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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.

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 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 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 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 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.