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Kalikadevi and ors. Vs. Shivasaharanand Sadhu Maharaj and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 3412 of 1984
Judge
Reported inAIR1986Kant186; ILR1985KAR2647; 1985(2)KarLJ327
ActsBombay Public Trusts Act, 1950 - Sections 79 and 80; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantKalikadevi and ors.
RespondentShivasaharanand Sadhu Maharaj and ors.
Appellant AdvocateG.D. Shirgurkar, Adv.
Respondent AdvocateJ.S. Gunjal, Adv.
Excerpt:
trusts and societies - jurisdiction - bombay public trusts act, 1950 - revision petition against order referring certain issues to assistant charity commissioner (acc) for recording its finding on said issues - whether trial court justified in referring issues to acc - provisions of act excludes jurisdiction of civil court from entertaining said issues - no provision contained in act enabling civil court to refer such issues to deputy charity commissioner or acc - impugned order cannot be sustained - trial court erred in referring said issues to acc - revision petition allowed. - constitution of india -- articles 226 & 227: [deepak verma & b. sreenivasa gowda, jj] challenge as to orders passed by the district consumer forum and the state commission - availability of alternative remedy -..........is concerned. at the same time, this prayer cannot oriented until the issue as to whether the suit property is a property of the public trust is decided. in such a situation, property course to adopt is to stay the suit to enable the plaintiff/plaintiff or defendant/defendants, as the case may be to make an appropriate application before the deputy or assistant charity commissioner to decide as to whether the property which 'is claimed to be the property of public trust in the suit is or is not, the public trust property and produce the decision of the deputy or assistant charity commissioner in the suit, thereafter proceed with the suit in accordance with law. in the first instance, the suit may be stayed for a period of two months and the plaintiff/plaintiffs or defendant or.....
Judgment:
ORDER

1. This, Civil Revision Petition is preferred under S. 115 of the C.P.C., against the Order dt. 8th Aug. 1984, passed by the learned Civil Judge, Bailhongal, in O.S. No. 38/81, referring issues Nos. 4, 5 and 13 to the Assistant Charity Commissioner, Belgaum for recording his findings on those issues and also staying further proceeding in the suit until the findings are received.

2. The contention of the petitioners is that there is no provision in the Bombay Public, Trusts Act, 1950, (hereinafter referred to as the 'Act') enabling Civil Court to refer the issues to the Assistant Charity Commissioner. Therefore, the order under Revision is without jurisdiction.

3. The petitioners are plaintiffs. The first plaintiff 'Sri Kalikadevi of Shirsangi' is a public trust registered under the provisions of the Act. Plaintiffs 1A to 1D are the trustees of the first plaintiff-public trust. The suit is for a declaration that the Chariot or the Ratha constructed or got ready by defendant No. 1 and others for and in the name of first plaintiff is the property of the public trust. They have also sought for possession and custody of the Chariot from defendants 1 and 16 and further restraining defendants 1 to 13 and 16 from holding Rathothsava or taking out any procession of the Chariot in the name of Sri Kalamma alias Sri Kalikadevi deity of Shirsangi either on the Gouri Hunnime day or on any other day. The defendants are contesting the suit. Several issues are framed in the suit. Out of them, issues Nos. 4, 5 and 13 are referred to the Assistant Charity Commissioner, Belgaum, by the order under Revision, for recording his findings, on those issues.

4. The question for consideration is whether the trial Court is right in referring the issues in question to the Assistant Charity Commissioner.

5. Section 18 of the Act provides for it registration of public trusts. It makes incumbent upon the trustee of a public trust to make an application for registration of the public trust. It also provides for the particulars that are required to be furnished in the application.

Section 19 of the Act provides for the inquiry for registration The Deputy or Assistant Charity Commissioner is required to hold an inquiry in the prescribed manner for the purpose 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-sec. (5) of S. 18 of the Act.

Section 20 of the Act further provides that on completion of the inquiry provided for under S. 19 of the Act, the Deputy or Assistant Charity Commissioner shall have to record his findings with the reasons therefore as to the matters, mentioned in S. 19 of, the Act and make an order for payment of the registration fee.

Sub-sec. (1) of S. 79 of the Act provides that any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. Sub-sec. (2) thereof makes the decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as the case may be final and conclusive unless it is set aside by the decision of the Court on application or of the High Court in appeal.

Section 80 of the Act excludes the jurisdiction of the Civil Court from deciding the questions which are required to be decided the questions which are required to be decided or dealt with by any officer or authority under the Act in respect of which the decision or order of such officer or authority has been made final and conclusive.

6. While referring to S. 79, of the Act, it is noticed that the decision of 'the Deputy or Assistant Charity Commissioner or the Charity Commissioner as the case may be subject to the decision of the Court on application or of the High Court in appeal, on the question as to whether the particular property is the property pf public trust, is made final and conclusive. Further Ss. 19 and 20 of the Act read together, also require the Deputy or Assistant Charity Commissioner to record his findings with reasons as to whether any property is the property of the public trust along with other matters as enumerated therein.

7. Thus, the provisions referred to above make it abundantly clear that the jurisdiction of the Civil Court is excluded and the Civil Court's not competent to decide the questions whether or not a trust exists and such trust is a public trust or particular property is a property of public trust. As one of the issues involved in the suit is as to whether the chariot in question is the property of the public trust, this question can be decided only by the Deputy or Assistant Charity Commissioner.

8. The next question for consideration is whether it is open to civil Court to refer such an issue to the Deputy or Assistant Charity Commissioner. There is no provision contained in the Act, enabling Civil Court to refer such an issue to the Deputy or Assistant Charity Commissioner. Therefore, the Trial Court is not right in referring issues 4, 5 and 13 to the Assistant Charity Commissioner. Hence, the order under revision cannot be sustained. There is still another prayer in the suit i.e., for possession of the property, which is claimed as belonging to the public trust. This prayer is well within the purview of the Civil Court. Therefore, the suit cannot be held to be not maintainable as far as this prayer is concerned. At the same time, this prayer cannot oriented until the issue as to whether the suit property is a property of the public trust is decided. In such a situation, property course to adopt is to stay the suit to enable the plaintiff/plaintiff or defendant/defendants, as the case may be to make an appropriate application before the Deputy or Assistant Charity Commissioner to decide as to whether the property which 'is claimed to be the property of public trust in the suit is or is not, the public trust property and produce the decision of the Deputy or Assistant Charity Commissioner in the suit, thereafter proceed with the suit in accordance with law. In the first instance, the suit may be stayed for a period of two months and the plaintiff/plaintiffs or defendant or defendants as the case may be, may be directed to produce an authentic copy of the application filed before the Deputy or Assistant Charity Commissioner seeking his decision as to whether the property, which is claimed in the suit is the property of the public trust, or not and on production of an authenticated copy of such application, the trial. Court shall stay the suit until the application is decided by the Deputy or Assistant Charity Commissioner and the copy of the said decision is produced.

9. For the reasons stated above, this Civil Revision Petition is allowed. The order dt. 8th Aug, 1984, passed in O.S. No. 38/81, referring issues Nos. 4, 5 and 13 to the Assistant Charity Commissioner, Belgaum, by the trial Court, is set aside. The trial Court is directed to stay the suit in the first instance for a period of two months. The plaintiff/plaintiffs shall within two months from the date of staying the further proceedings in the suit make an appropriate application before, the Assistant Charity Commissioner, Belgaurn, to determine whether the property claimed in the suit is the property of the first plaintiff-public trust and produce an authenticated copy of such application before the trial Court. On production of the authenticated copy of the application filed before the Assistant Charity Commissioner, Belgaum, the trial Court shall stay the suit until the application is decided by the Assistant Charity Commissioner and a copy of his decision is produced before it.

10. Petition allowed.


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