VITHOBA BALAJI GHODKE Vs. BALAKRISHNA GANESH BHALERAO

JUDGEMENT

(1.) THIS is an appeal against the order of the learned 2nd Extra Assistant Judge, Poona, dismissing an application under section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act) Made by the appellants. The application under section 72 was filed against the decision of the Charity Commissioner dated the 5th of February 1960. The circumstances in which these decisions came to be made are these: One Trimbak Bhalerao made an application on the 10th of May 1952 purporting to be an application under section 19 of the Act. This application was in respect of S. No 790 in village Belhe and was field by Joshi Bhalerao under protest. It appears that there are deities of Shriram, Sitamai, Laxman and Hanuman in this Village. Trimbak Joshi Bhalerao's case before the Assistant Charity Commissioner was that the property S. No. 7909 was his private property and was not the property of a temple or a house in which these deities wee installed in that village. On the 7th of March 1955 the Assistant Charity Commissioner made an order that there was no public trust and it was not necessary to register S. No. 790 as the property of any public trust. The brief order made by the Assistant Charity Commissioner is as follows:-

(2.) MR. Paranjape, learned Counsel appearing for the appellants, contends that both the Charity Commissioner as well as the learned Extra Assistant Judge misconceived the scope and ambit of the powers of the Charity Commissioner under Section 70a of the Act, He also contented that even on the limited scope of Section 70-A, as construed by the authorities below, their view that there was no material irregularity or grave injustice was incorrect. Mr. Paranjape further contented that assuming there was no specific provision in the Act or the rules to hear the appellants or other members of the Hindu Community, the enquiry contemplated by Section 19 of the Act is quasi-judicial in character and if the appellants and other members of the Hindu Community were interested in the lis which existed, any order made by a quasi-judicial authority without hearing the parties, who are affected or likely to be affected, was liable to be set aside. Mr. Paranjape says that the learned Charity Commissioner should have, on that ground, exercised the wide powers under Section 70-A of the Act and should have directed a fresh enquiry under Section 19. It would be convenient to deal with these arguments separately.

(3.) THE first arguments is that the procedure for conducting these enquiries has not been complied with. Mr. Jahagirdar, who appears for the respondents, contented that the enquiry under Section 19 is not analogous to a suit and, therefore, the Code of Civil Procedure will not apply. There is no doubt that the Code of Civil Procedure is not as such made applicable to enquiries under the Act. Section 19 provides that inquiries shall be made in the manner prescribed and since the manner is prescribed only in Rule 7, the enquiries have to be made in that manner, and Rule 7, which I have quoted in full, says that the procedure prescribed for the trial of suits under the Provincial Small Cause Courts Act will apply to enquiries under the Act "as far as possible" Section 17 of the Provincial Small Cause Courts Act makes the Code of Civil Procedure indirectly becomes applicable to enquiries under the Act; the Code is made applicable as far as possible. In effect the provision of the rule is that the provisions of the Code will apply mutatis mutandis, to the extent possible, to all enquiries under the Act. Therefore, while the argument of Mr. Jahagirdar is correct that these proceedings are strictly not suits under the Code of Civil procedure, the procedure too be followed in these enquiries is, to the extent possible the procedure applicable to suits under the Provincial Small Cause Courts Act, as provided for in Section 17 of that Act, and that procedure undoubtedly is the procedure prescribed in the Code. Mr. Jahagirdar contends that the learned Charity Commissioner and the learned Extra Assistant Judge were right in their view that if the Legislature wanted to make the Code applicable they would have done so, as they did when it was made applicable to the District Court in proceedings under Section 72. This argument fails recognise the true meaning and effect of Section 76. Section 76 makes the Code applicable to all proceedings before the Court. To proceedings before the 'court', which is defined as the District Court, the Code is applicable as such and there is no question of making it applicable as far as possible. Moreover, Section 76 is a provision only dealing with the procedure before the Court and there is no scope for any doubt that for the purposes of the Act the Court is only the one defined in Clause (4) of Section 2 of the Act. The learned Charity Commissioner his held that there are other Courts under the Act, namely, the Assistant Charity Commissioner, the Deputy Charity Commissioner and the Charity Commissioner, and if the Legislature wanted to make the Code applicable to the other Courts it would have expressly done so. With respect, it is an error to say that the Assistant Charity Commissioner or the Deputy Charity Commissioner or the Charity Commissioner, when they function in inquiries under the Act, are Courts. They are no doubt authorities constituted under the Act and have to perform functions of a quasi-judicial nature, but they are not Courts because Court is only the one defined in Clause (4) Of Section 2 of the Act, and since the Assistant Charity Commissioner or the Deputy Charity Commissioner or the Charity Commissioner is not included in the definition, they are certainly not Courts for the purposes of the Act. Section 76 does not provide for procedure for all enquiries under the Act but provides for procedure for proceedings before the Court and that provisions must, therefore, be construed as being made for that specific purpose. It is difficult to agree with the view of the Assistant Charity Commissioner and the learned Extra Assistant Judge that since Section 76 does not provide for the application of the Code of Civil Procedure to other Courts, the Legislature never intended to make the Code applicable to the other Courts. As against this, Section 19 of the Act itself provides that the procedure to be followed in enquiries under the Act must be in the prescribed by rules framed by the State Government under their rule-making power. That procedure happens to be the procedure applicable under the Provincial Small Cause Courts Act to Courts constituted under that Act. It is therefore the rules that one has to look to for finding out as to what procedure is applicable to enquiries under the Act and not to Section 76.