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LPA/1606/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1606 of 2010
In
MISC.CIVIL
APPLICATION No. 932 of 2007
In
STAMP
NUMBER (SPL.C.A.) No. 15140 of 2005
=================================================
CHARITY
COMMISSIONER GUJARAT STATE - Appellant(s)
Versus
DILIPKUMAR
RAMANLAL SHAH & 5 - Respondent(s)
=================================================
Appearance :
MR
CB UPADHYAYA for Appellant(s) : 1,
MR AJ YAGNIK for Respondent(s)
: 1,
UNSERVED-EXPIRED (N) for Respondent(s) : 2 - 4.
MR RA
SEJPAL for Respondent(s) : 5 -
6.
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 08/09/2010
ORAL ORDER
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
The
Charity Commissioner, Gujarat State, preferred the writ petition on
11.7.2005. It was provided with Stamp No. 15140 of 2005, but not
registered in view of the office objections and defects. Having not
removed the defects, it was rejected and the case was not registered.
For the said reason, one Misc. Civil Application – For
Restoration No. 932 of 2007 was filed. The learned Single Judge by
the impugned order dated 16.6.2010, taking into consideration the
fact that, by order dated 20.12.2006, time upto 17.1.2007 was allowed
to remove the defects, observed that the Charity Commissioner should
have removed the office objections. When certain observations were
made against the Charity Commissioner, the learned advocate requested
the Court to permit him not to press the application, but the Court
declined such request on the ground that the Court will be failing in
its duty if the permission is granted not to press the application
and in that view of the matter, while the application for restoration
was rejected, costs of Rs.7,500/- was imposed on the Charity
Commissioner and the Registry of this Court was directed to send a
copy of the order to the Secretary, Legal Department, Gujarat State
and the Principal Chief Secretary, Gujarat State so as to see that
appropriate note of the method and manner of working of the office of
the Charity Commissioner is taken and appropriate action is taken
against the person concerned.
2. It
was not necessary to issue notice on the respondents as the writ
petition was not even registered and not taken in file and because
of non-removal of the defects and non-compliance of the order, the
prayer for restoration was rejected. So, if the petition for
restoration is allowed, the writ petition will be entertained and
registered. Still, notices were issued on the respondents. The
notices having served on the 1st and 2nd
respondents, 3rd and 4th respondents having
informed to have expired, the 6th respondent –
Managing Trustee has accepted the notice on behalf of the other
respondents. Therefore, no substitution is required to be ordered.
3. We
find that the Charity Commissioner is an officer of the State. The
lawyer is engaged to file a writ petition and if any defect is
pointed out, normally it is the duty of the counsel or clerk to
remove the defect. The Charity Commissioner cannot be blamed
straightaway for the same. What he could have done is that the
petition having rejected, for which the writ petition is not being
registered, could have preferred a petition for restoration which he
did. In this background, we are of the opinion that the observation
as made by the learned Single Judge and imposition of costs as made
by order dated 16.6.2010 was uncalled for. Instead of making such
observations, taking into consideration that the petition for
restoration was filed immediately, the learned Single Judge ought to
have restored the proposed writ petition to its original file subject
to removal of defects.
4. For
the reasons aforesaid, we set aside the order dated 16.6.2010 passed
in Misc. Civil Application – For Restoration No. 932 of 2007
and restore the proposed writ petition Stamp Number (Spl.CA) No.
15140 of 2005. We allow the petitioner to remove the defects within
one week and order to register Stamp Number (Spl.CA) No. 15140 of
2005 and list the same before the appropriate Court on 27th
September, 2010 alongwith Special Civil Application Nos. 9333 and
9335 of 2004.
If
the defects are not removed, it may be brought to the notice of the
Court so as to enable the Court to dismiss the writ petition for
non-compliance of the Court’s order.
5. The
Letters Patent Appeal is allowed in terms of the observations
aforesaid.
[S.J.
MUKHOPADHAYA, CJ.]
[ANANT
S. DAVE, J.]
Sundar/*
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