SCA/4668/1998 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4668 of 1998 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 ? ========================================================= NIMESH RAJENDRA SHARMA - Petitioner(s) Versus JAYENDRA LAXMISHANKER PATHAK & 5 - Respondent(s) ========================================================= Appearance : M/S.VYAS ASSOCIATES for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1, 4, UNSERVED-EXPIRED (N) for Respondent(s) : 2, 5, RULE UNSERVED for Respondent(s) : 3, GOVERNMENT PLEADER for Respondent(s) : 6, MR MI MERCHANT for Respondent(s) : 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 03/04/2008 ORAL JUDGMENT 1. The petitioner has preferred the petition for SCA/4668/1998 2/5 JUDGMENT challenging the order dated 30.04.1998 passed by the Joint Charity Commissioner below application under Section 41A of the Bombay Public Trusts Act (hereinafter referred to as 'the Act'), whereby, he has vacated the earlier interim order passed by him below application Exh.4 and he further observed that until proper orders are obtained or granted in the proceedings First Appeal No.279/91 pending before this Court, the applicant shall not participate as the Trustee in the Trust. 2. Heard Mr.Vyas for the petitioner. Mr. Merchant for the Joint Charity Commissioner. 3. It appears that it is an admitted position that in respect to the very Trust, the Scheme has been framed by the Charity Commissioner and the Scheme, thereafter was challenged in the Higher Forum, and ultimately, those proceedings were also came to be concluded by confirmation of the Scheme. It is also an admitted position that the matter being First Appeal No.279/91 is pending before this Court, wherein the legality and validity of the Scheme is challenged. 4. The contention of the petitioner appears to be that as the Scheme is uptil now not finalised or that this Court has granted stay in the proceedings of the First Appeal, the petitioner in the capacity as the beneficiary of the Will being successor, would be entitled to collect SCA/4668/1998 3/5 JUDGMENT the rent as per the interim order passed by the Charity Commissioner with the further direction that the amount shall be in the separate Bank account and shall not be used without prior permission of the Charity Commissioner. 5. Mr. Vyas, learned counsel for the petitioner contended that if such interim arrangement which was ordered by the Charity Commissioner was continued, the same would have been in the larger interest of the Trust. He also submitted that by vacating the order, the Charity Commissioner has prejudiced the rights of the petitioner as a Trustee or successor of the Trustee and therefore, the impugned order passed by the Charity may be quashed and set aside. 6. Whereas on behalf of the respondent Charity Commissioner, Mr.Merchant has supported the order passed by the Charity Commissioner. 7. It appears that once the Scheme is framed, the rights of the Trustees of the Trust prior to the framing of the Scheme in normal circumstances would no more remain in operation, unless any interim order is passed by the Forum or the Court which is seized of the proceedings of the Scheme. So far as the Charity Commissioner is concerned, he has already framed the Scheme and the said Scheme is confirmed by one Court and against which, the appeal is preferred and the appeal is pending before this Court. Therefore, SCA/4668/1998 4/5 JUDGMENT even otherwise also, the Charity Commissioner could not have passed any interim order pertaining to the property of the Trust dehors the scheme, nor there was any question for protecting the rights of the trustees which existed prior to the framing of the Scheme. Further, the sound principles of judicial discipline demands that when the higher Court or the higher forum is seized with the proceeding, no interim order should be passed or power would be exercised by the lower authority which may result into either altering the situation or which may result into interference with the proceedings pending before the higher forum, directly or indirectly. Therefore, the Charity Commissioner has rightly observed that until the proper orders are obtained by the petitioner, who was applicant before him from this Court in the proceedings of First Appeal No.279/91, the petitioner cannot be permitted to participate in the functioning or administration of the Trust. 8. Mr.Vyas, learned counsel appearing for the petitioner contended that the Scheme is stayed by this Court in the proceedings of First Appeal No.279/91, whereas, as per Mr. Merchant for respondent No.6 Charity Commissioner, initially the stay was granted and subsequently, not extended and therefore, no stay is in operation. Since neither the petitioner nor the respondent No.6 has produced the copy of the SCA/4668/1998 5/5 JUDGMENT interim order passed in the First Appeal No.279/91, it is not possible for this Court to record the final conclusion on the said aspects, but even if the stay is in operation or is subsequently not extended, the fact remains that this Court is seized with the proceedings of First Appeal No.279/91 pertaining to the Scheme of the Trust. Therefore, it would not be a case for the Charity Commissioner to exercise the power under Section 41A of the Act and thereby, to identify the rights of the successor of the Trustee which no more continued after framing of the Scheme. 9. Even if such rights were to be identified, the same could only be by this Court in the proceedings of First Appeal No.279/91 and not by way of an independent proceedings under Section 41A of the Act. Admittedly, the petitioner has not resorted to any to any proceedings in the First Appeal No.279/91 for claiming rights as the Trustee or successor of the Trustee. Hence, the impugned order passed by the Charity Commissioner cannot be said as arbitrary or without jurisdiction. 10.In view of the above, the petition is meritless. Hence, dismissed. Rule discharged. No order as to costs. (JAYANT PATEL, J.) *bjoy