Hasan Nurani Malak Vs. Assistant
Charity Commissioner, Nagpur & Ors [1966] INSC 138 (22 August 1966)
22/08/1966 SHELAT, J.M.
SHELAT, J.M.
RAO, K. SUBBA (CJ)
CITATION: 1967 AIR 1742 1967 SCR (1) 110
ACT:
Madhya Pradesh Public Trusts Act (30 of
1951), ss. 5, 6, 7 and 8 Scope of-Registrar after enquiry recording finding a
trust not a public trust-Whether required to make entry of negative finding in
register of public trusts-Effect on right to file suit under s. 8 to set aside
finding-Repeal of Act 30 of 1951 in application to Vidharbha area by amended
Bombay Public Trusts, Act, 1950, s. 86-Saving clauses in s.
86(3)-Effect of-Whether fresh enquiry to
determine if trust a public trust competent.
HEADNOTE:
In October 1953 upon an application made
under s. 5 of the Madhya Pradesh Public Trusts Act, 30 of 1951, the Registrar
held an enquiry ,on the question whether particular trust founded in 1891 in,
Nagpur in the Vidharbha area of the ate, of which the properties were in the
possession of and managed by the appellant, was a public trust. On the
conclusion of the inquiry, in accordance with s. 6 of the Act. he recorded a
finding in November 1955 that the trust in question was not a public trust.
However, the Registrar did not, as required by s. 7 of the Act, cause an entry
of this finding to be made in the register maintained by him under the Act.
On November 1, 1956, as a result of the
reorganisation of States, the Vidharbha area was merged in the then Bombay
State. The Bombay Legislature thereafter passed the Bombay Public Trusts
Unification and Amendment Act, 1959 (6 of 1960) and by a notification dated
February 1, 1964, passed there under, the Bombay Public Trust Act, 1950, was,
extended to the Vidharbha area. By s. 86 sub-ss. (1) and (2) of the Bombay Act
of 1950 inducted into that Act by Bombay Act 6 of 1960, the M.P. Act was
repealed and the saving provisions contained in cls. (a), (b)and (c) in s.
86(3) projected, inter alla anything ,done, any rights etc. accrued and any
legal proceedings pending under the repealed Act .On march 2, 1962, Respondents
2 to 5 filed an application under s. 19 of the Bombay Act before the Assistant
Charity Commissioner for an enquiry as to whether the said trust was a public
trust. The appellant contended that since the trust was already declared not to
be, a public trust under the M.P.
Act, the Assistant Charity Commissioner was
precluded from holding the enquiry under the Bombay Act. The Assistant Charity
Commissioner however rejected this contention on September 6, 1962 and
thereupon the appellant filed a writ petition in the High Court challenging
this decision.
Two contentions were raised by the appellant
in support of his petition. Firstly, that the Registrar under the M.P. Act
having found That the trust was not a public trust and six months having
expired from the date of his finding, that finding became final under s. 8;
That a right within the meaning of cl. (b) of s. 86(3) of the Bombay Act
,vested in the appellant and therefore the Assistant Charity Commissioner :was
not competent to reopen that finding and start an inquiry abrogating his said
right; and secondly, that it was obligatory on the Registrar to make an entry
in the register of public trusts maintained by him 111 under the Act and that
since he had not made such an entry the enquiry held by him was not completed;
that being so the enquiry was a pending proceeding saved by s. 86(3) and
therefore the only remedy which respondents 2 to 5 bid was to. proceed in that
proceeding by calling upon the Registrar to make and notify such entry and if
necessary to file a suit under s. 8 of the M.P. Act challenging that finding.
The High Court rejected both these
contentions and held that the M.P. Act did not confer any finality on the
Registrar's finding and that under that Act finality attached to an entry made
by the Registrar in the register of public trusts; as the only register that
the Registrar was enjoined upon to maintain under the Act and the rules made
there under was the register of public trusts it was not incumbent on him to
make an entry in such register when his finding was a negative one. No such
entry having been made, no right under s. 86(3) vested in the appellant which
would bar a fresh inquiry under the Bombay Act. The High Court further held that
there being no obligation on the Registrar to make such a negative entry, it
could not be said that the proceedings before him amounted to it pending
proceeding saved under s. 86(3). It was also held that the suit contemplated
under s. 8 of the M.P. Act was a suit for the purpose of correcting an entry
made by the Registrar and as no such entry was made, respondents 2 to 5 could
not have filed a suit under that section.
On appeal to this Court,
HELD : A fresh inquiry under the Bombay Act
was not competent and the Assistant Charitty Commissioner was precluded from
entertaining it. [119 B] Reading ss. 5, 6, 7 and 8 of the M.P. Act it was clear
that the Registrar is enjoined upon to- make an entry in the register of public
trusts irrespective of whether his finding is in the affirmative or in the
negative. For the entry he has to, make is the entry "in accordance with
his finding" whatever that finding is. [117 E] The inquiry held by the
Registrar under the M.P. Act was indisputably "a thing duly done"
under that: Act. The inquiry and its result having been saved by s. 86(3), cl.
(a), they continued to be governed by the
M.P. Act in spite of its ceasing to apply in Vidharbha. It could not be said
that the inquiry was completed because the Registrar bad yet to make the entry
of his finding which he was bound to make under s. 7 of the M.P. Act; it was
therefore a pending proceeding under that Act. [118 G; 119 A-B] Universal
Import Agency V. Chief Controller, [1961] 1 S.C.R.305 referred to.
Ramalal v. Charity Commissioner, 63 Bom. L.R,
418, distinguished.
The cause of action for a suit under s. 8 of
the M.P. Act is finding and not the entry which is merely consequential. It is
therefore not right to say that a suit cannot. be filed unless the Registrar
has made the entry. The legislature could not have left the right to file a
suit to the mercy of the Registrar who may or may not make the entry. [114 B;
117 A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 498 of 1964.
112 Appeal by special leave from the judgment
and order dated 9 12,,1963, of the Bombay High. Court (Nagpur Bench) at Nagpur
in Special Civil Application No. 380 of 1962.
S. T. Desai, G. L. Sanghi, S. C. Ghate, A. S.
Babde and O. C. Mathur, for the appellant.
B. R, L. Iyengar and B. R. G. K Achar, for
respondent No. 1.
N. C. Chatterjee, Shankar Anand, Asghar Ali
and Ganpat Rai, for respondents Nos. 2 to 5.
The Judgment of the Court was delivered by
Shelat, J. This is an appeal by special leave against the Judgment and order of
the High Court of Maharashtra dismissing the appellant's petition under Article
226 of the Constitution. The question arising in the appeal is whether the
Assistant Charity Commissioner appointed under the Bombay Public Trusts Act,
1950 as extended to the area of Vidharbha has jurisdiction to hold an inquiry
under section 19 of that Act in spite of a previous finding by the Registrar
under the Madhya Pradesh Public Trusts Act, 30 of 1951 that the trust in
question was not a public trust within the -meaning of the latter Act. The
facts leading to the writ petition may briefly be set out.
In October 1953, one Jaferbhai claiming to be
a beneficiary applied under s. 5 of the M.P. Act to the Registrar that the
trust known as Mehdibaug founded in Nagpur in 1891 and its properties which
were and are admittedly in possession of and managed by the appellant was a
public trust. As required by section 5(2) of that Act -the Registrar directed
that a proclamation in respect of the said application should be published in
the next issue of Madhya Pradesh' Gazette. The inquiry held by the Registrar
ended in an order dated November 11, 1955 whereby be held that the trust was
not public trust. Though the Registrar gave his aforesaid finding he did not
cause an entry thereof to be made in the register maintained by him under the
Act. On November 1, 1956 as a result of the reorganisation of States Vidharbha
was merged in the then Bombay State. The Bombay legislature thereafter passed
the Bombay Public Trusts (Unification Amendment) Act, 1959 and by a
notification dated February 1, 1961 passed there under the Bombay Public Trusts
Act 1950 was extended to the Vidharbha area. On March 2, 1962, respondents 2 to
5 filed an application under section 19 of the Bombay Act, 1950 before the
Assistant Charity Commissioner for an inquiry as to whether the said trust was
a public trust. The appellant contended that since the trust was already
declared not to be a public trust under the M.P. Act the Assistant Charity
Commissioner was precluded from holding the inquiry under the Bombay Act.
113 On September 6, 1962, the Assistant
Charity Commissioner rejected that contention. Thereupon the appellant filed
the aforesaid petition in the High Court. The High Court as stated above
dismissed the petition holding that the Assistant Charity Commissioner had
jurisdiction to hold the inquiry. It is this order which is impugned in this
appeal.
In view of the controversy between the
parties as to the effect of certain provisions of the Bombay Act 1950 and the
M.P. Act of 1951 it becomes necessary to briefly notice some of the relevant
provisions of the two Acts. Section 2(4) of the M.P. Act defines public
trust" as meaning an express or constructive trust for a public, religious
or charitable purpose and includes a temple etc. or any other religious or
charitable endowment and a society formed for a religious or charitable purpose.
Sub-section 5 of that section defines "register" as meaning a
register maintained under sub- section 2 of section 3 of the Act. Section 3(2)
provides that the Registrar should maintain a register of public trusts and
such other books and registers and in such form as may be prescribed. Section 4
provides for the registration of public trusts and lays down that the working
trustee of every public trust should apply to the Registrar for its
registration by an application in which certain particulars therein mentioned
have to be set out. Section 5 provides that on receipt of such an application
or upon an application made by any person having interest in a public trust or
on his own motion, the Registrar shall make an inquiry in the prescribed manner
for ascertaining amongst other things whether the trust in question is a public
trust. Sub-section 2 of section 5 as aforesaid provides for giving a public
notice of the inquiry proposed to be made inviting all persons interested in
the public trust under inquiry to prefer objections, if any, in respect of such
trust. Under section 6 the Registrar on completion of the inquiry has to record
his findings with reasons there for as to the matters set out in section 5(i)
and under section 7(1) he has to cause entries to be made in the register in
accordance with his findings and has to publish on the notice board of his
office the entries so made. Sub-section 2 of section 7 reads as under:
"The entries so made shall, subject to
the provisions of this Act and subject to any change recorded under any
provision of this Act or a rule made there under, be final and
conclusive." Section 8 provides that any working trustee or person having
interest in a public trust or any property found to be trust property,
aggrieved by any finding of the Registrar under section 6 may, within six
months from the date of the publication of the notice under sub-section (1) of
section 7, institute a suit in a civil court to have such finding set aside or
modified. Sub-section 3 provides 114 that on the final decision of the suit,
the Registrar shall, if necessary, correct the entries made in the register in
accordance with such decision.
It is clear from the provisions of section 8
that though the entries made by the Registrar are final and conclusive that
finality is subject to the decision of the court in a suit challenging the
findings of the Registrar. The cause of action for such a suit is thus the
finding of the Registrar and not the entry. It is manifest that section 7
requires the making of the entry and its notification in order that the
findings given by the Registrar are recorded and are given publicity so that an
aggrieved party whether he is a working trustee or a person interested in the
trust may file a suit within the prescribed time. Under section 35 of the Act
the State Government framed rules prescribing inter alia for the maintenance of
certain registers. Under the Act and the said Rules the Registrar had to
maintain four registers, viz. (1) a register ,of public trusts, (2) a register
of the properties of public trusts, (3) a register relating to immovable
properties belonging to the trusts and (4) a register of decisions of courts
relating to public trusts.
These being the only registers prescribed
either under the Act or the said rules there was no obligation on the Registrar
to maintain any other register or book.
The Bombay Act, 1950 defines a public trust
to mean an express or constructive trust for either a public, religious or
charitable purpose or both and includes a.temple, a math, a waqf, 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
Registration Act, 1860. Section 18 provides for registration of public trusts
and is substantially in the same terms as section 4 of the M.P. Act. Section 19
similarly provides for an inquiry for ascertaining the matters set out therein
which are again in the same terms as in section 5 of the M. P. Act. Though the
definition of the public trust in the Bombay Act is not exactly in the same terms
as that in the M.P. Act the contents of both are substantially the same. In any
event it is not the case of the respondents that that which is not a public
trust or a property belonging to a public trust under the M. P. Act has been
made a public trust or a property belonging to such trust under the Bombay Act.
The inquiry under both the Acts and its scope are therefore the same. Section
86 of the Bombay Act inducted in the Act by Bombay Act 6 of 1960 contains both
repeal and saving clauses. Under sub-sections 1 and 2 read with Bombay Act 6 of
1960 the M.P. Act of 1951 stands repealed. Sub-section 3 which is a saving
provision provides that the repeal or cessation of the Acts under sub- sections
1 and 2 shall not in any way affect:
115 "(a) anything duly done or suffered
under the laws hereby repealed or ceasing to apply before the said date ;
(b) any right, title, interest, obligation or
liability already acquired, accrued or incurred before the said date under the
laws hereby repealed or ceasing to apply ;
(c) any legal proceedings or remedy in
respect of such right, title, interest, obligation or liability." Two
contentions were raised by the appellant in the High Court in support of his
petition. First, that the Registrar under the M.P. Act having found that the
trust was not a public trust and six months having expired from the date of his
finding that finding became final, that a right within the meaning of cl. (b)
of section 86(3) of the Bombay Act vested in the appellant and that therefore
the Assistant Charity Commissioner was not competent to reopen that finding and
start an inquiry abrogating his said right and (2) that it was obligatory on
the Registrar to make an entry in the register of public trusts maintained by
him and that since he had not made such an entry the inquiry held by him was
not completed; that that being so the inquiry was a pending proceeding saved by
section 86(3) and therefore the only remedy which respondents 2 to 5 had was to
proceed in that proceeding by calling upon the Registrar to make and notify
such entry and if necessary to file a suit under section 8 of the M.P. Act
challenging that finding. The High Court rejected both these contentions. The
High Court held that the M.P. Act did not confer any finality to the Registrar's
finding and that under that Act finality attached to an entry made by the
Registrar in the register of public trust. It also held that when the
Registrar's finding was a negative one it was not incumbent on him to make any
entry as the only register he was enjoined upon to maintain was the one
prescribed by the Act. The rules made under the Act not having prescribed any
other register or book and the only register prescribed by the Act being the
register of public trusts it was not obligatory upon him to enter a finding
that the trust in question was not a public trust. No such entry having been
made no right under section 86(3) of the Bombay Act vested in the appellant
which would bar a fresh inquiry under the Bombay Act. The High Court further
held that there being no ,obligation on the Registrar to make such a negative
entry it could not be said that the proceedings before him was a pending
proceeding -saved under section 86(3). No finality therefore was given to the
finding of the Registrar that the trust was not a public trust. As regards the
suit under section 8 of the M.P. Act, the High Court held that on a true
interpretation of sections 5, 6, 7 and 8 of that Act the suit contemplated was
a suit for the purpose of correcting an entry made by the Registrar and that no
such entry having been made 116 no such suit lay and consequently respondents 2
to 5 could not have filed a suit under that section.
As aforesaid the preamble of the M.P. Act
shows that the Act was enacted to regulate and to make better provision for the
administration of public, religious and charitable trusts in the then State of
Madhya Pradesh. With that end in view section 5 of that Act provides for an
inquiry to be held by the Registrar for ascertaining among other things whether
a trust under inquiry is a public trust or not. A public notice of such an
inquiry was provided for under section 5(2) in order to enable persons
interested in such trust to participate therein. Sections 6 and 7 enjoin upon
the Registrar to, record his finding. Such a finding may either be that the
trust is a public trust or it is not. Section 7(1) enjoins upon him to cause
entries to be made in the register "in accordance with the findings
recorded by him under section 6", and he is to publish the entries when
made in the register. The register prescribed no doubt is a register of public
trusts. If the finding of the Registrar is that a particular trust is not a
public trust, does he not have to make an entry of his finding in the register
or has he to make an entry in that register only when his finding is a positive
one that the trust is a public trust? It will be noticed that there is nothing
in section 7(1) to show that he is required to make an entry only if the
finding is in the affirmative. On the other hand sub- section 1 of section 7
expressly provides that he shall cause entries to be made in accordance with
the findings recorded by him under section 6. Section 6 shows that he has to
record his findings and the reasons there for whatever the findings are,
whether in the affirmative or in the negative.
Since entries under section 7(1) are to be
made in accordance with such findings, either positive or negative, it follows
that entries have to be made irrespective of whether the trust is found to be a
public trust or not. To say that he is required to make an entry of finding
only if the finding is that the trust is a public trust would be contrary to
the express language of sections 6 and 7 and would unnecessarily curtail the
language and the scope of the two sections. This construction is also supported
by section 8. Under that section, though it is the entry made under s. 7 which
has been given finality a right of suit is conferred on both the working
trustee and all persons having interest in the trust or any property belonging
to it and who is aggrieved 'by any finding'. The section no doubt provides that
such a suit has to be filed within six months from the date of the publication
of the entry. But that provision is clearly one fixing limitation. That does
not mean that the suit is to set aside the entry. The section in so many terms
states that such a suit would be to set aside the finding given by the
Registrar and where such a finding is set aside the Registrar has to correct
the entry made in the register in accordance with his findings. The cause of
section for such a suit thus is the finding and not 117 the entry which is
merely consequential. It is therefore not riot to say that a suit cannot be
filed unless the Registrar has made the entry. The legislature, besides, could
not have left the right to file a suit to the mercy of the Registrar who may or
may not make the entry. It is equally not correct to say that the Registrar has
not to make an entry if his finding is in the negative. Suppose the Registrar
in a given case gives his finding that the trust in question is not a public
trust and does not make an entry on the ground that the register maintained by
him is the register of public trusts and not ,of trusts which are not public
trusts. What is a person interested in the trust or its properties to do if he
is aggrieved by that finding? Does it mean that he has no remedy by way of a
suit? That surely cannot be the meaning to be given to sections 7 and
8. If the making of the entry is the condition
precedent for such a suit such a person would have no remedy of a suit under
section 8. It is precisely to avoid such a result that the section provides in
explicit language that any person, aggrieved by the finding and not the entry,
has a right to file a suit and to have such a finding set aside, whether the
finding is positive or negative. There is nothing in s.
8 which restricts the right of a suit in
cases where the finding is in the affirmative. If that was so giving a right to
sue to a person interested in the trust would be superfluous as he would never
be aggrieved by a finding that the trust is a public trust. The High Court was,
therefore, in error when it held that the Registrar was not obliged to make the
entry as his finding was in the negative. In our view, reading sections 5, 6, 7
and 8 of the M.P. Act it is clear that the Registrar is enjoined upon to make
an entry in the register of public trusts irrespective of whether his finding
is in the affirmative or in the negative. For the entry he has to make is the
entry "in accordance with his finding" whatever that finding is.
As regards the second contention urged before
it, the High Court observed that if it was obligatory on the Registrar to cause
an entry to be made in the register even if the finding was negative, the fact
that he had not made such an entry would not deprive the appellant of his right
and in that event it would have held that the proceeding before the Registrar
was still pending and respondents 2 to 5 would in that case have to have
recourse to the M.P. Act. But the High Court on the ground that there was no
obligation on the Registrar to make the entry rejected this contention. Let us
see whether there was justification in the contention that the inquiry is still
pending and that respondents 2 to 5 have to proceed under that Act and not
under s. 19 of the Bombay Act.
Mr. Desai for the appellant relied on
subsection 3 of section 86 and urged that all the three sub-clauses, (a), (b)
and (c) apply to the present case. He urged that the inquiry before the
Registrar was a thing duly done under the M.P. Act and was therefore saved,
that the Registrar's finding had become final on the expiry of six 118 months
from the date of that finding and its finality vested a right in the appellant
which is saved by the sub-section and lastly that the legal proceeding, that is
the enquiry, was still pending and in spite of the cessation of the M.P. Act,
was saved. He contended that a fresh inquiry therefore could not be held as the
proceeding before the Registrar was still pending and the competent authority
to proceed with it was the Registrar and not the Assistant Charity
Commissioner. The Assistant Charity Commissioner was there- fore precluded from
holding the impugned inquiry. Mr. Chatterjee, on the other hand, argued that no
right can be said to have accrued to the appellant as no finality attached to
the Registrar's finding, an entry of that finding not having been made by the
Registrar. There was also no question of any legal proceeding being saved as
the proceeding saved is the one in respect of a right, title or interest vested
in a party. Therefore, sub-cls. (b) and (c) according to him would not in any
case apply. As regards sub-cl. (a) he argued that the inquiry before the Registrar
was over so soon as he gave his finding and therefore that inquiry also cannot
be said to have been saved.
The words "anything duly done" in
sub-cl. (a) are very often used by the legislature in saving clauses such as we
have in section 86 (3). Section 6 of the General Clauses Act, 1897 also
provides that unless a different intention appears the repeat of an Act would
not affect anything duly done or suffered there-under. The object of such a
saving clause is to save what has been previously done under the statute
repealed. The result of such a saving clause is that the pre-existing law
continues to govern the thing done before a particular date from which the
repeal of such a pre-existing law takes effect. In Universal Imports Agency v.
Chief Controller(l) construing the words "things done" used in para 6
of the French Establishments (Application of Laws) Order, 1954, this Court held
that on a proper interpretation the expression "things done" was
comprehensive enough to take in not only the things done but also the effect of
the legal consequences flowing there from. The inquiry held by the Registrar
under the M.P. Act was indisputably "a thing duly done" under that
Act. The inquiry and its result having been saved by section 86 (3) (a) they
continue to be governed by the M.P. Act in spite of its ceasing to apply in
Vidarbha. As we have already held it was obligatory on the Registrar to have
made an entry of his finding in the register of public trusts maintained by him
under that Act though the finding was that the trust was not a public trust. If
anyone was aggrieved by that finding he could have made the Registrar to cause
an entry to be made and thereafter file a suit to set aside the finding and
have the entry corrected. Respondents 2 to 5 would be such persons as they
claim to be interested in the trust and are therefore persons aggrieved by that
finding and (1) [1961] 1. S.C.R. 305.
119 interested in challenging it. The contention
that that inquiry was completed is not correct because the Registrar had yet to
make the entry of his finding which he was bound to make under section 7 of
that Act.That being the position, the inquiry is saved by sub-cl.(a) of section
86(3) and it is still pending and is governed by the M.P.Act. In the result a
fresh inquiry under the Bombay Act while the proceeding under the M.P. Act is
still pending was not competent and the Assistant Charity Commissioner was
precluded from entertaining it. In this view it is not necessary to consider
Mr. Desai's contention that clauses (b) and (c) also apply to the present case.
Mr. Chatterjee however drew our attention to a decision of the High Court of
Bombay in Ramalal v. Charity, Commissioner(1). That decision cannot assist the
respondents as the effect of a saving clause such as we have in section 86(3)
or in the Bombay General Clauses Act was not considered there and the question
of the proceeding being a pending one was neither raised nor considered. For
the reasons aforesaid it is not possible to sustain the order passed by the
High Court dismissing the petition.
We therefore set aside the order, allow the
appeal and make the petition absolute. The respondents will pay the costs of
the appellant both here and in the High Court.
R. K. P. S. Appeal allowed.
(1) 63 Bom. L.R. 418.
Back
