Judgment

AYYANGAR, J. : (Majority judgment: Sinha C.J.I., Ayyangar, Mudholkar and Venkatarama Aiyar, JJ.) This is an appeal on a certificate of fitness granted by the High Court of Bombay under Art, 133 (1)(b) and (c) of the Constitution, and the question raised for consideration is whether the "Kesari and Mahratta Trust" of which the appellants are the Trustees was or was not a "public Trust" within the meaning of the Bombay Public Trusts Act (Act XXIX of 1950) which it will be convenient to refer to as the Act.

2. The Act which by its long title was enacted "to regulate and to make better provision for the administration of public, religious and charitable Trusts in the State of Bombay" came into force on August 14, 1950. Section 18 of the Act enacted:

"18, (1) It shall be the duty of the trustee of a public trust to which this Act has been applied to make an application for the registration of the public trust.

.... ..... .... ..... ...... .... ........ .... ...."

Section 66 of the Act provides penalties according to a table appended do it for contravention of the several sections set out in it and among the sections so included is S. 18(1). In this state of affairs the trustees of the appellant-trust addressed on April 16 1952. a communication to the Assistant Charity Commissioner, Poona region, Poona - being the authority empowered to effect the registration of the Trust, if it was a public Trust - that "the Kesari and Mahratta Trust" was not a "public trust" within the meaning of the Act and submitted that it was not liable to be registered thereunder. Section 19 of the Act empowers an Assistant Charity Commissioner to make an enquiry for ascertaining, inter alia, "whether a Trust exists and whether such Trust is a public Trust." This officer held an enquiry under this provision, giving an opportunity to the trustees of the Trust to make representations and urge their contentions. Thereafter, he recorded a finding under S. 20 of the Act that it was a public Trust to which the Act applied and passed an order directing the Trust to be registered.

3. Section 70 of the Act provides for appeals being filed against findings recorded and orders passed under S. 20 by Assistant Charity Commissioners, to the Charity Commissioner, and the trustees availed themselves of this remedy and repeated their contentions before the Charity Commissioner. The appellate-authority, however, reached the some conclusion as the Assistant Charity Commissioner and dismissed the appeal. Section 72 of the Act enables a party aggrieved by the decision of the Charity Commissioner under S. 70 on the question "whether a trust exists and whether such trust is a public trust" to apply to the Court to set aside the said decision. The trustees moved the Court under this provision but this application was dismissed by the learned District Judge, Poona. It was from this judgment of the learned District Judge that the trustees filed an appeal to the High Court of Bombay who also dismissed the appeal but granted the certificate which has enabled the present appeal to be filed.

4. It would be seen from the above narrative that the entire question raised by the appeal is concerned with whether the Kesari & Mahratta Trust was a "public Trust" within the meaning of the Act so as to justify the order of the Assistant Charity Commissioner requiring the trustees to have the institution registered. Section 2 of the Act which contains definitions defines a public Trust in cl. (13) thus:

"an express or constructive trust for either a public, religious or charitable purpose or both. .. .. .. ."

to read only the portion relevant for this appeal. The other material provision is S.9 of the Act which defines "charitable purpose." The purposes defined include:

"(1) relief of poverty or distress,

(2) education,

(3) medical relief, and

(4) the advancement of any other object of general public utility but does not include a purpose which relates-

(a) exclusively to sports, or

(b) exclusively