2013 Supreme(Bom) 449

High Court of Judicature at Bombay
R.G. KETKAR, J.
Shree Hanuman Mandir, Alibag, Public Trust through its Trustees & Others
Versus
Satishchandra Bhalchandra Gurjar & Others
Civil Revision Application No.150 of 2012
Decided on: 26-02-2013

Headnote:Bombay Public Trust Act, 1950 - Sections 17 and 26 - Dispute regarding ’public trust’. - Held, entries of decision of competent Court made by Charity Commissioner under Section 17 of Act, are subject to decision of Court. One more aspect that requires to be noted is that the plaintiffs have also prayed for declaration that the sale deed executed in favour of the defendant No. 2 on the basis of the purported power of attorney of ’M’ is illegal and not binding on the plaintiffs. In the case of Sopan Sukhdeo Sable v. Assistant Charity Commissioner, (2004) 3 SCC 137 : 2004 (5) All MR 360 (SC), it is observed that merely because some of the reliefs cannot be granted in the Civil Court, it would not entail an automatic rejection of the entire plaint. In other words, assuming that prayer clause (a) cannot be granted by the Civil Court in view of bar under Sections 79 and 80 of the Act, nonetheless the Authorities under the Act cannot decide prayer clause (b) and the said prayer can be decided only by the Civil Court. Consequently, the Civil Court would not be justified in rejecting the plaint in its entirety. This is more so when the case of the plaintiffs is that the suit property does not belong to the Trust and is a private property of the plaintiffs. The case of the plaintiffs is that no instrument is executed transferring the suit property in favour of the Trust. In other words, the case of the plaintiffs is that the property did not validly vest in the Trust and therefore, the authorities under the Act will have no jurisdiction to determine the question of title to the trust property.

       Bombay Public Trust Act, 1950 - Sections 19, 79 and 80 - Bar of jurisdiction of Civil Court. - Held, since a dispute regarding title of suit property, to be decided by Civil Court, hence jurisdiction of Civil Court not barred. In the present case, the plaintiffs have not raised any dispute as regards administration or management of the Trust, deities and temple. In other words, since the questions raised in the Suit are unconnected with the administration or possession of the trust property, the Civil Court will have the jurisdiction to entertain and try the suit. The question of title to the trust property is outside the scope of enquiry under Section 19 of the Act. Section 26 of the Act lays down that any Court of competent jurisdiction deciding any question relating to any public trust which by or under the provisions of the Act is not expressly or impliedly barred from deciding shall cause copy of such decision to be sent to the Charity Commissioner and the Charity Commissioner shall cause the entries in the Register kept under Section 17 to be made or amended in regard to such public trust in accordance with the decision.

       The entries so made or amended shall not be altered except in cases where such decision has been varied in appeal or revision by Court of competent jurisdiction. Subject to such alterations, the entries made or amended shall be final and conclusive. The entries so made in the register under Section 17 of the Act are subject to the decision of the Court of competent jurisdiction as per Section 26 of the Act, and are, therefore, not sacrosanct.

       Bombay Public Trust Act, 1950 - Section 80 - Bar of jurisdiction of Civil Court. - Held, Section 80 of Act contains an express bar to jurisdiction of Civil Court subject to satisfaction of twin conditions. Section 80 of the Bombay Public Trusts Act contains an express bar to the jurisdiction of the Civil Court, but that is subject to the satisfaction of the twin conditions. The existence of those conditions must be strictly established before an ouster of jurisdiction can result. The correct test in law to apply is (i) whether the controversy which is sought to be raised before the Civil Court requires an adjudication of a matter or question which has to be decided or dealt with by an officer or authority under the Act while exercising his power under the Act and (ii) whether such a decision is made final or conclusive. In determining this, the Court has to consider substance and not merely form in which the claim before the Civil Court is made and the underlying object of seeking the real relief.

       The Civil Court will have no jurisdiction in relation to a matter wherever the statutory authorities have the requisite jurisdiction. On the other hand if a question arises which is outside the purview of the Act or in relation to the matter, unconnected with the administration or possession of the Trust property, the Civil Court will have jurisdiction.

       Civil Procedure Code, 1908 - Section 9 - Jurisdiction of Court. - Plea of ouster of jurisdiction must be considered by Court having regard to contentions in plaint and not regard to reliefs claimed. - A plea of bar to jurisdiction of a Civil Court must be considered having regard to the contentions raised in the plaint. For that purpose, averments disclosing cause of action and the reliefs sought for therein must be considered in its entirety. The Court may not be justified in determining the question, one way or the other, only having regard to the reliefs claimed Decided on : hors the factual averments made in the plaint.

       Civil Procedure Code, 1908 - Section 9, Order VII, Rule 11(d) - Bombay Public Trusts Act, 1950, Sections 79 and 80 - Bar of jurisdiction of Civil Court. - Since a question relating to title of suit property, to be divided by Civil Court hence plaint cannot be rejected on ground that some of reliefs can be granted only by Authorities under Act.