Shri. Hamantbhai Parbatbhai ... vs Raibahadur Habnumantrao ...
2017 Latest Caselaw 1411 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR

                    Writ Petition No.4978 of 2015


  1. Shri Hamantbhai Parbatbhai Patel,
     Aged 72 years,
     Occupation - Business,
     Resident of Q-18,
     Laxminagar, Nagpur.

  2. Dr. Jitendra Nanubhai Talavia,
     Aged 45 years,
     Occupation - Doctor,
     Resident of C/o Rajlaxmi Complex,
     Plot No.1, Nargundkar Layout,
     Deonagar Square,
     Khamla Road,
     Nagpur.

  3. Shri Nanubhai Kanjibhai Talavia,
     Aged about 79 years,
     Occupation - Business,
     Resident of 162,
     Shivajinagar, Nagpur.                          ... Petitioners

       Versus

       1. Raibahadur Habnumantrao
          Nargundkar Charitable Trust,
          Nagpur Bearing P.T.R. E-1630 (Nag),
          through its President Dr. Shri Umakant
          Laxman Pitale, Aged 75 years,
          Occupation - Retired,
          Resident of 4, West Samarth Nagar,
          Nagpur.

       2. Maharshi Karve Stree Shikshan Sanstha,
          bearing P.T.R. No.F-51(Pune), through
          its President Dr. Shri Sudhakar Kunte,




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            Aged about 73 years, 
            Occupation - Retired Government
            Servant, 
            Resident of Nargundkar Layout,
            Khamla Road, Deonagar,
            Nagpur.

        3. Joint Charity Commissioner,
           Civil Lines, Nagpur.                              ... Respondents



  Shri S.P. Bhandarkar, Advocate for Petitioners.
  None for Respondent No.1, though served.
  Shri R.A. Jain, Advocate for Respondent No.2.
  Shri K.R. Lule, Assistant Government Pleader for Respondent No.3.


                Coram : R.K. Deshpande, J.

                Dated  : 3    April, 2017
                           rd
                                         


   Oral Judgment :

1. Rule, returnable forthwith. Heard finally by consent of the

learned counsels appearing for the parties.

2. The challenge in this petition is to the order dated 10-6-2015

passed by the learned Joint Charity Commissioner, Nagpur rejecting

Application No.3/2013 under Section 36(1)(a) of the Maharashtra

Public Trusts Act, filed on 18-12-2009. The rejection is on the ground

that in view of the earlier order dated 16-11-2012 passed on

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Application No.1/2003 operates as res judicata and there is no

jurisdiction to pass an order in connection with the alienation of the

suit property.

3. It is not in dispute that the property was owned by one

Kum. Shakuntalabai Nargundkar. She executed the Will

dated 14-11-1996, creating a Trust in respect of several properties

owned by her. In the Will, there was a specific mention about the

agreement of development dated 7-7-1995, said to have been entered

into with the petitioners. It is also placed on record. By an order

dated 11-12-2003, the Charity Commissioner has left the question of

merger of the respondent No.1-Trust in the respondent No.2-Trust

open to be decided by the Charity Commissioner at Mumbai. The

respondent No.2-Trust is having its registered office at Pune. It is held

that in case if the property of the respondent No.1-Trust is permitted

to be disposed of in favour of the respondent No.2-Trust, the

respondent No.1-Trust shall continue to exist unless it is dissolved

under Section 50(IV)(L) and (M) of the Maharashtra Public Trusts Act

by the District Court. By the same order, all the properties, except the

property in question, are directed to be included in Schedule-I of the

respondent No.2-Trust at Pune. It is also not in dispute that the

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property in question is deleted from Schedule-I of PTR in respect of

the respondent No.1-Trust. In respect of the property in question, it

was directed that it can be disposed of by obtaining permission under

Section 36(1)(a) of the Maharashtra Public Trusts Act.

4. In view of the aforesaid factual position, prima facie, the

property in question does not become the property of the respondent

No.2-Trust. The learned Joint Charity Commissioner has, therefore,

committed an error in holding that he has no jurisdiction to pass an

order in connection with the property of the respondent No.1-Trust.

Prima facie, in view of the contents and the purport of the order

dated 16-11-2012, the question of res judicata also does not arise.

The learned Joint Charity Commissioner had, therefore, to consider all

these aspects of the matter. The order dated 16-10-2012 has to be

read in detail. This has not been done. The order impugned cannot,

therefore, be sustained and it will have to be quashed and set aside

with an order of remand.

5. In the result, the petition is allowed. The order

dated 10-6-2015 passed by the learned Joint Charity Commissioner,

Nagpur, rejecting Application No.3/2013, is hereby quashed and set

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aside. The learned Joint Charity Commissioner to decide the

application on its own merits within a period of three months from

today.

6. Rule is made absolute in above terms. No order as to costs.

JUDGE.

Lanjewar