Shankar Lal Gulab Chand Pachorekar Vs. Bhimrao Ramchandra Devbhan-kar & Ors.
EmailAppeal: Civil Appeal No. 2955/1987
Petitioner: Shankar Lal Gulab Chand Pachorekar
Respondent: Bhimrao Ramchandra Devbhan-kar & Ors.
Apeal: Civil Appeal No. 2955/1987
Judges: S. RAJENDRA BABU & DORAISWAMY RAJU, JJ.
Date of Judgment: Sep 18, 2001
Head Note:
CIVIL LAW
Bombay Public Trusts Act, 1950 (29 of 1950)
Section 22A – Trust properties – Dispute relating to claim over trust properties – Hostile title – Assistant charity commissioner dropping proceedings under section 22A for want of jurisdiction in view of earlier decision of High Court – Subsequently, assistant charity commissioner initiating pro-ceedings – High Court holding that it was within the inherent jurisdiction of the authority to entertain and decide the application under section 22A – Whether re-initiation of proceedings valid – Whether such fresh proceedings barred on the principle of res judicata. Held, the assistant charity commissioner having dropped the proceedings earlier as being without jurisdiction, he was barred from considering the application subsequently.
Held:
When on an earlier occasion, hostile title was set up and on that basis, the assistant charity commissioner having dropped the proceedings as he had no jurisdiction to inquire into such a matter under section 22-A of the Act, we fail to understand as to how that decision would not bar the fresh proceedings. (Para 3)
JUDGEMENT:
ORDER
1. The respondents on an earlier occasion filed an application under section 22A of the Bombay Public Trusts Act. The assis-tant charity commissioner who looked into the application stated as follows:
“The present proceeding has been instituted by the applicants under section 22A of the Bombay Public Trusts Act, 1950. The proceeding, out of which appeal no. 176/72 arose were also initiated under section 22A of the B.P.T. Act, 1950. Similarly the opponents are claiming full ownership over the properties in dispute in this proceeding. Their claim over the properties is in denial of the trust interest. They have set up a hostile title over the properties in dispute and adversely to the interest of the public trust. The opponents are claiming no interest in the trust. Hence, in view of these facts, it is quite clear that the decision of the High Court in first appeal no. 176/72 will be fully applicable to the present case and will have to be followed in this case also in toto.”
2. The decision referred to in appeal no. 176/72 by the assistant charity commissioner in the course of his order is a full bench decision of the High Court. In the wake of that decision, he dropped further proceedings for want of jurisdiction. On the second occasion, when the proceedings were sought to be initiated, the appellant objected to the consideration of the matter by the assistant charity commis-sioner on the ground that the earlier proceedings would bar the present proceedings on the principle of res judicata. That objection having been overruled, the appellant filed a writ petition in the High Court against that order.
3. The High Court considered that the question is one, relating to inherent jurisdiction of the authority under the Act to enter-tain and decide the application under section 22-A and the earlier order dismissing the application for want of jurisdic-tion would not bar the present proceedings. It is difficult to understand the reasoning set out by the High Court. When on an earlier occasion, hostile title was set up and on that basis, the assistant charity commissioner having dropped the proceed-ings as he had no jurisdiction to inquire into such a matter under section 22-A of the Act, we fail to understand as to how that decision would not bar the fresh proceedings. In that view of the matter, we allow this appeal and set aside the order made by the High Court and dismiss the proceeding before the assistant charity commissioner.
1. The respondents on an earlier occasion filed an application under section 22A of the Bombay Public Trusts Act. The assis-tant charity commissioner who looked into the application stated as follows:
“The present proceeding has been instituted by the applicants under section 22A of the Bombay Public Trusts Act, 1950. The proceeding, out of which appeal no. 176/72 arose were also initiated under section 22A of the B.P.T. Act, 1950. Similarly the opponents are claiming full ownership over the properties in dispute in this proceeding. Their claim over the properties is in denial of the trust interest. They have set up a hostile title over the properties in dispute and adversely to the interest of the public trust. The opponents are claiming no interest in the trust. Hence, in view of these facts, it is quite clear that the decision of the High Court in first appeal no. 176/72 will be fully applicable to the present case and will have to be followed in this case also in toto.”
2. The decision referred to in appeal no. 176/72 by the assistant charity commissioner in the course of his order is a full bench decision of the High Court. In the wake of that decision, he dropped further proceedings for want of jurisdiction. On the second occasion, when the proceedings were sought to be initiated, the appellant objected to the consideration of the matter by the assistant charity commis-sioner on the ground that the earlier proceedings would bar the present proceedings on the principle of res judicata. That objection having been overruled, the appellant filed a writ petition in the High Court against that order.
3. The High Court considered that the question is one, relating to inherent jurisdiction of the authority under the Act to enter-tain and decide the application under section 22-A and the earlier order dismissing the application for want of jurisdic-tion would not bar the present proceedings. It is difficult to understand the reasoning set out by the High Court. When on an earlier occasion, hostile title was set up and on that basis, the assistant charity commissioner having dropped the proceed-ings as he had no jurisdiction to inquire into such a matter under section 22-A of the Act, we fail to understand as to how that decision would not bar the fresh proceedings. In that view of the matter, we allow this appeal and set aside the order made by the High Court and dismiss the proceeding before the assistant charity commissioner.
