ORAL JUDGMENT

1. This appeal is directed against the judgment and order dated 18.11.1991, passed by the Additional District Judge, Washim in Misc. Judicial Case No.8/1989, confirming the judgment and order dated 12.2.1986, passed by the Joint Charity Commissioner, Aurangabad in Revision Petition No.87/1980 as well as the first order dated 3.8.1970, passed by the Assistant Charity Commissioner, Akola Region, Akola holding Shri Laxminarayan Mandir, Sansthan, Malegaon, Tq. Washim to be a public Trust and thus directing its registration under the Bombay Public Trusts Act, 1950.

2. Having heard learned Counsel for the rival parties, following substantial questions of law arise for consideration.

(i) Whether the Assistant Charity Commissioner, Akola Region, Akola before making the impugned order dated 3.8.1970 was right in not issuing notices to all the trustees of Shri Laxminarayan Mandir Sansthan, Malegaon and then whether the Courts below were justified in upholding non-issuance of notices to all the trustees on the ground that Rule 7 A of the Bombay Public Trusts Rules, 1951 for the first time came into existence w.e.f. 2.6.1972 regarding publication of public notice i.e. before passing of the impugned order dated 3.8.1970 ?

(ii) Whether the Assistant Charity Commissioner, Akola Division, Akola held Shri Laxminarayan Mandir Sansthan, Malegaon as a public Trust without making legal and proper enquiry and without obtaining necessary and required evidence for deciding the nature of the Trust as a public Trust or as a private Trust ?

3. In support of the aforesaid two substantial questions of law, learned Counsel for the appellants vehemently argued that even assuming that Rule 7 A of the Bombay Public Trusts Rules was written in the statute book w.e.f. 2.6.1972, the principles of natural justice were required to be followed since there were four trustees of the private Trust -Shri Laxminarayan Mandir Sanstha, Malegaon by name Bansilal Chandulal, Mannalal Hiralal, Tulsiram Rampratap and Ramlal Hiralal, who were managing the affairs of the Mandir and the said private Trust. Admittedly, except Bansilal Chandulal and some tenants on the agricultural land held by Deosthan the other trustees were never given notice of intention to declare the said private Trust as public Trust. According to learned Counsel for the appellants the proceedings held by the Assistant Charity Commissioner and consequent order dated 3.8.1970, passed by the Assistant Charity Commissioner, Akola Region, Akola are in violation of rule of audi alteram partem.

4. Learned Counsel for the appellants then argued that the Assistant Charity Commissioner committed an error in reading 'no objection' of Shri Bansilal in the written statement out of context. According to him, the temple is private and also the Trust is private Trust. It cannot be declared as a public Trust in the absence of required proof, inter alia, namely existence of characteristics of a public temple or public Trust. In the absence of these materials, according to him, the said declaration is wrong and illegal. The appellate Court also committed an error in confirming the said order of the Assistant Charity Commissioner.

5. Learned A.G.P. for respondent No.2 argued that no substantial question of law arises and the Assistant Charity Commissioner has acted in accordance with the prevailing law and cannot therefore be blamed for non-issuance of notices to all the trustees. She supported the impugned judgments and orders. Learned Counsel for respondent No.1 adopted the submissions made by learned Counsel for the appellants.

6. I have gone through the impugned judgments and orders recorded by the Courts below. From the submissions made by the learned Counsel for the appellants it appears that Shri Laxminarayan Mandir Sansthan, Malegaon had 71 acres of land and in his submission now about 20 acres of land has gone in the possession of tenants as a result of the effect of the provisions of the