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2011 DIGILAW 402 (BOM)

Nathmal Tannalal Janu v. Bansilal Chandulal Jaju

2011-03-30

A.B.CHAUDHARI

body2011
Judgment :- ORAL JUDGMENT 1. This appeal is directed against the judgment and order dated 18.11.1991, passed by the Additional District Judge, Washim in Misc. Judicial Case No.8/1989, confirming the judgment and order dated 12.2.1986, passed by the Joint Charity Commissioner, Aurangabad in Revision Petition No.87/1980 as well as the first order dated 3.8.1970, passed by the Assistant Charity Commissioner, Akola Region, Akola holding Shri Laxminarayan Mandir, Sansthan, Malegaon, Tq. Washim to be a public Trust and thus directing its registration under the Bombay Public Trusts Act, 1950. 2. Having heard learned Counsel for the rival parties, following substantial questions of law arise for consideration. (i) Whether the Assistant Charity Commissioner, Akola Region, Akola before making the impugned order dated 3.8.1970 was right in not issuing notices to all the trustees of Shri Laxminarayan Mandir Sansthan, Malegaon and then whether the Courts below were justified in upholding non-issuance of notices to all the trustees on the ground that Rule 7 A of the Bombay Public Trusts Rules, 1951 for the first time came into existence w.e.f. 2.6.1972 regarding publication of public notice i.e. before passing of the impugned order dated 3.8.1970 ? (ii) Whether the Assistant Charity Commissioner, Akola Division, Akola held Shri Laxminarayan Mandir Sansthan, Malegaon as a public Trust without making legal and proper enquiry and without obtaining necessary and required evidence for deciding the nature of the Trust as a public Trust or as a private Trust ? 3. In support of the aforesaid two substantial questions of law, learned Counsel for the appellants vehemently argued that even assuming that Rule 7 A of the Bombay Public Trusts Rules was written in the statute book w.e.f. 2.6.1972, the principles of natural justice were required to be followed since there were four trustees of the private Trust -Shri Laxminarayan Mandir Sanstha, Malegaon by name Bansilal Chandulal, Mannalal Hiralal, Tulsiram Rampratap and Ramlal Hiralal, who were managing the affairs of the Mandir and the said private Trust. Admittedly, except Bansilal Chandulal and some tenants on the agricultural land held by Deosthan the other trustees were never given notice of intention to declare the said private Trust as public Trust. According to learned Counsel for the appellants the proceedings held by the Assistant Charity Commissioner and consequent order dated 3.8.1970, passed by the Assistant Charity Commissioner, Akola Region, Akola are in violation of rule of audi alteram partem. 4. According to learned Counsel for the appellants the proceedings held by the Assistant Charity Commissioner and consequent order dated 3.8.1970, passed by the Assistant Charity Commissioner, Akola Region, Akola are in violation of rule of audi alteram partem. 4. Learned Counsel for the appellants then argued that the Assistant Charity Commissioner committed an error in reading 'no objection' of Shri Bansilal in the written statement out of context. According to him, the temple is private and also the Trust is private Trust. It cannot be declared as a public Trust in the absence of required proof, inter alia, namely existence of characteristics of a public temple or public Trust. In the absence of these materials, according to him, the said declaration is wrong and illegal. The appellate Court also committed an error in confirming the said order of the Assistant Charity Commissioner. 5. Learned A.G.P. for respondent No.2 argued that no substantial question of law arises and the Assistant Charity Commissioner has acted in accordance with the prevailing law and cannot therefore be blamed for non-issuance of notices to all the trustees. She supported the impugned judgments and orders. Learned Counsel for respondent No.1 adopted the submissions made by learned Counsel for the appellants. 6. I have gone through the impugned judgments and orders recorded by the Courts below. From the submissions made by the learned Counsel for the appellants it appears that Shri Laxminarayan Mandir Sansthan, Malegaon had 71 acres of land and in his submission now about 20 acres of land has gone in the possession of tenants as a result of the effect of the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Remaining 41 acres land has now only remained with the Trust. It appears from the proceedings conducted by the Assistant Charity Commissioner that Bansilal was asked to make an application for registration of Public Trust for registering the said Shri Laxminarayan Mandir Sansthan as a public Trust. It further appears that Bansilal was the person who was physically looking after the affairs of the Trust and that is why he was asked to file application though it appears that the Assistant Charity Commissioner very well knew that these all the four trustees were looking after the Trust. It may be that other three trustees might not be looking after the day-to-day affairs of the Trust but that makes no difference. It may be that other three trustees might not be looking after the day-to-day affairs of the Trust but that makes no difference. Whether Rule 7 A of the Bombay Public Trusts Rules, 1951 was brought into existence w.e.f. 2.6.1972 or no such provision was available at the relevant time is not relevant because the principles of natural justice require that all the concerned persons should be heard before any adverse order is passed. 7. I, therefore, find that it would make no difference whether at the relevant time Rule 7 A of the Bombay Public Trusts Rules existed or not. In the case of Mohinder Singh Gill and another...Versus...The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 Supreme Court 851 at page 870, the Hon'ble Justice V.R. Krishna Iyer speaking for the Bench observed thus. Indeed, natural justice is a pervasive facet of secular law where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life. It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam-and of Kautilya's Arthasastra- the rule of law has had this stamp of natural justice which makes it social justice. 8. In my opinion, thus it was for the Assistant Charity Commissioner to follow the principles of natural justice and issue notices to all the trustees. Merely noticing Bansilal was not sufficient. I, therefore, hold that the Assistant Charity Commissioner committed an error in making the impugned order dated 3.8.1970 in breach of principles of natural justice. Consequently, I answer question No.1 in the negative. 9. As to the manner of declaration of Shri Laxminarayan Mandir Sansthan, Malegaon as a public Trust, at the outset, from the judgment of the Assistant Charity Commissioner, Akola and from the judgment of the appellate Court, I find that the same was not at all legal, proper and satisfactory. To change the status of a private temple Trust as a public Trust, in my opinion, is a serious matter as it deprives civil right of the parties. Some of the following tests are required to be applied. 10. To change the status of a private temple Trust as a public Trust, in my opinion, is a serious matter as it deprives civil right of the parties. Some of the following tests are required to be applied. 10. To begin with, Section 2(13) of the Bombay Public Trusts Act is the definition of the public Trust, which is inclusive. In addition, following criterion are also required to be considered. The historical origin of a temple, the manner in which the affairs of the temple have been managed, the nature and extent of the gifts received by the temple, the rights exercised by the devotees in regard to the worship in the temple, the consciousness of the manager and the consciousness of the devotees themselves _ these and similar other considerations have to be weighed in deciding the question as to whether a temple is public or private... Those principles are that the dedication of a temple for the benefit of the public has to be proved. Facts and circumstances in order to be accepted as sufficient proof of dedication of the temple as a public temple, must be considered in their historical setting and dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Dedication cannot be deducted from the fact of user by the public. The value of public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. Further, it is not enough to deprive a person of his private property to show that Hindus willing to worship have been allowed or even that the deity has acquired considerable popularity among Hindus of the locality or amongst persons resorting to annual mela. Worshippers are naturally welcome at a temple because of the offerings they bring and the repute they give to the idol; they do not have to be turned away on pain of forfeiture of the temple property as having become property belonging to a public trust. It is common knowledge that even private temples are kept open for the public in the sense that the members of the public go to the temple by leave and licence....” 11. It is common knowledge that even private temples are kept open for the public in the sense that the members of the public go to the temple by leave and licence....” 11. Thus, from the above, it is clear that several characteristics are required to be considered while declaring a private temple as a public temple. None of them have been considered by the learned Assistant Charity Commissioner. The Assistant Charity Commissioner, however, relied on the so called admission of Bansilal who had merely stated that if the Assistant Charity Commissioner wanted to declare the said temple as a public temple, the mode of succession should be hereditary. In my opinion, in the first place, Bansilal had no competency on behalf of all the trustees to give 'no objection'. Therefore, 'no objection' given by Bansilal could not bind the other trustees. And secondly, his statement could not be taken as admission. 12. Whether a particular temple is a private temple or public temple or public Trust or a private Trust is a matter to be carefully scrutinized by the Assistant Charity Commissioner on the basis of evidence and several characteristics required to be taken into consideration and not on what Bansilal stated. In other words, it was the duty of the Assistant Charity Commissioner to apply the settled principles for declaring the private temple as a public temple. That having not been done, in my opinion, the Assistant Charity Commissioner went wrong. Another evidence considered by the Assistant Charity Commissioner is that of tenants on the land of the Trust. In my opinion, all these tenants were interested persons since they were in possession of the lands of Sansthan and they did not want that the lands should be taken away from them. To rely on the testimony of such tenants and to declare the private temple as a public temple was risky and the Assistant Charity Commissioner should not have merely believed their versions. As a matter of fact, the Assistant Charity Commissioner should have taken into consideration the above stated parameters to find out the nature of the Trust. For all these reasons, therefore, question No.2 will have to be answered in the affirmative. 13. As a matter of fact, the Assistant Charity Commissioner should have taken into consideration the above stated parameters to find out the nature of the Trust. For all these reasons, therefore, question No.2 will have to be answered in the affirmative. 13. The net result of the above discussion is that the matter now must go back to the Assistant Charity Commissioner, Washim Region, District Washim for making fresh enquiry, who shall hold an enquiry according to law and in the light of the observations made herein above. 14. Since Shri Laxminarayan Mandir Sansthan, Malegaon was declared as a public Trust under the impugned judgment and order, learned Counsel for the appellants upon taking instructions from his clients has filed an undertaking that for the remaining 41 acres of land @ Rs.1,000/- per year i.e. total Rs.41,000/-every year shall be deposited with the Assistant Charity Commissioner, Washim, who shall immediately invest the same in fixed deposit in a nationalized bank and allow the appellants to collect the interest on the said amount for spending the same for the welfare of the temple and for maintenance. 15. First amount i.e. Rs.41,000/- (Rupees Forty One Thousand Only) shall be deposited on or before 30.05.2011 and shall be invested in the fixed deposit in any Nationalized Bank for a period of one year and shall be continued to be renewed till the completion of the proceedings. The amount of interest accrued on these deposits shall be given to the appellants/trustees for taking care of the temple and maintenance and so on and so forth every year. 16. The Assistant Charity Commissioner shall issue a public notice in the concerned area by taking recourse to Rule 7 A of the Bombay Public Trust Rules and invite suggestions with objections from the public at large in the matter of proceedings for declaration of Shri Laxminarayan Mandir Sansthan, Malegaon as a public Trust. 17. The trustees who are before me need not be given separate notice since this Court is fixing the next date of hearing before the Assistant Charity Commissioner, Washim Region, Washim, where the trustees shall appear and file evidence etc. as the case may be, within a period of three months from the date of appearance. 18. The trustees shall appear before the Assistant Charity Commissioner, Washim Region, Washim on 30.04.2011. 19. as the case may be, within a period of three months from the date of appearance. 18. The trustees shall appear before the Assistant Charity Commissioner, Washim Region, Washim on 30.04.2011. 19. The Assistant Charity Commissioner, Washim Region, Washim on that date shall hear the trustees and then take further steps to issue public notice and proceed in accordance with law. 20. The Assistant Charity Commissioner, Washim Region, Washim shall complete the proceedings within a period of one year from the date of appearance of the parties i.e. 30.04.2011. With these observations, first appeal is disposed of. No order as to costs. Registrar (Judicial) to comply immediately.