PRABHATKUMAR G THATTE Vs. KISAN MARUTI RAUT

JUDGEMENT

(1.) THE present first appeal has arisen from the judgment and order dated 16th September, 1983 passed by the learned Joint Judge, District Court Pune in Misc. Application No. 292 of 1976 dismissing the said application, which was filed by the applicants under section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the said Act), claiming an interest in the trust and the trust property for setting aside the decision of the Charity Commissioner, Maharashtra State, Bombay in Appeal No. 50 of 1973 under section 70 of the said Act, dismissing the appeal on 5th February, 1976 which arose out of the decision in an enquiry under section 19 of the Act being No. 59 of 1967, concluded on 19th December, 1972 by the Deputy Charity Commissioner, Greater Bombay Region holding that there did not exist a public trust and, therefore, it was not necessary to register the trust under the Act.

(2.) TO trace the origin of the present proceedings, I have an application dated 14-4-67 filed by one Shri Krishnarao Anant Agashe, under section 18 of the Act for registration of a public trust to the Assistant Charity Commissioner. I have carefully gone through the whole application and also the schedule annexed thereto. The application was as vague as possible and the columns to which answers were expected show the remark "nil" (in Marathi ). Most of the important columns disclosed nothing. In respect of the trust property, it is pertinent to note that the answer to the said column is NIL which means the trust had no moveable or immovable property. Similarly, the columns regarding the income and source of income and expenses as also the other columns are answered with remark NIL. The said application has been verified by the applicant on solemn affirmation. In the annexure the applicant has given some history to the effect that about 175 years ago, the Peshwes, the Rulers at that time had given a piece of land to Shri Thatte for the purpose of having a small garden (Pushpavatika in Marathi) so that flowers from the garden could be offered for the worship of the God Ram. It is further stated by the applicant in the said application that the Thattes had about 100-125 years ago sold the said land to Malis and there was no income left for the God Ram. He further gives information that subsequently, the said land was further sold to various parties. He has also averred that the said Thatte Ram Mandir was a private temple situated in Budhwar Peth and in view of the neighbouring prostitution business going on the idol of God was shifted from that place to the house of one Shri Vaishmpayan at Shukruwar Peth, Purandar Colony, Subhash Nagar, Pune. He also clearly stated that the expenses for the worship of the God were made by them from their private income. He has further averred that the place of the God (Devsthan) had come to him on the basis of ownership. He has given his address of Indore City, Madhya Pradesh. Lastly it is very significant to note that the applicant has in no uncertain manner stated that the Ram Mandir was a private temple of Shri Thatte and they were given the land for having a garden so that flowers therefrom could be offered to God. He has also made a statement that the said land was given to Shri Thatte for his private purpose and not for public purpose. He has also averred that, had it been a public property he could not have sold it as he had done. He has finally accepted that the land and the temple was for the private use of the Thatte family. Lastly he has also clearly stated that the temple was never a public trust or a public temple and it was not so even on the date of the application. He has further stated that the Idol was of private nature for the family of Thatte and that the Idol had come to him by inheritance. The temple and the Idol both were never known, used or recognised as a public temple and they were also not used as public since the Idol of the deity Ram and the temple, both were the private property of the Thattes. He further clearly stated that the idol had come to him as an heir of the Thattes. He has repeatedly mentioned that the Trust was never a public trust nor was he a trustee. After receipt of the said application for registration of the trust as a public trust, the Assistant Charity Commissioner appears to have proceeded with an enquiry under section 19 of the Act. The Deputy Charity Commissioner, the first authority under the Act for registration of a trust held the enquiry in the said application which was numbered as 59 of 1967 and concluded by his order dated 19th December, 1972 holding that there did not exist any public trust and therefore, it was not necessary to register such a trust under the Act. This order of the Deputy Charity Commissioner was challenged before the Charity Commissioner in Appeal under section 70 of the Act. The Charity Commissioner agreed with the conclusions of the Deputy Charity Commissioner and dismissed the appeal by his order dated 5th February, 1976. I may mention here that the orders of both the authorities below are reasoned orders dealing with the case thoroughly in every respect, tracing the history to the Sanad given by the Peshwas, gifting the land to Thatte for the purpose of having a garden. Both the authorities have exhaustively dealt with all the facts on record and have given concurrent findings against the applicant. The judgement and order of the Charity Commissioner, the appellate authority under the Act was challenged before the District Court under section 72 of the Act. The learned District Judge has also thoroughly and exhaustively dealt with the case in the impugned judgement, which is the subject matter of the present appeal. It was, therefore, submitted as a preliminary point by the respondents that the present appeal should be treated as second appeal under section 100 of the Code of Civil Procedure and it should be decided accordingly. It was submitted that there was a concurrent finding on facts by three authorities below, and therefore, this Court should confine this matter to the extent of a substantial question of law and should not look into any factual errors in the orders passed by the three authorities below. In support of the said contention the respondents have relied upon a judgement of this Court in First Appeal 604 of 1979 decided on 5-11-97, reported in (Shivprasad S. Pardeshi v. Leelabai B. Kalwar), 1998 (2) Bom. C. R. 744 : 1998 (1) All. M. R. 393 : 1998 (1) Mh. L. J. 444. The Division Bench has taken a view that an appeal filed under section 72 (4) of the Act is a second appeal to the High Court and is subject to the restriction and limitation imposed on a second appeal as prescribed under section 100 of the C. P. C. They have further held that there was nothing in the scheme of section 72 of the Act or for that matter, any other provisions of the Act, widening the scope of the appeal beyond the limits prescribed by section 100 of the C. P. C. It was also held that such an appeal would be maintainable only if it involved a substantial question of law as contemplated by section 100 of the C. P. C to the satisfaction of the High Court. The learned Judges have also laid down guidelines to determine on the facts of each case where the endowment is of private or a public nature. Para 35 of the said judgment gives the guidelines set by the Apex Court in the case of (Radhakanta Deb v. The Commissioner of Hindu Religious Endowments), reported in A. I. R. 1981 S. C. 798 which are reproduced below:-

(3.) IN spite of the constraints imposed by the Division Bench of our High Court to treat an appeal under section 72 (4) of the Act as a second appeal and to consider it on par with a second appeal under section 100 of the C. P. C. restricting it to the substantial question of law, Shri Thatte, the learned Advocate for the appellants urged before me to hear the matter from the beginning of the Sanad and to consider all other subsequent developments and events. No doubt Shri Thatte, was extremely well prepared on the facts. In fact he virtually argued the present appeal exhaustively as if it was a first appeal and not a second appeal. According to him, the authorities below including the District Court have misconstrued the documents and, therefore, they came to a wholly erroneous and perverse findings. Shri Thatte, therefore, submitted that, that was a substantial question of law.