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2015 DIGILAW 1274 (BOM)

Govind v. Assistant Charity Commissioner

2015-06-11

Z.A.HAQ

body2015
JUDGMENT : Z.A. Haq, J. 1. Heard Shri A.J. Gilda advocate h/f. Shri J.T. Gilda advocate for the petitioners and Shri K.L. Dharmadhikari, the learned A.G.P. for the respondent No. 1. None for the respondents 2 to 5. The petitioners have challenged the order passed by the Assistant Charity Commissioner allowing the application filed by the respondents 2 to 5 under Section 51 of the Maharashtra Public Trust Act, 1950 (for short "Act of 1950"), seeking permission to institute the civil suit. 2. Shri Gilda, the learned advocate for the petitioners has submitted that the learned Assistant Charity Commissioner has not conducted proper enquiry as contemplated by Section 51 of the Act of 1950. It is further submitted that the prayer clause (c) of the proposed suit cannot be considered by the Civil Court in view of the judgment passed by the District Court in Regular Civil Appeal No. 244/1998 on 7th January, 1999. It is further submitted that the prayer (d) of the proposed suit is to the effect that the scheme framed earlier be modified and this also cannot be granted inasmuch as the scheme framed by the learned Assistant Charity Commissioner in Application No. 27/1993 on 30th July, 1994 has been maintained upto this Court. It is further submitted that the proposed civil suit would be barred and the civil Court will have no jurisdiction to entertain the civil suit praying for the above-mentioned relief’s, as the relief’s which are being sought by the respondents 2 to 5 can be sought by them under Section 41D and Section 41E of the Act of 1950. It is further submitted that the respondent Nos. 2 to 5 had already filed application under Section 47D of the Act of 1950 praying for same reliefs and the application has been dismissed by the learned Joint Charity Commissioner. In these circumstances, it is submitted that the impugned order is unsustainable and is required to be set aside. 3. Shri K.L. Dharmadhikari, the learned A.G.P. for the respondent No. 1 has supported the impugned order. 4. In these circumstances, it is submitted that the impugned order is unsustainable and is required to be set aside. 3. Shri K.L. Dharmadhikari, the learned A.G.P. for the respondent No. 1 has supported the impugned order. 4. After examining the documents placed on the record of the writ petition and hearing the learned advocate for the petitioners and the learned A.G.P. for the respondent No. 1, I find that the submissions made on behalf of the petitioners based on the ground that the prayers of the proposed suit cannot be granted, cannot be considered at this stage. While conducing the enquiry under Section 51 of the Act of 1950, the Charity Commissioner will not have jurisdiction to examine as to whether the civil Court would be able to grant the relief which may be sought in the proposed suit. Whether the prayers made in the proposed suit can be granted or not will fall within the domain of the civil Court. Whether any prayer can be granted or not or whether any claim made in the proposed suit is hit by res judicata will have to be considered by the civil Court and it cannot be considered by the Charity Commissioner under the enquiry under Section 51 of the Act of 1950. While conducting the enquiry under Section 51 of the Act of 1950 the Charity Commissioner has to examine whether the suit proposed to be filed is of the nature specified in Section 50 of the Act of 1950 or not. The challenge of the petitioners' is not that the suit proposed to be filed is not of the nature specified in Section 50 of the Act of 1950. The learned advocate for the petitioners has submitted that the Assistant Charity Commissioner has not conducted the enquiry as contemplated by Section 51 of the Act of 1950. However, the learned advocate for the petitioners has not pointed out as to what are the parameters of the enquiry under Section 51 of the Act of 1950 and what is the irregularity or illegality in the enquiry conducted by the Assistant Charity Commissioner. However, the learned advocate for the petitioners has not pointed out as to what are the parameters of the enquiry under Section 51 of the Act of 1950 and what is the irregularity or illegality in the enquiry conducted by the Assistant Charity Commissioner. The provisions of Section 51 of the Act of 1950 lays down that the Charity Commissioner shall conduct the enquiry as he thinks fit to get satisfied as to whether a prima facie case exists in favour of the applicants to enable them to file the civil suit for the redressal of their grievance. It is clear from the impugned order that the learned Assistant Charity Commissioner has made the enquiry necessary to find out as to whether a prima facie case exists in favour of the applicants to enable them to file the civil suit and as to whether the prayers which are to be made in the proposed suit are of the nature specified in Section 50 of the Act of 1950. I see no reason to interfere with the impugned order. The writ petition is dismissed. Rule is discharged. In the circumstances, the parties to bear their own costs.