Krishnakant Dattaram Pathare vs Deputy Charity Commissioner, Gr. Bombay & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(Bom) 63

IN THE HIGH COURT OF BOMBAY
Ashok Agarwal, J.
Krishnakant Dattaram Pathare... Applicant.
Versus
Deputy Charity Commissioner, Gr. Bombay others... Respondents.
First Appeal No. 570 of 1989 with First Appeal No. 571 of 1989, decided on 22-2-1990.
Advocates appeared :
V.A. Gangal with S.R. Borulkar, for the appellants.
Miss G.R. Shastri, A.G.P. for respondent No. 1.
Kishor Tembe, for respondents Nos. 2 to 5 in F.A. 570.
P.N. Joshi, for respondent Nos. 2 to 4 in F.A. 571.

Headnote:BOMBAY PUBLIC TRUSTS ACT, 1950.
       Section 19-Proceedings under-Whether proceedings abate on death of a party-Held-Provisions of Order 22. Rule 4. CPC not applicable to proceedings before Charity Commissioner under Section 19-Hence proceeding under Section 19 no not abate on death of a party.
       BOMBAY PUBLIC TRUSTS ACT, 1950.
       Sections 2 (4), 19, 76-Civil Procedure Code, 1908, O. 22, Role 4-Applicability of provisions of C.P.C -Proceedings before charity Commissioner under Section 19- Public interest litigation- Proceedings opposed by X and his mother -Mothers death-Held, provisions of C.P.C. do not apply and proceedings will not abate.
       If one has regard to the provisions of Section 19 of the Bombay Public Trust Act, it would be clear that the inquiry contemplated therein can be initiated on an application by a trustee as provided in Section .18 or upon an application made by any person having interest in the public trust or even by the Charity Commissioner on his two motion. The inquiry contemplated under Section 19, in my view, is of public interest and the same cannot be thwarted on such technical pleas as abatement. If an inquiry is initiated either at the instance of the trustees or at the instance of persons interested, the inquiry cannot come to an end on the death of such persons. It will be incumbent upon the Charity Commissioner to continue these proceedings as if these were proceedings which were initiated on his own motion. Hence, Court is inclined to answer the issue raised for determination by holding that the provisions of Order 22, Rule 4 of the Code of Civil Procedure do not apply to proceedings before the Charity Commissioner under Section 19 of the Bombay Public Trust Act.

JUDGMENT - ASHOK AGARWAL, J.:---Whether proceedings under section 19 of the Bombay Public Trusts Act abate on the death of a party is a short question that arises for determination in these appeals.

2. Two proceedings were instituted before the Charity Commissioner. One at the instance of trustees and other at the instance of certain interested parties for registration of certain properties as being the properties belonging to Shri Bhulingeshwar Devalaya Trust. The proceeding instituted at the instance of the trustees was numbered Enquiry Case No. 2201 of 1973 the one instituted by the interested persons was Enquiry Case No. 1140 of 1973. The present appellant and his mother Gulabbai Dattaram Pathare filed their objections contending that the properties in question were of their ownership and not of the Trust. On the 6th of October, 1979, the mother of the appellant died. On the 12th June, 1980 this fact was brought to the notice both the trustees and to the interested parties at whose instance the inquiries had been initiated. No steps were taken for impleading the other heirs of Gulabbai. On the 5th April, 1986 the appellant filed Application (Exhibit 43) in Enquiry Case No. 2201 of 1973 and Application (Exhibit 83) in Enquiry Case No. 1140 of 1973 for abatement of the proceedings on the ground that no application for bringing the other heirs of Gulabbai had been filed. By a common order dated 13th April, 1987 the Deputy Charity Commissioner was pleased to reject the two applications. Being aggrieved, the appellant preferred Application Nos. 16 and 17 of 1987 before the Bombay City Civil Court and by the impugned judgment dated 17th March, 1988 his Honour the Additional Principal Judge Shri G.V. Kalikar as he then was pleased to dismiss with costs the said applications. Being aggrieved, the appellant has preferred the present appeal.

3. Shri Gangal, the learned Counsel appearing in support of the Appeals contended that the provisions of the Code of Civil Procedure apply to proceedings under section 19 of the Bombay Public Trust Act. Since the heirs of the deceased Gulabbai had not been brought on record, the Enquiry cases abated in view of the provisions of Order 22, Rule 4 of the Code of Civil Procedure. Reliance was placed on Rule 7 of the Bombay Public Trust Rules which provides that enquiries under section 19 and the other provisions of the Act shall be held as far as possible under the provisions of the Small Cause Courts Act. Since the present proceedings relate to properties situate in Greater Bombay region, the proceedings would be governed by the procedure prescribed under the Presidency Small Cause Courts Act.

4. Further reliance was placed on section 43 of the Presidency Small Cause Courts Act which provides that in all suits, appeals and proceedings the Small Cause Courts shall as far as possible follow the procedure prescribed by the Code of Civil Procedure. Reliance was also placed on section 76 of the Bombay Public Trust Act which provides that save in so far as may be inconsistent with anything contained in that Act the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under that Act. According to Shri Gangal, the provisions of the Code of Civil Procedure apply to proceedings under the Bombay Public Trust Act. Since the other heirs of the deceased Gulabbai had not been impleaded, the proceedings before the Charity Commissioner stood abated.

5. In my judgment, there is no merit in the above contention. Section 76 of the Bombay Public Trust Act on which reliance is placed provides:---

"76. Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act." (Emphasis provided).

It is apparent that the provision relates to all proceedings before the Court. Section 2(4) defines Court in the following terms:

"2(4) "Court" means in the Greater Bomb

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