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2011 DIGILAW 1154 (BOM)

Damodar Jairam Sao v. Deputy Charity Commissioner

2011-09-19

R.K.DESHPANDE

body2011
JUDGMENT:- This writ petition preferred under Articles 226 and 227 of the Constitution of India challenges the directions issued on 54-2010 by the Deputy Charity Commissioner, Nagpur, on the application under Section 41 A of the Bombay Public Trusts Act, 1950 (for short. "the BPT Act"), registered as Application No.1520 of 2009. The petitioner is directed not to interfere in the affairs of Punyashlok Vidyaniketan, Khumari, Tahsil Ramtek, District Nagpur, and further not to pose himself as the President of the said Trust and not to issue the communications to various authorities in the capacity of the President of the said Trust. 2. Punyashlok Ahilyadevi Shikshan Sanstha, Mansar, Tahsil Ramtek, District Nagpur, is a Society registered under the provisions of the Societies Registration Act, 1860 and also a Public Trust registered under the provisions of the BPT Act. The said Trust is running Punyashlok Vidyaniketan, Khumari, Tahsil Ramtek, District Nagpur, a School, which is recognized by the Department of Education, State of Maharashtra, and is being run on grandin-aid basis. The respondent No.2 Wasudev Bholanath Pund claims to be the Secretary of the said Trust, whereas the respondent No.3 Ku. Milan H. Gaudia claims to be the Head Mistress of the said School, approved by the Education Officer. The petitioner claims to be the President of the said Trust. 3. The respondent Nos.2 and 3 filed Application No.1520 of 2009 under Section 41 A of the BPT Act restraining the petitioner from unnecessarily interfering in the affairs of the School and from acting as the President of the Trust and issuing the communications in that capacity to various authorities. The said application has been allowed by the Deputy Charity Commissioner after hearing the parties concerned, issuing directions on 5-4-2010, which is the subject-matter of challenge in this petition. 4. The preliminary objection to entertain and decide this petition by the Single Judge has been raised by Shri Chandurkar, the learned counsel appearing for the respondent Nos.2 and 3. According to him, the Single Judge exercises jurisdiction to decide the writ petitions only in respect of the orders passed by the Courts, Tribunals or other quasi judicial authorities in exercise of its judicial or quasi judicial powers conferred by the enactments enumerated under sub-rules (1) to (43) of Rule 18 under Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. He submits that the Deputy Charity Commissioner neither does pass any order nor is conferred with judicial or quasi judicial powers under Section 41 A of the BPT Act. He submits that the matter pertains to the Division Bench, as this petition challenges the exercise of administrative power under Section 41 A of the BPT Act by the Deputy Charity Commissioner. He has relied upon the following judgments rendered by the learned Single Judges of this Court and also by the Apex Court : (i) 1993(2) Mh.L.J. 1056 - Lahudas Sambhaji Karad v. State of Maharashtra and others. (ii) 1994(1) Mh.L.J. 303 - Nahmal Kisanlalji Goenka and another v. Assistant Chairty Commissioner, Akola and another. (iii) 2001(4) Mh.L.J. 548 : [2002(3) ALL MR 555] - Asaram Bhimrao Shinde and others v. State of Maharashtra and others. (iv) 2008(2) Mh.L.J. 78 : [2008(1) ALL MR 664] - Raghunath s/o Motiram Patil v. State of Maharashtra and others. (v) The order dated in Writ Petition No.4886 of 2009 on 2-8-2010 in the case of Maruti Pundlikrao Satalkar v. Ashok Ganpati Kokate and others. (vi) (2002) 5 SCC 685 - Indian National Congress (I) v. Institute of Social Welfare and others. 5. Shri Sanyal, the learned counsel appearing for the petitioner, has, on the other hand, urged that the Deputy Charity Commissioner exercises quasi judicial power under Section 41A of the BPT Act and hence in terms of the provisions of Chapter XVII, Rule 18(3) read with Explanation below sub-rule (43) of the Bombay High Court Appellate Side Rules, the matter can be dealt with and decided by the Single Judge of this Court. For this proposition, he has relied upon the following decisions: (i) AIR 1966 SC 81 - Dwarka Nath v. Income-tax Officer, Special Circle, Dward, Kanpur and another. (ii) The order dated 27-3-2008 passed by the Division Bench of this Court in Writ Petition No.342 of 2008 - Nanasaheb Vithobaji Tekade and another v. Dr. Dayaram Choudhari and others. For this proposition, he has relied upon the following decisions: (i) AIR 1966 SC 81 - Dwarka Nath v. Income-tax Officer, Special Circle, Dward, Kanpur and another. (ii) The order dated 27-3-2008 passed by the Division Bench of this Court in Writ Petition No.342 of 2008 - Nanasaheb Vithobaji Tekade and another v. Dr. Dayaram Choudhari and others. Referring to the provisions of Section 41 A of the BPT Act, Shri Sanyal, the learned counsel for the petitioner, has urged that the said provisions pertain to issuance 'of directions to any trustee of a Public Trust or any person connected therewith, and while deciding any application made under Section 41 A of the said Act, the Charity Commissioner decides the dispute, lis or contest between the parties after granting an opportunity of being heard in the matter. He submits that the power under Section 41A of the said Act is a quasi judicial power, which is required to be exercised on the application being made and upon issuance of notices of such application to the parties against whom such directions are sought. 6. Both the learned counsels do not dispute the position that if it is held that the Deputy Charity Commissioner exercises the administrative power under Section 41 A of the BPT Act and the directions issued are for the administration of the Trust, then the Single Judge would not be competent to decide this petition and it will have to be decided by the Division Bench. There is also no dispute on the proposition of law that if the Single Judge of this Court exercises the jurisdiction other than the one which is conferred upon him under Chapter XVII, Rule 18 of the Bombay High Court Appellate Side Rules, then such order would be rendered null and void in view of the judgment of the Apex Court in the case of Pandurang and others v. State of Maharashtra, reported in 1986 Mh.L.J. 995. It is also not in dispute that if the Single Judge of this Court is competent to decide this petition and if the same is decided by the Division Bench of this Court, then it will take away the statutory right of appeal provided to the party aggrieved and hence the decision on the jurisdiction of the Single Judge of this Court is of great significance. Since the question goes to the root of the matter, the same is required to be decided. 7. What is the source of jurisdiction of the Single Judge of this Court is required to be seen. It is traceable under Rule 18 of Chapter XVII of the Bombay High Court Appellate Side Rules, which contains a list of order passed under various enactments, as are referred to in sub-rules (1) to (43) therein. The Single Judge is competent to decide the writ petition under Article 226 or 227 of the Constitution of India, challenging the orders, which are covered by Rule 18. The list may be enumerative but not exhaustive and if any order is passed in exercise of statutory powers conferred by any enactment, not specified in the list, still that would be covered by sub-rules (3) and (4) under Rule 18. It is not in dispute that the Bombay Public Trusts Act does not find place in any of the sub-rules under Rule 18 and hence sub-rules (3) and (4) would cover the orders passed under the said Act, being a special or local law. Sub-rules (3) and (4) of Rule 18 being relevant, are reproduced below: "(3) the decrees or the orders passed by any Subordinate Court or by any quasi Judicial Authority in any suit or proceeding including suits and proceedings under any Special or Local Laws, but excluding those arising out of the Parsi Chief Matrimonial Court and orders passed under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993; the Administrative Tribunals Act, 1985; and the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002." "(4) the decrees or the orders passed by any Subrodinate Court in appellate or revisional proceedings arising from suits or proceedings mentioned in Clause (3) above," There is Explanation below sub-rule (43), which is applicable to all the sub-rules and it deals with the expression "order". The same is relevant and is reproduced below: "Explanation. -- The expression "order" appearing in clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the abovementioned statutes." 8. The same is relevant and is reproduced below: "Explanation. -- The expression "order" appearing in clauses (1) to (41) means any order passed by any judicial or quasi judicial authority empowered to adjudicate under the abovementioned statutes." 8. Sub-rule (3) of Rule 18 of the Bombay High Court Appellate Side Rules pertains to the decrees or orders passed by any subordinate Court or by quasi judicial authority in any suit or proceeding under any special or local law. The expression "decrees" used in this provision will have to be understood to be one as defined under Section 2(2) of the Code of Civil Procedure. Hence, the definition is reproduced below: "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include - (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." The decree is the formal expression of any adjudication of a Civil Court, conclusively determining the rights of the parties with regard to all or any matters in controversy in the suit. It is deemed to include the rejection of plaint and the determination of any question. The expression "order" is also defined under Section 2(14) of the Code of Civil Procedure, which means the formal expression of any decision of a Civil Court, which is not a decree. There is a distinction between the decree and the order, as defined in the Code of Civil Procedure. The decree is invariably subject to appeal, whereas all the orders are not appealable unless they are specifically made appealable under Order XLIII, Rule I of the Code of Civil Procedure. However, the order contemplates a decision 9. The expression "order" is wide and carries different meanings in different contexts. The decree is invariably subject to appeal, whereas all the orders are not appealable unless they are specifically made appealable under Order XLIII, Rule I of the Code of Civil Procedure. However, the order contemplates a decision 9. The expression "order" is wide and carries different meanings in different contexts. It includes all such orders passed by the statutory authorities, whether administrative, judicial or quasi judicial, in exercise of the statutory powers conferred by special or local laws, including the Code of Civil Procedure. The Explanation below Rule 18 of the Bombay High Court Appellate Side Rules, therefore, clarifies the sense in which the expression "orders" is used in sub-rule (3) and it restricts the meaning to a power of court, tribunal or quasi judicial authority to adjudicate. Even if the Explanation below Rule 18 is ignored, the rule of interpretation led by the maxim noscitur a sociis shall come into operation in respect of the expression "decrees" or "orders". Both the words, susceptible of analogous meaning, are coupled together. Hence, they have to be understood in their cognate sense. They take as it were their colour from each other and the word "order", which is more general in nature will have to be understood as one adjudicating a dispute, lis or contest and determining the rights of parties, with regard to all or any matters in controversy, like a decree. Perusal of sub-rule (3) reproduced above, shows that such orders are required to be passed in any suit or proceeding, including suits and proceedings, under any special or local law, by any court or quasi judicial authority. Sub-rule (4) relates to the orders passed by the subordinate Courts in appellate or revisional proceedings arising from the suits or proceedings in sub-rule (3). 10. A conjoint reading of sub-rules (3) and (4) with Explanation under Rule 18, clearly shows that the expression "order" used therein means the order passed by the court, or quasi judicial authority empowered to adjudicate in any suit or proceeding of judicial or quasi judicial in nature determining rights of parties with regard to all or any of the matters in controversy. It also includes any order passed in any appeal or revision by a subordinate Court, arising from the suits or proceedings mentioned in sub-rule (3). It also includes any order passed in any appeal or revision by a subordinate Court, arising from the suits or proceedings mentioned in sub-rule (3). It is thus the exercise of statutory power to adjudicate or decide, conferred upon the court, or quasi authority, as contemplated by sub-rules (3) and (4), which can be made a subject-matter of challenge in a writ jurisdiction under Article 226 or 227 of the Constitution of India before the Single Judge. If the order is passed by any statutory authority not in exercise of judicial or quasi judicial authority under the provisions of the BPT Act, then the Single Judge is not competent to decide any writ petition under Article 226 or 227 of the Constitution of India, challenging such order, even if the authority passing such an order, is otherwise a judicial or quasi judicial authority. In other words, the statutory power to adjudicate or decide all or any matter in controversy in any suit or judicial or quasi judicial proceeding would be a necessary concomitant for exercise of writ jurisdiction by a Single Judge under sub-rules (3) and (4) of Rule 18 of the Bombay High Court Appellate Side Rules. 11. Even otherwise, while dealing with a challenge to the order passed under Section 41 A of the BPT Act, this Court is exercising jurisdiction of issuance of writ of certiorari to quash the orders. The judgment of the Apex Court, relied upon by Shri Sanyal, the learned counsel for the petitioner, in the case of Dwarka Nath v. Income Tax Officer and another, reported in AIR 1966 SC 81 , takes a view that a writ of certiorari can be issued only to quash a judicial or a quasi judicial act and not an administrative act. 12. In view of above, the next question. which will have to be considered, is about the nature of power conferred upon the Charity Commissioner under Section 41 A of the BPT Act - whether it is judicial, quasi judicial or administrative; and whether the Charity Commissioner exercising jurisdiction under Section 41 A of the said Act acts as a court, or judicial or quasi judicial authority empowered to adjudicate or decide any dispute, contest or lis in any suit or judicial or quasi judicial proceeding. 13. 13. Before considering the provisions of Section 41 A of BPT Act, a brief survey of various provisions of the said Act conferring powers upon the Charity Commissioner, Deputy Charity Commissioner and Assistant Charity Commissioner needs to be conducted with a view to make a comparative study of the nature of powers conferred under the said provisions vis-a-vis the powers conferred by Section 41 A of the BPT Act. 14. Section 20 of the BPT Act deals with the findings of the Deputy or Assistant Charity Commissioner. It contemplates an enquiry as provided under Section 19 and to record the findings in respect of various items specified therein with the reasons there for Section 22 deals with the change in any of the entries recorded in the register kept under Section 17. Sub-section (2) therein confers a power upon the Deputy or Assistant Charity Commissioner to hold an enquiry to ascertain whether the change has occurred or not. Sub-section (3) confers a power to record the findings with reasons there for upon reaching the satisfaction that the change has occurred in the entries. Section 22A deals with further enquiry by the Deputy or Assistant Charity Commissioner in respect of the entries made in the register under Section 21, 22 or 28 of the said Act and to record the findings and to arrive at the satisfaction. Section 28 deals with the public trust previously registered under the enactments specified in the Schedule and empowers the Deputy or Assistant Charity Commissioner to hear the trustees, to make an enquiry, and to record the findings with reasons there for. Thus, in all these provisions, the power to make an enquiry and to record the findings along with the reasons there for is conferred upon the authorities concerned. There is an appeal provided under Section 70 of the BPT Act against the findings recorded by the authorities. 15. Section 36(1) of the BPT Act deals with the alienation of immovable property of the public trust and empowers the Charity Commissioner to grant sanction - conditional or unconditional- upon being satisfied that there is a need to alienate the property, the need put forth is found to be genuine, and the alienation proposed is in the interest of the Trust and its beneficiaries. Sub-section (2) of Section 36 empowers the Charity Commissioner to revoke the sanction obtained by fraud or misrepresentation or by concealing the facts material to grant sanction. This is required to be exercised after issuing the show cause notice and giving a reasonable opportunity of being heard in the matter. Though under Section 36, the word "enquiry" has not been used, Rule 24(2) of the Rules framed under the BPT Act contemplates such enquiry to be made, and sub-rule (3) contemplates issuance of directions to grant sanction, either conditional or unconditional. Thus, hearing, enquiry and order granting or refusing to grant sanction are the requisites of this power. There is no appeal provided against any such direction issued granting sanction under Section 36. 16. Section 39 deals with the report to the Charity Commissioner and it contemplates conducting of enquiry and recording of findings by the Deputy or Assistant Charity Commissioner on the question whether or not a trustee or the person connected with the Trust has been guilty of gross negligence, breach of trust, misappropriation or misconduct, which resulted in loss to the Trust, and make a report thereof to the Charity Commissioner. Rule 25 of the Rules deals with the manner of holding enquiry under Section 39, which includes giving of an opportunity and recording of findings. There is no appeal provided against such findings. 17. Section 40 of the BPT Act deals with the power of the Charity Commissioner to issue orders on the report received under Section 39 or to remand the matter, etc. It empowers the Charity Commissioner to hold an enquiry as he thinks fit, after giving an opportunity to the person concerned and to determine the questions under clauses (a) to (d) of sub-section (1). Subsection (2) empowers the Charity Commissioner to remand the matter for further enquiry, as he thinks fit, or for the reasons to be recorded in writing, to compromise the matter or to drop the matter after the suit is instituted for obtaining a decree for a direction for taking accounts under Section 50 of the said Act. Thus, the power is conferred to conduct an enquiry, to grant a hearing and to determine the questions. There is an appeal provided under Section 72 against such determination. 18. Thus, the power is conferred to conduct an enquiry, to grant a hearing and to determine the questions. There is an appeal provided under Section 72 against such determination. 18. Section 41 deals with the order of surcharge and sub-section (1) states that if the Charity Commissioner decides that any person connected with the Trust is liable to the public trust any amount for the loss caused to the Trust, the Charity Commissioner may direct that the amount shall be surcharged on the person. Thus, the power is to decide and issue directions, which is made subject to an appeal under Section 72 of the said Act. 19. Section 41 B of the BPT Act deals with the power to institute an enquiry with regard to charities, or a particular charity or class of charities either generally, or for particular purposes. It also contemplates issuance of notice, enquiry to be made, recording of evidence, and submission of report. There is no appeal provided against the enquiry report. 20. Section 41 C of the BPT Act deals with the persons (other than Public Trusts) collecting moneys, etc. for religious or charitable purpose to inform the Charity Commissioner of such collections forthwith, etc. Sub-section (2) empowers the Charity Commissioner to make such enquiry as he deems fit to permit such collection to be continued subject to such condition as he deems fit or after recording of reasons in writing to direct such person to stop making such collection forthwith and require such person to render an account of the collection made by him. Under sub-section (3), it is the duty of every such person to comply with the directions. Thus, the requirement is making of an enquiry, recording of reasons in writing and issuance of directions, which is made appealable under Section 72 of the said Act. 21. Section 41 D of the BPT Act deals with suspension, removal and dismissal of trustees. Sub-section (2) contemplates framing of charges against the trustee or the person against whom the action is proposed to be taken, providing an opportunity to such person of meeting such charges, recording of evidence, calling of explanation and recording of findings on each charge with the reasons there for Sub-section (5) provides an appeal against an order or suspension, removal or dismissal of a trustee to the Court. Sub-section (6) provides further right of appeal to the High Court against the decision of the Court under sub-section (5). 22. Section 41 E deals with the power of the Charity Commissioner, Deputy Charity Commissioner or Assistant Charity Commissioner to act for protection of charities by granting temporary injunction or to make such other order for the purpose of and preventing the wasting, damaging, alienation, sale, removal or disposition of such property. Sub-section (3) provides for holding such enquiry as the Charity Commissioner thinks fit, to grant hearing to the trustee or the person concerned, and to pass an order of injunction or any other appropriate order. Sub-section (5) provides a right of appeal to the Court against such order. 23. Section 47 of the BPT Act confers a power upon the Charity Commissioner to appoint, suspend, remove or discharge the trustees and invest property to new trustees. Sub-section (2) empowers the Charity Commissioner to hear the parties concerned, to make an enquiry as he deems fit, and to pass an order appointing any person as a trustee or may also remove or discharge any person for any of the reasons specified in sub-section (1) Sub-section (4) empowers the Charity Commissioner to direct any Trust vesting of any property to any person so appointed. Sub-section (5) contemplates that an order passed by the Charity Commissioner under sub-section (2) shall be deemed to be the decree of the Court, against which an appeal shall lie before the High Court. 24. Section 50 of the BPT Act deals with the suit by or against or relating to public trusts or trustees or others. It empowers the Charity Commissioner to grant consent in writing, as contemplated by Section 51 of the said Act, to institute a suit for several reliefs specified under the said provision. Before granting such consent, he is required to make an enquiry, as he thinks fit, and there is no appeal provided against grant of such consent in writing. 25. Section 50A of the BPT Act deals with the power of the Charity Commissioner to frame, amalgamate, or modify a scheme in the interest of proper management or administration of the Public Trust after giving the trustees of such Trust due opportunity to be heard and on being satisfied that it is necessary to frame a scheme for the management or administration of such Public Trust. Rule 26 of the Rules provides the manner of conducting enquiry under Section 50A. Thus, the power is to make enquiry, provide opportunity and pass an order. Subsection (4) provides an appeal under Section 72 to the Court against such order of framing, settling or modifying the scheme. 26. Section 51 of the BPT Act deals with the consent of the Charity Commissioner for institution of the suit and it empowers the Charity Commissioner to grant or refuse to grant consent in writing to institute a suit after making an enquiry as he deems fit and hearing the parties. However, the order of the Charity Commissioner refusing to grant consent has to state the reasons for such refusal. Thus, conducting of enquiry, hearing the parties and granting or refusing to grant consent with reasons there for, are the requisites. Sub-section (2) provides an appeal against the order refusing to grant consent. 27. Section 54 of the BPT Act deals with dharmada and sub-section (1) states that the amount of dharmada charged or collected shall vest in the person charging or collecting the same as a trustee. Sub-section (3) empowers the Deputy or Assistant Charity Commissioner to make such enquiry as he thinks fit to verify the correctness of the account of dharmada submitted and to pass an order for disposal of the amount in the manner prescribed. Rule 30 of the Rules provided the manner of holding an enquiry. Thus, the requirement is of conducting an enquiry, verify correctness of the accounts and passing of an order, which is appealable under Section 70 of the said Act. 28. Section 56A of the BPT Act deals with the power of the trustee to apply for directions and it confers power upon the Court to give its opinion, advice or direction after giving notice to the Charity Commissioner and affording reasonable opportunity of being heard to all the persons appearing in connection with the application. Sub-section (4) states that no appeal shall lie against the opinion, advice or direction given under the said Section. 29. In the background of the aforesaid scheme of various powers conferred upon the Charity Commissioner, Section 41 A of the BPT Act is required to be seen. The same is, therefore, reproduced below: "41A. Sub-section (4) states that no appeal shall lie against the opinion, advice or direction given under the said Section. 29. In the background of the aforesaid scheme of various powers conferred upon the Charity Commissioner, Section 41 A of the BPT Act is required to be seen. The same is, therefore, reproduced below: "41A. Power of Commissioner to issue directions for proper administration of the trust.-(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. (2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1)." 30. It is urged by Shri Sanyal, the learned counsel for the petitioner, that the practice followed in the proceedings under Section 41 A of the BPT Act is to make an application, issue notice to the other side, provide an opportunity of being heard in the matter, and to pass an order supported by reasons. It is further urged that these are the characteristics of the quasi judicial order. Hence, he submits that it is a quasi judicial power, which is exercised and it is a quasi judicial order, which is passed. The contention cannot be accepted, as what is required to be seen is the statutory provision and not the order passed, to determine whether it is a quasi judicial power, which is conferred, What is the effect of granting opportunity of hearing and passing reasoned order? In this respect, the judgment of the Apex Court in the case of Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar, reported in (1990) 2 SCC 48 , needs to be seen. Para 17 of the said judgment is relevant and the same is reproduced below: "17. In this respect, the judgment of the Apex Court in the case of Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar, reported in (1990) 2 SCC 48 , needs to be seen. Para 17 of the said judgment is relevant and the same is reproduced below: "17. In Swadeshi Cotton Mills vs. Union of India, (1981) I SCC 664 = (1981) 2 SCR 533 Sarkaria, J., speaking for himself and Desai, J., said that irrespective of whether the power conferred on a statutory body or tribunal is administrative or quasi-judicial, a duty to act fairly, that is, in consonance with the fundamental principles of substantive justice is generally implied. The presumption is that in a democratic polity wedded to the rule of law, the State or the legislature does not intend that in exercise of their statutory powers its functionaries should act unfairly or unjustly. In the same case, Chinnappa Reddy, J., added (at p 212) that the principles of natural justice, are now considered so fundamental as to be implicit in the concept of ordered liberty'. They are, therefore, implicit in every decision making function, call it judicial, quasi-judicial or administrative. The learned Judge went on to state that where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natural justice. The implication of natural justice being presumptive, it should be followed by the authorities unless it is excluded by express words of statute or by necessary implication." 31. In another judgment of the Apex Court in the case of Indian National Congress (I) v. Institute of Social Welfare and ors., reported in (2002) 5 SCC 685 , it has been observed in para 26 as under: "26. Coming to the second argument of learned counsel for the respondents, it is true that mere presence of one or two attributes of quasi-judicial authority would not make an administrative act as a quasi-judicial act. In some case, an administrative authority may determine question of fact before arriving at a decision which may affect the right of an appellant but such a decision would not be a quasi-judicial act. In some case, an administrative authority may determine question of fact before arriving at a decision which may affect the right of an appellant but such a decision would not be a quasi-judicial act. It is a different thing that in some cases, fair play may demand affording of an opportunity to the claimant whose right is going to be affected by the act of the administrative authority, still such n administrative authority would not be a quasi-judicial authority." 32. In the judgment of the Apex Court in the case of Prakash Ratan Sinha v. State of Bihar and ors., reported in (2009) 14 SCC 690 : 12010 ALL SCR 326], it has been held in paras 10 and 13 as under: "10. In Canara Bank v. Debasis Das, (2003) 4 SCC 557 =2003 SCC (L and S) 507, this Court has held in para 19 (SCC P 572) that "19............Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. This Court has elaborated the expression "civil consequence" by observing that (Debasis Das case) "emcompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. This Court has further stated that in its wise umbrella comes everything that affects a citizen in his civil life." "13. The law in this regard has been settled by several decisions of this Court. The principle that emerge from the decisions of this Court is that if there is a power to decide and decide detrimentally to the prejudice of a person, duty to act judicially is implicit in exercise of such a power and that the rule of natural justice operates in areas not covered by any law validly made." 33. It is thus clear that even while exercising administrative powers, the authorities concerned are required to act justly, fairly and in consonance with the principles of natural justice. In some cases, the administrative authority may determine the questions of fact before arriving at a decision resulting in civil consequences, which encompasses infraction of not merely property or personal rights, but of civil liberties, material deprivations and non-pecuniary damages. Recording of reasons reflects application of mind. Mere presence of one or two attributes of quasi judicial authority would not make an act as quasi judicial act. Recording of reasons reflects application of mind. Mere presence of one or two attributes of quasi judicial authority would not make an act as quasi judicial act. Hence, granting of an opportunity of hearing and passing reasoned order would not assume the character of exercise of judicial or quasi judicial power. 34. What should be the test applied, to determine whether an "act of a statutory authority should be a quasi judicial act, has also been laid down by the Apex Court in the case of Indian National Congress (I), cited supra. Paras 24, 25, 27 and 29 are relevant and the same are reproduced below: "24. The legal principles laying down when an act of a statutory authority would be a quasi-judicial act, which emerge from the aforestated decisions are these: where (a) a statutory authority empowered under a statute to do any act (b) which would pre-judicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicia1." "25. Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial. However, in the absence of a lis before a statutory authority, the authority would be quasi-judicial authority if it is required to act judicially." "27. What distinguishes an administrative act from a quasi-judicial act is, in the case of quasi-judicial functions under the relevant law the statutory authority is required to act judicially. In other words, where law requires that an authority before arriving at a decision must make an enquiry, such a requirement of law makes the authority a quasi-judicial authority." "29. We do not find any merit in the submission. At the outset, it must be borne in mind that another test which distinguishes administrative function from quasi-judicial function is, the authority who acts quasi-judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency. We do not find any merit in the submission. At the outset, it must be borne in mind that another test which distinguishes administrative function from quasi-judicial function is, the authority who acts quasi-judicially is required to act according to the rules, whereas the authority which acts administratively is dictated by the policy and expediency. In the present case, the Election Commission is not required to register a political party in accordance with any policy or expediency but strictly in accordance with the statutory provisions. The aforequoted passage from Administrative Law by Wade & Forsyth is wholly inapplicable to the present case. Rather, it goes against the argument of learned counsel for the respondent. The aforequoted passage shows that where an authority whose decision is dictated by policy and expediency exercises administratively although it may be exercising functions in some respects as if it were judicial, which is not the case here." 35. Shri Sanyal, the learned counsel appearing for the petitioner, has relied upon the judgment of the Apex Court in Dwarka Nath v. Income-tax Officer, Special Circle, D ward, Kanpur and another, reported AIR 1966 SC 81 . The relevant portion of para 5 is reproduced below : "(5) But we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England. It is well settled that a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act. It is, therefore, necessary to notice the distinction between the said two categories of acts. The relevant criteria have been laid down with clarity by Atkin, L.J., in Rex V. Electricity Commissioners, 1924-1KB 171, elaborated by Lord Justice Scrutton in Rex V. London County Council, 1931-2 KB 215, and authoritatively restated in Province of Bombay V. Khushaldas S. Advani, 1950 SCR 621 : ( AIR 1950 SC 222 ). The said decisions laid down the following conditions to be complied with: (1) The body of persons must have legal authority; (2) the authority should be given to determine questions affecting the rights of subjects; and (3) they should have a duty to act judicially." , 36. In order to determine the nature of power conferred, it has to be seen whether the provision possesses the trappings of judicial, quasi judicial or administrative power. In order to determine the nature of power conferred, it has to be seen whether the provision possesses the trappings of judicial, quasi judicial or administrative power. This can be ascertained from the language employed, the words used, the requirements of the provisions, and the consequences of the order, which can be passed under the said provision. If there is a duty to act judicially, viz. in accordance with the rules, it is a judicial or quasi judicial power. But when the function is dictated by policy or expediency, it is an administrative power. When the law requires that an authority before arriving at a decision must make an enquiry, such requirement of law makes the authority a quasi judicial authority. The absence of any power to hold an enquiry before issuing the directions or passing an order, may be an instance of an administrative power. If there is a lis or contest or dispute involved and the authority is empowered to adjudicate it by determining the rights of the parties or subject, then it would be a judicial or quasi judicial power. But where there is no lis or contest involved or there is absence of power to adjudicate conferred by a statute, it would be an exercise of an administrative power. If the order passed merely results in civil consequences of encompassing infraction of not merely property or personal rights, but of civil liberties and non-pecuniary damages, as distinguished from one affecting the legal rights upon adjudication, it would be a case of an administrative power. If there is are right of appeal provided, then normally it shall be presumed that the exercise of power affects the legal rights rather than mere visiting civil consequences, indicating exercise of judicial or quasi judicial power. But when the statute requires the directions issued to be followed by the persons concerned, it would be an exercise of an administrative power. If by and large the power is found to be administrative in nature, but the statute declares it to be a judicial or quasi judicial power, it would not be an administrative power. 37. Section 41 A of the BPT Act, reproduced earlier, confers power upon the Charity Commissioner to ensure that the Trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and purposes of the Trust. 37. Section 41 A of the BPT Act, reproduced earlier, confers power upon the Charity Commissioner to ensure that the Trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and purposes of the Trust. "To ensure" means to make sure or certain or secure as against any uncertainty or insecurity. It is in the sense of protecting. While doing this, there is no question of any lis or contest or adjudication being involved in the process. Such directions can also be issued by the Charity Commissioner if he finds that the property of the Trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. "To find" means to discover, invent, reach. Thus, the discovery/invention is not due to any enquiry or investigation conducted, but on acquiring any knowledge in respect of property, being in danger of wasted, damaged, etc. In this process of issuing such directions also, there is no question of lis or contest subsisting or any adjudication being involved. Thus, the key words in the Section are "to ensure" and "finds", which are purely indicative of the fact that there is no lis, contest, dispute or controversy and there is absence of power to adjudicate. The directions can be issued to any of the trustees of a Public Trust or to any person connected therewith and it shall be the duty of every such trustee or person under sub-section (2) to comply with the directions issued under sub-section (1). The fact that there is no forum provided to make any grievance in respect of such directions, rules out the possibility of the order passed, affecting any right of the parties. 38. Section 41 A of the BPT Act opens with the words "Subject to the provisions of this Act", which is clearly indicative of its nature to act in aid of the other provisions under the Act. The power conferred is flexible and the directions issued in exercise thereof can be altered, modified, changed, cancelled, repealed or substituted at any time and while doing so, the provision nowhere contemplates an opportunity of being heard to be provided either to the trustees or to any person connected with the Trust. The power conferred is flexible and the directions issued in exercise thereof can be altered, modified, changed, cancelled, repealed or substituted at any time and while doing so, the provision nowhere contemplates an opportunity of being heard to be provided either to the trustees or to any person connected with the Trust. Any direction issued under Section 41 A cannot be inconsistent with or override the orders or directions issued under any other provisions of the Act. The directions may be issued by way of stopgap arrangement or for particular duration. If the Charity Commissioner feels that certain rights are required to be determined or some adjudication is required to be made on certain aspects covered by the directions, then he may direct the parties to have recourse to the appropriate provisions of law, or may himself exercise suo motu powers wherever the same are provided under the Act and take up such proceedings. Thus, it is purely an administrative power and while exercising such power, if the Charity Commissioner exceeds his jurisdiction in passing certain orders, then that can be a ground of challenge, but that by itself would not change the nature or character of the statutory power con1erred upon the Charity Commissioner. Hence, the argument of Shri Sanyal, the learned counsel for the petitioner, that the nature of power conferred has to be determined on the basis of its exercise, cannot be accepted. 39. A comparative study of all the other provisions conferring various powers upon the Charity Commissioner, Deputy Charity Commissioner or Assistant Clarity Commissioner vis-a-vis the powers cor1erred under Section 41 A of the BPT Act, indicates a definite distinction between the language employed and the requirements of the provisions. In several provisions discussed earlier, there is power to conduct an enquiry and to record the finding along with reasons thereof. In some cases, there is a specific requirement of granting hearing, submitting reports, determining issues and thereafter to pass an order or issue any direction. There is also an appeal provided to challenge such orders or directions. These are all the trappings of judicial or quasi judicial power. In some cases, there is a specific requirement of granting hearing, submitting reports, determining issues and thereafter to pass an order or issue any direction. There is also an appeal provided to challenge such orders or directions. These are all the trappings of judicial or quasi judicial power. However, there is no requirement under Section 41 A of the BPT Act to conduct any enquiry, to record the evidence and findings along with the reasons thereof, to submit the reports and to determine or decide any issue after granting an opportunity of hearing to all the parties concerned, followed by any order or direction. There is no appeal provided against any direction issued under Section 41 A of the BPT Act. Hence, Section 41 A does not contain trappings of such judicial or quasi judicial powers, as are conferred by the a fore stated provisions of the BPT Act. 40. There are provisions contemplating holding an enquiry, recording of evidence and findings, submission of reports under Sections 39, 41 Band 50 of the BPT Act, which are not followed either by an order or direction. There is no appeal provided against any such enquiry, findings or reports. However, it is not the question in this case whether the powers conferred by these provisions are judicial, quasi judicial or administrative. Apart from this, it would not make any difference for the reason that Section 73 of the BPT Act deals with the officers holding enquiries to have powers of the Civil Court in the matters of proof of facts by affidavits, summoning and enforcing the attendance of any person and examining him on oath, ordering discovery and inspection, and compelling the production of documents and issuing of commissions. Similarly, Section 74 of the BPT Act deals with the enquiries to be the judicial enquiries and it states that al1 enquiries and appeals under this Act shall be deemed to be judicial proceedings within the meaning of Sections 193, 2 I 9 and 228 of the Indian Penal Code. Since Section 41 A does not contemplate any enquiry, the provisions of Sections 73 and 74 do not come into operation, and thus rules out the possibility of treating the power under Section 41 A being judicial in nature. 41. Since Section 41 A does not contemplate any enquiry, the provisions of Sections 73 and 74 do not come into operation, and thus rules out the possibility of treating the power under Section 41 A being judicial in nature. 41. It may not be out of place to point out at this stage that Section 36 of the BPT Act also does not expressly contemplate any enquiry to be made before reaching the satisfaction as envisaged by it Rule 25 of the Rules framed under the said Act specifically provides for making an enquiry before granting sanction or refusing it. In view of this, the Full Bench of this Court in its judgment rendered in the matter of Sailesh Developers and another v. Joint Charity Commissioner, Maharashtra, reported in 2007(3) Mh.L.J. 717 : [2007(4) ALL MR 100], has held that the Charity Commissioner under Section 36 of the BPT Act discharges judicial functions. The Rules framed under the said Act also do not contemplate any enquiry to be made in the matter under Section 41 A, like one which is contemplated in respect of Section 36 of the said Act. Hence, the nature of power exercised under Section 41 A of the BPT Act cannot be equated with the nature of power under Section 36 of the said Act. 42. Shri Chandurkar, the learned counsel for the petitioner, has relied upon several decisions of this Court in the cases of Lahudas Sambhaji Karad, Nathmal Kisanlalji Goenka, Asaram Bhimrao Shinde, [2002(3) ALL MR 555] Raghunath Motiram Patil, (2008(1) ALL MR 664) and Maroti Pundlikrao Satalkar, cited supra, to urge that the order passed under Section 41 A of the BPT Act is administrative in nature. I have gone through all those decisions. The basic principle laid down in these decisions s that the Charity Commissioner exercises purely administrative power under Section 41 A of the BPT Act and not judicial or quasi judicial power. It is on the basis of this principle, the Court has held that there cannot be an interference in respect of entitlement to vote by the members or in the election process. It has further been held that there is no power to appoint Receiver under Section 41 A of the BPT Act and the Charity Commissioner cannot appoint new trustees or remove trustees or appoint ad hoc Committee. It has further been held that there is no power to appoint Receiver under Section 41 A of the BPT Act and the Charity Commissioner cannot appoint new trustees or remove trustees or appoint ad hoc Committee. It has been held that there is no power under Section 41 A to dislodge trustees or to appoint Committee of Administrators. This is the consistent view taken by this Court, settling the law. To take a view that Section 41 A of the BPT Act confers a judicial or quasi judicial power upon the Charity Commissioner, would change the entire complexion of the situation. No doubt, all these decisions are rendered by the learned Single Judges of this Court. However, the jurisdiction of the learned Single Judges to decide such matter was not questioned and I agree with the finding that it is purely an administrative power, for the additional reasons, which are assigned. 43. Shri Sanyal, the learned counsel for the petitioner, has placed reliance upon the order passed by the Division Bench on 21-7-2008 in Writ Petition No.342 of2008 (Nanasaheb Vithobaji Tekade and another v. Dr. Dayaram Choudhari and others), wherein it has been held that the matter challenging the order passed under Section 41 A of the BPT Act is required to be decided by the learned Single Judge, as the order would be a quasi judicial order. The learned Single Judge of this Court had taken a view that it is a matter, which pertains to a Division Bench. Hence, he ordered the matter to be placed before the Division Bench. Before the Division Bench, there was no dispute raised as to whether the Charity Commissioner exercises quasi judicial powers or administrative powers under Section 41A of the BPT Act. In this background, the Division Bench has observed as under: "... It is not in dispute that the Charity Commissioner is a quasi-judicial Authority and therefore, the power exercised and order passed in the proceedings by the Charity Commissioner u/s. 41-A of the Act by necessary implication would be of quasi-judicial nature and in view of Rule 18(3), the petition would lie before the learned Single Judge. It is not in dispute that the Charity Commissioner is a quasi-judicial Authority and therefore, the power exercised and order passed in the proceedings by the Charity Commissioner u/s. 41-A of the Act by necessary implication would be of quasi-judicial nature and in view of Rule 18(3), the petition would lie before the learned Single Judge. It is open for the petitioner to move the learned Single Judge for further orders in the matter." It is apparent that there is no adjudication by the Division Bench on the question whether the power exercised is quasi judicial or administrative. The Division Bench has proceeded on the basis of the concession of law given by the counsels. Shri Sanyal, the learned counsel, has fairly conceded that this order does not lay down any ratio, which is binding upon this Court. He concedes to the position that the order is purely based upon the concession given by the counsels. Hence, the same is of no consequence. 44. For the reasons stated above, it is held that the Charity Commissioner exercises purely an administrative power under Section 41A of the Bombay Public Trusts Act, 1950 and not judicial or quasi judicial power. The Charity Commissioner, while exercising jurisdiction under Section 41 A of the BPT Act does not act as a court, juridicial or quasi judicial authority empowered to adjudicate or decide any dispute, contest or lis in any suit, judicial or quasi judicial proceedings. in view of this, the matter is not covered by the provisions of sub-rule (3) read with the Explanation below sub-rule (43) of Rule 18 under Chapter XVII of the Bombay High Court Appellate Side Rules, 1960. The Single Judge is, therefore, not competent to decide the writ petition under Article 226 or 227 of the Constitution of India challenging order passed under Section 41 A of the BPT Act, to issue a writ of certiorari for quashing of such order. 45. In the result, the writ petition is dismissed. Petition dismissed.