QUAZI REZIUDDIN BADRUDDIN Vs. MAHMAD AMIN HAJI ABDULKADER

JUDGEMENT

(1.) This Letters Patent Appeal raises a short question of construction of certain provisions of the Bombay Public Trusts Act 1950 The question is purely one of law but in order to appreciate the arguments beating upon the question it is necessary to state briefly a few facts giving rise to the litigation. The appellant claims to be hereditary Mutavalli and Sajjadanashin of Navsari Jame Masjid and Hazrat Malek Nasiruddin Saheb Durgah Wakf which is a public trust registered under the provisions of the Act. Sometime in August 1954 respondents Nos. 1 2 and 3 who are admittedly persons having interest in the trust within the meaning of sec. 2(10) of the At made and application to the Assistant Charity Commissioner for inspection of the accounts of the trust for 1954 The appellant agree for give inspection of the accounts of the trust for the years its 1950-51 and 1951-52 and inspection of accounts of the trust for those years was accordingly taken by respondents Nos. 1 2 and 3. It is the case of respondents Nos. 1 2 and 3 that on taking such inspection they noticed that there was mismanagement of the trust funds and that it was necessary to look into the accounts for the years 1952-53 and 1953-54 for the purpose of finding out whether there was further mismanagement in those years. Respondents Nos. 1 2 and 3 accordingly applied to the Assistant Charity Commissioner for inspection of the accounts of the trust for the years 1952-53 and 1953-54. Notice of the application was given by the Assistant Charity Commissioner to the appellant. The appellant however declined to give inspection of the accounts of the trust for the years 1952-53 and 1953-54. The Assistant Charity Commissioner in the meantime in exercise of his powers under sec. 37 sub-sec. (1) clauses (b) and (c) called for the boots of accounts of the trust for the years 1952-53 did 1953-54. The appellant apprehended that the Assistant Charity Commissioner would proceed to give inspection of the books of account called for by him to respondents Nos. 1 2 and 3 and he therefore filed the present suit seeking to restrain respondents Nos. 1 2 and 3 from taking inspection of the books of account and the Assistant Charity Commissioner from giving inspection of the books of account to respondents Nos. 1 2 and 3. Respondents sos. 1 2 and 3 were impleaded as defendants Nos. 1 2 and 3 and the Assistant Charity Commissioner was impleaded as the 4th defendant in the suit. The Charity Commissioner was not joined as a party in the suit as originally filed but subsequently the appellant after obtaining leave of the trial Court to amend the plaint appellant Charity Commissioner as the 5th defendant to the suit. The main contention of the appellant in the suit was that the Assistant Commissioner had no power to give inspection of the books of account of the trust to respondents Nos. 1 2 and 3 and he should therefore be restrained by a perpetual injunction from doing so. The suit was resisted by respondents Nos. 1 2 and 3 as also by the Assistant Charity Commissioner and the Charity Commissioner and the defence urged on their behalf was that the Assistant Charity Commissioner had power to give inspection of the books of account to respondents Nos. 1 2 and 3 if it was necessary or desirable so to do for the purpose of the Act. They pointed out that the Assistant Charity Commissioner had not yet made an order acceding to the request of respondents Nos. 1 2 and 3 to give inspection and that he would not decide the application of respondents Nos. 1 2 and 3 without giving a hearing to the appellant. There were also certain other contentions raised on their behalf in answer to the suit but it is not necessary to refer to them since they have not been pressed before us. The main and substantial question on which the parties joined issue before the trial Court therefore was whether the Assistant Charity Commissioner had power to give inspection of the books of account to respondents Nos. 1 2 and 3. The trial Court rejected the contention of the appellant and held that the Assistant Charity Commissioner was entitled to give inspection of the books of account of the trust to any person who was interested in the trust and since respondents Nos. 1 2 and 3 were admittedly interested in the trust the Assistant Charity Commissioner had no power to give inspection of the books of account of the trust to them and the appellant was not entitled to restrain him from doing so. The appellant preferred an appeal to the District Court but the learned Assistant Judge who heard the appeal came two the same conclusion and negatived the content of the appellant that the Assistant Charity Commissioner had no power to give inspection to respondents Nos. 1 2 and 3. The appellant thereupon carried the matter in Second Appeal to this Court but the Second Appeal was also unsuccessful. Raju J. agreed with the view taken by the trial Court and the first appellate Court and dismissed the appeal. He however granted leave to appeal under Clause 15 of the letters Patel and hence the present Letters Patent Appeal before us.

(2.) The only question debated before us was as to whether the Assistant Charity Commissioner has power to give inspection of the books of account of the trust to respondents Nos. 1 2 and 3 when the appellant who is the sole Mutavalli of the trust objects to such inspection being given In order to determine this question it is necessary to refer to a few provisions of the Act. The Act as the preamble and the long title show was passed for the purpose of regulating and making better provision for the administration of public religious and charitable trusts in the State of Bombay. Sec. 2 sub-sec. (10) gives an inclusive definition of person having interest and clause (c) of the sub-section deals with the case of a Wakf. Respondents Nos. 1 2 and 3 were admittedly according to this clause persons having interest in the trust. Sec. 3 empowers the State Government by notification in the Official Gazette to appoint an Officer called the Charity Commissioner and the Charity Commissioner is generally to superintend the administration and carry out the provisions of the Act throughout the State. The provisions for Deputy and Assistant Charity Commissioners is made in sec. 5 and according to that section the Deputy and Assistant Charity Commissioners are to exercise such powers and perform such duties and functions as may be provided by or under the provisions of the Act. Then follow sections dealing with charitable purposes and validity of certain public trusts which are not material to the decision of the present controversy. We go straight to the Chapter on Accounts and Audit and in that Chapter there are two sections to which reference may be made. Sec. 32 says that every trustee of a public trust shall keep regular accounts and sec. 33 provides that the accounts shall be balanced each year and audited annually by a Chartered Accountant. Sec. 34 requires every auditor auditing the accounts of 8 public trust under sec. 33 to prepare a balance-sheet and income and expenditure account and to forward a copy of the same to the Deputy or Assistant Charity Commissioner or to the Charity Commissioner if the latter requires him to do so. Secs. 35 and 36 which are the realigning sections in this Chapter need not detain us as they are not relevant. Then follows the Chapter dealing with Control. His Chapter contains a fascicles of sections from 37 to 41A. Sec. 37 was repeatedly referred to in the course of the arguments and we would therefore set oat the same in extenso:-

(3.) Now it is clear that under sec. 37(1)(b) the Assistant Charity Commissioner has power to call for or inspect any books of accounts in the possession or under the control of the trustees or any person on behalf of the trustees. The Assistant Charity Commissioner can in exercise of this power conferred under sec. 37(1)(b) call for the books of accounts of the trust and inspect them and this power of inspection can be exercised by the Assistant Charity Commissioner either personally or through an agent. The Assistant Charity Commissioner can also employ the services of an auditor or an accountant for the purpose of inspecting the books of accounts of the trust. This much was not disputed by Mrs. S. B. Vakil on behalf of the appellant but his contention was that the Assistant Charity Commissioner has no power to give inspection of the books of account of the trust to a third person who desires to inspect on his own account and not as agent of the Assistant Charity Commissioner. The appellant urged that what sec. 37(1)(b) authorizes the Assistant Charity Commissioner to do is to inspect the books of account of the trust and not to allow them to be inspected by a third party. This contention of the appellant appears to be well-founded. We do not think sec. 37(1)(b) confers powers on the Assistant Charity Commissioner to give inspection of the books of account of the trust to a third party and no justification for the existence of such power in the Assistant Charity Commissioner can be found in sec. 37(1)(b). Sec. 37(1)(a) also cannot help as that deals with the power to enter en and inspect any immovable property of the trust nor can sec. 37(1)(c) be of any assistance as that does not confer any power of inspection. The Assistant Charity Commissioner cannot therefore claim power to give inspection of the books of account of the trust to a third party in virtue of any provision contained in sec. 37.