KAMALSHA GULZARSHA Vs. CHARITY COMMISSIONER

JUDGEMENT

(1.) This Letters Patent Appeal has been directed against the orders pronounced by the learned single Judge in Appeal from Order No. 99 of 1982, dated 1/02/1984.

(2.) The Charity Commissioner had presented the plaint before the learned Extra Assistant Judge, Junagadh on 12/12/1982 in Trust Suit No. 1 of 1979. The prayers asked for in the said suit are as follows:

(3.) The case taken up by the Charity Commissioner in the suit is to the effect that original defendant No. 1, Kamalsha Gulzarsha, happens to be the sole trustee of the Trust registered at No. B-242/Junagadh under the Bombay Public Trusts Act, 1950. The said Trust owned a piece of land, bearing Survey No. 204, situated within the city limits of Junagadh and that defendant No. 1 had submitted necessary application for the previous sanction under Sec. 36 of the Act for the sale of the ahovesaid piece of land. The sanction, as prayed for was granted subject to certain conditions and ultimately, the necessary sale deed was executed by the defendant No. I in favour of defendant No. 2. It was the case of the Charity Commissioner that, upon making enquiry on the basis of certain applications received by his office it was noticed that the sanction to sell the property under Sec. 36 of the Act was obtained fraudulently and that the sale was made in violation of the conditions imposed by his Office. According to him, as a matter of fact there was no existing liability against the Trust and that there was no genuine need for the disposal of the Trust property for discharging the liability of the Trust and that the public auction was also not held. It is on these broad facts that the suit of the Charity Commissioner was based praying for the prayers already noticed. The learned Extra Assistant Judge, by his orders dated 18th December, 1981, had come to the conclusion that his Court had no jurisdiction to hear and decide the suit. Therefore, the plaint was ordered to be returned to the plaintiff- Charity Commissioner for the presentation before the proper Court. The abovesaid orders were carried further by filing Appeal from Order No 99 of 1982 before this Court. The learned single Judge has taken the view that the case would be covered within the purview of Sec. 50 of the Act and, therefore, the plaint ought not to have been returned. The abovesaid orders of the learned single Judge are in challenge in the present Letters Patent Appeal before us.