KANBI MANJI ABJI Vs. KANBI VELJI MANJI
HIGH COURT OF GUJARAT
KANBI MANJI ABJI
KANBI VELJI MANJI
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(1.) In this appeal under sub-sec. (4) of sec. 72 of the Bombay Public Trusts Act 1950 (hereinafter referred to as the Act) two questions in the main have been raised on behalf of the appellants by their learned counsel Mr. I. M. Nanavati namely (1) the Charity Commissioner had exercised his discretionary jurisdiction under sec. 70A of the Act after a lapse of reasonable time and hence the order passed in exercise of his revisional powers was liable to be set aside on the ground of delay and laches; and (ii) the directions initially issued under sec. 41A at Ex. 21 merged into the final order passed by the Charity Commissioner under sec. 70A and was therefore liable to be assailed under sec. 72(1) of the Act before the District Court and the learned District Judge who disposed of the said application was wrong in holding that notwithstanding the fact that the impugned order formed part of the final order passed under sec. 70A it was in effect and for all purposes an order under sec. 41A which could not be assailed under sec. 72(1) of the Act. As a limb of the same submission it was further argued that the learned District Judge ought to have set aside that part of the direction issued by the learned Charity Commissioner as he was unmistakably of the opinion that the said direction was legally untenable. These two contentions raised before me arise in the backdrop of the following facts:-
(2.) In village Baladia taluka Bhuj there is a temple known as Abji Bapa Chhatedi and Hanumanji Temple which came to be registered as a public trust pursuant to an inquiry held under sec. 19 of the Act after the provisions of the Act were extended to the said region on 31st July 1961 The application for registration of the trust was made under sec. 18 of the Act by one Kanji Harji Jesani of village Baladia on the basis of a trust deed dt. 30th March 1960 executed by Manji Abji and Kanji Abji the son and grandson respectively of the late Abji Bapa to whom the properties mentioned in the deed originally belonged. It was mentioned in the trust deed that the said properties were being used by persons belong. ing to the Swaminarayan sect who were the followers of Abji Bapa for worship and such other purposes. On the basis of the information supplied to the learned Deputy Charity Commissioner in the said application made under sec. 18 and the inquiry held pursuant thereto under sec. 19 of the Act the trust was registered as a public trust by an order dated 6th February 1963 at No. K/307. Certain change reports were filed by the trustees after the registration of the trust with which we are not presently concerned.
(3.) Shortly after the registration of the trust on 6th February 1963 Kanbi Velji Manji and Kanbi Lalji Manji (respondents Nos. 1 and 2 herein) and three others instituted a suit No. 20/64 on 21st April 1964 in the court of the learned Civil Judge Senior Division Bhuj. Notice under O. 1 R. 8 C.P.C. was issued in that matter. It appears that on 1st May 1964 Karsan Arjan and Kanji Shamji (respondents nos. 3 and 6 herein) made an application to the Deputy Charity Commissioner that there existed a trust of Abji Bapa and the same was required to be registered as a public trust under the provisions of the Act. It appears that this application was made in ignorance of the fact that the trust had already been registered by the Deputy Charity Commissioner on 6th February 1963 On the aforesaid two persons being informed of the registration of the trust they withdrew their application on 2nd May 1964 i. e. on the next day and the application stood dismissed as withdrawn. However on 16th June 1964 Karsan Arjan (respondent no. 3 herein) and 22 others applied to be impleaded as parties to the suit in response to the public notice issued under O. 1 R. 8 of C. P. Code. In that suit on behalf of the appellants herein a written statement was filed on 29th July 1964 to the effect that as the trust in question was registered as a public trust on 6th February 1963 in view of the clear mandate of sec. 80 of the Act the Civil Court had no jurisdiction to hear the suit. It was therefore emphasised by Mr. Nanavati from the aforesaid facts that respondents Nos. 1 and 2 had become aware of the fact that the trust was registered when the trustees filed their written statement to the suit on 29th July 1964 disclosing this fact. So far as Karsan Arjan respondent No. 3 herein is concerned it was emphasised by Mr. Nanavati that he became aware of the registration of the trust when he withdrew his application on 2nd May 1964 for registration of the trust. Now during the pendency of the suit the aforesaid three respondents on realising that the trust was registered filed an application on 4th March 1965 before the learned Charity Commissioner requesting him to exercise his discretionary jurisdiction under sec. 70A and reopen the inquiry under sec. 19 of the Act in regard to certain matters concerning the said trust. The said application was registered and numbered as Revision Application No. 7165 by the office of the learned Charity Commissioner. It was pointed out in that application that some properties which belonged to the trust had been left out the object of the trust had not been correctly stated the made of succession to trusteeship as stated therein was not correct and hence a fresh inquiry in these matters was absolutely necessary. Pending the said proceedings before the learned Charity Commissioner an application was made on 9th June 1966 by the present respondents Nos. 1 2 and 3 under sec. 41A of the Act for certain directions. The learned Charity Commissioner considered this application and issued the necessary directions at Ex. 21 on 17th June 1966 Thereafter the learned Charity Commissioner heard the revision application after notices to the present appellants and disposed it of by the following order passed on 3rd November 1966
"For the above reasons I allow this revision application and do hereby set aside the findings about the trustees and mode of succession to trusteeship given by the learned Deputy Charity Commissioner Bhuj in inquiry No. 329/61. This inquiry is remanded to the Deputy Charity Commissioner Bhuj for disposal in accordance with law for ascertaining the trustees mode of succession to trusteeship additional objects and additional properties if any of this trust. As regards the objects the learned Deputy Charity Commissioner will ascertain as to whether there are any additional objects over and above the objects registered by him in the public trusts register. The learned Deputy Charity Commissioner will also ascertain as to whether any other property has remained to be registered as the property of this trust over and above the property registered as the property of this trust in inquiry No. 329/ 61 and various other change reports. Other findings given by the learned Deputy Charity Commissioner Bhuj will remain undisputed. The learned Deputy Charity Commissioner will issue a public notice in the local newspaper and a notice may be affixed on the trust premises and also in the office of the Deputy Charity Commissioner Bhuj for the present inquiry. The petitioners and the opponents and other persons who might appear in the inquiry may be given an opportunity to have their say and to lead oral and written evidence in support of their respective say. Touching the directions given by the learned Charity Commissioner in exercise of powers under sec. 41A of the Act at Ex. 21 on 17th June 1966 the impugned order of 3rd November 1966 disposing of the application under sec. 70A of the Act contained the following directions:-
"Directions issued by me on 17-6-66 at Ex. 21 under sec. 41A of the Bombay Public Trusts Act 1950 will remain in force till the disposal of the inquiry No. 329/61".
It is the contention of the appellants that as this direction to continue the directions issued under sec. 41A of the Act at Ex. 21 till the disposal of the inquiry reopened under the order in revision is embodied in the impugned order it merges and forms part of that order and was clearly liable to be assailed under sec. 72(1) of the Act.;
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