GANGADHAR AMBADAS PARASHARE Vs. MAHADEO AMBADAS PARASHARE

JUDGEMENT

(1.) THIS first appeal is directed against the judgment and order passed by the Assistant Judge of Nasik at Nasik in Civil Misc. Application No.50 of 1974 made under Section 72 of Bombay Public Trusts Act whereby the Court below dismissed the said application and maintained the order passed by Joint Charity Commissioner, Bombay in Appeal No.2 of 1972 under Section 70 of Bombay Public Trust Act.

(2.) THE facts necessary and relevant for disposal of first appeal are : On 27.5.1952, Ambadas Baburao Parashare made an application before the Assistant Charity Commissioner, Pune Region,pune stating therein that the temple viz. Shri Ganga Godavari Mandir, Panchavati, Nasik is not a public trust and that the said Mandir is a private temple. Interalia in the application he stated that the temple Shri Ganga Godavari Mandir was constructed by him on a small private land in order to serve God; the said temple is part of the immovable property bearing City Survey No.5678 and Municipal No.4458; and that this temple was not a public trust and therefore, there are no documents of the trust. THE Assistant charity commissioner held an enquiry and vide his order dated 11.12. 54 recorded that the applicant Ambadas Baburao Parashare was owner of the temple and there was no evidence to show that he dedicated temple to the public. He, therefore, held that the said temple was not a public trust and accordingly, refused registration. For about eight years, the matter remained quiet but in the year, 1962 two sons of Ambadas namely Mahadeo and Govind filed revision application before the Joint Charity Commissioner against the order of Assistant Charity Commissioner passed on 11.12. 54 refusing to register the temple as public trust. In the said revision application, Mahadeo and Govind impleaded their brother Gangadhar as opponent No.1 and Ambadas as opponent No.2. THE Joint Charity Commissioner after hearing the parties held that further enquiry was necessary to find out whether the said temple was public trust or not and accordingly, by order dated 29.10.63 remanded the application made by Ambadas and registered as Misc. Appln. No.4 of 1953 for fresh hearing and consideration by Assistant Charity Commissioner, Pune. THE order passed by the Joint Charity Commissioner, Maharashtra State, Bombay remanding the matter for fresh enquiry was challenged unsuccessfully before this court and order of remand was maintained. After remand Mahadeo and Govind filed fresh application on 2.3. 70 (Exhibit 17) praying therein that the temple Shri Ganga Godavari Mandir is not private temple but a public trust and be registered as such. Gangadhar and Ambadas were impleaded opponent No.1 and opponent No.2 respectively in the said application. Curiously Ambadas who was impleaded as opponent No.2 filed written statement wherein he supported the stand taken out by Mahadeo and Govind that the temple was a public trust which was totally inconsistent with his application made on 27.5.52 stating therein that the said temple was constructed by him on a small private land, it was not a public trust nor any trust has been created by him and that the source of income of the trust was private. Gangadhar, however, contested the said application made by Mahadeo and Govind. An inspection of the property was made by the Assistant Charity Commissioner on 21.9.70 and he recorded the statements of various persons and thereafter by his order dated 15.12.70 held that Shri Ganga Godavari Mandir was a public trust and ordered its registration as public trust under the Bombay Public Trusts Act, 1950. THE order of Assistant Charity Commissioner passed on 15.12.70 was challenged by Gangadhar in appeal before the Joint Charity Commissioner who by his judgment and order dated 20th June, 1974 dismissed the appeal. THE concurrent orders passed by the Assistant Charity Commissioner on 15. 14. 70 and the Joint Charity Commissioner dated 20th June, 1974 were challenged in Misc. Civil Application before the Assistant Judge, Nasik who as indicated above, dismissed the civil application and maintained the order passed by the Assistant Charity Commissioner on 15.12.70 and confirmed in appeal by Joint Charity Commissioner on 20th June, 1974 giving rise to the present first appeal. THE sole question involved in this first appeal is whether the temple viz. Shri Ganga Godavari Mandir is a public trust.

(3.) PERTINENTLY, it may be observed that the proceedings started on the basis of the application made by Ambadas on 27. 5. 52 before the Deputy/assistant Charity Commissioner bringing to his notice that the temple Shri Ganga Godavari Mandir is not a public trust; it is constructed on a small private land and that he has not created any trust and therefore, there are no documents of trust. The said application appears to have been made after coming into force of the Bombay Public Trust Act, 1950 with an intention to bring to the notice of the authorities under the Public Trust Act that the said temple Ganga Godavari Mandir was not public trust. The Assistant Charity Commissioner recorded the Statement of Ambadas on 11.12. 54 wherein he deposed that he himself has built the temple and he has not built it for the benefit of public. He also deposed that the temple was not kept open for the public and he had built the temple from his own funds. On the basis of the statement of Ambadas, the Assistant Charity Commissioner by his order dated 11.12. 54 held that Ambadas was owner of the temple and there was no evidence to show that he had dedicated the temple and accordingly, held that the said temple was not a public trust. No person from public was aggrieved by the said order and it appears that dispute arose between the sons of Ambadas and accordingly, his two sons Govind and Mahadeo challenged the order passed by the Assistant Charity Commissioner in revision almost after eight years. The Joint Charity Commissioner who was revisional authority was persuaded by the aspect that the proper enquiry was not held by the Assistant Charity Commissioner to find out whether the temple was public trust or private trust and therefore, remanded the matter for fresh enquiry and hearing. After remand, though the enquiry was to be made on the application made by Ambadas that the temple 'ganga Godavari Mandir' was not a public trust but a private temple but curiously a fresh application appears to have been made on 2.3. 70 before the Assistant Charity Commissioner by Mahadeo and Govind impleading Gangadhar and Ambadas as opponents. In response to the said application, Ambadas took up entirely different stand which was totally inconsistent with that of his earlier application. Surprisingly, though the written statement was submitted by Ambadas on 11th March,1970 and the evidence appears to have been recorded by the Assistant Charity commissioner in the month of July to September, 1970, Ambadas did not choose to examine himself. Admittedly, Ambadas died many years thereafter.