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TMI Blog1967 (9) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. 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 Dharamshala 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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. Sambhusing then submitted the application out of which this appeal has arisen. 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. The first question which falls to be considered is whether the Municipality holds the property or any part thereof as a trustee. Dagadu Khushal claiming to be the owner of the property by purchase from Charandas transferred it to the Municipality for public purpose i.e. to be utilised for giving shelter to Sadhus, saints and religious mendicants in the same manner in which it had been utilised upto the date of transfer. We will assume that Dagadu Khushal could have, when he was the owner, stopped the user of the property for the benefit of Sadhus, saints and religiou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty 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 trust. It was then urged by counsel for the Municipality that by the decree passed in the suit filed against Baba Haridas, the right of the members of the Johari community to the property in dispute was negatived and the same right cannot, because of the rule of res judicata, be re-agitated in these proceedings. In that argument, in our judgment, there is no substance. The only dispute in suit No. 5 10 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not an object of general public utility. The bounty of the settlor, observed the learned Judge, must be directed towards the public as a whole or a section of the public: if the object of his bounty is neither the public nor a section of the public, but merely a conglomeration of men who constitute a mere group and the nexus which ties them is not a nexus which constitutes them a section of the public, the trust is not for advancement of any object of general public utility . We are unable to agree with that view. Section 9 of the Bombay Public Trusts Act provides: For the purposes of this Act, a charitable purpose includes- (1) relief of poverty or distress, (2) education, (3) medical relief, and (4) the advancement of any other object of general public utility, but does not include a purpose which relates- (a) exclusively to sports, or (b) exclusively to religious teaching or worship. Section 10 of the Act provides, Notwithstanding any law, custom or usage, a public trust shall not be void, only on the ground that the persons or objects for the benefit of whom or which it, is created are unascertained or unascerta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterested 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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