RUSTOMJEE KERWALLA Vs. AVISHA GOPALKRISHNAN

JUDGEMENT

(1.) The present Letters Patent Appeal has been assigned to this Court for hearing by an administrative direction of the Hon'ble the Chief Justice and we have accordingly taken up the appeal for hearing and final disposal by consent.

(2.) This appeal arises from a decision of a Learned Single Judge dated 31 July 2012 on a Petition filed by the Appellant under Articles 226 and 227 of the Constitution to challenge an order of the Charity Commissioner dated 11 January 2012. The Charity Commissioner rejected an application filed by the Appellant for dismissal of an enquiry which was initiated on the basis of a complaint dated 25 January 2011 lodged by the First Respondent. Briefly stated, it was urged before the Learned Single Judge that an enquiry into the complaint lodged on 25 January 2011 was barred by the principles of res judicata on the ground that on an earlier complaint dated 3 May 2008, a report was submitted by the Inspector on 4 June 2008 following which the Assistant Charity Commissioner concluded in his order dated 20 June 2008 that there appeared to be no substance. By the judgment and order which was sought to be challenged in appeal, the Learned Single Judge has come to the conclusion that the earlier order of the Assistant Charity Commissioner could not operate as res judicata since the enquiry which is conducted into a complaint dated 2 May 2008 was no enquiry in the eyes of law and that there was no finding on the merits of the allegation made by the First Respondent in regard to a misappropriation or siphoning off of the funds of a public trust.

(3.) Counsel appearing on behalf of the First Respondent has raised an objection to the maintainability of an appeal under Clause 15 of the Letters Patent on the ground that the judgment of the Learned Single Judge, properly construed, must be regarded as a decision rendered on a petition invoking Article 227 of the Constitution. Hence, it is urged that no Letters Patent Appeal would lie. The Appellant had invoked the provisions of Articles 226 and 227 of the Constitution in a petition filed before the Learned Single Judge. The basis on which the Petition has been filed and the jurisdiction of the Learned Single Judge was invoked, was that the Charity Commissioner had acted outside his jurisdiction in ordering an enquiry by the Inspector on the complaint which was filed by the First Respondent on 25 January 2011. According to the Appellant, the earlier complaint which was lodged on 3 May 2008 had been enquired into and had attained finality and that consequently, the fresh complaint would be barred by res judicata. The invocation of the provisions of both Articles 226 and 227 was, therefore, in any event, validly made. A decision rendered by the Learned Single Judge in a Petition under Articles 226 and 227 would, therefore, be subject to a Letters Patent Appeal under clause 15 of the Letters Patent. We, therefore, do not find any substance in the preliminary objection to the maintainability of the appeal.