Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2012 Supreme(Bom) 933

In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.B. CHAUDHARI, JJ.
Mrs. Vanmala Manoharrao Kamdi & Others
Versus
The 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

Advocates appeared:
For the Appellants:A.M. Gordey, Sr. Advocate with A.P. Thakre, R.L. Khapre, S.V. Manohar, Sr. Advocate. with S.S. Sanyal, B.G. Kulkarni, Advocate.
For the Respondents:Wachasundar, R1, A.D. Sonak, AGP, A.Z. Jibhkate, Abhyankar, S.B. Ahirkar, AGP, R2, A.S. Chandurkar, Shirsat, R5 & R6, Prashant Gode, Advocates.
For the Intervenor:Ashish Chaware, Advocate.

The nature of provision of Section 41A of the Bombay Public Trusts Act, 1950 and the directions issued there under are administrative only.

Headnote:
Bombay Public Trusts Act, 1950 - Section 41A - Nature of provision and exercise of power - Whether adjudicatory of any dispute or lis or administrative - Held, the nature of provision of Section 41A of the Bombay Public Trusts Act, 1950 and the directions issued there under are administrative only.
Fact of the Case:

None
Finding of the Court:

None
Issues: Whether the functions and powers exercised by the Charity Commissioner under the various provisions of the Bombay Public Trusts Act, 1950 are only judicial in nature ? Whether the nature of provision of Section 41A of the Bombay Public Trusts Act, 1950, and the directions issued by the Charity Commissioner there under are adjudicatory of any dispute or lisor administrative ?
Ratio Decidendi: 1. The Charity Commissioner functions as an administrative, inquisitive, quasi-judicial as well as judicial authority under the different provisions of the B.P.T. Act, 1950 and has also to act/defend as a litigant for the public trusts as parenspatriae. 2. The provision of Section 41A of the B.P.T. Act, 1950 is not ultra vires provision of Article 25 (1) and 26 (b) and (c) of the Constitution. 3. Issuance of directions under Section 41A of the B.P.T. Act, 1950 is not quasi-judicial function but the same is administrative function or the administrative act. 4. The Charity Commissioner does not act as judicial or quasi-judicial authority under Section 41A of the B.P.T. Act, 1950.
Final Decision: Letters Patent Appeal No.226/2011, 368/2011 and 549/2011 are allowed. The order of learned Single Judge to the extent, the same dismisses Writ Petition Nos. 949/2011, 3521/2011 & 4847/2010 are set aside. The rest of the impugned order/judgment in Writ Petition No. 4847/2010 is maintained as it is. These Writ Petitions are restored back to file. Place the said Writ Petitions before appropriate Division Bench for further consideration of the controversy involved therein on merits. Writ Petition Nos. 4046/2011 and 4322/2011 are correctly filed before the Division Bench of this Court. The same shall also be listed before the appropriate Division Bench for consideration of the controversy involved therein on merits. Rule is made absolute in all the matters. However, in the facts and circumstances of the case, there shall be no order as to costs.

Judgment :-

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 Khapr

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