Writ Petition No.2964 of 2004

5th February, 2005

Petitioner Counsel: Mr. S. A. GORDEY
Respondent Counsel: Mr. MUZUMDAR,Mr. P. G. KHEOLE

Cases Cited:
Vithoba Vs. Balkrishna, 1967 Mh.L.J. 224 [Para 11,14]
Krishnakant Vs. Deputy Charity Commissioner, 1990 Mh.L.J. 907 [Para 11]
Patel Vs. Pradyumansingji, AIR 1970 SC 1273 [Para 12]
Agriculture Market Committee Vs. Shalimar Chemical Works, AIR 1997 SC 2502 [Para 13]

JUDGMENT

A. H. JOSHI, J. :- Present Writ Petition with prayers as were originally made pertained to the jurisdiction of Single Judge of this Court. By an amendment, the Petitioner herein introduced a challenge to the validity of Rule 7 of Bombay Public Trusts Rules, 1951 (herein after referred to as 'Rules'). The ground of challenge is that the said Rule is inconsistent with Section 76 r/w Section 2(4) of Bombay Public Trusts Act, and has prayed for striking down thereof. Therefore, the petition came to be listed before the Division Bench.

2. The notice before admission was issued and is served, the Respondent No.2 has not appeared. The petition was heard with understanding that it can be finally disposed of.

3. The facts in brief leading to filing of the present Petitions need to be examined in order to understand the grounds of challenge to the validity of Rule 7. The facts can be summarised as follows :

4. The controversy pertains to a Public Trust namely Smt. Anandabai Education Society, Isapur, District - Bhandara. A Change Report 596 of 1992 was filed by the Petitioner Shri. Anna S/o. Shriram Fate reporting change in the formation of Managing Committee due to elections. The Change Report No.3 of 1993 and Change Report No.482 of 1999 were filed by the Respondent Chandrabhan Shivaji Isapure, claiming and reporting different changes.

5. All the three Change Reports were pending enquiry by Asstt. Charity Commissioner. Parties are common on a story that they entered into compromise on 08-05-2003, it would not be necessary to narrate the particulars of the compromise. The result of the compromise as pleaded by the Petitioner was that, present Respondent No.2 Chandrabhan Isapure who had objected the Change Report No.596 of 1992 gave consent by filing a pursis stating that Change Report be allowed. Another step in furtherance to the compromise was that the said Chandrabhan S/o. Shivaji Isapure filed withdrawal pursis thereby withdrawing the Change Report Nos.6 of 1993 and 482 of 1999. Consequently change report No.596/92 filed by present Petitioner was allowed and Change Report Nos.6/1993 and 482/99 were dismissed.

6. Respondent No.2 filed an application before the Asstt. Charity Commissioner, Bhandara who had disposed of the Change Reports in view of the consent and withdrawal etc. referred to herein before. According to Chandrabhan Shivaji Isapure, the promise incorporated in the compromise was broken by the Petitioner Anna Shriram Fate and also that disposal of change reports was erroneous etc. This filed by Chandrabhan was registered as Misc. Application No.137 of 2004. The prayer application therein was for recalling the order deciding the change reports and re-opening the enquiry and decision therein as per law.

7. The Misc. Application No.137 of 2004 was heard by the Asstt. Charity Commissioner, Bhandara. The present Petitioner Anna Fate opposed the said application No.137 of 2004 defending that he had not resiled from his promise and also objected to the maintainability of the application. After taking detailed resume of the facts, the Learned Asstt. Charity Commissioner recorded his finding in para 6 of his Order and rejected the application by Judgment and order dated 17-04-2004. It would be useful to refer to the findings recorded by the Asstt. Charity Commissioner in Para 6 thereof which is at page No.49 of paper book reads as follows :

"(6) It is crystal clear legal position that against the final orders in Change Reports U/s.22 of the B.P.T. Act remedy is provided either to file appeal U/s 70 or to file revision U/s.70-A of the Bombay Public Trusts Act, 1950 before the Hon'ble Jt. Charity Commissioner, Nagpur, however the applicant instead of availing this remedy he has filed present application before this authority for the reasons best known to him which is not proper."

8. The aggrieved applicant-present Respondent No.2 Chandrabhan, filed the petition under Section 70-A of the Bombay Public Trusts Act, before the Joint Charity Commissioner, Nagpur, which has been registered as Revision Application No.10 of 2004 which upon hearing is allowed by the Joint Charity Commissioner, Nagpur by Judgment and order dt.17-06-2004, and remanded the case to the Asstt. Charity Commissioner for deciding the application afresh as per law.

The present Petitioner has taken exception to this order by filing the present Writ Petition.

9. The grounds of challenge inter alia are as follows :-

(a) That the proceedings initiated by Respondent No.2 before the Asstt. Charity Commissioner were not maintainable.

(b) The Asstt. Charity Commissioner does not have power and jurisdiction to review his own order since the power of review is a creation of statute for which the Bombay Public Trusts Act, does not provide.

(c) Further that Section 76 of Bombay Public Trust Act applies the procedure prescribed under the Code of Civil Procedure only to the "Court" as defined under the said Act which means the District Court in which definition, the Asstt. Charity Commissioner or the Hierarchy in the line above the said Office is not included. In order to re-enforce the said submission.

(d) That order passed by the Petitioner has by the Asstt. Charity Commissioner has to be challenged by filing of an appeal under Section 72 or revision application under Section 70-A of Bombay Public Trusts Act, only and cannot be sought to be revoked by filing review.

(e) Rule 7 thereof as provided under Presidency Small Causes Courts Act, 1951, provides that the procedure of enquiry shall be as provided under Presidency Small Causes Courts Act, 1882 and under Provincial Small Causes Courts Act, 1887. While procedure prescribed in 76 of Bombay Public Trusts Act is as prescribed in C.P.C., thus, Rule 7 is repugnant to Section 76 of B.P.T. Act.

10. Heard learned Advocate for the Petitioner and Learned A.G.P. for the Joint Asstt. Charity Commissioner.

11. In support of the contention that the procedure to be followed by the Asstt. Charity Commissioner for enquiry under Section 22 and that the order passed by the Asstt. Charity Commissioner can be called in question by filing an appeal or revision under Section 76 or Section 70-A respectively, and to urge that the provisions of Civil Procedure Code apply only to the enquiry by the Court as defined under the Bombay Public Trusts Act, Learned Advocate for the Petitioner places reliance on the following judgments.

(a) 1967 Mh.L.J. 224, (Vithoba Vs. Balkrishna).

(b) 1990 Mh.L.J. 907, (Krishnakant Vs. Deputy Charity Commissioner).

12. In order to substantiate, in turn, that the power of review is a creation of statute and cannot be inferred and since the Code of Civil Procedure is not applicable to the enquiry under Section 22 of the Bombay Public Trusts Act, learned Advocate for the Petitioner placed reliance on the Judgment namely AIR 1970 SC 1273 (Patel Vs. Pradyumansingji).

13. Learned Advocate further relied on one more Judgment AIR 1997 SC 2502 (Agriculture Market Committee Vs. Shalimar Chemical Works) in order to find support to his submission that Rule 7 is contrary to Section 76 of the Act, and being enacted under delegated legislation cannot be intended to widen or constrict the scope of the main legislation. He, therefore, submitted that the Rules, therefore, have to restrict or encompass itself within the mode of implementation of the policy of the main Act.

14. Upon examination of these precedents, it is seen that this Court has already held in the first case i.e. 1967 Mh.L.J. 224 (Vithoba Vs. Balkrishna) that though the procedure to be adopted for enquiry, is one prescribed under Provincial Small Causes Courts Act, 1887, Section 17 of the said Act, in turn, provides that the procedure prescribed in the Code of Civil Procedure shall have to be followed. Thus, the applicability of the Code of Civil Procedure for enquiry under Section 22 is thus, restricted to the procedure of enquiry and all other substantive provisions contained in the Code of Civil Procedure have no application to the proceedings under Section 22. In view of the position that the procedure to be followed even by virtue of reference to the Provincial Small Causes Courts Act, is the same as prescribed under Code of Civil Procedure, it is not necessary to formally strike down Rule 7. It shall suffice to read it, in turn, which has been so to hold to apply C.P.C. to the enquiry under Section 22 for limited purposes of procedure of enquiry, recording of evidence and matters related thereto read and interpreted by this Court in Para 3 in the Judgment of Vithoba Vs. Balkrishna, reported in 1967 Mh.L.J. 224.

15. Therefore, it shall not be necessary to record a finding and issue a writ for striking down Rule 7 of Bombay Public Trusts Act, 1950.

It is, therefore, held that mention of the provisions namely Provincial Small Causes Courts Act, in Rule 7 does not in any manner infuse any new provision, it is not necessary to strike down the same. Having held that the prayer clause brought in the amendment in the petition namely :

"(I) declare that, the provision contained under Rule 7 of the Bombay Public Trusts Rules, 1951 is inconsistent with the provision of Section 76 read with Section 2(4) of the Bombay Public Trusts Act, 1950, and further be pleased to struck-down the provision contained under Rule 7 of the Bombay Public Trusts Rules, 1951."

does not in any manner survive. It is seen that the matter was placed before the Division Bench only because of the amendment to the petition challenging the validity to Rule 7 which is dealt herein above. It shall be in the fitness to have the Writ Petition listed before the proper forum i.e. Bench presided by Single Judge of this Court for hearing and disposal of this petition as per law.

16. All other submissions relate to the merit of matter and those need not be dealt with, as the case pertains to the jurisdiction of Single Judge.

17. Hence, the following order.

(i) Rule 7 is held to be intra vires and not repugnant to Section 76 of the Bombay Public Trusts Act, and therefore.

Prayer clause (1) of the petition does not call for interference, and be struck off from prayers.

(ii) Petition be listed before the Single Judge, for hearing and disposal as per law.

Order accordingly.