Gujarat High Court
Kantilal Manibhai Patel vs Ranchhodbhai Morarbhai Patel & 9 on 27 September, 2017
Equivalent citations: AIR 2018 (NOC) 374 (GUJ.)
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/13186/2008 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13186 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of
the judgment ? No
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of No
India or any order made thereunder ?
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KANTILAL MANIBHAI PATEL....Petitioner(s)
Versus
RANCHHODBHAI MORARBHAI PATEL & 9....Respondent(s)
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Appearance:
MR RR MARSHALL, LD. SR. ADVOCATE WITH MR DHARMESH V SHAH,
ADVOCATE for the Petitioner(s) No. 1
DECEASED LITIGANT, ADVOCATE for the Respondent(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 7 , 10
MR C B UPADHYAYA, ADVOCATE for the Respondent(s) No. 10
MR JITENDRA M PATEL, ADVOCATE for the Respondent(s) No. 1.1 - 1.8
RULE SERVED for the Respondent(s) No. 2 - 7 , 9 - 10
RULE UNSERVED for the Respondent(s) No. 8
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/09/2017
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C/SCA/13186/2008 CAV JUDGMENT
CAV JUDGMENT
By filing the present petition, the petitioner has prayed to set aside order dated 17th October, 2008 passed by the Joint Charity Commissioner-respondent No.10 herein below Application No.01 of 2007.
2. The petitioner stated that he purchased land bearing block No.69 comprised in Revenue Survey Nos.76 and 84, situated at Village Palsana, Surat by registered sale deed dated 11th July, 2001. The purchase were made from respondent Nos.2 to 5 herein, through power-of-attorney holder-respondent No.6. It is the case of the petitioner that since then, he is in possession of the said agricultural land and has been paying revenue assessment etc., and that he is a bona fide purchaser having purchased the same by registered sale deed for valuable consideration. By the impugned order, respondent No. 10 authority set aside the sale deed in exercise of powers under Section 41A of the Bombay Public Trusts Act, 1950.
3. It appears that respondent No.1 claiming to be a trustee of the trust known as Akda Mukhi Hanumanji Mandir, Kadodara, made Application No.01 of 2007 before respondent No.10 invoking the powers under Section 41A of the Act and seeking a directions to set aside the sale deed executed in favour of the petitioner. As per the case of the petitioner, respondent No.10 authority passed order even without hearing the petitioner.
Page 2 of 9HC-NIC Page 2 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT 3.1 As per the facts pleaded, the land in question was occupied and cultivated by one Ramangiri who was a Pujari of the temple. He was given the right of occupation under the Gujarat Devasthan Inams Abolition Act, 1969 for which mutation entry No.561 was posted in his name. Thereafter, respondent Nos.2 to 5 were brought as heirs. The land was converted into old tenure land by paying premium and mutation entry No.5876 dated 30th May, 2001 was recorded in the revenue books. It was such converted land which came to be purchased by the petitioner by registered sale deed from its owners. The name of the petitioner came to be shown in the revenue record.
4. Learned senior advocate Mr.R.R. Marshall with learned advocate Mr.Dharmesh Shah for the petitioner submitted that the order of the Joint Charity Commissioner-respondent No.10 herein was ex parte without affording opportunity of hearing to the petitioner. He next submitted that the petitioner was a lawful purchaser of the land and the Charity Commissioner had no authority to set aside the sale deed exercising powers under Section 41A of the Act. It was submitted that Section 41A of the Act conferred powers on the Charity Commissioner of administrative nature and he could not have issued the directions of such kind. In support of his submissions, about the nature of the powers exercisable under Section 41A of the Act, learned senior advocate relied on decision of this Court in Syedna Mohamed Burhanuddin the 52nd C Dai-ul-Multaq and Head of the Dawoodi Bohra Community v. Charity Commissioner, Gujarat State, Ahmedabad Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT [1992 (1) GLH 331] and also another decision of this Court in Navinchandra Jasani v. Pravinchandra Jasani [2003(1)GLR 392].
4.1 On the other hand, learned advocate Mr.J.M. Patel for respondent Nos.1.1 to 1.8 submitted that the sale was against the provisions of the trust deed and therefore, it was rightly set aside by the Joint Charity Commissioner by issuing a direction under Section 41A of the Act. He submitted that the powers of the Charity Commissioner or a Public Trust were wide and included giving direction of both remedial and preventive nature. He relied on decision in Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir Trust, Godhra v. Chokshi Ratilal Chandulal [1992 (1) GLH 331] to submit that it was open to the Charity Commissioner to issue directions that particular duties were required to be performed in certain manner or that the trust was required to refrain from discharging or performing certain acts. He submitted that when it was necessary to secure the objects of the trust and to achieve an efficient and bona fide administration, the Charity Commissioner was justified in exercising his powers. He next relied on decision in Devkrushnandasji Guru Dharmadasji v. State of Gujarat [2008 (1) GLH 427] by pressing into service, in particular the observations in paragraph 21 and 24 from the judgment, wherein it was held inter alia that if the action of brining about the change to consequent filing the change report was de hors the Trust Deed, it would be improper to construe that the matter would not fall within the domain of proper Page 4 of 9 HC-NIC Page 4 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT administration of the Trust.
5. In order to appreciate whether impugned order and the directions issued by the Joint Charity Commissioner could be said to be falling within the scope and corners of Section 41A of the Bombay Public Trust Act, the said provisions may be usefully extracted herein.
"41A. Power of Charity Commissioner to issue directions to trustees and other persons.-(1) Subject to the provisions of this Act, the Charity Commissioner may, from time to time, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust.
(2) It shall be the duty of every such trustee and person to comply with a direction issued to him under sub-section (1)."
5.1 A bare reading of the above provision indicates that it enables the Charity Commissioner to issue directions, firstly to secure proper administration of a public trust; secondly to ensure proper accounting of income of the trust and thirdly to avail due apportionment of income as per the objects and purposes of the trust. In Syedna Mohamed Burhanuddin (supra), the Division Bench observed that an analysis of Section 41A would suggest that it empowers the Charity Commissioner to issue directions to the Trustees in respect of the matters concerning proper administration, and the proper accounting as well as apportionment of income of the trust. It was observed in the context of the controversy in that case that Section 41A was meant to deal with purely Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT secular matters relating to the administration of the property acquired and owned by the public trust. Similar principle was stated in paragraph 15 in Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir Trust (supra).
5.2 Adverting to the pure facts of this case, respondent No.1 - Ranchhodbhai Morarbhai Patel submitted application under Section 41A of the Act before the Joint Charity Commissioner alleging that respondent Nos.1 to 4 herein who were the Pujaris in the temple of the trust had sold away the property of the trust to the petitioner by executing sale deed and for that permission of trustees was not obtained; that the name of the revenue record was wrongly mutated and though property was registered as public trust property, they illegally dealt with the same as if respondent Nos.1 to 4 were the owners. Since the property sold off was belonging to the trust and the revenue record was altered, it was prayed to exercise powers under Section 41A of the Act by issuing appropriate directions.
6. The Joint Charity Commissioner exercising powers under Section 41A of the Act recorded that the property was sold and the sale document was registered. About the claim of the vendors - sellers - respondent Nos.1 to 4 herein that they became owners of the land under the Devsthan Inam Abolition Act, the Joint Charity Commissioner concluded that the Trust Act would not cease to apply though the Devsthan Inam Abolition Act had come into force. A further finding Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT was recorded that where the trust property was sold on the basis of ownership under the Inam Abolition Act, the title would not pass. Finally, in the operative portion, it was declared by the Joint Charity Commissioner that the transaction of sale was illegal and he declared the sale deed to be without permission and void ab initio. It was directed that the said declaration to be communicated to the revenue authorities. The findings were adjudicatory in nature.
7. It may be true that the Charity Commissioner has got pervasive powers under Section 41A of the Act over the administration of a Trust but these powers are essentially designed and are intended for regulating the administration of the trust, and are meant to exercise control in the administrative sphere. Where the functioning of the trust falters or it travels beyond Trust Deed, application under Section 41 would lie and thereunder the Charity Commissioner is empowered to issue the remedial and preventive directions for ensuring efficient administration of the trust. While exercising powers under Section 41, the Charity Commissioner is required to act within such bounds, and cannot enter into the adjudicatory arena. The Charity Commissioner would not be justified in entering into the realm of adjudication in the name of securing better administration of the trust. He cannot proceed to decide a lis under the guise of exercising administrative control of the Trust. The Charity Commissioner has to guard himself that he does not travel into the prohibited territory of decision Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT making process and to issue directions deciding a dispute for pronouncing upon the rights of the parties, for, the line of demarcation between the two functions often becomes thin and slippery.
8. The petitioner herein purchased the property. The property was sold by ostensible owner. The petitioner was an outsider and third party, claiming to be a bona fide purchaser. The case of the applicant was that it was a trust property. In other words, it was a rival claim of the ownership, right to sell property versus the claim of ownership of the Trust. In entering into the transaction the petitioner was not connected in any way with the Trust. The transaction of sale was registered and a document was executed. Whether the vendor had become owner under the Devsthan Inam Abolition Act, whether the property was trust property or of the ownership of the seller etc. were the issues related to and invoking civil rights of the parties. The issues and aspects of such nature may be subjected to civil or other remedies but they cannot be brought within the corners of Section 41A of the Act.
8.1 The Joint Charity Commissioner could hardly be said to have acted within the scope of powers under Section 41A of the Act, as he proceeded to declare that sale deed in favour of the petitioner to be void ab initio and illegal, and issued further directions resting them on such premise he laid down acting outside the purview of his powers. Declaring a sale deed as void and illegal was evidently de hors the Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat Oct 07 07:42:14 IST 2017 C/SCA/13186/2008 CAV JUDGMENT powers. It was undoubtedly an adjudicatory exercise not permissible within the powers flowing from Section 41A of the Act.
9. For the foregoing reasons, the impugned order passed by the Joint Charity Commissioner cannot sustain in eye of law. As a result, order dated 17th October, 2008 passed by the Joint Charity Commissioner, Surat, below Application No.01 of 2007 is hereby set aside.
Petition stands allowed. Rule is made
absolute.
(N.V.ANJARIA, J.)
Anup
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