Gujarat High Court
Parmeshwardas Guru Jagannathdasji vs State Of Gujarat on 7 December, 2018
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/15920/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15920 of 2018
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PARMESHWARDAS GURU JAGANNATHDASJI
Versus
STATE OF GUJARAT
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Appearance:
MR DIGANT B KAKKAD(6523) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 10,2,3,4,5,6,7,8,9
MS SHRUTI PATHAK, AGP(99) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 07/12/2018
ORAL ORDER
1. This petition is filed under Articles 226 and 227 of the Constitution of India wherein the petitioner has prayed that respondent no.2 be restrained from proceeding with Scheme Application No.5 of 2018 until the criminal proceedings are completed with respect to FIR being C.R.No.I-162 of 2017.
2. Heard learned advocate Mr.Kakkad for the petitioner and learned Assistant Government Pleader Ms.Pathak for respondent nos.1 and 2.
3. It is submitted by learned advocate for the petitioner that the petitioner is Mahant and trustee of Lambey Hanuman Mandir and care-taker of Satyanarayan Temple. He is also Mahant and Page 1 of 7 C/SCA/15920/2018 ORDER trustee of Galeymandir Char Sampraday Mandir which is having registration no.A/679 whereas the respondent nos.3 to 9 are other trustees of Galeymandir Char Sampraday Mandir. It is submitted by learned advocate that after the appointment of the petitioner as Mahant, the respondent nos.3 and 4 had started to harass the petitioner as the illegal income and misappropriation of funds by the respondent nos.3 and 4 had stopped. Because of the illegalities committed by respondent nos.3 and 4, the petitioner had filed FIR being C.R.No.I-162 of 2017 under Sections 406, 420, 467, 468, 471, 504, 506(2) and 120(b) of Indian Penal Code before Mahidharpura police station, Surat. It is submitted that pursuant to filing of said FIR after investigation, chargesheet is filed against the respondent nos.3 and 4.
4. Learned advocate at this stage also pointed out that the petitioner has preferred Miscellaneous Application No.22 of 2016 before Charity Commissioner, Surat under Section 41A of the Gujarat Public Trusts Act, 1950 (hereinafter referred to as `the Act of 1950') for seeking direction against respondent nos.3 and 4 and other trustees for stopping them from illegally disposing off the properties of the trust without passing any resolution. The said application is Page 2 of 7 C/SCA/15920/2018 ORDER disposed off by the incharge Joint Charity Commissioner by an order dated 6.5.2017 with certain directions.
5. In the aforesaid background, it is submitted that now the present private respondents have filed Scheme Application No.5 of 2018 before the Joint Charity Commissioner, Surat under Section 50A of the Act of 1950 for framing the scheme. Learned advocate referred to the copy of the said scheme application which is produced at page 18 of the compilation. It is submitted that when the criminal prosecution is pending against the private respondents, the respondent no.2 be restrained from proceeding further with the aforesaid scheme application submitted by the private respondents otherwise, the petitioner will suffer loss and private respondents may dispose off the properties of the Trust.
6. On the other hand, learned Assistant Government Pleader has opposed this petition and contended that the reliefs prayed for in the present petition may not be granted by this Court. It is submitted that it is open for the petitioner to file a reply in the said application or separate application requesting the same authority to pass appropriate order keeping in view the pendency of the criminal Page 3 of 7 C/SCA/15920/2018 ORDER proceedings against the concerned private respondents. It is submitted that even after the order is passed by the Joint Charity Commissioner in the scheme application, the said order can be challenged before the concerned District Court. Thus, at this stage, this Court may not exercise the powers under Article 226 of the Constitution of India. It is, therefore, urged that this petition be dismissed.
7. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the petitioner has filed FIR being CR No.I-162 of 2017 before the Mahidharpura police station, Surat against respondent nos.3 and 4. The respondent no.3 has also filed FIR being CR No.I- 86 of 2017 against the petitioner and his colleagues. It is further revealed that there is a dispute between the petitioner and other private respondents. The application filed by the petitioner under Section 41A of the Act of 1950 is also disposed off by the incharge Joint Charity Commissioner with certain directions. Now, the scheme application no.5 of 2018 is filed by the private respondents under Section 50A of the Act of 1950. In the said proceedings, the present petitioner is shown as opponent no.1. Thus, the present petitioner is party respondent Page 4 of 7 C/SCA/15920/2018 ORDER in the said proceedings.
8. At this stage, provision contained in Section 50A of the Act of 1950 is required to be referred to which provides as under:
"50-A. Power of Charity Commissioner to frame, amalgamate or modify schemes -(1) Notwithstanding anything contained in section 50, where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, the Charity Commissioner may, if after giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame scheme for the management or and administration of such public trust.
(2) Where the Charity Commissioner is of opinion that in the interest of the proper management or administration, two or more public trusts may be amalgamated by framing a common scheme for the same, he may, after-
(a) publishing a notice in the Official Gazette and also in at least two newspapers (one in English, and the other in the language of the region) with a wide circulation in the region in which the trust is registered, and
(b) giving the trustees of such trusts and also other interested persons due opportunity to be heard, frame a common scheme for the same.Page 5 of 7 C/SCA/15920/2018 ORDER
[(2A) A scheme under this section may provide for the number of trustees, the mode of appointment of trustee including the appointment of the first trustees, vesting of the trust property in the trustees so appointed, mode of filling any vacancy of a trustee the remuneration of a trustee, or manager of the public trust and where necessary, a clarification of the objects of the public trust].
(3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under sub-section (1) or sub-section (2).
(4) The scheme framed under sub-section (1) or sub-section (2) or modified under sub- section (3) shall subject to the decision of the competent court under section 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under section 50]."
From the aforesaid provision, it is revealed that when the scheme application is filed before the Joint Charity Commissioner, the said authority has to give due opportunity of being heard to the concerned trustees and if he is satisfied that it is necessary or expedient to frame the scheme for the management or administration of public trust, he is empowered to pass appropriate order.
9. As observed hereinabove, the petitioner is the respondent in the scheme application filed by the private respondents. Therefore, it is always open for the petitioner to file his reply Page 6 of 7 C/SCA/15920/2018 ORDER in the pending proceedings. It is also open for the petitioner to file a separate application with a relief which is prayed for in the present petition. However, without pointing out the said aspect to the respondent no.2, the present petition is filed before this Court.
10. In view of the aforesaid circumstances, this Court is not inclined to exercise the powers under Article 226 of the Constitution of India and the relief prayed for in the present is not required to be granted at this stage. Accordingly this petition is dismissed with a liberty to the petitioner to point out all these aspects before the respondent no.2 by filing reply or filing separate application. As and when such application is filed by the petitioner before the respondent no.2, the same shall be decided on its own merits and keeping in mind that this Court has not examined the merits of this petition.
(VIPUL M. PANCHOLI, J) SRILATHA Page 7 of 7