Judgement

GROVER, J.: This is an appeal by certificate against the Judgment of the High Court of Gujarat setting aside an order of a Magistrate by which the respondent was convicted of an offence under S. 67 read with S. 37 of the Bombay Public Trusts Act 1950 (as adapted, and applied to the State of Gujarat), hereinafter referred to as the Act, and sentenced to pay fine of Rs.300/-, in default of payment of which he was to suffer rigorous imprisonment for two months.

2. The respondent is one of the trustees of a trust known as shri Swami Naravan Mandir" at Ahmedbad which is registered as s public trust in the office of the Charity Commissioner. The trust is managed under a scheme prepared by the High Court of Bombay. It appears, that the Charity Commissioner learnt about certain constructions having been made by the respondent trustee without permission from him. On March 22, 1962 a letter (Ext.3) was addressed from his office to the respondent the material part of which may be reproduced:

"An information is received of the Charity Commissioner that opposite the temple near the New Narnarayan building the blocks are being constructed in which shops are construed on the ground floor of that building.

1. For what purpose it is constructed?

2. From when its construction work is started ?

3. What amount is spent till today in construction of the same ?

4. What amount is to be spent still ?

5. How much income will accrue from it ?

6. By which No. and on what date the permission of the Charity Commissioner is taken for constructing the same.

7. To which contractors are given the contracts for constructing the Same ? His name, address, amount of the contract and other details and a copy of the contract.

8. If the committee has passed a resolution for constructing the same, its true copy.

9. If a contract is given to any contractor, then whether that contractor is related or acquainted to any member of the committee. All these necessary information may please be sent before 15-4-1962." Queries on similar lines were made regarding the constructions near the respondent s bungalow in Girdharnagar.

3. As no reply was received from the respondent reminders were sent to him on April 20, 1962 and May 10, 1962 followed by a telegram dispatched on May 23, 1962. A reply was sent by the respondent giving the particulars of the buildings which had been constructed. Reference was made to the resolutions of the Committee relating to these constructions together with the amount spent on them.

4. The Inspector appointed under the Act made a report dated May 4, 1963 giving the result of the enquiry made by him relating to the aforesaid constructions. According to him 8 shops had been constructed adjoining the Narnarayan building opposite the Swaminarayan temple, the estimated cost of which was more than Rs. 2 lacs. On Plot No. 98-A shops were being built in four blocks. Construction was also being made on another plot No. 98-A-2 opposite the railway crossing. On May 30, 1962 the Charity Commissioner instituted a complaint in the court of the City Magistrate at Ahmedabad giving most of these facts and stating inter alia that under the provisions of the Act a trustee who desired to invest trust funds in construction of buildings was bound to obtain permission of the Charity Commissioner which had not been done in the present case. According to him the respondent had deliberately committed a breach of the relevant provisions of the Act and had omitted to comply with the notice dated May 22, 1962. The gravamen of the charge was contained in paragraph 7 according to which the respondent had, without reasonable cause, filed to comply with the order and the directions issued to him under the provisions of S. 37 of the Act.

5. The respondent filed an application (Ext. 6) before the Magistrate submitting that the investment of the trust funds made in the construction of the building adjacent to the Namarayan Bhavan was legal and had been done in good faith. It was for th