Gujarat High Court
Goswami Vithalnathji ... vs Thrid Extra Assistant Judge Juagadh ... on 4 July, 2014
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/5147/2005 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5147 of 2005
=================================================
GOSWAMI VITHALNATHJI VRAJBHUSHANLALJI MAHARAJ....Petitioner(s)
Versus
THRID EXTRA ASSISTANT JUDGE JUAGADH DISTRICT COURT & 3....Respondent(s)
=================================================
Appearance:
MR ASHISH H SHAH, ADVOCATE for the Petitioner(s) No. 1
MR.ALPESH BHATT, AGP for the Respondent(s) No. 2 - 3
MR RC KAKKAD, ADVOCATE for the Respondent(s) No. 4
RULE SERVED for the Respondent(s) No. 2 - 4
RULE UNSERVED for the Respondent(s) No. 1
=================================================
CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 04/07/2014
ORAL ORDER
1. Challenge in this petition filed under Article 226 of the Constitution of India is against the order dated 20.01.2005 passed by Third Extra Assistant Judge, Junagadh in Civil Misc. Application No.85 of 2003 preferred by the petitioner against the order dated 16.05.2003 passed by Joint Charity Commissioner, Rajkot, in Appeal No. 2 of 2000 preferred by the petitioner against the order of the Assistant Charity Commissioner rejecting the change report No.88 of 1997 filed by the petitioner.
2. Before this petition could be heard on merits, learned advocate Mr.R.C.Kakkad appearing for respondent No.4 raised objection against the maintainability of the present petition by submitting that against the impugned order remedy of statutory appeal is available under Section 72(4) of Bombay Public Trust Act, 1950 ( 'the Act' for short). Mr.Kakkad submitted that the petition was admitted ex-parte and therefore, it is always open to the respondents including the respondent No.4 to raise the contention about the maintainability of the petition. Learned advocate Mr.Kakkad further canvassed additional point for not examining the impugned order on merits to the effect that during pendency of the present petition, the Assistant Charity Commissioner accepted the change report No. 168 of 1987 of Page 1 of 4 C/SCA/5147/2005 ORDER the respondent No.4 and ordered to enter his name as trustee in the P.T.R. Mr.Kakkad has tendered copy of the said order dated 10.02.2009 passed in change report No.168 of 1987 for perusal of the Court.
3. Learned advocate Mr.Champaneri appearing for Mr.Ashish H.Shah for the petitioner could not dispute the availability of statutory remedy of appeal under Section 72(4) of the Act against the impugned order. Learned advocate Mr.Champaneri however stated that from the title of the above order dated 10.02.2009 in the change report No.168 of 1987, it does not appear that the petitioner was a party in the said change report.
4. Section 72 of that Act is as under:-
"72. Application from Charity Commissioner's decision under section 40, 41, [50A], [70 or 70A] etc. - (1) Any person aggrieved by the decision of the Charity Commissioner under section 40, 41, [50A], [70 or 70A] or on the questions [whether a trust exists and whether such trust is a public trust] or whether any property is the property of such trust [x x x] may, within sixty days from the date of the decision, apply to the court to set aside the said decision.
[(1A) No party to such application shall be entitled to produce additional evidence, whether oral or documentary, before the Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause the court thinks it necessary to allow such additional evidence:
Provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission.] (2) The Court after taking [evidence if any,] may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances.
(3) Pending the disposal of an application under sub-section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order.Page 2 of 4 C/SCA/5147/2005 ORDER
(4) An appeal shall lie to the High Court against the decision of the court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies."
[Explanation.-In this section, the expression "decision" shall include a scheme framed or modified under section 50A]
5. There is no dispute about the fact that the decision challenged before the Court of Third Extra Assistant Judge, by way of Civil Misc. Application No.85 of 2003 was made under Section 70(1) of the Act. Against the order passed in such application, statutory remedy of appeal is available to the petitioner under sub Section (4) Section 72 of the Act before this Court.
6. The Court is therefore, of the opinion that in view of availability of adequate and efficacious remedy of the statutory appeal to the petitioner under Section 72(4) of the Act against the impugned order and since the petition was admitted ex-parte, the petitioner is required to be relegated to avail of alternative remedy of appeal. Mr.Kakkad has also urged that there are concurrent findings by Court and the authorities below and therefore, this Court may also not interfere with the finding recorded by the Court and authorities below while exercising the power under Article 226 of the Constitution of India. However, such contention is not required to be examined as the petitioner is being relegated to alternative remedy of appeal.
7. In the case of Seth Chand Ratan versus Pandit Durga Prasad (D) by LRS. and others, reported in (2003) 5 SCC 399, Hon'ble Supreme Court has observed in paragraph Nos. 13 and 14 as under:-
"13. Even otherwise, the view taken by the Division Bench of the High Court for repelling the objection of the appellant regarding the maintainability of the writ petition that an alternative remedy does not divest the High Court of its powers to entertain petitions under Articles 226 and 227 of the Constitution, has hardly any application on the facts of the present case. It has Page 3 of 4 C/SCA/5147/2005 ORDER been settled by a long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience and discretion and the court may in exceptional cases issue a discretionary with of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation or rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. In the present case, the alternative remedy of challenging the judgment of the court was not before some other forum or tribunal. On the contrary, by virtue of sub-section (3) of Section 27 of the Act, the order passed by the court amounted to a decree against which an appeal lay to the High Court. When the party had statutory remedy of assailing the order passed by the District Court by filing an appeal to the High Court itself, he could not bypass the said remedy and take recourse to proceedings under Articles 226 and 227 of the Constitution. Such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fee or deposit of some amount or fulfilment of some other conditions for entertaining the appeal.
14. For the reasons stated, we are clearly of the opinion that the High Court committed manifest error of law in entertaining and allowing the writ petition filed by Pandit Durga Prasad and, therefore, orders passed by the learned Single Judge on 2-9-1994 and by the Division Bench in letters patent appeal on 7-3-1995 are liable to be set aside."
8. In view of the above, the petition is not entertained and hence, stands dismissed only on the ground of availability of statutory remedy of appeal to the petitioner. It will be open to the petitioner to avail of such remedy under Section 72(4) of the Act. Rule is discharged. Interim relief stands vacated.
(C.L.SONI, J.) dharmendra Page 4 of 4