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PETITIONER: MUNICIPALITY OF TALODA

       Vs.

RESPONDENT: THE CHARITY COMMISSIONER & ORS.

DATE OF JUDGMENT: 28/09/1967

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SHELAT, J.M.

CITATION:  1968 AIR  418            1968 SCR  (1) 652

ACT: Bombay  Public Trusts Act (Bom. 29 of 1950) Ss. 2(13) 9  and 72--Decision of Survey Officer-Scope of-Trust for  uncertain and   fluctuating  body  of  persons--Decision  of   Charity Commissioner  that  public trust was not for  the  sect  for which   application  made-Maintainability  of   application- Charity Commissioner, if has right to appeal. Bombay  District Municipal Act (Bom. 6 of 1873) S,  17-Trust in  favour  of  a section of  general  public-Acceptance  by Municipality Right of Municipality-Bombay District Municipal Act  (Bom.  3 of 1901) s. 50 A-Decision of  Survey  Officer- Whether bars proceedings under Bombay Public Trusts Act.

HEADNOTE: A property was conveyed to the respondent-Municipality by  a deed "for the purpose of Sarvajanik Kam (public purpose)  as it has been utilised uptodate for shelter of Atit, Abhyaqat, Sadhu, Sant, etc.". It was also recited in the deed that  in the  property  conveyed  there was  "a  Samadhi  (grave)  of Nagabawa."  The  Municipality entered  possession  and  made certain  constructions which were used for its  offices  and for  shops.  Thereafter, the Municipality sued for a  decree for delivering possession of a part of the property  against a  Sadhu  who had unlawfully. occupied it and the  suit  was decreed.  Later, in survey proceedings members of the Johari Panch  claimed that they had entrusted their temple  to  the Municipality for administering it for the community, but the compound  belonged  to them and that  the  Municipality  was merely a trustee thereof.  The Secretary of the Municipality admitted that in the property there existed a temple of  the Joharis and that the members of that community had the right to  visit  the temple at fixed times but that  they  had  no other  right.  The Survey Officer declared the  Municipality to  be the owner of the property and not a trustee  for  the Johari Panch.  Thereupon, an application under s. 19 of  the Bombay  Public Trusts Act was filed for a  declaration  that the  property was settled in favour of the Municipality  for the  benefit  of the Johari Panch and that the  property  be registered as property of a public trust under the Act.  The Charity Commissioner declared that there was a public trust, that the Municipality was the trustee thereof, and that  the property was transferred in the Municipality for the benefit

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of  members  of  the public interested  in  the  Samadhi  of Nagabawa;  but  he held that there was no  such  institution known  as  Johari Panch and that the property had  not  been used  for  the benefit of that community.   In  appeal,  the District   Court  set  aside  the  order  of,  the   Charity Commissioner.  The Charity Commissioner appealed to the High Court,  which reversed the order of the District  Court  and restored the order of the Charity Commissioner.  In  appeal, this Court, Held:     The appeal must fail. (i)  The  property  was entrusted to  the  Municipality  for providing   shelter   to  sadhus,   saints   and   religious mendicants. the purpose was religious and charitable  within the meaning of S. 2 (13) of the                             653 Bombay Public Trusts Act.  The trust was not limited to  the buildings  standing on the land; but extended to the  entire property.  Sadhus, religious mendicants and visitors to  the Samadhi of Nagabawa are a section of the public.  They  have a   common  bond  of  veneration  for  the   Samadhi.    The beneficiaries of the trust are an uncertain and  fluctuating body of persons forming a considerable section of the public and  answering a particular description, and the  fact  that they  belong to a religious faith or a sect of persons of  a certain  religious faith or a sect of persons of  a  certain religious  persuasion  does not make any difference  in  the matter. [660 A-C]. Mahant Ram Saroop Dasji v. S. P. Sahi [1959] Suppl. 2 S.C.R. 583 followed. (ii) After the transfer of the property was accepted by  the Municipality  for the purpose mentioned in the deed  it  was not  open  to  the Municipality to divert the  use  of  that property for its own purposes.  There is nothing in Act 6 of 1873  or  in the general law which prevents  a  Municipality from accepting a trust in favour of a section of the general public  in respect of property transferred to it.  Nor  does the  Act authorise a Municipality, after accepting a  trust, to  utilise it for its own purpose-in breach of  the  trust. [657 B-C; 658 C]. (iii)     The  contention, that once it was found  that  the property  was  not for the benefit of  Johari  Panches,  the application  should have been dismissed, had no force.   The proceedings were commenced under s. 19 of the Bombay  Public Trusts  Act, and it was open to the Charity Commissioner  to determine whether a public trust existed, and if the Charity Commissioner  was  satisfied  that there  existed  a  public trust, whatever may be the claim made by the applicants, the Charity  Commissioner was bound to declare the existence  of the public trust and register it.  Under s.19 an enquiry may be  started by the Deputy or Assistant Charity  Commissioner on tin application made under s.18 or on an  application made by any person having interest in a public trust or  on his own motion. [660 G, H]. (iv) The  Sadhu  who had unlawfully possessed himself  of  a part  of  the  property  in  dispute  was  not  sued  in   a representative  capacity on behalf of the  beneficiaries  of the  trust;  he was sued as a  trespasser.   Therefore,  the judgment  did  not operate as resjudicata, and  the  Charity Commissioner  was  not  prevented  from  determining  in  an appropriate proceeding whether the property was the property of a public trust of a religious or charitable nature.  [658 F]. (v)  The argument, that the decision of the Survey  Officer, operates  by  virtue  of  s. 50-A  of  the  Bombay  District Municipal Act, 1901 to destroy the rights of the public,  is

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without  substance.   By  sub-s.  (2)  of  s.  50A,  if  the Collector had passed an order, a suit in a civil court shall be dismissed if the suit was brought to set aside the  order of  the Collector or if the relief claimed was  inconsistent with  such  order  In the present  case,  the  property  was entered  in the Survey record as that of  the  Municipality. But  the  legal  ownership  of  the  Municipality  was   not challenged   in   the   proceedings   before   the   Charity Commissioner.   The  proceeding under s. 19  of  the  Bombay Public  Trusts Act was for a declaration that  the  property was  the property of a public trust and therefore was not  a suit  to set aside the order of the Collector. nor was it  a suit  in which the relief claimed was inconsistent with  the order of the Survey Officer. [658 G-659 B]. (vi) A  person interested as the Charity Commissioner is  in the due administration of property, cannot be denied a right to appeal- 654 against an adverse decision in a proceeding to which he is a party,  on the ground that he is pleading for acceptance  of the view which he had declared as a quasi-judicial authority at an earlier stage of that proceeding. [661 E-F].

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 72 of 1965. Appeal  by special leave from the judgment and decree  dated August  28, 1962 of the Bombay High Court in Appeal No.  250 of 1959 from Original Decree. S.   G. Patwardhan, R. R. Jhagirdar, V. G. Mudholkar and A.   G. Ratnaparkhi, for the appellant. R.   H. Dhebar, S. S. Javali and S. P. Nayar, for respondent No. 1. S.  S. Shukla, for respondents Nos. 2(ii)-(v). The Judgment of the Court was delivered by Shah,  J.-One Sambhusing applied under s. 19 of  the  Bombay Public  Trusts  Act 29 of 1950 for a declaration  that  City Survey Nos. 371 to 379 of Taloda were settled by one  Dagadu Khushal  in  favour  of the Municipality  in  1883  for  the benefit  of  the  Johari Panch and for  an  order  that  the property  be registered as property of a public trust  under the  Act.  The Assistant Charity Commissioner who heard  the petition  by  his order dated January 20,  1956,  held  that "there  was no such institution known as Johari Panch",  and that  the  property  in dispute had not been  used  for  the benefit  of  that community, but Dagadu Khushal  had  trans- ferred  the property to the Municipality for the benefit  of members of the public interested in the Samadhi of Nagabawa. The Assistant Charity Commissioner declared that there was a public  trust  and  City Survey Nos. 371 to  379  of  Taloda Municipality  were  the property of the Trust and  that  the Municipality  held it as trustee of that trust.  That  order was confirmed in appeal by the Charity Commissioner.   In appeal, the District Court set aside  the order of the Charity Commissioner and held that by the  deed of transfer executed by Dagadu Khusbal no trust was created, that in any event the trust was not a public trust and  that the  property  in City Survey Nos. 371 to 379  was  not  the property of any such trust.  In appeal under s. 72(4) of the Act,  the High Court of Bombay reversed the order passed  by the  District  Court and restored the order  passed  by  the Charity Commissioner.  The Municipality of Taloda has  filed this petition with special leave. A short history of the property may first be set out.   Land

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which  now bears City Survey Nos. 371 to 379 originally  be- longed to one Charandas who erected a ’Dharamshala’ thereon. On May 24, 1878, Charandas sold the land and the Dharamshala to  Dagadu  Khushal  purporting  to  transfer  the  property absolutely  to  the  vendee.  On  August  27,  1883,  Dagadu Khushal  executed  a deed in favour of the  Municipality  of Taloda, the relevant clause                             655 of  the  deed  (as translated in the judgment  of  the  High Court) reads as follows-               "Having  released all my rights, interest  and               title   in  the  Property  mentioned  in   the               boundaries above, I am handing over today  all               that   property  in  the  possession  of   the               Municipality for the purpose of sarvajanik kam               (public purpose) as it has been utilised  upto               date  for  shelter of Atit,  Abhyagat,  Sadhu,               Sant etc. to be used in the same way as it has               been used up till now." It  was  recited in the deed that in the  property  conveyed "there is a samadhi (grave) of Nagabawa".  The Municipality, pursuant  to  the deed, entered into the possession  of  the property.. It appears that thereafter the Municipality  made certain  constructions which were used for its  offices  and for shops. On  September 21, 1936, the Municipality of Taloda  filed  a suit  against  one  Baba Haridas Guru Shamdas  Udasi  for  a declaration that the defendant had no right or interest over the land City Survey Nos. 371 to 379 and that the  defendant had taken unlawful possession thereof and for an order  that the  obstruction  raised by the defendant  be  removed,  and possession  of the land be awarded to the Municipality.   In this suit it was claimed by the Municipality that it was  in possession  of  the land for more than sixty years  and  the property  was  "utilised  for  municipal  purposes  and  was enjoyed  in all ways for necessary municipal  requirements", but   the  defendant  had  made  unauthorised   construction thereon.   Baba Haridas contended that the Municipality  had no  right  to utilise the property  for  municipal  purposes since  it  was  transferred in trust for  the  residence  of "sages,  saints,  guests, visitors and others of  the  Nanak Sect", and the defendant being "a sage or saint of the Nanak Sect" had been residing in the property and was entitled  to do so.  This suit was decreed by the Subordinate Judge. In  1950  survey  proceedings were started in  the  town  of Taloda  and an enquiry regarding the, title to the land  was made.  The Secretary of the Municipality admitted before the City Survey Officer that in Survey No. 379 there existed  "a temple of the Johari men and the members of that,  community had  the right to visit the temple at fixed times  but  they had  no other right".  Members of the Johari  Panch  claimed that they had entrusted their temple to the Municipality for administering  it  for  the community,  but  the  "compound" belonged  to  them and that the Municipality  was  merely  a trustee  thereof.   The  City Survey  Officer  declared  the Municipality to be the owner of the property in question and further  declared that the Municipality was not  a  trustee- for  the  Johari  Panch.   Sambhusing  then  submitted   the application out of which this appeal has arisen. The  High Court has held that the Municipality held  at  all material times the property as a trustee of a public  trust. This                             656 finding  is challenged before us by the  Municipality.   The first  question which falls to be considered is whether  the

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Municipality  holds  the property or any part thereof  as  a trustee.   Dagadu  Khushal claiming to be the owner  of  the property  by purchase from Charandas transferred it  to  the Municipality  for  public purpose i.e. to  be  utilised  for giving shelter to "Sadhus, saints and religious  mendicants" in  the same manner in which it had been utilised  upto  the date of transfer.  We will assume that Dagadu Khushal  could have,  when he was the owner, stopped the user of  the  pro- perty  for  the  benefit of "Sadhus,  saints  and  religious mendicants".   But  after the transfer of the  property  was accepted  by the Municipality for the purposes mentioned  in the deed, it was not open to the Municipality to divert  the use of that property for its own purposes.  Counsel for  the Municipality  urged  that the Municipality is in a  sense  a trustee  for the residents of the town of Taloda in  respect of  all  the property vested in it by operation of  the  Act constituting  it,  and upon that trust another  trust  which restricts  the  use of the property for the  benefit  of.  a limited  class  of  persons cannot  be  super-imposed.   The Municipality  was governed by Act VI of 1873 at the date  of the settlement.  Section 17 of that Act provided:               "All  property  of  the  nature,   hereinafter               specified shall be vested in and belong to the               Municipality,  and  shall, together  with  all               other property, of what nature or kind soever,               which  may become vested in the  Municipality,               be  under  their  direction,  management,  and               control, and shall be held and applied by them               as trustees for the purposes of this Act; that               is to say:               (a)   All  public town walls  gates,  markets,               slaughterhouses,  manure and nightsoil  depots               and-public buildings of every description  not               specially reserved by Government.               (b)   All  public streams, tanks,  reservoirs,               cisterns, wells, springs aqueducts,  conduits,               tunnels, pipes, pumps, and other  water-works,               and  all  bridges buildings,  engines,  works,               materials,  and things connected therewith  or               appertaining  thereto, and also  any  adjacent               land (not being private property) appertaining               to any public tank or well.               (c)   All  public sewers and drains,  and  all               sewers, drains, tunnels, culverts, gutters and               watercourses  in,  alongside,  or  under   any               street,  and  all works materials  and  things               appertaining thereto, as also all :dust, dirt,               dung.  ashes, refuse, animal matter or  filth,               or  rubbish  of  any  kind  collected  by  the               Municipality   from   the   streets,   houses,               privies, sewers, cesspools, or elsewhere.               657               (d)   All   public  lamps,  lamp  posts,   and               apparatus connected therewith, or appertaining               thereto.               (e)   All   land   transferred  to   them   by               Government, or by gift, or otherwise for local               public purposes.               (f)   All public streets, and spaces, and  the               pavements,   stones,   and   other   materials               thereof,   and  also  all  trees,   erections,               materials, implements, and things provided for               such streets and spaces." Property  belonging  to a Municipality governed by  the  Act must undoubtedly be held under its direction, management and

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control  and must be applied by it as a trustee, subject  to the provisions and for the purposes of the, Act.  But  there is nothing in the Act or in the general law which prevents a Municipality  from accepting a trust in favour of a  section of the general public in respect of property transferred  to it,  or authorises the Municipality after accepting a  trust to utilise it for its own purposes in breach of the trust. It  was then urged by counsel for the Municipality  that  by the  decree passed in the suit filed against  Baba  Haridas, the  right  of the members of the Johari  community  to  the property in dispute was negatived and the same right cannot, because of the rule of res judicata, be re-agitated in these proceedings.  In that argument, in our judgment, there is no substance.  The only dispute in suit No. 5 10 of 1936 of the Court of the Second Class Sub-Judge Nandurbar, was about the right  of  the  Municipality to call upon  Baba  Haridas  to vacate  and deliver possession of the property which was  in his occupation.  It is true that the defendant Baba  Haridas had  contended that the property was the  property  reserved for  "Sadhus, saints and religious mendicants" and he  as  a Sadhu was entitled to reside therein.  But Baba Haridas  was not  sued  in  a representative capacity on  behalf  of  the beneficiaries of the trust created in 1883; he was used  as a  trespasser.   The judgment of the civil  court  does  not operate  to prevent the Assistant Charity Commissioner  from determining   in  an  appropriate  proceeding  whether   the property  was the property of a public trust of a  religious or charitable nature. The  argument  of  counsel for  the  Municipality  that  the decision  of the City Survey Officer operates by  virtue  of s.50-A  of  the  Bombay District  Municipal  Act,  1901,  to destroy the rights of the public, is also without substance. Sub-section (1) of s. 50-A of the Bombay District  Municipal Act,   1901,   authorises  the  City  Survey   Officer,   in proceedings  for survey of lands (other than land  used  for agriculture) in a Municipal District to determine the  claim between  the  Municipality and other  persons  after  formal enquiry  of which due notice has been given.  By sub-s.  (2) any suit instituted in any civil court after the  expiration of  one  year  from  the date of any  order  passed  by  the Collector,  or  if an appeal has been made  I  against  such order within the period of limitation, shall be dismissed if the  suit  is  brought to set aside such order,  or  if  the relief 658 claimed  is inconsistent with such order, provided that  the plaintiff  has had due notice of such order.   The  property undoubtedly is entered in the City Survey record as  private property   of  the  Taloda  Municipality.   But  the   legal ownership  of  the  Municipality is not  challenged  in  the proceedings  before the Assistant Charity Commissioner.   It is  merely contended in this proceeding under s. 19  of  the Bombay  Public Trusts Act that the property ’is held by  the Municipality  subject  to a public  trust.   The  proceeding under  s.  19  of  the  Bombay  Public  Trusts  Act  for   a declaration  that the property is the property of  a  public trust is not a suit to set aside the order of the Collector, nor is it a suit in which the relief claimed is inconsistent with the order of the City Survey Officer. The  learned  Assistant Judge held  that  the  beneficiaries referred  in  Ext.  14  as  "Sadhus,  saints  and  religious mendicants"  do not, form the public or a  section  thereof, and on that account also the use of the property by them was not an object of general public utility.  The bounty of  the settlor,  observed  the  learned  Judge,  must  be  directed

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towards the public as a whole or a section of the public: if the object of his bounty is neither the public nor a section of  the  public,  "but merely a conglomeration  of  men  who constitute a mere group and the nexus which ties them is not a nexus which constitutes them a section of the public,  the trust is not for advancement of any object of general public utility".  We are unable to agree with that view.  Section 9 of the Bombay Public Trusts Act provides:               "For  the purposes of this Act,  a  charitable               purpose includes-               (1)   relief of poverty or distress,               (2)   education,               (3)   medical relief, and               (4)   the  advancement of any other object  of               general public utility,               but does not include a purpose which relates-               (a)   exclusively to sports, or               (b)   exclusively  to  religious  teaching  or               worship."               Section 10 of the Act provides,               "Notwithstanding  any law, custom or usage,  a               public  trust shall not be void, only  on  the               ground  that  the persons or objects  for  the               benefit  of whom or which it, is  created  are               unascertained or unascertainable.               Explanation- The  expression  "public trust" is defined in  s.  2(13)  as meaning  an,  express  or constructive trust  for  either  a public,  religious  or  charitable  purpose,  or  both   and includes  a temple, a math, a wakf, a dharmada or any  other religious or charitable purpose or for both 659 and  registered under the Societies Registration Act,  1860. A trust for either a religious or charitable purpose or  for both  by  the express words of the definition  is  a  public trust.   We are unable to agree with the  learned  Assistant Judge that Sadhus, religious mendicants and visitors to  the samadhi  of Nagabawa are not a section of the  public.  They have  a  common  bond of veneration for  the  samadhi.   The beneficiaries of the trust are an uncertain and  fluctuating body of persons forming a considerable section of the public and  answering a particular description, and the  fact  that they  belong to a religious faith or a sect of persons of  a certain religious persuasion does not make any difference in the  matter: Mahant Ram Saroop Dasji v. S. P. Sahi(1).   The property  is  entrusted to the  Municipality  for  providing shelter  to "sadhus, saints and religious  mendicants",  the purpose, in our judgment, is religious and charitable within the meaning of s. 2(13), of the Act. The  plea that Dagadu Khushal had entrusted the property  to the Municipality only for maintaining a Dharamshala for  the benefit of persons visiting the samadhi of Guru Nagabawa and the   trust  was  limited  only  to  the  building  of   the Dharamshala  has  also no force.  The terms of Ext.  14  are clear.  The trust was not limited to the buildings  standing on the land, it extended to the entire property. Two  procedural objections which were raised by counsel  for the,  Municipality  remain to be considered.  It  was  urged that  since  Sambhusing applied for a declaration  that  the purpose  of the trust was to give shelter to sadhus,  saints and religious mendicants during their sojourn in Taloda  and to  maintain and look after Nagabawa’s samadhi, and  for  an order  that all the lands adjoining the samadhi of  Nagabawa i.e. the Dharamshala, the whole building in which there  was the  Municipal office, may be given into the  possession  of

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the Johari Panchas, it was not open to the Assistant Charity Commissioner to give a findings that there existed a  public trust for the benefit of persons interested in the  samadhi. It  was contended that once it was found that  the  property was   not  for  the  benefit  of  the  Johari  Panchas   the application  should have been dismissed.  We are  unable  to agree with that contention.  The proceedings were  commenced under  s.  1,9 of the Bombay Public Trusts Act, and  it  was open  to  the Assistant Charity  Commissioner  to  determine whether a public trust existed, and if the Assistant Charity Commissioner  was  satisfied  that there  existed  a  public trust, whatever may be the claim made by the applicants. the Assistant  Charity  Commissioner was bound  to  declare  the existence of the public trust and register it.  Under s.  19 of the Bombay Public Trusts Act an inquiry may be started by the  Deputy or Assistant Charity Commissioner either  on  an application  made under s. 18 or on an application  made  by any person (1) [1959] Suppl.      (2) S.C.R. 583 ( 2 ) L/P(N)7SCI--3 660 having interest in a public trust or on his own motion.  The proceedings  before the Assistant Charity  Commissioner  was not  a  proceeding  inter partes,  and  Sambhusing  was  not claiming  any  personal relief.  He was entitled to  set  in motion  an enquiry into the nature of the trust as a  person claiming  to  be  interested in the public  trust.   If  the Assistant  Charity  Commissioner found that a  public  trust existed,  he  could  make  an  appropriate  declaration  and consequential orders consistent with his findings. It  was  finally  urged  that against  the  finding  of  the District Court that there was no public trust, and if  there was a public trust the beneficiaries were not the members of the public, the Charity Commissioner could not appeal to the High  Court, for, it was said, the Charity  Commissioner  is constituted  by the Act a judicial authority, and he  cannot take  up in the proceeding a contentious attitude.   We  are unable  to accept that contention also.  The powers  of  the Charity  Commissioner under the Act are found in s. 3.  That Officer is directed to exercise such powers and perform such duties  and functions as are conferred by or under the  pro- visions  of the Act, and shall, subject to such  general  or special orders as the State Government may pass, superintend the  administration and carry out the provisions of the  Act throughout the State.  If an adverse decision is arrived  at by  the Court under s. 72 and if he is denied the  right  to appeal to the High, Court, it would be difficult for him, if he  is of the view that the property is the property of  the public  trust and if the District Court rules otherwise,  to carry   out  the  provisions  of  the  Act.    The   Charity Commissioner  was  made a party to the appeal,  and  he  was entitled to support his order before the District Court.   A person interested, as the Charity Commissioner is in the due administration  of  property, cannot be denied  a  right  to appeal against an adverse decision in a proceeding to  which he  is  a  party,  on the ground that  he  is  pleading  for acceptance  of  the view which he had declared as  a  quasi- judicial authority at an earlier stage of that proceeding. The  appeal fails and is dismissed with costs in  favour  of the Charity Commissioner. Y.P. Appeal dismissed, 661

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