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In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.B. CHAUDHARI
Vanmala Manoharrao Kamdi & Others
Versus
Deputy Charity Commissioner & Others
Letters Patent Appeal Nos.226 of 2011, 368 of 2011, 549 of 2011 in Writ Petition Nos.949 of 2011, 3521 of 2011, 4847 of 2010, 4046 of 2011 & 4322 of 2011
Decided On : 04-05-2012
Charity Commissioner functions as an Administrative, Inquisitive, quasi-judicial as well as Judicial authority under Act, 1950 and has also to act as aparens patriae. - Looking to the scheme of the Act it is clear that the function of the Charity Commissioner while acting under the provisions of the Act is administrative, judicial as well as quasi -judicial and even that he acts as a watchdog and a delegate of the Government for superintendence and control over the Public Trusts. Charity Commissioner acts even as a litigant on behalf of the Trust he having been empowered to file appeals or other proceedings before the Court or he is even entitled to defend on behalf of the Public Trusts or actions of Charity Commissioner under the Bombay Public Trusts Act, 1950. The Charity Commissioner functions as an administrative, inquisitive, quasi -judicial as well as judicial authority under the different provisions of the Bombay Public Trusts Act, 1950 and has also to act/defend as a litigant for the public Trusts and parens patriae.
Power exercised by Charity Commissioner under Section 41-A of Act is administrative in nature.
Power exercised by the Charity Commissioner under Section 41-A of the Bombay Public Trusts Act, 1950 is administrative in nature and the Charity Commissioner does not act as judicial or quasi- judicial authority under Section 41-A of the Act.
Bombay Public Trusts Act, 1950 - Section 41-A - Phrase "subject to provisions of this Act".
Phrase "subject to provisions of this Act", means directions proposed must not be inconsistent with scheme of Act, 1950.
The phrase-"Subject to provisions of this Act", means the directions proposed must not be inconsistent with scheme of Bombay Public Trusts Act and are in the nature of stop-gap arrangement, subject to further orders under relevant sections and continue to hold field till they are replaced by suitable orders either under such other section or under Section 41-A. As such directions could not have been issued to persons "connected with Trust" in its absence. Under Section 41-A, directions of various nature can be issued from time to time in order to preserve or protect charity/Trust. Section 41-A is obviously subject to sections dealing with Courts. Hence, directions envisaged under Section 41-A are of same nature as can be expected from a Court but then of provisional nature to last till Court or competent Forum is approached and it, either continues, cancels or modifies the same. The Court/competent Forum can be approached in the mode and manner envisaged under Bombay Public Trusts Act for such purpose.
Bombay Public Trusts Act, 1950 - Section 41-A - Requirement of natural justice.
Though an order under Section 41-A of Act, is administrative in nature, even then opportunity of hearing to concerned party always desirable unless there is some imminent danger. - It is thus clear upon adopting the settled principles in interpreting statute that Section 41-A of the B.P.T. Act, 1950 gives ancillary or additional powers to the Charity Commissioner to suppress the apprehended mischief to property and income of the Trust and also in the administration of the Trust. Such a power also exists on judicial side in Section 41-E of the B.P.T. Act, 1950. But this power under Section 41-A of the B.P.T. Act, 1950 has been given to him to act in case doing of anything which is about to be done or is being done is causing or is likely to cause injury or annoyance or is against public interest or the interest of the object and purpose of the Trust or which may lead to breach of peace. He can thus act in emergency. In such a eventuality, and the satisfaction being subjective satisfaction of the authority, the hearing before making any order may not be possible in each case. The term "from time to time" has been deliberately utilised in Section 41-A of the B.P.T. Act, 1950, which manifestly suggests that the Charity Commissioner can issue directions number of times, may even change, modify, amend or annul such directions as per the exigencies. Such orders can in no event partake the character of quasi- judicial or judicial order. Then no appeal or revision is provided against such order/s. That is why we think that the nature of provision is ’administrative’. The submission made by Senior Advocate Shri Manohar about explanation to Rule 18 in Chapter XVII of the Bombay High Court Appellate Side Rules, 1960, does not impress Court. The reason is Charity Commissioner when makes a direction under Section 41-A of the B.P.T. Act, 1950, he does not act as either judicial or quasi -judicial authority. Secondly, while acting under Section 41-A of the B.P.T. Act, 1950, he does not make any ’order’ but issues direction/s. There is a deliberate absence of the word ’order’ in Section 41-A of the B.P.T. Act, 1950.
Bombay Public Trusts Act, 1950 - Section 41-A - Scope of.
Charity Commissioner conferred with ancillary/additional powers under Section 41-A of Act, to suppress apprehended mischief to property and income of Trust and also in administration of Trust.
It is thus, well settled that unless a statutory provision, ciuict specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi -judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application.
Thus, looked at the principles enunciated by the Apex Court, even though the act or order under Section 41-A of the B.P.T. Act, 1950 is of the administrative nature, it would be always desirable to afford opportunity of being heard to the concerned party unless there is some imminent danger. This is to prevent any damage or reflection on the management of the Trust or the Trustees running the same.
Bombay Public Trusts Act, 1950 - Section 41-A - Term "from time to time".
Term "from time to time", utilised in Section 41-A of Act, manifestly suggests that Charity Commissioner can issue directions number of times, may even change, modify, amend or anul such directions as per exigencies.
Key Points: - The Charity Commissioner functions as an administrative, inquisitive, quasi-judicial as well as judicial authority and acts as a watchdog and delegate of the Government for superintendence and control over Public Trusts (!) (!) (!) . - The powers exercised by the Charity Commissioner under Section 41-A are administrative in nature, and the Commissioner does not act as a judicial or quasi-judicial authority under this provision (!) (!) . - Though an order under Section 41-A is administrative in nature, the requirement of giving reasonable opportunity of being heard is generally read into the provisions of a statute, and the principle of natural justice is desirable to afford an opportunity to the concerned party unless there is some imminent danger (!) (!) .
A.B. Chaudhari, J.
1. Heard. Rule. Rule returnable forthwith. All these matters are taken up for final disposal with consent of the learned Counsel for the rival parties.
2. In these letters patent appeals and writ petitions, learned Counsel for both parties made their submissions on the questions, which we have framed in this judgment.
3. Advocate Shri Khapre appearing for the appellant in Letters Patent Appeal No.368/2011 made the following submissions :
(i) The Bombay Public Trusts Act, 1950 was enacted to regulate and make better provisions for the administration of public religious and charitable Trusts in the State of Bombay. Various officers who are required to implement the provisions of the said B.P.T. Act, 1950, namely the Assistant Charity Commissioner, Deputy Charity Commissioner, Joint Charity Commissioner and Charity Commissioner are performing judicial functions or in respect of some provisions; the quasi-judicial functions. That is evident from the reading of several provisions of the B.P.T. Act, 1950, namely Sections 22, 22A, 22B, 22C, 41A, 41D, 41E, 50, 50A and 51. If these provisions are carefully perused, it will be seen that the enquiry required to be made under these provisions, is in the nature of enquiry in the judicial proceedings. Rule 7 of the Bombay Public Trusts Rules, 1951 (for short “the B.P.T. Rules, 1951) also mentions all these provisions except Section 41A of the B.P.T. act, 1950 as to the manner of enquiry to be conducted, namely the procedure prescribed under the Provincial Small Cause Court Act, 1887 etc.. However, Rule 7 will also encompass Section 41A of the B.P.T. Act, 1950 in view of the words used “or any other enquiry” in the said Rule 7 of the B.P.T. Rules, 1951. The learned Single Judge committed an error in omitting to look the said words before taking the help of Rule 7 of the B.P.T. Rules, 1951.
(ii) Section 80 of the B.P.T. Act, 1950 provides for a bar of jurisdiction of civil Court which clearly indicates that the Charity Commissioners and the other officers are the substitutes for the civil Court for exercising the powers in the aforesaid provisions. The bar of jurisdiction of the civil Court clearly indicates this position. That being so, the Charity Commissioners and the officers are required to be held as performing the judicial functions of civil Court or at the most quasi-judicial functions.
(iii) In the provisions above mentioned, important civil rights of the parties to the proceedings are decided and they affect the rights & liabilities of the persons who are parties to the various proceedings under the aforesaid provisions. If the persons are affected because of the orders passed by the Charity Commissioners and the other officers under the various provisions quoted above, there is no reason why the functions of the Charity Commissioner should not be held as judicial or at least quasi-judicial function.
(iv) Even under the provisions of Section 41A of the B.P.T. Act, 1950, the Charity Commissioner issues directions and recognizes a particular board of trustees or trustees for management of the Trust and its institutions which would clearly affect the rights and liabilities of various parties and the property, income and the administration of the Trust. Such exercise of power cannot be said to be administrative in nature since important civil rights of the parties are decided under Section 41A of the B.P.T. Act, 1950. The function under Section 41A of the B.P.T. Act, 1950 of the Charity Commissioner therefore must be held to be judicial or at least quasi-judicial and not the administrative function.
(v) Advocate Shri Khapre also cited several decisions as to when any particular authority said to have passed the quasi-judicial order and what are the tests for finding out the nature of order as quasi-judicial.
(vi) Referring to several decisions of the Single Bench and Division Bench of this Court which we would refer in our judgment, Advocate Shri Khapre arg
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