1 unreported IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.2547 OF 1991. Smt.Rupabai Shrikisan Lohe (deceased) through L.Rs. 1A. Rajendra S/o Jaikishan Chandak, Age major, Residing at 907, Ravivar Peth, Pune. ... Petitioner. Versus 1. Shrikisan Kasturichand Charitable Trust by its Trustees - 1. Dr.Somnath Narayandas Lohe, R/o 11, Deepak, Peddar Road, Bombay, 2. Shivaldas Ramratan Maniyar, R/o Petrol Pump, Delhi Naka, Sangamner, Taluka Sangamner, Dist. Ahmednagar. 3. Dwarkadas Shankardas Malani, R/o Bajarpeth, Sangamner, District Ahmednagar. 4. Dr.Vasantlal Mukund Zawar, R/o Mane Road, Sangamner, Dist. Ahmednagar. 2 5. Pradeep Rajendra Malpani, Advocate, R/o Ashok Chowk, Sangamner, Dist.Ahmednagar. 6. Dr.Anil Vishnupant Samudra, R/o Ghasbazar, Sangamner, Dist. Ahmednagar. 7. Mamlatdar, Sangamner Taluka, Sangamner, Dist. Ahmednagar. 8. Assistant Charity Commissioner, Nasik Region, Nasik. 9. Designated Member, Maharashtra Revenue Tribunal, Pune. 10. Joint Charity Commissioner, Pune Region, Pune. ... Mr.V.J.Dixit, Sr.Counsel, for the petitioner Mr.A.S.Bajaj, advocate for the Respondent Nos.2 to 5. Mr.D.R.Kale, A.G.P. for the Respondent Nos.7 to 10. ... CORAM : V.R.KINGAONKAR,J. Date : 19.01.2010. ORAL JUDGMENT 1. By this petition, the petitioner challenges orders rendered by Assistant Charity Commissioner, Nasik Region, in Case No.MRT/AH/Trust-IX/1/89 on 14th September, 1990. 3 2. Deceased Petitioner was wife of one Shrikisan Lohe, who died issueless. She claims to be legatee under a Will-deed executed by deceased Shrikisan in the month of October 1923. The deceased Petitioner alleged that said Shrikisan appointed several persons as Trustees to look after affairs of a Trust created by virtue of the Will-deed. There is no dispute about the fact that certain properties were given to the Public Trust by virtue of the said Will- deed. The deceased Shrikisan made arrangements for residence of the wife i.e. deceased petitioner and also for her sustenance during her lifetime by utilising income derived from the properties left by him. She was to receive amount insured under the two Insurance Policies, ornaments and amount of Rs.25/- (Rupees twenty five) by way of monthly maintenance. The arrangement made under the Will-deed further was to allow use of a part of Municipal House property No.646 situated at Sangamner for her residence. Said Shrikisan died on 15th October 1923. In accordance with the terms of the Will- deed, Public Trust called "Shrikisan Kasturichand 4 Lohe Charitable Trust" was created and registered. 3. The deceased petitioner sought permission U/s 50 of the BPT Act, 1950 to file suit for declaration of ownership and injunction in respect of the house property which was given in her possession. Her contention was that she had acquired ownership by virtue of Section 14(1) of the Hindu Succession Act, in respect of the house property which was given in her possession and particularly because instead of payment of Rs.25/- (Rupees twenty five) p.m. a part of the house property was allowed to be used by her for obtaining income of rent which could be derived from the tenant. The learned Assistant Charity Commissioner held that there was no prima facie case made out by the deceased petitioner for grant of such permission. The application was, therefore, rejected. The deceased petitioner preferred appeal which came to be dismissed vide the impugned order rendered by the MRT. 4. Heard learned counsel and learned 5 A.G.P. 5. A short question involved in the petition is whether the proceedings for prior consent of the Charity Commissioner U/s 51 of the Bombay Public Trusts Act, could be claimed as a matter of right and whether the Charity Commissioner acts as a Quasi Judicial authority while dealing with the application seeking such consent for institution of the suit. 6. A plain reading of Section 51(1) of the BPT Act, reveals that the Charity Commissioner may accord consent on basis of application if it is found that the person seeking such permission is having an interest in the Public Trust and grant of such consent is fit having regard to existence of a prima facie case in his/her favour a person. It is pertinent to notice that the deceased petitioner sought permission to sue the Public Trust. Therefore, her intention was to file suit in order to get a part of the house property from the custody of the Public Trust. The expression "he thinks fit and is satisfied 6 that there is a prima facie case" as used in Section 51(1) denotes the existence of prima facie case as a condition which must be satisfied before according the consent. The provision further makes it clear that prior inquiry and hearing the parties is also necessary before grant of such consent. In other words, the wording of Section 51(1) does imply that most of the trappings of judicial inquiry are enumerated in the provision. It is brought to my notice by learned counsel for the petitioner that Allahabad High Court in "Swami Shantanand Sarswati Vs. Advocate General, U.P. Allahabad and others" AIR 1955 Allahabad 372, held that consent of Advocate General U/s 92 of the C.P.C. was merely an administrative act. This authority is not applicable to the fact situation of the present case. It is imperative that hearing of the parties and prior inquiry before grant of the consent would make the proceedings as summary judicial proceedings. Obviously, the authorities were required to consider whether the deceased petitioner had made out a prima facie case to go to the Court against the Public Trust. 7 7. The Apex Court in "Vidyodaya Trust Vs. Mohan Prasad R and others" (2008) 4 Supreme Court Cases 115, held that Section 92(1) of the C.P.C. would apply when relief claimed in the proposed suit is for vindication of public rights. The leave can not be granted when the proposed suit is to be filed for settling private or personal dispute. It is observed that as a decisive factor, the Court has to go beyond the relief and have regard to the capacity in which the plaintiff has sued and the purpose for which the suit was brought. It is further held that the Court have to be careful to eliminate possibility of a suit being laid against public trusts under Section 92 by persons whose activities were not for protection of interests of the public trusts. It is necessary to ascertain the nature of suit before such consent or leave is granted. 8. In the fact situation of the present case, the deceased petitioner came out with a case that though her rights were created by virtue of instrument i.e.the Will-deed, yet, she 8 had acquired ownership in view of Section 14(1) of the Hindu Succession Act because in lieu of maintenance allowance a part of the house was given in her possession. The Assistant Charity Commissioner and the MRT noticed that there was no substratum to infer transformation of her rights into full ownership. Moreover, she had sought permission to sue the Trust created vide instrument of the Will-deed executed by her husband. Though it may prima facie appear that the rights of the deceased Petitioner were determined without allowing her to go for trial of the suit, yet, such exercise was permissible having regard to the intention of the legislature while enacting Section 51 of the BPT Act, 1950. Considering these aspects of the matter, I do not find any substance in the petition. Hence, the petition is dismissed. Rule discharged. No costs. (V.R.KINGAONKAR,J.) asp/office/wp254791