Bombay High Court
Dadasaheb Chauhan Satkar Samiti, ... vs The State Of Maharashtra And Ors. on 4 August, 1993
Equivalent citations: 1994(3)BOMCR682
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. As many as 17 petitioners have challenged the order passed by the Assistant Chairty Commissioner, Amravati, by which the Assistant Charity Commissioner has directed them to form a trust-deed in respect of amount of Rs. 32,866.05 ps., which is lying with the State Bank of India, Branch Digras. By these directions the Assistant Charity Commissioner has also directed the Branch Manager to operate the Bank account only after the registration of public trust. The following facts will highlight the grievance of the petitioner.
2. On 28-4-1974, one body called "Dadasaheb Chavan Satkar Samiti" was formed by about 23 people. The said 23 people, who formed the said Felicitation Committee decided to felicitate one Dadasaheb Chavan respondent No. 3 herein for his humane service in the field of education. This Committee entertained only an idea to felicitate said Shri Dadasaheb Chavan respondent No. 3 and offer him a purse of Rs. 61,000/- by way of gratitude felt by the society for the untiring work that he had done in the field of education. Such amount was decided to be raised by collecting donations from the public. It seems that thereafter donations were actually collected. On 2-8-1981, there was another meeting, in which it was declared that the only idea for formation of this Committee was to felicitate respondent No. 3 and that the Committee did not propose to start a school or any institution with the donations collected by the members of the Committee. This resolution is filed by the petitioners as Annexure-VIII to the petition. It seems thereafter there were some differences amongst the members and therefore, Secretary Gopal Tukaram Jayale, petitioner No. 10 herein filed an application before the Assistant Charity Commissioner on 1-2-1984. This application was made under the provisions of section 41-C for permission to raise this amount by subscriptions, donations etc. Such permission appears to have been granted by the Asstt. Charity Commissioner, Amravati by his order dated 1-2-1984. A communication in that behalf, however, specifically mentions that the applicants therein were being permitted to felicitate Principal Dadasaheb Chavan and also to offer him the purse as also for publishing a Souvenir on conditions that the said function should be immediately arranged and the total money so collected should be properly accounted for and the regular accounts should be maintained. Now it seems that thereafter some serious disputes were initiated between the committee members and especially by Shri B.A. Oza, who is respondent No. 4 herein. It seems that Shri Oza felt that the money so collected was being misused. He, therefore, prosecuted the Secretary Shri Jayle, petitioner No. 10 herein for the offences under section 420 and 406 I.P.C. on the allegations that the Secretary had misappropriated the said amount. A criminal case was started at the instance of Shri Oza. However, the petitioner No. 10 was acquitted. Similar such prosecutions were instituted against practically all the members of the Committee but all the members of the Committee were acquitted by the Judicial Magistrate, First Class, Darwah. In all these judgments, the Court seems to have given a finding that there was no misappropriation or conversion for their own purpose by any of the accused. Not only this but there also appears to be a prosecution of the Committee Members on the ground that they had committed a default in complying with the directions of the Assistant Charity Commissioner under section 41 and, therefore, they were proceeded against under section 67 of the Bombay Public Trusts Act. In this judgment also in Cr. Case No. 616 of 1983, the Judicial Magistrate, First Class, Darwah, which is dated 15-12-1984, acquitted all the accused persons. Be that as it may, thereafter the matter seems to have been taken up by the Joint Chairty Commissioner, who directed the Assistant Charity Commissioner to call upon the accused to submit the accounts of the collections made as also for passing suitable orders under section 41-A of the Bombay Public Trusts Act.
3. The money collected all through remained in the Bank without there being any ceremony because of the serious differences in the members of the Committee and further unnecessary prosecutions in furtherance thereof. The Assistant Charity Commissioner thereafter initiated the proceedings vide Enquiry No. 21 of 1983. It is not known as to whether the Assistant Charity Commissioner noticed all the Members of the Committee. Atleast from the order it does not appear so. However, there were three Interveners in these proceedings viz. respondent No. 4 himself, one Shri Dabhadkar - petitioner No. 1 and Shri B.A. Oza - respondent No. 4. It seems that only three interveners have been heard by the Assistant Charity Commissioner and he proceeded to issue directions under section 41 as has already been mentioned earlier. Feeling aggrieved by this order, the petitioners have come up in the present petition.
4. Shri Vyavhare, learned Counsel on behalf of the petitioners firstly pointed out that the order of the Assistant Charity Commissioner passed under the provisions of section 41-A is patently without jurisdiction, firstly, because there is no Public Trust so far and also for the reasons that the persons to whom directions have been given by the Assistant Charity Commissioner have been never heard by the said Authority and, therefore, the order which is passed behind their back is hit by the principles of natural justice. He further pointed out that right from the beginning the only object of Committee was to felicitate respondent No. 3 and to hand over him the purse of said amount in recognition of his yeoman service to the cause of education. He further pointed out from various documents including the earlier order passed by the Asstt. Charity Commissioner under the provisions of section 41-C that there was never any objective to open a school or any institution from the contributions raised by this Committee and the sole idea was to felicitate and offer the said amount to respondent No. 3. He, therefore, contended that there was no question of there being any charitable or religious purpose for which collections have been made and if that be so, according to him, the order passed by the Asstt. Charity Commissioner was patently without jurisdiction. He submits that the findings given by the Asstt. Charity Commissioner in the impugned order are findings not supported by material on record and the Asstt. Charity Commissioner could not be guided by a stray advertisement.
5. Shri Pande, the learned A.G.P. appearing on behalf of the Asstt. Charity Commissioner has supported the order and has submitted that in fact the Asstt. Charity Commissioner was only initiating the proceedings and there was no finding given as yet as to whether there existed a Public Trust or not. Under such circumstances, the petition is pre-mature.
6. Considering the rival contentions of the parties, the first thing, which strikes is as to why the Committee filed an application under the provisions of section 41-C to the Asstt. Charity Commissioner. Section 41-C applies only where any person not being a Public Trust starts collecting money, subscriptions, donations for religious or charitable purposes only. If any body wishes to collect such money for the religious or charitable purposes, then alone such permission is required, because it is only in that eventuality that the authorities under the Bombay Public Trusts Act come into picture. The Act essentially applies to the Public Trust and Public Trust has been defined under the provisions of section 2(13) of the Act as under :-
"Public trust" means an express or constructive trust for either a public religious or charitiable purpose or both and includes a temple, a math, a wakf, church, synagogue, aviary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies of Registration Act, 1860."
It is thus clear that the Public Trusts are to be controlled by the Act taking into its sweep only such trusts which are meant for the religious or charitable purposes. One fails to understand therefore, as to why the application under the provisions of section 41-C was at all made for the permission. Perhaps it was in order to give colour of recognition that such application came to be made. However, considering the various documents, which have been brought on record, it does not seem that the said Committee had any other purpose but to felicitate respondent No. 3 and to offer him the purse in recognition of his services. If this was the sole purpose for which the Committee was formed, then this certainly was not a charitable or religious purpose and the collections for such purpose could never have been covered under section 41-C of the Bombay Public Trusts Act. Therefore, Shri Vyavhare very strenuously pointed out to the minutes of the meeting dated 2-8-1981 and the resolution No. 3 passed there under. The resolution No. 3 very specifically declared that the only idea to form this Committee and collecting the amount was for present a purse to Shri Dadasaheb Chavan and that there was no object of starting any school or any institution whatsoever. Shri Vyavhare has also pointed out resolution No. 1 passed by the Committee on 28-4-1974, wherein it was decided to felicitate Shri Dadasaheb Chavan and to handover him a purse of Rs. 61,000/-. Various hand bills are on record of this petition which show that the said Felicitation Committee has appealed to the general public to contribute to this purse which was to be handed over to Shri Dadasaheb Chavan. The most important and clinching circumstance is the communication by the Asstt. Charity Commissioner dated 1-2-1984. This communication is in response to the application under section 41-C of the Bombay Public Trusts Act. The communication clearly refers to the object for which the collections were being made by the Felicitation Committee. This communication, which is at record page 19 of the petition mentions only that the permission was being granted to collect donations for felicitating Shri Dadasahab Chanvan and also for publishing Souvenir. There actually does not appear to be any other purpose for the collection of these donations by the Committee. Shri Pande invited my attention to a statement recorded by P.S.O., Digras of Gopal Jayle, wherein the said Shri Jayle - petitioner No. 10 herein has admitted that he had taken out a statement in the year 1976 and had mentioned therein that out of the collections a public school would be started. It is mentioned therein further that this he had said because there was a discussion that Shri Dadasahab Chavan would use these Rs. 61,000/- for himself and if it is declared that the money was to be used for starting a public school, then there will be more contribution. Shri Pande relies upon very heavily on this statement and contends that this is a clinching admission on the part of petitioner No. 10 that the money was being used only for starting a school. In the first place, the statement itself is hopelessly vague. It is only by petitioner No. 10 and not in his capacity as a Secretary of the Committee. If the statement is read as it is it does not really make any sense. It could even be interpreted from this statement that it was merely felt generally by the members that Shri Dadasaheb Chavan would utilize this money for starting a public school and that was the idea with which the money was being collected. In short, there is nothing which can go to establish that the money was being collected by the Committee with the object of starting a public school or help respondent No. 4 to start one. The Committee also did not make any representation that by these collections a public school or any institution was to be started. There is thus in fact no evidence on record to suggest that the idea to collect these donations was to start any public school. The purpose of offering a purse to any person for his services to society can not be termed as a religious or a charitable purpose. In this case there is no evidence to show that respondent No. 3 was going to spend this amount only for such religious or charitable purpose. That is not the stand taken by him. Whether a purpose is charitable or religious would depend on the facts in each case. In the present case there is no such evidence to suggest such purpose.
7. Indeed one fails to understand as to why the application under section 41-C was ever made by the Committee. In fact it was not at all necessary for the Committee to make such application and even if such application was made, the Assistant Charity Commissioner had no jurisdiction to issue any direction or to allow the same. It seems that the application was causally made and equally casually decided by the Assistant Charity Commissioner without even bothering to examine whether the application was even maintainable or necessary in law.
8. Merely because the application was made, it can not be presumed that the collections were being made for religious or charitable purpose. At any rate, if the Assistant Charity Commissioner was wanting to act under section 41-A, then atleast he should have gone into that question. The Assistant Charity Commissioner in the impugned order has merely mentioned that there was a Pamphlet on record and an appeal published in a Weekly called "Jeevanjot" dated 28-11-1976, wherein it is shown that the idea of the Felicitation Committee was to start a Ashram or a public school. On this basis alone, the Assistant Chrity Commissioner proceeded to hold that the purpose for which the collections were being made were religious and charitable. This certainly was not the way in which the Assistant Charity Commissioner should have given a finding that the donations were made for the religious or charitable purpose. He was bound to examine firstly whether the collection was in respect of a public trust and whether persons concerned were in any manner concerned with the public trust at all. Section 41-A runs as under:
"41-A(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also given directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged alienated or wrongfully sold, removed or disposed of.
(2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1)."
The language is crystal clear. Under section 41-A direction can be issued by the Charity Commissioner only to any trustee of a public trust to ensure that the trust is properly administered and its income is properly accounted for. The language essentially postulates an existing public trust. Now here is a case where firstly there is no public trust. Shri Vyavhare is right when he says that there does not exist a trust at all and, therefore, there is no question of issuing any direction to any person in relation to such trust. Indeed, if trust itself does not exist and if there is no finding to that effect, then section 41-A can not operate at all. The purpose of section 41-A is for the proper administration of the trust. Where the Charity Commissioner comes to a conclusion that the public trust (already in existence) is not properly being administered or where the income of the trust is not properly accounted for and is not being applied to the objects of the trust and where he finds that the property of the trust is in danger of being damaged or alienated, then the Charity Commissioner can issue directions under section 41-A. The existence of a public trust is, therefore, a sine qua non before any such directions are issued by the Charity Commissioner. In the present case, the existence of the trust has not at all been proved and probably it is for this reason that the direction is given with the aid of section 41-A to apply for the registration of the trust. Such direction to apply for registration of trust can not be given under the powers of section 41-A.
9. It is also to be seen that under section 18 of the Bombay Public Trusts Act, the trust is required to be registered with the authorities under the Bombay Public Trusts Act. Section 18 provides the method for filing an application for registration of the public trust. On receipt of such application, the Deputy or Assistant Charity Commissioner of the region makes an enquiry under section 19. Now it is not necessary that there has to be an application under section 18 by a trustee or by any person having interest in the public trust. This action can be taken by the Charity Commissioner on his own also and he can thus initiate enquiry and decide the questions covered by section 19 which includes a question whether the trust exists and whether such trust is a public trust. The difference between sections 19 and 41 is that while the former section operates before registration the later essentially covers the trusts which are in existence. Unless therefore, a proceeding is initiated under section 18 and followed up by an enquiry under section 19 and a finding reached therein that a trust exists and it is a public trust, an action under section 41 can not follow. Before such power in exercised by the Charity Commissioner, he should have jurisdiction under section 41-A, which in this case does not seem to be there. The very direction by the Assistant Charity Commissioner to apply under section 18, which is challenged here shows that the question whether a public trust exists or not is not decided at all and that question is open. If that question is open then section 41-A can not apply and, therefore, a further direction under section 41-A can not be given. Unfortunately, the whole exercise undertaken by the Assistant Charity Commissioner seems to be prompted by the order of the Joint Charity Commissioner, which order is not available before this Court. It is not known as to how and why the Joint Charity Commissioner has directed the Assistant Charity Commissioner to enquire into the matter. That only seems to be an administrative order with which we are concerned in the present proceedings.
10. Apart from this, Mr. Vyavhare is right when he says that before action under section 41-A could be initiated and a direction could be issued to any person the Charity Commissioner is bound to hear the said party. The non-compliance with directions issued under section 41-A is an offence under section 67. Hearing has to be given before such directions are issued the non-compliance of which is penal. In this case atleast the order does not show that any such notice has been issued to any of the members of the Felicitation Committee. It seems that the Assistant Charity Commissioner in this case heard the three interveners. There is no mention in the order that all the members of the Committee were either noticed or heard. Hearing merely three interveners was not sufficient. The order is vitiated on this count.
11. Considering all these aspects, the order impugned passed by the Assistant Charity Commissioner, Amraoti dated 30-3-1991 will have to be set aside and the proceedings under section 41-A of the Bombay Public Trusts Act will have to be quashed. The concerned directions issued to the Branch Manager of the State Bank, Branch at Digras will have to be also quashed.
12. In the result, the petition succeeds. The rule is made absolute in terms of prayer Clause (a). In the circumstances of the case, there will be not order as to costs.
Petition succeeds.