CHIKHLI EDUCATION SOCIETY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The present application is filed for seeking the following main reliefs:

(2.) Brief facts of the case as per the applicants in this application are as such that the Chikhli Education Society is a Trust registered under the Trust Act. It is imparting the education and one of the oldest Trust in the Navsari District in the field of education. It is registered with the in the Office of the Charity Commissioner being Registration No.F2/Navsari. The Trust is running four education schools. The Trust has a school from Jr. Kg to 7 Standard, another School from 8 to 12, another education institution running the course of I.T.I and other educational institution imparting the education in the field of computer education. There are 3500 students and there are 140 employees. It is further the case of the applicants in this application that the Trust is an owner of a land bearing Block No.878 Paiki situated in Samroli Gram Panchayat on a Bilimora- Vansda State Highway. The Managing Committee of the Chikhli Education Society passed the Resolution dtd. 15/5/2001 to construct 18 shops upon the said land for the purpose of sale. The resolution itself says that the Trust can have the financial benefit by selling the shops. It was resolved to get the necessary permission from the office of the Charity Commissioner and the authority is entrusted to the Trustee. It is further the case of the applicants in this application that the Chikhli Education Society made the application trough its authorized officer under Sec. 35 of the Act for the construction of 18 shops upon the land in question. The application states the approximate cost of construction is Rs.13,40,000.00 for constructing 18 shops. The permission is sought for making the investment for construction in the office of the Charity Commissioner. It is further the case of the applicants in this application that the Joint Charity Commissioner, vide order dtd. 5/10/2001 has granted the permission to make an investment in the construction of 18 shops for Rs.13,14,000.00 on the two fold conditions. Firstly, that the necessary permission under Sec. 36 is to be taken before creating any third party interest upon the said construction and secondly upon the construction, necessary change report is to be filed by the Assistant Charity Commissioner, Navsari. It is further the case of the applicants in this application that Chikhli Education Society passed the Resolution dtd. 1/12/2001 to get the permission from the Joint Charity Commissioner under Sec. 36 for the sale of eight shops. It is further the case of the applicants in this application that the Chikhli Education Society through its Trustee made the application to the Joint Charity Commissioner to grant the permission under Sec. 36 for the sale of eight shops. It is further the case of the applicants in this application that the Joint Charity Commissioner, Surat Division Surat, vide order dtd. 17/5/2005 has granted the permission for the sale of eight shops in exercise of power under Sec. 36 of the Act. The advertisement has been issued in the vernacular newspaper for the sale of eight shops. The tender was opened before the Joint Charity Commissioner, Surat, on 6/3/2003. It is submitted that on opening the tender, the Trust received a deposit amount of Rs.11,62,201.00. It is submitted that the Joint Charity Commissioner Surat has passed the order dtd. 17/5/2005 and, thereafter, within a period of six months, the Trust has received Rs.1,01,57,764.00. an amount. From the aforesaid amount so received, the trust has commenced the construction of another 10 shops. It is further the case of the applicants in this application that the Chikhli Education Society has made the another application under Sec. 35 of the Act to get the permission for the another construction of 10 shops made at the cost of Rs.42,57,550.00. It is further the case of the applicants in this application that before making construction, necessary permission has also been sought from the Taluka Panchayat. The Taluka Panchayat, vide order dtd. 25/1/2001, has granted the permission for the construction of the shops upon the land in question. It is further the case of the applicants in this application that the Trust has also filed the Change Report before the Assistant Commissioner. Charity. It is further the case of the applicants in this application that the change report has been allowed by the learned Assistant Charity Commissioner, Navsari vide order dtd. 30/10/2007. The Trust has originally made the application under Sec. 35 for making investment in the construction of 18 shops at the cost of Rs.13,14,000.00 The said application was allowed by the learned Joint Charity Commissioner. However, due to delay in work caused, the objections were raised the cost of construction has been increased. The Trust has made the construction of 8 shops initially and sought permission of the Charity Commissioner for sale of eight shops. The Trust has received the tender deposit of Rs.11,62,201.00 and sale consideration of Rs.1,01,57,764.00. Thereafter the construction of another 10 shops have commenced. Therefore the revised permission under Sec. 35 for the enhance investment has also been made in the year 2011. Due to escalation of price, the another investment of Rs.42,57,550.00is made. For that reason, the application under Sec. 35 has been made in the year 2011. It is further the case of the applicants in this application that certain persons persons have made the application dtd. 15/4/2011 to the Assistant Charity Commissioner raising a complaint alleging the misappropriation of Rs.42,57,550.00. It appears that the learned Charity Commissioner, Gujarat State, has granted the permission to the Assistant Charity Commissioner, Navsari, to do legal procedure as per the law. It is further the case of the applicants in this application that the Joint Charity Commissioner, Surat Division, Surat, vide order dtd. 19/9/2016 has granted the sanction under Sec. 83 of the Act without application of mind. Thereafter, the respondent No.2 herein has filed the Criminal Complaint bearing Criminal Inquiry No.19 of 2016 before the learned Judicial Magistrate First Class, Chikhli, for the offence punishable under Ss. 66 for the violation of Sec. 35 of the Act. Hence, this application is preferred.

(3.) Heard Mr. Arpit A. Kapadia, the learned counsel for the applicants and Mr. Dhawan Jayswal, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State.