SCA/17337/2006 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 17337 of 2006 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? ========================================================= NARESHCHANDRA RAMPRASAD RAJA PRESIDENT OF SAMAGRA GUJARAT - Petitioner(s) Versus GAJENDRA SHUKHLAL PATEL & 27 - Respondent(s) ========================================================= Appearance : MR HJ NANAVATI for Petitioner(s) : 1, MR KUNJAL D PANDYA for Respondent(s) : 1, None for Respondent(s) : 2 - 6. DS AFF.NOT FILED (N) for Respondent(s) : 7 - 15,18 - 23, 25,27 - 28. MR KH BAXI for Respondent(s) : 16 - 17, 24, 26, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 28/01/2008 ORAL JUDGMENT SCA/17337/2006 2/10 JUDGMENT 1. The short facts of the case relevant for the purpose of this petition is that it appears that one Gajendra Shukhlal Patel and 11 persons had filed Civil Misc. Application No.120/04 in the Court of District Judge, Mehsana against the order dated 27.02.2003 passed by the Joint Charity Commissioner, whereby the Scheme was framed in Scheme Application No. 9/94. It may be recorded that initially, the matter was filed in the City Civil Court and thereafter, the Court came to the conclusion that it has no jurisdiction and thereafter, the another application was filed before the Court of District Judge at Mehasana. The learned District Judge assigned the matter to the Court of Additional district Judge and Presiding Officer of Fast Track Court No.2 for conducting the said matter. In such proceedings, the petitioner herein submitted the application Ex.89 contending inter alia that the power for conducting the matter vest to the learned District Judge only and the Court of Additional District Judge and Fast Track Court(hereinafter 'the Fast Track Court') has no jurisdiction and therefore, the question of jurisdiction be decided first. It appears that the said application came to be rejected by the Fast Track Court vide order dated 20.06.2006 and it is under these circumstances, the present petition before this Court. SCA/17337/2006 3/10 JUDGMENT 2. I have heard the learned advocate appearing for the petitioner Mr.Nanavati and Mr. Baxi for respondent Nos. 16, 17, 24 & 26. 3. The only question which may arise for consideration is whether the Fast Track Court which is a Court of Additional District Judge has power to entertain and decide the application under Bombay Public Trust Act made to the Court of Principal District Judge or not. 4. Certain provisions of law may have the relevance and they can be extracted as stated hereinafter. 5. It is an admitted position that the application was made under Section 72 of the Bombay Public Trust Act (hereinafter 'the BPT Act') to the Court. Section 72 of the Act provides that any person aggrieved by the decision of the Charity Commissioner may apply to the Court to set aside the said decision. Section 2(4) of the BPT Act provides for definition of the Court which reads as under: “Court means in greater Bombay, the City Civil Court and elsewhere, the District Court” The word District Court is not defined under the BPT Act. Civil Courts in Gujarat State are established under the Bombay Civil Court Act read with the provisions of Gujarat Civil Court Act, 2005. Part III of the Bombay Civil Court SCA/17337/2006 4/10 JUDGMENT Act provides for District Court and Sections 5, 6, 7 & 11 of the said Act which is relevant for the purpose of this petition reads as under: “5. DISTRICT JUDGES.- There shall be in each district a District Court presided over by a District Judge. 6. SITUATION OF DISTRICT COURT.- The District Judge shall ordinarily holder the District Court at the sadr station in his district, but may, with the previous sanction of the High Court, hold it elsewhere within the district. 7. ORIGINAL JURISDICTION OF DISTRICT COURT.-The District Court shall b the principal Court of original civil jurisdiction in the district, within the meaning of the Code of Civil Procedure. 8. ..... 9. ..... 10. ..... 11. SEAL OF DISTRCIT JUDGE.- The District Judge shall use a circular seal, two inches in diameter, which shall bear thereon the Ashoka Capital Motif with the following inscription in English and the principal language of the district:- “District Court of “ Part IV provides for Joint District Judges and Section 12, 12A and 13 of the said Act reads as under: “12. POWER TO APPOINT JOINT JUDGES.-The State Government may appoint in any District SCA/17337/2006 5/10 JUDGMENT a Joint Judge who shall be invested with co- extensive powers and a concurrent jurisdiction with the District Judge, except that he shall not keep a file of civil suits and shall transact such civil business only as he may receive from the District Judge, or as may have been referred to the Joint Judge by order of the High Court. 12A.POWER TO APPOINT DISTRICT JUDGE OR ASSISTANT JUDGE IN ONE DISTRICT TO BE JOINT JUDGE IN ANOTHER DISTRCT.- The State Government may appoint the District Judge or the Assistant Judge in any district to be also a Joint Judge in another District. Such Joint Judge may hold his court and transact civil business at such place or places in either district as he may deem fit. 13. ENACTMENTS APPLIED TO JOINT JUDGE, JOINT JUDGE'S SEAL.- ALL Regulations and Acts now or hereafter in force and applying to a District Judge shall be deemed to apply also to the Joint Judge; and the seal of the Joint Jude shall be same as is used by the district Judge.” By virtue of aforesaid provisions of Bombay Civil Court Act, in any District, a Joint District Judge can be appointed who shall be invested with the co-extensive powers and concurrent jurisdiction of the District Judge. Section 13 of the aforesaid provision shows of Regulations and Acts now or hereinafter in force and applying to a District Judge shall be deemed to apply also to the Joint Judge and the seal of the Joint Judge shall be the same as is used by the District Judge. SCA/17337/2006 6/10 JUDGMENT 6. It is an admitted position that prior to the enactment of Gujarat Civil Court Act,2005, the Presiding Officers of the Fast Track Court were in the cadre of Joint District Judges and therefore, by virtue of the provisions of Bombay Civil Court Act and more particularly, Sections 12 & 13, they have coextensive and concurrent jurisdiction with the District Judge and all Regulations and the Act as where in the year 1869 and thereafter, are to apply with the same force as at par with the District Judge. The BPT Act is an enactment in the year 1950 and in any case after 1869, the year of enactment of Bombay Civil Court Act. Therefore, in view of Section 13 of the Bombay Civil Court Act read with Section 12 of the Bombay Civil Court Act, all Courts of the Joint District Judge, if appointed for such purpose by the State Government, are competent to exercise coextensive and concurrent jurisdiction with the District Judge of the said district. 7. Gujarat Civil Court Act, 2005, has come into force on 23rd March, 2005, and in view of the enactment of Gujarat Civil Court Act, 2005, the Judicial Officers in the State cadre are classified into three cadres: 1) As that of the Court of District Judge. 2) As that of the Court of Senior civil Judge. 3) As that of the Court of Civil Judge. SCA/17337/2006 7/10 JUDGMENT 2. Sub-section (1) of Section 4 of Gujarat Civil Court Act provides for establishing of the Court of District Judge. Sub-section (2) of Section 4 of Gujarat Civil Court Act provides that the Court of District Judge shall be presided over by a Judge to be called as Principle District Judge. Clause (ii) of Sub-section(3) which is relevant for the purpose of this petition reads as under: “(ii) The Additional District Judge appointed under this sub-section shall, subject to the general or special orders of the High Court, discharge all or any of the functions of a District Judge under this Act or any other law for the time being in force which the Principal District Judge may assign to him and in the discharge of those functions, he shall exercise all the powers of the court of a District Judge.” Therefore, in view of the aforesaid express provisions of Section 4(3)(ii), the additional District Judge are competent to discharge all or any of the functions of a District Judge under any other law for the time being in force and they are competent to exercise all powers of the Court of District Judge in a matter which is assigned to him. 8. The Presiding Officer of the Fast Track Court in the State who were earlier appointed as the Joint District Judge after enactment of Gujarat Civil Court Act, are in the cadre of Additional SCA/17337/2006 8/10 JUDGMENT District Judge and on the said aspects, there is no dispute. 9. In view of the aforesaid express provisions of Bombay Civil Court read with the provisions of Gujarat Civil Court Act, the Court of Additional District Judge is competent to exercise all powers of the Court of District Judge. 10.The learned counsel for the petitioner heavily relied upon the decision of this Court in the case of Dhirsinhbhai Karsanbhai Barad & Anr. Vs. Kanjibhai Parbarbhai Moti & Ors. reported in 2006(2) GLR 1190 and contended that the view taken by this Court in the aforesaid decision is that the Suit cannot be transferred to the Fast Track Court and must be tried by the District Judge himself. 11.The perusal of the said decision shows that the aforesaid statutory provision of Sections 12 & 13 of the Bombay Civil Court Act as well as Section 4(3)(ii) of the Gujarat Civil Court Act were not brought to the notice of the Court. It appears that since the attention of the Court was not drawn, the Court had no occasion to consider the aforesaid statutory provision and therefore, the view taken by this Court in the case of Dhirsinhbhai Karsanbhai Barad (supra) can be said as per incurrium. In view of the above, the said decision is of no help to the petitioner. SCA/17337/2006 9/10 JUDGMENT 12.The learned counsel for the petitioner also referred to the another decision of this Court in the case of Cadila Healthcare Ltd. Vs. Lupin Laboratories Ltd. & Anr. reported at 2006 (2) GLH 454 and submitted that as per the view taken by this Court in the said Judgement, the Fast Track Courts are held as having power to try the Suit under the Trade Marks Act, 1999, at par with the District Judge of the district. 13.It is true that the ultimate view taken in the said decision is in conformity with the aforesaid statutory provisions of the Bombay Civil Court Act read with the provisions of Gujarat Civil Court Act, but there is no express reference to the aforesaid statutory provision. It appears that in the said decision, Court considered the Scheme and manner of appointment of Presiding Officers of Fast Track Courts. Even otherwise also, the Judgement is not of any help to the petitioner since the petitioner contended before the Lower Court otherwise that the Court of the Additional District Judge and Fast Track Court has no power to try the application under Section 72 of the BPT Act. 14.It appears that the learned Additional District Judge and the Presiding Officer of the Fast Track Court while passing the impugned order below Exh.89 has not examined the aforesaid aspects and has proceeded on the general SCA/17337/2006 10/10 JUDGMENT analogy. However, even if the contention of the petitioner is examined and considered, it appears that as per the above referred observations and statutory provisions, the Court of the Additional District Judge and Presiding Officer of the Fast Track Court are having power to discharge all or any of the functions of the District Judge under any other law for the time being in force, which the Principal District Judge may assign to him and they are competent to exercise all powers of the Court of District Judge in such matters. In the present case, as the Principal District Judge has assigned the matter to the Additional District Judge and the Presiding Officer of the Fast Track Court, it cannot be said that he has no jurisdiction or competence to entertain the matter. Hence, the application can be said as rightly rejected by the learned Additional District Judge and the Presiding Officer of the Fast Track Court. 15.In the result, the petition is meritless and therefore dismissed. Interim relief vacated. Notice discharged. No order as to costs. (JAYANT PATEL, J.) *bjoy