AMRUTLAL KESHAVBHAI PATEL Vs. ISMAIL IBRAHIM BADAT

JUDGEMENT

(1.) The facts leading to the filing of this First Appeal may be briefly stated as follows: "Amrutlal Keshavlal Patel the appellant in this appeal executed a trust deed on 26-11-1979 in respect of land bearing Survey No. 1/1 Block No. 2 admeasuring 14 acres-6 gunthas at Village Boriach Taluka Navsari. One Dargah of Gebansha Pir is situated in the eastern part of this land nearby the Highway. Hindus as well as Muslims of village Boriach and surrounding villages have faith in the said Dargah and many people visit the Dargah every year and a fair is also held every year. It was necessary to make repairs to the said Dargah and therefore the appellant Amrutlal dedicated 5 gunthas out of the aforesaid land of his ownership for the purpose of the said Dargah and created a trust by executing the deed on 26-11-1979. He filled in the prescribed form on 12-12-1979 for getting the trust registered as a Public Trust. Inquiry was held by the Assistant Charity Commissioner. The respondent Ismail Ibrahim Badat raised objections during the said inquiry. He opposed the registration of the trust as a public trust. He contended that the Dargah was situate for the last 400 to 500 years upon waste land and on account of the construction of the National Highway he had shifted the Dargah from the original spot. He contended that he was the owner of this Dargah and with a view to harass him the Trust was created by Amrutlal. He contended that Mujavarship of this Dargah was performed by his ancestors in the past and that he was then performing Mujavarship and doing all religious ceremonies and was managing the affairs of the Dargah which was a private one. He contended that it was not a public trust. He thus opposed the registration of this Dargah as a public trust. The learned Assistant Charity Commissioner after holding necessary inquiry held that the Dargah in question was a public trust and Amrutlal Keshavbhai Patel and two other persons were the trustees. He held that Ismail lbrahim Badat was not the Mujavar. Being dissatisfied with the same Ismail lbrahim Badat filed an appeal being Appeal No. 30 of 1980 before the Joint Charity Commissioner Baroda Division at Baroda. The learned Joint Charity Commissioner held that though it was established that Amrutlal had created a trust he was not in a position to show what concern he had with the Dargah which authorised him to create a trust in respect of the said Dargah. While on the other hand Ismail Ibrahim Badat was claiming that the Dargah was his exclusive and private property and he was Mujavar of the said Dargah but according to the Joint Charity Commissioner he was not in a position to establish his rights. The learned Joint Charity Commissioner thought it proper to direct further inquiry by the Assistant Charity Commissioner and to decide certain questions elaborated by him in his judgment for arriving at the finding on the statutory question of the existence of a public trust and its trusteeship and objects thereof and hence he remanded the matter for fresh inquiry to the Assistant Charity Commissioner as observed by him at para 12 of his order. The learned Joint Charity Commissioner for the reasons stated by him in para 15 of his judgment also directed Ismail Ibrahim Badat to handover possession of the Dargah to Amrutlal and also directed Amrutlal to submit monthly accounts of income and expenditure to the Assistant Charity Commissioner at Surat. Ismail Ibrahim Badat being dissatisfied with the order passed by the Joint Charity Commissioner directing further inquiry and directing possession to be handed over to Amrutlal filed an application being Misc. Civil (Trust) Application No. 49 of 1983 under sec. 72 of the Act in the District Court. Amrutlal filed cross-objections in the said application contending that the order regarding possession was quite proper but the order regarding fresh inquiry was not proper and that the learned Joint Charity Commissioner should have confirmed the finding reached by the Assistant Charity Commissioner so far as the question of the Dargah being a public trust or not is concerned. The learned Assistant Judge who heard the application and cross-objections reached the conclusion that the learned Joint Charity Commissioner was right in directing a fresh inquiry but his order directing Ismail lbrahim to handover possession to Amrutlal cannot be supported. He therefore set aside the order passed by the learned Joint Charity Commissioner whereby he had directed possession of the Dargah to be handed over to Amrutlal. Being dissatisfied with the order passed by the learned Assistant Judge Bulsar at Navsari Amrutlal has filed this appeal before this Court.

(2.) The learned advocate Mr. S. H. Sanjanwala who appeared on behalf of the appellant Amrutlal took me through the judgments of the learned Joint Charity Commissioner as well as the learned Assistant Judge and urged that the learned Assistant Judge could not have interfered with the order passed by the learned Joint Charity Commissioner directing possession to be handed over to Amrutlal. He urged that the learned Joint Charity Commissioner was competent to pass the order regarding possession under sec. 41-A of the Bombay Public Trusts Act 1950 (Hereafter referred to as the Act) and he having passed that orders it could not be challenged in an application under sec. 72. In other words Mr. Sanjanwala submitted that no application under sec. 72 lay against an order passed under sec. 11-A of the Act and therefore the appeal as regards that order was not competent. Looking to the provisions of sec. 72 of the Act it is clear that no application can lie to the District Court against an order passed under sec. 41-A of the Act because sec. 72 provides only for applications against orders passed under secs. 40 41 50 70 or T0-A of the Act. Section 41-A does not find any place in sec. 72. In view of this the contention of Mr. Sanjanwala would have much force provided the order passed by the learned Joint Charity Commissioner can be said to be an order passed under sec. 41-A of the Act. I have gone through the whole of the judgment of the learned Joint Charity Commissioner and I find nowhere any reference to sec. 41-A of the Act. Even Mr. Sanjanwala was not able to point out any reference to sec. 41-A by the learned Joint Charity Commissioner. But even in absence of any reference to sec. 41 of the Act if it can be shown that the order was passed under sec. 41-A of the Act then certainly it can be said that the order is one passed under sec. 41-A of the Act though not specifically referred to or styled as an order or direction under the said provision of the Act.

(3.) The learned Joint Charity Commissioner has discussed the question of giving directions regarding possession at para 15 of his judgment. The learned advocate Mr. Sanjanwala placed in my hands a letter addressed to his client by the Joint Charity Commissioner on 9 It appears from this letter that an application for interim injunction was submitted by Ismail Ibrahim Badat along with the appeal and the following order was passed by the learned Joint Charity Commissioner on 8-9-1980 below that application: