SHERASIYA SAJI ALAVADI MOMIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) (His Lordship after stating the facts further observed: At the time of admission of this Second Appeal the following questions have been formulated as substantial questions of law involved in this appeal: Sec. 19(ii) of the Act reads as follows:

(2.) Now so far as the second question as regards issuance of notice to the Charity Commissioner is concerned a mere look at sec. 56B will show that there is no substance in this contention raised by the plaintiffs for the first time in this Second Appeal. Sec. 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 may be issued to the Charity Commissioner as per sec. 56B of the Act. But anyway it is clear on reading sec. 56B of the Act that the second question which is formulated in this appeal should be answered in negative.

(3.) 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. Sec. 80 of the Act reads as follows: