsideration and referred the above said question to the full Bench. ( 6 ) IN order to appreciate the question arising before us, it is necessary to extract the provisions of sections 70a and 72 (1) and (2) of the Act. 70a of the Act reads: "charity Commissioner to call for and examine record and proceedings before Deputy or assistant Charity Commissioner. ( 6 ) IN order to appreciate the question arising before us, it is necessary to extract the provisions of sections 70a and 72 (1) and (2) of the Act. 70a of the Act reads: "charity Commissioner to call for and examine record and proceedings before Deputy or assistant Charity Commissioner. (1) The Charity Commissioner may in any of the cases mentioned in Section 70, call for and examine the record 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 may either annul, reverse, modify or confirm the said finding or order or may direct the Deputy or Assistant charity Commissioner to make further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence. Provided that the Charity Commissioner shall not record or pass any order without giving the party affected thereby an opportunity of being heard. XXX XXX XXX section 72 (1) and (2) reads: 72 (1 ). Application from Charity Commissioner's decision under Sections 40, 41 or 70 etc. Any person aggrieved by the decision of the Charity Commissioner under Sections 40, 41, 70 or 70a or 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 may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. XXX XXX XXX (2) The Court after taking evidence, if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. " xxx XXX XXX in Syyed Sultan's case, a Division Bench of this Cour held as follows:"any or every finding falling within the scope of Sections 20, 70 and 70a cannot be called in question under Section 72 (1 ). From the enumeration of particulars in Section 19, it is clear that there are only some of the many questions which may be the subject of a finding or order by an assistant or Deputy Charity Commissioner under Section 20. From the enumeration of particulars in Section 19, it is clear that there are only some of the many questions which may be the subject of a finding or order by an assistant or Deputy Charity Commissioner under Section 20. Whereas a finding in respect of any one of those many questions is open to appeal under Section 70 or revision under Section 70a, Section 72 (1) obviously purports to limit the scope of an application to a Court. It thus concluded holding: "further, the effect of the Commissioner's order is that the whole matter is reopened for a fresh decision. There is no decision in the sense of an adjudication or a statement of a final opinion by him to the effect that the properties are trust properties or that they are not such properties. " The view taken by the Division Bench in this case holding that an application to the District judge under Section 72 (1) of the Act against the order of the Charity Commissioner was not maintainable, is on the basis that if the Charity Commissioner merely set aside the order of the assistant Charity Commissioner it would be a decision but if the matter is remitted for fresh disposal it would be no decision at all. ( 7 ) IN SHIVAPPA VEERAPPA MASUR v. SHRIMAN MAHARAJ NIRANJAN JAGADGURU mallikarjuna MURUGARAJENDRA SWAMIJI 1978 (1) KLJ 479: ILR (Kar) 1973 (1) 756, another Division Bench of this Court considered the scope of Section 72 of the Act and stated thus: "in interpreting and giving effect to the legislative intent of Section 72, we should also remember that a provision conferring a remedy on a person aggrieved for very good reasons should not be construed as a penal provision and the remedy or right provided herein curtailed when the plain language of the Section itself does not warrant the same. When the Legislature has conferred a right on an aggrieved person, it is not for the Courts to unduly restrict that right and defeat the legislative intent as that would be the consequences of accepting the contention of Sr. K. A. Swami and therefore we have no hesitation in rejecting the same. When the Legislature has conferred a right on an aggrieved person, it is not for the Courts to unduly restrict that right and defeat the legislative intent as that would be the consequences of accepting the contention of Sr. K. A. Swami and therefore we have no hesitation in rejecting the same. In order to attract Section 72 of the Act by any person aggrieved all that is necessary is that there is a decision by the commissioner on a revision petition presented before him under Section 70a of the Act which are indisputably satisfied in the case. We therefore hold that the applications presented by the appellant under Section 72 of the Act before the learned District Judge were maintainable; for which very reason, the appeals filed by him before us under Section 72 (4) of the Act are also maintainable. " ( 8 ) THEIR Lordships of the Division Bench in Shivappa's case did not consider it necessary to refer the question to the Full Bench as there was no order of remand in that case. By a perusal of the decision in the said case, it is clear that according to the language of the provisions, which is unambiguous and capable of only one meaning, a party aggrieved by the decision of the Charity commissioner under Section 70a of the Act could make an application before the District Judge under Section 72 of the Act praying for setting aside the order of the Charity Commissioner, whether the said order is coupled with the order of remand or not. We respectfully agree with that view, in our opinion there is no basis for holding that an order setting aside the order of the assistant Charity Commissioner would be a decision within the meaning of that expression used in Section 72, but it would not be a decision if it is coupled with an order of remand. We respectfully agree with that view, in our opinion there is no basis for holding that an order setting aside the order of the assistant Charity Commissioner would be a decision within the meaning of that expression used in Section 72, but it would not be a decision if it is coupled with an order of remand. In fact, the order of remand follows the decision setting aside the order of the Assistant Charity commissioner, For these reasons we overrule the decision of the Division Bench in Syed sultan's case and answer the question referred for our opinion as follows: an application under Section 72 of the Bombay Public Trust Act, 1950 is maintainable before the District Judge against an order of the Charity Commissioner made in exercise of power of revision under Section 70a of the Act setting aside the order of the Assistant Charity commissioner made under Section 18 read with Section 19 of the Act, notwithstanding the fact that after setting aside the order of the Charity Commissioner, the matter has been remitted to the assistant Charity Commissioner for fresh enquiry. S. Rajendra Babu, J this reference is made by the Division Bench doubting the correctness of the Judgment in sayyed Sultan's case as to the scope of Section 72 of the Bombay Public Trust Act, 1950 (in short the Act), which relates to the jurisdiction of the District Judge to entertain an application under that provision against an order of the Charity Commissioner setting aside the order of the assistant Charity Commissioner and remanding the matter for fresh disposal under Section 70a of the Act. 2. The facts leading to this reference, the provisions thereof and the point for our consideration have been exhaustively set out in the order of reference itself and therefore it ia unnecessary for me to refer to them or reiterate the same. Suffice for my purpose to proceed to interpret Section 72 of the Act and find out whether an application can be filed to the District Judge against an order of the Charity Commissioner setting aside the order of the Assistant Charity Commissioner and remanding the matter to the latter for fresh enquiry. 3. For the purpose of proper understanding. Section 72 (1) of the Act can be analysed conveniently in parts as under: "72 (1 ). Application from Charity Commissioner's decision under Sections 40, 41 or 70 etc. 3. For the purpose of proper understanding. Section 72 (1) of the Act can be analysed conveniently in parts as under: "72 (1 ). Application from Charity Commissioner's decision under Sections 40, 41 or 70 etc. Part-1: Any person aggrieved by the decision of the Charity Commissioner part 2: under Sections 40, 41, 70 or 70a, or part 3: on the questions whether a trust exists and whether such trust is a public trust or part-4: whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. " The expression "decision" in this provision could be one under Sections 40, 41, 70 or 70a of the act, or such a decision could be de hors these provisions on a question as to the existence of the trust, or on a question that such a trust is a public trust or the property thereof is the trust property. Therefore, it is clear that an application could be filed against an order made under sections either 40, 41, 70, 70a, or on other questions referred to above. When an order is made by the Charity Commissioner under Sections 40, 41, 70 or 70a of the Act even without deciding the questions as to the existence or nature of the trust or of the property, it will nevertheless be a decision under Sections 40, 41, 70 or 70a. Therefore, what follows is that every order made under Sections 40, 41, 70 or 70a could be subject matter of an application before the District judge under Section 72 (1) of the Act. When the Section provides for several alternatives by the use of the expression 'or' and not 'and' and the context also does not indicate that the expression 'or' should be read as 'and', it is wholly impermissible to interpret that the expression "decision in the said Section has to be referred only to a decision rendered on the existence or nature of a trust or the trust property". Such an interpretation would unnecessarily whittle down the very scope of Section 72 (1) of the Act. Such an interpretation would unnecessarily whittle down the very scope of Section 72 (1) of the Act. When the scheme of the Act is that a decision of the Charity commissioner under Sections 40, 41, 70 or 70a could be a subject matter of challenge in an application before the District Judge, it is not open to construe that such a decision should be only one on the question whether a trust exists, or, whether the trust is a public trust, or, whether any property is that of the trust. 4. The reasoning adopted in Sayyad Sultan's case is that the only provisions under which the charity Commissioner can decide the questions whether or not a trust exists, such trust is a public trust, or a particular property is the property of such trust, are Sections 70 and 70a and these questions or questions similar to them can also be decided by the Assistant Charity commissioner under Section 20 of the Act. While findings in respect of all matters are open to appeal under Sections 70 or 70a, Section 72 (1) limits the scope of application to a Civil Court. Except for the basic or the fundamental question all the other findings are not open to adjudication by the Civil Court and for this proposition reliance is placed on Sections 79 and 80 of the Act. 5. The scope of Sections 79 and 80 of the Act is to confer exclusive jurisdiction on the authorities under the Act to deal with matters referred to therein and to oust the jurisdiction of the Civil Court. But, at the same time, both Sections 79 (2) and 80 make it clear that the orders made by the authorities under the Act shall be conclusive and final save as expressly provided under the Act by making them subject to an application under Section 72 (1) of the Act. All that sections 79 and 80 provide for is when a question arises as to the existence of a trust or its public nature or whether any property belongs to it such questions cannot be decided by the Civil Court but only by the authorities under the Act Subject to application under Section 72 (1) to be decided by the Civil Court and a further appeal to the High Court. That does not militate against the specific power conferred upon the authorities under Section 72 of the Act. Section 70 clearly enumerates the various matters on which an appeal could be filed. Section 70-A enumerates the powers that can be exercised by the Charity Commissioner in an appeal filed under Section 70 of the Act. It empowers him to call for and examine the records and proceedings of such a case for the purpose of satisfying himself as to the correctness of the finding recorded or order passed and may annul, reverse, modify such finding or order with the further power of holding an enquiry or taking additional evidence as may be necessary. And such an order is made subject-matter of an application under Section 72 (1) of the Act. It clearly provides that any person aggrieved by the decision of the Charity Commissioner under Section 70a in addition to other Sections or on a question whether a trust exists and whether such a trust is a public trust or any property belongs to it, may apply to the Court for setting aside the said decision. To read into Section 72 (1) a limitation or a restriction spelt out in Section 79 is, with great respect to the learned Judges who decided Sayyad Sultan's case, not correct, for what is dealt with and provided for in Sections 79 and 80 has been explained by me above. That merely ousts the jurisdiction of the Civil Court in certain matters referred to therein but the power conferred under Section 72 is a specific power saved and conferred under the Act on a Civil Court, Therefore, by no stretch of imagination can it be said that an application filed against an order under Section 70a even on questions where there is no decision as to the existence or otherwise of a trust, its nature and any property belongs to it, is to necessarily limit the jurisdiction of the Civil Court which is also an authority empowered by the Act. Therefore, I am of the view that the interpretation of Section 72, in sayyad Sultan's case needs to be reversed on this aspect of the matter as well. 6. Therefore, I am of the view that the interpretation of Section 72, in sayyad Sultan's case needs to be reversed on this aspect of the matter as well. 6. The next principle upon which this Court based its decision is that an order of remand does not decide any question referred to it and therefore is not a decision for purposes of Section 72 (1) of the Act. When the Assistant Charity Commissioner has decided the issue as to the existence or otherwise of a trust, its nature, or any property belongs to it or not, that is a finding in itself. Even in other respects referred to under that Section it is open to the parties to raise several questions as discussed above. But when such an order either as to other findings or on the questions referred to above is in favour of one party or the other and when such an order is annulled and matter is remitted, the order of the Charity Commissioner must be held to be a decision on the questions whether the trust exists, whether it is a public trust and whether any property was the property of such trust. In substance and effect that order is a decision on merits which can be challenged before the Court under Section 72 (1) of the Act. For these additional reasons also I consider the decision in Sayyad Sultan's case is not good law, and I entirely agree with the order proposed by my learned brother Ramakrishna, J.