Bombay High Court
Suresh S/O Shivram Naiknaware vs The Joint Charity Commissioner on 4 September, 2013
Author: S.S. Shinde
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ig BENCH AT AURANGABAD.
WRIT PETITION NO.3170 OF 2013
1. Suresh s/o Shivram Naiknaware,
age 50 years, occu. agri.
& Chairman of the V.K.S.S.
Society, Hinglajwadi,
Tal. & Dist. Osmanabad.
2. Abhimanyu s/o Sandipan Pawar,
age 33 years, Occu. Agri and
Upa-Sarpanch of Grampanchayat,
Hinglajwadi,
Tal. & Dist. Osmanabad.
3. Ajit s/o Arun Naiknaware,
age 33 years, Occu. Agri. and
Member of Grampanchayat,
Hinglajwadi,
Tal. & Dist. Osmanabad. .... PETITIONERS.
VERSUS
1. The Joint Charity Commissioner,
Latur Division, Latur.
2. Dattatraya and Devi Math Sansthan,
Hinglajwadi, Tal. & Dist.Osmanabad,
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through its Chairman
Uttamrao s/o Ganpati Gore.
3. Nikhil s/o Rajendra More,
age 23 years, occu. agri. &
Director of Kuber Agricultural
Research and Development
Pvt. Ltd., Latur,
Tal. & Dist. Latur. .... RESPONDENTS.
...
Shri S.S. Thombre, Advocate for Petitioners.
Shri S.D. Kaldate, AGP for Respondent No.1.
Shri V.D. Salunke, Advocate for Respondent No.2.
Shri Sandeep S. Deshmukh, Adv. for R.No.3.
...
CORAM: S.S. SHINDE,J.
RESERVED ON: 29th AUGUST, 2013.
PRONOUNCED ON: 04th SEPTEMBER, 2013.
JUDGMENT:
1. Rule, returnable forthwith. By consent of the parties, taken up for final hearing.
2. This writ petition takes exception to the order passed by the In-charge Joint Charity Commissioner, Latur dated 13th June, 2011.
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3. The background facts as disclosed in the petition are, as under:
The petitioners are the residents of village Hinglajwadi and devotees of the Dattatraya Devi Math Sanstha, Hinglajwadi and therefore, they are interested persons as per Section 2(10) of the Bombay Public Trust Act, 1950 (for short, referred to as the said Act) and therefore, they are having locus to approach before this Court and file the writ petition and to challenge the order passed by the In-charge Joint Charity Commissioner, Latur dated 13th June, 2011 under Section 36(1)(a) of the said Act.
4. The respondent No.1 without considering the fact that, the application was filed by the respondent No.2 and the land admeasuring 117 Hectares 43 Ares was given on rent for a period of 30 years for which the respondent No.1 granted permission vide its order dated 13th ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 4 June, 2011. The said order is against the interest of the trust as land is given on rent of Rs.60,000/- per year to the respondent NO.3 and that too, without issuing any tender, advertisement or public notice and therefore, ultimately the trustees have given such property on lease as if it is their own property, the trustees ought to have acted as a guardian of the said property but contrary to the object or being trustees they granted such land in favour of the respondent No.3 and for that the respondent No.1 granted permission.
5. It is further stated that though the order is passed on 13.6.2011, the petitioners as well as other villagers were not knowing that, such lease deed was executed and that was accepted by the respondent No.1 and after knowing this fact, the petitioners and other villagers submitted an application to the Joint Charity Commissioner and the District Collector and obtained the certified copies from the office of the Joint ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 5 Charity Commissioner and found as to how the In-
charge Charity Commissioner has committed illegality by granting a permission under Section 36(1)(a) of the said Act.
6. It is stated by the petitioners that, Datta and Devi Math Sansthan, Hinglajwadi is registered igunder the said Act having its registration No.A-2580 (Osmanabad). The copy of the memorandum of Association of the trust has been placed on record at Exh.A to the petition.
7. The petitioners stated that the trust is having a property admeasuring 117 Hectares and 43 Ares at Hinglajwadi and there was entry on the Schedule I in respect of the agricultural land as well as there was entry of the agricultural land in the 7/12 extract. The petitioners have placed on record copies of the said Schedule I and 7/12 extracts at Exh.B.
8. The petitioners stated that on 12th March, ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 6 2013 the petitioners got a knowledge that the respondent No.2 executed a lease deed in favour of the respondent No.3 for a rent of Rs.60,000/-
per annum and thereafter, to increase Rs.
15,000/- per year upto 30 years and to that, the trustees have given their consent on that lease deed itself. The copy of the undated lease deed has been annexed at Exh.C to the petition.
9. The petitioners stated that the Chairman of the trust is authorized by the other trustees to file an application to seek permission by the Charity Commissioner under Section 36(1)(a) of the said Act. The petitioners have placed on record at Exh.D the copy of the affidavit filed by the chairman of the trust.
10. The petitioners stated that the petitioners have obtained the copy of the impugned order by which the Charity Commissioner has granted permission vide its order dated 13.6.2011, which has been placed on record at Exh.F. ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 7
11. The petitioners stated that after getting knowledge that such illegal lease deed was executed by the trustees in favour of the respondent No.3 and therefore, the Grampanchayat has passed a resolution that the said illegal lease deed was executed by the trustees and same needs to be cancelled. The petitioners have placed on record at Exh.G the copy of the minutes of the Gramsabha meeting.
12. The petitioners stated that the petitioners filed an application to the Joint Charity Commissioner, Osmanabad as well as to the District Collector thereby pointing out that, how the trustees in connivance with the respondent No.3 have granted lease deed for a period of 30 years. Copy of the said application has been placed on record at Exh.H.
13. The petitioners stated that as per their knowledge, the order passed by the In-charge ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 8 Joint Charity Commissioner, Latur dated 13.6.2011 is unjust, arbitrary and illegal and by that order, the trust is the most affected and for said land admeasuring 117 Hectares 43 Ares, meager amount of Rs.60,000/- was prescribed and that was accepted. Even the Joint Charity Commissioner has not given any reasoning that how he has accepted the said lease and considering the huge land the Joint Charity Commissioner ought not to have given a permission. Hence, this petition.
14. The learned Counsel for the petitioners invited my attention provisions of Section 2(10)
(a) of the said Act, and submitted that the petitioners are interested persons since they belong to village Hinglajwadi and are devotees of Dattatraya and Devi Math Sansthan, Hinglajwadi and, therefore, they have locus to file this petition. It is further submitted that the petitioners were not aware about the order passed by the In-charge Joint Charity ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 9 Commissioner, Latur and also execution of the lease deed in favour of the respondent No.3 by the respondent No.2. He submits that the In-
charge Joint Charity Commissioner, Latur ought not to have granted permission for a period of 30 years as there is no such provision under the Bombay Public Trust Act, 1950 for executing lease for such a long period and therefore, on this Count alone, the order passed by In-charge Joint Charity Commissioner, Latur is required to be quashed and set aside. It is submitted that even before execution of lease deed, the possession of the suit land was handed over to respondent No.3. It is submitted that the respondents No.2 and 3 have executed lease deed and In-charge Joint Charity Commissioner, Latur has passed order behind back of the villagers of village Hinglajwadi. The property of the trust is a public property and, therefore, public notice in widely circulated newspaper should have been given inviting tenders and, thereafter, steps should have been taken to ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 10 execute the agreement in favour of the person offering higher amount. It is submitted that this Court in case of Siddhivinayak Construction Pvt. Ltd. & Anr vs Vikas Motiram Desai & Ors.
[2012(O) BCI 106] has considered similar issue and in the facts of that case, view is taken that it is only after publishing an advertisement in reputed newspaper and after inviting bids, there should be sale of the property of the trust. The learned Counsel invited my attention to paragraphs 16, 17, 18, 23 and 33 of the said judgment. The learned Counsel further invited my attention to the judgment of the Full Bench of this Court in case of Shailesh Developers and another vs Joint Charity Commissioner, Maharashtra and others [2007(3) Mh.L.J. 717] in which, this Court has explained the scope of section 36 of the said Act.
15. The learned counsel further submits that the petitioners were not aware about the ::: Downloaded on - 27/11/2013 20:15:54 ::: wp3170.13 11 resolution taken by the respondent No.2 trust and also the order passed by the In-charge Joint Charity Commissioner, Latur and execution of the lease deed. It is submitted that none of the documents placed on record by the respondents shows that the petitioners were aware about the execution of the lease deed in favour of the respondent No.3 by respondent No.2 and about the order passed by the In-charge Joint Charity Commissioner, Latur. It is submitted that as soon as the petitioners learnt about such execution of lease deed, immediately they applied for copy of the order passed by the In-
charge Joint Charity Commissioner, Latur and also other documents in the month of March, 2013 and thereafter, immediately this petition has been filed. It is submitted that though the Gram Panchayat has passed resolution that no such lease deed should have been executed by the respondent No.2 in favour of respondent No.3 without inviting bids from other persons by publishing an advertisement in various ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 12 newspapers. It is submitted that the contention of the respondents that the petitioners were aware about the orders passed by the In-charge Joint Charity Commissioner, Latur and also about the resolution of the trust and execution of lease deed, is not supported by any cogent evidence. It is submitted that the representations which were given to various authorities in the year, 2010 including the District Collector, Osmanabad are only requesting the administration to take steps to protect the property of the trust and, therefore, signing such representation in the year, 2010 would not lead to an inference that the petitioners were aware about the execution of the lease deed or the resolution of the respondent No.2 trust and order passed by the In-charge Joint Charity Commissioner, Latur.
The learned Counsel for the petitioners invited my attention to the provisions of the said Act and in particular, Section 36(a) and ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 13
(b) thereof.
16. The learned Counsel for the petitioners submits that on plain reading of the provisions of Section 36(a), it is abundantly clear that in case the trust wishes to alienate the said property, it is necessary to take permission of the Joint Charity Commissioner and also to invite bids by giving advertisement in leading and widely circulated newspapers in the area.
The learned Counsel for the petitioners submits that no sale, exchange or gift of any immovable property, and no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. The learned Counsel for the petitioners invited my attention to the application filed by the respondent No.2 to the Joint Charity Commissioner, Latur and in ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 14 particular, clause 18 of the said application.
It is submitted that the application has to be submitted in a format and clause 18 thereof provides that in case the trust wishes to give the immovable property on lease, then such advertisement is required to be given in two popular local newspapers (one English out of them), inviting bids within thirty days. It is submitted that the respondent No.2 has written in the application that since the land is being given on lease, it is not necessary to call for bids. According to the learned Counsel for the petitioners, if the respondent No.2 wanted to give the land of the trust on lease for thirty years, looking to the area of the land i.e. 117 Hectares 43 Ares, the necessary procedure as contemplated under clause 18 of the said application ought to have been followed. He also invited my attention to the applications given to the Joint Charity Commissioner, Latur and also the Collector so as to demonstrate that as soon as the petitioners and other villagers ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 15 came to know about the transaction between the respondents No.2 and 3 and order passed by the In-charge Joint Charity Commissioner, Latur, they have protested about the same by filing such application and requesting therein for cancellation of the lease deed executed in favour of the respondent No.3 by respondent No.
2. It is submitted that the contents of the said applications given to the authorities would make it clear that the petitioners and other villagers are interested persons and they are covered u/s 2(10)(a) of the said Act and therefore, the petitioners had locus to file the present writ petition. At the cost of repetition, the Counsel for the petitioners would submit that the petitioners and other villagers were also unaware about the private affair between the respondents No.2 and 3 and the order passed by the In-charge Joint Charity Commissioner, Latur till March, 2013 and as soon as they came to know about the execution of lease deed and order passed by the In-charge ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 16 Joint Charity Commissioner, Latur, immediate steps have been taken to file applications with the various authorities and since those authorities did not pay attention, the petitioners were constrained to file the present writ petition. Therefore, relying upon the pleadings in the petition, grounds taken therein, various documents placed on record, the judgment of this Court in case of Siddhivinayak Construction Pvt. Ltd. (supra) and the judgment of the Full Bench in case of Shailesh Developers and another (supra) and the provisions of Section 2 and 36 of the said Act, the learned Counsel for the petitioners submits that this petition deserves to be allowed.
17. On the other hand, the learned Counsel for the respondent No.2, on the basis of the affidavit-in-reply filed by the respondent No.2 made following submissions:
18. The learned advocate for the respondent No. ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 17 2 has submitted that the Petitioners have challenged the order dated 13.06.2011 passed by the Joint Charity Commissioner Aurangabad / in-
charge Latur u/sec. 36 (1) (a) of the Bombay Public Trust act by which considering the interest of the Trust the learned Charity Commissioner granted permission to lease agricultural ig land of the respondent No.2 in favour of the respondent No.3, for a period of 30 years.
19. The learned counsel for respondent No.2 has submitted that, the Petitioners are neither trustees, nor office bearers of the Trust and hence they have no locus-standi to file this petition challenging impugned order which was passed on the application of the trust and order is in the interest of the Trust. On the point of locus-standi itself, petition deserves to be dismissed.
20. It is further submitted that the ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 18 Petitioners have challenged order dated 13.06.2011 at the very belated stage and after about two years of the order. Therefore on the point of delay and laches petition may not be entertained and liable to be dismissed, particularly when the petitioners were aware of the order under challenge when it was passed.
The impugned order is already executed and implemented while executing lease deed on 29.11.2011 and now petition is filed with ulterior motive hence needs to be rejected.
21. It is further submitted that the present writ petition should not be entertained, firstly on the ground of suppression of material facts by the petitioners and secondly making blatant false statement on oath. The petitioners have made false statement on oath that, the lands are given for rent of Rs. 60,000 per annum and thereafter increased to Rs. 15,000 per year upto 30 years which is totally wrong on the contrary as per order passed by the competent authority, ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 19 the respondent No.3 has to pay Rs. 2,80,000/-
per year to the Trust. However, intentionally false statement is made though lease deed executed long back before 2 years.
22. It is further submitted that, the petitioners are aware of every fact. They were aware that, because of encroachment by 'Pardhi' Community on the land the trust was in a position to lease the lands. Villagers have opposed for the encroachment by 'Pardhi' Community and tried to protect the property of the trust in which petitioners were also in favour of the trust and present respondent.
However after execution of the lease deed, it is learnt that, the petitioners tried to extract illegal consideration from the Respondent No.3 and having failed in it they have decided to file this petition to pressurize the deponent and Respondent No.3 to extract illegal consideration. Hence such person should not be allowed to take benefit of the Court proceedings ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 20 for the personal gain.
23. It is further submitted that, the learned Joint Charity Commissioner while deciding the application u/sec. 36 (1) (a) has considered pros and cons of the matter. He has considered total facts, circumstances and documentary evidence produced in the file. After considering the interest and benefit of the trust, learned J.C.C. granted permission by order dated 13.06.2011. There is no illegality nor perversity in the order and hence no interference is called for in this petition filed at the instance of the present petitioners who are interested for their personal gain and not acting in the interest of the Trust. On the contrary they are interested to grab the property of the trust and interested to get some portion of the land for their personal cultivation and grazing of the cattle's. The learned J.C.C. has made detail observations in his order hence petition deserves to be ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 21 dismissed.
24. Respondent No.2, to substantiate the claim of the trust and to deny the contentions of the petitioners following facts and documents are necessary to be produced on record to satisfy this Hon'ble Court that, in what manner the property of the Trust is being protected, maintain and trust is benefited and thus supported the impugned order as it is in the interest of Trust and not otherwise.
25. It is further submitted that, the respondent No.2 Trust is having about 117 Hectare 43 R i.e. 285 acres of the land. Total land is barren land having stones which is not a cultivable fertile land but just like a land in hilly area. Trust is very old Trust and in Nizam regime land was donated as Inam land. Since decades, there was no cultivation and it was lying barren land and used by villagers for grazing of the cattle.
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26. It is further submitted that, lands are situated in Osmanabad Taluka itself whereas said area was known for disturbance and harassment by 'Pardhi' Community and 'Pardhi' Community were / are always gave trouble to the agriculturists and they were using said lands of public trust as matter of right by making encroachment etc. It is important to note that, nobody was looking to the land and therefore there was misunderstanding that, it is government land.
Some lands were also declared as surplus under Ceiling Act. Even government had made entries of its ownership in the Revenue Record. Then matter was taken by the trustees to proper authorities and it was decided that, the lands are of Shri. Dattatraye and Devi Math Sansthan, Hinglajwadi proceedings were taken against Tahsildar and the A.C.C. and then J.C.C. The orders were passed in favor of the trust.
27. It is further submitted that, in the ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 23 meanwhile one Tahsildar Osmanabad illegally allotted some land on 'Eksal Lawani' However nobody has paid the 'lawani amount' nor cultivated the land as those were uncultivable and subsequently above orders are passed.
However the peoples from 'Pardhi' Community started troubling stating that, it is government property and they tried to encroach upon the land and grazing cattle's forcibly. They have damaged property by cutting trees and removing stones etc.
28. It is further submitted that, when scheme was framed in the year 1989 respondent NO.2 tried to its level best with the assistance of villagers to maintain and protect property first and then to develop the property in the interest of trust. However there was huge trouble by the peoples from 'Pardhi' Community and nobody was resisting them because of their terror whereas being a President of the trust R. No.2 and other trustees approached to the police authorities, ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 24 Charity commissioner & Collector and tried to protect the property.
29. It is further submitted that, they tried to resist the encroachment by 'Pardhi' Community people. However, it was impossible to resist them as the said people were removing and taking away the crops of villagers who have tried to protect the trust property. Then respondent No.2 approached to the Collector, Osmanabad and made representation on 29.12.2009 requesting to take action against people of 'Pardhi' Community. The Trust has also made representation to the Superintendent of Police, Tahsildar Osmanabad and other authorities.
30. It is further submitted that, the Deputy Collector under the orders of District Collector, wrote a letter dated 18.01.2010 and asked to approach police department for protection. The Superintendent of Police also issued a letter on 31.12.2009 to the Sub-
::: Downloaded on - 27/11/2013 20:15:55 :::wp3170.13 25 Divisional Police Officer and Police Inspector, Police station, Dhoki to make inquiry of which copy was forwarded to respondent No.2.
31. It is further submitted that, the Trust again made detail representation on 25.01.2010 to the Tahsildar, Osmanabad with signatures of villagers and requested to remove encroachment of 'Pardhi' Community people. The Tanta Mukti Samiti trustees and village panchayat have made common representation to the Collector on 27.01.2010 and requested to protect the land of the Trust.
32. It is further submitted that, in spite of the above correspondence no positive action was taken by the authorities. Respondent No.2 herein I again made detail representation dated 30.03.2010, 12.04.2010 & 10.05.2010 to the Sub Inspector Police Station, Dhoki and requested for protection and to prevent them to plough the land.
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33. It is further submitted that, in the meanwhile The trust has taken decision to give lands for cultivation to some prominent person so that, he can protect, maintain and cultivate lands of the trust.
34. It is further submitted that, trustees have invited several people and tried to give land for cultivation. However because of trouble of 'Pardhi' Community nobody from the village was ready to take land for cultivation. Then one Nikhil s/o Rajendra More Respondent No.3 made an application and shown his willingness for cultivation of the land.
35. It is further submitted that, the trustees in the meeting dated 13.05.2010 decided to give lands to the Respondent No.3 as he was ready to take land for 9 years period for cultivation.
Accordingly agreement was executed on the Stamp of Rs. 100/- and land was given in possession of ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 27 the respondent No.3 for cultivation.
36. It is further submitted that, in the meanwhile again the trust has made representation to the learned collector and other Revenue authorities police authorities and requested to protect the property from encroachment by 'Pardhi' Community people.
37. Accordingly the Tahsildar asked the Circle inspector, Talathi concerned, to make report.
The Circle Inspector accordingly submitted report dated 18.06.2010 stating that, people from 'Pardhi' Community are trying to encroach land, they are destroying land and therefore police protection is required to be given otherwise there is possibility of breach of public peace and tranquility.
38. It is further submitted that, though lands were given to the respondent No.3 the people from 'Pardhi' Community continued their ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 28 activities for encroachment. The group of 200-300 persons of said community tried to take possession of land and they were threatening for lodging cases under Atrocities Act and hence the trust had submitted detail representation on 21.06.2010 to the Superintendent of Police, Omsanabad mentioning said fact and asked to provide police protection for which trust is ready to deposit reasonable amount.
Accordingly police authorities made inquiry and recorded the statement of office bearers of the trust on 25.06.2010. The trust made report to the Superintendent of Police pointing out that, the peoples from 'Pardhi' Community are trying to encroach upon the land. The concerned Talathi has also made a complaint and accordingly crime was registered against those persons u/sec. 143, 447 of I.P.C. bearing Crime No.41/2008. It was also pointed out that, the trust requires police protection otherwise persons from 'Pardhi' Community may create interference and hence action U/Sec.107 of Code of criminal Procedure ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 29 is also required and accordingly police protection was provided, trust has deposited an amount of Rs.87,000/-
39. It is further submitted that, under police protection the respondent No.3 has sown crops in some part of the land it was grown, then the peoples from 'Pardhi' Community have sprayed some poison on the grass and crops in the field and the cattle grazing around the land are diverted to the crops thereby several cattle were killed by them. It was intentionally done by the peoples from 'Pardhi' Community so that, the respondent No.3 can leave field without cultivation.
40. It is further submitted that, in spite of police intervention the peoples from 'Pardhi' Community have prevented respondent No.3 from cultivation of the land. They have broken tyres of Tractor and threatened the laborers of dire consequences. Accordingly, report was made to ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 30 the Sub Inspector police Station Dhoki, Collector, Osmanabad.
41. It is further submitted that, in view of the above fact no villager or any agriculturists from the surrounding area was coming forward to cultivate the lands, even the respondent No.3 who was unable to cultivate land because of the trouble given by 'Pardhi' Community people decided to cancel the lease transaction because it was not feasible to continue the said transaction. The respondent No.3 accordingly made representation on 28.02.2011 and requested to cancel the lease agreement and grant of compensation as against the crop. The respondent No.3 made request that, if the lands are protected and cultivated then it requires total wire fencing or compound. It requires security guards and it will be very expensive. Accordingly he shown his readiness to continue agreement if it is given for longer period of at least 30 years so that, he can make ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 31 huge investment for fencing / compound wall, security guards and removing them etc.
42. It is further submitted that, trustees were satisfied that, except the respondent No.3 nobody is coming forward to cultivate the land of the trust and to face peoples from 'Pardhi' Community therefore trustees have called meeting on 05.03.2011 and decided to consider representation of the respondent No.3. In the further meeting dated 17.03.2011 trustees have decided terms and conditions for further extension of lease period for 30 years and then decided to seek permission from the competent authority u/sec. 36 of the said Act.
43. It is further submitted that, in view of the above decision the trust has made application u/sec. 36 (1) (a) of the Bombay Public Trust Act to the Learned Joint Charity Commissioner, who had called for record and after hearing to both the parties considered ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 32 total record and some other documents produced before the authority. The learned Joint Charity Commissioner basically considered interest of the trust to protect its property and financial gain from leasing out the land and passed reasoned order and permitted to lease out land, for a period of 30 years. The learned Jt.C.C. considering the nature of the land expenses to be borne by the respondent No.3 and expected income in future, reasonably decided that, the respondent No.3 has to pay an amount of Rs.
2,80,000/ per year. So that, the property of the trust can be protected, maintained and trust would be benefited by huge amount of Rs.
2,80,000 per year. Copy of order has been placed on record at page 51 of the compilation.
44. It is further submitted that, the Petitioners were aware of the proceeding, they were also aware of the order passed by the learned Jt.C.C. and therefore they did not raise any objection for the transaction. Accordingly ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 33 lease deed is executed in favour of the respondent No.3 on 29.11.2011.
45. It is further submitted that, petitioners were aware about the execution of the lease deed, they were aware that, the trust is getting huge amount about Rs. 2,80,000/- per year and therefore igthey did not raise any objection.
However, surprisingly they filed above petition after a period of two years falsely stating that, they were not aware about the impugned order and further transaction. The Petitioners have intentionally suppressed material facts from this Hon'ble Court, misled this Hon'ble Court and therefore succeeded to issue notice in the matter. Subsequently, Office bearers of the Trust came to know from the respondent No.3 that, the petitioners tried to extract some illegal consideration from him. However he refused for the same and therefore the petitioners have chosen to file this petition to harass the trust and the respondent No.3.
::: Downloaded on - 27/11/2013 20:15:55 :::wp3170.13 34 Petition is not in the interest of trust. It is against the interest of trust. Petitioners are not trustees or office bearers of the trust and therefore at their instance no interference is called for in the above petition.
46. It is further submitted that, the Petitioners ig have made representation to the Collector, Osmanabad dated 15.04.2013 seeking cancellation of lease deed. Accordingly, Collector asked Tahsildar to make inquiry and submit report. Accordingly, Tahsildar has made inquiry through Circle Inspector. Circle Inspector has submitted report dated 30.05.2013 to the Tahsildar. He also prepared panchanama, which was submitted to the Tahsildar. Learned Tahsildar accordingly submitted his report dated 01.06.2013 to the Collector and reported that, the lands are of Math Sansthan. The lease is given by trust to the respondent No.3 by following due process of law. They have obtained permission from the charity commission and the ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 35 respondent No.3 is in possession and cultivating land as per lease deed.
47. It is further submitted that, in view of the above facts and circumstances of the case, it is apparent that, the Petitioners have filed this petition only with an intention to harass the respondent No.3 and the trustees of the trust. It seems that, it is for the personal gain of the petitioners where they tried to extract illegal consideration from respondent No.3 and for failure to extract illegal consideration they have adopted the method to file petition to pressurize the respondent. The present petition is nothing but a sheer misuse of the Court proceedings to settle personal gain. Hence it is desirable to dismiss the petition summarily with heavy cost. With the aforesaid submissions, learned counsel for respondent No.2 prays for dismissal of the writ petition.
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48. In addition to the aforementioned submissions, the learned Counsel for respondent No.2 submits that in the present case, section 36(1)(a) of the said Act is not applicable.
However, clause (b) of subsection (1) of Section 36 of the said Act is relevant. The learned Counsel for the respondent No.2 invited my attention to various documents placed on record and submits that the respondent No.2 trust, after passing the resolution and executing initial agreement, applied to the Joint Charity Commissioner, Latur for permission for execution of the lease deed and after such permission is granted by the In-charge Joint Charity Commissioner, Latur there is execution of the lease deed. At the cost of repetition, the Counsel for the respondent No.2 submits that in the first place, the petitioners have no locus to file this petition. He submits that there are no pleadings in the petition to show that the petitioners are interested persons. In absence of such specific pleadings, the ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 37 petitioners have no locus to challenge the order passed by the In-charge Joint Charity Commissioner, Latur. The learned Counsel for the respondent No.2 submits that the petition suffers from delay and laches and, therefore, the same deserves to be dismissed on that ground alone. He invited my attention to the exposition of the Supreme Court in case of State of Maharashtra vs Digambar [1995 (4) SCC 683] and submits that unless the facts and circumstances of the case clearly justify the delay and laches, the writ petition will not be maintainable. The learned Counsel further invited my attention to the judgment of the Supreme Court in case of Rup Diamonds vs Union of India [1989 (2) SCC 356] and in particular, Head Note (B) thereof.
49. It is submitted that the respondent No.3 has spent huge amount for fencing of the entire land and also for development of the land.
After execution of the lease deed, rights are ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 38 created in respondent No.3 and by way of entertaining writ petition, this Court may not interfere in the impugned order and also lease deed executed between the parties. He submits that the petitioners are not even simple members of the trust. The In-charge Joint Charity Commissioner, Latur has considered as to what is in the interest of the trust. It is submitted that the decision of the authority is subjective and once such decision is taken in the interest of trust, this Court may not interfere in the decision in writ jurisdiction. It is submitted that various efforts have been taken by the respondents No.2 and 3 to protect the trust land. It is submitted that incorrect averments are made in the writ petition about the amount agreed between the parties. However, the correct position is that the respondent No.3 has to pay Rs.2.80 lacs per year to the respondent No.2. The Counsel for respondent No.2 invited my attention to various conditions imposed by the In-charge Joint Charity Commissioner, Latur ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 39 while granting such permission. Therefore, relying upon the averments in the affidavit-in- reply, annexures thereto, provisions of section 36(1)(b) of the said Act and the judgments of the Supreme Court cited supra, the Counsel for the respondent No.2 submits that this writ petition may be dismissed.
50. The learned Counsel for the respondent No. 3, relying upon the affidavit-in-reply and the additional affidavit, made the following submissions:
51. Learned counsel for respondent No.3 submitted that, the present writ petition at the behest of the present Petitioners is not maintainable on the ground of suppression, locus and delay & latches. It is further submitted that, the Petitioners have not approached with clean hands and with full particulars about facts and circumstances of the present case. It is further submitted that, in past the ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 40 Petitioners have supported the respondent No.3 while making complaints against certain class of persons who were trying to encroach on the land which is in possession of the respondent No.3.
The Petitioner No.1 and 2 have signed one such representation dated 10.08.2010 which was submitted to the Collector against the illegal activities and atrocities carried out by certain peoples. Further the said Petitioners have also signed another joint delegation to the Collector which was filed on 27.09.2010. The Petitioner No.2 has also further put his signature on the application to the Collector which was filed on 19.04.2011 when 13 cattle were killed by those people belonging a particular caste and who have intentions to encroach upon the land which is in possession of respondent No.3. However, all these facts have been suppressed from this Hon'ble Court and are conspicuously absent from the memo of the petition, which shows that the Petitioners are approaching this Hon'ble Court with unclean hands.
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52. It is further submitted that the Petitioners also have no locus to challenge the order passed in favour of the respondent No.3 as the Petitioners are not at all aggrieved by the same. Further, apart from a bald statement that the Petitioners ig are devotees no documentary evidence has been placed on record to fortify the same and also the Petitioners cannot approbate and reprobate at the same time. It is mentioned above that the Petitioners have supported the stand of the respondent No.3, against the atrocities committed by the persons belonging a particular caste and their attempt to encroach on the land which is now in possession of the respondent No.3.
53. It is further submitted that the Petitioners are very much aware about the impugned order dated 13.06.2011 as the same was informed to all villagers, however in spite of ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 42 the same, the present petition is being filed after a long slumber of near about 2 years. It is further submitted that, thus the present petition is not maintainable on the count of suppression of material facts, locus and the principle of delay & latches.
54. It is further submitted that, the present petition is also misconceived and a result of inadequate research on part of the Petitioners. There are many facts which have not been correctly mentioned in the petition.
It is further submitted that, the Respondent No.2 is owner of land admeasuring 117 Hectares situated at village Hinglajwadi. The Respondent No.2 is a registered Trust being governed by the Board of Trustees in accordance with the provision of the Bombay Public Trust Act. It is further submitted that, the said land was lying vacant for long period and as ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 43 such, certain people belonging to Pardhi caste were trying to encroach on the said land and were time and again trying to disturb the legal and peaceful possession of the Respondent No.2 Devasthan over the said land. Therefore, several complaints were made to the Revenue Officers including Collector Osmanabad and the police authorities including the Superintendent of Police, Osmanabad. All these complaints and attempts made by the Respondent No.2 have remained futile.
55. It is further submitted that, the respondent No.3 on 01.04.2010 filed proposal with the President of Respondent No.2 Trust mentioning that, the respondent No.3 is ready to cultivate the land owned by the Respondent No.2 for period of nine years by executing a Lease Deed. It is also mentioned that, the respondent No.3 shall abide by all the terms and conditions which the Board of Trustees of the Respondent No.2 may deem fit. Accordingly, on 02.05.2010, ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 44 notice for meeting of Board of Trustees of Respondent No.2 was called and the meeting was scheduled to be held on 13.05.2010. A resolution came to be passed on 13.05.2010, by the Board of Trustees of Respondent No.2 thereby agreeing with the proposal submitted by the respondent No.3. It is decided that, the said land will be given in possession of the respondent No.3 on lease rent basis for period of 9 years and 9 months. The said decision came to be taken in order to preserve the Trust property from being destroyed and encroached. It is further submitted that, on 04.06.2010, registered Agreement came to be executed in favour of the respondent No.3 for the period of 9 years and 9 months and the respondent No.3 also came to be put in possession.
56. It is further submitted that, the persons from Pardhi caste were time and again disturbing the peaceful possession of the ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 45 Respondent No.2 and after the respondent No.3 being put in possession by way of the registered Agreement dated 04.06.2010, the respondent No.3 was also at the receiving end. There were several incidents of disturbance by the said persons and as such complaints / representations were being made to Revenue Officers as well as Police Officers. A report also came to be submitted by the Talathi, on 10.06.2010, to the Tahasildar wherein it is specifically mentioned that, the people from Pardhi community is trying to disturb the possession and create encroachment. A complaint was addressed to the Superintendent of Police, Osmanabad on 21.06.2010 with a request to take steps against the responsible persons and to grant police aid for the purpose of cultivating the said land and for other allied agricultural activities. It is also mentioned that, the Respondents were ready to deposit the concern charges. Since it was found that, some one authorized people have entered into one portion of the agricultural ::: Downloaded on - 27/11/2013 20:15:55 ::: wp3170.13 46 land, one letter was addressed to the Police Station on 26.06.2010 with a prayer to prevent unauthorized people from cultivating the said portion. It is further submitted that, on 07.07.2010, the respondent No.3 paid an amount of Rs.87,190/- towards of fees /charges for grant of police aid in pursuance to the application dated 21.06.2010.
57. It is further submitted that, again one complaint was filed on 23.07.2010, with the Police Station, Dhoki wherein it is mentioned that, 15 people from Pardhi community forcefully entered the land in possession of the respondent No.3 and destroyed crops with further threats of lodging complaint against the employees of the respondent No.3 and the members of Respondent No.2 under the provisions of Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act.
Further the trustees of Respondent No.2 filed complaint with the concerned P.S.I. wherein it ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 47 is mentioned that, the said people have again entered the peaceful possession of the respondent No.3 and created chaos and continued their atrocities by way of sprinkling pesticides on the standing crops and also killed one buffalo. The disturbance and atrocities were also extended to the level that even villagers were being victim of the crimes committed by the said peoples resulting into joint delegation of villagers and Board of Trustees in filing complaint to the Collector on 27.09.2010. It is further submitted that, the list of atrocities committed by these peoples could not stop here but was continued upto the extent that 13 cattle owned by the villagers were being killed by these peoples on 19.04.2011. It is further submitted that, for all these period, the revenue as well as police authorities have utterly failed in carrying out their official duties which only aggravated the atrocities and prejudice being caused to the respondent No.3, Respondent No.2 and the villagers.
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58. It is further submitted that, in the meanwhile, on 23.02.2011, the respondent No.3 addressed a letter to the Board of Trustees of Respondent No.2 wherein it is specifically mentioned that, due to the atrocities and disturbance being created by these particular people, the respondent No.3 is not being able to appropriately enjoy its rights in pursuance to the registered agreement dated 13.05.2010. It is also mentioned that, the respondent No.3 pleaded to terminate the agreement dated 13.05.2010 or to extend the same for period of 30 years. The proposal for 30 years was seconded with the thought of preserving the entire agricultural land of 117.43 Hectors by constructing fencing, compound wall, and other appropriate measures for the purpose of protection as well as cultivation of the said land. It is further submitted that, on 25.02.2011, notice calling for meeting of Board ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 49 of Trustees came to be issued and the meeting was scheduled to be held on 05.03.2011. A detailed discussion was held on the proposal submitted by the respondent No.3 on 23.02.2011.
Lastly, with a view to protect and preserve the trust property from the various atrocities, it was resolved to extend the period for 30 years.
It was also decided that, a draft agreement for the necessary purpose should be framed and the President and Secretary of Respondent No.2 were authorized to execute the said document.
Accordingly, on 10.03.2011, the notice for meeting of Board of Trustees came to be published for holding the meeting on 17.03.2011.
Accordingly, meeting was held on 17.03.2011 and the draft agreement was also placed before the Board of Trustees for its approval. Again a detailed discussion was held on the terms and conditions which were forming part of the draft agreement. Finally, the same came to be approved unanimously. Thereafter, again meeting was called by notice dated 20.03.2011 for ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 50 confirmation of the resolution dated 05.03.2011.
The said meeting came to be held on 05.04.2011 and the resolution dated 05.03.2011 and 17.03.2011 came to be confirmed. In the said meeting, it was also resolved that the President of Respondent No.2 shall file application to the Hon'ble Joint Charity Commissioner for necessary purpose.
59. It is further submitted that, on 06.04.2011, the President of Respondent No.2 filed application before the Hon'ble Joint Charity Commissioner and prayed for permission to execute the agreement in favour of the respondent No.3 in accordance with the resolution dated 05.03.2011 and 17.03.2011. The said application was accompanied with all requisite documents such as 7/12 extracts, aim and objects of appropriating the funds which would be received as lease rent, consent letter of all trustees for executing the said agreement ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 51 and several complaints which were made to the revenue as well as police officers in pursuant to the atrocities being committed by the people belonging to Pardhi community. During pendency of the proceedings before the Hon'ble Joint Charity Commissioner, an agreement came to be executed between respondent No.3 and Respondent No.2 on 06.05.2011 and the same was placed before the Hon'ble Court.
60. It is further submitted that, vide order dated 13.06.2011, the Hon'ble Joint Charity Commissioner, granted permission for executing the agreement in favour of the respondent No.3, however with directions to change certain terms and conditions and consequently to execute fresh agreement in compliance with the said order. It is further submitted that, on 28.11.2011 agreement came to be executed in favour of the respondent No.3 by the Respondent No.2 and in compliance with the ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 52 guidelines, terms and conditions mentioned by the Hon'ble Joint Charity Commissioner vide its order dated 13.06.2011. The said document came to be registered on 29.11.2011 with the office of Sub Registrar. It is further submitted that, according to the terms and conditions to the registered agreement dated 29.11.2011 the same is valid for the period of 29 years from the date of agreement. It is agreed that, the respondent No.3 shall pay an amount of Rs.
65,000/- per annum for first year and thereafter additional Rs.15,000/- per year. It is further agreed that, the total amount payable for all 30 years should be calculated first and the same would be divided into equal installments per annum. Accordingly the said amount comes to the tune of Rs.2,80,000/- per annum from the date of executing the agreement itself i.e. 29.11.2011.
It is further agreed that, the said amount of Rs.2,80,000/- per year be divided into two installments viz. first installment of Rs.
1,00,000/- is to be paid in "kharip" season and ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 53 remaining amount of Rs.1.80 Lac in the month of January of every calendar year. A further precaution is also taken by the Respondent No.2 that if in case either of the installments are unpaid for two continuous years, the Board of Trustees is entitled to issue notice for recovery of the same and upon receipt of such notice, the due amount should be paid / deposited by the respondent No.3 within one month alongwith interest and in absence thereof the agreement is deemed to be terminated.
61. It is further submitted that, from the above facts and circumstances it would be amply clear that, no loss has been caused to the Respondent No.2 Trust and in fact the trust is being benefited to the tune of Rs.2,80,000/- per year against the land which was lying vacant and was also under persistent threats of destruction and encroachment. The same would also make it amply clear that the said agreement ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 54 is not executed for meager amount as contended by the Petitioners.
62. It is further submitted that, if at all the Petitioners are bonafidely interested in the welfare of the Trust than the present proceeding itself ought not to have been initiated on false, fictitious and bogus grounds. It is further submitted that, in fact the present petition is totally based on whims and fancies of the Petitioners which obviously does not have any support in the nature of documentary evidence. It is further submitted that, even the provisions of the special enactment governing the management of the Trust no where specifies the requirement of issuance of public notice for calling tender for the present purpose and in fact the only requirement is that of prior permission of the Hon'ble Joint Charity Commissioner alongwith his subjective satisfaction which has already been accorded in ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 55 favour of the respondent No.3 way back on 13.06.2011. It is further submitted that, the Village Panchayat is also not at all concern with the affairs of the Trust and even otherwise, the village Panchayat has on many occasions made representations or joined hands with the Trust against the atrocities committed by the people belonging to particular caste/ community and according to the settled law that, Government cannot approbate and reprobate at the same time, the village Panchayat may not have any voice in the present issue.
63. It is further submitted that, in pursuant to the agreement dated 04.06.2010 the respondent No.3 is in continuous peaceful possession of the land and has incurred expenses for various purposes. The respondent No.3 has incurred huge expenditure towards leveling and cultivating the said land apart from the payment of amount of Rs.2,80,000/- for two years each.
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64. It is further submitted that, the petition also refers to one complaint made by the Petitioners to the Collector, Osmanabad. It is further submitted that, in pursuant to the same necessary revenue inquiry has been conducted by the Tahsildar, Osmanabad and report of the same is submitted to the Collector on 01.06.2013. It is observed in the said report that the said land is under cultivation by the respondent No.3 in pursuant to the orders of the Hon'ble Joint Charity Commissioner, Latur and that the respondent No.3s are enjoying the possessory rights over the same.
65. It is further submitted that, it may not be out of place to mention here that, the Petitioners are also trying to malign the image of the respondent No.3 company as well as the Board of Trustees of Respondent No.2 as totally incorrect news came to be published in daily newspaper namely Divya Marathi on 06.05.2013 and ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 57 the respondent No.3s strongly apprehend that, the said news has been published at the provocation of the Petitioners. It is further submitted that, therefore the respondent No.3 immediately issued legal notice to the concerned newspaper and has called for explanation however the concerned newspaper has successfully avoided replying igthe same. It is also specifically mentioned in the said notice that, the respondent No.3 strongly apprehends that the said news article has been published in collusion with the present Petitioners. The respondent No.3 has also claimed compensation and damages for publishing the said news article.
66. It is further submitted that, on perusal of the aforesaid facts and circumstances, it would be amply clear that the petitioner has deliberately suppressed material facts from this Hon'ble Court for the purpose of ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 58 obtaining favorable orders.
It is further submitted that learned counsel for respondent No.3 submitted that, the present Petitioners were specifically in knowledge and information about the impugned order dated 13.06.2011 even before filing the present petition, however still it is incorrectly mentioned in the petition that, the Petitioners were not aware about the impugned order dated 13.06.2011 for a long time. It is submitted stated that, the Petitioners have suppressed the material particulars of the fact of their knowledge of impugned order dated 13.06.2011 and accordingly an objection about maintainability of the petition qua suppression has been raised by the said respondent
67. It is further submitted that, in furtherance to the same, it would be pertinent to note that, the respondent No.3 has been ever ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 59 to lay down his hands on letter dated 15.06.2013 which has been addressed by the present Petitioner No.1 to the District Manager, Mahabij, Osmanabad and requested them for granting aid to prohibit the respondent No.3 in ploughing the land. However, it is pertinent to note that, the very first sentence in the said letter spells out the knowledge and information of the Petitioner No.1 about the status of the respondent No.3 and the rights created in favour of the respondent No.3 by virtue of the impugned order dated 13.06.2011. It is specifically mentioned in this letter that, as per every year the respondent No.3 i.e. Kuber Agriculture Research Center and Development Pvt. Ltd. may apply to the said authority for seeds of different crops as they are cultivating the said land. It is further submitted that, though there is no interim order much less an ad-interim order, the Petitioner No.1 alongwith two others have deliberately addressed the said letter to the concerned authority only with an intention ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 60 to obstruct the peaceful possession and cultivation of the agricultural land by the respondent No.3. A reference to the present petition has also been given in the said letter and tactfully it is mentioned that, the present petition is pending before this Hon'ble Court and so the concerned authority should prohibit and restrain the respondent No.3 from cultivating the said land. It is further submitted that, this letter issued by the Petitioner No.1 is nothing but taking undue advantage of the pendency of the present petition, which according to the present respondent No.3 appears to be an example of interference in administration of justice.
68. It is further submitted that, the said letter was not available with the respondent No. 3 at the time of filing the affidavit in reply and as such, the respondent No.3 has filed additional affidavit in reply so as to bring the ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 61 same on record. He submitted that from the above facts and circumstances, it would be amply clear that the present petition is devoid of merits and deserves to be dismissed with cost.
69. The learned Counsel for the respondent No.3 invited my attention to various documents placed along with the affidavit-in-reply and submits that the petitioners were aware about the decision taken by the Charity Commissioner and also execution of the lease deed. It is submitted that during pendency of this writ petition, there is no any interim order in operation. However, the petitioners addressed a letter to the District Manager, Mahabij, Osmanabad informing about the pendency of the writ petition and therefore, the respondent No.3 should not go ahead with sowing operation or any other activity on the land which is given on lease. According to the learned Counsel for the respondent No.3, writing such letter during ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 62 pendency of the judicial proceeding in absence of any interim order by this Court, shows the conduct of the petitioners.
70. The learned AGP appearing for the respondent No.1 invited my attention to the reasons recorded by the In-charge Joint Charity Commissioner, Latur and submits that the impugned order needs no interference in writ jurisdiction.
71. I have given careful consideration to the submissions advanced by the learned Counsel for the petitioners, learned AGP for respondent No. 1, learned Counsel for respondent No.2 and the learned Counsel for respondent No.3. With their able assistance, perused the petition, annexures thereto, reply filed by the respective respondents, annexures thereto and the judgments cited by the learned Counsel for the parties across the Bar.
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72. The respondents No.2 and 3 have raised objection that the petitioners have no locus standi to file the present petition. In this respect, it would be appropriate to reproduce the definition of persons having interest as defined in section 2(10)(a) of the said Act which reads, thus:
"2. Definitions In this Act unless there is anything repugnant in the subject or context,-
(10) "person having interest" includes -
(a) in the case of a temple, person who is entitled to attend at or is in the habit of attending the performance of worship or service in the temple, or who is entitled to partake or is in that habit of partaking in the distribution of gifts thereof."
73. Upon careful perusal of para 1 of the petition, it appears that there is a statement of the petitioners that they are interested persons as per aforementioned section of the ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 64 said Act. Upon careful perusal of representations given to the In-charge Joint Charity Commissioner, Latur and also the District Collector, Latur in the month of March, 2013, it is specifically stated that the villagers who have signed the said representations along with the petitioners are residents igof the village Hinglajwadi and devotees of the Dattatraya and Devi Math Sansthan, Hinglajwadi, and, therefore, they are interested persons in the affairs of the trust.
The Full Bench of this Court in Shailesh Developers and another (supra) while considering locus standi to challenge the order passed in a proceeding u/s 36 of the said Act, in para 29 of the judgment held that the trustees and persons having an interest in the Trust can always challenge the order. It is further observed that the proceeding u/s 36 of the said Act before the learned Charity Commissioner is a judicial proceeding. The Apex Court has held ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 65 that a trust property is on par with a public property so far as its sale or transfer is concerned. The Full Bench has further observed that the challenge by such a person to the order will be limited to the decision making process of the Charity Commissioner. The Full Bench has made reference to the case of A.R. Khan Construwell ig and Co. vs. Youth Education and Welfare Society and others [2006(2) Mh.L.J. 595] in which the Division Bench has rightly held that after the decision in the case of Arunodaya Prefab, the concept of locus standi has been expanded.
The learned Single Judge of this Court in case of Siddhivinayak Construction Pvt. Ltd.
(supra) has also dealt with the aspect of locus standi and in para 21 held that once it is well established that the character of the trust property is like a public property, if public property is sought to be developed and alienated in a clandestine manner without giving adequate ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 66 publicity and without giving any publicity whatsoever, a person who claims to be interested in undertaking the work of development of a public property or purchasing a public property will always have locus standi to challenge alienation of the public property which has been done without notice to the general public.
In the facts of the present case, not only the petitioners are interested in the affairs of the trust since the trust is situated in their village but also the Gram Panchayat has passed resolution in the General Body meeting of the Gram Panchayat disapproving the manner in which the property of the respondent No.2 trust is given on lease. However, even the resolution mentions that the present trustees should be removed for their close door affairs of executing lease deed in favour of the respondent No.3. Therefore, taking into consideration the pleadings in para 1 of the writ petition, and also the interest of the petitioners and other ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 67 villagers, as reflected in their representations given to the Joint Charity Commissioner, Latur and the Collector, Latur, in the month of March, 2013 and further passing of the resolution in the General Body Meeting of the Gram Panchayat, would lead to the only conclusion that the petitioners along with other villagers are interested persons in the affairs of the trust.
Not only they are the villagers of village Hinglajwadi but, they have stated that they are devotees of Dattatraya Devi Math Sanstha, Hinglajwadi. Upon careful perusal of various documents which are placed on record along with the affidavit-in-reply filed by the respondent No.2 and 3, it is crystal clear that the villagers of the said village have shown kin interest in protection of the trust property.
Therefore, the petitioners have locus standi to challenge the decision of the In-charge Joint Charity Commissioner, Latur. However, as held by the Full Bench in case of Shailesh Developers and another (supra), the challenge will be ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 68 limited to decision making process of the Charity Commissioner.
74. The respondents No.2 and 3 have raised objection that the writ petition filed by the petitioners suffers from delay and laches. It is common contention of the respondents No.2 and 3 that various documents placed on record along with affidavit in reply and in particular, affidavit of respondent No.3 show that the petitioners were aware about the decision of the trust to give the land on lease to respondent No.3 and also about the decision taken by the Joint Charity Commissioner and, therefore, there is delay in filing the writ petition and same deserves to be dismissed on that count alone. In this respect, admittedly there was no advertisement given by respondent No.2 in widely circulated newspapers in the area calling for offers / bids for giving the land of the trust on lease for thirty years. It appears that there is a resolution of respondent No.2 trust ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 69 and the trust moved the In-charge Joint Charity Commissioner, Latur and the said authority has granted the permission on certain conditions.
However, the fact remains that there was no any advertisement given in the widely circulated newspapers calling for offers / bids. Secondly, upon perusal of the facts referred in the impugned igjudgment and also other documents placed on record, it appears that the respondent No.2, in the year, 2010 had given the trust land to the respondent No.3 for 9 years and 11 months. Therefore, there is no reason to believe that the petitioners and other villagers knew that such decision taken in 2010 giving the land for 9 years 11 months would be changed very soon in the year, 2011 and therefore, there is no reason to hold that the petitioners and villagers were aware about the resolution of the respondent No.2 trust and further about the execution of agreement in the month of May, 2011 and, thereafter the decision of the In-charge Joint Charity Commissioner, Latur followed by ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 70 the execution of lease deed in the month of November, 2011. Though the learned Counsel for the respondent No.2 and 3 argued that the representations which were given to the various authorities and other documents placed on record along with affidavits of respondents No.2 and 3 show that the petitioners along with other villagers ig have also signed the said representations / documents and, therefore, the petitioners knew about the resolution passed by the trust, agreement entered into between the respondents 2 and 3 in the month of May, 2011, the decision of the In-charge Joint Charity Commissioner, Latur to grant sanction for such decision and actual execution of lease deed, in that respect, upon perusal of all the documents / representations, it is abundantly clear that those are prior to even execution of agreement in the month of May, 2011. The last representation / document is dated 23rd February, 2011. Upon careful perusal of the pages 213 to 250 and other documents placed on ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 71 record, all those representations / documents are prior to execution of lease deed and also the decision taken by the In-charge Joint Charity Commissioner, Latur. Therefore, the contention of the learned Counsel for respondents No.2 and 3 cannot be accepted that the petitioners were aware about the agreement, lease deed, decision of the trust and decision taken by the In-charge Joint Charity Commissioner, Latur.
75. The petitioners have stated in the petition that as soon as they came to know that the trust has decided to give 117 Hectares 43 Ares land on lease for 30 years and further the decision taken by the In-charge Joint Charity Commissioner, Latur and lease deed, they have applied for certified copies of the decision of the In-charge Joint Charity Commissioner, Latur in the month of March, 2013 and after receiving such copies, the representation was given to the In-charge Joint Charity Commissioner, Latur and ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 72 the District Collector, Latur in the month of March, 2013 itself requesting therein to look into the matter and take appropriate decision to recall the decision of the In-charge Joint Charity Commissioner, Latur and also to cancel the lease deed in the interest of trust since the lease deed executed between the respondents No.2 and 3 was without giving an advertisement in the newspaper and without knowledge of the public at large. Therefore, the petitioners have explained the delay / laches. Therefore, the objection raised by the respondents No.2 and 3 that there is delay / laches in filing the writ petition deserves no consideration.
76. It is the contention of the respondents No. 2 and 3 that before execution of the lease deed and decision of the In-charge Joint Charity Commissioner, Latur, the petitioners and other villagers had given various representations to the authorities and also fought to protect the property of the trust and, therefore, the ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 73 petitioners in the year, 2013, cannot question the decision of the respondent No.2 trust to give the agricultural land on lease to the respondent No.3. According to the respondents No.2 and 3, the respondents learnt that the petitioners tried to extract illegal consideration from the respondent No.3 and having failed in it, the petitioners have decided to file the petition to pressurize the respondents No.2 and 3 to extract illegal consideration. In this respect, no any cogent evidence has been placed on record so as to believe the said allegations against the petitioners. In absence of any material placed on record, it is not possible to accept the aforesaid contention of respondents No.2 and 3.
77. Another contention raised by the respondents No.2 and 3 is that there are suppression of material facts by the petitioners and blatant false statements are made in the petition. In this respect, there appears to be ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 74 difference of mentioning agreed amount of consideration to be paid by the respondent No.3 to respondent No.2 per year for thirty years for using the agricultural land. At the most, it can be said that there is mistake on the part of the petitioners to misread the terms of lease deed. However, that does not lead to a conclusion ig that the statements made in the petition are suppression of material facts and those are blatant false statements on oath.
78. Upon careful perusal of the documents placed on record, it appears that on 14th May, 2011, there was execution of lease agreement.
However, the said document is shows as lease deed. It further appears that there was a resolution by the trustees of respondent No.2 giving authority to one Shri Uttam Ganpati Gore on 5th March, 2011 so as to take all necessary steps so as to enter into lease agreement between the respondents No.2 and 3. It further appears that the total area of land which is ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 75 subject matter of this writ petition, is 117 Hectares 43 Ares (approximately 285 Acres).
There is no dispute that this property belongs to respondent No.2 trust and same is shown in the Schedule-I of the said trust. There are also revenue entries in that respect. The area and the fact that the property belongs to the trust is not in dispute.
It appears that the respondent No.2 passed resolution and authorized Shri Uttam Ganpati Gore to enter into lease agreement with the respondent No.3 and in pursuant to lease agreement entered between Respondents No.2 and 3 in the month of May, 2011, the respondent No.2
- Uttam Ganpati Gore moved the In-charge Joint Charity Commissioner, Latur on 6th April, 2011 seeking permission to give the property of the trust on lease u/s 36(1)(a) of the said Act. It is evident from perusal of the Exh.E at page 40 of the compilation of the petition that there is a reference to section 36(1)(a) of the said Act.
::: Downloaded on - 27/11/2013 20:15:56 :::wp3170.13 76 Upon careful perusal of the said document, which was moved seeking permission to given the property of the trust on lease, it appears that while filling up the information in respect of the property of the trust in clause 12 of the said document, it is mentioned that the entire property of the trust was given on lease basis in the year, 2010 for 9 years 11 months to Shri Nikhil Rajendra More i.e. respondent No.3 herein. Therefore, it appears that in the year, 2010 the entire agricultural land of the trust was given on lease for nine years and eleven months. However, in the year, 2011, the respondent No.2 thought it fit to again enter into fresh lease agreement so as to give the entire land of the trust on lease basis to respondent No.3 for 30 years. Upon careful reading of clause 18 of the said document, it clearly appears that in clause 18, it is provided that by giving an advertisement in two popular local newspapers (one in English) by inserting details in respect of the property ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 77 which is to be given on lease, within thirty days from such advertisement, in sealed envelope offers should be called and after such exercise is done, date on which such offers will be opened should be informed to all concerned and said envelopes should be opened in presence of the persons who have sent offers. It is also mentioned that, after such offers are opened, the persons who have sent offers should be asked to enhance their offer / bid amount. It is also further mentioned that the original copies of the newspapers should be sent to the Charity Commissioner. Clause 18 in vernacular reads, thus:
ं जी) वततमानपतात "१८. दोन लोकििय सथािनक (तयातील १ इग िवकी करावयाचया भाडेपटटाने दावयाचया िमळकतीची तपििलासह जािहरात देऊन ३० िदवसाचया मुदतीत सीलबद ं पािकटात मागणया मागवावयात. आलेलया सवत मागणया कोणतया िदविी व वेळी उघडणार याची मािहती मागिनदाराना देणयात येउन तयांचया समक पािकटे फोडावीत व िकंमत वाढवून देणयास सांगावे.
वततमानपताचया मूळ िती पाठवावयात."
::: Downloaded on - 27/11/2013 20:15:56 :::wp3170.13 78 Therefore, upon perusal of aforementioned clause 18 of the said document, it is abundantly clear that, it provided that an advertisement should be given in two popular local newspapers (out of which one in English) and after calling offers / bids, within 30 days from such advertisement, those sealed envelopes of offers should be opened in presence of persons who have sent their offers and, thereafter, they may be asked to enhance the amount of offer and original copies of such newspapers should be sent to the Charity Commissioner.
Upon careful perusal of the information which is filled in by the respondent No.2 trust in clause 18, it is written that since the transaction is on rent basis, it is not necessary to call bids. Said information in vernacular as appearing in said document reads, thus:
"सदर वयवहार हा भाडेततवावर असलयाने िनिवदा मागिवणयाची ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 79 गरज नाही."
79. Therefore, there is no doubt that neither advertisement was given nor offers / bids were invited from interested persons so as to ascertain that the respondent No.2 trust gets good amount so as to protect economical interest of the trust. However, admittedly, there was no advertisement given in two popular local newspapers and as a result, it appears that the transaction is close door affair between the respondents No.2 and 3. It is true that the In-
charge Joint Charity Commissioner, Latur has given permission for such transaction on certain conditions. However, it was obligatory on the part of the In-charge Joint Charity Commissioner, Latur to find out as to why the respondent No.2 has not given advertisement in two local popular newspapers and further why bids / offers were not invited so as to ensure that the respondent No.2 is benefited in case good offers / bids are received from the ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 80 interested persons to take the land to the extent of 285 acres on lease for 30 years.
80. At this juncture, it would be apt to refer the provisions of section 36(1)(a) and (b) of the said Act, which read, thus:
"36 (1) Notwithstanding anything contained in the instrument of trust -
(a) no sale, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Sanction may be accorded subject to such condition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust;"
It is true that the clause (b) of the said ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 81 section would be more relevant and applicable in the facts of the present case. However, the fact remains that when the respondent No.2 sought permission for entering into lease agreement with the respondent No.3, reference is given to the provisions of section 36(1)(a) of the said Act. Upon careful perusal of clause
(b) of sub-section (1) of section 36 of the said Act, it appears that no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. The said clause also makes it clear that Sanction may be accorded subject to such condition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust.
81. In such transactions as in the present case, execution of the lease deed for 30 years ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 82 in respect of near about 285 acres agricultural land belonging to respondent No.2 trust, the role of the Charity Commissioner is very important and Charity Commissioner has to take decision in the interest of the trust. The Division Bench of this Court in case of Bomi Jal Mistry & others vs. Joint Charity Commissioner, Maharashtra & others [2002(4) Bom. C.R. 13] while considering the provisions of section 36 of the said Act, in para 16, held that section 36, being a special provision, the same would give exclusive power to the Charity Commissioner to adjudicate the matters referred to therein.
It necessarily follows that the Civil Court will have no jurisdiction to adjudicate the matters covered by section 36, by virtue of bar under section 80 of the Act, though it was possible to trace the source of authority of the Civil Court regarding authorisation of the trustees to the general provision of section 50 of the Act.
Therefore, in the facts of present case, in ::: Downloaded on - 27/11/2013 20:15:56 ::: wp3170.13 83 the entire transaction, the role of the In-
charge Joint Charity Commissioner, Latur was very important. Therefore, it was necessary for Joint Charity Commissioner to find out how best the interest of the trust can be protected. The said authority should have addressed himself that, while giving agricultural land to the extent of 285 acres of respondent No.2 trust to respondent No.3 for 30 years, was it not necessary for the respondent No.2 to give an advertisement in two popular local newspapers so as to receive good offers in the interest of the trust.
The Full Bench of Bombay High Court in case of Shailesh Developers and another (supra) has considered the issue as to whether the power vesting in the Charity Commissioner under section 36 of the Bombay Public Trusts Act, 1950 is confined to grant or refusal of sanction to a particular sale transaction which the trustees propose to make or it extends to compelling ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 84 trustees to sell or transfer the property to another party who participates in the proceedings under section 36 and gives his offer?
The Full Bench, while dealing with the said question in para 30 held, thus:
"30. Hence, we answer the questions referred to our decision as under:
(i) The power vesting in the Charity Commissioner under section 36 of the Bombay Public Trusts Act, 1950 is not confined merely to grant or refusal of sanction to a particular sale transaction in respect of which sanction is sought under section 36 of the said Act. The power of the Charity Commissioner extends to inviting offers from the members of the public and directing the trustees to sell or transfer the trust property to a person whose bid or quotation is the best having regard to the interest, benefit or protection of the trust. Hence we declare that the decision of the Division Bench of this Court in the case of M/s Jigna Construction Co. Mumbai ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 85 vs. State of Maharashtra and others does not lay down correct law."
Therefore, it follows from the authoritative pronouncement of the Larger Bench that the power vested in the Charity Commissioner u/s 36 of the said Act is not confined merely to grant or refusal of sanction to a particular sale transaction in respect of which sanction is sought under section 36 of the said Act. The power of the Charity Commissioner extends to inviting offers from the members of the public and directing the trustees to sell or transfer the trust property to a person whose bid or quotation is the best having regard to the interest, benefit or protection of the trust.
82. The learned Single Judge of this Court in case of Siddhivinayak Construction Pvt. Ltd.
(supra) in somewhat similar fact situation involved in the said case, held, thus:
::: Downloaded on - 27/11/2013 20:15:57 :::wp3170.13 86 "28. It is in this context that at least the Charity Commissioner should have been more vigilant and in my opinion, it was the duty of the Charity Commissioner to direct the trustees to publish advertisement in reputed English and Marathi newspapers inviting bids from prospective developers / purchasers.
ig Unfortunately in the present
case, the Charity Commissioner has not
exercised the care and caution which was required to be exercised by the Charity Commissioner."
In the case of Siddhivinayak Construction Pvt. Ltd. (supra), various aspects have been considered by the learned Single Bench of this Cosurt including scope of section 36 of the said Act. The learned Single Judge, after considering various authoritative pronouncements of the Supreme Court and High Court has taken a view that disposal of a public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 87 revenue coming into the offers of the State administration would serve public purpose i.e. the welfare of the trust.
83. In the facts of the present case, it appears that the procedure followed by the trustees not to give advertisement and accept the offer of the respondent No.3 and enter into lease agreement was not in a transparent manner.
In the facts of the present case, in the year, 2010 itself the respondent No.2 had given the said property on lease for 9 years and 11 months to respondent No.3. Thereafter, in the year, 2011 further step is taken to give the said property for thirty years. The procedure followed by the trustee should be transparent and such procedure should inspire confidence.
However, it is an admitted position the trustees have not issued any advertisement and it is also not their case that they had invited offers / bids for giving entire agricultural land to the extent of 285 acres of the trust on lease for 30 ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 88 years. The trustees have to deal with the trust property keeping in mind that, an element of public interest is involved in it. At least, the In-charge Joint Charity Commissioner, Latur should have been more vigilant and it was the duty of the In-charge Joint Charity Commissioner to direct the trustees to publish an advertisement in popular Marathi and English newspapers inviting offers from the interested persons so as to give said property on lease for 30 years to higher bidder keeping in view interest of the trust.
84. Upon careful perusal of the facts stated in the impugned decision and also the reasons assigned by the In-charge Joint Charity Commissioner, Latur, it appears that the Agricultural Land will not only be used for agricultural purpose but, the godown will be constructed to store the food grains and also respondent No.3 wishes to construct cold storage, other processing projects, to have the ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 89 water tank for storage of water, panjarapol, fishery business and also other projects as mentioned in the lease deed. In addition to projects which are mentioned in the impugned decision of the In-charge Joint Charity Commissioner, Latur, upon perusal of the lease deed, it appears that there is intention of the parties ig to have poultry farm, sugarcane processing industries, non conventional energy activities etc. Therefore, it is not the case that the land will be used only for agricultural purpose. The land will be used for various purposes. Therefore, in the facts of the present case, the In-charge Joint Charity Commissioner, Latur should have taken decision more carefully, taking into consideration all the aspects which are discussed herein above.
Therefore, this Court is of the considered opinion that in the first place, the respondent No.2 has not acted in a transparent manner in dealing with the huge (285 acres) agricultural land of the trust and without giving ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 90 advertisement calling offers / bids, entered into lease agreement with the respondent No.3 by agreeing to accept Rs.2.80 lakhs per year for entire land. The In-charge Joint Charity Commissioner, Latur was duty bound to follow the mandate of section 36 of the said Act as interpreted by the Supreme Court and this Court in various authoritative pronouncements.
However, in the facts of the present case, the said authority has not performed its legal obligation cast upon it. Therefore, the impugned decision taken by the In-charge Joint Charity Commissioner, Latur cannot sustain in law.
The learned Counsel for respondent No.3 submitted that the respondent No.3 has spent approximately Rs.20 lacs for development of the said land. It is also true that the lease deed came to be executed in the month of November, 2011. However, the fact remains that the respondent No.2 has not given any advertisement and the agreement in respect of huge trust ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 91 property does not appear to be in a transparent manner.
85. Therefore, in the light of discussion herein above, this Court is of the considered opinion that, the impugned order / decision of the In-charge Joint Charity Commissioner, Latur dated 13th June, 2011 in Enquiry No.17/11 cannot sustain in law and accordingly, the same is quashed and set aside. The writ Petition is allowed in terms of prayer clause (B) and stands disposed of. Rule made absolute in above terms. However, no order as to costs.
[ S.S. SHINDE, J ] Kadam.
After the judgment is pronounced, the learned Counsel for respondents No.2 and 3 pray that the effect and implementation of this judgment and order may be suspended for a period ::: Downloaded on - 27/11/2013 20:15:57 ::: wp3170.13 92 of four weeks so as to enable the respondents No.2 and 3 to approach the Supreme Court. The prayer is vehemently opposed by the learned Counsel for the petitioners.
However, in the interest of justice, the effect and implementation of this judgment and order pronounced today shall remain suspended till 1st October, 2013. It is made clear that no prayer for further extension will be entertained and this judgment and order pronounced today will take effect from 2nd October, 2013.
[ S.S. SHINDE, J ] Kadam.
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