HASAN NURANI MALAK Vs. S.M. ISMAIL

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India for the issue of a Writ of certiorari, or any other order or direction for quashing the order of the Assistant Charity Commissioner, Nagpur, respondent No. 1, made on September 6, 1962, wherein he has held that he has jurisdiction to enquire into an application made by respondents Nos. 2 to 5 under Section 19 of the Bombay Public Trusts Act, 1950, hereinafter referred to as the new Act.

(2.) THE question that arises for consideration is whether the Assistant Charity Commissioner had jurisdiction to decide this application under Section 19 of the Bombay Act or whether the previous decision made by the Registrar under the Madhya Pradesh Public Trusts Act (Act XXX of 1951), holding that this particular trust is not a public trust takes away the jurisdiction of the Charity Commissioner to hold an enquiry under Section 19 of the Bombay Act in respect of the same trust? The question arises thus:

(3.) ON March 2, 1962, respondents Nos. 2 to 5, who claimed to be persons interested in the alleged Mehdi -Bagh trust, filed an application before respondent No. 1, the Assistant Charity Commissioner, under Section 19 of the Bombay Public Trusts Act, (Act XXIX of 1950), wherein they prayed that an enquiry be made under Section 19 of the Bombay Public Trusts Act, 1950, and action as deemed fit he taken. To this application the petitioner before us was joined as a respondent and it was alleged that the trust property was in possession of the petitioner before us. On August 6, 1962, the petitioner raised a preliminary objection challenging the jurisdiction of the Court to proceed to enquire into the said application filed by respondents Nos. 2 to 5 under Section 19 of the Bombay Public Trusts Act. The contentions raised were two -fold. In the first instance, it was contended that the finding of the Registrar under the Madhya Pradesh Public Trusts Act, 1951, that Mehdi -Bagh was not a public trust had become final and conclusive by virtue of the provisions of the Madhya Pradesh Act. The petitioner, therefore, had acquired a vested right and that is saved to him under Section 86 of the Bombay Act. In the alternative it was contended that even if the said finding of the Registrar had not become final the proceedings were still pending under the Madhya Pradesh Act and the only remedy that the respondents would have to get that finding set aside is by filing a civil suit as provided in Section 8 of the Madhya Pradesh Act. The Assistant Charity Commissioner on these pleas framed the following preliminary issues: Whether in view of the order of the Registrar of Public Trusts, Nagpur District, Nagpur, in case No. 153/XXXIII -9 of 1953 -54 declaring Mehdi Bagh as not registrable under the Madhya Pradesh Public Trusts Act, 1951, the Assistant Charity Commissioner, Nagpur Region, Nagpur, is not precluded from holding an enquiry under section 19 of the Bombay Public Trusts Act, 1950? By his order dated September 6, 1962, respondent No. 1 held that the enquiry under Section 19 of the Bombay Public Trusts Act was not barred and further directed that enquiry into the application under Section 19 of the Bombay Public Trusts Act, filed by respondents Nos. 2 to 5 shall proceed. It is this order of respondent No. 1 that the petitioner seeks to get quashed by this petition.