Gujarat High Court
Dilipkumar vs Trustees on 14 June, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
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SCA/6611/2010 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6611 of 2010
===================================
DILIPKUMAR
RAMANLAL SHAH & 2 - Petitioners
Versus
TRUSTEES
OF AHMEDABAD EDUCATION SOCIETY & 2 - Respondents
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Appearance
:
MR
PJ MEHTA for Petitioners.
MR MIHIR THAKORE, SR. ADVOCATE WITH MR
MI MERCHANT for Respondent No. 1.
None for Respondent Nos.2 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 14/06/2010
ORAL ORDER
The petitioners have filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the order passed by the Charity Commissioner on 21.04.2010. The petitioners have also prayed for the direction to the Charity Commissioner not to proceed further in the matter of public auction of the three valuable plots of the respondent No.1 Trust during the pendency and final disposal of this petition.
During the pendency of this petition, the petitioners have moved a draft amendment challenging Section 3 (7) as well as Section 20 of the Private University Act, 2009 on the ground that the same are arbitrary, violative as well as unconstitutional and against the provisions of Section 56 (N) of the Bombay Public Trust Act, 1960 read with Clause 3 (c) of Memorandum of Articles and Rules & Regulation of the respondent No.1 Trust.
On the face of it, the Court found that it expands the scope of the petition and it has nothing to do with the subject matter of the present petition and hence, the Court has not allowed the said amendment.
So far as the prayers made in the main petition are concerned, Mr. P. J. Mehta, learned advocate who is also petitioner No.2 in the present petition, has appeared as party-in-person. He has submitted that the respondent No.1 Trust has initially fixed the upset price for sale of two lots of the property in question at Rs.87 Lacs. However, the upset price was subsequently reduced to Rs.67 Lacs. This action on the part of the Trust is not justifiable. He has further submitted that the petitioners have raised detailed objections before the Charity Commissioner which are not taken into consideration while passing the impugned order. He has further submitted that there was no compelling necessity for the Trust to sell the property in question and hence, it is violative of the provisions contained in the Bombay Public Trust Act as well as it is contrary to the law laid down by this Court in the case of Udaykumar H. Dave V/s. State of Gujarat and others, 2001 (3) 42 (3) GLR 2142.
He has further submitted that no further inquiry as contemplated in Rule 24 (2) of the Bombay Public Trust (Gujarat) Rules, 1960 is undertaken. He has further submitted that the provisions contained in Section 56 of the Act are also violated. Considering all these grounds, Mr. Mehta has submitted that the impugned order passed by the Charity Commissioner deserves to be quashed and set aside and the respondent No.1 Trust should not be permitted to proceed with the sale of the properties in question.
Mr. Mihir J. Thakore, learned Senior Advocate appearing with Mr. M. I. Merchant for the respondent No.1 Trust, on the other hand, has submitted that the impugned order passed by the Charity Commissioner is an interim order and no final decision is yet taken by the Charity Commissioner. He has further submitted that the objections of the petitioners are yet to be considered by the Charity Commissioner. The petitioners have got an alternative remedy to challenge the final order before the Gujarat Revenue Tribunal and hence, the present petition should not be entertained by this Court. He has further submitted that when the upset price was fixed at Rs.87 Lacs and advertisement was issued to that effect, no offer was received by the respondent No.1 Trust and hence, the respondent No.1 Trust was compelled to reduce the upset price. After the reduction of the upset price, fresh advertisement was issued and more offers were received. An auction was taken place at the office of the Charity Commissioner and so far as the first lot is concerned, highest bid made was Rs.73 Crores as against the upset price of Rs.35 Lacs and so far as second lot is concerned, the highest bid was made at Rs.27 Lacs as against the upset price of Rs.23 Lacs. He has, therefore, submitted that the grievance raised by the petitioners for reduction of upset price no longer survives in view of this changed circumstances. He has further submitted that Ahmedabad Education University is formed and for that purpose, more than Rs.100 Crores are required for which, the properties of the respondent No.1 Trust are decided to be sold. This can certainly be treated as the compelling necessity as the amount is going to be used for University which is benefited to the students and serve the better purpose of education.
Mr. Thakore has further submitted that the petitioners have no locus standi to challenge the impugned order as per the provisions contained in Section 2 (10) (d) of the Bombay Public Trust Act as they are not the members of the respondent No.1 Trust.
He has also relied on the order passed by this Court in the case of Dilipkumar Ramanlal Shah and another (Special Civil Application No.6032 of 2010) decided on 12.05.2010 wherein all these issues which are raised by the petitioners in the present petition are dealt with. He has, therefore, submitted that considering all these issues, the petition deserves to be dismissed.
Having heard learned advocates appearing for the parties and having gone through the impugned order of the Charity Commissioner, the Court is of the view that the order under challenge is an interim order and final order is yet to be passed by the Charity Commissioner. Against the final order, the petitioner has got an alternative remedy before the Gujarat Revenue Tribunal and hence, it is not just and proper for this Court to interfere at this interim stage. The Court is also of the view that even on merits, the submissions made by Mr. Mehta challenging the impugned order before this Court are not tenable so far as the reduction of upset price is concerned. As indicated earlier, in absence of any offer, the upset price was required to be reduced and even after reduction of upset price, the final bid made is much more than the upset price. So far as the inquiry as contemplated under Rule 24 (2) is concerned, the issue is at length discussed by the Court in the above referred decision decided on 12.05.2010. Even the ratio regarding compelling necessity is also considered and the judgment of Udaykumar H. Dave was also considered and relying on the subsequent judgment, the Court has taken the view that the concept of compelling necessity has undergone vast change.
Considering the entire facts and circumstances of the case, the Court is of the view that there is no substance or merits in the present petition. The petition is accordingly dismissed.
The request made by Mr. Mehta for stay of this order is rejected.
Sd/-
[K. A. PUJ, J.] Savariya Top