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1971 DIGILAW 15 (GUJ)

SHUKLA RAMANUJACHARYA GOVINDACHARYA v. N. N. SHAH

1971-02-17

S.H.SHETH

body1971
S. H. SHETH, J. ( 1 ) SHRI Gaushala Hanumanji Shiv Ganpati Temple is a public trust in the City of Ahmedabad. In 1952 an application was made for its registration under the provisions of the Bombay Public Trusts Act 1950 Amongst the properties said to be belonging to that public trust S. No. 568 of Vadaj in the City of Ahmedabad was also shown. ( 2 ) AN inquiry was instituted by the Deputy Charity Commissioner as contemplated by sec. 19 of the said Act. On 29th May 1953 he inter alia found as a result of the said inquiry that the aforesaid S. No. 568 belonged to the said public trust. He therefore registered the said property as a trust property at entry No. 1139 in the public trust register. ( 3 ) THIRTEEN years thereafter in 1969 it appeared to the State of Gujarat that the said S. No. 568 which was registered as a public trust properly in 1953 was a property of the State. Probably because the State was interfering with the possession of that property the petitioner filed Civil Suit No. 208 of 1966 in the City Civil Court at Ahmedabad on 9th February 1966 for declaration of title to the property and for removal of encroachment. That suit is pending on the file of the City Civil Court Ahmedabad. However on 17th October 1968 the City Deputy Collector Ahmedabad made an application on behalf of the State of Gujarat to the Deputy Charity Commissioner praying for the deletion of the said entry No. 1139 from the public trust register for the reasons stated in his application. Notice of that application was served on the petitioner. The petitioner appeared before the Deputy Charity Commissioner and contended that he had no jurisdiction to deal with that application and to grant the prayer made by the City Deputy Collector. He therefore submitted to the Deputy Charity Commissioner an application for raising a preliminary issue for deciding whether he had jurisdiction to entertain that application. ( 4 ) THOUGH a copy of the order made by the Deputy Charity Commissioner has not been produced before me it has been stated in paragraph 9 of the petition that the petitioners application for raising the question of jurisdiction as a preliminary point was rejected by the Deputy Charity Commissioner by his order dated 22nd October 1970. ( 4 ) THOUGH a copy of the order made by the Deputy Charity Commissioner has not been produced before me it has been stated in paragraph 9 of the petition that the petitioners application for raising the question of jurisdiction as a preliminary point was rejected by the Deputy Charity Commissioner by his order dated 22nd October 1970. Before the Deputy Charity Commissioner could proceed with that application and decide whether he had jurisdiction to entertain it or before he could decide the case on merits the petitioner approached this High Court and filed this petition under Article 226 for a writ of prohibition against the Deputy Charity Commissioner on the ground that there is patent lack of jurisdiction in the Deputy Charity Commissioner to entertain that application. ( 5 ) MR. Shah appearing for the petitioner has contended that under the provisions of the Bombay Public Trusts Act 1950 the Deputy Charity Commissioner has no jurisdiction to entertain any such application and that therefore there is a patent lack of jurisdiction in him to proceed with the application. In his submission therefore the Deputy Charity Commissioner should be by an appropriate writ of this court prohibited from proceeding with the application. ( 6 ) IN reply Mr. Shelat appearing on behalf of the City Deputy Collector has contended that the Deputy Charity Commissioner has not recorded any decision as to whether he has jurisdiction or not to entertain the said application and that this court should not interfere before the Deputy Charity Commissioner has decided the question relating to his own jurisdiction. ( 7 ) MY attention has been invited to the decision of this High Court in Patel Ratnabhai Ukabhai v. Rupjibhai Fuljibhai Valvi and others IX Gujarat Law Reporter 847. In that case a Division Bench of this High Court has laid down that where there is patent lack of jurisdiction and the court is immediately satisfied that the inferior court or authority has exceeded its jurisdiction the court will very readily interpose and the writ would go almost as a matter of course unless any irresistible case for withholding it is made out. it has been further laid down in that decision that if there is patent lack of jurisdiction in a court or in a quasi judicial tribunal to entertain the proceedings the High Court will not refuse to issue writ of prohibition merely on the ground that the question of jurisdiction can as well be agitated by the petitioner and decided by the court or the tribunal whose jurisdiction is challenged. ( 8 ) IN Amirkhan F. Pathan v. State of Gujarat and others 7 Gujarat Law Reporter 56 another Division Bench of this High Court has in the matter of writ of prohibition observed as under. IF the authority or the tribunal concerned has no jurisdiction whatsoever the authority as was done in Santaram Salvis case may be prohibited by a writ of prohibition. But once it is held that the authority has jurisdiction there is no reason why at an interim stage the Court should withdraw the proceedings from the hands of the tribunal concerned and prevent the tribunal or authority from taking a decision on the defects relied upon by the delinquent. ( 9 ) THESE two decisions make it quite clear that unless there is a patent lack of jurisdiction in a Court or a tribunal whose jurisdiction is challenged in a particular matter this Court will not interfere at an interim stage and withdraw the proceedings from that Court or tribunal. Unless I record the conclusion that there is no patent lack of jurisdiction I cannot refuse to the petitioner a writ of prohibition. ( 10 ) THE question therefore which I am called upon to consider is whether there is patent lack of jurisdiction in the Deputy Charity Commissioner to entertain the application made by the City Deputy Collector so as to enable me to interfere with the proceedings at an interim stage. The application which has been made in terms states that Inquiry No. 6470 of 1952 was made in the matter of this public trust and its properties and by an order dated 29th May 1953 S. N. 568 of Vadaj in the City of Ahmedabad was registered as a public trust property. The application which has been made in terms states that Inquiry No. 6470 of 1952 was made in the matter of this public trust and its properties and by an order dated 29th May 1953 S. N. 568 of Vadaj in the City of Ahmedabad was registered as a public trust property. The very fact that S. No. 568 of Vadaj in the City of Ahmedabad has been registered as a public trust property and the very fact that an entry has been made in that behalf in the public trust register presuppose beyond doubt that inquiry as contemplated by sec. 19 of the Bombay Public Trusts Act was made by the Deputy Charity Commissioner that he had recorded a finding in that behalf as contemplated by sec. 20 of the said Act and that the entry was made in pursuance of the powers conferred upon him by sec. 21 of the said Act. If that is the situation the question before me is whether the Deputy Charity Commissioner has jurisdiction to entertain the present application and to delete or cancel that entry from the public trust register. Sec. 22a of the Bombay Public Trusts Act 1950 to which Mr. Shah has invited my attention provides that if at any time after the entries are made in the register under sec. 21 or 22 it appears to the Deputy or Assistant Charity Commissioner that any particular relating to any public trust which was not the subject matter of the inquiry under sec. 19 or sub-sec. (3) of sec. 22 as the case may be has remained to be inquired into the Deputy or Assistant Charity Commissioner as the case may be may make further inquiry in the prescribed manner record his finding and make entry in the register in accordance with the decision arrived at or if appeal or application has been made as provided by the Act in accordance with the decision of the competent authority provided by the Act. Sec. 22a applies to cases as its language clearly shows where any particular relating to any public trust was not the subject matter of the inquiry under sec. 19 or sub-sec. (3) of sec. 22 as the case may be and in respect of which an inquiry is required to be made. It is only in such cases that sec. Sec. 22a applies to cases as its language clearly shows where any particular relating to any public trust was not the subject matter of the inquiry under sec. 19 or sub-sec. (3) of sec. 22 as the case may be and in respect of which an inquiry is required to be made. It is only in such cases that sec. 22a empowers the Deputy Charity Commissioner to make further inquiry into the matter. In this case as I have stated in the forgoing paragraphs an inquiry was made under sec. 19 in relation to S. No. 568 and it was registered as a public trust property. It was the subject matter of inquiry and no fresh inquiry in relation thereto can be made by the Deputy Charity Commissioner now. In my opinion there fore under sec. 22a the Deputy Charity Commissioner has no jurisdiction to entertain the application made by the City Deputy Collector on 17th October 1968 ( 11 ) MR. Shelat has invited my attention to sec. 22 of the Bombay Public Trusts Act 1950 It deals with the subject of changes. The scheme of sec. 22 as reunderstand it is entirely different. It presupposes the occurrence of a change and an inquiry to be instituted in order to determine the facts relating to the change and then to cause the necessary amendment to be made in the public trust register pursuant to the finding recorded in relation to a change. Sec. 22 does not contemplate an inquiry to be made by the Deputy Charity Commissioner for bringing about a change. That is exactly what the City Deputy Collector wants the Deputy Charity Commissioner to do by the present application. Sec. 22 of the Bombay Public Trusts Act therefore in my opinion has no application to the facts of the present case. No other provision has been brought to my notice to show whether the Deputy Charity Commissioner has jurisdiction to review his own order or to hold an inquiry again into the matter in which he has already inquired and in respect of which he has recorded his finding and made necessary entry in the public trust register. In my opinion therefore for the reasons stated above the Deputy Charity Commissioner has no jurisdiction whatsoever to entertain the application made by the City Deputy Collector on 17th October 1968. In my opinion therefore for the reasons stated above the Deputy Charity Commissioner has no jurisdiction whatsoever to entertain the application made by the City Deputy Collector on 17th October 1968. This is therefore a fit case to issue a writ of prohibition prohibiting him from proceeding with that application further. ( 12 ) IN the result the petition succeeds. I direct that a writ of prohibition shall Issue prohibiting the Deputy Charity Commissioner Ahmedabad from proceeding with the application made by the City Deputy Collector on 17th October 1968 in the matter of S. N. 568 of Vadaj in the City of Ahmedabad annexed at Ex. A to the petition. Rule is made absolute. The respondent No. 2 to pay the costs of this petition to the petitioner. .