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Hasan Nurani Malak Vs. S.M. Ismail - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 380 of 1962
Judge
Reported in(1963)65BOMLR873; 1964MhLJ71
AppellantHasan Nurani Malak
RespondentS.M. Ismail
Excerpt:
bombay public trusts act (bom. xxix of 1950), sections 19 and 86 - madhya pradesh public trusts act (xxx of 1951), sections 3, 6, 7 and 8-previous decision made by registrar under act xxx of 1951 that trust not a public trust-whether such decision bars charity commissioner to hold enquiry under section 19 of bom. act xxix of 1950 in respect of same trust-finality whether given to decision of registrar under act xxx of 1951 that particular trust not a public trust-suit contemplated under section 8(1) of act xxx of 1951 whether for purpose of getting entry made in register.; a previous decision made by the registrar under the madhya pradesh public trusts act, 1951, holding that a particular trust is not a public trust does not take away the jurisdiction of the charity commissioner to hold..........to enquire into an application made by respondents nos. 2 to 5 under section 19 of the bombay public trusts act, 1950, hereinafter referred to as the new act.2. the question that arises for consideration is whether the assistant charity commissioner had jurisdiction to decide this application under section 19 of the bombay act or whether the previous decision made by the registrar under the madhya pradesh public trusts act (act xxx of 1951), holding that this particular trust is not a public trust takes away the jurisdiction of the charity commissioner to hold an enquiry under section 19 of the bombay act in respect of the same trust? the question arises thus:3. the petitioner before us hasan nurani malak is the son of late khan bahadur m.e.r. malak. sometime in october 1953,.....
Judgment:

Tambe, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India for the issue of a Writ of certiorari, or any other order or direction for quashing the order of the Assistant Charity Commissioner, Nagpur, respondent No. 1, made on September 6, 1962, wherein he has held that he has jurisdiction to enquire into an application made by respondents Nos. 2 to 5 under Section 19 of the Bombay Public Trusts Act, 1950, hereinafter referred to as the new Act.

2. The question that arises for consideration is whether the Assistant Charity Commissioner had jurisdiction to decide this application under Section 19 of the Bombay Act or whether the previous decision made by the Registrar under the Madhya Pradesh Public Trusts Act (Act XXX of 1951), holding that this particular trust is not a public trust takes away the jurisdiction of the Charity Commissioner to hold an enquiry under Section 19 of the Bombay Act in respect of the same trust? The question arises thus:

3. The petitioner before us Hasan Nurani Malak is the son of late Khan Bahadur M.E.R. Malak. Sometime in October 1953, one Jafar Bhai son of Hasan Ali made an application under the M.P. Act that the trust known as 'Mehdi-Bagh' founded at Nagpur in 1891 by Moulana Malak was a public trust within the meaning of the old Act. The Registrar, Public Trusts, Nagpur, by his order dated November 11, 1955, dismissed this application holding that Mehdi-Bagh is not a public trust and it requires no registration under the M.P. Act. It is well-known that the Vidarbha area in which Nagpur is located became part of the State of Bombay from November 1, 1956, by virtue of the States Reorganization Act and is now part of the State of Maharashtra by virtue of the Bombay Re-organization Act. The Legislature of the State of Bombay enacted the Bombay Trusts (Unification and Amendment) Act, 1959 (Act No. VI of 1960) with a view to extend the Bombay Public Trusts Act, 1950, to the rest of the State of Bombay, to provide for the repeal or cessation of certain corresponding laws in force in parts of the State relating to public trusts to which that Act is applied; and for those and certain other purposes further to amend that Act. Sub-section (2) of Section 1 provided that the Bombay Public Trusts (Unification and Amendment) Act, 1959, would come into force on such date as the State Government may, by notification in the Official Gazette, appoint. By virtue of the notification issued the Bombay Act came into force in Vidarbha area from February 1, 1961. The Bombay Act, namely, the Bombay Public Trusts Act, 1950, has been enacted to regulate and to make better provisions for the administration of public religious and charitable trusts in the State of Bombay. Section 18 of the Act makes it obligatory on, the trustees of the public trusts, to which this Act has been applied, to make an application for the registration of the public trusts. Section 19 also gives a right to a person having interest in the public trust to make an application and to the Deputy or Assistant Charity Commissioner to make an inquiry for the purposes of ascertaining:

(i) whether a trust exists and whether such trust is a public trust,(ii) whether any property is the property of such trust,(iii) whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction,(iv) the names and addresses of the trustees and manager of such trust,(v) the mode of succession to the office of the trustee of such trust,(vi) the origin, nature and object of such trust,(vii) the amount of gross average annual income and expenditure of such trust, and(viii) any other particulars as may be prescribed under sub-section (5) of section 18.

4. On March 2, 1962, respondents Nos. 2 to 5, who claimed to be persons interested in the alleged Mehdi-Bagh trust, filed an application before respondent No. 1, the Assistant Charity Commissioner, under Section 19 of the Bombay Public Trusts Act, (Act XXIX of 1950), wherein they prayed that an enquiry be made under Section 19 of the Bombay Public Trusts Act, 1950, and action as deemed fit he taken. To this application the petitioner before us was joined as a respondent and it was alleged that the trust property was in possession of the petitioner before us. On August 6, 1962, the petitioner raised a preliminary objection challenging the jurisdiction of the Court to proceed to enquire into the said application filed by respondents Nos. 2 to 5 under Section 19 of the Bombay Public Trusts Act. The contentions raised were two-fold. In the first instance, it was contended that the finding of the Registrar under the Madhya Pradesh Public Trusts Act, 1951, that Mehdi-Bagh was not a public trust had become final and conclusive by virtue of the provisions of the Madhya Pradesh Act. The petitioner, therefore, had acquired a vested right and that is saved to him under Section 86 of the Bombay Act. In the alternative it was contended that even if the said finding of the Registrar had not become final the proceedings were still pending under the Madhya Pradesh Act and the only remedy that the respondents would have to get that finding set aside is by filing a civil suit as provided in Section 8 of the Madhya Pradesh Act. The Assistant Charity Commissioner on these pleas framed the following preliminary issues:

Whether in view of the order of the Registrar of Public Trusts, Nagpur District, Nagpur, in case No. 153/XXXIII-9 of 1953-54 declaring Mehdi Bagh as not registrable under the Madhya Pradesh Public Trusts Act, 1951, the Assistant Charity Commissioner, Nagpur Region, Nagpur, is not precluded from holding an enquiry under section 19 of the Bombay Public Trusts Act, 1950?

By his order dated September 6, 1962, respondent No. 1 held that the enquiry under Section 19 of the Bombay Public Trusts Act was not barred and further directed that enquiry into the application under Section 19 of the Bombay Public Trusts Act, filed by respondents Nos. 2 to 5 shall proceed. It is this order of respondent No. 1 that the petitioner seeks to get quashed by this petition.

5. The argument of Mr. Bobde is founded on certain provisions of the Madhya Pradesh Act and the Bombay Act. It would, therefore, be convenient to refer to these provisions before, we proceed to deal with the contentions raised by Mr. Bobde before us. As already stated, the Madhya Pradesh Act was enacted to regulate and make better provisions for the administration of public religious and charitable trusts in the State of Madhya Pradesh, Section 2(4) defines 'public trust' as meaning:.an express or constructive trust for a public religious or charitable purpose and includes a temple, a math, a mosque, a church, a wakf or any other religious or charitable endowment and a society formed for a religious or charitable purpose.

Sub-section (5) defines, 'register' to mean 'a register maintained under subsection 3 of the Act.' Section 3 reads:

3.(1) The Deputy Commissioner shall be the Registrar of public trusts in respect of every public trust the principal office or the principal place of business of which as declared in the application made under Sub-section (3) of Section, 4 is situate in his district.

(2) The Registrar shall maintain a register of public trusts, and such other books and registers and in such form as may be prescribed.

Section 4 makes it obligatory on the working trustee of every public trust, to apply to the Registrar having jurisdiction for registration of the public trust and also indicates the particulars which have to be mentioned in such application. Sub-section (5) provides that on receipt of an application under Section 4(1), or upon an application made by any person having interest in a public trust or on his own motion, the Registrar shall make an enquiry in the prescribed manner for the purposes of ascertaining:

(i)whether the trust is a public trust,

(ii) whether any property is the property of such trust,

(iii) whether the whole or any substantial portion of the subject-matter of the trust is situate within his jurisdiction,

(iv) the names and addresses of the trustees and manager of such trust,

(v) the mode of succession to the office of the trustee of such trust,

(vi) the origin, nature and object of such trust,

(vii) the amount of gross average annual income and expenditure of such trust, and

(viii) correctness or otherwise of the particulars furnished under Sub-section (3) of Section 4.

6. Sub-section (2) of Section 5 provides that the Registrar shall give in the prescribed manner public notice of the inquiry proposed to be made under Sub-Section (1) and invite all persons interested in the public trust under inquiry to prefer objections, if any, in respect of such trust. Section 6 provides that on completion of the inquiry provided for under Section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said section. Section 7 runs:

7.(1) The Registrar shall cause entries to be made in the register in accordance with the findings recorded by him under Section 6 and shall publish on the notice board of his office the entries made in the register.

(2)The entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive.

Section 8 reads:

8.(1) Any working trustee or person having interest in a public trust or any property found to be Trust property, aggrieved by any finding of the Registrar under Section 6 may, within six months from the date of the publication of the notice under Sub-section (1) of Section 7, institute a suit in a civil court to have such finding set aside or modified.

(2)...

(3) On the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision.

We have already referred to the Bombay Public Trusts (Unification and Amendment) Act, 1959, (Act No. VI of 1960). By the same enactment Section 86 and Schedule AA were introduced into the Bombay Public Trusts Act, 1950. The part of the said Section 86, material for purposes of this case is in following terms:

86. (2) On the date of application of the provisions of this Act to any public trust or class of public trusts under Sub-section (4) of Section 1 (hereinafter in this section referred to as the said date), the provisions of the Acts specified in Schedule AA which apply to such trust or class of trusts shall cease to apply thereto.

(3) Save as otherwise provided in this section, such repeal or cessation shall not in any way affect-

(a)

(b) any right, title, interest, obligation or liability already acquired, accrued or incurred before the said date under the laws hereby repealed or ceasing to apply;

(c) any legal proceedings or remedy in respect of such right, title, interest, obligation or liability:

Provided that if on the said date, any legal proceeding in respect of any public-trust is pending before any court under any enactment specified in Schedule AA to which the State Government., is a party....

(4) Notwithstanding anything contained in Sub-section (3), all proceedings pending immediately before the said date before any authority (other than a court) under any enactment specified in Schedule AA shall be continued and disposed of under that enactment as if the Bombay Public Trusts (Unification, and Amendment) Act, 1959, had not been passed.

Item No. 4 in Schedule AA is the Madhya Pradesh Public Trusts Act, 1951.

7. It is the contention of Mr. Bobde that application has been previously made by one Jafar Bhai, a person having interest in the Mehdi Bagh trust before the Registrar for holding an enquiry in respect of the matters stated in Section 5 of the Madhya Pradesh Act, and the Registrar had held an enquiry under Section 6 of the Act. The Registrar had recorded a finding under Section 6 that Mehdi Bagh was not a public trust. Under Section 7 it was obligatory on the Registrar to make an entry in respect thereof in accordance with the said finding in the register. The finding becomes final and conclusive under Section 7 subject to the decision of a civil suit provided for in Section 8 of the Madhya Pradesh Act. The Registrar's order was passed on November 11, 1955. Six months from that order had long since expired. No suit has been filed either by Jafar Bhai or any person having any interest in the Mehdi Bagh trust. There is, therefore, a finality attached to the said finding of the Registrar. It is, therefore, a right acquired within the meaning of Clause (b) of Sub-section (3) of Section 86 of the Bombay Public Trusts Act, 1950, and therefore the jurisdiction of the Charity Commissioner to enquire into the present application under Section 19 of the Bombay Public Trusts Act is barred.

8. Mr. Mangalmurti appearing for respondents Nos. 2 to 5 as well as Mr. Mudholkar, Additional Government Pleader, appearing for respondent No. 1, on the other hand, contend that Section 19 casts an obligation on the Charity Commissioner to enquire into the application made under Section 19 of the Bombay Act. An application has been made by respondents Nos. 2 to 5 before the Charity Commissioner. He has, therefore, jurisdiction to proceed and enquire into the application. The decision obtained by the petitioner in the former proceedings under the Madhya Pradesh Act that Mehdi Bagh is not a public trust does not amount to a right acquired within the meaning of Section 86(5)(6) of the Bombay Act, Whether the decision operates as res judicata or not is a matter for the Charity Commissioner to decide.

9. Now, in our opinion, if Mr. Bobde's contention that the finality has been given to the finding of the Registrar that Mehdi Bagh is not a public trust is correct, then it cannot be disputed that the petitioner has acquired a vested right and the right has accrued to the petitioner under the Madhya Pradesh Act to have the finality given to that decision within the meaning of Section 86(5)(b) of the Bombay Act. The view taken by us finds support from the decision of their Lordships of the Judicial Committee of the Privy Council in Delhi Cloth Mills v. I.T. Commr. . The question that was raised before their Lordships in brief was whether the petitioner before their Lordships had a right of appeal against the order of the High Court made in an income-tax reference, Upto 1926 till the Income-tax Act of 1922 was amended in 1926, there was no appeal provided against the decision of the High Court. The Amending Act, however, provided for such an appeal. Taking advantage of the amendment the assessee sought to move the Privy Council by an appeal under the provisions of the new Act in respect of a decision given prior to the amendment. A contention was raised on behalf of the Income-tax Commissioner that the appeal was not tenable inasmuch as the amending statute could not be said to have retrospective effect so as to deprive the Income-tax Department of the right accrued to them by reason of the finality given, by the statute to the decision of the High Court. This contention of the Income-tax Department was upheld by their Lordships. At page 244, their Lordships observed:.where it is in effect laid down that, while provisions of a statute dealing merely with matters of procedure may properly, unless that construction is textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date when it came into force, it must be clearly so provided.

Their Lordships further held that finality was attached to the decision of the High Court under the provisions of Income-tax Act prior to its amendment.

10. The question that, therefore, arises is whether finality has been given to the decision of the Registrar holding that a particular trust is not a public trust. We have already reproduced the relevant provisions of the Madhya Pradesh Act above. We do not find any express provision in. this Act which gives a finality to a finding. On the other hand, the statute in express terms gives finality to the entries made in the register as required by Sub-section (7) of Section 7 of the Act. The question then is whether a finding which is negative in nature that the alleged trust is not a public trust is a finding which is required to be transmitted to register under Section 7. 'Register' has been defined as 'register' to be maintained under Sub-section (2) of Section 3 of the Act and when we turn to Sub-section (2) of Section 3 of the Act there is only the register which the statute itself makes it obligatory to be filled in accordance with the finding of the Registrar and that is the register of public trusts. The Registrar, no doubt, is enjoined with a duty to make entries in other registers as may be prescribed. But then unless and until other registers are prescribed by the authority that is empowered to prescribe the registers, it cannot be said that there is any obligation on the Registrar to incorporate any particular finding into the registers, save and except his finding that the particular trust is a public trust. Now, Sub-section (3) of Section 2 defines the expression 'prescribed', as prescribed by rules made under this Act. Section 35 empowers the State Government to make rules for purposes of carrying into effect the provisions of this Act and Clause (a) of Sub-section (2) in terms empowers the State Government to make rules relating to the form of register of public trusts and the registers and books to be maintained by the Registrar under Sub-section (2) of Section 3 and their form. In exercise of their powers the State Government have framed rules as published in the Madhya Pradesh Gazette of May 22, 1953. Rule 3 provides that there shall be maintained in the office of every Registrar of Public Trusts (i) a Register of Public Trusts in Form I, and (ii) a Register of all Properties of Public Trusts in Form II, in respect of public trusts registered in his district under this Act. Rule 7 provides that any Deputy Commissioner receiving under Section 10 copies of entries in regard to immovable property situate within his district of public trusts registered in any other district shall keep an abstract of such entries in a register maintained in Form VI. Rule 8 provides that there shall be maintained in the office of the Registrar a register of decisions of Courts relating to public trusts in Form VII. It is thus clear that the obligation on the Registrar is to maintain only four registers, namely, (1) Register of Trusts, (2) Register of Properties of the Public Trust, (3) Register relating to the immovable property situate within his district of public trusts registered in any other districts and (4) Register of decisions of the Courts relating to the public trusts. There is no obligation on the Registrar to make any findings other than the findings on the aforesaid four matters. In our opinion, therefore, on true construction of Sections 3, 6 and 7 no finality has been given to a finding of the Registrar holding that any particular trust is not a public trust. It is indeed true that Section 8 read by itself gives an impression that the duty is cast on a party against whom a decision has been adversely given to file a suit within six months and the finding could either be that the particular trust is a public trust or that it is not a public trust. But it would not be proper to read that Section 8 by itself. It has to be read in context of the other provisions of the Act. The well-settled principle is that the statute has to be construed as a whole. Further, there is an in diction in Sub-section (1) of Section 8 itself which shows that the suit contemplated in sub-section (1) of Section 8 relates only to such findings that the law requires to he transmitted to the registers required to be maintained under the provisions of the Act. In other words, our conclusions find further support from Sub-section (3) of Section 8 which indicates that the suit contemplated by Sub-section (7) of Section 8 relates only where an entry has been made in the register. The suit contemplated under Section 8 is the suit for the purpose of correction of the entries made in the register. It indicates that no suit is contemplated to be filled under Section 8 for the purposes of getting an entry made in the register.

11. Now having regard to the object and subject-matter of the enactment also, it appears that the registers which the Act requires to be maintained by the Registrar are only such registers relating to a public trust and its properties, where the Registrar comes to the conclusion that the particular trust is a public trust. The Act is intended to regulate and make better provisions for the administration of public religious and charitable trusts in the State, Trusts, which have been found not public trusts, are completely beyond the purview of the Act and, therefore, there is no necessity of maintaining any registers as such in respect of the findings declaring particular trusts to be not a public trust. In view of our aforesaid finding, the second contention of Mr. Bobde before the Registrar, and also before us, would not survive, as the second contention was founded on an argument that it was obligatory on the Registrar to maintain a register and enter into that register his findings that a particular trust is not a public trust. If we had agreed with Mr. Bobde that it was obligatory on the Registrar to maintain such registers, we would have no difficulty in holding that the mere fact that the Registrar has not entered into the findings into the register would deprive the petitioner of his rights. We would have in that case held that the proceedings were still pending before the Registrar for the purposes of making an entry into the register, which would, in its turn, give a right to the other side to file a civil suit. For the reasons stated above, in our opinion, therefore, respondent No. 1 was not in error in holding that he had jurisdiction to proceed with the application made by respondents Nos. 2 to 5 under Section 19 of the Bombay Public Trusts Act. It must not be understood that our decision is that the prior decision does not operate as res judicata. We express no opinion as to whether the prior-decision operates as res judicata or operates as a bar on principles analogous to res judicata or not in the proceedings under Section 19 of the Act. That will be a matter for respondent No, 1 to decide if such a contention is raised before him. All that we say is that the jurisdiction of respondent No. 1 to enquire into the application under Section 19 is not taken away by reason of the prior decision.

12. Mr. Bobde also has referred us to the decisions reported in Keshav Ganashyam v. Waman Rangaji : AIR1953Bom340 , Gor v. Raval (1950) 53 Bom. L.R. 174 and Iswarananda Bharathi Swami v. Commissioners, H.R.E. Board I.L.R. (1931) Mad. 928. In our opinion, these decisions are distinguishable on facts.

13. The facts of Keshav Ganashyam v. Waman Rangaji were that the petitioner had filed a suit in the Court of Small Causes to recover a debt. The debtor had previously sought relief under the Bombay Agricultural Debtors Relief Act and the relief had been granted to him. A plea, therefore, was raised that the debt was extinguished by virtue of Section 15 of the Bombay Agricultural Debtors Relief Act and the question that was considered was whether the debt of the plaintiff was extinguished by virtue of the provision of Section 15 of the Act. On the construction of the said section, it was held that the debt was extinguished. It is to be noticed that the jurisdiction of the Court to decide the issue whether the debt was extinguished or not, was not a matter for consideration before this Court. We have already said, that whether the prior decision operates as res judicata or a bar on principles analogous to res judicata is a matter for the Court to decide and is not a matter decided by us in this case.

14. The case Gor v. Raval was a case between a landlord and a tenant and the question which arose was whether the previous decision was binding in a subsequent proceeding. The question of jurisdiction of the Court was not raised. The facts of Iswarananda Bharathi Swami v. Commissioner, H.R.E. Board, were that the plaintiff sued for a declaration that the building in which he resides and in which the worship of the deity was performed is not an institution to which the Madras Hindu Religious Endowments Act (II of 1927) applies. This suit was filed on April 17, 1928. Prior to the institution of the suit, the Religious Endowments Board, after giving notice to the plaintiff and holding an enquiry held that the particular property was the trust property within the meaning of the Madras Hindu Religious Endowments Act. A question was raised whether the suit was maintainable or a recourse ought to have been had to the District Court by an application as provided under Sub-section (2) of Section 84 of that Act. It was held that Sub-section (2) of Section 84 having given a finality to the decision subject to an application to the District Court, the suit was barred. We have, for reasons already stated, held that there was no finality attached to the finding of the Registrar holding that the particular trust was not a public trust. The decision would, therefore, have no application.

15. Mr. Bobde has also referred to an unreported decision of the Madhya Pradesh High Court in Mahant Manohardas Guru Gopaldas v. Registrar, Public Trusts, Hoshangabad (1962) Miscellaneous Petition No. 298 if 1962. The decision lends support to the contention of Mr. Bobde. It has been held therein by the Madhya Pradesh High Court that a finding that particular trust is not a public trust has to be challenged only by way of a suit under Section 8 and not by way of another application under the same Act. With respect, we find it difficult to take a similar view for reasons stated above.

16. In the result, the petition fails. The rule is, therefore, discharged with costs.

17. The petitioner prays that a certificate under Article 133(1)(c), Constitution of India, be granted. The oral application for grant of certificate is rejected.


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