SHAH SEVANTILAL DALSUKHRAM Vs. PATEL MITHABHAI TRIBHOVANDAS

JUDGEMENT

(1.) This appeal is filed against an interin order passed by the learned single Judge in Special Civil Application No. 1967 of 1998 on July 2, 1998. The said order reads as under : "Heard learned Advocate Mr. Sejpal on behalf of the petitioner, learned A.G.P. Ms. Talati on behalf of respondents Nos. 1 and 2 and learned Advocate Mr. Merchant though notice is not issued to respondent No. 3, voluntarily appeared. Admit. Rule returnable on 15th July, 1998. Till then, the proceedings before the Assistant Charity Commissioner under Sec. 22 of the Bombay Public Trusts Act are stayed. At this stage, learned Advocate Mr. Merchant requests for stay of this order which is rejected." An inquiry under Sec. 22 of Bombay Public Trusts Act, 1950 (hereinafter referred to as "the Act") is pending before the Assistant Charity Commissioner, Mehsana. Since inquiry is under Sec. 22 read with provisions of Sec. 64 of the Act, ft has to be conducted by the Deputy Charity Commissioner, Assistant Charity Commissioner or Charity Commissioner, as the case may be, in accordance with the provisions of the Bombay Public Trusts Rules (hereinafter referred to as "the Rules") by taking assistance of assessors. Chapter IX of the Act provides for list of assessors, persons summoned to attend at the time and place specified cases in which assessors shall be summoned, etc. Section 65 provides for number of assessors to be called, and eventualities where assessors are not able to attend or are prevented from attending at the time of hearing before the Charity Commissioner, Deputy Charity Commissioner or Assistant Charity Commissioner. It is an admitted position that a list of assessors prepared by the office of respondent No. 2 has come to an end and no new list is prepared. The inquiry relates to Sec. 22 which requires help of assessors. The question, therefore, before the Assistant Charity Commissioner was as to what should be done in such matters. By an order dated January 31, 1998, the Assistant Charity Commissioner directed both the parties to submit names of assessors so that an appropriate decision for appointment of assessors can be taken by him on the returnable date. The said order was challenged before the learned single Judge. Learned single Judge has stayed the order passed by the Assistant Charity Commissioner, Mehsana.

(2.) On October 13, 1999, notice was issued by the Division Bench for admission as well as final hearing by making it returnable on November 1, 1999. Today, we have heard the parties.

(3.) Mr. Merchant for the appellants contended that an error of law has been committed by the learned single Judge in granting interim relief by which the inquiry under Sec. 22 is stayed. He submitted that the legislature has provided an answer of such situation in sub-sec. (4) of Sec. 65. Sub-section (4) of Sec. 65 is relevant which reads thus :