STATE OF GUJARAT v. CHARITY COMMISSIONER

5.(cid:9)The order of the Charity Commissioner was challenged by the appellant by filing Misc. Civil Application No.271 of 1978 in the City Civil Court, at Ahmedabad. Civil Misc. Application No.271 of 1978 was heard by learned Judge, Court No.12, City Civil Court, Ahmedabad, who, by judgment and order dated November 23, 1978, dismissed the application with costs. Learned Judge, City Civil Court, while dismissing the application, observed that provision of Order IX of the Code of Civil Procedure is not applicable to enquiry by the Deputy Charity Commissioner under the Act. Therefore, the order passed by the Deputy Charity Commissioner will not fall in any of the orders contemplated under Section 70 of the Act. Learned City Civil Judge, in the concluding part of his judgment, approved the observations made by the Charity Commissioner, which are as under: "It would, however, be open to the City Deputy Collector to file an appeal or revision application as advised against the original order of the Deputy Charity Commissioner by which Inquiry Proceeding No.955 of 1968 initiated by him has been dismissed for want of prosecution, since that order undoubtedly is an appealable order under the Act. Therefore, it will still be open for appellant to take necessary action against the original order passed in Inquiry No.955 of 1968. I, therefore, pass the following order:- Order Application is dismissed with costs. "

6.(cid:9)Learned Assistant Government Pleader, Mr. P.K. Shukla, has taken me through entire record and proceeding of the case and has submitted that learned Judge, City Civil Court, has erred in not restoring Original Enquiry Proceeding No.955 of 1968. It is further submitted that there was no finding recorded by the Deputy Charity Commissioner under Section 22(A) of the Act. Therefore, no appeal was maintainable under the provision of Section 70 of the Act and, therefore, learned Judge ought to have entertained miscellaneous application filed by the appellant. Learned Assistant Government Pleader further submitted that it was in the interest of justice to restore Enquiry Proceeding No. 955 of 1968 as the Trust had wrongly shown 'government property' as 'trust property'.

5.(cid:9)I have heard learned advocate Mr. A.J.Memon, for the respondent, who supported the orders passed by the learned Charity Commissioner and learned Judge, City Civil Court, Ahmedabad.

6.(cid:9)It is an admitted fact that the appellant had not challenged the final order of dismissal passed in Enquiry Proceeding No.955 of 1968 and had only challenged the order passed by the Deputy Charity Commissioner in Misc. Application No.9 of 1976, by which, the application for restoration of Enquiry Proceeding No.955 of 1968 was rejected. It is not brought to the notice of this Court that provisions of Code of Civil Procedure are applicable to the proceedings under the Act. Therefore, prima facie, it appears that the application for restoration, presumably under Order 9 Rule 13 of the Code of Civil Procedure, was not maintainable. The only course, which would have been open for the appellant, was to file appeal against dismissal of Enquiry Proceeding No.955 of 1968 initiated under Section 22(A) of the Act by the City Deputy Collector. The findings recorded and conclusion arrived at by the courts below, in my opinion, are based bearing in mind the relevant provisions of the Act. If the provisions of Code of Civil Procedure are not applicable to the proceedings under the Trust Act, in my opinion, the appellant ought to have preferred appeal under Section 70 or revision under Section 70(A) of the Act challenging the final order passed in Enquiry Proceeding No.955 of 1968. When provisions of Code of Civil Proceedings were not applicable to the proceedings under the Act, the courts below had rightly held that the application for restoration was not maintainable and the only course open to the appellant was to file appeal challenging the finding of the Deputy Charity Commissioner recorded in the application filed under Section 22(A) of the Act.

6.(cid:9)As a result of foregoing discussion, the appeal fails and is dismissed with no order as to costs. However, it would be open to the City Deputy Collector to file an appeal or revision application as advised against the original order of the Deputy Charity Commissioner by which Inquiry Proceeding No.955 of 1968 initiated by him has been dismissed for want of prosecution. **** (swamy)