HASAN NURANI MALAK Vs. S M ISM AIL ASSISTANT CHARITY COMMISSIONER NAGPUR

JUDGEMENT

(1.) This is an appeal by special leave against the Judgment and order of the High Court of Maharashtra dismissing the appellant's petition under Article 226 of the Constitution. The question arising in the appeal is whether the Assistant Charity Commissioner appointed under the Bombay Public Trusts Act, 1950 as extended to the area of Vidarbha has jurisdiction to hold an inquiry under Section 19 of that Act in spite of a previous finding by the Registrar under the Madhya Pradesh Public Trusts Act, XXX of 1951 that the trust in question was not a public trust within the meaning of the latter Act. The facts leading to the writ petition may briefly be set out.

(2.) In October 1953, one Jaferbhai claiming to be a beneficiary applied under S. .5 of the M. P. Act to the Registrar that the trust known as Mehdibaug founded in Nagpur in 1891 and its properties which were and are admittedly in possession of and managed by the appellant was a public trust. As required by Section 5 (2) of that tact the Registrar directed that a proclamation in respect of the said application should be published in the next issue of Madhya Pradesh Gazette. The inquiry held by the Registrar ended in an order dated November 11, 1955 whereby he held that the trust was not a public trust. Though the Registrar gave his aforesaid finding he did not cause an entry thereof to be made in the register maintained by him under the Act. On November 1, 1956 as a result of the reorganisation of States Vidarbha was merged in the then Bombay State. The Bombay legislature thereafter passed the Bombay Public Trusts (Unification Amendment) Act, 1959 and by a notification dated February 1, 1961 passed thereunder the Bombay Public Trusts Act 1950 was extended to the Vidarbha area. On March 2, 1962, respondents 2 to 5 filed an application under Section 19 of the Bombay Act, 1950 before the Assistant Charity Commissioner for an inquiry as to whether the said trust was a public trust. The appellant contended that since the trust was already declared not to be a public trust under the M. P. Act the Assistant Charity Commissioner was precluded from holding the inquiry under the Bombay Act. On September 6, 1962, the Assistant Charity Commissioner rejected that contention. Thereupon the appellant filed the aforesaid petition in the High Court. The High Court as stated above dismissed the petition holding that the Assistant Charity Commissioner had jurisdiction to hold the inquiry. It is this order which is impugned for this appeal.

(3.) In view of the controversy between the parties as to the effect of certain provisions of the Bombay Act 1950 and the M. P. Act of 1951 it becomes necessary to briefly notice some of the relevant provisions of the two Acts. Section 2 (4) of the M. P. Act defines "public trust" as meaning an express or constructive trust for a public, religious or charitable purpose and includes a temple etc. or any other religious or charitable endowment and a society formed for a religious or charitable purpose. Sub-section (5) of that section defines "register" as meaning a register maintained under sub-section (2) of Section 3 of the Act. Section 3 (2) provides that the Registrar should maintain a register of public trusts and such other books and registers and in such form as may he prescribed. Section 4 provides for the registration of public trusts and lays down that the working trustee of every public trust should apply to the Registrar for its registration by an application have to be set out. Section 5 provides that on receipt of such an application or upon an application made by any person having interest in a public trust or on his own motion, the Registrar shall make an inquiry in the prescribed manner for ascertaining amongst other things whether the trust in question is a public trust. Sub-section (2) of Section 5 as aforesaid provides for giving a public notice of the inquiry proposed to be made inviting all persons interested in the public trust under inquiry to prefer objections, if any, in respect of such trust. Under Section 6 the Registrar on completion of the inquiry has to record his findings with reasons therefor as to the matters set out in Section 5 (i) and under Section 7 (1) he has to cause entries to be made in the register in accordance with his findings and has to publish on the notice hoard of his office the entries so made. Sub-section (2) of Section 7 reads as under:-