KIRITKUMAR CHIMANLAL SHELAT Vs. SHARADKUMAR FULABHAI PATEL

JUDGEMENT

(1.) The petitioner has filed this petition under Article 226 of the Constitution of India challenging the legality and validity of the order dtd. 29.11.2002 passed by the Learned Joint Charity Commissioner, Gujarat State, Ahmedabad in Misc. Judicial Application No. 05/2002, which was renumbered as Misc. Judicial Application No. 13/2002, on transfer of the proceedings from Baroda to Ahmedabad. The petitioner has challenged the said order on the ground that the Learned Joint Charity Commissioner has no jurisdiction or authority to hear and pass the impugned order in as much as the proceedings which were initiated by the respondent No.1 and are subject matter of transfer in this petition, have originally been instituted before the Joint Charity Commissioner, Baroda, which subsequently came to be transferred to the Charity Commissioner, Ahmedabad and the Charity Commissioner has, though there is no provision under the provisions of Bombay Public Trust Act, 1950 (hereinafter referred to as "The Act") to transfer the proceedings pending before him to another Charity Commissioner, by order dtd. 07.05.2002 transferred the judicial proceedings to the Joint Charity Commissioner, Ahmedabad in violation of the provisions contained in Section 69 of the Act read with Rule 36 of the Bombay Public Trust (Gujarat) Rules, 1961, which only empowers the Charity Commissioner of the State to transfer the judicial proceedings from one Deputy or Assistant Charity Commissioner to another Deputy or Assistant Charity Commissioner, but he has no power to transfer the judicial proceedings or judicial proceedings of coordinate authority either pending before Charity Commissioner or pending before Joint Charity Commissioner. The petitioner has, therefore, sought for the declaration from this Court to the effect that the Joint Charity Commissioner, Ahmedabad has no power, authority or jurisdiction to hear and decide the Original Application No. 05/2002 as the Act does not empower the Charity Commissioner to transfer the judicial proceedings, without express authorization by Notification in the Official Gazette by the State Government. The petitioner has further sought for the declaration that direction No. 6 contained in the operative portion of the impugned order dtd. 29.11.2002 passed by the Joint Charity Commissioner, Ahmedabad is without any authority, jurisdiction or power as the same is neither prayed for by the respondent No.1 nor the Joint Charity Commissioner was called upon to decide the same. The petitioner has also challenged the impugned order on merits by contending that the Joint Charity Commissioner, Ahmedabad has exceeded his jurisdiction in deciding the issues which were subject matter of the proceedings before the Assistant Charity Commissioner, Nadiad and thereby have taken away the right of appeal from the parties against any adverse decision of the lower authority, as the Joint Charity Commissioner being an Appellate Authority, under any decision which may be taken by the Assistant Charity Commissioner, Nadiad.

(2.) The brief facts giving rise to the present petition are that the petitioner is one of the Trustees of the Trust, namely,Sharda Education Trust. The trust was established with an object to extend the educational facilities of secondary education in surrounding villages of Anand town. Prior to the registration of the school, the trustees were running primary and middle school. In the year 1999, there were five trustees of the Trust. However, the Managing Trustee, namely, Shri Chhotabhai Somabhai Patel expired on 19.04.2001 and another trustee, namely, Shri Chandulal Chunilal Trivedi expired on 30.03.2000 and, therefore, out of the remaining three trustees, two trustees, namely, the petitioner and one Shri Harshadkumar Chhotabhai Patel called for requisition meeting vide requisition dtd. 20.04.2001 and as per the agenda in the meeting which was scheduled to be held on 21.05.2001, the appointment of the Managing Trustee was to be made. The said requisition was not signed by the respondent No.1 who is also one of the trustees of the said trust. On receipt of the agenda of the meeting, the respondent No.1 filed Civil Suit in the court of Civil Judge (J.D.), Anand being Civil Suit No. 158/2001 interalia challenging the holding of meeting on 21.05.2001 for appointment of Managing Trustee. In the said suit, Civil Court granted status quo so far as requisition meeting was concerned. The petitioner raised the question of jurisdiction in the said suit and that suit is still pending. The petitioner and another trustee by majority thereafter called for the meeting on 03.06.2001 for the appointment of new trustees. The respondent No.1 however did not remain present in the said meeting. In the said meeting, six new trustees were appointed. Thereafter, another meeting was called for on 16.06.2001 and out of nine trustees, except the respondent No.1, all other eight trustees remained present in the meeting and vide Resolution No.2 passed in the said meeting, it was unanimously resolved that the petitioner was appointed as Managing Trustee of the Trust. Necessary Change Report was submitted before the Assistant Charity Commissioner, Nadiad on 14.08.2001 and another Change Report making appointment of the new trustees was also submitted to the Assistant Charity Commissioner, Nadiad. Thereafter, respondent No.1 filed an application on 27.02.2002 under Section 41 (A) of the Act after a period of six months before the Joint Charity Commissioner, Baroda interalia praying for various relief including the relief that the petitioner be restrained from acting as Managing Trustee of the trust and he may be declared as an administrative trustee of the trust.

(3.) At the relevant time, one Mr. Amrish Upadhyay was the Joint Charity Commissioner, Baroda and since he was previously an employee of the school run by the trust, he could not take up the matter and hence, he addressed a letter to the incharge Charity Commissioner to transfer the said matter to some other authorities. Thereafter, he being incharge Charity Commissioner passed an order on 07.05.2002 transferring the Misc. Judicial Application No. 5/2002 pending before the Joint Charity Commissioner, Baroda to the Joint Charity Commissioner, Ahmedabad. After the transfer of the said proceeding to the Joint Charity Commissioner, Ahmedabad, an application was moved by one another trustee to be impleaded as party respondent and while rejecting the said application, the Joint Charity Commissioner, Ahmedabad vide his order dtd. 18.05.2002 held that looking to the provisions of Section 69 and provisions of rule 36, the Charity Commissioner of Gujarat State has not been conferred with the power to transfer judicial proceedings from one Joint Charity Commissioner to another Joint Charity Commissioner.