|
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
INCOME TAX REFERENCE No 135 of 1988
For Approval and Signature:
Hon'ble MR.JUSTICE R.K.ABICHANDANI
Hon'ble MR.JUSTICE KUNDAN SINGH
============================================================
1. Whether Reporters of Local Papers may be allowed : YES
to see the judgements?
2. To be referred to the Reporter or not? : YES
3. Whether Their Lordships wish to see the fair copy : NO
of the judgement?
4. Whether this case involves a substantial question : NO
of law as to the interpretation of the Constitution
of India, 1950 of any Order made thereunder?
5. Whether it is to be circulated to the Civil Judge? : NO
------------------------------------------------------
COMMISSIONER OF INCOME TAX
Versus
HAZARAT PIR SHAH-E-ALAM ROZA ESTATE TRUST
--------------------------------------------------------------
Appearance:
MR B.B. NAIK, Standing counsel for the Revenue
MR S.N. SOPARKAR, Sr. Advocate with Mr.M.K.Kaji
and Mrs. Swati Soparkar, Advocates for the Assessee
--------------------------------------------------------------
CORAM : MR.JUSTICE R.K.ABICHANDANI
and
MR.JUSTICE KUNDAN SINGH
Date of decision: 11/04/2002
ORAL JUDGEMENT
(Per : MR.JUSTICE R.K.ABICHANDANI for the Court)
1. This reference arises from the order of the
Income Tax Appellate Tribunal, Ahmedabad `A' passed in a
group of 20 appeals related to the Assessment Years
1964-65 to 1969-70, 1972-73 and 1973-74, in which the
controversy before us revolved around the issue as to
whether the income from the lands in question was the
income of the Hazarat Pir Shah-E-Alam Roza Estate Trust
(hereinafter referred to as `the Roza Trust') assessable
in the hands of the said Trust and exempt under section
11 of the Income Tax Act, 1961 (hereinafter referred to
as `the said Act'), or whether it was assessable in the
hands of the Sajjadanashin of the Trust Saiyed Musamiya
as income from his private property.
2. The Tribunal has concluded that the lands in
question were wakf properties belonging to the Roza
Trust, and that the exemption under section 11 of the
said Act was available to the assessee - Roza Trust,
provided the conditions mentioned therein are fulfilled.
It was held that the actual expenditure on the
Sajjadanashin and his family not exceeding Rs.30,000=00
would not be included in the income of the Roza Trust,
but such amount spent by the assessee Sajjadanashin on
his maintenance as Madad-E-Maash was taxable in his hands
as income. The Tribunal restored the matter to the
Income Tax Officer to assess the income of Rasulabad,
Vasna, Isanpur and Sarsa lands as the income of the Roza
Trust and grant the benefit under section 11 subject on
fulfillment of the conditions mentioned therein, bearing
in mind that the income actually spent by Sajjadanashin
on his maintenance not exceeding Rs.30,000=00 was not to
be included in the income of the Roza Trust.
3. The Tribunal has in the above background referred
the following questions in Income Tax Reference No. 135
of 1988 for the opinion of this Court under section
256(1) of the said Act :
"Questions at the instance of the Revenue (In
Revenue Appeal Nos.402 to 409/Ahd/1985) :
[1] Whether on the facts and in the
circumstances of the case, the Income Tax
Appellate Tribunal has been right in law
in holding that the assessee Roza is a
wakf and the complex of buildings and
lands at Rasulabad were wakf properties
belonging to it by dedication and user ?
[2] Whether, on the facts and in the
circumstances of the case, the Appellate
Tribunal has been right in law in holding
that the lands at Vasna, Isanpur and
Sarsa were wakf properties belonging to
the Roza by virtue of Sanad of Aurangzeb?
[3] Whether, the Appellate Tribunal has been
right in law and on facts in holding that
the income of Roza was eligible to
exemption under section 11 of the Income
Tax Act, 1961 if assessee Roza satisfied
the conditions mentioned in the said
section?
[4] Whether, the Appellate Tribunal has been
right in law and on facts in holding that
the actual expenditure on the maintenance
of the Sajjadanashin and his family not
exceeding Rs.30,000=00 a year would not
be included in the income of Roza?
Questions at the instance of the Revenue in
Revenue Appeal Nos. 410 to 413/Ahd/1985 :
[1] Whether, the Appellate Tribunal has not
erred in law and on facts in holding that
the properties at Rasulabad, Vasna,
Isanpur and Sarsa belonged to Shah-E-Alam
Roza at Ahmedabad and not to the assessee
individual and hence the income thereof
was not liable to be assessed in the
hands of the assessee?
[2] Whether, the Appellate tribunal has not
erred in law and on facts in holding that
the Bombay High Court decision wherein
the assessee had taken the stand that the
properties belonged to him individually
and not to the trust, did not operate as
res judicata and the assessee was not
prevented from taking the stand that the
properties belonged to Roza Trust?
[3] Whether, the Appellate Tribunal has not
erred in law and on facts in holding that
income spent by the assessee Razvi on his
maintenance and Madad-E-Maash was only
taxable in his hands?
Questions at the instance of the Revenue in
Revenue Appeal Nos.384 to 387/Ahd/1985 :
[1] Whether, on the facts and in the
circumstances of the case, the Tribunal
was justified in law in holding that all
the properties, lands and buildings at
Rasulabad are wakf properties by user?
[2] Whether, on the facts and in the
circumstances of the case, the Tribunal
was justified in law in holding that the
income spent by the assessee Razvi on his
maintenance and Madad-E-Maash was taxable
income in the hands of the assessee?
[3] Whether, the Tribunal was justified in
law in holding that the maintenance and
Madad-E-Maash expenditure incurred by the
Trust on assessee and his family members
was not expenditure for Khankah but was
taxable income of the Sajjadanashin?
Questions at the instance of the assessee - Roza
Trust in Revenue Appeal Nos. 388 to 398/
Ahd/1985:
[1] Whether, on the facts and in the
circumstances of the case, the Tribunal
was justified in law in holding that the
maintenance and Madad-E-Maash expenditure
incurred by the trust on Sajjadanashin
and his family members was not
expenditure for Khankah?
[2] Whether, on the facts and in the
circumstances of the case, the Tribunal
was justified in law in holding that
actual expenditure incurred (not
exceeding Rs.30,000=00 a year) in
maintenance of Sajjadanashin and his
family was not the income of the trust?
[3] Whether, the Tribunal was justified in
law in holding that the British Sanad
granted to the assessee were not the
documents of title?"
4. Much historical interest has been evinced by the
authorities and a detailed account is given in their
orders with a historian's thrill to show as to how the
Dargah of Hazarat Pir Shah-E-Alam came into existence
when the Roza was constructed during 1531 - 41 A.D. by a
noble man of the Court of Sultan Bahadur Shah over the
tomb of the great muslim sage who died in 1475 A.D. and
how Diwankhana came to be built in 1570 - 73 by Sultan
Muzaffer Shah III. These facts found mention in the
Bombay Gazette Volume IV at pages 286-87. The lands of
six villages, including the four which were the subject
matter of the assessment proceedings, are said to have
been granted by the Mogal Emperor Aurangzeb for the
up-keep of the Roza in the year 1670 A.D. under a Sanad
and grants were confirmed by the Sanads issued during the
British regime.
5. It appears from the record that a suo motu
inquiry was started under section 19 of the Bombay Public
Trusts Act, 1950 (hereinafter referred to as `the Trusts
Act of 1950') by order dated 7th march 1956 (Inquiry No.
176 of 1956) passed by the Deputy Charity Commissioner
who had chosen the assessors to aid and assist him. As a
result of that inquiry, the Deputy Charity Commissioner,
Ahmedabad Region, made an order on August 10, 1962
directing that the said Trust be registered as a Public
trust in the Public Trust Registration Office, Section
`B' for Ahmedabad. Appeals were filed against that order
before the Charity Commissioner, Gujarat State, Ahmedabad
(Appeal Nos. 60 to 71 of 1962) and the Charity
Commissioner by a very elaborate reasoned order dated
20-1-1966 dismissed both the appeals, confirming the
order of the Deputy Charity Commissioner that the said
Roza trust was a public trust and that the lands of
villages Vasna, Isanpur and Sarsa were the properties of
the said trust and setting aside the finding of the
Deputy Charity Commissioner about the Rasulabad lands by
holding that those lands were also the property of the
trust. It is stated that an application under section 72
of the said Trusts Act of 1950 was filed and has been
pending, but there has not been any stay of the order of
the Charity Commissioner, by which it was held that the
Roza was a registered public trust and these lands of
four villages were registered as the properties of the
said wakf.
6. The Income Tax Officer assessed the income of
villages Vasna, Isanpur and Sarsa as well as the income
from Rasulabad land as the income in the hands of the
assessee Sajjadanashin Saiyed Musamiya Haiderbux Razvi.
Protective assessment was, however, made in respect of
that income in the name of the assessee Roza Trust. In
the appeals, the Assistant Appellate Commissioner upheld
the finding of the Income Tax Officer that the income was
assessable in the hands of Saiyed Musamiya Haiderbux
Razvi but cancelled the protective assessment which was
made in the name of the Roza Trust.
6.1 Against the order of the A.A.C., appeals were
preferred by the Roza Trust before the Tribunal
challenging the finding that the income in question was
of Saiyed Musamiya Haiderbux Razvi and not of the Roza
Trust, and that it was not exempted under section 11 of
the said Act. According to the assessee Roza Trust, the
Appellate Assistant Commissioner had committed an error
in setting aside the protective assessment on the ground
that the income was not the income of the Roza Trust
instead on the ground that it was exempted under section
11 of the said Act.
6.2 In the appeals filed by Saiyed Musamiya Haiderbux
Razvi, it was urged that the A.A.C. had erred in holding
that the income of the trust was assessable in his hands
and not in the name of Roza Trust and that it was not
exempted under section 11 of the said Act.
6.3 The Department was aggrieved by the cancellation
of protective assessment and in its appeals, challenged
the order of the A.A.C. by urging that the protective
assessment in the name of Roza Trust should not be
cancelled.
7. The Tribunal took note of the fact that the
Deputy Charity Commissioner had held that all the lands
in question except the Rasulabad lands, were belonging to
the public religious and charitable trust i.e. the Roza
Trust. It noted that the Charity Commissioner had
confirmed that order and had also held that the Rasulabad
lands were belonging to the said trust. It took note of
the book entitled "A History of Gujarat" by M.S.
Commissariat (Professor of History and Former Principal,
Gujarat College, Ahmedabad) to trace out the events that
led to the establishment of the Roza Trust as a public
charitable trust. It noted that Shah-E-Alam Estate was
under the management of the Collector of Ahmedabad under
the Court of Wards Act, from 1872 to 1877, 1896 to 1914
and 1948 to 1958. Considering the effect of the
judgement dated 24th September 1957 of the Bombay High
Court, in First Appeal No. 188 of 1952 which was filed
against the decision of the 3rd Joint Civil Judge (S.D.)
Ahmedabad in Civil Suit No. 72 of 1948, partly decreeing
the suit filed by the senior widow of Saiyed Musamiya
Imam Hyderbux against the other widow Mamubibi and her
son Saiyed Musamiya Razvi and others, for a decree for
administration of the estate of Saiyed Musamiya Hyderbux
and for appointment of a receiver etc., the Tribunal came
to a finding that the said judgement did not operate as
res judicata, because, the Roza Trust was not represented
in those proceedings and the question whether the
properties were public trust properties was not before
the Court. It was, therefore, held that Saiyed Musamiya
Razvi was not prevented from taking up the stand that the
properties in question belong to the Roza Trust. The
Tribunal took into consideration the inscription on the
marble tablet placed at the entrance of the Roza Trust,
the account of which was given in the book of Professor
Commissariat and the sanad granted in 1670 by Aurangzeb
assigning six villages for the maintenance of the tomb
and its custodian and found that there was dedication of
these lands of four villages for charitable and religious
purpose. The Tribunal considered the said Sanad, a
translation of which was submitted before it, and held
that all the requirements of the public religious
endowment were satisfied. It held that, as per the
Sanad, one Saiyed Mohammad was appointed by the `Farman'
of Aurangzeb as the Sajjadanashin and Mutawalli of the
Roza and he was granted six villages comprising 80 Bighas
and 17 Biswas of land exclusively for expenditure on the
sacred mausoleum under the heads of expenditure : the
tutors, people of the mosque, the seekers of knowledge,
the carpet spreaders, the light kindlers, the travellers,
and all other aspects of beneficience and charity and for
Madad-E-Maash of the Sajjadanashin, his sons and
descendants. The Tribunal held that, in the translation
of the Sanad which was supplied to it, there was no
omission and the names of villages were clearly
mentioned. It was held that the primary and dominant
purpose of the grant was public religious and charitable
and the maintenance of the Sajjadanashin (Madad-E-Maash)
was only incidental to the primary object of the wakf.
It was also held that the evidence regarding
establishment of the wakf was so predominant that
inconsistent conduct of Saiyed Musamiya Razvi or his
ancestors cannot displace the existence of the wakf.
Considering the status of Sajjadanashin as the holder of
a spiritual office in the Roza Trust, the Tribunal held
that a reasonable expenditure on the maintenance of the
Sajjadanashin and his family must be held to be
expenditure incurred for a religious purpose, and
therefore, the benefit of section 11(1)(a) would be
available to the assessee Roza Trust for such
expenditure. It was held that the actual expenditure not
exceeding Rs.30,000=00 a year over the maintenance of the
Sajjadanashin and his family was allowable and should not
be included in the income of the Roza Trust. The
Tribunal, however, held that the Sajjadanashin receives
such income by reason of his office and any monetary
receipt in the hands of a person by reason of his office
was the income in his hands and was taxable. Summarising
its conclusions, the Tribunal held in paragraph 45 of its
order, that the decision of the Bombay High Court in
First Appeal No. 188 of 1952 did not operate as
res-judicata and the Sajjadanashin Saiyed Musamiya Razvi
was not prevented from taking up a stand that the
properties belong to the Roza; that the assessee Roza was
a wakf and the complex of buildings and the lands at
Rasulabad were wakf properties belonging to it by
dedication and user; that the lands at Vasna, Isanpur and
Sarsa are wakf properties belonging to the Roza trust by
reason of the Sanad of Aurangzeb; that the income spent
by the assessee Musamiya Razvi on his maintenance as
`Madad-E-Maash' was taxable in his hands; and that the
actual expenditure on the maintenance of the
Sajjadanashin and his family not exceeding Rs.30,000=00 a
year, would not be included in the income of the Roza
Trust. With these findings, the Tribunal restored the
matter to the Income Tax Officer to assess the income of
Rasulabad, Vasna, Isanpur and Sarsa lands as income of
the Roza Trust and grant the benefit under section 11 of
the said Act, subject to fulfillment of the conditions
mentioned therein, bearing in mind that the income
actually spent by the Sajjadanashin on his maintenance
and that of his family not exceeding Rs.30,000=00 per
year was not to be included in the income of the Roza
Trust.
8. The learned Standing Counsel appearing for the
Revenue argued before us that the judgement of the Bombay
High Court in First Appeal No. 188 of 1952 was a
judgement rendered within the jurisdiction of the Court
and was binding on all the authorities under the Bombay
Public Trusts Act, because, the suit was of the year
1948, while the Bombay Public Trusts Act came into force
from 1950. It was argued that the income tax authorities
were not bound by any decision of the Charity
Commissioner under the Bombay Public Trusts Act as to the
existence of the public trust or about the fact whether
any property belonged to the public trust. It was
submitted that, in the process of assessment, it was
incidental for the assessing officer to decide as to whom
the property belonged, and therefore, notwithstanding the
powers of the Charity Commissioner under the Bombay
Public Trusts Act, the assessing officer can take a
different view under the provisions of the Income Tax Act
as regards the ownership of the properties which may have
been registered as the properties of the Trust. The
learned counsel strongly contended that the authorities
under the Income Tax Act were functioning under the
Central Law and therefore, they would not be bound by any
decision taken by a functionary under the State law.
Therefore, the tax authorities have independent powers
under the said Act to decide the ownership of the
immovable property for determining the question regarding
the income received by the Public Trust and whether it
was exempted under section 11 in light of the said
provision read with section 143(2) and (3) of the said
Act. It was further argued that the grant made by
Aurangzeb was in favour of the Sajjadanashin and his
family, and his descendants and therefore, it was a
personal inam and cannot be treated as creation of a
wakf. He therefore submitted that there was no
dedication of the said lands to any religious or
charitable purpose. It was also argued that, from the
conduct of the Sajjadanashin and his family members, it
was clear that they had treated the properties as if they
were their private properties, and that is why, the
administration suit was filed by one of the widows of the
then Sajjadanashin which culminated in the decision of
the Bombay High Court in First Appeal No. 188 of 1952,
confirming the decree passed in the Administration Suit
wherein the other widow and the present Sajjadanashin
were parties. It was argued that the Tribunal had
committed an error in fixing the amount of Rs.30,000=00
as an expenditure wholly incurred for religious purpose
entitled to exemption under section 11 of the Act.
According to him, such expenditure on Sajjadanashin and
his family (Madad-E-Maash) was a private expenditure and
not incurred for any religious purpose. He then argued
that the authorities under the Bombay Public Trusts Act
had committed an error in holding that the judgement of
the Bombay High Court did not preclude them from taking a
decision under the said Act, and that there was no bar of
res-judicata. He submitted that the authorities under
the Bombay Public Trusts Act were clearly bound by the
decision of the Bombay High Court and could not have held
that there was a public trust or that the properties in
question were dedicated for religious and charitable
purposes. It was submitted that, in any event, an
application under section 72 of the Bombay Public Trusts
Act was pending before the Ahmedabad City Civil Court and
therefore, the decision under the Bombay Public Trusts
Act registering the Roza Trust and showing the properties
in question as the trust properties was not final. Even
if it is to be treated as final for the purposes of the
Bombay Public Trusts Act since that is a State law, the
income tax authorities acting under the central law, i.e.
the Income Tax Act, were in no way bound to follow the
decisions taken under the Trusts Act. The learned
Standing Counsel finally argued that the record shows
that, in the past, the said Roza was registered as a wakf
under the Musalman Wakt Act, 1923, but later on, on
3/9/1934, it was deleted by the Collector from the list
of wakfs. Therefore, it could not have been again
decided under the Bombay Public Trusts Act that the said
Roza was a public trust, and that its properties were
public trust properties. Therefore, the properties in
question are required to be held of the individual
assessee i.e. the Sajjadanashin and the income was
assessable in his hands and not in the hands of the Roza
Trust. The learned Standing Counsel supported the
reasoning of the Income Tax Officer, and contended that
the findings of the Tribunal were not warranted by the
material on record.
8.1 The learned Standing Counsel for the Revenue, in
support of his arguments, cited the decision of this
Court in Commissioner of Income Tax, Gujarat III v.
Thobhandas Jivanlal Gajjar, reported in 109 ITR 296 to
point out that a Division Bench of this Court has held
that, it cannot be said as a broad proposition of law
that the decisions of civil courts would operate as res
judicata in the references so as to bind the Government,
which was admittedly not a party to the proceedings
before the civil courts, or would preclude the Income Tax
Officer, in the course of assessment, to investigate in
whose hands a particular income should be assessed.
Reliance was also placed on the decision in Keshavlal
Punjaram v. Commissioner of Income Tax & Wealth Tax,
reported in 141 ITR 466, in which the ratio of the
aforesaid decision in Thobhandas's case was followed, and
it was held that the Tribunal had rightly taken the view
that the decision rendered by the civil court in the
circumstances pointed out cannot preclude the statutory
exercise by the Income Tax Officer to form his own
opinion.
9. The learned Senior Counsel, who appeared for the
assessee, argued that, in view of the finding reached by
the Charity Commissioner on 20-1-1966 in Appeal Nos. 60
and 71 of 1962 upholding the order of the Deputy Charity
Commissioner dated 10-8-1962 registering the Roza Trust
as a public trust and finding that the properties in
question were the properties of the Roza Trust, it was
not open to the Tax Authorities to take a different view
of the matter. It was argued in the alternative that the
finding reached by the Tribunal as to the ownership of
the property was a finding of fact, which could not be
challenged as perverse, because, it was based on the
evidence on record. It was, therefore, not possible to
take any view as to the ownership of the property other
than the one taken by the Tribunal. It was submitted
that, in any event, it was quite clear from the evidence
on record that the findings reached by the Tribunal are
correct. As regards the amount of expenditure upto
Rs.30,000=00, which was required to be taxed in the hands
of Saiyed Musamiya Razvi, the learned Senior Counsel
submitted that the questions referred at the instance of
Saiyed Musamiya Razvi in respect thereof were not
pressed. He however submitted that this amount should be
a permissible deduction, because, it was expended for the
maintenance of the Sajjadanashin. It was then argued
that the controversy in the administration suit which
culminated in the decision of the Bombay High Court in
First Appeal No. 188 of 1952 was entirely different, and
the Roza Trust was not a party therein, nor was the
question as to whether the properties in question were
the properties belonging to the Public trust directly and
substantially in issue. It was submitted that the suit
was contested on an assumption that the properties
belonged to Sajjadanashin as his private properties. It
was contended that, in any event, it was a settled legal
position that there was no res judicata against a
decision being taken under the Bombay Public Trusts Act
on the basis of an earlier order of the Civil Court,
which could not have decided the questions entrusted to
the Charity Commissioner under that Act. It was also
submitted that the Rasulabad land was not the property of
the trust and ought to have been held to be the property
of the Sajjadanashin.
9.1 In support of his contentions, the learned senior
counsel for the assessee cited the following decisions :-
[a] The decision of the Bombay High Court in Zooleka
Bibi v. Syed Zynul Abedin, reported in VI BLR at
page 1058 was cited for the proposition that the
office of the Sajjad-a-nashin is a religious
office, and he may also be a Muttuvali of Wakf
property dedicated to charitable purposes. On
the facts of the case, the Court had come to the
conclusion that, so far as the tomb of Syed
Budruddin was concerned, he was not a religious
person to whom any such sanctity was attached
that his tomb could itself be considered a
religious object. Consequently no property could
be dedicated validly to support his tomb. It was
held that there was no documentary or oral
evidence in support of the alleged dedication.
[b] The decision of the Bombay High Court in
Narbheramji Gyaniramji Ramsnehi v. Vivekramji
Bhagatramji Ramsnehi, reported in 41 BLR at page
939, was referred to for the observation that, a
sanad granted under section 133 of the Bombay
Land Revenue Code, 1879 was prima facie evidence
of title. It was also held that such sanad was
not conclusive evidence.
[c] The decision of Oudh High Court in Shah Mohammad
Naim Ata v. Mohammad Shamshuddin, reported in
AIR 1927 Oudh 113 was cited for the proposition
that the property given to the Sajjadanashin of a
`khanqah' for the upkeep of the buildings and the
school connected therewith was the wakf property
and therefore, cannot be attached in execution of
a decree against Sajjadanashin, nor can the rents
and profits of the said property be held to be
liable to attachment. Relying on the decision of
the Privy Council in Jewan Doss Sahu v. Shah
Kubeeruddin, reported in AIR 1924 P.C. 109, it
was held that, in order to constitute a wakf, it
was not necessary to use the word `wakf' and so
long as it appears that the intention of the
donor was to set apart specific property or the
proceeds thereof for the maintenance or support
in perpetuity of a specific object or a series of
objects recognized as pious by the Musalman Law,
it amounts to a valid and binding dedication.
[d] The decision of a Division Bench of the Patna
High Court in (Syed Shah) Muhammad Kazim v.
(Syed) Abi Saghir, reported in AIR 1932 Patna 33
was cited to point out that, the essentials of a
valid wakf are - an appropriator must destine the
ultimate application of the income to the objects
not liable to become extinct; the appropriation
must be at once complete; there must be no
stipulation in the wakf for sale of the property
and expenditure of the price on the
appropriator's necessaries; and perpetuity must
be a necessary condition. It was also held that
the provision for a Sajjadanashin was not a
provision for the man, but for the institution.
A `khankah' cannot exist and continue without a
Sajjadanashin. A Sajjadanashin is an integral
part of the institution and the central figure so
to speak therein. Therefore, provision for his
maintenance and that of his descendants is the
provision for him as a head of the institution.
It is therefore a trust and not a personal grant.
[e] The decision of the Bombay High Court in
Mahomedhussein Daud Bhai v. Collector of Broach
and Panchmahals, reported in AIR 1945 BOM. 157
was cited for the proposition that an inquiry
under the Musalman Wakf Act, 1923 as amended by
Bombay Act No. 18 of 1935 was confined to cases
where existence of wakf was admitted. It was
held that where the existence of the wakf was
disputed, the District Judge had no jurisdiction
to make an inquiry into its existence. This
decision was relied upon to meet with the
contention raised on behalf of the revenue that
the Roza trust was earlier registered under the
Musalman Wakf Act, but it was removed from the
list by the collector on 3-9-1934.
[f] The decision of the Supreme Court in
Dhaneshwarbuwa Guru Purshottambuwa v. The
Charity Commissioner, State of Bombay, reported
in AIR 1976 SC 871 was relied upon for the
proposition that it would not be correct to say
that the expression in this sanad (an ancient
Royal grant) cannot be in any way determinative
of the nature of the temple or religious
endowment as a public trust. In the absence of
anything to the contrary of a convincing nature,
a grant by the Government in favour of the temple
(a Devasthan) describing the property to be in
charge of a manager leads to an unerring
inference that the property is public religious
endowment. It was held that when the origin of
an endowment is obscure and no direct oral
evidence is available, the Court will have to
resolve the controversy about the character of
the trust on documentary evidence, if any, the
object and purpose for which the trust was
created, the consistent manner in which the
property has been dealt with or managed by those
in charge, the manner in which the property has
long been used by the public, the contribution of
the public, and other aspects mentioned, which
are all important elements in determination of
the question whether a property is a private or a
public religious endowment.
[g] The Full Bench Judgement of this Court in Shree
Bhagvatacharya Narayancharya Public Trust v.
State of Gujarat, reported in XLII (2) GLR 1356
was cited to point out that, in a group of
matters in which even the Roza trust was one of
the petitioners, the Full Bench held that, since
the Gujarat Devasthan Inam Abolition Act, 1969
and the Gujarat Devasthan Inam Abolition
(Amendment) Act, 1977 were both placed in the
Ninth Schedule, they were immune from any
challenge on the ground violation of the
fundamental rights. It was submitted that, in
respect of these lands which were treated as
Devasthan Inam lands, the Devasthan Inam was
abolished under this Act and therefore, even the
subsequent events show that these properties were
Devasthan properties and were required to be
assessed in the hands of the Roza Trust.
[h] The decision of the Supreme Court in Sri
Agasthyar Trust v. Commissioner of Income Tax,
reported in 236 ITR 23 was cited to point out
that, in a case where there was nothing to
indicate that it was brought to the notice of the
Supreme Court in the earlier case before it (East
India Industries' case), that the trust had been
created by virtue of the document dated November
28, 1941 and there was no specific reference to
that document in the judgement of the Court and
the judgement did not indicate that the question
relating to the validity of the deed dated July
1, 1944, was ever in issue before the Supreme
Court, the earlier decision in East India
Industries' case did not and could not preclude
the appellants from contending that the deed
dated July 1, 1944 was illegal and of no
consequence, and what had to be seen was whether
the assessee was a public charitable trust on the
basis of the partnership deed dated November 28,
1941, and that the power to revoke the trust was
taken away by a subsequent document dated August
26, 1943. It was held that the Tribunal was
therefore right in considering the objects and
coming to the conclusion that the appellant was a
public charitable trust and was entitled to
exemption under section 4(3)(1) of the Indian
Income Tax Act, 1922 and section 11 of the Income
Tax Act, 1961.
[i] A Division Bench judgement of this Court in a
Letters Patent Appeal in Sayed Mohomed
Baquir-El-Edroos Valde Sayed Jaffer-El-Edroos
Sajjadnashin of Edroos Gadi v. Alimiya
Mahmadmiya, reported in 13 GLR 285 was cited for
the proposition that the statutory authority is
bound to hold an inquiry under section 19(1) of
the Bombay Public Trusts Act as laid down by the
statute and by no stretch of imagination, such
statutory officer could ever be precluded from
performing his statutory duties by invoking a
rule of estoppel, as the result would be
manifestly unjust, if the statutory inquiry as
per the norms laid down in the statute is to be
stultified. It was observed that the norms to be
applied for determining the question as to what
is a public trust are already settled by the Act
and a statutory authority could never be
precluded from taking fresh evidence on the
ground that there is an estoppel as regards any
particular issue because of some earlier inquiry
which could never be as per the norms laid down
under the Bombay Public Trusts Act. It was held
that the earlier litigation under section 92 of
the Civil Procedure Code, whether the wakf was a
public trust or not within the meaning of the Act
was never directly and substantially in issue and
that the earlier finding could never preclude the
present inquiry by reason of the doctrine of
res-judicata.
[j] The decision of the Supreme Court in Commissioner
of Income Tax v. Kamla Town Trust reported in
217 ITR 699 was cited for the proposition that
the Civil Court had jurisdiction to rectify a
trust deed and that the trust deed as amended was
binding on the income tax authorities. The
respondent trust was held to be entitled to
exemption from income tax under section 11 of the
Act subject to compliance with the conditions
laid down therein.
10. It will be noticed that the Income Tax Officer
had rejected the contention of the assessed Roza Trust on
the ground that the judgement of the Bombay High Court in
First Appeal No. 188 of 1952 rendered on 24th September
1957 made it conclusive that the properties of villages
Isanpur, Vasna and Sansa were not to be treated as the
properties of the Roza Trust, but they were a "jat-inam"
in favour of the ancestors of Saiyed Hyderbax. It was
further held that since Saiyed Musamiya was entitled for
Madad-E-Maash and his ancestors had entered into many
acts of transferring properties and creating mortgages
and treating the properties as personal properties in the
Court cases the lands in question were not the properties
of the wakf. Observing that the Sajjadanashin Musamiya
had full discretion to apply income of the trust to any
charitable or non-charitable objects, the I.T.O. relying
upon the decision of the Supreme Court in East India
Industries (Madras) Pvt. Ltd. v. Commissioner of
Income Tax, reported in 65 ITR 611, held that the whole
trust failed and no part of its income was exempted under
section 11 of the said Act. According to the learned
counsel for the Revenue, there was no valid reason for
the appellate authority to upset these findings which
were approved by the first appellate authority.
11. It will be noticed that the Tribunal, on its own
appreciation of the evidence on record, came to the
conclusion that the properties in question belong to the
Roza Trust and therefore, its income was assessable in
the hands of the Roza Trust. The Tribunal did not
blindly rely upon the findings given by the Charity
commissioner and made its own assessment of the material
on record for reaching the said conclusion. In the
process, it held that the decision of the Bombay High
Court in First Appeal No. 188 of 1952 did not preclude
inquiry into the question as to whether these properties
were belonging to the said public trust or not. It was
held that the decision of the Bombay High Court did not
operate as res-judicata.
12. We have noted above the fact that, in the inquiry
No. 176 of 1956 initiated under section 19 of the said
Trusts Act of 1950, by order dated 7-3-1956, the Deputy
Charity Commissioner held that the Roza trust was a
public trust and that the property shown in the
application was the property of the trust. The decision
of the Deputy Charity Commissioner is at Annexure `H' in
the paper-book No.2 of these proceedings. Though the
inquiry was initiated suo motu, as noted in the order of
the Deputy Charity commissioner, Syed Musamiya filled up
the form for the registration of this public trust as the
sole trustee thereof, which was exh.180 in those
proceedings and from that stage, the inquiry which was
started as a suo motu inquiry, was continued on the basis
of that application exh.180. As per the said application
exh.180, even according to the Sajjadanashin Musamiya,
the villages of Vasna, Muktampur, Isanpur, Sarsa and
Vasna Buzarg (which was under the management of the
Collector), Kheda, were all Devasthan Inam alongwith
survey No.35 of village Dani Limda on which the buildings
of the Roza Trust were situated. The Deputy Charity
Commissioner, referring to the decision of the Bombay
High Court in First Appeal No. 188 of 1952, noted that
it was arising out of the administration suit filed by
the senior widow of Syed Hyderbax, the step-mother of the
present Sajjadanashin for the administration of the
estate of Syed Hyderbax, who died in 1948. That suit was
filed on the basis that the entire estate of the deceased
including these villages were his private properties.
The High Court confirmed the decision of the trial Court
that these villages were not impartible and were
heritable. A contention which is sought to be raised
before us on the basis of the decision of the Bombay High
Court was also raised to the effect that the said
decision of the Bombay High Court conclusively showed
that the villages were private properties of the sharers
and not the properties of the public trust. The Deputy
Charity Commissioner noted that the decision was given on
24-9-1957 and at that time, the inquiry under section 19
of the Trusts Act of 1950 was already pending and the
questions whether the trust existed and was a public
trust or not and whether a particular property was the
property of the trust were required to be decided by the
Deputy Charity Commissioner or by the Charity
Commissioner in appeal as provided under the Act. No
notice was issued to the Charity Commissioner in that
appeal. The Deputy Charity Commissioner noted the
following observations in the judgement of the High
Court, "The properties being private properties of Saiyed
Hyderbax, we are unable to appreciate how these
properties can be regarded as impartible". The Deputy
Charity Commissioner, therefore, held that there cannot
be any bar of res-judicata by virtue of the decision in
the said appeal and the other cognate appeal and the
question whether the lands of these four villages were
the property of the public trust was being determined for
the first time in the inquiry under the Special Act, and
that, it was not directly in issue before the High Court.
12.1 The Charity Commissioner also considered the
proceedings which led to First Appeal No. 188 of 1952
before the High Court in paragraph 31 of his order and
observed that the question as to whether Rasulabad lands
belonged to Shah-E-Alam Roza or were private properties
of Syed Imam Haiderbax was never put in issue in that
suit and hence, there was no decision on that point. It
was noted that the parties who were claiming these lands
to be partible as if they were the properties of the
deceased, were not interested in saying that the lands
did not belong to the deceased, but belonged to the Roza
Trust. It was also noted that the Shah-E-Alam Roza which
was a public wakf was not a party in Civil Suit No. 72
of 1943 or in First Appeal No. 188 of 1952, nor was the
Charity Commissioner a party in the appeal. It was
observed that the judgement in the First Appeal was not a
judgement in rem, but a judgement in personam.
12.2 The Charity Commissioner, on a very detailed and
analytic consideration of the material on record, found
that it was satisfactorily established that Rasulabad
lands belonged to and were of the ownership of
Shah-E-Alam Roza, which was a public wakf. He negatived
the contention of the Sajjadanashin Musamiya that
Rasulabad lands belonged to him (see paragraph 24 to 36
of the order of the Charity Commissioner with findings in
paragraph 36). The Charity Commissioner also came to a
finding that the entire villages Isanpur and Sarsa also
belonged to Shah-E-Alam Roza as a public wakf. (See
paragraph 43 of the order of the Charity Commissioner).
As regards village Vasna, on considering the entire oral
and documentary evidence, he formed an opinion in
paragraph 55 of the order that the entire village
Fatehpur belongs to Shah-E-Alam Roza and that the persons
named in the list exh. 29 were co-sharers only in the
income of the village Vasna to the extent shown against
their respective names. He held that they were neither
owners nor co-sharers alongwith Shah-E-alam Roza in the
corpus of the village. Thus, all the properties were
held to be the properties of the Roza Trust which were
registered as a public trust. Admittedly, there has not
been any stay of the decision of the Charity Commissioner
and therefore, as per the record maintained under the
Trusts Act of 1950, the Roza Trust is a registered public
trust and all these four villages are registered as the
properties of the Roza Trust after a very detailed
inquiry held by the authorities under the Bombay Public
Trusts Act.
12.3 Thus, both the authorities, namely, the Charity
Commissioner under the Bombay Public Trusts Act, 1950 as
well as the Appellate Tribunal on its own reasoning,
albeit, on the material before it which included the
orders made by the Deputy Charity Commissioner and the
Charity Commissioner, the documents such as sanad issued
by Aurangzeb and the sanads of the Government, the survey
settlement register and the historical account given in
the textbooks, came to the same finding that these lands
of the four villages belonged to the said public trust.
13. So far as the public trust of the nature of wakf
is concerned, the registration of such public trust is
done under the provisions of the Bombay Public Trusts
Act, 1950 since the provisions of the earlier Wakf Act,
1954 and the later Wakf Act of 1995 were not extended to
Gujarat. As provided by section 3(2) of the Wakf Act,
1954, it was to come into force in a State on such date
as the Central Government may by notification appoint.
Therefore, the said Act did not apply automatically to
all the States. It was made applicable to Union
territory of Hyderabad with effect from 15th January 1955
and therefore, it applied to the area known as
Marathavada which was part of the State of Hyderabad till
November 1, 1956. After Marathavada area became part of
the State of Bombay under the States Re-Organisation Act,
1956, the said Act of 1954 continued to apply to that
area. So far the Gujarat State is concerned, the Act of
1954 was applied to Kutch area from 15th January 1955
(i.e. before its formation on 1st May 1960) and
therefore, the Act continued to apply to the Kutch area.
Therefore, the Bombay Public Trusts Act, 1950 is
applicable in Gujarat, except the area of Kutch to which
the Wakf Act, 1954 applied. The Wakf Act of 1954 was
repealed by the Wakf Act of 1995 which again has a
provision under sub-section (3) of section 1 that it
shall come into force in a State on such date as the
Central Government appoint. It is in this background
that the inquiry was rightly initiated under section 19
of the said Trusts Act of 1950 in respect of the Roza
Trust and its properties.
13.1 Section 19 of the Bombay Public Trusts Act, 1950,
inter alia, empowers the Deputy or Assistant Charity
Commissioner to make an inquiry on his own motion for the
purpose of ascertaining; (i) whether a trust exists and
whether such trust is a public trust, and (ii) whether
any property is the property of such trust, besides other
matters which are enumerated under section 19. On
completion of the inquiry, he is required to record his
findings with reasons, as provided by section 20 and in
accordance with the findings recorded, he is bound to
make entries in the Register kept under section 17 of the
Act. If appeals or applications are made under the Act,
the entries will be made in accordance with the final
decision of the competent authority provided by the Act,
as laid down by section 21(1). Sub-section (2) of
section 21 provides that the entries so made shall,
subject to the provisions of the said Act and subject to
any change recorded under its provisions that follow, be
final and conclusive.
13.2 Section 79 of the Bombay Public Trusts Act, 1950
provides that, any question, whether or not a trust
exists and such trust is a public trust or particular
property is the property of such trust, shall be decided
by the Deputy or Assistant charity Commissioner or the
Charity Commissioner in appeal as provided by the Act.
Sub-section (2) of section 79 lays down that the decision
of the Deputy or Assistant Charity Commissioner or the
Charity Commissioner in appeal, as the case may be,
shall, unless set aside by the decision of the court on
application or of the High Court in appeal, be final and
conclusive. This would mean that unless the decision is
set aside by the Court on application or the High Court
in appeal, it shall continue to operate.
13.3 Section 80 of the Bombay Public Trusts Act, 1950
lays down that, save as expressly provided in the Act, no
civil court shall have jurisdiction to decide or deal
with any question which is by or under the Act to be
decided or dealt with by any officer or authority under
the Act, or in respect of which the decision or order of
such officer or authority has been made final and
conclusive. Therefore, the Civil Court's jurisdiction to
decide any question as to whether or not a trust exists
and such trust is a public trust or particular property
is a property of such trust which is required to be
decided by the Deputy or Assistant Charity Commissioner
or the Charity Commissioner in appeal and which is
treated as final and conclusive until set aside by the
court on application or the High Court in appeal, is
expressly taken away by the said provision.
13.4 Civil Courts have, under section 9 of the Code of
Civil Procedure, jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is
either expressly or impliedly barred, and as per
Explanation I, a suit in which the right to property or
to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on
the decisions of questions as to religious rites or
ceremonies. Section 9 of the CPC empowers the Civil
Court to try all suits of a civil nature except where the
jurisdiction of the civil court was expressly or by
necessary implication barred. The effect of section 80
of the Bombay Public Trusts Act, 1950 was to expressly
take away the jurisdiction of the civil court in respect
of the aforesaid disputes which could now be inquired and
decided under the said Act only by the Deputy / Assistant
Charity Commissioner or the Charity Commissioner in
appeal. In other words, the jurisdiction to decide the
questions as to the title to the property which
ordinarily could be decided by a civil court, was in
context of public trusts transferred to the authorities
created under this special Act. The entries made in the
Registers maintained in the Public Trusts Registration
Office by the Deputy or Assistant Charity Commissioner
under section 17 of the said Trusts Act of 1950 are to be
treated as final and conclusive, as provided by
sub-section (2) of section 21.
13.5 In this context, we may also note the provisions
of section 35 of the Indian Evidence Act, which provide
that, an entry in any public or other official book,
register, or record, stating a fact in issue or relevant
fact, and made by a public servant in the discharge of
his official duty, or by any other person in performance
of a duty specially enjoined by the law of the country in
which such book, register, or record is kept, is itself a
relevant fact. Thus, such entries in the Register of
public trusts showing whether a trust is registered as a
public trust and that the properties are registered in
the name of the trust would be relevant material before
an authority or a court to decide as to whether the
public trust existed and as to whether the properties
shown in its name are really the properties of the public
trust.
14. The functions of the assessing officer are to make
inquiry before assessment under section 142 and to make
assessment order under section 143 of the Income Tax Act,
1961. For the purpose of inquiry before assessment, the
assessing officer is required to serve a notice under
section 142(1) of the Act, inter alia, requiring the
person concerned to furnish in writing and verified in
the prescribed manner information of all assets of the
assessee. As regards the assets and liabilities not
included in the account, he is required to get prior
approval of the Joint Commissioner before requiring the
assessee to furnish a statement of all such assets and
liabilities. The assessee is required to furnish
particulars in the prescribed form, as provided in the
Rules framed under the said Act. In order to ensure that
the assessee has not under-estimated the income, the
assessing officer shall serve notice under section 143(2)
on the assessee requiring him to attend his office or to
produce or cause to be produced any evidence on which the
assessee may rely in support of the return. The
assessing officer is empowered to require the assessee to
produce evidence on specified points under sub-section
(3) of section 143 and after taking into account all the
relevant material which he may have gathered, the
assessing officer makes assessment of the total income or
loss of the assessee and determines the sum payable by
him or sum that may be refundable on the basis of such
assessment. When the assessee fails to comply with the
notice, the assessing officer, after taking into account
all relevant material which he may have gathered, has to
make the assessment of the total income or the loss to
the best of his judgement under section 144 of the said
Act.
14.1 For the assessment of income, a question may
often arise before the tax authority as to whether the
particular property belongs to the assessee or not. If
an assessee has concealed particulars of an asset from
which income is derived, it would be within the powers of
the assessing officer to trace it out for the purpose of
ascertaining the income of the assessee therefrom.
14.2 Under section 11 of the said Act, it is provided
that, subject to sections 60 to 63 thereof, the income
mentioned therein shall not be included in the total
income of the previous year of the person in receipt of
the income and this includes the income derived from
property held under trust wholly for charitable or
religious purposes to the extent to which such income is
applied to such purposes in India, as laid down in the
said provision. When exemption is claimed under section
11(1) of the said Act, a question may arise before the
tax authority whether the property from which income is
derived is a property held under trust wholly for
charitable or religious purposes. Therefore, the
assessing officer may call upon the person claiming such
exemption to produce evidence in support of his claim
that the property in question was held under trust of
such nature. Such inquiry is not an inquiry for
adjudicating upon the title of the property, but only an
inquiry aimed at ascertaining whether the exemption
claimed under section 11 is warranted. During such
inquiry, which is undertaken in the process of making of
the assessment order, the nature of evidence adduced or
gathered may be in form of documents of title or grants,
entries from the trust register showing whether the trust
is registered as a public trust, and as to whether the
properties in question are registered as the properties
of the trust and other adjudications, having bearing on
the title of the property, made by any competent forum.
15. Thus, the scope of the inquiry under the Income
Tax Act, 1961 is wholly different from the scope of the
inquiry under the Bombay Public Trusts Act, 1950. When
the evidence that may be adduced before the assessing
officer or gathered by him during the assessment
proceedings, conclusively shows that the trust is a
registered public trust, and that the property from which
the income is derived is the property held under trust
wholly for charitable or religious purposes, the tax
authority would ordinarily have to accept such evidence
and proceed to determine what income is derived from such
property held under trust and to what extent it is
applied to such purposes. If, however, the question
whether the property is held by the trust, or whether
there exists such trust, has not been finally adjudicated
by the competent forum, the assessing officer can even go
into the question of title for the limited purpose of
deciding what income is derived from the property held
under such trust. It however cannot be countenanced that
even where there is a final adjudication of the fact by a
competent statutory forum under the Bombay Public Trusts
Act, 1950 that there is a public trust, and that
particular property is held by such public trust wholly
for charitable and religious purposes, the assessment
officer can simply ignore those findings, which may in a
given case have been upheld till the Apex Court, and play
a different tune by pronouncing that there is no such
public trust or that the property in question is not that
of the public trust despite these having been so
registered under the provisions of the said Act. The
authorities functioning under the laws made by parliament
are not required to ignore the provisions of the laws
made by the legislation of the State which operate in
full force within the State. To say that assessment
officer acts under the Law made by Parliament and
therefore, is not bound by anything done under the law
made by the legislature of the State, as was sought to be
vehemently urged on behalf of the Revenue, is to ignore
the constitutional scheme of distribution of legislative
powers. Indeed, in case of a conflict between law made
by Parliament and law made by the Legislature of a State,
where any provision of a law made by the Legislature of
State is repugnant to any provision of a law made by
Parliament in exercise of its legislative powers, the law
made by Parliament, whether before or after the law made
by the Legislature of the State, shall prevail, and the
law made by the Legislature of the State shall to the
extent of repugnancy, be inoperative but so long only as
the law made by Parliament continues to have effect, as
provided by Article 251 of the Constitution. But, surely
when the legislative provisions operate in different
fields as in the present case, there can arise no
question of repugnancy and the authorities acting under
the laws would be bound by any action validly taken under
the respective laws. We cannot, therefore, subscribe to
the extreme view canvassed for the Revenue that the
Income Tax Authority acting under the Income Tax Act is
not bound by the valid conclusive findings under the
Bombay Public Trusts Act, 1950 that a trust is a public
trust, and that a particular property is that of such
trust. The adjudicatory function of the tax authority in
a case where he finds that the title is finally and
conclusively determined under the law would start for the
purpose of assessment where the adjudicatory function of
the Charity Commissioner has ended by such conclusive
determination, unless the central statute otherwise
provides. Thus, while it is true that the tax authority,
during the assessment proceedings, can always inquire
into the question of ownership of the property and decide
the issue in context of the relevant provisions of the
said Act, in order to ascertain the income of the
assessee for bringing it to tax, it will not be open for
the tax authorities to ignore the relevant evidence of
the statutory registration of a public trust and the fact
of the properties having been registered as the
properties of such public trust under the provisions of
the Bombay Public Trusts Act, 1950. The tax authority is
required to give due weightage to the material which is
relevant and which shows the registration of a public
trust and its properties under the provisions of the
Bombay Public Trusts Act, 1950, in light of the
provisions of sections 19, 21(2), 79 and 80 thereof, and,
to assess the person concerned, keeping in view such
relevant material which may be produced during the
assessment proceedings. Therefore, the Tribunal could
have safely relied upon the findings of the Charity
Commissioner reached under the Bombay Public Trusts Act,
1950 for holding that the Roza trust was a public trust
and that the lands shown in the register were the
properties of the said trust. The Tribunal has, however,
on its own, after considering all the material which was
also the subject matter of consideration before the
Charity Commissioner, come to its own finding that the
properties in question belong to the Roza trust which was
a public trust. We do not find any valid reason to
disturb the conclusions reached by the Tribunal and in
fact, we are of the opinion that the conclusions are
fully warranted by the material on record.
16. As noted above, the Deputy / Assistant Charity
Commissioner have been vested virtually with the powers
of a Civil Court on deciding the questions as to whether
public trust existed and as to what were the properties
of such trust and the jurisdiction of the civil court is
expressly barred by the provisions of section 80 of the
Bombay Public Trusts Act, 1950. The orders of the Deputy
/ Assistant Charity Commissioner would, therefore, on
these aspects stand on the same footing as the
declaration that may earlier have been made by a civil
court and which would have operated as judgement in rem.
As a general proposition, a judgement has no effect upon
the persons who are neither parties nor in privity with a
party. Instead of personal judgements directing a
defendant to pay money or deliver possession or do or
refrain from doing something, there may be judgements
affecting interests in a thing. These are judgements in
rem where a court has power over a thing although not
over all persons whose interests in it may be affected.
Such judgement in rem will affect all interests of
everyone in the thing. Judgements in rem are rendered in
proceedings for registration of titles to land, in
admiralty suits when the court has jurisdiction over a
ship, in proceedings for forfeiture of things under
revenue laws or statutes against use of things in
particular unlawful activities (See Jurisprudence by
Roscoe Pound Volume 8 para 147 at page 606).
16.1 The finding of the Deputy / Assistant Charity
commissioner pursuant to an inquiry under section 19 of
the said Trusts Act that there is a public trust, and
that particular property is the property of such trust,
is required to be entered into the register and the
entries so made subject to the provisions of the Act or
any change that may be recorded are treated as final and
conclusive. As per section 79, the Assistant / Deputy
Charity Commissioner has exclusive jurisdiction to give
such findings. These findings operate as findings in rem
and therefore, cannot be ignored by the authorities under
the Income Tax Act.
17. We may now proceed to consider whether the
judgement of the Bombay High Court in First Appeal No.
188 of 1952 precluded the consideration of the question,
whether the Roza Trust was a public trust and whether the
properties which were treated in the administration suit
as private properties were, in fact, the properties of
the public trust. As noted above, both the Income Tax
Tribunal as well as the Charity Commissioner have held
that the decision of the Bombay High Court did not
operate as res-judicata, because, the Roza Trust was not
a party before it and the question whether the properties
were of the said public trust was not directly and
substantially in issue.
17.1 In this context, we may note that a Division
Bench of this Court in Kuberbhai Shivdas v. Mahant
Purshottamdas Kalyandas, reported in II GLR 564, while
considering the provisions of the Bombay Public Trusts
Act, 1950, held that the inquiry made by a Deputy or
Assistant Charity Commissioner is by no means an
administrative or an executive inquiry but a judicial
inquiry, and that the inquiry is not only for the purpose
of registration. It was held that the Bombay Public
Trusts Act was a complete Code for dealing with matters
set out in sections 18 and 19 and recourse must be had to
the procedure laid down in the Act. It was also held
that the provisions of section 79 shall, with a finding
of any entry made under sections 19, 20 and 21,
constitute not merely an administrative order for the
purpose of registration only or an order as between the
Charity Commissioner and the Trustee only, but such a
finding and an entry made on the basis thereof are as
regards the trust, the properties belonging to it and
mode of succession to the office of the trustee. In
Trustees of Jam Jodhpur Sthanakvasi Vardhman Vanik Jain
Sangh v. Trambaklal Jivram, reported in XXVIII (1) GLR
550, it was held by this Court that the jurisdiction of
the civil courts was taken away in respect of matters
which are to be decided by the Assistant or Deputy
Charity Commissioner or the Charity Commissioner in
appeal and if the civil court decided such issues, it
would be acting beyond its powers and its judgement will
not operate as res-judicata. Similar view was taken in
Sherasiya Saji Alavadi Momin v. State of Gujarat,
reported in XXXVI (1) GLR 513 and it was held that only
the Deputy or Assistant Charity Commissioner can decide
whether any property is a property of a public trust. In
Alimiya Mahmadmiya v. Sayed Mohomed Baquir El-Edroos
Valde Sayed Jaffer El-Edroos, reported in IX GLR 1002, it
was observed that, in order to attract the doctrine of
res-judicata, the law applicable to the subject matter at
both the times must be the same.
17.2 In The Municipality of Taloda v. The Charity
Commissioner, Bombay, reported in AIR 1968 SC 418, where
the previous suit was brought by the Municipality against
a trespasser for declaration of its title to the suit
property and eviction of trespasser and recovery of
possession and in which it was contended by the
trespasser that the suit property was held in public
trust for saints and therefore, as a Sadhu, he was
entitled to reside therein and the suit came to be
decreed, it was held that a subsequent application under
section 19 of the Bombay Public Trusts Act, 1950 for
determining that the property was held under a public
trust of a religious or charitable character, was not
barred by rule of res-judicata. (See paragraph 6 of the
judgement). This decision puts the matter beyond any
pale of doubt, the settled legal position that finding of
a Civil Court on the question whether a public trust
exists and about the properties of such trust cannot
operate as res judicata in the proceedings under section
19 of the Bombay Public Trusts Act, 1950. We, therefore,
are in full agreement with the Tribunal that the
judgement of the Bombay High Court in First Appeal No.
188 of 1952 did not preclude the authorities from
deciding the question whether the Roza Trust was a public
trust and about the properties of that trust under the
provisions of the Bombay Public Trusts Act, 1950.
18. The contention raised on behalf of the Revenue
that expenses incurred on Sajjadanashin by the Roza Trust
cannot be exempted under section 11 of the Act, is
misconceived. The provision for a Sajjadanashin is not a
provision for the man, but for the institution, as noted
above. The Sajjadanashin as a spiritual leader is an
integral part of the Roza Trust and the expenses which
may be incurred on the Sajjadanashin by the Roza Trust
would not be expenses incurred for a private purpose. As
held by the Patna High Court in Mohammad Kazim (supra),
the provision for the maintenance of the Sajjadanashin is
the provision for him as the head of the institution and
it is a trust and not a personal grant. We respectfully
agree with that view. Such expenditure on the
Sajjadanashin also described as Madad-E-Maash was
included within the definition of `wakf' under section
3(1) of the Wakf Act, 1954 which can provide guidance in
the matter. As per that definition, `wakf' meant the
permanent dedication by a person professing Islam or any
other person, of any movable or immovable property for
any purpose recognised by the Muslim law as pious,
religious or charitable, and included, inter alia, grants
including `Madad-E-Maash', as provided in sub-clause (ii)
of clause (l) of section 3 of that Act. Therefore, there
is no reason to disturb the finding of the Tribunal on
this count.
19. The contention that the Roza Trust was once
registered as wakf under the Musalman Wakf Act, 1923 and
later, it was deleted on 3-9-1934 by the Collector and
therefore, that decision taken by the competent authority
finally concluded that there was no public trust any
more, and this would preclude any inquiry under the
provisions of the Bombay Public Trusts Act, 1950, is
thoroughly misconceived for the simple reason that the
Income Tax Authorities have not decided non-existence of
a public trust on this ground, and further, because,
there was no decision of the District Court under the
Musalman Wakf Act, 1923 for removing the wakf from the
list. It will be noticed from the provision of section
6(c)(5) that the Court acting under the said section
could not try or determine any question of title of any
person claiming adversely to the wakf. Therefore, the
Court could not have adjudicated any question as to
whether the property belong to the wakf or the
Sajjadanashin. As held by the Bombay High Court, an
inquiry under section 6(c)(1)(i) of the Musalman Wakf
Act, 1923 was confined to cases where the existence of
the wakf was admitted and where the existence of the wakf
was disputed, even the District Judge had no jurisdiction
to make any inquiry. We do not know under what
circumstances, on 3-9-1934, the wakf was deleted from the
list of wakfs by the Collector on the basis of an
application which was made before him. No contention was
canvassed on this basis before any of the authorities
below. Even if any such order removing the wakf from a
list of wakfs was made by the Collector, that would not
preclude an inquiry under the Bombay Public Trusts Act,
1950. It is not as if on such removal of wakf from the
list maintained under the Musalman Wakf Act, 1923, the
question of there being a public trust and the property
being of that public trust, can never arise thereafter.
The relevant and reliable material on record clearly
points to existence of such a public trust and to the
fact that these lands were the properties of that public
trust, as held by the Charity Commissioner and as also
held independently by the Tribunal, warranting no
interference by this Court by taking a different view of
the matter.
20. In the above view of the matter, we are of the
opinion that the Tribunal was right in holding that the
judgement of the Bombay High Court did not operate as
res-judicata, and that Saiyed Musamiya was not prevented
from taking up a stand that the properties belonged to
the Roza Trust. It was also right in holding that the
Roza Trust, was a wakf and that the complex of buildings
and the lands at Rasulabad were the wakf properties
belonging to it, and that the lands at Vasna, Isanpur and
Sansa were also wakf properties belonging to the Roza
Trust. It also correctly held that the exemption under
section 11 of the said Act was available to the assessee
Roza Trust in respect of the income spent as
`Madad-E-Maash' on the maintenance of the Sajjadanashin,
his family and his descendants to the extent of
Rs.30,000=00 a year, and that the exemption under section
11 of the said Act was available in respect of that
amount to the aforesaid extent. The Tribunal has also
rightly held that the exemption under section 11 of the
Act was available to the assessee Roza Trust, provided
the conditions mentioned therein were fulfilled. It,
therefore, rightly restored the matter to the assessing
officer to assess the income of Rasulabad, Vasna,
Ishanpur and Sansa lands as the income of the Roza Trust
and to grant benefit under section 11 of the said Act,
subject to the fulfillment of the conditions mentioned
therein. The Tribunal also rightly held that the amount
of Rs.30,000=00 a year received by the Sajjadanashin
would be the income to be taxed in his hands.
21. In the above view of the matter, all the
questions referred to this Court by the Tribunal are
answered in the affirmative in favour of the assessee
trust. The Reference stands disposed of accordingly with
no order as to costs.
APRIL 10, 2002 [R.K.ABICHANDANI, J.]
[KUNDAN SINGH, J.]
parmar*
| 
