Research › Search › Judgment

Gujarat High Court · body

2011 DIGILAW 36 (GUJ)

UMESH D. KARKERA v. JOINT CHARITY COMMISSIONER

2011-01-20

RAVI R.TRIPATHI

body2011
JUDGMENT 1. Heard learned Advocate Mr.S.P.Majmudar for the petitioners, learned Advocate Mr.Harshadray A.Dave, appearing on caveat, for respondent No. 2 and Mr.N.K.Majmudar for respondent No.3 Learned Advocate Mr.N.K.Majmudar for respondent No.3 submitted that respondent No.3 – Smt.Sushila V.Rao has signed his vakalatnama as President of Adarsh Education Society. He submitted that his vakalatnama is also signed by one another person, but his signature being illegible, he is not able to make out the name, but he has described himself as Secretary of the said Trust. 2. The facts of the case are very strange. Respondent No.2 herein – Mukeshbhai Mohanbhai Jariwala is guardian of two children, who are studying in a school (New Model High School) run by Adarsh Education Society. He is claiming to be the beneficiary of the Trust. He filed an application being Misc.Application No.32 of 2009 under Section 41A of the Bombay Public Trusts Act (“the Act”, for short) before the learned Joint Charity Commissioner, Surat, making various averments and praying that, respondent Nos.5 and 6 in that application being Kanaiyalal Champakbhai Chevli, President of New Ashirvad Co-Op. Housing Society Ltd. and Rajendrakumar Manilal Patel, Secretary of Ashirvad Co-Op. Housing Society Ltd. may not sale, mortgage, gift, transfer or assign the land bearing revenue survey No.44 paiki admeasuring 3106.59 sq. ft. in collusion with respondent Nos.1 to 4 of that application, who are the Trustees of Adarsh Education Society. This application was filed on 11.11.2009. By judgment and order dated 14.09.2010, learned Joint Charity Commissioner allowed that application. That judgment and order dated 14.09.2010 is under challenge in this petition. 3. The matter requires consideration. RULE. Learned Advocate Mr.Harshadray A.Dave waives service of Rule on behalf of respondent No.2 and learned Advocate Mr.N.K.Majmudar waives service of Rule on behalf of respondent No.3. At the request of the learned Advocate for the petitioners, to which learned Advocates for respondent No.2 and respondent No.3 do not have any objection, the matter is taken up for final hearing. 4. Learned Advocate for the petitioners invited attention of the Court to the order passed by the learned Joint Charity Commissioner. By that order, the learned Joint Charity Commissioner granted application filed by respondent No.2 herein and while granting the application, issued certain directions /instructions. Instruction No.1 is that, “the land bearing revenue survey No.44 paiki, admeasuring 3106.57 sq. ft. 4. Learned Advocate for the petitioners invited attention of the Court to the order passed by the learned Joint Charity Commissioner. By that order, the learned Joint Charity Commissioner granted application filed by respondent No.2 herein and while granting the application, issued certain directions /instructions. Instruction No.1 is that, “the land bearing revenue survey No.44 paiki, admeasuring 3106.57 sq. ft. of village Udhana, sub-district Choryashi, Dist.: Surat is of the ownership and in possession of the Trust and it is established that the aforesaid property is purchased by the Trust. Respondent Nos.1 to 4 are directed not to transfer the land in any manner to any person without the prior permission of the office of the Joint Charity Commissioner”. (emphasis supplied) 4.1 Learned Advocate for the petitioners submitted that the Trust, though was a party before the learned Joint Charity Commissioner, could not establish that the land is purchased by the Trust, because the only document, which is produced as 'title document', is an 'agreement to sale', a copy of which is produced at Annexure-C, page No.47. It is dated 07.03.2003. It is on stamp paper of Rs.50. Learned Advocate for the petitioners submitted that it is shocking that none other than the learned Joint Charity Commissioner has held, on the basis of the aforesaid document, that, 'the land is purchased by the Trust'. Learned Advocate for the petitioners submitted that if at all the Trust is claiming ownership of the land, it is required to establish this fact before a competent Civil Court by leading necessary evidence which will be appreciated by the competent Civil Court, subject to the right of the petitioner to rebut such evidence. This fact cannot be established by getting an application made by a guardian of the children studying in a school run by the Trust under Section 41A of the Act. 5. Learned Advocate for respondent No.2 vehemently submitted that respondent No.2 is a beneficiary of the Trust. He submitted that it being a Public Trust, every member of the public has an interest in the property of the Trust and according to him, this property is that of the Trust and the Trust is in possession of the property and therefore, respondent No.2 had rightly approached the learned Joint Charity Commissioner by filing application under Section 41A of the Act. 6. 6. Learned Advocate for respondent No.3, who has claimed herself to be the President of Adarsh Education Society, submitted that the Trust has maintained silence before the learned Joint Charity Commissioner, but then the directions are issued in favour of the Trust and the Trust has no reason to assail them. 7. Learned Advocate for respondent No.3 has no other option then to agree to a proposition of law that, 'by a document at Annexure-C, page No.47, on stamp paper of Rs.50, no title can be said to have been acquired by the Trust'. 7.1 That being so, the petition is allowed. The judgment and order passed by the learned Joint Charity Commissioner in Misc.Application No.32 of 2009 dated 14.09.2010 is quashed and set aside. Rule is made absolute. No costs. However, at the request of the learned Advocates for respondent No.2 and respondent No.3, it is clarified that quashing of this order will not be construed to mean that they have no right to seek a direction from the competent Civil Court that the land in question is that of the Trust. It will be open for respondent Nos.2 and 3 to approach the competent Civil Court for appropriate remedy. It goes without saying that in the event, they approach the competent Civil Court, it will decide the matter, strictly in accordance with law. 8. Registry is directed to accept vakalatnama of learned Advocate Mr.N.K.Majmudar for respondent No.3.