MUNICIPALITY OF TALODA Vs. CHARITY COMMISSIONER BOMBAY

JUDGEMENT

(1.) One Sambhusing applied under Section 19 of the Bombay Public Trusts Act 29 of 1950 for a declaration that City Survey Nos. 371 to 379 of Taloda were settled by one Dagadu Khushal in favour of the Municipality in 1883 for the benefit of the Johari Panch and for an order that the property be registered as property of a public trust under the Act. The Assistant Charity Commissioner who heard the petition by his order dated January 20, 1956, held that "there was no such institution known as Johari Panch", and that the property in dispute had not been used for the benefit of that community, but Dagadu Khushal had transferred the property to the Municipality for the benefit of members of the Public interested in the Samadhi of Nagabawa. The Assistant Charity Commissioner declared that there was a public trust and City Survey Nos. 371 to 379 of Taloda Municipality were the property of the Trust and that the Municipality held it as trustee of that Trust. That order was confirmed in appeal by the Charity Commissioner. In appeal, the District Court set aside the order of the Charity Commissioner and held that by the deed of transfer executed by Dagadu Khushal no trust was created, that in any event the trust was not a public trust and that the property in City Survey Nos. 371 to 379 was not the property of any such trust. In appeal under Section 72 (4) of the Act, the High Court of Bombay reversed the order passed by the District Court and restored the order passed by the Charity Commissioner. The Municipality of Taloda has filed this petition with special leave.

(2.) A short history of the property may first be set out. Land which now bears City Survey Nos. 371 to 379 originally belonged to one Charandas who erected a 'Dharmashala' thereon. On May 24, 1878, Charandas sold the land and the Dharamshala to Dagadu Khushal purporting to transfer the property absolutely to the vendee. On August 27, 1883, Dagadu Khushal executed a deed in favour of the Municipality of Taloda the relevant clause of the deed (as translated in the judgment of the High Court) reads as follows:

(3.) On September 21, 1936, the Municipality of Taloda filed a suit against one Baba Haridas Guru Shamdas Udasi for a declaration that the defendant had no right or interest over the land City Survey Nos. 371 to 379 and that the defendant had taken unlawful possession thereof and for an order that the obstruction raised by the defendant be removed, and possession of the land be awarded to the Municipality. In this suit it was claimed by the Municipality that it was in possession of the land for more than sixty years and the property was "utilised for municipal purposes and was enjoyed in all ways for necessary municipal requirements", but the defendant had made unauthorised construction thereon. Baba Haridas contended that the Municipality had no right to utilise the property for municipal purposes since it was transferred in trust for the residence of "sages, saints, guests, visitors and others of the Nanak Sect", and the defendant being " a sage or saint of the Nanak Sect" had been residing in the property and was entitled to do so. This suit was decreed by the Subordinate Judge.