CHARITY COMMISSIONER AHMEDABAD Vs. MAHARAJGIRI SHADULGIRI

JUDGEMENT

(1.) These two first appeals arise out of the decision of the learned Assistant Judge Bhavnagar in Misc. Civil Application Nos. 65 and 66 of 1966 in the following circumstances. Shri Maharajgiri Shardulgiri and his two sons had filed an application under sec. 18 of the Bombay Public Trust Act 1950 (hereinafter referred to as the Act) under protest before the Deputy Charity Commissioner Rajkot. The above application dated 18-10-1961 related to Shri Kashi Vishwanath Mahadeo Temple situated in Savarkundla in Bhavnagar district. According to the applicants the temple certain rooms situated in the compound of the temple and the land bearing survey No. 391 admeasuring A. 1 29 Gs. were in the possession of the family for several generations and they were their private properties and that the temple was not liable to be registered as a public trust. One Hiralal Magia however filed an application dated 24 alleging that the above temple was a public trust and the properties attached to it belonged to that trust. He also filed another application on 19-9-1963 alleging that the land bearing survey No. 8 admeasuring A. 7 27 G. which belonged to the above temple had been illegally sold by Maharajgiri Shardulgiri in the year 1955-56 to the Savarkundla Municipality He therefore prayed that the above properties should be declared as belonging to the Kashi Vishwanath Mahadeo Trust. A notice was issued to the Savarkundla municipality according to which the land bearing survey No. 8 had been given to Maharajgiri by the former State of Bhavnagar for the purpose of dhup-deep at Shri Kashi Vishwanath Mahadev Mandir. No compensation was paid by the municipality to Maharajgiri for the said land but an amount of Rs. 11501/was paid to him by the municipality for the improvements made by him on the land and the super structures constructed by him at his own costs. Maharajgiri supported the above stand of the municipality. During the course of inquiry Hiralal Magia made one another application on 28-9-1964 in which he alleged that in addition to the properties mentioned in his earlier application there were several other properties which also belonged to the above temple and those properties were land bearing municipal census Nos. 1/466 1 1 1 3 4 and 4469 A notice in respect of the above application was issued to Maharajgiri and his sons who contended that they were absolute owners of the properties mentioned in the above application. The Assistant Charity Commissioner Rajkot held inquiries in respect of all the above applications under sec. 19 of the Act. After considering the evidence adduced by the parties he came to the conclusion that Shri Kashi Vishwanath Mahadev Temple was a public trust and that the properties mentioned in the application dated 18-10-1961 .the land bearing survey No. 8 and the properties bearing municipal census Nos. 1/466 and 1/465 were the properties of the trust. The rest of the properties were held to be belonging to Maharajgiri. Being aggrieved by the above decision Maharajgiri and his sons preferred an appeal being Appeal No. 43/65 before the Charity Commissioner under sec. 70 of the Act. As the land bearing survey No. 8 of Savarkundla was held to be public trust property Savarkundla municipality also preferred an appeal (appeal No. 51/65). Hiralal Magia also preferred an appeal being No. 18/66 to challenge that part of the decision of the Assistant Charity Commissioner according to which certain properties were declared to be belonging the Maharajgiri.

(2.) The Charity Commissioner dismissed all the three appeals on 20 Appeal No. 51/65 has been dismissed subject to certain observations made by him in paragraphs 15 and 16 of his order which are however not relevant for the purpose of appeals before us. Being aggrieved by the above order Maharajgiri and his sons and the Savarkundla municipality made applications under sec. 72 of the Act to the District Court Bhavnagar. These applications were numbered as Misc. Civil Application Nos. 65/66 and 66/66. The above applications were heard by the learned Assistant Judge Bhavnagar. A preliminary point was raised in his court by the applicants that as the members of the Hindu community were interested in the alleged public trust and as no public notice had been issued as contemplated by Order 1 Rule 8 of the Civil Procedure Code the orders passed in the inquiries and consequently by the Charity Commissioner in the aforesaid appeals were bad in law and they should be set aside. Relying on the decision of the High Court of Bombay in the case of Vithobha Balaji Ghodke and others v. Balkrishna Ganesh Bhalerao and others (69 B.L.R. 31) the learned Assistant Judge upheld the above contention and passed the following order:-

(3.) It is argued by the learned Government Pleader that looking to the scheme of the Act it is not necessary to issue any public notice. In support of his above argument he has mainly relied on the provisions of secs. 73 and 76 of the Act. On the basis of the provisions of sec. 76 of the Act it is argued by him that the provisions of the Civil Procedure Code apply only to the proceedings before a court and that so far as inquiries under the Act are concerned the officers holding the inquiries have to exercise only limited powers under the Civil Procedure Code as enumerated in sec. 73 of the Act. Thus according to him there is no provision in the Act which contemplates issuance of public notice as contended by the respondents. It is not disputed by the learned advocate for the respondents that the concerned respondents were given all the opportunities to prove their case at the inquiry under sec. 19 of the Act. It is also not disputed that those respondents had not raised any such contention either before the Assistant Charity Commissioner or the Charity Commissioner. Under these circumstances it is contended by the learned Government Pleader that it was not open to the respondents in question to challenge the order of the Assistant Charity Commissioner or that of the Charity Commissioner on the ground that public notice was not issued. According to the learned advocate for the respondents the order passed by the Assistant Charity Commissioner at the inquiry under sec. 19 of the Act is a nullity as no public notice was issued.