1. Interesting question arises for consideration is whether a public trust that has substantial property at Bombay, and is registered at the office of Charity Commissioner Bombay, is required to be registered at Gujarat also if some property of trust happens to situate at Gujarat ? The appellant asserts that registration at both the offices is required, the respondent / trust disputes this.
2. The above question arises as one R.R. Shastri declaring himself to be a trustee of Bharatiya Arogya Nidhi who is a respondent herein, filed an application before the Additional Charity Commissioner praying that he is looking after property of the trust situated at Patan and, therefore, the trust be registered at the regional office of Charity Commissioner, Mahesana. It is the say of the Trust that the said Shastri is employee of Trust and he is not trustee. The Additional Charity Commissioner by its order dated 05.03.1992 allowed the application. Against the said order, the appeal was preferred i.e. 19 of 1992 before Charity Commissioner. The Charity Commissioner was pleased to upheld the order passed by Additional Charity Commissioner by his order dated 18.06.1997. The trust preferred the appeal before District Court Mahesana. The Asst. Judge, Mahesana (Patan) was pleased to allow the Civil Miscellaneous Application No.131 of 1997 and set aside the order of both the authorities. The Additional Charity Commissioner being aggrieved by the said order, passed by the Assistant District Judge has preferred present appeal.
3. Heard learned advocate Mr. G.M. Joshi for the appellant and Sh. J.P. Raval for the respondent Trust.
4. Sh. Joshi, learned advocate for the appellant has submitted that the present case is covered up by the judgment of the Honourable the Supreme Court in Nautam Prakash DGSVC, VADTAL and Others versus K.K. Thakkar and Others reported in (2006) 5 SCC 330. Mr. Joshi has submitted that in Nautam Prakash's case (supra) also, - as in the present case - Cl. - 4 of Bombay Charity Commissioner (Regional Reorganization) Order 1960 fell for consideration. It was submitted that the judgment in Nautam Prakash's case (supra) by the Honourable the Supreme Court came after the deciding of present appeal by the Assistant Judge, and the learned Assistant Judge has not benefit of the view taken by the Supreme Court, and therefore, appeal came to be allowed by learned Assistant Judge. It was also pointed out that this Court in Special Civil Application No.6071 of 1999 following Nautam Prakash's case (supra) has passed an order that property which is situated at Kachchh Bhuj be registered with the office of Deputy Charity Commissioner, Kachchh Bhuj while insofar as the property situated at Bombay is concerned, the Charity Commissioner at Bombay has got the jurisdiction .
5. Learned advocate Mr. Raval has submitted that reliance placed on Nautam Prakash's case (supra) is misplaced close reading of the judgment would show that strong reliance placed by the appellant on it is misplaced.
6. It may be stated that Bharatiya Arogya Nidhi is registered trust before Charity Commissioner, Bombay as serial No. F-401. It appears that Bharatiya Arogya Nidhi Trust is in operation prior to the enactment of Bombay Public Trust Act. Earlier it was registered under Societies Registration Act, 1860 as Serial No.3002. Substantial, properties of the trust situated in Bombay, however, it is not in dispute that trust has also property at Gujarat i.e. at Patan.
7. Submission of learned advocate for the parties concentrated on Bombay Charity Commissioner (Regional Reorganization) Order 1960 and on the principal laid down in Nautam Prakash's case (supra). Let us examine whether the submission based on these authorities are acceptable or not.
8. Cl. - 4 of Bombay Charity Commissioner (Regional Reorganization) Order 1960 is thus : -
"4.
Registration of public trusts where property or office is situate
- In the case of a public trust duly registered under the Act before the appointed day, or deemed to be so registered, if, immediately before that day, -
(a) the trust property and the office for the administration of the trust are situate wholly in the Maharashtra region or the Gujarat region, then the trust shall be deemed to be registered on that day without further inquiry, charge or fee in that region by the Corporation or reconstituted or, as the case may be, the new Corporation ;
(b) the trust property is situated partly in the Maharashtra region and partly in the Gujarat region, then in respect of so much of the said property as is situate in the Maharashtra region or the Gujarat region, the trust shall, whether the office for the administration of the trust is or is not situate in that region, be deemed to be so registered on that day without further inquiry, charge or fee in the Maharashtra region or, as the case may be, the Gujarat region.
(c) The trust property is situate in the Maharashtra region and the office for the administration of the trust is situate in the Gujarat region or vice versa, then the trust shall be deemed to be so registered on that day without further inquiry, charge or fee in each of the two regions.
(d) clause (a),
(b) or (c) does not apply and the office for the administration of the trust is situate in the Maharashtra region or the Gujarat region, then the trust shall be deemed to be so registered on that day without further inquiry, charge or fee in the Maharashtra region or, as the case may be, the Gujarat region."
9. It is the say of the appellant that Additional Charity Commissioner and Charity Commissioner have rightly held that the present case is covered up by Cl. b of Cl. - 4 of the above Order. At the time of hearing, much of the arguments were advanced on effect of deeming clause provided in Cl. - 4.
10. Before attempting to interpret Cl.-4, let us consider Nautam Prakash's case (supra) because if the present case is covered up by Nautam Prakash's case (supra), as contended by learned advocate for the appellant than other question may not require to be considered.
11. In Nautam Prakash's case (supra), respondent No.-1 declaring himself to be a member of the trust has .......filed an application before the Assistant Charity Commissioner, Greater Bombay purportedly under Section 41A and 41B of the Act praying, inter alia, for appointment of proper persons and trustees of the said trust........... (Para 10).
12. The Assistant Charity Commissioner allowed the said application and issued some directions. The appellant Trust had filed a writ petition before the Bombay High Court. The same was came to be dismissed. The High Court had held that, ................. the appellant never challenged the vires of the provision of the Act or 1960 Order and having itself filed an application for registration and furthermore, having filed the statement of accounts before Assistant Charity Commissioner after 1973, they have disentitled themselves from contending that the provisions of the Act, 1960 or the Order 1960 are unconstitutional......... .
13. The Honourable Supreme Court says that the short question which arises for consideration in this appeal is as to whether the Assistant Charity Commissioner, Greater Bombay had jurisdiction to interfere with the administration of the appellant Trust . The appellant Trust had administrative office situated in the State of Gujarat and only some of the properties of it are at Bombay. The Honourable Supreme Court says that, .............. the contention raised in this appeal should have been determined having regard to the doctrine of lex situs. The law in this behalf, in view of the provisions of the Act and the Order, is clear and explicit. Whether in the area of international law or the domestic law, lex situs has to be determined in the context of the proper law applicable thereof, be it in the realm of contract or otherwise. (Delhi Cloth & General Mills Co. Ltd. v. Harnam Singh, (1955 2 SCR 402 : AIR 1955 SC 590).
14. The Honourable Supreme Court while allowing the appeal and disagreeing with the view taken by the High Court that appellant Trust cannot question the jurisdiction of Assistant Charity Commissioner of Bombay has held, thus : -
29. The Charity Commissioner did not find that the allegations relating to mismanagement had any foundation. It has been clearly held that the said allegations are not proved. The Charity Commissioner also declined to pass an order in terms of Section 41A as regards the prayer for appointment of an administrator. The first respondent was only given liberty to file an appropriate application under the Act. In the event, such an application is filed, indisputably the same has to be determined on its own merit. We would, however, observe that any such application alleging to mismanagement of the trust, if filed, may be forwarded to the Assistant Charity Commissioner, Gujarat who shall deal with it. It is further made clear that the respondent would be at liberty to inspect the audited accounts in the office of the Assistant Charity Commissioner in terms of the scheme framed by the Gujarat High Court.
15. Couple of distinctive, features of that case may be referred to; one in Nautam Prakash's case (supra), the Court has not considered the question whether the trust which is registered either at Bombay or Gujarat and which has property situated in Bombay as well as in Gujarat is required to be registered in both the states or not. In Nautam Prakash's case (supra), the application was filed for the appointment of proper person and trustee of the said trust and further, the question fall for consideration was considered in the background that trust was in fact registered at Bombay as well as at Gujarat. In other words, unlike the present case, question in that case namely to appoint or not proper person or a trustee in the trust arose for consideration, wherein admittedly the trust was registered at Bombay as well as in Gujarat. Consequently, the Honourable Supreme Court was pleased to allow the appellant Trust's appeal and has directed that if any application filed by respondent No.1 for mismanagement of trust etc. (at Bombay), the same shall be forwarded to Assistant Charity Commissioner at Gujarat who shall deal with it. Further, it would appear that the appellant trust in that case was submitting the statement of account at Greater Bombay office as well as at the office of Charity Commissioner, Baroda, Gujarat. (Para 12 and Para
14).
16. Learned advocate Mr. Raval has rightly drawn attention to this observation in Nautam Prakash case (supra), In the year 1961, despite the 1960 Act and 1960 Order, presumably, in view of the fact that one of the temples was situated in the State of Maharashtra, the appellant herein filed an application for registration, thereof to the Assistant Charity Commissioner, Bombay and same was granted (Para
9). These observations are possible to read in favour of the respondent Trust. The Order referred as 1960 Order is Bombay Charity Commissioner (Regional Reorganization) Order 1960.
17. Thus, in view of above, Nautam Prakash's case (supra) cannot be of much help to the appellant. It may be stated that in Nautam Prakash's case (supra) referring Ramswarup Guru Chhote Balakdas versus Motiram Khandu Patil, AIR 1968 SC 422 has approvingly quoted thus : -
27. Yet again, dealing with almost an identical question, this Court in Ramswarup Guru Chhote Balakdas v. Motiram Khandu Patil & Ors. [AIR 1968 SC 422] opined that two different authorities cannot exercise the right to supervise and control the management of the trust properties, holding:-
The curious result of such a construction would be that though the trust is situate and is administered at Burhanpur in Madhya Pradesh, the authorities under the Bombay Act can claim to control its management.
It was categorically held:
"The fact that a part of its property is situate in Maharashtra State though the trust is within Madhya Pradesh State, would not mean that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the trust and its administration is not contemplated by either of the two Acts. It is, therefore, clear that the present trust does not fall within the ambit of Section 28 and is not one of those trusts which can be deemed to be registered under the Bombay Act. That being so, it is obviously not a trust which fulfils the second condition of Section 88B of the Bombay Tenancy and Agricultural Lands Act and the appellant cannot be said to be entitled to the certificate under that Section.
It may be noted that applicability of the Act to Gujarat and Maharashtra State materially differs in the sense that applicability of quite some provisions in respective states differs in material respect.
18. Let us consider Cl. - 4 of the Bombay Order, some of the special features of it are thus : - Its title is, Registration of Public Trust where property or office is situated. It takes note that Public Trust may have property and trust may have also administrative office.
It may be that, the property and administration office may not be at the same place, then Cl. (a), (b), (c) and (d) refers to registration. Cl. (a) refers cases where property and administration office both situated in one State (Maharashtra or Gujarat). Cl. (b) refers cases where part of the property situate in either of the State. It ignores where the administrative office is situated. Cl.
(c) refers cases where property is in one State and administration office is in another State. Lastly Cl. (d) appears to deal with the cases where the trust has no property but has only administration office in either of the State.
It is only in cases of Cl. (b) and (c) that question of registration in more than one state would arise for consideration. It is pertinent to note that unlike Cl. - (c), Cl. - (b) do not say of registration of the trust in both the State, though the property may be situated in both the States.
18.2 Is it possible to read the Order as enabling the authority to register on its own or to read it in some such sense ? In order to consider the scope and purport the Order, two points may be bear in mind. First the Order may be read along with the provision of registration of trust under the Act and secondly, the nature of the Order i.e. transitory provision.
19. Taking the second point first, in the present case, need for issuance of Bombay Charity Commissioner (Regional Reorganization) Order of 1960 appears to be the division of one Bombay State in two States whereby State of Gujarat was carve out from the State of Bombay. It is not that the regions that now become part of the Gujarat, had earlier no Charity Commissioner Office, no such submission made at the time of hearing. In my opinion, limited purport of this Order of 1960 is that from the appointed day all offices of Charity Commissioner which were formerly part of the Bombay State would now become part of Maharashtra and Gujarat State as the case may be. Opening part of the Order of 1960 itself says that, it is on account of reconstitution and reorganization of the office of Charity Commissioner, this Order is issued. Bearing in mind the said object behind issuing of Order, if refer the Subclauses of Cl. - 4, it would appear that in all the sub clauses emphasis is placed on registration on appointed day .
The emphasis is apparent and clear. It is true that there is also a reference to registration in each of the sub clauses of Cl.
- 4. But the word registration is moderated by the word on that day which immediately follows the word registration . It may also be bear in mind that the Order is issued under Bombay Statutory Corporation (Regional Reorganization) Act, 1960.
19.1 Further, in the present case, R.R. Shastri had filed an application before the Assistant Charity Commissioner on 11.10.1989. It does not stand to reason that for an application filed under the Act, - in the year 1989, why we need to turn to Order issued on the eve of bifurcation of the State in 1960, particularly, when the subject matter of the application falls under the provisions of the Act, and the application filed herein is not germane to the bifurcation of the Bombay State.
As to the first point, unlike the provision of the Act to which reference may be made hereinafter, the Order does not fasten duty upon the trustee (or upon anyone) to register the trust. In fact it says as referred above no inquiry in this regard is to be made and no fees is to be charged and it implies that no application is to be made. It says from the appointed day , trust shall be deemed to be registered at the office referred therein. Brief reference to device of deeming provision may be made in a moment. It would be erroneous to read the Order as providing that public trust, stand registered by virtue of the legal fiction. It is pertinent to note that even the Act do not provide for such automatic registration nor does clothing of very wide power of suo moto inquiry as enumerated under the Act - include compulsory registration of the trust. If the intention of the legislature had been that, what is sought to be contended by the learned advocate for the appellant, by relying on Order, then legislature would have expressed itself by referring or incorporating this provision of the Order in the Act itself. The Act would have been suitably amended and it would have incorporated the Order in the Act or provisions analogous to order would have been made part of the Act. Therefore, it would be erroneous to look to the Order for answer to the question raised for consideration herein.
21. Debate at the time of hearing centered around Order mainly because the Order contains deeming provision. The legislature resorts to the device of deeming clause quite often for different reasons, under different circumstances.
22. Deeming provision may not always be resorted to create legal fiction. In Consolidated Coffee Ltd. v. Coffee Board reported in AIR 1980 SC 1468.
It was held that the word deemed is used a great deal in modern legislation in different senses and it is not that a deeming provision in every time made for the purpose of creating a fiction. A deeming provision might be made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word of phrase that would not otherwise prevail, but in such cases the motive of the Legislature would be relevant.
23. Earlier in case of State of Travencore Cochin versus S.V.C. Factory case, AIR 1953 SC 333, S.R. Das (as he then was) has held : -
................
The Explanation, however, provides that, in spite of such general law, a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State. In effect, therefore, the Constitution, by this Explanation to cl. (1) (a), acknowledges that under the general law the sale or purchase of the kind therein mentioned may not really take place in the delivery State, but nevertheless requires it to be treated as if it did. That is to say, the Explanation creates a legal fiction. Reference may be made to Income-tax. Commissioners, Bombay v. Bombay Trust Corporation,A. I. R. 1930 P.C. 54 at p. 55 (G), where Viscount Dunedin explains the meaning of a legal fiction.
38. When a legal fiction is thus created, for what purpose, one is led to ask at once, is it so created? In In re Coal Economising Gas Company, (1875) 1 ch. D. 182 (H), the question arose as to whether under s. 38 of the Companies Act, 1867, a shareholder could get his name removed from the register on the ground that the prospectus was fraudulent in that it did not disclose certain facts, or whether his remedy was against the promoter only. James, L. J., said at pp. 188-9 :
The Act says that an omission shall be deemed fraudulent. It provides that something which under the general law would not be fraudulent shall be deemed fraudulent and we are dealing with a case of that kind. Where the Legislature provides that something is to be deemed other than it is, we must be careful to see within what bounds and for what purpose it is to be so deemed. Now the Act does not say that the prospectus shall be deemed fraudulent simpliciter but that it shall be deemed fraudulent on the part of the person wilfully making the omission as against a share-holder having no notice of the matter omitted; and I am of opinion that the true intent and meaning of that provision is to give a personal remedy against the wrongdoer in favour of the shareholder.
So it was held that the fiction -did not operate as against the Company and there could, therefore, be no rectification of the register. Again in Ex parte Walton, In re Levy, (1881) 17 Ch. D. 746 at P. 756 (I), referring to S. 23 of the English Bankruptcy Act, 1869, James, L.J. Said;
When a Statute enacts that something shall be deemed to have been done, which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.
The above observations were quoted with approval by Lord Cairns and Lord Blackburn in Arthur Hill v. East and West India Dock Co.,(1884) 9 A. C. 448 (J). Lord Blackburn went on to add at page 458:
I think the words here 'shall be deemed to have surrendered' ........ mean, shall be surrendered so far as is necessary to effectuate the purposes of the Act and no further;........
(emphasis supplied) (Para 38)
24. In the context of discussion in the present case, it would be informative and interesting to refer Jayantilal Amratlal Shodhan versus F.N. Rana and Others reported in AIR 1964 SC 648.
It can be said that in that case also, question arose on account of division of State of Bombay. The appellant's land was acquired by issuing the notification under Section 4 of the Land Acquisition Act for the purpose of Ellis Bridge Telephone Exchange. Issuance of notification by the Commissioner of Baroda was challenged. It was contended that issuance of notification by the President under Article 258 (1) of the Constitution for entrusting function of Union Government relating to acquisition of land to Commissioner of Bombay is bad inasmuch as on coming into existence of State of Gujarat concurrence of State of Gujarat was not taken for entrustment of functions to its officers. Court was sharply divided in that case. In five Judges Bench majority upheld the dismissal of the petition. Minority opinion by Wanchoo, J (as he then was) for himself and for S. Rao, J allowed the petition / appeal. In the course of discussion, it was observed : -
41. It is therefore clear that in order that a notification or order may have the force of law it has to contain a rule or body of rules regulating the conduct of a person or persons living in the community; it has to be passed by a body which has the necessary authority for the purpose and it is then that it will be enforceable by courts or other authorities and will have the force of law. In short, in order that a notification or order may have the force of law it is not enough that Courts may recognise it if necessity arises; it is further necessary that the same should lay down a rule or course of conduct which a person or persons living in the community may be obliged to follow and which therefore becomes enforceable by courts or other authorities and acquires the force of law.
24.1 The question and the context in Jayantilal Amritlal Shodhan versus F.N. Rana and Others (Supra), was different but it is instructive to consider sweep and one of the facet of the Order.
25. In order to search the answer, for the question raised herein for consideration, we may turn to the relevant provisions of the Act. Chapter - IV provides for, Registration of Public Trusts . Chapter IV consist of section 14 to 31. section 14 says about Regions and sub-regions , Section 15 is about Public trust registration offices . For the purpose of present discussion, Section 18, 19, 22-A are important and material. Section 18 provides for Registration of Public Trust . Section 18 (1) says, it shall be the duty of the trustee of a public trust to which this Act has been applied to make an application for the registration of the public trust. Such application is to be made to the Assistant / Deputy Charity Commissioner (S.Sec.2). Such application shall be in writing (S.Sec.3). Subsection 4 of Section 18 is important and material, I may refer to it in a moment.
26. What details such application should contain is stated in subsection 5. It is provided that every such application shall be signed and verified in the prescribed manner by the trustee (S.Sec.6). Lastly, subsection 7 provides for sending memorandum in a prescribed form containing particulars about the immovable property etc.
27. Section 18 also takes care of public trust which are in existence prior to the application of Bombay Public Trust and also deals with public trust which came into existence after the operation of this Act. Subsection - IV reads thus : -
18 (4) Such application shall -
(a) in the case of a public trust created before this Act was applied to it, be made, within three months from the date of the application of this Act, and
(b) in the case of a public trust created after this Act comes into force, within three months of its creation.
28. Section 19 provides for, inquiry for registration . Under Section 19 either upon receiving of any application from any person who is interested in a public trust or Deputy / Assistant Charity Commissioner on his own motion can make an inquiry for the purpose of ascertaining
(i) whether a trust exists and whether such trust is a public trust,
(ii) whether any property is the property of such trust,
(iii) whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction,
(iv) the names and addresses of the trustees of such trust,
(v) the mode of succession to the office of the trustee of such trust,
(vi) the origin, nature and object of such trust,
(vii) any other particulars as may be prescribed under sub-section (5) of section
18.
29. Under Section 18 (1) duty is cast upon trustees to make an application for registration of public trust. Section 18 (4) such application is to be filed within three months if the trust existed prior to Act came into force, as is the case herein, then the application is to be made within three months from the date of application of Act. Thus, by whom and when application is to be filed is provided in the Act. The Act does not seem to provide answer in respect of question raised herein.
29.1 It would appear that though very wide power are conferred upon Deputy / Asst. Charity Commissioner to make an inquiry about registration under Section 19, - including the power to make inquiry on his own motion,
- the said authority is not empowered to compel any trust for registration or to register it on his own. Consequence of non registration is stated in Section 66. The trustees would be liable to be prosecuted. Failure to register trust or showing negligence in that regard may expose the trustees to criminal prosecution. However, if the trust chooses not to register there does not appear to be a provision to compel the trust for registration or provision to treat or consider notional registration.
30. Learned advocate Mr. G.M. Joshi also submitted that registration of such trust also in Gujarat ought to be read in provision because office of Charity Commissioner at Patan could exercise better check and control over the property situated at Patan and it would be inconvenient for office of Charity Commissioner to exercise check and control from Bombay. This submission is not possible to accept in absence of any provision. The trust cannot be compelled to get registered in both the States merely for the sake of convenience. Further, the submission that office of Charity Commissioner at local level could exercise better check and control is though attractive submission, it has not much substance, inasmuch as check and control is to be exercised by requiring the trust to submit regular returns etc. and by inspecting their accounts etc. Check and control over the trust property are not to be exercised by placing some person permanently at the property of the trust. Such kind of police powers are not contemplated under the Act. This submission, therefore, is not possible to accept.
31. Learned advocate Mr. G.M. Joshi has drawn attention of the Court to the Order passed by this Court in Special Civil Application No.6071 of 1999 in Sudhir R Tejpal versus State of Gujarat. Sh. Joshi has stated that following Nautam Parkash's case (Supra), this court pleased to allow the Special Civil Application. Learned advocate Mr. Raval has rightly pointed out that in that case, trust itself has applied for registration and this Court has passed Order on 26.02.2009 with consent of the parties.
32. In view of above, Nautam Prakash's case (Supra) do not help much to the appellant nor Bombay Charity Commissioner (Regional Reorganization) Order 1960 deals with registration of trust. The relevant provisions are Section 18 and 19 of the Bombay Public Trust Act read with Section 66 and other relevant provisions. The Act does not provide for automatic or compulsory registration. The Trust, Bhartiya Arogya Nidhi specifically opposes its registration at Patan Office at Gujarat. The appellant cannot compel the trust for registration. Therefore, appeal fails and dismissed accordingly.
(R.D.KOTHARI, J.) Amar Page of 20
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