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Gujarat High Court

Budhiyabhai Parshottambhai ... vs Nathubhai Abdubhai Thorat & on 19 June, 2014

Author: Akil Kureshi

Bench: Akil Kureshi

         C/LPA/288/2014                                 ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              LETTERS PATENT APPEAL NO. 288 of 2014

          In SPECIAL CIVIL APPLICATION NO. 7621 of 2013

                                 With
                   CIVIL APPLICATION NO. 2198 of 2014
                                   In
              LETTERS PATENT APPEAL NO. 288 of 2014
                                 With
              LETTERS PATENT APPEAL NO. 317 of 2014
                                   In
            SPECIAL CIVIL APPLICATION NO. 7622 of 2013
                                 With
                   CIVIL APPLICATION NO. 2317 of 2014
                                   In
              LETTERS PATENT APPEAL NO. 317 of 2014
                                 With
              LETTERS PATENT APPEAL NO. 385 of 2014
                                   In
            SPECIAL CIVIL APPLICATION NO. 7620 of 2013
                                 With
                   CIVIL APPLICATION NO. 2902 of 2014
                                   In
              LETTERS PATENT APPEAL NO. 385 of 2014
================================================================
     BUDHIYABHAI PARSHOTTAMBHAI PARSIMEHTA....Appellant(s)
                          Versus
        NATHUBHAI ABDUBHAI THORAT & 1....Respondent(s)
================================================================
Appearance:
MR MANAN A SHAH, ADVOCATE for the Appellant(s) No. 1
MR KK TRIVEDI, ADVOCATE for the Respondent(s) No. 1
MR NIRAJ V ASHAR, ADVOCATE for the Respondent(s) No. 2
================================================================

        CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
               and


                                Page 1 of 5
              C/LPA/288/2014                                                     ORDER



                       HONOURABLE MR.JUSTICE MOHINDER PAL

                                      Date : 19/06/2014


                                       ORAL ORDER

(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)

1. Since facts are similar we may notice as arising in Letters Patent Appeal No.288 of 2014. The appellant, petitioner has challenged the judgment of the learned Single Judge dated 16.7.2013 in Special Civil Application No.7620 of 2013.

2. Issues pertain to change reports which are pending before the Charity Commissioner which the petitioner opposes. Case of the petitioner is that these change reports pertain to the elected trustees of the trust. Tenure of such elected trustees is for a period of 2 years. Such period being over, there would be no useful purpose now surviving for effecting the change.

3. On 5.8.2010, one Rameshbhai Navsubhai Gavit, had made an application before the Assistant Charity Commissioner, Navsari requesting that by afflux of time, the change reports have become redundant and therefore, same may be dismissed. On such application, Assistant Charity Commissioner had passed an order on 8.2.2011 dismissing the objections primarily on the ground that name of said Shri Rameshbhai Navsubhai Gavit did not appear in the PTR. He, therefore, had no right to make such application.

Sometime thereafter, present petitioner filed the objections to the same change reports on 22.9.2011. In such application, the main ground taken was that by way of afflux of time, changes have become redundant. Change reports have, therefore, become purely academic and therefore, be rejected without consideration. On such objection, the Assistant Charity Commissioner, Navsari passed order dated 22.11.2012. He rejected the objections on the ground that previously application of another Rameshbhai Navsubhai Gavit was dismissed. Said application also involved same issues. The objection application of the present applicant is, therefore, hit by res- judicata. The petitioner challenged such order of the Assistant Charity Commissioner dated 22.11.2012 before this Court. Learned Single Judge dismissed the petition on the twin grounds of petitioner's previous application having been turned down and his name is not appearing in the PTR. It is this order of the learned Single Judge which the petitioner has challenged in the LPA.

4. Facts are similar in other appeals as well.

5. Having heard learned counsel for the parties. we do agree with the suggestion of Mr.Manan Shah, learned advocate for the appellant that Charity Commissioner gave incorrect reasons for turning down the objections of the petitioner. The previous application was filed by another person, namely, Rameshbhai. Name of present petitioner was included Page 3 of 5 C/LPA/288/2014 ORDER in the PTR. Therefore, his objections could not have been turned down either on the ground of res- judicata, since he was not the applicant in the previous proceedings, nor the reasons set out in the earlier order of Assistant Charity Commissioner that objectors name did not appear in PTR would apply to the petitioner. However, we are not inclined to interfere in the present proceedings in the facts of this case. Even if the period during which the elected trustees held the position was over, the effect of their election and that they acted as elected trustees cannot be obliterated. Further accepting the objections of the petitioner would amount to accept indirectly further developments as contended by the petitioner such as fresh elections of the Trust having taken place and all issues connected therewith. This we are not inclined to do in the present proceedings. We are informed that several subsequent change reports are already pending before the Charity Commissioner. He would decide all such reports in accordance with law unmindful of the observations made by learned Single Judge in the impugned order or by us in this order.

6. Subject to above observations, Letters Patent Appeals are dismissed.

7. In view of dismissal of appeals, civil applications stand disposed of.

(AKIL KURESHI, J.) (MOHINDER PAL, J.) ashish Page 5 of 5