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SCA/10694/2008 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10694 of 2008
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NOSHIR
B DORDEE - Petitioner(s)
Versus
JT.CHARITY
COMMISSIONER & 10 - Respondent(s)
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Appearance :
MR
VISHWAS K SHAH for Petitioner(s) : 1,
MR RS
SANJANWALA for Respondent(s) : 1,
None for Respondent(s) : 2 -
11.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 09/09/2008
ORAL
ORDER
The
petitioner by this petition, has challenged the order dated
11.08.2008 passed by the Tribunal below application of the
petitioner for deleting respondent No.2 as party respondent in the
proceedings of Appeal No.5/07 which is pending before the Gujarat
Revenue Tribunal.
Heard
Mr.Dastoor with Mr.Shah for the petitioner and Mr.Sanjanwala for
respondent No.2 by caveat.
The
contention raised on behalf of the petitioner is that the possession
of the respondent No.2 is found as illegal and the respondent No.2
was not a party to the proceedings of the application under Section
36 of the Bombay Public Trust Act before the Charity Commissioner
and there is no lis between the petitioner and the respondent No.2
and therefore, the respondent No.2 is not a necessary party to the
proceedings and therefore, the Tribunal ought to have passed an
order deleting the respondent as party.
It
has been submitted that in the impugned order, certain observations
made by the Tribunal are contrary to the orders passed by this
Court. Therefore, the discretion is not properly exercised and
hence, this Court may interfere.
It
deserves to be recorded that the scope of the petition under Article
227 of the Constitution is limited to the judicial review only in
cases where any error apparent on the face of record is committed by
the Tribunal or the discretion is exercised in a perverse manner
which results into the gross injustice to the party. Examining the
facts of the present case with the aforesaid scope of judicial
review, it appears that it is an admitted position that the
petitioner initially joined the respondent No.2 as party in the
proceedings of the appeal and therefore, at the time when the appeal
was filed before the Tribunal, the petitioner of its own found that
the respondent No.2 is necessary or proper party to the proceedings.
Apart
from the above, it is an admitted position that the petitioner has
preferred an appeal before the Tribunal against the order 18.06.2007
passed by the Charity Commissioner in the application under Section
36 of Act. The operative portion of the said order of the Charity
Commissioner shows that certain observations are also made
pertaining to the proceedings of Misc. Application Nos.15/04 and
16/04 concerning to the lease granted to Kishan Construction,
respondent No.2 herein. Therefore, when in the impugned order before
the Tribunal, certain observations are made, may be right or wrong,
which will be decided at the later stage in the proceedings of the
Tribunal, it can not be said that the said respondent No.2 is
totally third party to the proceedings of appeal. On the contrary,
if the order is to be modified or reversed by the Tribunal, it would
require for the Tribunal to hear respondent No.2 and thereafter
only, proper and effective orders can be passed. Therefore, the
respondent No.2 even otherwise also can be said a necessary and
proper party to the proceedings of the Appeal pending before the
Tribunal.
The
perusal of the impugned order passed by the Tribunal and more
particularly, the reasons recorded therein shows that the Tribunal
has considered that if the respondent No.2 is continued as a party,
no rights of the petitioner is prejudiced. Such an exercise of the
discretion in view of the fact and circumstances referred to
hereinabove cannot be said as perverse nor can it be said that there
is any error committed by the Tribunal apparent on the face of
record which may call for interference by this Court under Article
227 of the Constitution.
In
view of the above, no case is made out for interference. Hence,
rejected.
(JAYANT PATEL, J.)
*bjoy
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