Gujarat High Court
Noshir B Dordee & vs Joint Charity Commissioner on 4 March, 2013
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
NOSHIR B DORDEEV/SJOINT CHARITY COMMISSIONER C/SCA/13812/2010 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 13812 of 2010 With SPECIAL CIVIL APPLICATION NO. 10329 of 2010 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ NOSHIR B DORDEE &
2....Petitioner(s) Versus JOINT CHARITY COMMISSIONER & 16....Respondent(s) ================================================================ Appearance:
(in SCA 13812 OF 2010) MR VISHWAS K SHAH, ADVOCATE for the Petitioner(s) No. 1 - 3 MR BHARAT VYAS, AGP for the Respondent(s) No. 3 MR AS ASTHAVADI, ADVOCATE for the Respondent(s) No. 2 MR CB UPADHYAYA, ADVOCATE for the Respondent(s) No. 1 MR MEHUL SHARAD SHAH, ADVOCATE for the Respondent(s) No. 12 MR RS SANJANWALA, SR. ADVOCATE for MR MRUGEN K PUROHIT, ADVOCATE for the Respondent(s) No. 3 - 11 NOTICE SERVED BY DS for the Respondent(s) No. 13 17 Appearance (in SCA 10329 OF 2010) MR MIHIR JOSHI, SR. ADVOCATE with MR MEHUL SHARAD SHAH, ADVOCATE for the petitioner MR HM PRACHCHAK, ADVOCATE for the Respondents No.2-9 MR CB UPADHYAY for Respondent No.10 MR VISHWAS K. SHAH, ADVOCATE for Respondents 11-13 NOTICE SERVED BY DS for Respondent(s) No.1, 14-18, 19 MR BHARAT VYAS for the Respondent No.20 CORAM:
HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 04/03/2013 CAV JUDGEMNT As issues arise in both the petitions are same and similar and, therefore, with the consent of all the parties, both these petitions are heard together and are disposed of by this common CAV Judgment.
The petitioner of Special Civil Application No. 10329 of 2010 has filed the petition for quashing and setting aside the Judgment and order dated 8.7.2010 passed by the Gujarat Revenue Tribunal, Ahmedabad, in Appeal No. AS.5/08 and also prayed to restore the order dated 18.6.2007 passed by the Joint Charity Commissioner, Surat, in Application No.36/16/60.
The petitioners of Special Civil Application No. 13812 of 2010 have filed the petition for quashing and setting aside the Judgment and order dated 8.7.2010 passed by the Gujarat Revenue Tribunal, Ahmedabad in Appeal No. AS/5/2007 and also prayed to stay the effect, implementation and operation of impugned order dated 8.7.2010.
Brief facts of the case are as under :
The respondent Parsi Panchayat Trust (for short the Trust ) is a public charitable Trust formed for the benefits of people of Parsi community, which is registered with the Office of Assistant Charity Commissioner, Surat. The Trust is having one property bearing Survey No. 16, T.P. Scheme No. 3, final plot No. 33, admeasuring around 18749 sq. meters. It is alleged that one Minochar Ratansha Sorabkhan was holding the said land in the capacity of tenant since 1928-29. Thereafter, Surat Urban Development Authority framed town planning scheme No.3 in the area of village Karanj and the above survey number was given final plot Nos. 27, 28, 29, 31, 32 & 33. Final plot No.27 & 33 are in possession of the tenant and after his death the name of Beramsha was entered as tenant on 7.4.1962 and necessary entry No.270 was recorded in the revenue record.
It is averred that Prant Officer, Surat, issued Exemption Certificate to the respondent Trust since the said land is for the Tower of Silence and Institution for public religious worship. It is alleged that thereafter, the Gujarat Devasthan Inam Abolition Act came into force with effect from 15.11.1969 and the Exemption Certificate was cancelled. New section 88-E was inserted in the Tenancy Act and as per the provision of Section 88-E and Section 32 of the Tenancy Act, the person who is in possession of the land, as tenant, is considered as deemed purchaser and as per Section 32-D purchase price can be decided. Therefore, as per the provision of Section 88-E Beramsha became the deemed purchaser of the disputed land. It is alleged that on and around 22.9.1971 the Additional Mamlatdar, Surat, passed an order under Section 32-G of the Tenancy Act and deleted the name of Beramsha Minochar from the revenue record. However, after the said order also Beramsha remained in possession of the land.
It is averred that in the year 2004 some head strong persons of Kishan Construction Company have tried to disturb the possession of the land and, therefore, Beramsha filed Tenancy Case No.117 of 2004 for declaration of his tenancy right and to treat/consider him as deemed purchaser and to decide the price of the land as per Section 32 of the Tenancy Act. The said proceeding is still pending.
Beramsha has also filed Tenancy Appeal No.45 of 2004 on 14.7.2004 before the Deputy Collector, Choryasi Prant challenging the order dated 20.9.1971 passed by the Additional Mamlatdar. However, during the pendency of said Appeal No.45 of 2004 said Beramsha expired on 6.12.2005 and, therefore, Dinasha petitioner had applied for substituting him as the heir and legal representative of Beramsha in view of registered Will executed by Beramsha dated 1.2.2004 and thereafter he was substituted as appellant in Appeal No.45 of 2004. Thereafter, the said Appeal came to be allowed by the Deputy Collector by order dated 22.3.2007 by quashing and setting aside the order passed by the Mamlatdar, against which the Appeal was preferred before the Gujarat Revenue Tribunal which came to be allowed by order dated 21.4.2010. Against the said order of Tribunal, the petitioner preferred Special Civil Application No. 7657 of 2010 before this Court and this Court vide order dated 21.7.2010 directed the parties to maintain status-quo as on today i.e. 21.7.2010.
It is also averred that the petitioner is also independently having lease hold right in the land and he is claiming his lease hold right independently upon the document executed by him with the Parsi Panchayat. By letter dated 25.1.1989 the President of Parsi Panchayat informed the Zonal Officer of Surat Municipal Corporation that out of final plot No.33, land admeasuring 16549 sq. meters was given to Dinasha (petitioner of Special Civil Application No. 10329 of 2010) on rent and if the permission for construction is granted then the Trust has no objection. The petitioner has also filed Civil Suit No.52 of 2004 before the Small Causes Court, Surat, against the Trust and Kishan Construction Co. The Small Causes Court, Surat, allowed the application Exh.5 and granted interim injunction restraining the defendants from taking over forcible possession and entering into the land admeasuring 16500 sq. meters of land of final plot No.33 by order dated 29.7.2010.
It is averred that out of the total land, by a Lease Deed dated 24.3.2004, the land admeasuring 18,449 sq. meters was given on lease to Kishan Construction Co. for a period of 34 months and to avoid the procedure of obtaining permission under Section 36 of the Bombay Public Trust Act, a lease deed was executed for 34 months on 13.7.2004. One Nushir B. Dordee & others (petitioners of Special Civil Application No. 13812 of 2010) filed an application under Section 41-A of the Act before the Joint Charity Commissioner, praying to hold the lease-deed null and void. By order dated 23.4.2004 the Joint Charity Commissioner held the lease-deed null and void on the ground that the same was executed in violation of Section 36 of the BPT Act. Against the said order Kishan Construction Co. filed Special Civil Application No. 17131 of 2004 before this Court and this Court by order dated 18.4.2006 partly upheld the order of Charity Commissioner and has remanded the matter to the Charity Commissioner with certain directions. Thereafter, the petitioner and other members of Parsi Community filed their objections and written arguments before the Joint Charity Commissioner. The Joint Charity Commissioner by order dated 18.6.2007 rejected the application moved by the Trust under Section 36, by observing in the order that pursuant to the lease-deed in faovur of Kishan Construction Co., Misc. Application Nos.15 of 2004 and 16 of 2004 would be taken on record and to give suitable directions, the matter is kept for hearing and till then, status-quo was ordered to be maintained qua the disputed property. Being aggrieved by the observation that said land is not dokhma land made by the Joint Charity Commissioner in Para 17 of his order, Appeal No.5 of 2007 has been preferred. The Trust has also, after a considerable long delay of 14 months, preferred an Appeal No.5 of 2008 before the Gujarat Revenue Tribunal, challenging the order dated 18.6.2007 passed by the Joint Charity Commissioner. The Gujarat Revenue Tribunal was pleased to allow the Appeal No.5 of 2008 filed by the Trust and dismissed the Appeal No.5 of 2007 filed by the objectors, by order dated 8.7.2010. The Tribunal, however, held that the application filed by the Trust under Section 36 of the Act may be proceeded further and for that purpose, the case was remanded to the Joint Charity Commissioner, Surat.
Heard learned Counsel appearing on behalf of respective parties at length. I have also considered the Affidavits in Reply filed on behalf of the respondents and also considered the written submissions filed on behalf of the petitioner and the respondents.
Learned Senior Advocate Mr. Mihir Joshi for Mr. Mehul Sharad Shah, appearing on behalf of the petitioner of Special Civil Application No. 10329 of 2010 has contended that the Charity Commissioner has not considered the parameters and the ingredients set out in Section 36 of the Bombay public Trust Act while considering the application filed by respondent No.1 Trust. He has contended that though the Charity Commissioner rejected the application of the Trust on other different grounds then also he has not considered the parameters of Section 36 of the BPT Act. He has contended that the Gujarat Revenue Tribunal has also not considered the parameters of Section 36 while granting permission and though the judgment of this Court [1993 (1) GLH 473] was cited in the written arguments filed before the Tribunal, the Tribunal has not considered the same at all. By placing reliance upon the decision of this Court in 1993 (1) GLH 473, he has contended that when an application is made to the Charity Commissioner under Section 36, it is for the Charity Commissioner to decide as to whether such an application should be granted or not. The language of sub-section (1) of Section 36 is clear and the Legislature has, in no uncertain terms, provided that no sale of any immovable property belonging to a Public Trust will be valid without previous sanction of the Charity Commissioner. He has contended that while exercising the powers conferred under Section 36, the Charity Commissioner has first to consider as to whether the proposed alienation of Trust property is in the interest of the Trust. He has contended that before the Charity Commissioner sanctions the alienation of Trust property, he has to apply his mind
(i) Whether there is a compelling necessity justifying the alienation in question; (ii) whether the proposed alienation is fair and just; and (iii) whether the proposed alienation, in any way, adversely affects the interest of the Trust. He has contended that keeping these considerations in the mind, the Charity Commissioner is required to examine the matter. He has contended that, in the present case, the Charity Commissioner or Revenue Tribunal have not at all considered the said three aspects as enumerated in Section 36 and that there is no discussion in the judgment of any of the aforesaid two authorities and there is no finding on the above three aspects and, therefore, this is a fit case to remand the matter back to the Charity Commissioner to decide it in light of the observations made by this Court in a reported decision, referred to herein above. He has contended that from the application under Section 36, it is crystal clear that respondent No.1 has not set out any ground justifying alienation of the property showing any compelling necessity. He has contended that the financial position of the Trust is very sound and there is no need to dispose of the property. It is also crystal clear from the aplication that the proposed alienation is also not fair and just as the Trust had already executed a lease deed in favour of Kishan Construction Co. for 34 months and though the said land is in possession of the petitioner, the Trust has created a show on paper that the possession of the land was given to Kishan Construction Co. He has contended that from the application it clearly transpires that in connivance with Kishan Construction Co., the Trust has decided to dispose of the property though there is no need to alienate the same. The only ground set out in the application is to the effect that since huge open land of the Trust was lying idle and there were chances of unauthorized encroachment over the land and with a view to safeguard the property from unauthorized encroachment the Trust has decided to sell immovable property of Final Plot No.33. He has contended that as per the observation made in a decision reported in 2008 (2) GLH 450 such ground of possible encroachment is not valid in the eye of law to dispose of the Trust property. As such there is no question of encroachment on the land and since 1928-29 the land is in possession of the agricultural tenant. He has contended that as per the provisions of Section 88-E read with Section 32G & 32H of the Tenancy Act, a person who is in possession of the land as an agricultural tenant is considered as a deemed purchaser and as per Sections 32G & 32H of the Tenancy Act, the purchase price can be determined. After insertion of Section 88E in the Tenancy Act, Beramsha became the deemed purchaser of the disputed land and, therefore, said Beramsha filed Tenancy Application No.117 of 2004 before the Mamlatdar, Choryasi Prant to declare him as tenant of the above land and to determine the price of the land as per Section 32G & 32H of the Tenancy Act, which is pending for adjudication before the Mamlatdar, and, therefore, during the pendency of said application, no such permission under Section 36 of the Bombay Public Trust Act to sell the land could be granted in favour of the Trust. If the said Tenancy Application is allowed, then Beramsha will become the deemed purchaser and owner of the land and the Trust would not have any right over the property. The Tribunal has mixed up the issue of agricultural tenancy of Beramsha and leasehold right of the petitioner in the disputed land. He has contended that learned Tribunal has erred in holding that if the tenants have any right over the land, then permission to sell the land can be granted and after sale, ownership will be changed and sale can be made as is where is whatever there is basis. He has contended that earlier when this Hon ble Court passed an order issuing certain directions, the petitioner or Beramsha were not party to the said petition and the present petitioner is contesting this petition in two capacities, viz. (i) petitioner being the legal representative of Beramsha, as he was joined as legal representative in Tenancy Application No.117 of 2004 after the death of Beramsha; and (ii) in his individual capacity as a tenant under the Transfer of Property Act, as the Trust has also executed lease deed in favour of the petitioner. He has contended that even in Civil Application No.11830 of 2010 in Special Civil Application No. 11120 of 2008, filed by the Trust, this Court vide order dated 5.10.2010 has observed that it will not be apropriate to stay further proceeding of Tenancy Application No.117 of 2004 and directed that the procedings may proceed further, but, no final order will be pronounced by the Mamlatdar pending the main petition. Therefore, the Mamlatdar may be directed to hear and decide Tenancy Application No.117 of 2004 and till then the order of Revenue Tribunal granting permission to sell the land is required to be quashed and set aside. He has contended that findings of the Tribunal that Beramsha was not an agricultural tenant is also without jurisdiction. He has contended that the Trust has executed Satakhat with APMC, Surat, in the year 1992 in which it was clearly stated that Beramsha was in possession of the land and, not only, that the Trust has also applied for permission before the Joint Charity Commissioner on 16.7.1992 seeking permission to sell the land to APMC, Surat, wherein also it was mentioned that Beramsha was an agricultural tenant and he was required to be paid 33 % amount out of the total consideration of sale. Therefore, it is an admitted fact that Beramsha was an agricultural tenant of the land and the petitioner is the legal representative of Beramsha through Will. He has also contended that APMC, Surat, has filed Special Civil Application No. 4621 of 2003 before this Court seeking permission to sell the land under Section 36 of the BPT Act as the order granting permission was set aside by the Revenue Tribunal and the said petition is pending for final hearing, therefore, present petition is also required to be admitted and fixed for final hearing along with sawid Special Civil Application No. 4621 of 2003. Learned Tribunal has referred the earlier order dated 21.4.2010 passed in Review Application No.42 of 2007 and observed that the petitioner has no tenancy right. He has contended that against the said order dated 21.4.2010 the petitioner has preferred Special Civil Application No.7657 of 2010 before this Court and by way of interim relief, status-quo was granted by this Court at the initial stage and thereafter it was vacated and against the said order the petitioner had filed LPA No. 2965 of 2010 which is pending for hearing before the Division Bench of this Court.
He has contended that petitioner has filed Civil Suit No.52 of 2004 in the Samell Cause Court, Surat, qua this very land against the Trust as well as Kishan Construction Co. and the Small Cause Court, prima-facie, has been pleased to believe the leasehold right and possession of the petitioner and, therefore, allowed the application Ex.5 by order dated 29.7.2010. He has contended that Parsi Panchayat Trust in connivance with Kishan Construction Co. intended to sell the valuable property of the Trust which is even opposed by other persons of parsi community and they have also filed an application before the Joint Charity Commissioner, under Section 50 & 51 of the BPT Act. They have also sought permission to file suit for removal of the present Trustees of the Trust. He has also contended that the petitioner is also an agriculturist and he is also holding other agricultural lands in his name. The disputed land is in his possession and the said possession is believed and protected by the Civil Court in Civil Suit No. 52 of 2004 and the petitioner is ready and willing to pay the purchase price, as may be decided by the Mamlatdar, as required under Section 32G and 32H, in pending Tenancy Application No.117 of 2004. Therefore, there is no question of encroachment of the land by any other party and looking to the various proceedings pending in different Courts, permission to sell the land under Section 36 is required to be refused and the order passed by the Revenue Department is required to be quashed and set aside and the order passed by the Joint Charity Commissioner may kindly be restored in the interest of justice. He has also contended that in view of pending litigations the learned Tribunal has erred in granting permission to sell the disputed property. Therefore, till the pending litigations are over/conducted, no such permission under Section 36 of BPT Act is required to be granted in favour of respondent Trust to sell the disputed land. In that view of the matter, the order passed by the Gujarat Revenue Tribunal dated 8.7.2010 may be quashed and set aside and the order passed by the Joint Charity Commissioner, Surat, dated 18.6.2007 may be restored in the interest of justice. In support of his arguments, Mr. Shah has also placed reliance upon a decision of the learned Single Judge of this Court, reported in 2008 (2) GLH 450.
Learned Advocate Mr. Vishwas Shah, appearing on behalf of the petitioners of Special Civil Application No. 13812 of 2010, has contended that the petitioners herein have challenged the legality and validity of the order dated 8.7.2010 passed by the Gujarat Revenue Tribunal in TEN/AS/5/2007. He has contended that on 24.3.2004 Lease Deed was executed between respondent No.2 Kishan Construction and Parsi Panchayat Trust and the land admeasuring 18749 sq. meters was given on lease to the respondent No.2 for a period of 34 months to avoid procedure for obtaining permission u/s. 36 of the Act and also to suppress the information of the said transaction from other interested purchaser/public/ beneficiaries. He has contended that the petitioners herein are the beneficiaries of the Trust. The petitioners preferred objections before the learned Joint Charity Commissioner, Surat and the Joint Charity Commissioner rejected the application No. 36/16/2006 moved by the Surat Parsi Panchayat with certain Dokhma observations. He has contended that preferred Appeal No. AS 5 of 2007 before the Gujarat Revenue Tribunal which was disposed of by expunging Dokhma observation vide order dated 23.10.2007. Against the said order the respondent No.2 filed Review Application No.TEN/CS/7/07 and the said Review Application was allowed by the Tribunal vide order dated 4.4.2008. Thereafter, against the said order, the petitioners preferred Special Civil Application No. 7248 of 2008 and this Court vide order dated 12.6.2008 rejected the said petition. He has contended that thereafter the petitioner preferred an application before the Tribunal for deleting Kishan Construction as party respondent and the said application was rejected by the Tribunal vide order dated 11.8.2008 and against the said order the petitioner preferred Special Civil Application No. 10694 of 2008, which came to be rejected by this Court vide order dated 9.9.2008. Thereafter, the Tribunal vide order dated 8.7.2010, dismissed the Application No. BS/5/07 and allowed the application No.AS/5/08 and against the said order the petitioners herein have preferred this petition. He has contended that the Tribunal has failed to clarify the reason of flip flop in its stand in various orders. He has contended that earlier the Tribunal has allowed the Appeal and then subsequently invoking review powers the said order was recalled. He has contended that the Tribunal has miserably failed to give cogent and convincing reasons to support the opinion formed by it, more particularly, in light of chequered history of orders being passed. He has contended that the Trustees have also admitted in the earlier proceedings that the said land is Dokhma Land. He has contended that the Joint Charity Commissioner has no power and jurisdiction to decide the object of the land. He has contended that the Joint Charity Commissioner has transgressed his powers/authority. He has contended that the appropriate course should have been that the object of the land which is proposed to be transferred by the Trust be decided by the Deputy or Assistant Charity Commissioner under Section 22 of the Act. He has contended that the Tribunal has also failed to follow the directions issued by this this Court in Special Civil Application No.17131 of 2004 in which the Tribunal was directed to decide issue relating to object of Dokhma land, after allowing the parties to lead the evidence and after going through the documentary evidence produced by them. He has contended that the object of the Trust for this particular chunk of land cannot be decided by interpreting Sale Deed registered and the Sale Deed cannot be made the yardstick in deciding the object of the land. He has contended that there is no material on the record to link Sale Deed registered on 30.7.1914 with the object of the said land. He has contended that the Tribunal has failed to ascertain the object of the land for which it has purchased in 1913-14 and for what purpose the said lands were used from 1914 to till date and if it is Dokhma object then for change of object whether Trustees have applied to the District Court invoking doctrine of cypres. He has contended that without any ambiguity or indication pertaining to the object of the land in Sale Deed or any where else and, therefore, it is essential to find out the object of the said land by virtue of inquiry contemplated by Deputy or Assistant Charity Commissioner. He has contended that the Tribunal has failed to appreciate that his post being creature of the statute, he cannot assume untrammeled powers. He has contended that the observation that the land is not Dokhma land in Para 17 of the order dated 18.6.2007 of the Joint Charity Commissioner, which is confirmed by the Tribunal, runs contra to the settled principles of law and is patently illegal, unjust, illogical and in absence of any clear believable doubtless evidence, smacks of arbitrariness and perverseness and the said decision has no sound reasons to support it, more particularly, in view of the admission of the Trustees in early proceedings that the land is Dokhma Land. He has contended that Pani Patrak cannot be said to be conclusive evidence about the object of the trust for which land is used and the object cannot be ascertained by placing reliance on Pani Patrak. He has contended that the Tribunal has failed to appreciate that impugned order is passed in cursory and cavalier manner and the same is passed without application of mind. He has contended that the land acquisition proceedings, which is a public record, defended by the Trust by representing the case of Trust that said land is Dokhma Land, which cannot be ignored. The said admission of the Trust cannot be ignored which has an impact on the land acquisition proceedings and for the best reason known to the Trustees, for acting contrary to their own admission under the land acquisition proceeding and acted contrary for selling the said land for only and only to Kishan Construction. The main plank of submission being non-consideration of 16 documents available on record of Charity Commissioner which indicate Karanj Land as Umarwada, more particularly, in light of letter of Trustee of Parsi Panchayat to the Collector, Surat. Learned Advocate has also relied upon the decision in the case of SHAMA PRASHANT RAJE v/s GANPATRAO AND OTHERS, reported in (2000) 7 SCC 522, more particularly, in Para 5 wherein the Hon ble Apex Court has observed that - In a proceeding under Articles 226 and 227 of the Constitution the High Court cannot sit in appeal over the findings recorded by a competent Tribunal. The jurisdiction of the High Court, therefore, is supervisory and not appellate. Consequently Article 226 is not intended to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or order to be made. But, notwithstanding the same, on a mere perusal of the order of an inferior Tribunal if the High Court comes to a conclusion that such Tribunal has committed manifest error by misconstruing certain documents, or the High Court comes to the conclusion that on the materials it is not possible for a reasonable man to come to a conclusion arrived at by the inferior Tribunal or the inferior Tribunal has ignored to take into consideration certain relevant materials or has taken into consideration certain materials which are not admissible, then the High Court will be fully justified in interfering with the findings of the inferior Tribunal. He, therefore, contended that observation of the Joint Charity Commissioner in his order dated 18.6.2007 that the land is not Dokhma Land, which is confirmed by the Tribunal, suffers from infirmity and reflects manifest error of law.
Learned Senior Advocate Mr. Sanjanwala for Hemant Prachhak, appearing on behalf of the respondents No. 1 to 9 in Special Civil Application No. 10329 of 2010, and on behalf of Mr. Mrugen Purohit, appearing on behalf of respondents No.3 to 11 in Special Civil Application No. 13812 of 2010, has contended that the present petition under Article 227 of the Constitution may not be entertained. He has also placed reliance upon the decision of the Hon ble Apex Court, reported in (2010) 9 SCC 385 and contended that the High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. He has contended that the claim of the petitioner is mutually contradictory and inconsistent. On one hand the petitioner is claiming tenancy rights under the Bombay Tenancy and agricultural Lands Act on the basis of Will of Behramsha and on the other hand the petitioner is also claiming to have independent lease hold rights under the Bombay Rent Act qua same parcel of land. He has contended that the order dated 18.4.2006 passed by this Court in Special Civil Application No.17131 of 2004 clearly specifies that the sale shall be on as is where is whatever there is basis and the Tribunal has also specifically observed in the impugned order that as per direction of the High Court the transfer has to be on as is where is basis. Thus, the petitioner who is claiming tenancy right cannot object to the sale on as is where is basis, because even assuming for the sake of arguments that he has any tenancy rights, the same would not be affected as the sale is going to be on as is where is basis . Therefore, the objection of the petitioner is not bonafide. He has contended that the petitioner is also claiming tenancy rights in certain lands of village Umarwada, belonging to the Trust, wherein the claim has been examined and the order has been passed by this Court holding that the Will of deceased Beramsha Minochar, on the basis whereof the petitioner is claiming his entitlement to the lands do not confer any rights upon him. He has contended that this Court in Special Civil Application No. 9049 of 2010 has categorically observed that the petitioner is not an agriculturist and therefore, he may not be entitled to claim the rights of tenant, being an agriculturist, and at the most, the petitioner may be entitled to receive 1/3rd of rent as per the Will. He has contended that in the proceedings under the Tenancy Act, the petitioner has preferred two petitions, viz. Special Civil Application No. 10883 of 2010 and Special Civil Application No. 7657 of 2010, before this Court, wherein by common order dated 1.10.2010 Rule was issued, however, the interim relief has been refused, wherein the claim of tenancy through will of Behramsha is, prima-facie, not believed and this Court has observed that he is not entitled to become agriculturist through the Will. He has also contended that the petitioner has also claimed rights under the Bombay Rent Act and has filed Civil Suit No. 52 of 2004 and has relied upon the interim order below Exh.5, however, the petitioner is not in actual physical possession. In any case, there is no restriction of selling the property in question by the said order. He has contended that the intention of the petitioner to any how create false rights on the subject land of the trust is clearly revealed. He has contended that it is clearly established that the petitioner wants to create hindrance in disposing of the trust property in one way or the other. He has contended that on one hand the petitioner is claiming tenancy rights and on the other hand the petitioner raised a contention as to whether it is a requirement of the trust to dispose of the property requires to be examined. He has contended that when the petitioner wants to encroach and create rights over the property, it is not open for the petitioner to make such a contention. He has contended that the said issue of requirement is already dealt with in the earlier round of litigation and while disposing of Special Civil Application No. 17131 of 2004, in Para 10.3 directions have been issued by this Court to the Trust to make an application under Section 36 of the Act. He has contended that the said order of this Court was challenged by the petitioner of Special Civil Application No. 13218 of 2010 before the Hon ble Apex Court and the Hon ble Apex Court dismissed the said SLP in limine. The High Court order has thus merged with the order of the Hon ble Apex Court. Therefore, reliance placed by the petitioners on the Judgments reported in 1993 (1) GLH 473 and 2008 (2) GLH 450 is uncalled for and the same would not be applicable in the facts of the present case as the issue of requirement is dealt with. It is, therefore, clear that the petitioner is creating unnecessary hindrance in disposing of the trust property and thereby depriving the trust of getting funds by way of disposal of the property which is otherwise not generating any handsome revenue as compared to the expected price. He has contended that any delay in proceeding ahead with the application under Section 36 will be against the interest of the trust as the petitioner s sole intention is to create hindrance in the disposal of the subject land and even the petitioners of other petition being Special Civil Application No.13812 of 2010, who have raised issue of dokhma, are acting hands in glow, and are mouth piece of the present petitioner. He has contended that the intention of the petitioner is to usurp the properties of a public charitable trust and, therefore, the petitioner is not entitled to any equitable relief as prayed for or otherwise. Thus, considering the above submissions and considering the ratio laid down by the Hon ble Supreme Court in AIR 2010 SC 1779 and (2010) 9 SCC 385, he has contended that the petition may be dismissed in limine.
Learned Senior Advocate Mr. Sanjanwala has also contended that the present petition under Article 227 may not be entertained against the concurrent findings of facts. He has contended that the Hon ble Court in a decision reported in (2010) 9 SCC 385, more particularly in Para 15, has explained the extent of jurisdiction of High Court while entertaining a petition under Article 227 of the Constitution. He has contended that this Court can not lightly or liberally act as an appellate court and re-appreciate the evidence and generally it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi judicial tribunals. The power to re-appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case with the sole objective of ensuing that there is no miscarriage of justice. He has contended that there are concurrent finding of facts. The Joint Charity Commissioner in its order dated 18.6.2007 has held that the land in question is not dokhma land and in Appeal No.5 of 2007, preferred by the petitioner, the claim that the subject land is dokhma land is rejected vide order dated 8.7.2010. Thus, there are concurrent findings of facs of both the authorities below which may not be interfered in a petition under Article 227 of the Constitution. He has also placed reliance upon a decision of the Hon ble Supreme Court, reported in AIR 2010 SC 1779. He has contended that the land in question was purchased by Parsi Panchayat by registered Sale Deed dated 17.6.1914 and the recital of the sale deed reflects that Surat Parsi Panchayat can use the property as rightful owners thereof. He has contended that in the year 1973 the Charity Commissioner has granted permission to sell the land bearing Revenue Survey No.16 of village Karanj and pursuant thereto registered sale deeds have been executed in favour of Behramsha Minochar and his 3 brothers. On coming into force of town planning scheme, revenue survey No.16 has been given final plot No.27, 28, 29, 31, 32 and 33. The development permission and N.A. permission are also granted qua the said lands and sub-plots are transferred to different persons by registered sale deeds and even the revenue record reflects the use of land as non-agriculture for residential purpose. Thus the part of land bearing R.S. No. 16 is already sold and developed in pursuance to the permission of Charity Commissioner granted on 10.8.1973. He has contended that when part of land of R.S. No.16 is already sold, developed pursuant to the permission of Charity Commissioner, the argument of the petitioners that the land in question is dokhma land cannot be accepted. He has contended that the petitioners are the mouth piece of one Dinsha Kavasji Ghadiyali (petitioner of Special Civil Application No.10329 of 2010) who claims tenancy rights in the lands in question and who intends to create cloud and false rights over the valuable land of the trust and, therefore, the petitioners, in collusion with the said Dinsha Kavasji Ghadiyali are creating hindrances in disposing of the trust properties. He has contended that out of the entire Parsi community, only the present petitioners have raised dispute that the land in question is dokhma land. Learned Advocate has also taken out the print of google map which shows the land in question bearing Final Plot No.33 of village Karanj. However, the dokhmas are in Survey No.65 of village Umarwada. He has contended that the land in question forms part of land of original survey No.16 of village Karanj. The other final plots given against the original Revenue Survey No.16 are already constructed upon since more than 25 years. The surrounding lands are also constructed upon. The lands, though not constructed upon, are being used for other purposes. Thus the lands in question were never used as dokhma land nor are they capable of being used as dokhma lands. He has also referred the circular which clearly refers that dokhma is on lands of village Umarwada and the lands of village Karanj is not referred to as dokhma land. He has contended that the objections raised by the petitioners are not bonafide and are at the instance of vested interests like the petitioners of the other petition who intends to claim false rights on the lands in question. He has also contended that the issue raised by the petitioner as regards non-consideration of 16 documents by the Joint Charity Commissioner is also not bona-fide for the reason that the Joint Charity Commissioner has properly considered and dealt with issue of dokhma in its impugned order referring to the submissions and the relevant documents and even the same is properly dealt with and considered by the Revenue Tribunal in its order. He has contended that the representations which are being relied on was intended to be made in respect of Umarwada lands which were and are being used as Dokhma lands. He has contended that in any case, the revenue department of the State Government has decided to drop the proceedings having found the Umarwada lands are Dokhma lands. He has contended that no such finding was given by the State Government for Karanj land. He has contended that such an issue of non-consideration of documents is not raised in the memo of petition. On the contrary in Ground - F of the petition it is urged that opportunity to produce oral and documentary evidence is not given. Lastly, he has submitted that the subject land is not a dokhma land and it is not used as a tower of silence for the disposal of parsi dead bodies in accordance with the prevalent custom in parsi religion. In that view of the matter the petition may be dismissed in limine.
I have heard the learned Counsel for the respective parties at length. I have also gone through the written submissions as also the documents produced on the record of the case and the various decisions of this Court as well as of the Hon ble Apex Court. I have also gone through the Judgment and order of both the Authorities below.
As per Section 36 of the Bombay Public Trust Act (for short BPT Act ) the power is vested with the Charity Commissioner to accord sanction for sale of properties of a public trust and certain guidelines and given for exercise of powers. Before the Charity Commissioner sanctions alienation of trust property he has to apply his mind to following material questions, viz. (i) whether there is a compelling necessity to justify the alienation in question ? (ii) whether the proposed alienation is fair and just ? and (iiii) whether the proposed alienation, in any way, adversely affects the interest of the trust? Keeping in mind the said three consideration the Charity Commissioner is required to examine the matter and after allowing the parties with ample opportunity to lead evidence and to satisfy as to how the need to alienate the property of the trust is arisen and whether it would act in the interest of trust or not, he would proceed to grant or refuse the sanction. Number of factors, such as, financial position, income which the property is fetching or would continue to fetch compared to the income which the property would bring to the trust if the property is disposed of, the liabilities of trust, the price at which the property is being sold are required to be taken into account. Over and above these factors, many other relevant and genuine factors may need consideration of the Charity Commissioner.
It is an undisputed fact that the land in question is purchased by Parsi Panchayat by registered Sale Deed dated 17.6.1914. It is also the undisputed fact that in the year 1973 the charity Commissioner has granted permission for sale of land paiki of Revenue Survey No.16 of village Karanj and pursuant thereto, registered Sale Deeds have been executed in respect of land revenue Survey No.16 in favour of Behramsha Minochar and his three brothers and on coming into force of Town Planning Scheme the said Survey No. 16 has been given Final Plot Nos. 27, 28, 29, 31, 32 & 33. The development permission and N.A. Permission are also granted qua the said lands and sub-plots are transferred to different persons by registered sale deeds. The revenue records also reflects the use of the land as non-agriculture for residential purpose. Pursuant to the permission granted by the Charity Commissioner on 10.8.1973 the part of Revenue Survey No.16 is already sold and developed. Learned Advocate, appearing on behalf of Parsi Panchayat Trust has contended that out of the entire parsi community, only the petitioners have raised dispute that the lands in question are dokhma land. He has also produced the map showing that the land in question bearing final plot No.33 is of village Karanj, whereas, the dokhma land is at Survey No.65 of village Umarwada.
I have also perused the Sale Deed, executed on 17.6.1914, from which it appears that on 14.12.1913 the land bearing old Survey No.5 (new Survey No.16) of Karanj was purchased in auction by paying the consideration of Rs.8,550/- for the benefit of members of Parsi Panchayat and no where it is stated that the same can be used as Dokhma land. The petitioners have also not produced any material to support their claim that the lands of village Karanj were being used as Dokhma . On behalf of the Parsi Panchayat Trust Affidavit in Reply is filed and along with the same photographs are produced which shows that land in question was never used as Dokhma land and on the contrary there are construction on part of the lands.
It appears that one Behramsha Minochar was a care taker of the said lands who claimed rights in the land as tenant. On 10.8.1973 the Charity Commissioner gave permission to the effect that if Behramsha Minochar and his brothers leave the possession and give in writing leaving all their rights and claim in 42108 sq. yards of land then in that case the Trust shall give the remaining 26741 sq. yards of land to the said Behramsha Minochar, which means that even in the year 1973 the permission to sell a part of the land of Revenue Survey No.16 was given by the Charity Commissioner and, therefore, it is clear that the land was never used as Dokhma land, otherwise no such permission could have been granted by the Charity Commissioner in the year 1973.
From the facts narrated herein above, it clearly reveals that the land of Revenue Survey No.16 was not gifted to the Surat Parsi Panchayat as Dokhma land nor it was used as Dokhma land, but, it was purchased by the Trust in public auction and a portion of the said land is already transferred way back in the year 1973-75 and the same is already developed and people are residing there.
It appears that the Parsi Panchayat Trust has purchased the land bearing Revenue Survey No. 16, T.P. Scheme No.3, Final Plot No.33, admeasuring about 18749 sq. mtrs. at mouje Karanj, Taluka Choryasi, District Surat, which was purchased on 17.6.1914 by registered Agreement with right to sell, transfer or lease. In the revenue record also the said land/property is in the name of the Trust. The said land is an open land and in order to see that there shall not be encroachment, the trustees have entered into a lease deed on 24.3.2004 and gave the land admeasuring about 16000 sq. yards for 34 months to Kishan Construction, on yearly rent at Rs.1,20,000/- with some terms and conditions, and the land admeasuring 500 sq. yards was given on rent to Dinsha Kavasji Ghadiyali, the petitioner of Special Civil Application No. 10329 of 2010. It is alleged that instead of using the said land he had made encroachment upon other land. Thereafter, several objections were raised before the Joint Charity Commissioner. Looking to the order dated 18.6.2007 passed by the learned Joint Charity Commissioner, Surat, in Application No. 36/16/2006, filed by the Board of Trustee of Parsi Panchayat, it appears that Shri Nausir B. Dordi and two others, petitioners of Special Civil Application No.13812 of 2010, have filed their objections in which they have alleged that the land in dispute is used as Dokhma Land and also for the benefit and in the interest of Parsi community. It appears that earlier against the order dated 23.12.2004 passed by the Joint Charity Commissioner, in an application filed by the objectors, on behalf of Parsi Panchayat Trust Special Civil Application No. 825 of 2005 and 861 of 2005 were filed and Special Civil Application Nos. 17131 of 2004 and 17147 of 2004 were filed before this Court, by Kishan Construction. In Special Civil Application No. 17131 of 2004, filed by Kishan Construction, this Court vide order dated 18.4.2006, remanded the case to the Joint Charity Commissioner with certain directions. One of the direction issued by this Court in the said order is to the effect that ..... though the Charity Commissioner has discussed the matter in great detail and debated about the nature of land in several parts of the order and also partly accepted the contention of the trustees, however, in the operative order the Charity Commissioner has not given any clear findings about the nature of the land. In view of the same, the Charity Commissioner is requested to give clear finding regarding the nature of the land i.e. as to whether entire land is dokhma land or not after going through the evidence produced by respective parties before the Charity Commissioner as well as subsequent evidence produced by the defendant which I have recorded in this behalf. The other parties are at liberty to produce necessary evidence in this behalf. It appears that the petitioners of Special Civil Application No.13812 of 2010 have also filed Special Civil Application No. 18846 of 2007 before this Court against the order of the Charity Commissioner which was summarily dismissed by order dated 30.7.2007. The learned Joint Charity Commissioner has observed that looking to the Sale Deed, the property in question is not purchased for the purpose of Dokhma land. The objectors have also agreed that the property in dispute is the property of the Trust. Ultimately, the learned Joint Charity Commissioner has held that the application filed by the objectors is dismissed. Against the said order passed by the learned Joint Charity Commissioner, the applicant Nausir B. Dordi and other two have preferred Appeal/Application No.TEN/A.S./5/07 and the Board of Trustee, Parsi Panchayat and others have preferred Appeal/Application No.A.S./5/08 before the Gujarat Revenue Tribunal. After hearing the parties, the learned Tribunal by judgment and order dated 8.7.2010 has dismissed the Appeal/Application No. TEN/AS/5/07 and allow the Appeal/Application No. AS/5/08 and directed the Charity Commissioner to go ahead with the proceeding to sell the land and remanded the matter to the Joint Charity Commissioner. Against the said Judgment and order of the Tribunal, the petitioner Noshir B. Dordi and two others have preferred Special Civil Application No. 13812 of 2010 and one Shri Dinsha Kavasji Ghadiyali, (original respondent No.6 before the Tribunal) has preferred Special Civil Application No. 10329 of 2010.
In my opinion, the question is required to be examined from the point of view of powers which the Charity Commissioner has under Section 36 of the P.T. Act. In view of Section 36 of the Act as and when the trustees of the said trust intend to sell or dispose of any of the immovable properties of the trust, it is necessary to apply to the Charity Commissioner for his previous sanction. Since in the present case the trustees wanted to give some portion of the land on lease, they had to approach the Charity Commissioner for the purpose of obtaining his previous sanction. When the application is made to the Charity Commissioner, it is for the Charity Commissioner to decide as to whether such an application should be granted or not. The language of sub-section (1) of Section 36 is clear and the Legislature in no uncertain terms provided that no sale of any immovable property belonging to a public trust will be valid without the previous sanction of the Charity Commissioner. While exercising these powers under Section 36 the Charity Commissioner has first to consider as to whether the proposed alienation of trust properties is in the interest of the Trust. In order to answer that question, the Charity Commissioner is required to find out the need on the part of the public trust to dispose of or to alienate the property. Once the need is established the Charity Commissioner would have also to consider various other factors. The wording of Section 36 clearly indicates that a very important duty is cast upon the Charity Commissioner. The provision indicates that in case in which the trust deed confers upon the trustees the power to alienate trust s property whenever necessary, sanction of the Charity Commissioner would be necessary. It is very obvious that before Charity Commissioner sanctions alienation of trust property he has to apply his mind to following material questions, namely, (i) whether there is a compelling necessity to justify the alienation in question ?, (ii) whether the proposed alienation is fair and just ?
(iii) whether the proposed alienation, in any way, adversely affects the interest of the Trust ? Keeping the aforesaid three considerations in mind the Charity Commissioner is required to examine the matter and after allowing the parties with ample opportunity to lead evidence to examine the matter and after allowing the parties with ample opportunity to lead evidence and to satisfy as to how the need to alienate the property of the trust is arisen and whether it would act in the interest of the trust or not, he would proceed to grant or refuse the sanction. Number of factors, such as financial position of the trust, location of the property, the use of particular property to the trust, market position, income which the property is fetching or would continue to fetch compared to the income which the property would bring to the trust if the property is disposed of, the liabilities of trust, income of the trust and last but not the least, the price at which the property is being sold are required to be taken into account. This is not the exhaustive list of factors to be taken into account. Over and above these factors, many other relevant and genuine factors may need consideration of the Charity Commissioner. However, after taking all these relevant factors into consideration and after hearing both the parties if the Charity Commissioner sanctions the alienation of the property question is as to whether such opinion should be upset in appeal on grounds which do not materially affect the satisfaction reached by the Charity Commissioner in whom power to grant sanction is adversely vested by the Legislature.
So far as the petitioner of Special Civil Application No.10329 of 2010 is concerned, it seems that he has no locus-standi, as his interest is protected because the property sought to be transferred is on as is where is basis . Therefore, this petition does not require any consideration on this ground also.
The present petitions under Article 227 of Constitution, also need not be required to be entertained, against the concurrent findings of facts. The Hon ble Apex Court in a decision reported in (2010) 9 SCC 385 has observed as under :
The High Court, under Article 227 of the Constitution of India, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a bull in a china shop , to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law of justice.
In the present case, in my opinion, the Joint Charity Commissioner has not committed any illegality in the order, which is confirmed by the Gujarat Revenue Tribunal in Appeal and, therefore, no interference is required to be called for in these petitions under Article 227 of the Constitution of India.
In view of above discussion, I am of the opinion that the Joint Charity Commissioner was completely justified in passing the impugned order, which is confirmed in Appeal by the Gujarat Revenue Tribunal. It is well settled that unless any apparent error committed by the Authority has been pointed out, this Court should restrain itself from exercising powers under Article 227 of the Constitution of India. No illegality or impropriety has been pointed by the petitioners warranting interference of this Court under Article 227 of the Constitution of India. I am, therefore, in complete agreement with the reasoning given by and the findings arrived at by both the Authorities in the impugned order and hence, find no reasons to interfere with the same.
For the foregoing reasons, both the petitions are dismissed. Rule is discharged. No order as to costs.
(Z.K.SAIYED, J.) SAS After pronouncement of the Judgment, learned Advocate Mr. Masum Shah for Mr. Vishwas Shah prays for stay of implementation of this Judgment for 6 weeks. Considering the facts and circumstances of the case, the request is rejected.
(Z.K.SAIYED, J.) SAS Page 36 of 36