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Sherasiya Saji Alavadi MomIn and ors. Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 241 of 1978
Judge
Reported inAIR1985Guj180; (1985)1GLR513
ActsBombay Public Trusts Act, 1950 - Sections 56-B; Bombay Public Trusts Act, 1950 - Sections 19, 21, 68, 69 and 80; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantSherasiya Saji Alavadi MomIn and ors.
RespondentState of Gujarat and anr.
Appellant Advocate D.G. Karia, Adv.
Respondent Advocate S.T. Mehta, Asstt. Govt. Pleader and; S.M. Shah, Adv.
Cases ReferredVithoba Balaji Ghodke v. Balkrishna (supra
Excerpt:
trusts and societies - public trust - sections 19, 21, 68, 69, 56-b and 80 of bombay public trusts act, 1950 - provisions of act clearly show that only deputy or assistant charity commissioner can decide whether any property is of public trust or not and jurisdiction of civil courts to entertain such question is barred - entries made in register of public trust final and conclusive as property belonged to trust - even entries so made in register after inquiry under section 19 binding on defendants not parties to such proceedings. - - ' 8. the above provisions of the act clearly show that it is only the deputy or assistant charity commissioner who can decide whether any property is the property of a public trust. but the fact remains that when the suit was filed the properties were..........has been given to the charity commissioner. the question involved in this suit is whether the suit properties are of the ownership of the public trust. no question affecting a public religious or charitable purpose is involved in this suit and hence it is difficult to accept the contention raised for the first time in this second appeal that the suit could not have been proceeded further without issuing notice to the charity commissioner. it may be mentioned here that the plaintiffs who filed the present suit did not make any request to the trial court or to the first appellate court that notice may be issued to the charity commissioner. in fact, the state contended that the charity commissioner was a necessary party and even then the plaintiffs did not make any request that at.....
Judgment:

1. to 4. xxxxxx

5. At the time of admission of this Second Appeal, the following two questions have been formulated as substantial questions of law involved in this appeal: -

1. Whether on the facts and in the circumstances of the case and in view of the provisions of the Bombay Public Trusts Act, 1950, the lower Appellate Court should have decided the question of title of the appellant trust to the suit property against it?

2. Whether, in view of the provisions of S. 56B of the Bombay Public Trusts Act, 1950, the questions involved in the present suit could have been determined without issuing a notice to the Charity Commissioner?

6. Now, so far as the second question as regards issuance of notice to the Charity Commissioner is concerned, a mere look at S. 56B will show that there is no substance in this contention raised by the plaintiffs for the first time in this Second Appeal. S. 56B provides that in any suit or legal proceedings in which it appears to the Court that any question affecting a public religious or charitable purpose is involved, the Court shall not proceed to determine such question until after notice has been given to the Charity Commissioner. The question involved in this suit is whether the suit properties are of the ownership of the public trust. No question affecting a public religious or charitable purpose is involved in this suit and hence it is difficult to accept the contention raised for the first time in this Second Appeal that the suit could not have been proceeded further without issuing notice to the Charity Commissioner. It may be mentioned here that the plaintiffs who filed the present suit did not make any request to the trial Court or to the first appellate Court that notice may be issued to the Charity Commissioner. In fact, the State contended that the Charity Commissioner was a necessary party and even then the plaintiffs did not make any request that at least a notice 10 may be issued to the Charity Commissioner as, per S. 56B of the Act. But any way it is clear, reading S. 56B of the Act that the second question which is formulated in this appeal should be answered in negative,

7. So far as the first question formulated by this, Court is concerned, that question does not appear to have been raised or decided by the Courts below. This, however, being a pure question of law can be considered and decided in light of the provisions of the Bombay Public Trusts Act, 1950. Before going to the discussion of this question it will be proper to refer to some of the relevant provisions of the Act which have a bearing upon the question of jurisdiction. S. 80 of the Act reads as follows : --

'Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Actor in respect of which the decision or order of such officer or authority has been made final and

conclusive.'

Clause (b) of S. 68 of the Act, which is relevant for our purpose, reads as follows:

'For the purposes of this Act, the following shall be the duties and functions to be performed and powers to be exercised by the Deputy or Assistant Charity Commissioner for the region or sub-region for which he is

appointed, namely-.. ........ ........

(b) to hold an inquiry under S. 19 or 22 for any of the purposes mentioned in the said section;'

Clause (b) of S. 69 of the Act reads as follows: -

'For purposes of this Act, the following shall be the duties to be performed and powers to be exercised by the Charity Commissioner, namely: -

b) power to entertain and dispose of appeals from the findings of a Deputy or Assistant Charity Commissioner under S. 20,22orM.'' Section 19(h) of the Act reads as follows: -

'On the receipt of an application under S. 18, or, upon an application made by any person having interest in a public trust or on his own motion, the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed mariner for the purpose of ascertaining:

(ii) whether any property is the property of such trust.'...... ............... ........

8. The above provisions of the Act clearly show that it is only the Deputy or Assistant Charity Commissioner who can decide whether any property is the property of a public trust. They also go to show that the jurisdiction of the Civil Court to entertain that question is barred. In view of this, it is clear that the Civil Court cannot enter into and decide the question whether a particular property is the property of a public trust or not. That was the main question raised in the present suit and the appeal before the District Court. It is clear that neither the trial Court nor the first appellate court could have decided the question of title because on one hand, it is the allegation of the plaintiffs that the suit properties are of the ownership of the public trust which is again duly registered under the Act, while, on the other hand, it is the say of the defendants that the properties were not of the ownership of the trust and that they have been rightly resumed by the Government. It is true that the order of resumption was passed in the year 1970 and confirmed in the year 1971 by the Special Secretary to the Government. It even appears that the suit lands were resumed long back before July 1970 sometime in the year 1958. In any way, it is clear that the resumption order was passed before the trust was registered and before the suit properties were entered in the Register of Public Trust as properties belonging to the trust. But the fact remains that when the suit was filed the properties were shown in the register or public trusts as belonging to this trust and the question of title was raised in the suit as well as in the first appeal. We are not concerned while deciding the question of jurisdiction whether the lands were rightly resumed by the Government. The question is about the ownership of the lands on the date of the suit and that can be decided only by the authorities competent to decide that question as per the provisions of the Act which I have reproduced a little earlier. The trial Court as well as the District Court, on the face of it, clearly erred in deciding the question of title to the suit lands. Hence this substantial question of law formulated in this appeal has to be decided accordingly.

9. The next question which arises for consideration is as to what will be the effect of this on this question in this appeal. Now, so far as the question of title is concerned, it cannot be gone into in these proceedings because of the bar of S. 80 of the Act. The properties having been entered in the Register of the Public Trusts as belonging to the trust. S. 21 of the Act comes into play, which reads as follows: -

'(1) The Deputy or Assistant Charity Commissioner shall make entries in register kept under S. 17 in accordance with the findings recorded by him under S. 20 or if appeals or applications are made as provided by this Act, in accordance with the final decision of the competent authority provided by this Act.

(2) The entries so made shall, subject to the provisions of this Act and subject to any change recorded under the following provisions, be final and conclusive.'

In view of the fact that the entries in the Register are final-and conclusive, one has to proceed on the assumption that the properties are of the public trust. The said entries in the register cannot be questioned in these proceedings before the Civil Court. It is true that neither the State Government nor defendant had any opportunity of having their say when the Deputy or Assistant Charity Commissioner made inquiry and reached the conclusion that the suit properties were of the ownership of the public trust. But when S. 21 says that these entries are final and conclusive, they cannot be questioned in a Civil Court. There are two decisions of the Bombay High Court which go to show that persons who are not parties to such proceedings before the authorities under the Act can challenge the entries in the Register because they are not binding to them. The first is reported in Shri Adinath Tirthankar Jain Mandir v. Shantappa Dada Madnaik, AIR 1967 Bom 86, while the other is reported in Vithoba Balaji Ghodke v. Balkrishna Ganesh Bhalerao, AIR 1968 Bom 114. In the first decision, it has been held that persons who are not parties to proceedings under S. 19 of the Act can file a suit in Civil Court for partition and separate possession of properties which are gifted and in respect of which trust is created, because the finding will not be binding to them and, therefore, the suit will not be barred under S. 80 of the Act. So far as the second decision is concerned, same view has been taken relying upon an earlier decision of the same High Court but it has also been held in that case that since such a proceeding leads to miscarriage of justice and grave irregularity, the Charity Commissioner has powers under S. 70A to reopen the previous proceedings and make inquiries under S. 19 of the Act. As against these two decisions of the Bombay High Court, we have a decision o C this Court reported in Ishwarlal Nanalal v. Chanchi Chimanlal R., (1963) ILR 4 Guj 767, wherein it is held that the decisions given under the Public Trusts Act have the effect of a judgment in rem by virtue of several provisions of the said Act. In that case also it is held that the question whether a particular property is the property of a trust or not can only be decided by the authorities under the Act and that the Civil Court is not competent to decide any such question in view of the provisions of S. 80 of the Act.

10. In the case of the Charity Commr. Ahmedabad v. Maharajgiri Shadulgiri, (1972) 13 Guj LR 95-5, a question arose whether notices are required to be issued to public during the inquiry proceedings under S. 19 of the Act. This Court held in the above case that it was not necessary to issue any such notice to the public. It is held therein that the rights of persons having interest are not prejudiced as suitable remedy is provided by other provisions of the Act. It is held the-rein that even after an inquiry under S. 19 has concluded and entries are made in the register under S. 21 or S. 22, it is open to the Deputy or Assistant Charity Commissioner to hold a further inquiry if, it appears to him that any particular relating to any public trust which was not the subject matter of the inquiry under S. 19 or sub-section (3) of S. 22, has remained to be inquired into. It is held therein that the rights of the persons having interest are in any way prejudiced by holding inquiries under S. 19 and other relevant sections of the Act, without issuing any public notice. The decision of the Bombay High Court in Vithoba Balaji Ghodke v. Balkrishna (supra) was dissented from in the above case decided by this Court. In view of the two decisions of this Court, it is not possible to take the view that the entries made in the register of public trusts after inquiry under S. 19 are not binding to the defendants, because they were not parties to these proceedings. They have a remedy to approach the Charity Commissioner or Deputy Charity, Commissioner or any other competent officer under the Act to hold further inquiry into the matter and decide whether these properties, in fact, belonged to the public trust or not. x x x x

11. xxxxxxx

12. Appeal dismissed.


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