ORDER
1. The Assistant Charity Commissioner, Belgaum has referred certain material published by the respondents in Samyukta Karnataka Kannada daily for taking action for contempt of his Court. The respondents-accused are the Managing Editor, Editor and Printer and Publisher respectively of the said news daily published from Hubli. The items published in the said newspaper dated 16-4-92, 17-4-92 and 18-4-92 are scandalous and intended to interfere with the administration of justice which in turn would have impact on the mind of the litigant public approaching the petitioner for redressal of their grievances.
2. In their objections, inter alia, the respondents contended that the Charity Commissioner or an Assistant Charity Commissioner is not a Court and therefore the petitioner could not have made a reference to this Court to take action for contempt. We deemed it necessary to raise and determine the preliminary point, namely, whether the Assistant Charity Commissioner-petitioner is a 'Court'. Arguments were heard on this point at length.
3. Office of the Assistant Charity Commissioner at Belgaum is the creature of the Bombay Public Trusts Act 1950 and even after reorganisation of States in the year 1956 the Public Trusts both religious and charitable in the old Bombay State area are governed by the provisions of the said Act ('Act' for short hereafter). Chapter II dealing with establishment provides for the qualifications for appointments of Charity Commissioner and Deputy and Assistant Charity Commissioners. Under S. 4 of the Act while the Charity Commissioner shall be a person who is holding or has held a judicial office not lower in rank than that of a District Judge, a person to be appointed as Deputy or Assistant Charity Commissioner shall be a person who is holding or has held a judicial office not lower in rank than that of a Civil Judge or a Judge of the Small Cause Court among others. The petitioner herein is a Civil Judge working in the Judicial Department of the State whose services were placed by the High Court at the disposal of the Government for being appointed as Assistant Charity Commissioner under this provision. Accordingly since 28-10-1991 he has been performing judicial and non-judicial functions as such under the Act. The Lok Shikshan Trust, Hubli is registered as a Public Trust in the office of the petitioner and it publishes Kannada daily Samyukta Karnataka from Hubli and Bangalore simultaneously. It has large circulation throughout the State of Karnataka. As the Trust failed to pay contribution levied (Public Trust Administration Funds) of Rs. 10,407/- from 1952 to 1973 and had not rendered accounts of the Trust from 1975 to 1986 nor the Profit and Loss Account from 1985 to 1991 the petitioner had initiated actions against the Trust in discharge of its lawful duties and even Inquiry No. 546/1991 against the Trust was disposed of by his judgment dated 28-3-92. When these actions were pending respondent 1 went on writing letters to the petitioner with unwarranted remarks and dictating terms in respect of the case pending adjudication before him.
4. Though S. 2(4) of the Act defines 'Court' to mean the District Court having jurisdiction to entertain applications or suits relating to any Public Trust, this definition is only for the purpose of the Act and jurisdiction conferred on the Act and not further. Under the Contempt of Courts Act, 1971 there is no definition of the 'Court' given. We have therefore to refer to judicial pronouncements to determine whether a particular Tribunal or Authority is a Court so as to attract the provisions of the Contempt of Courts Act. In Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., : (1950)NULLLLJ921SC . His Lordship Justice, Mahajan referring to the judicial power of the State being exercised by the Tribunal observed thus :
'It appears to me that before a person or persons can be said to constitute a Court, it must be held that they derived their powers from the State and are exercising the judicial power of the State.'
Again the Supreme Court in the case of Brajnandan Sinha v. Jyoti Narain, : 1956CriLJ156 referred to Stephen's definition of Court and pointed out thus (at page 159; of Cri LJ) :
'In every Court, there must be at least there constituent parts - the actor, reus and judex; the actor or plaintiff, who complains of an injury done; the reus, or defendant, who is called upon to make satisfaction for it; and the judex, or judicial power, which is to examine the truth of the fact, and to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply, the remedy.'
The Supreme Court in the case of Jugal Kishore v. Sitamarhi Central Co-op. Bank, : 1967CriLJ1380a referred to Halsbury's Laws of England (Third Edition - Vol. 9) at page 342 in regard to the term 'Court' which is as follows :
'Originally the term 'Court' meant, among other meanings the Sovereign's palace; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the Sovereign. All tribunals, however, are not Courts, in the sense in which the term is here employed, namely, to denote such tribunals exercise jurisdiction over persons by reason of the sanction of the law, and not merely by reason of voluntary submission to their jurisdiction.
Again,
The question is whether the Tribunal is a Court, not whether it is a Court of justice, for there are Courts which are not Courts of justice. In determining whether a Tribunal is a judicial body the facts that it has been appointed by a non-judicial authority, that it had no power to administer an oath, that the chairman has a casting vote, and that third parties have power to intervene are immaterial, especially if the statute setting it up prescribed a penalty for making false statements; elements to be considered are (1) the requirement for a public hearing, subject to a power to exclude the public in a proper case, and (2) provision that a member of the Tribunal shall not take part in any decision in which he is personally interested, or unless he has been present throughout the proceedings.'
Referring to the earlier decision in the case of Brajnandan Sinha v. Jyoti Narain (supra) and other decisions their Lordships pointed out with approval that in order to constitute a Court in the strict sense of the term, and essential condition is that the Court should have, apart from having some of the trappings of a judicial Tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial Tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court. A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites :-
(1) The presentation (not necessarily orally) of their case by the parties to the dispute;
(2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;
(3) if the dispute between them is a question of law, the submission of legal arguments by the parties; and
(4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.' (Brajnandan Sinha's case)
5. In the case of Jugal Kishore (supra) the Supreme Court had to decide whether the Assistant Registrar functioning under the Bihar and Orissa Co-operative Societies Act is a Court subordinate to High Court for the purpose of S. 3 of the Contempt of Courts Act, 1952. Their Lordships found in that case that there was a dispute between the Bank on the one hand and the appellant Jagannath Jha on the other to be decided with the assistance of arguments and on the evidence adduced. It was a question of law dependent on the facts of the case and the decision disposed of the whole matter by finding the appellant liable for the entire amount. The Assistant Registrar had almost all the powers which an ordinary Civil Court of the land would have, of summoning the witnesses, compelling production of documents, examining witnesses on oath and coming to a conclusion on the evidence adduced and the arguments submitted. The result was the same as if a decree was pronounced by a Court of law. The adjudication of the Assistant Registrar was not based on a private reference nor was his decision arrived at in a summary manner but with all the paraphernalia of a Court and the power of an ordinary Civil Court of the land. S. 57 of the Act in question had taken away jurisdiction of the Civil or Revenue Court in respect of any matter concerned with the winding up or dissolution of the Registered Society under the Act or of any dispute required by S. 48 to be referred to the Registrar of any proceedings, under Chapter VII-A. Referring to various provisions of the Act under consideration their Lordships found that the Registrar exercising powers under S. 48 must therefore be held to discharge duties which would otherwise have fallen on the ordinary Civil and Revenue Courts of the land. The Registrar had not merely the trappings of a Court but in many respects he is given the same powers as are given to ordinary Civil Courts of the land by the Code of Civil Procedure including the power to summon and examine witnesses on oath, the power to order inspection of documents, to hear the parties after framing issues, to review his own and even exercise the inherent jurisdiction of Courts mentioned in S. 151 of the Code of Civil Procedure. Therefore the argument that the Assistant Registrar was not a Court was repelled by the Supreme Court. We have now to consider various provisions of the Act to determine whether the Assistant Charity Commissioner the petitioner herein is a Court.
6. Though the Act is intended to regulate and to make better provision for the administration of public and charitable trusts in the erstwhile State of Bombay (before reorganisation of States) the various provisions relating to the powers and functions of the Assistant Charity Commissioner need scrutiny to decide the point at issue. Chapter IV of the Act relates to registration of Public Trusts after due inquiry. An application for registration of a trust as a Public Trust is required to be filed under S. 18 of the Act and S. 19 relates to inquiry for registration. The inquiry be held on an application made by any person having interest in the Public Trust or on his own motion by the Assistant Charity Commissioner to ascertain -
(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 and manager 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) the amount of gross average annual income and expenditure of such trust, and
(viii) any other particulars as may be prescribed under sub-section (5) of S. 18.
Such inquiry shall be held with the aid of the assessors appointed in the manner provided in Chapter IX. The Deputy or Assistant Charity Commissioner under S. 65(1) of the Act shall choose such number of assessors not less than three and not more than five as he deems fit to aid and assist him. Under sub-section (2) of S. 65 the assessors are required to give their opinion and the opinion so recorded shall receive due consideration while arriving at a decision or making a report on the inquiry. Under S. 73 in holding inquiries under the Act the officer holding the same shall have the same powers as are vested in courts in respect of the following matters under the Code of Civil Procedure 1908 in trying a suit -
(a) proof of facts by affidavits,
(b) summoning and enforcing the attendance of any person and examining him on oath,
(c) compelling the production of documents,
(d) issuing of commissions.
Section 74 provides that all inquiries and appeals under this Act shall be deemed to be judicial proceedings within the meaning of Ss. 193, 216 and 228 of the Indian Penal Code S. 76 save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act. S. 79 which is very relevant reads thus :
'79. (1) 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 this Act.
(2) 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.'
Section 80 relates to bar of jurisdiction and states that save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive.
7. Chapter XI dealing with the functions of Charity Commissioner, procedure, jurisdiction and appeals, provides for appeal against the finding or order of the Deputy or Assistant Charity Commissioner to the Charity Commissioner under S. 70 in following cases :-
(a) the finding and order, if any, under S. 20 (after completion of inquiry under S. 19);
(b) the finding under S. 22 (entries with regard changes reported or desired);
(b-1) the finding under S. 22A;
(c) the finding under S. 28;
(d) the order under sub-section (3) of S. 54.
Under Section 72 any person aggrieved by the decision of the Charity Commissioner under Ss. 40, 41, 70 or 70A or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. Under S. 72(4) an appeal shall lie to the High Court against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies.
8. A perusal of the scheme of the Act, the powers conferred and functions assigned to the Assistant Charity Commissioner clearly leads to the conclusion that the Assistant Charity Commissioner has a function to hear parties wherever dispute is raised with regard to existence of a public trust or with regard to the property being trust property or otherwise and then give a definitive judgment after taking evidence with regard to facts and application of law and the judgment is final unless interfered with by the Charity Commissioner in appeal and thereafter by an application to the Court under the Act and again tested in appeal before the High Court. Ordinary Civil Court's jurisdiction is taken away in matters to be inquired into and decided by the Assistant Charity Commissioner. Though some other decisions have been cited on both sides this decision of the Supreme Court in the case of Jugal Kishore (supra) squarely attracts the facts of the case before us.
9. Referring to scope of Arts. 228 and 227 of the Constitution their Lordships observed that Art. 228 of the Constitution does not indicate that unless a High Court can withdraw a case to itself from another Court for disposing of a substantial question of law as to the interpretation of the Constitution, the latter Court is not subordinate to the High Court. This Article is only intended to confer jurisdiction and power on the High Court to withdraw a case for the purpose mentioned above from the ordinary Courts of law whose decision may, in the normal course of things, be taken up to the High Court by way of appeal. Art. 227 is of wider ambit, it does not limit the jurisdiction of the High Court to the hierarchy of Courts functioning directly under it under the Civil Procedure Code and Criminal Procedure Code but it gives the High Court power to correct errors of various kind of all Courts and Tribunals in appropriate cases. Needless to add that error as to the interpretation of the Constitution is not out of the purview of Art. 227 although the High Court could not, under the powers conferred by this Article, withdraw a case to itself from a Tribunal and dispose of the same, or determine merely the question of law as to the interpretation of the Constitution arising before the Tribunal. In their Lordships' view the subordination for the purpose of S. 3 of the Contempt of Courts Act means judicial subordination and not subordination in the hierarchy of Courts under the Code of Civil Procedure or Code of Criminal Procedure (para 24). As we have referred to above, Chapter XI dealing with appeals clearly provides for judicial subordination of the Court of the Assistant Charity Commissioner to the High Court. In Lakhama Pesha v. Venkatrao Swamirao, : AIR1955Bom103 referred to in this decision the question was whether the Chief Judge of the Court of Small Causes acting as persona designata under the Bombay Municipal Act was a Court subordinate to the High Court for the purpose of Ss. 2 and 3 of the Contempt of Courts Act. The view was taken by His Lordship Chief Justice Chagla was quoted with approval. It says :
'The power of superintendence conferred upon the High Court under Art. 227 is clearly not only administrative but also judicial and the restriction imposed upon the High Court by Section 224(2), Government of India Act is thereby removed. Now, the power of judicial superintendence which has been conferred upon the High Court is in respect not only of Courts but also of Tribunals throughout the territories in relation to which the High Court exercises jurisdiction, and the question that arises is whether in view of this constitutional position it could not be said of a 'persona designata' that it is a Court subordinate to the High Court.
Now, the subordination contemplated by S. 3 is a judicial subordination and there can be no doubt that the Chief Judge, although he is 'a persona designata', is a Tribunal which would fall within the purview and ambit of Art. 227.'
It was also pointed out that there was no reason or principle on which any distinction could be drawn between a Civil Court which was subordinate to the High Court and a Tribunal which was subordinate to the High Court under Art. 227 of the Constitution.
10. The decision of the Bombay High Court in this case of Vithoba v. Balakrishna, : AIR1968Bom14 rendered by the learned single Judge is not at all on the point, hence not applicable. In that case meaning of the term 'Court' under the Act came up for consideration. The learned Judge pointed out that the Assistant Charity Commissioner, Deputy Charity Commissioner and Charity Commissioner, are not Courts for the purpose of the Act as they are not included in the definition of 'Court' under Section 2(4). They are only authorities constituted under the Act and perform functions of a quasi-judicial nature and provisions of Section 76 do not apply to them. The limited question was whether the provisions of the Code of Civil Procedure shall apply to all proceedings before these authorities as provided under Section 76 of the Act. As the said section related to proceedings before the 'Court' under the Act it did not apply to the proceedings before these authorities. The question before the learned Judge was very limited and he was of the view that to the proceedings before the 'Court' which is defined as the District Court under the Act the code is applicable as such and there is no question of making it applicable as such and there is no question of making it applicable as far as possible. The learned Judge was not called upon to decide whether the Charity Commissioner or the Assistant Charity Commissioner was a 'Court' for the purpose of the Contempt of Courts Act. Section 73 of the Act however specifies the powers that could be exercised by the Officer holding inquiries under the Act as are vested in courts under the Code of Civil Procedure. It needs no repetition here.
11. Considered in the light of the decisions referred to above it is manifestly clear that the Assistant Charity Commissioner who is a Civil Judge in the Judicial Department of the State and persona designate as the Assistant Charity Commissioner under the Act is a 'Court' within the meaning of Sections 2 and 3 of the Contempt of Courts Act. He exercises judicial powers of the State, he is empowered to give a definitive judgment in the disputes coming up before him and is a Court judicially subordinate to the High Court under Art. 227 of the Constitution as well as under Act itself as appeal lies to the High Court against the order of the District acting as 'Court' under the Act. Hence our finding on the issue in the affirmative.
12. Petition allowed.