Case: Municipality Of Taloda Vs. The Charity Commissioner &amp; Ors

2. A short history of the property may first be set out. Land which now bears City Survey Nos. 371 to 379 originally belonged to one Charandas who erected a Dharmashala 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 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 uptil 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 shops3. 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 Judge4. 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. Sambhusingh then submitted the application out of which this appeal has arisen5. The High Court has held that the Municipality held at all material times the property as a trustee of a public trust. This finding is challenged before us by the Municipality.

Reasoning: In that argument, in our judgment, there is to substance.The only dispute in suit No. 510 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 beneflciaries of the trust created in 1883, he was sued 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 nature7. 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. 50A 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 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 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 CommissionerThe 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 OfficerWe are unable to agree with that viewThe expression "public trust" is defined in S. a (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 and registered underthe 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 or persons of a certain religious persuasion does not make any difference in the matter: Ram Saroop Dasji v S. P. Sahi, (1959) Supp (2) SCR 583: (AIR 1959 SC 951  ).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 Act9. 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 Ex 14 are clear. The trust was not limited to the buildings standing on the land, it extended to the entire propertyWe are unable to agree with that contention. The proceedings were commenced under S. 19 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 having interest in a public trust or on his own motion. The proceeding 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 findingsWe 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 provisions 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 ho 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 proceedingProperty belonging to a Municipality governed by the Act must undoubtedly be held under its direction, management and 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 trustIt 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 beneflciaries of the trust created in 1883, he was sued 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