1. This is an appeal from the judgment delivered by mukhi, J., on 7th/8th Jan. 1976, in first Appeal No.666 of 1973 , in first Appeal No.666 of 1973 in this court. It is the agreed position that, although respondents Nos. 10 to 12 have not been served, as no Bhatta has been paid for serving them, they are not necessary parties for the disposal of this appeal. At the hearing it appeared that the disposal of this appeal might involve a question affecting a public charitable purpose and hence notice should be given to the charity Commissioner, Bombay, regarding this appeal. Mr.kotwal, the learned Government pleader, has taken instructions from the charity commissioner and is appearing for the learned charity commissioner before us and hence no formal notice need to given to the charity commissioner. As there is no dispute regarding the order which should be passed in this appeal, it is necessary to set out only very briefly the relevant facts.
2. On 27th Oct, 1967, Dhanaji Fakira mokashi, appellant No.1 herein , filed an application under S. 18 of the Bombay public Trusts Act, 1950(referred to hereinafter as 'the said Act') before the Assistant charity commissioner , Nasik Region, Nasik for registration of 'Koli Gramsevak samiti, Vitave' (referred to hereinafter as 'the said alleged trust') as a public trust under the said Act. By his order dated 30th Jan. 1969, the Assistant charity commissioner ordered that the said alleged trust be registered as a public trust under the said Act and the necessary certificate issued. The said order also determined that the properties mentioned in the application made by appellant No.1 belonged to the said alleged trust. Respondents 1 to 3, who claim to be the owners of the land bearing survey No.363, Hissa No.1/1, being one of the properties held to belong to the said alleged trust, filed a revision application under S.70 of the said Act before the charity commissioner , Bombay . This revisional application was disposed of by the Deputy charity commissioner with appellate powers, by his order dated 12th June, 1972 . The Deputy charity commissioner partially allowed the revision application and set aside the order and findings of the Assistant charity commissioner in respect of the land bearing survey No.363, Hissa No.1/1 and remanded the matter back for a fresh hearing on the question whether the said land was the property of the said alleged trust. On the other questions the learned Deputy charity commissioner confirmed the findings of the learned Assistant charity commissioner. Respondents 1 to 9 then filed an appeal by way of a miscellaneous application under S.72 of the said Act in the court of the learned District Judge, Thana. This appeal was numbered as miscellaneous Application No.156 of 1972 and was disposed of by the learned Assistant Jduge, Thana. The learned Assistant Judge held that the appeal or application before him was restricted only to one composite question ,viz, whether the said alleged trust really existed and whether it was a public trust within the said Act, and the question had not been decided by the learned Deputy Charity commissioner. On this footing the learned Assistant Judge held that the appeal or application before him under S.72 (1) of the said Act was not maintainable. Respondents 1 to 9 preferred the said Appeal No.666 of 1963 referred to earlier against this order.
3. Mukhi, J. Before whom the said appeal came up for hearing, set aside the order and judgement of the learned Assistant Judge, Thana, the order and judgment of the Deputy charity commr. In the aforesaid revisional application, as well as the order and judgment of the Assistant charity commissioner passed on the application made by appelant No.1 herein. In the course of his judgment Mukhi, J., has rightly pointed out the an application ,such as the one which was made by appellant No.1 herein, should not have been disposed of by the learned Assistant charity commissioner. It should be appreciated that very often persons who are interest in properties which are alleged in an application under S.18 of the said Act to belong to a public notice issued by way of a newspapers advertisement and hence, even if the application is disposed of without contest, it is desirable that the Assistant charity commissioner or the Deputy charity commissioner, who disposes of the same, should apply his mind and determine as to whether (1) a trust existed on the date of the application, (2) the said trust was a public trust, and (3) the properties mentioned in the application belonged tp the said paid public trust. On these points none of the counsel before us has disputed the correctness of the judgment of mukhi, J.
4. However, it was urged by Mr. Inamdar that Mukhi, J. Was in error, when he rejected the request made by the appellants that the matter should be remanded back to the Assistant charity commissioner for a fresh enquiry and determination on the basis of the said application dated 27th october, 1967 under S.18 of the said Act, because if this was not done, and the appellants had to file a fresh application, complications might arise in respect of the intervening transactions. Mr.Tipnis has fairly agreed that this difficulty may arise if the appellants are compelled to make a fresh application under S.18, if they so think fit, in view of this , we set aside the judgment of mukhi, J. , in so far as he has rejected the application of the appellants for remanding the matter to the learned Assistant charity commissioner for disposal afresh of the said application dated 27th oct., 1967, according to law.
5. In the result, the appeal is allowed only to the aforesaid extent and the matter is remanded to the learned Assistant charity commissioner for disposal according to law of the application dated 27th oct., 1967 , made under S.18 of the said Act. There will be no order as to the costs of this appeal as between the appellants and the respondents. The order for costs passed in respect of the other proceedings by Mukhi, J. Shall , however , stand, The costs of the learned charity commissioner fixed at Rs.120/- to come out to the funds of the funds of the said alleged trust.
6. Mr. Inamdar states that his clients intend to apply for an amendment of the said application dated 27th oct., 1967, by giving further and between particulars therein That, application for amendment will, of course, have to be decided by the learned Assistant charity commissioner according to law. It is agreed between all the parties that the said application dated 27th oct., 1967, will be heard completely afresh and right from the commencement.
7. Order accordingly.