Gujarat High Court
Zala vs Joint on 19 September, 2008
Author: Jayant Patel
Bench: Jayant Patel
Gujarat High Court Case Information System
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SCA/11522/2008 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 11522 of 2008
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ZALA
BALASINHJI DIWANSINHJI - Petitioner(s)
Versus
JOINT
CHARITY COMMISSIONER & 3 - Respondent(s)
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Appearance
:
MR
JIGAR P RAVAL for
Petitioner(s) : 1,
MR UMANG OZA, AGP for Respondent(s) : 1,
None
for Respondent(s) : 2 - 3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5,3.2.6 -
4.
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CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
Date
: 19/09/2008
ORAL
ORDER
Leave to substitute Annexure E by producing the memo of appeal.
The petitioner, by this petition, has challenged the order dated 14.7.2004 passed by the Joint Charity Commissioner and its confirmation thereof by the Tribunal, whereby permission to sell the property is declined.
Heard Mr.Bhatt, learned Counsel with Mr.Raval for the petitioner.
The contention raised on behalf of the petitioner is that the application was made by the Trust namely; Mehsana Panjrapole Samstha (hereinafter referred to as the 'Trust' for short) respondent No.2 based on a resolution of the Trust that the Trust is in need of money and such fund is not available and, therefore, the Trust is desirous to dispose of the property. It was submitted that based on the application by the Trust, the advertisement was given, the offers were invited and the petitioner, inter se, participated at the auction and raised the offer, which was the highest for Rs.33 lac. The petitioner had deposited the requisite amount of 10% i.e. Rs.3.30 lac. Thereafter the Charity Commissioner rejected the application mainly on the ground that the statement on oath was made contrary to the record by the trustee of the Trustand, therefore, the application was not accepted. He submitted that thereafter the matter was carried before the Tribunal in appeal by the petitioner, who was offerer and also by the Trust. However, the Trust preferred the appeal and the petitioner also preferred appeal. The Tribunal in the impugned order decided the matter on the aspects of compelling necessity as well as on the aspects of remarks and penalty imposed. He submitted that so far as the appeal of the Trust is concerned, the same was allowed, but the appeal of the petitioner has been dismissed on the ground of no compelling necessity. No opportunity was given to the petitioner to meet with the said aspects of compelling necessity, which has been considered by the Tribunal in the impugned order. Therefore, the contention of the learned Counsel for the petitioner is that the matter deserves to be reconsidered by the Tribunal. He also submitted that if this Court is to consider the aspects of compelling necessity, then as per the recent decision of the Division Bench of this Court in case of Upendrabhai Shantilal Maniar Vs. Sheth Shri Morarjibhai Dhanjibhai Padiya, reported in 2008(0) GLHEL, 220208 decided on 6th May, 2008, the principle of compelling necessity has been watered down and the test is the bonafide attempt to improve the property and at that time the risk of the land, the rental income derived therefrom, the income may be derived etc., are also to be considered. He submitted that there was claim of an alleged tenant over the property and pending the proceedings before the Tribunal the so-called tenant abandoned the claim and the rental income with the Trust was only Rs.99/-. As against the same, the Trust was to receive Rs.33 lacs, which could be said as financially beneficial transaction to the Trust and in his submission, the same would meet with the aspects of necessity on the part of the Trust and bonafide of the Trust. He submitted that the petitioner being one of the highest offerers cannot be said as third party to the litigation and would be entitled to invoke the power of this Court. In the submission of Mr.Bhatt, learned Counsel for the petitioner if the right to challenge the order passed by the Tribunal is accepted, the Tribunal has committed error on the face of record and, therefore, it would be a fit case to either set aside the order and to remand the matter to the Tribunal or to the Charity Commissioner, as the case may be or in alternative, this Court may direct the sale to be accepted by ordering permission under Section 36 of the Bombay Public Trust Act (hereinafter referred to as the Act ). He, therefore, submitted that this Court may interfere.
Having considered the above, it deserves to be recorded that the Trust, who is ultimately beneficiary of the transaction, has not challenged the order of the Charity Commissioner for not granting permission or as that of the Tribunal, before this Court. Therefore, it cannot be said that the Trust has any grievance if the application for grant of permission under Section 36 of the Act is rejected.
The status of the petitioner is as that of one of the offerers, who submitted highest bid and not beyond the same. It may be that the petitioner might have deposited 10% of the requisite amount being condition for submitting the offer, but such right of the offerer can at the most be for consideration of his offer in accordance with law and the petitioner cannot assert as of right that his offer must be accepted by the Charity Commissioner or the competent authority, more particularly when in the advertisement it has been expressly provided that the offer shall be subject to final order, as may be passed by the Charity Commissioner under Section 36 of the Act. It deserves to be recorded that the right of the Trust to sell the property is controlled by the provisions of Section 36 of the Act, which speaks for previous sanction of the Charity Commissioner. Therefore, unless there is any previous sanction of the Charity Commissioner, the right of any of the offerers cannot be identified as valid, nor can be recognized.
Apart from the above, in the present case the Charity Commissioner , while considering the application, has not at all recorded the finding that there is any necessity for the Trust to sell the proper, nor any finding is recorded by the Charity Commissioner that the action of the Trustees is in bonafide for meeting with the requirement of the Trust for improving upon the estate or by disposal of the property the object of the Trust will be better achieved. The Charity Commissioner has totally ignored the said aspect and after considering the other aspects, has rejected the application under Section 36of the Act. It is not a case where the permission was granted by the Charity Commissioner under Section 36 of the Act and any right stood created in favour of the petitioner who was one of the offerers and thereafter the appeal was preferred before the Tribunal.
Even if the appeal before the Tribunal is considered as continuous proceeding, then also there is no material whatsoever produced by the Trust, nor examination thereof by the Charity Commissioner, on the basis of which it could be said that there was necessity on the part of the Trust to sell the property. The attempt on the part of Mr.Bhatt was to contend that in the resolution there is recital of necessity and, therefore, the same could be considered as the material for satisfying the aspect of necessity. I am afraid such can be accepted and the reason being that merely because a Trust states in the resolution that there is requirement or necessity to sell the property or the fund is not available is not a sufficient aspect to meet with the requirement of the statutory provision. Even if it is stated by the Trust in the application or the resolution, as the case may be, it would be required for the Charity Commissioner to examine the fund position of the Trust, the other resources available of the Trust and thereafter the matter can be concluded in either way. If no material is produced showing the fund position or the resource position of the Trust and only resolution is produced, such cannot be said as a sufficient material with the Charity Commissioner to compel the Charity Commissioner for accepting the aspect of necessity on the part of the Trust as sought to be canvassed.
The question of necessity even if it is considered in light of the above referred decision of the Division Bench with the facts of the present case, it does show that there was no sufficient material produced by the Trust before the Charity Commissioner to show the genuineness of the requirement on the part of the Trust for sale of the property. Therefore, the ultimate decision of the Charity Commissioner for rejection of the application on the said aspect could not be said as illegal. As such there could not be any prohibition on the part of the Tribunal to consider the additional questions of law while exercising the power even if it is not raised by either side. Further, even if the contention of the petitioner is to be considered that the opportunity of hearing was required to be given to the petitioner to meet with the said aspect before the Tribunal, in view of the observations made herein above, as it was not a case satisfying the requirement to grant permission under Section 36 of the Act, no useful purpose would be served in entertaining the contention that the Tribunal did not give the opportunity and to remand the matter. The aforesaid is coupled with the circumstance that the status of the petitioner was as that of the highest offerer only.
As regards the other aspects of the order of the Charity Commissioner in passing strictures against the Trustees and penalty is concerned, the Tribunal has allowed the appeal in favour of the Trust. Therefore, even otherwise also no grievance can be validly adjudicated to that extent.
In view of the aforesaid, it appears that as such it cannot be said that even if the contention of the petitioner is considered on merits, the error committed by the Tribunal is such, which may call for interference by this Court in a petition under Article 227 of the Constitution of India. Further, as observed earlier the matter has been considered by the Charity Commissioner and further considered by the Tribunal and also by this Court as observed hereinabove, and in absence of any sufficient material available on record, no case could be said as made out for compelling the Trust to accept the offer, nor it was a case to grant permission under Section 36 of the Act. Therefore, when the application has been considered and on merits there is no case for grant of permission under Section 36 of the Act, the petitioner who is one of the offerers cannot claim the right beyond the lawful consideration of the application and the lawful exercise of the powers by the competent authority.
The contention of the learned Counsel that the petitioner made attempt to see that the claim of the so-called tenant got waived, even if considered, there is no material on record to show that it was at the instance of the petitioner or that the tenant on his own abandoned the claim. Therefore, the petitioner cannot claim any extra right based on the factual position that the so-called tenant abandoned claim of tenancy rights over the land.
In any case, while exercising the power under Section 36 of the Act, the larger interest of the Trust is to be taken into consideration, keeping in view its charitable objects to be achieved. If the Charity Commissioner has declined the permission under Section 36 of the Act and the same is confirmed by the Tribunal, the resultant effect would be that the Trust may not sell the property as per the offer made by the petitioner. Consequently the Trust, if really feels that it is the necessary for disposal of the property, it may be required for the Trust to move the application once again. At that stage, in any case, the Trust will get higher price than the price offered by the petitioner. Therefore, ultimately, no prejudice is likely to be caused to the Trust and on the contrary, it would enrich the corpus of the Trust. As against the same, as observed earlier, no lawful right of the petition can be said as breached while considering the offer, which was subject to the sanction under Section 36 of the Act. Hence, keeping in view the aforesaid additional aspects also, it would not be a case for interference by this Court in exercise of power under Article 226/227 of the Constitution of India.
In view of the above, no case is made out for interference. Hence, rejected.
19.9.2008 (Jayant Patel, J.) vinod Top