Gujarat High Court
Gobarbhai Ranchhodbhai Sardhara vs State Of Gujarat on 15 March, 2005
Equivalent citations: (2005)3GLR2478, 2005 A I H C 4335, (2005) 3 GUJ LR 2478
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. Rule. Mr. Mengdey, learned AGP for respondents 1 and 2 waives service of rule, Mr. Barot, learned Counsel waives service of rule on behalf of respondents No. 3 and 4 and Mr. Patel, learned Counsel appears for the surviving Trustees of the Trust, who are joined as respondents No. 5 to 15, but as they are impleaded as Trustees, the remaining Trustees are represented through Mr. Patel, who waives service of notice of rule. Mr. Chhaya, learned Counsel for respondents No. 16 and 17 waives service of rule and Respondent No. 18 is served by direct service, however, he has chosen not to appear.
2. With the consent of the learned Counsel appearing for the parties, the matter is finally heard today.
3. The short facts of the case are that the petitioners are claiming rights as the purchaser of the land bearing Survey No. 99 and 133 of Village Abrama, Taluka Valsad. It appears that the property was held by the Shri Takhateshwar Mahadev Temple which is a public trust duly registered under the provisions of the Bombay Public Trust Act and as per the Trustees and it appears that when the charity Commissioner passed the order for the first time for registration of the Trust and formation of the Scheme, respondents No. 16 and 17 were also inducted and shown as the Trustees of the Trust. It may be stated that it is the case of the respondents No. 16 and 17 before this Court that they did not agree for becoming "Pujari" of the Trust and trustees of the Trust and they also preferred appeal before the higher forum. It appears that respondents No. 16 and 17 submitted application to the Mamlatdar and ALT under Section 70(b) of Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as the "Act") for declaration of their status as the tenants and the said application was registered as Application No. 773/1993. In the said application, one of the opponents was shown as Shri Takhateshwar Mahadev Mandir and Opponent No. 2 was shown as heir. It appears that the other Trustees of the Trust were not impleaded as party. The Mamlatdar passed the order on 15.3.1994 without giving opportunity of hearing to the other Trustees of the Trust and declared the status of respondents No. 16 and 17 as tenants of the land bearing Survey No. 99 and 133. The matter was carried in appeal before the Dy. Collector and thereafter in revision before the Revenue Tribunal. The Revenue Tribunal in the revision as per the order dated 8.11.2004 found that the order passed by the Mamlatdar as well as by the Dy. Collector are not legal and valid and allowed revision and the orders passed by the Mamlatdar as well as by the Dy. Collector are set aside, but it is further directed that the application made by respondents No. 16 and 17 under Section 70(b) of the Act is dismissed. It is under these circumstances, the petitioners have approached this Court by preferring this petition.
4. Heard the learned Counsel appearing for the parties.
5. It has been submitted by the learned Counsel for the petitioners that the prayer of the revision was to set aside the order passed by both the parties i.e. Mamlatdar and Dy. Collector and it was prayed to remand the matter and it has been submitted on behalf the petitioner that the Tribunal has exceeded in exercise of the jurisdiction in dismissing the application of respondents No. 16 and 17 herein. Mr. Baxi submitted that therefore, the order passed by the Tribunal to the extent of dismissing the application under Section 70(b) deserves to be quashed and set aside. He further submitted that as the petitioners have purchased the property as per the registered sale deed dated 21.8.1997 and as the petitioners are bonafide purchaser, if the application of respondents No. 16 and 17 who are predecessor in title of the petitioner is dismissed, it would aversely affect the rights of the petitioner and, therefore, this petition.
6. On behalf of the Trustees of the Trust, it has been submitted by Mr. Patel that the first order was obtained by respondents No. 16 and 17 in collusion and by suppressing large number of material facts. It has also been submitted that the Trustees of the Trust were also not heard and as such the respondents No. 16 and 17 were as per the first order of the Charity Commissioner, shown as the Trustees and, therefore, the order could not have been passed by the Mamlatdar. He also submitted that the Revenue Tribunal has power to pass any order which may be found as just and proper in view of Regulation No. 29 read with Section 78 of the Act and, therefore, he submitted that if sufficient material is on record and if the Tribunal has exercised the power by dismissing the application under Section 70(b) of the Act, it cannot be said that the Tribunal has exceeded in jurisdiction.
7. Mr. Patel also submitted that as such there was a prohibitory order passed by the Charity Commissioner on 23.10.1996 at the instance of the Trustees of the Trust against transfer and alienation of the property and he submitted that the said order was passed on 23.10.1996 and it came to be confirmed after hearing both the sides on 31.12.1998 and though the said order was in operation on 21.8.1997, the registered sale deed was executed by respondents No. 16 and 17 in contravention to the orders of the Charity Commissioner. He also submitted that in any event as no permission under Section 36 of the Bombay Public Trust Act has been obtained from the Charity Commissioner and as the petitioners are party to the illegalities, this Court may not exercise discretionary jurisdiction under Article 227 of the Constitution. To support his submission, Mr. Patel has relied upon the decision of this Court in "Dahyabhai Somabhai and Anr. v. Ramaji Kesarji and Ors.", reported in 1971 GLR, 809.
8. Mr. Chhaya, learned Counsel appearing for respondents No. 16 and 17 has adopted the arguments canvassed on behalf of the petitioners. However, he submitted that respondents No. 16 and 17 were not interested to become Trustees and in spite of the same, the Charity Commissioner inducted them as Trustees. However, Mr. Chhaya has not been able to dispute the position that the registered sale deed dated 21.8.1997 has been executed by respondents No. 16 and 17 in contravention to the interim order passed by the Charity Commissioner.
9. On behalf of the State Authority as well as the Charity Commissioner, learned AGP Mr. Mengdey as well as Mr. Barot, learned Counsel have supported the order passed by the Tribunal.
10. It appears that on 23.10.1996, the Charity Commissioner passed the order directing for maintenance of the status-quo of the property of the Trust. There is no dispute on the point that the property belongs to the Trust. The only dispute is in respect of the status of respondents No. 16 and 17 as the Trustees. Even if respondents No. 16 and 17 are the tenants of the property of the Trust, then also the tenant of the property of the Trust do not have any absolute right to transfer the property in absence of permission of the competent Authority as per the Bombay Tenancy and Agricultural Lands Act. Further, the permission of the Charity Commissioner may also be required, if the property is to be transferred by affecting the rights in the property which is belonging to the Trust. As such even if the status of any person is declared as that of tenant of the property of the Trust, the tenant under provisions of the law has no right to transfer the property as if he is the owner of the property, that too, without taking permission of the competent Authority under Bombay Tenancy and Agricultural Lands Act and without intimating to the owner of the property.
11. The registered sale deed is not on record and only index is produced and, therefore, the contents of the registered sale deed are not made available to the Court. There is a statement made in the petition by the petitioners that the petitioners are bonafide purchaser of the property. It appears from the extract of the index record that the sale is executed against the consideration of Rs.4,11,000/= for the land bearing Survey No. 99 and 133. Therefore, the petitioners at the most can be said as persons who have purchased the tenancy rights from respondents No. 16 and 17 of the land in question. It may be that the petitioners who have purchased the property by registered sale deed dated 21.8.1997, which may result into transfer of the tenancy rights, but as the matter pertains to challenging the order passed by the Tribunal pertaining to the tenancy rights over the property and as the portioners have purchased the rights by registered sale deed, it cannot be said that the petitioners have no locus standi, as sought to be canvassed by the learned Counsel for the Trustees of the Trust, Mr. J.M. Patel.
12. It does appear from the record that the transaction dated 21.8.1997 is in contravention to the order passed by the Charity Commissioner dated 23.10.1996 and its confirmation thereof on 31.12.1998. One of the contentions raised by the Trustees of the Trust is that respondents No. 16 and 17 were Trustees of the Trust and in any event, they have acted in contravention to the order passed by the Charity Commissioner. If the Trustees of the Trust have claimed their ownership over the properties of the Trust or if any of the parties to the proceedings has defied the order passed by the Charity Commissioner, it would be for the Charity Commissioner to take appropriate action against those persons, who have disobeyed the order passed by the Charity Commissioner and it would also be for the Charity Commissioner to take suitable action if any of the Trustees of the Trust has appropriated the property of the Trust for their personal benefits. I am not expressing any final view on the said aspects, because the Charity Commissioner is expected to take care of all the properties of the Trust as having supervisory control over the functioning of the Trust and also Trustees of the Public Trust as per the Scheme of Bombay Public Trust Act.
13. However, so far as the petitioners are concerned, there is no material on record available with this Court to come to the conclusion that the transaction is entered into in collusion or the petitioners were put to the notice that there is an order passed by the Charity Commissioner on 21.8.1997 and in spite of the same the sale deed is executed. Therefore, in absence of the aforesaid details, it is not possible for this Court to accept the contention of Mr. Patel that the petitioners are parties to the illegalities and, therefore, they should not be allowed to invoke jurisdiction of this Court under Article 227 of the Constitution of India. Therefore, the said contention of Mr. Patel cannot be accepted. The reliance placed upon the decision of this Court in case of "Dahyabhai Somabhai and Anr. v. Ramaji Kesarji and Ors." (supra) even if it is considered, there can not be any dispute to the proposition laid down. However, the pertinent aspect is that when this Court in the present case has found that there is no material on record to come to the conclusion that the petitioners are parties to the illegalities or have openly defied the order passed by the Charity Commissioner, the decision upon which the reliance is placed cannot be made available to the facts of the present case.
14. The aforesaid takes me to examine the principal contention raised on behalf of the petitioner on the aspects as to whether the Tribunal has exceeded in exercise of the jurisdiction. Before examining the said aspects it is required to be recorded that on the aspects of quashing and setting aside the order of the Mamlatdar and of the Dy. Collector by the Tribunal, the learned Counsel for the parties have not made any submission, nor have they been able to satisfy the Court that the order passed by the Tribunal for quashing and setting aside the orders of the Mamlatdar and Dy. Collector deserve to be interfered by this Court, because on the said aspect, it cannot be said that there is any jurisdictional error committed by the Tribunal while exercising the revisional jurisdiction.
15. So far as the dismissal of the application under Section 70(b) of the Act is concerned, it appears that even in the memo of the revision the prayer made by the Trustees of the Trust is to quash and set aside the order passed by the Mamlatdar and Dy. Collector in appeal and to remand the matter for consideration. Even the written arguments which were submitted on behalf of the Trustees of the Trust, copy whereof is made available by Mr. Baxi during the course of the hearing shows that the ultimate prayer in the written argument was also for direction to reconsider the matter on merits by the Dy. Collector. In any event, there was no prayer before the Tribunal for dismissal of the application under Section 70(b) made by Respondents No. 16 and 17. Mr. Patel, learned Counsel for the Trustees, who were petitioners before the Tribunal has not been able to show any material for supporting that the parties to the proceedings before the Tribunal were put to the notice by the Tribunal as to why the application made by the so-called tenants under Section 70(b) should not be dismissed. If the parties to the proceedings are not put to the notice, then in normal circumstances the parties to the proceedings shall make submissions on the basis of the prayers made in the revision for supporting the order passed by the lower authority or for opposing orders passed by the lower authority. If the consequential prayer is for remand and if the Tribunal has not put to the notice of the parties to the proceedings for disposal of the application under Section 70(b), it can be said that the Tribunal has exceeded in exercise of the jurisdiction.
16. Apart from the above, the principal contention of the revisioning petitioner before the appellate authority as well as before the Tribunal was that the order has been passed by the Mamlatdar and ALT without giving opportunity of hearing to the Trustees of the Trust and the order is obtained in collusion. The finding of the Tribunal in the impugned order in this regard is that the order is obtained in collusion and, therefore, even if it is found by the Tribunal that the order is obtained in collusion, after setting aside the order of the Mamlatdar and ALT as well as of Dy. Collector in appeal, in normal exercise of the judicial discretion, the Tribunal ought to have remanded the matter to the Mamlatdar for reconsideration.
17. Under these circumstances, the order of the Tribunal so far as the dismissal of the application made by respondents No. 16 and 17 in toto can be said as an error of jurisdiction which cannot be sustained in the eye of law, more particularly in absence of any notice to the parties for such purpose by the Tribunal before rendering the decision on the said aspects. The aforesaid shall hold good even if the contention of Mr. Patel is accepted that the Tribunal has such power. The Tribunal may have such power under Regulation 29 read with Section 78 to pass appropriate orders, but the basic principles of judicial conscience and natural justice require that the affected parties must be put to notice before passing such an order. As observed earlier in absence of any material before this Court produced by either side, it cannot be said that any notice was given by the Tribunal to the affected parties for dismissal of the application under Section 70(b) of the Act before passing the order for dismissal of the application.
17. In view of the above, the order passed by the Tribunal so far as it relates to dismissal of the application under Section 70(b) by the authority concerned deserves to be quashed and set aside. However, it is clarified that the order of the Tribunal for quashing and setting aside the order of the Mamlatdar and of the Dy. Collector does not call for interference and the same is maintained. As a consequence thereof, the application under Section 70(b) made by respondents No. 16 and 17 shall stand restored to the file of Mamlatdar and ALT for proper adjudication on merits. It is made clear that the it will be open to the petitioners to move appropriate application for being impleaded as party and the Mamlatdar and ALT shall pass orders in accordance with law after hearing to all the parties concerned. It is also made clear that the contentions of both the sides under namely; the so-called tenants as well as the Trustees of the Trust shall remain open subject to the observations made by this Court hereinabove. It is further directed that the Mamlatdar and ALT shall decide the application under Section 70(b) preferably within a period of six months from the receipt of the writ of this Court and until the decision is rendered the status-quo over the land in question which was earlier ordered by the Tribunal and which remained in operation pending the revision before the Tribunal shall continue.
19. The petition is partly allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.