1965 Supreme(Bom) 156

IN THE HIGH COURT OF BOMBAY
H. R. Gokhale J.
VITHOBA BABAJI GHODKE - Appellant.
V.
BALKRISHNA GANESH BHALERAO - Respondent
Advocate Appeared
For appellants- M. V. Paranjape and S. M. Mhamane. For respondents-Raghavendra A. Jahagirdar.
For Charity Commissioner-Raja S. Bhonsle , Act. Govt. Pleader.

The principles of natural justice require that all parties who are or are likely to be arrayed against each other in an inquiry under the Bombay Public Trusts Act, 1950, be heard, and that the Charity Commissioner has the power under section 70A of the Act to call for and examine the record of an earlier case to ascertain its correctness, even in the absence of material irregularity or illegality.

Headnote:

BOMBAY PUBLIC TRUSTS ACT - SECTION 19 - INQUIRY - PROCEDURE - CODE OF CIVIL PROCEDURE - APPLICABILITY - PUBLIC NOTICE - NECESSITY - SECTION 70A - SCOPE - CHARITY COMMISSIONER'S POWER TO CALL FOR AND EXAMINE RECORD - CONDITIONS.

Fact of the Case:

An application was made under section 19 of the Bombay Public Trusts Act, 1950 (the Act) by one Trimbak Joshi Bhalerao, claiming that S. No. 790 in village Belhe was his private property and not the property of a temple or a house in which deities were installed in the village. The Assistant Charity Commissioner, without issuing any public notice or hearing any other interested parties, made an order on March 7, 1955, holding that there was no public trust and no need to register S. No. 790 as the property of any public trust. Trimbak Joshi sold the land to respondents 1, 2, and 3 on October 10, 1957, who in turn sold it to respondent 4 on January 19, 1959. The appellants, claiming to be devotees of the deity, applied for a certified copy of the Assistant Charity Commissioner's order on February 26, 1959, and received it on March 13, 1959. They then made an application on November 12, 1959, purporting to be under section 22 of the Act, requesting a fresh inquiry into the question of whether the property was the property of the trust. This application was dismissed on November 14, 1959. The appellants filed an appeal to the Charity Commissioner on January 13, 1960, which was summarily dismissed as barred by limitation. The appellants also filed a separate application to the Charity Commissioner for condonation of delay in filing the appeal, requesting that the Charity Commissioner exercise his powers of revision under section 70A of the Act and reopen the inquiry under section 19. The Charity Commissioner dismissed this application, holding that the appeal was barred by limitation and that there were no good or sufficient grounds for condoning the delay. The appellants then filed an application under section 72 of the Act before the District Court at Poona, challenging the decisions of the Charity Commissioner and the Assistant Charity Commissioner. The learned 2nd Extra Assistant Judge dismissed the application, confirming the view of the Charity Commissioner. The appellants appealed this decision to the High Court.

Finding of the Court:

The High Court held that the Assistant Charity Commissioner's inquiry was conducted in violation of the principles of natural justice, as the appellants, who had a right of worship in the temple and were necessary parties to the application filed by Trimbak Joshi, were not given an opportunity to be heard. The Court further held that the Charity Commissioner erred in interpreting section 70A of the Act as being limited to cases of irregularity in the previous proceedings, and that he had the power to call for and examine the record of the earlier case to ascertain its correctness, even in the absence of material irregularity or illegality. The Court also noted the absence of a specific provision in the Act or the rules for issuing a public notice when a person makes an application under protest, seeking a decision that the property is their private property and not the property of the trust, and recommended that the Legislature consider amending the Act or making appropriate provisions in the rules to address this issue.

Issues: 1. Whether the Assistant Charity Commissioner's inquiry was conducted in accordance with the principles of natural justice. 2. Whether the Charity Commissioner erred in interpreting section 70A of the Act as being limited to cases of irregularity in the previous proceedings. 3. Whether the absence of a specific provision for issuing a public notice in certain circumstances is a lacuna in the Act that requires legislative attention.

Ratio Decidendi: 1. The inquiry conducted by the Assistant Charity Commissioner was in violation of the principles of natural justice, as the appellants, who had a right of worship in the temple and were necessary parties to the application filed by Trimbak Joshi, were not given an opportunity to be heard. 2. The Charity Commissioner erred in interpreting section 70A of the Act as being limited to cases of irregularity in the previous proceedings. He had the power to call for and examine the record of the earlier case to ascertain its correctness, even in the absence of material irregularity or illegality. 3. The absence of a specific provision for issuing a public notice when a person makes an application under protest, seeking a decision that the property is their private property and not the property of the trust, is a lacuna in the Act that requires legislative attention.

Final Decision: The High Court allowed the appeal, set aside the orders of the Charity Commissioner and the learned 2nd Extra Assistant Judge, and directed the papers to go back to the Charity Commissioner for disposal in accordance with law in light of the observations made in the judgment. The Charity Commissioner was directed to order the appropriate authority to hold a proper inquiry under section 19 of the Bombay Public Trusts Act. The respondent was ordered to bear his own costs.