Gujarat High Court Case Information System
Print
LPA/1653/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1653 of 2010
In
SPECIAL
CIVIL APPLICATION No. 8375 of 2010
=========================================
ROSHANBEN
NEVIL DUMASIA
CHAIRMAN
& TRUSTEE & 3 - Appellant(s)
Versus
LEARNED
JOINT CHARITY COMMISSIONER IN CHARGE OF SURAT REGION & 3 -
Respondent(s)
=========================================
Appearance :
MR
AJ YAGNIK for Appellant(s) : 1 - 4.
MR CB UPADHYAYA for
Respondent(s) : 1,
MR HIMANSHU J MEHTA for Respondent(s) :
2,
NOTICE SERVED BY DS for Respondent(s) : 3 -
4.
=========================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 16/09/2010
ORAL
ORDER
(Per
: HONOURABLE MR JUSTICE AKIL KURESHI)
The
appellants are original petitioners. In the writ petition they
challenged a show cause notice dated 14.6.2010 at Annexure A
issued by the learned Charity Commissioner, Surat on Misc.
Application No. 11 of 2010 filed by respondent No.2 in the main
petition as well as in this LPA.
The
said respondent No.2 had approached the Charity Commissioner praying
for the relief that the other co-trustees of the Trust in which he
himself is a trustee, should not create hindrance in his opening a
school and to direct them to extend all co-operation for the said
purpose. On this application, the Joint Charity Commissioner issued
the impugned notice.
The
petitioners, who are also the trustees of the said Trust, challenged
the show cause notice before the learned Single Judge in SCA No. 8375
of 2010. Learned Single Judge by passing an order dated 21.7.2010,
relegated the petitioners before the Joint Charity Commissioner and
required the Joint Charity Commissioner to decide the issue of
jurisdiction as a preliminary issue. It is against this order that
the appellants have filed the present LPA.
Counsel
for the appellants primarily contended that under Section 41-A of the
Bombay Public Trusts Act, Joint Charity Commissioner has no power to
entertain the application of the respondent No.2 for the prayers made
therein. He therefore, submitted that there would be no purpose in
going before the Joint Charity Commissioner.
Learned
counsel for respondent No.2 opposed the appeal and contended that
prayer of the original applicant was for reviving the school in which
the other trustees were creating hindrance.
Learned
counsel for the Joint Charity Commissioner stated that only show
cause notice is issued and all the aspects are yet to be examined.
Having
heard learned Advocate for the parties and having perused the
application filed by respondent No.2 before the Joint Charity
Commissioner and the prayer made therein, we are of the opinion that
Section 41-A of the Bombay Public Trusts Act does not confer power on
the Joint Charity Commissioner to entertain any such prayer. Under
Section 41-A of the Act, it is the power of the Charity Commissioner
to issue from time to time directions to any trustee of a public
trust or any person connected therewith to ensure that such trust is
properly administered and the income thereof is properly accounted
for or duly appropriated and applied to the objects and for the
purposes of the trust. Whether a new school is to be started or
whether an existing school is to be revived or not, are the issues
first to be decided by the Trust through proper resolutions passed
during the meeting with majority opinion, and such an issue cannot be
decided by the Joint Charity Commissioner. If the original applicant
has any grievnce about mis-management of the Trust or
misappropriation of the funds by other Trustees, such an issue has
not been raised in the application in question and it would be open
to the aggrieved trustee to take steps, with regard to which we
express no opinion. So far as the application pending before the
Joint Charity Commissioner is concerned, we are of the opinion that
the Joint Charity Commissioner lacks jurisdiction to decide the said
application. LPA is therefore, allowed. Proceedings arising out of
the said application No. 11 of 2009 are quashed. Order of learned
Single Judge dated 21.7.2010 is set aside. Appeal stands allowed
accordingly.
(S.J.
Mukhopadhaya, C.J.)
(Akil
Kureshi, J.)
*/Mohandas
Top