Heard learned advocate for the petitioners. Learned advocate for the petitioners have invited this Court's attention to order passed on 02.02.2012 by this Court whereunder, it was recorded that learned advocate, Mr. Chinmay Gandhi did not appear as the papers were taken-away and therefore, notice was ordered to be issued to respondent Nos. 2 and 3 which was made returnable on 22.02.2012. Respondent No. 2 is served but none appears on his behalf and Respondent No. 3 is expired. The basic challenge was order passed by respondent No.1 on 06.02.2010 whereunder respondent No.2 was appointed contrary to the provisions of law and now respondent No.3 is nowhere existing on account of his demise. Permission, is sought to delete respondent No.3 so as to complete the proceedings.
Permission as sought for is granted. Respondent No. 3 is ordered to be deleted.
The petitioners, by way of this petition under Articles 226 and 227 of the Constitution of India have approached this Court with following prayers:
"[A] This Hon'ble Court would be pleased to admit present petition;
[B] This Hon'ble Court would be pleased to allow present petition by issuing a writ of certiorari or any other appropriate writ, order or direction in the nature of certiorari, quashing and setting aside the impugned order at Annexure A passed in Scheme Miscellaneous Application No. 3/1995 dated 06.02.2010 vide Exhibit-115 in the interest of justice;
[C] Pending admission hearing and till final disposal of present petition this Hon'ble Court would be pleased to stay the implementation, operation and execution of the impugned order at Annexure A passed in Scheme Miscellaneous Application No. 3/1995 dated 06.02.2010 vide Exhibit 115 in the interest of justice and equity.
[D] This Hon'ble Court would be pleased to award the costs of present petition.
[E] This Hon'ble Court would be pleased to grant such other and further relief/s as may be deemed fit, just and proper in the facts and circumstances of the case."
Thus, essentially subject matter of challenge in this petition is order passed by respondent No.1 on 06.02.2010 whereunder the application i.e. Scheme Miscellaneous Application No. 3/1995 was allowed which had effect of appointing one Mr. Ramanbhai Dahyabhai Patel i.e. respondent No.2 to be Trusty who could not have been appointed as per the say of the petitioner on account of his holding of the Trust's property despite expiry of the lease in his favour by the Trust.
Learned advocate for respondent No.1 could not controvert these facts and submitted that appropriate order be passed.
This Court is of the considered view that this petition is required to be allowed on the limited ground that when respondent No.2 is admittedly holding the Trust's property in his personal capacity collectively alongwith his brother and collecting rent out of the same, he could not be considered to be an appropriate person to be appointed as the Trustee of the Trust; ex facie his appointment was therefore, illegal and improper. The order impugned qua appointment of the Trustee is, therefore, required to be quashed and set aside. Respondent No. 2 i.e. Ramanbhai Dahyabhai Patel is though served has chosen not to appear before this Court. Hence, the Court is passing following order:
Order dated 06.02.2010 is hereby quashed and set aside to the extent it contains it approved the appointment of Mr. Ramanbhai Dahyabhai Patel, respondent No. 2 Trustee of the Trust. This petition is disposed of accordingly with no order as to costs.
[S.R.BRAHMBHATT, J.] JYOTI Top