SCA/9040/2001 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9040 of 2001 With SPECIAL CIVIL APPLICATION No. 7116 of 1998 With SPECIAL CIVIL APPLICATION No. 6737 of 1995 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= ASWINKUMAR CHANDULAL MODIYA & 1 - Petitioner(s) Versus THE JOINT CHARITY COMMISSIONER & 5 - Respondent(s) ========================================================= Appearance : MR MIHIR H JOSHI for Petitioner(s) : 1 - 2.MR ANSHIN H DESAI for Petitioner(s) : 1 - 2. MS VS PATHAK, AGP for Respondent(s) : 1, MR AJAY R MEHTA for Respondent(s) : 2,5 - 6. MR MEHUL S SHAH for Respondent(s) : 3 - 4. MR SURESH M SHAH for Respondent(s) : 3 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 22/02/2008 ORAL JUDGMENT 1. As in the present petitions all matters are SCA/9040/2001 2/9 JUDGMENT interconnected and facts are co-related, they are being considered by this common judgement. 2. The short facts of the case appear to be that in respect of certain properties of the respondent No. 2 trust, change reports were filed in change report No. 239 of 1987, and such change report was rejected, against which the appeal No. 2 of 1996 was preferred before the Joint Charity Commissioner, and the appeal was allowed. By virtue of the said order of the Charity Commissioner dated 30th May 1998, the properties were found as that of trust property. It appears that based on the said order dated 30th May 1998, passed by the Charity Commissioner in the aforesaid appeal No. 2 of 1996 in the proceedings of Misc. Application No. 1 of 1993, the Charity Commissioner in exercise of the power under Section 41-A of the Bombay Public Trust Act (hereinafter referred to as the “Act”) issued direction that the properties are trust properties and without prior permission under Section 36 of the Act, the same shall not be transferred or alienated. It is under these SCA/9040/2001 3/9 JUDGMENT circumstances, for challenging the order dated 29.5.1998 passed by the Charity Commissioner under Section 41-A of the Act, the petitioner who is claiming right over one of the property being a transferee has approached to this Court by preferring the Special Civil Application No. 9040 of 2001. 3. Special Civil Application No. 7116 of 1998 has been preferred by the transferor, who executed sale deed in favour of the petitioner in SCA No. 9040 of 2001 and others have preferred separate petition for challenging very order of the Charity Commissioner. 4. Special Civil Application No. 6737 of 1995 is preferred for challenging legality and validity of the orders passed by the Revenue authority in the revenue proceedings of CTS Appeal No. 8 of 1993 by the Deputy Collector Dahod, and the basis is that the petitioners therein are claiming that it is not trust property. 5. Heard Mr. Desai, Mr. Mehul Shah, Mr. R.N. Shah learned Counsel for the petitioners in the respective petitions and Mr. Ajay Mehta learned SCA/9040/2001 4/9 JUDGMENT Counsel for the respective respondents. 6. It appears that it is an undisputed position that based on the order passed by the Charity Commissioner, concerning to the change report in the proceedings of Appeal No. 2 of 1996, the Charity Commissioner has exercised power under Section 41-A of the Act. The perusal of the order passed by the Charity Commissioner shows that, he has exercised the power with a view to see that the property may not change hands, when it has been decided by him that the property belongs to the trust property. Therefore, as such the power exercised by the Charity Commissioner vide impugned order can be said as measure undertaken for protection of the property of the trust. 7. However, it is also an undisputed position that against the order of the Charity Commissioner in Appeal No. 2 of 1996 dated 30th May 1998, the matter is further carried before the learned District Judge, Panchmahal, at the relevant point of time, and now may be District Judge Dahod, in the proceeding of Appeal having SCA/9040/2001 5/9 JUDGMENT original No. 3 of 1998. All issues concerning to the crucial aspect as to whether the properties belongs to the trust property or is not the property of the trust are to be finalised in the proceedings of aforesaid appeal No. 3 of 1998. 8. As such the exercise of the power under Section 41-A of the Act is by way of residuary power, and the final decision is to be taken in the proceedings of Appeal No. 3 of 1998, for deciding the status of the property as that of the trust property or not. 9. I would have further considered the matter, however, learned Counsel for both the sides submitted that, if the learned District Judge is directed to decide the Appeal No. 3 of 1998 within some stipulated time limit without being any manner influenced by order passed by the Charity Commissioner under Section 41-A of the Act, the respective petitioners shall be satisfied by such direction. 10.It further appears from the record that Civil Suit No. 234 of 1993 is preferred by the trust and Civil Suit 101 of 1993 is preferred against SCA/9040/2001 6/9 JUDGMENT the development of the property, and both the civil suits are also pending. As such whether the property is a trust property or not can finally be decided by the competent authority under the Act, and as observed earlier, the matter is at large pending before the learned District Judge in the proceedings of the appeal No. 3 of 1998 be decided irrespective of the pendency of Civil Suit Nos. 234 of 1993 and 101 of 1993. 11.In my view the aforesaid prayer appears to be reasonable and the reason being that final decision is to be taken by the competent authority under the Act for deciding status of the property as that of the trust property or not. Therefore, pendency of the Civil Suit Nos. 234 of 1993 and 101 of 1993 should not operate as bar to the adjudication, and the final disposal of the proceedings of appeal No. 3 of 1998, which is pending before the learned District Judge. Even otherwise also the appeal pending before the District Judge being Appeal No. 3 of 1998, is the litigation pending for SCA/9040/2001 7/9 JUDGMENT about ten years and therefore, the same can be directed to be decided within some reasonable time. 12.Hence, following order 1. The learned District Judge before whom the proceedings of trust appeal No. 3 of 1998 is pending, shall make attempt to dispose of the appeal after giving opportunity of hearing to all the concerned, as early as possible, preferably within period of six months from the receipt of the order of this Court. It is also clarified that the said appeal shall be decided irrespective of the pendency of Civil Suit Nos. 234 of 1993 and 101 of 1993. 2. The learned District Judge while taking decision, shall not be influenced by the exercise of the power under Section 41-A of the Act, by the Charity Commissioner, and he shall independently decide the matter on the basis of the material available before him. 3. After the decision by the learned District Judge in the aforesaid proceedings but SCA/9040/2001 8/9 JUDGMENT subject to the rights of the aggrieved party to challenge the same before the higher forum as may permissible in law, concerned party shall be at the liberty to move for mutation in the revenue record or before the appropriate authority including the Charity Commissioner, if ultimately held to be not the trust property or otherwise, on the basis of the order of the learned District Judge, unless such decision is stayed by the higher forum known to law. 4. The petitioner of Special Civil Application No. 9040 of 2001, if desirous, he may raise the contention as available in law, against the order passed by the Charity Commissioner in appeal No. 2 of 1996 which is the subject matter of the proceedings of Appeal No. 3 of 1998 before the learned District Judge. 13.Subject to the aforesaid observations and directions, rule in each appeal is discharged. No order as to cost. (JAYANT PATEL, J.) SCA/9040/2001 9/9 JUDGMENT Suresh*