Gujarat High Court
Mahant Janardandasji Guru Legal ... vs Administrator & 2 on 12 February, 2014
Author: R.D.Kothari
Bench: R.D.Kothari
C/FA/216/1983 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 216 of 1983
With
SPECIAL CIVIL APPLICATION NO. 2947 of 1999
With
SPECIAL CIVIL APPLICATION NO. 13396 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.D.KOTHARI
================================================================
1 Whether Reporters of Local Papers may be allowed to see YES the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the NO judgment ?
4 Whether this case involves a substantial question of law as NO 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 ? NO ================================================================ MAHANT JANARDANDASJI GURU LEGAL REPRESENTRATIVES OF DECD....Appellant Versus ADMINISTRATOR & 2....Respondents ================================================================ Appearance:
FIRST APPEAL No. 216/1983 MR SP MAJMUDAR, ADVOCATE for the Appellant. MS KETTY MEHTA, SENIOR ADVOCATE WITH MS ARCHANA R ACHARYA, ADVOCATE for Respondent No. 1. MR BHAVESH HAJARE, AGP for the Respondent Nos. 2 - 3.Page 1 of 66
C/FA/216/1983 JUDGMENT SPECIAL CIVIL APPLICATION No. 2947/1999 MR SP MAJMUDAR, ADVOCATE for the Petitioner. MR BHAVESH HAJARE, AGP, for Respondent No.1-State MS KETTY MEHTA, SENIOR ADVOCATE WITH MS ARCHANA R ACHARYA, ADVOCATE for Respondent No. 2.
SPECIAL CIVIL APPLICATION No. 13396/2008 MS KETTY MEHTA, SENIOR ADVOCATE WITH MS ARCHANA R ACHARYA, ADVOCATE for the Petitioner.
MR SP MAJMUDAR, ADVOCATE for Respondent No.1 MR BHAVESH HAJARE, AGP, for Respondent Nos.2-5 ================================================================ CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 12/02/2014 ORAL COMMON JUDGMENT Parties have come up before this Court via three cases, viz; (I) First Appeal No.216/1983 arises, as the appellant claims to be aggrieved by the order passed by the District Court, Palanpur, in Civil Misc. Appeal No.12/1981;
(II) Special Civil Application No. 2947/1999 is filed by the then pujari/vahivatkarta of Koteshwar Temple against the order of Special Secretary, and (III) Special Civil Application No. 13396/2008 is filed by the Administrator, Ambaji Mata Temple Trust against the order passed by the District Page 2 of 66 C/FA/216/1983 JUDGMENT Court, Palanpur in Civil Misc. Appeal No.57/1991, wherein said Court was pleased to grant interim relief in favour of the plaintiff.
All these three cases were heard simultaneously. Issues involved in all the cases are same and identical, hence three cases are disposed of by this common judgment.
First, case of parties in First Appeal No.216/1983 may be considered.
I. FIRST APPEAL No. 216/1983:
1. Interesting question raised by the learned advocate for the appellant about propriety and validity of exercise of powers under section 70A by the Charity Commissioner while dismissing the appellant's appeal as barred by limitation is raised in First Appeal No. 216/1983.
2. The heir of the appellant or precisely, successor of the original Guru is contesting the present appeal. The appeal has arisen, thus; The original Guru, i.e. Mahant Janardandasji has filed an application for registration of Trust viz. "Shree Valmiki Ashram and Valmikeshwar Mahadev Trust" In the inquiry proceedings being Inquiry Case No. 8/1977 under Sections 18 & 19 of Page 3 of 66 C/FA/216/1983 JUDGMENT the Bombay Public Trusts Act, 1950, Deputy Charity Commissioner, at the end of inquiry, was pleased to allow the applicant's application and passed an order dated 4.6.1979 to the effect that the said Trust be registered under the Bombay Public Trusts Act accordingly. The applicant's application was contested by the Administrator, Ambaji Mata Temple. The order of the Deputy Charity Commissioner was challenged before the Charity Commissioner by the Administrator, Ambaji Mata Temple by filing an appeal (Revision Application No.15/1980). Therein, the other side had raised an objection of limitation. The Joint Charity Commissioner by his order dated 21.10.1980 was pleased to upheld the objection.
It was held that the appeal filed by the Administrator was barred by limitation. However, thereafter, the said authority proceeded to examine the case under Section 70A of the Act and considered the case on merits. In exercise of its powers under Section 70A of the Act, Joint Charity Commissioner was pleased to dismiss the applicant's application for registration of the abovenamed institution as a separate Trust. The Joint Charity Commissioner had concluded that the applicant's institution is not distinct/separate from Ambaji Mata Temple and it is integral part of Ambaji Mata Temple Trust. By holding so, the Joint Charity Commissioner dismissed the Page 4 of 66 C/FA/216/1983 JUDGMENT applicant's application for registration by order dated 14.11.1980.
3. Being aggrieved by the aforesaid order, the original applicant had preferred an application being Civil Misc. Application No.12/1981 under Section 72 of the said Act before the District Court, Banaskantha at Palanpur. The District Judge, Palanpur by his order dated 6.10.1982 was pleased to dismiss the applicant's application.
4. Being aggrieved by the dismissal of the aforesaid civil misc. application, the original applicant has preferred the present appeal before this Court.
5. Heard learned advocate Mr. S.P.Majmudar for the appellant and learned Senior Advocate Ms. Ketty Mehta with learned advocate Ms. Archana Acharya for the respondent.
6. Learned advocate Mr.Majmudar has submitted that earlier dismissal of the application by the Joint Charity Commissioner on the ground that the application is barred by limitation is dismissal on merits. Once the appeal is dismissed as barred by limitation, consideration of application by Page 5 of 66 C/FA/216/1983 JUDGMENT the authority in exercise of its sumomotu revisional powers under section 70A of the Act is bad and illegal. The authority has no such power. Further, in the alternative, the authority ought to have issued notice to the affected party about the intended exercise of suomoto power. That proceeding to consider the case on merits in exercise of suomotu power, without issuing notice, is nullity, as it is in violation of the principles of natural justice. Learned advocate Mr. Majmudar has placed reliance on the decisions (1) Kiran Singh and others versus Chaman Paswan and others, AIR 1954 SC 340, (2) Rajasthan State Road Transport Corporation & Anr. v. Bal Mukund Bairwa, AIR 2009 SC (Suppl.) 1857, (3)Charity Commissioner, Ahmedabad vs. State of Bombay (now the State of Gujarat) and Others, 1993(1) GLH 94, (4) State Govt. Houseless Harijan Employees' Association versus State of Karnataka and Others, 2001(1) SCC 610, (5) State of Madras v. Madurai Mills Co.Ltd.,AIR 1967 SC 681, and (6) Babulal Ambalal Patel & others vs. Maniben W/o Narayanbhai Punjiram Patel and Anr, 1993(2) GLR 1312. The learned advocate has also submitted brief written submissions.
7. Learned Senior Advocate Ms. Ketty Mehta has submitted that exercise of powers by the Joint Page 6 of 66 C/FA/216/1983 JUDGMENT Charity Commissioner cannot be faulted with, as there was no appeal before the said authority. It was submitted that bar for exercise of suomotu powers would come in the way of the authority only when the appeal is decided on the same subject matter. If the appeal is decided otherwise, then powers would not come in the way. The learned Senior Advocate has also referred the principle of `merger'. It was submitted that on proper application of the principle `merger', order of Joint Charity Commissioner would appear to be legal and proper. Ms. Mehta placed reliance on the decisions (1) Roshanali Akbaralli v. Nabiji Nathaji Vohra (deceased his legal heirs)1974 GLR 116, (2) Mohamad Haidar Mujawar vs Jamal Haidar Mujawar and ors, AIR 1969 (Bombay) 328 (para7) and (3) State of Madras v. Madurai MillsCo.Ltd., AIR 1967 SC 681.
8. The relevant provisions of the Bombay Public Trusts Act reads thus: "Section 70 :
(1) An appeal [against the finding or oder] of the Deputy or Assistant Charity Commissioner may be filed to the Charity Commissioner in the following cases :
(a) the finding [and order, if any,] under section 20;
(b) the finding under section 22; [(b1) the finding under section 22A;]
(c) the finding under section 28;
(d) the order under subsection (3) of Page 7 of 66 C/FA/216/1983 JUDGMENT section 54.
(2) No appeal shall be maintainable after the expiration of sixty days from the recording of the finding or the passing of the order, as the case may be.
(3) The Charity Commissioner may after hearing the appellant or any person appearing on his behalf, for reasons to be recorded in writing either annual, reverse, modify or confirm the finding of the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence.
70A. (1) The Charity Commissioner may, in any of the cases mentioned in section 70, call for and examine the record and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annual, reverse, modify or confirm the said finding or order or may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence:
Provided that the Charity Commissioner shall not record or pass any order without giving the party affected thereby an opportunity of being heard.
(2) Nothing in subsection (1) shall entitle the Charity Commissioner to call for and examine the record of any case, Page 8 of 66 C/FA/216/1983 JUDGMENT
(a) during the period in which an appeal under section 70 can lie against the finding recorded by the Assistant or Deputy Charity Commissioner in such case, or
(b) in which an order has been passed either in an appeal made under section 70 or 71 or on an application under section 72.]
9. The Joint Charity Commissioner, in the opening part of his judgment deals with upholding of objection raised by the other side about limitation in an appeal filed against order of Deputy Charity Commissioner and then, invoking section 70A, it proceeded to examine the case. The said opening paragraph of the order reads thus: "This is an application by the Administrator of the famous temple viz. Temple of Ambaji Mata situated in Ambaji village of Banaskantha District. Initially, the matter was instituted as an appeal under section 70 of the Bombay Public Trusts Act,1950. A contention was raised that appeal was barred by limitation. By order dated 4.10.1980, I upheld the plea that the appeal was barred by limitation. The matter, however, treated as proceedings under section 70A of the Act".
While passing the above order, said authority proceeded to consider the case on merits.
Page 9 of 66C/FA/216/1983 JUDGMENT
10. Brief reference to relevant facts - though not of immediate importance - may be made. Maharaja of Danta had issued "Hazur Order 4950"
dated 21.9.1946 whereby Maharaja had declared the properties situated in village Koteshwar, Kumbhariya and Jariyavav as their personal properties. On India becoming Independent and Maharaja of Danta agreed to the merger, the Government of India did not accept the claim of Maharaja that these properties are their personal properties. That had led Maharaja to file writ petition before Bombay High Court. It was allowed. However, the State had filed an appeal before the Supreme Court and the State's appeal was allowed by the Supreme Court. The State's claim was upheld in 1958. The original applicant appears to have filed an application for registration of Trust in 1977.
11. Learned advocate Mr. Majmudar has developed his case mainly on these three points;
(i) nullity, (ii) violation of the principles of natural justice, and (iii) limitation. On the point of nullity, reliance was placed on the case of Kiran Sing and others (supra), therein the Supreme Court has held that objection to the nullity can be raised at any stage. The Supreme Page 10 of 66 C/FA/216/1983 JUDGMENT Court has held in para6 as under: "6. The answer to these contentions must depend on what the position in law is when a Court entertain a suit or an appeal over which it has no jurisdiction and what the effect of Section 11 of the Suit Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial or whether, it is in respect of the subject matter of the action, strikes at the very authority of the Court to pose any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District, Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of Section 11 of the Suits Valuation Act on this position.
12. Reliance was also placed on the case of Lala Shri Bhagwan and another v. Ram Chand and another, AIR 1965 SC 1767, in support of the submission that in the present case there is violation of the principles of natural justice. Therein, it is held that applicability and Page 11 of 66 C/FA/216/1983 JUDGMENT operation of the principles of natural justice depends on the nature of jurisdiction and powers conferred on the authority to deal with the question affecting the rights of citizens. It is held in para5 thus: "When a legislative enactment confers jurisdiction and power on any authority or body to deal with the rights of citizens, if often becomes necessary to enquire whether the said authority or body is required to act judicially or quasijudicially in deciding question entrusted to it by the statute. It sometimes also becomes necessary to consider whether such an authority or body is a tribunal or not. It is well known that even administrative bodies or authorities which are authorised to deal with matters within their jurisdiction in an administrative manner, are required to reach their decisions fairly and objectively; but in reaching their decisions, they would be justified in taking into account considerations of policy. Even so, administrative bodies may, in acting fairly and objectively, follow the principles of natural justice; but that does not make the administrative bodies tribunals and does not impose on them an obligation to follow the principles of natural justice. On the other hand, authorities or bodies which are given jurisdiction by statutory provisions to deal with the rights of citizens, may be required by the relevant statute to act judicially in dealing with matters entrusted to them. An obligation to act judicially may, in some cases, be inferred from the scheme of the relevant statute and its material provisions. In Page 12 of 66 C/FA/216/1983 JUDGMENT such a case, it is easy to hold that the authority or body must act in accordance with the principles of natural justice before exercising its jurisdiction and its powers; but it is not necessary that the obligation to follow the principles of natural justice must be expressly imposed on such an authority or body. If it appears that the authority or body has been given power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose the limitation that the power should be exercised in conformity with the principles of natural justice. Whether or not such an authority or body is a tribunal, would depend upon the nature of the power conferred on the authority or body, the nature of the rights of citizens, the decision of which falls within the jurisdiction of the said authority or body, and other relevant circumstances. This question has been considered by this Court on several occasions. In the Associated Cement Companies Ltd. Bhupendra Cement Works, Surajpur v. P. N. Sharma, Civil Appeal No. 44 of 1964, dated 9121964 :
(reported in AIR 1965 SC 1595), both aspects of this matter have been elaborately examined, and it has been held, adopting the view expressed by the House of Lords in Ridge v. Baldwin, 1964 AC 40, that the extent of the area where the principles of natural justice have to be followed and judicial approach has to be adopted, must depend primarily on the nature of the jurisdiction and the power conferred on any authority or body by statutory provisions to deal with the questions affecting the rights of citizens. In other words, in that decision this Court has held that the Page 13 of 66 C/FA/216/1983 JUDGMENT test prescribed by Lord Reid in his judgment in the case of Ridge, 1964 AC 40 (supra) affords valuable assistance in dealing with the vexed question with which we are concerned in the present appeal."
13. In this regard, i.e. on the point of natural justice, reliance was also placed on the case of State Government Houseless Harijan Employees' Association vs. State of Karnataka and others, 2001 (1) SCC 610. It is a case under the Land Acquisition Act. Withdrawal of executive action, i.e. withdrawal of land acquisition under Section 48 was challenged. It was Writ Petition by beneficiaries under land acquisition notification. No notice was given to the beneficiaries informing them about intention of withdrawal of notification. Action of withdrawal of notice was challenged on various grounds. The learned Single Judge dismissed the petition and also the Division Bench. In further appeal, the Supreme Court allowed the appeal and held in Para.48, 49 and 50 as under :
"48. Furthermore, this very objection had been considered at every level and rejected on 14th November 1991 after which the Notification under Section 6 was issued and published declaring that the land was required for a public purpose. Once this was done, Page 14 of 66 C/FA/216/1983 JUDGMENT under subSection (3) of Section 6, the said declaration was conclusive evidence that the land is needed for a public purpose... The stage for questioning the public purpose aspect of the acquisition is over and cannot be reopened by the State nor can the respondents/ owners raise this issue without challenging the Notification under Section 6. They had challenged it under Art. 226 but then withdrew their writ petition. In this context it may be noted that the appellants allegation that the sudden volteface of the State Government was by reason of the pressure brought by respondent No.2 appears to have some substance. Although the respondent No.2, both before the High Court and before us, denied his involvement in the matter, the records reveal that at least by letter dated 30th December 1991, the respondent No.2 had written to the Revenue Department espousing the cause of respondent owners seeking withdrawal of the acquisition.
49. The basis on which the learned Single Judge dismissed the appellants writ petition was that there was no approval of the appropriate Government to the acquisition, namely, the absence of the third factor noted above. This was not the ground on which withdrawal from the acquisition had been made and it was not open to the State Government to justify its decision on any other ground. As held by this Court in Mohinder Singh Gill v. Chief Election Commissioner, (at SCC p.417, para.8) "[When a statutory functionary makes an order based on certain grounds, its validity must be judged Page 15 of 66 C/FA/216/1983 JUDGMENT by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge,get validated by additional grounds later brought out."
50. Besides, what had been stated in the affidavit of the State respondents is the petitioner society has not submitted any housing scheme and as such there could not have been prior approval from the Government. In other words, the fact of prior approval has not been denied.What is said is because no housing scheme had been submitted by the appellant there could not have been prior approval."
13.1 It was held that it is not open to the Government to justify its decision later on on some other ground. The case mainly is on the point of estoppel. However, therein it is also held that the natural justice is to be read into statutory provisions unless it is excluded explicitly or by implication.
14. Learned advocate Mr.Majmudar has also drawn attention to the case of Charity Commissioner vs. State of Bombay, 1993(1) GLH
94. Therein it is held that the proceedings under section 19 of the Bombay Public Trusts Act are in the nature of judicial proceedings. The Page 16 of 66 C/FA/216/1983 JUDGMENT principles of natural justice, therefore, applies. Passing of order without affording an opportunity of hearing to the affected the party would be nullity.
15. Now, two cases relied on by the learned advocate for the appellant on the point of limitation may be referred to. One is (1) Babulal Ambalal Patel & Ors. v. Maniben w/o Narayanbhai Punjiram Patel & Anr, 1993(2) GLR 1312. It arose as office has placed note and so, matter came up for consideration before the Division Bench. In a sense, points raised in that appeal come closer to the points raised in the present appeal. Therein, question of maintainability of L.P.A arose, as delay condonation application filed in the second appeal came to be rejected by the learned Single Judge. The aggrieved party sought to challenge the said order in LPA. This Court has held that delay condonation application has no independent existence from the appeal. It was held that LPA is not maintainable. Paras 7 & 9 run as under: "[7] Then the further question that comes up for consideration is what is the nature of the jurisdiction exercised by the learned single Judge, when he dismissed the application for condonation of delay in preferring the Second Appeal. An application for condonation of delay Page 17 of 66 C/FA/216/1983 JUDGMENT would arise in original jurisdiction or first appellate jurisdiction, or second appellate jurisdiction. 'The entertaining of such application and disposal of it are not independent of the main proceedings in relation to which it is filed. The filing of an application for condonation of delay is inextricably related to and connected with the main proceedings, concerning which it is filed. The nature of the main proceedings will decide the nature of the jurisdiction. If the said application is filed in relation to original proceedings, the jurisdiction invoked will be original. If it is filed in first appellate proceedings the jurisdiction will be first appellate. If it is filed in second appellate proceedings the jurisdiction involved would be second appellate. An application for condonation of delay has no independent existence de hors the main proceedings in which it is filed. Here in the present case the application for condonation of delay in preferring the second appeal must be held to have been dealt with only in second appellate jurisdiction.
[9] Once it is found that the order of the learned single Judge is a judgment and it is rendered in second appellate jurisdiction, if at all it is further appellable, it could be only with the leave of the learned single Judge, as contemplated in the latter part of Clause 15 of the Letters Patent. Such a leave, admittedly has not been accorded by the learned single Judge. Even otherwise, as already noted the learned single Judge has pronounced upon the merits of the case in the Second Appeal, and in that Page 18 of 66 C/FA/216/1983 JUDGMENT view he could be stated to have heard and decided the very Second Appeal itself and hence the bar under Sec. 100A of the Code would come into play, inhibiting the preferring of Letters Patent Appeal".
16. Mr. Majmudar has also drawn attention to Durga Charan Rautray v. State of Orissa & Anr, AIR 2012 SC 442. It appears that the Arbitrator had passed an Award in that case. The State had filed objections against the Award. The said objections were held to be time barred. One of the objections raised by the State was that contractor cannot sought adjudication by arbitration, as he had received payment after preparing final bill. This objection was upheld by the High Court. The Supreme Court reversing the judgment of the Orissa High Court held that once it is found and held that objections filed by the parties were time barred, then it cannot accept one of the objections raised by the said party. Once the plea of limitation qua objection is upheld, means objections held to be time barred, then objection has to be rejected irrespective of merits of the objections.
17. It is not possible to agree with the submissions made by the learned advocate Mr. Majmudar. Is the grievance of the appellant is Page 19 of 66 C/FA/216/1983 JUDGMENT real? Appellant's contention about violation of the principles of natural justice sounds more technical than the real one. The submission has fine rhetoric value. If we refer the record, it would appear that this objection against the Joint Charity Commissioner examining the correctness of the order passed in exercise of powers under section 70A of the Act is not taken before the District Court. Further, besides that, the order of the Joint Charity Commissioner passed under section 70A of the Act gives impression that raising of the objection as to the limitation and conducting of case on merits must have taken place simultaneously before the said Authority. Appellant does not appear to have prayed for or asked for prior determination of issue of limitation and/or requesting the said Authority to pass separate order on the plea of limitation. This was required. Further, still, on perusal of the order of the Joint Charity Commissioner, it appears that the parties have also led evidence before the said Authority. In any case, it is clear that parties have argued on all points on merits before the Joint Charity Commissioner in support of their assertion to register the appellant's Trust as a Public Trust. The grievance of the appellant as to exercise of powers under section 70A is to be appreciated in the background of these facts. The appellant, in Page 20 of 66 C/FA/216/1983 JUDGMENT the circumstances of the present case, can hardly claim/contend violation of the principles of natural justice. Assuming for a moment that no formal notice was issued by the Joint Charity Commissioner for exercise of powers under section 70A, in fact no such formal notice is issued, but in the circumstances of the case, it cannot be of any consequence, since the appellant has willingly participated in the proceedings held by the Joint Charity Commissioner. Not only that, but the said order was challenged on merits by the appellant before the District Court by filing Civil Misc. Application No. 12/81. It may be stated that both the lower authorities i.e. Joint Charity Commissioner and the District Court, Palanpur have elaborately considered each of the submissions made by the appellant on merits. The submissions advanced by the appellant were not found acceptable. Technical plea of violation of the principles of natural justice, therefore, has no substance. It would not be out of place to mention that even in clear case of violation of the principles of natural justice, not unoften courts now further ask what prejudice is caused to the party. By the said test, plea of appellant fails. Alleged violation of natural justice has not prevented appellant from participating in proceeding. The parties having participated in the proceedings cannot advance the plea of Page 21 of 66 C/FA/216/1983 JUDGMENT violation of the principles of natural justice. After all, what does violation of natural justice mean? It is not idle formality or formal ritual. It is permissible and legal for party affected to give up or forgo the compliance of natural justice. Therefore, the above case law relied on by the learned advocate for the appellant on the violation of principles of natural justice cannot be helpful to the appellant.
18. In this regard, concession made by the learned advocate for the appellant before the Joint Charity Commissioner may be referred to. Before the Joint Charity Commissioner, the appellant was represented by advocate Mr. U.P.Jadeja. The Joint Charity Commissioner records; "...... Shri U.P.Jadeja has conceded that this office has an authority to examine the questions of law and facts arising in this proceeding and that it is possible for me to reach to my own finding. He has however pressed that on merits, the Administrator has no case. He has vehemently tried to support the finding recorded by the Deputy Charity Commissioner. ....." (page37).
19. In view of the above discussion, order of the Joint Charity Commissioner cannot be said Page 22 of 66 C/FA/216/1983 JUDGMENT to be bad on account of violation of the principles of natural justice. That being so, the order cannot be said to be nullity. Therefore, Kiran Singh's case (supra) cannot help the appellant.
20. In view of the specific power conferred under Section 70A, State Government Houseless Harijan Employees' Association's case (supra) and Charity Commissioner's case (supra) on the point of "limitation" cannot help the appellant. The say of this Court in later case that delay condonation application has no existence independent from the appeal, is in the context of the provision of Letters Patent Appeal. It cannot be applied to the factsituation of the present case. It may also be noted that the plea of limitation would not come in the way of the authority exercising powers under Section 70A. Case law on the point of "limitation" does not help the appellant in the present case.
21. Reference to reasons for introducing Section 70A would help us to appreciate the meaning and scope of Section 70A. Its objects and reasons read as under: "Experience has shown that the Charity Commissioner should have revisional Page 23 of 66 C/FA/216/1983 JUDGMENT powers to call for and examine the record and proceeding before the Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding recorded or order passed by him and to annual, reverse, modify or confirm the finding or order recorded or passed by the Deputy or Assistant Charity Commissioner. No order annulling, reversing or modifying the order of the Deputy or Assistant Charity Commissioner shall be passed by the Charity Commissioner without giving the party affected an opportunity of being heard. All the provisions that apply to the order passed by the Charity Commissioner under Section 70 mutatis mutandis apply to an order passed by the Charity Commissioner under the proposed new Section 70A".
22. Learned Senior Advocate Ms.Mehta has rightly drawn attention to the decision of this Court in Roshanali Akbaralli v. Nabiji Nathaji Vohra (Decd His Legal Heirs), 1974 GLR 116. Therein, this Court has held that, ".....But, Section 70A empowers the Charity Commissioner to exercise his revisional jurisdiction in any of the cases mentioned in Section 70. It appears to me that the intention of the Legislature in enacting this section was to see that the orders passed by the Deputy or Assistant Charity Commissioner, which are not legal or correct and which are not challenged by the trustees in appeal can be corrected by him in this revisonal Page 24 of 66 C/FA/216/1983 JUDGMENT powers. ........"
Later on, in the same paragraph, i.e. para 12, this Court has held thus: "As stated above, I have not been able to follow the line of reasoning adopted by the learned Assistant Judge in this portion of his judgment. The learned Judge says that the question of exercising the revisional jurisdiction would have arisen if an appeal did not lie, against the order in question. But this is exactly the position here, because against the order passed by the Assistant Charity Commissioner refusing to set aside his exparte order, no appeal is provided in sec. 70 of the Act, and if no appeal is provided against a particular order, the only method by which the wrong in question could be remedied, was by utilisation of the revisional powers contemplated in section 70A. Therefore, it is found that the learned Extra Assistant Judge has not approached the problem with a proper perspective. Now coming to this provisions of Sec. 70A, it is found that it provides that the Charity Commissioner may, in any of the cases mentioned in Section 70 call for and examine the record and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annul, reverse, modify or confirm the said finding or order or may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional Page 25 of 66 C/FA/216/1983 JUDGMENT evidence as he may think necessary or he may himself take such additional evidence. Thus, sec. 70A empowers the Charity Commissioner to correct any order passed by the Deputy or the Assistant Charity Commissioner in any of the cases mentioned in sec. 70. The question is what are the cases mentioned in sec. 70. To answer this question, we have to make a reference to sec. 70. This sec. 70 provides for appeals from findings of Deputy or Assistant Charity Commissioner only in specified cases. These specified cases are:
(a) The findings and order, if any, under sec.20.
(b) finding under sec. 22(b1) finding under sec.22A.
(c) finding under sec. 28.
(d) the order under subsec. (3) of sec.
54. These are the five types of cases, which are referred to in sec. 70. Therefore, if from the record of these 5 types of cases, the Charity Commissioner finds anything which may require his interference, he can exercise his revisional powers under sec. 70A. On behalf of the respondents it was, however, contended that sec. 70A which confers revisional powers on the Charity Commissioner is confined in its operation only to the limitations of the appellate powers of the Charity Commissioner provided in sec. 70. 1 find that this has also been the view of the learned Extra Assistant Judge over the order against which this appeal is preferred. But this view is obviously wrong because sec. 70A Page 26 of 66 C/FA/216/1983 JUDGMENT purposely refers not to the appellate powers conferred on the Charity Commissioner under sec. 70 but to the cases mentioned in the section. The idea is that the categories of cases which are mentioned in sec. 70 being important, even if no appeal is preferred against the ultimate order passed in such cases, the Charity Commissioner can enjoy his revisional powers to set a particular matter right. Now the order of the Assistant Charity Commissioner refusing to set aside the exparte order passed by him on 19th December, 1959 was a part of the record and proceedings of the case in which he passed the exparte order on 19.12.59 under sec.20. That being so, this was a case mentioned in sec. 70, and if that was a case mentioned in sec. 70, the Charity Commissioner was entitled to send for the record of that case under sec. 70A of the Act and to satisfy himself as to the correctness of any finding or order recorded or passed by the Assistant Charity Commissioner. Therefore, even believing that an order refusing to set aside the exparte order previously passed by the Assistant Charity Commissioner was not liable to be revised in appeal under sec. 70 of the Act, it was undoubtedly liable to be revised in exercise of the revisional powers vested in the Charity Commissioner under sec. 70 of the Act. Therefore, in my opinion, the learned Assistant Judge was not correct in his finding that sec. 70A of the Act has no application to the facts of the case."
23. Learned Senior Advocate Ms. Mehta has rightly drawn attention to Mohamad Haidar Mujawar Page 27 of 66 C/FA/216/1983 JUDGMENT vs. Jamal Haidar Majawar and Ors., AIR 1969 Bom
328. The Division Bench in that case has held that, "...... This is a remedial provision for preventing perpetuation of injustice. ......" (para9).
24. The important characteristic of Section 70A may be culled out thus:
(i) the nature of power is revisional.
(ii) powers under this Section can be exercised either on the application by party or suo motu.
(iii) no period of limitation is prescribed for exercise of powers under this Section.
(iv) categories of cases in respect of which the Charity Commissioner could exercise powers under this Section are limited to those categories as provided under section 70 for exercise of appellate powers.
(v) though powers exercised are in the nature of revisional powers, it is not analogous to powers under section 115 CPC. The principal distinctive feature is unlike under section 115 CPC, herein Court can exercise suo motu powers.
(vi) In view of specific period of limitation provided under section 70, person, who fails to file an appeal within Page 28 of 66 C/FA/216/1983 JUDGMENT the period of limitation, cannot invoke powers under section 70A. On the other hand, powers are conferred upon the Charity Commissioner to see that in the larger interest of public and the wrong may not go unremedied.
25. Learned Senior Advocate Ms. Ketty Mehta has referred to and relied upon the principle of "merger". Some debate had taken place at the time of hearing on the point that when the order of inferior authority merges with that of the order of the superior authority, either in appeal or in revision. In this regard, learned Senior Advocate has drawn attention to State of Madras v. Madurai Mills Co.Ltd., AIR 1967 SC 681. The Court in that case, in turn, had relied on the decisions in the cases of (1) Commissioner of Incometax, Bombay v. Amritlal Bhogilal & Co., AIR 1958 SC 868, and (2) State of U.P. v. Mohammad Nooh, AIR 1958 SC 86, wherein this principle was elaborated by the Court.
The learned advocate for the appellant submitted that exercise of powers by the Joint Charity Commissioner in the present case is erroneous and principle of merger is not attracted in the present case. This additional plea raised by learned advocate for respondent is not required to be examined, as otherwise also Page 29 of 66 C/FA/216/1983 JUDGMENT the submission advanced by the learned advocate for the appellant fails. Therefore, applicability of doctrine of merger may not be gone into.
26. On merits, learned advocate for the appellant Mr. Majmudar has submited that the findings of the District Court are not proper and legal and the same are erroneous. The learned advocate has referred the oral evidence led before the lower authority. It was submitted that this being the first appeal, this Court should reappreciate the evidence and on correct appreciation of evidence, the appellant's appeal deserves to be allowed. The ambitious attempt made by the learned advocate for the appellant has not much substance.
27. The main findings of the learned District Court are as under: (1) Hazur Order No.4950, dated 29.9.1946 was issued by Maharana of Danta. He had declared Ambaji Mata Temple and the properties mentioned in the document as their personal properties. It refers properties of village Kumbhariya, Jariyawav and Koteshwar. The technical objection raised by the other side about admissibility of this order, it is Page 30 of 66 C/FA/216/1983 JUDGMENT held, has no substance.
(2) On India becoming independent and the Maharana of Danta agreed for merger, Government did not accept the claim of Maharana as to these properties as his personal properties. Maharana had filed writ petition before Bombay High Court. It was allowed. However, the State had filed appeal before the Supreme Court which was allowed by the Supreme Court. The said order of the Supreme Court had become final in 1958.
(3) Original applicant, i.e. Janardandasji was a paid Pujari of Ambaji Mata Temple. Exh.33 onwards are the receipts of payment of salary to the appellant. The appellant had written a letter dated 7.5.1970 to the Collector, Palanpur complaining about nonpayment of salary and the amount of "Pujapa" to the appellant.
(4) There is sufficient documentary evidence showing payment of salary and amount of "pujapa" to the appellant. (Exhs.67 to 71).
(5) Merely because the appellant is in possession of the properties or merely because name of the appellant is shown as `Vahivatkarta' in Page 31 of 66 C/FA/216/1983 JUDGMENT the Panipatrak or revenue register, it does not mean that "the appellant has become owner and that he has got right to create Trust of the said properties". Merely because original applicant Janardandasji and other persons took interest in the development of Valmiki Ashram, that does not prove that they are owners of the said Ashram. It is so, because there is 'considerable evidence' on record to show that it is integral part of Ambaji Temple.
(6) People, who give donations for development of property in question, were donating on belief that the property belongs to Ambaji Temple Trust. The appellant could obtain contribution from the public and could develop the property on account of such belief entertained by the public.
(7) The appellant has written a letter to the Administrator of the Trust requesting the latter to recommend the Collector for sanctioning 150 corrugated ironsheets for construction of cowshed. Therein, he has stated that Valmiki Ashram is not a "distinct institution", but integral part of Ambaji Mata Temple. (Say of the appellant in this regard that he is illiterate and does not Page 32 of 66 C/FA/216/1983 JUDGMENT know Gujarati, is not in the nature of inspiring confidence, as he is in Gujarat since last 50 years and he was then aged 82 years.) (8) Valmiki Ashram has very meager income.
Formally it had no income at all. It has no income even to purchase `pujapa' material for it.
28. Joint Charity Commissioner and also the District Court,both authorities, have considered the case in sufficient detail. The appellant has examined 56 witnesses and parties have produced documentary evidence. Both the authorities have discussed the oral as well as documentary evidence brought on record by the parties and the submissions advanced by the learned advocates for the parties. It is not possible to find any error in the impugned judgment so as to call for interference in this appeal. To summarize, oral evidence led on behalf of the appellant consists evidence of Janardandasji, Rasiklal (Exh.56) and Manharbhai (Exh.57), the latter two are permanently residing at Ahmedabad. The learned District Court has properly considered their oral evidence in the order under challenge. Reference and reliance on the oral evidence of Mr. Jani (Exh.64) is Page 33 of 66 C/FA/216/1983 JUDGMENT proper and legal. The conclusion that the property in respect of which registration is sought for by the appellant is an integral part of Ambaji Mata Temple and that it has no separate existence is based on material on record (Hazur Order and other evidence.) So also, the conclusion that Janardandasji is paid pujari and he was paid salary by the administrator of Ambaji Mata Temple is also based on evidence on record.
29. For the foregoing reasons, the appeal has no substance. The submission made on the propriety and validity of exercise of powers under Section 70A of the Bombay Public Trusts Act by the Joint Charity Commissioner and the submissions advanced on merits of the order passed by the said authority are not possible to accept. The Appeal is dismissed with costs.
II.
Special Civil Application No. 2947/2008 :
Now Special Civil Application No. 2947/1999 may be considered.
30. The petitioner challenges the order passed by the Additional Chief Secretary (Appeals), in Revision No. 1/1998 on 1712 1998/111999. The said order came to be passed, as the Special Secretary, Revenue Department, Page 34 of 66 C/FA/216/1983 JUDGMENT Gujarat State by his order dated 21.9.1993 had remanded the case to decide, whether the present petitioner is inferior holder or not. The said authority had framed as many as nine issues for determination in its remand order. It was pursuant to this order, the Additional Chief Secretary had decided Revision No. 1/98. Being aggrieved by the said order, the petitioner challenges the same in the present petition.
31. The claim of the petitioner is that he may be declared to be inferior holder under the Gujarat Devasthan Inam Abolition Act, 1969. The petitioner claims said declaration in respect of six properties, i.e. Survey Nos. 1, 2, 3, 8, 71 & 79 of village Koteshwar. The Mamlatdar by his order dated 3.2.1988 had declared the petitioner as inferior holder under the Act and in pursuant to that, Entry No.177 was made in the register. It was submitted at the time of hearing that series of remand order and other orders were passed in the present case.
32. Heard learned advocate Mr. S.P.Majmudar for the petitioner and learned Senior Advocate Ms. Ketty Mehta for the respondent.
33. Before referring to the submissions of the parties, I may refer findings of the Authority Page 35 of 66 C/FA/216/1983 JUDGMENT recorded in the impugned order, which are as under: (1) Mamlatdar was to decide, whether the applicant is inferior holder or not under Section 4(1)(c) of the Act in respect of the lands in question. Instead of that, the Mamlatdar had proceeded to consider whether the properties belong to Ambaji Mata Temple Trust or not, and whether the properties are of the institution of not. That, these inquiries do not fall under section 4(1)(c) of the Act.
(2) The Mamlatdar has erroneously concluded that the lands in question are not inami lands, in the sense that he had no authority to decide it. It is the Deputy Collector who is empowered to decide it.
(3) Janardandasji cannot be declared as inferior holder in respect of the lands in question, as he is no more than Pujari and Administrator.
(4) Applicant Vishwamberdas's name is entered into jointly with Janardandasji vide Entry No. 156, dated 21.1.1983. Vishwamberdas claims to be a disciple of Janardandasji. When the original holder Janardandasji was holding the position of pujari and administrator, Vishwamberdas would Page 36 of 66 C/FA/216/1983 JUDGMENT also be holding the same position and status, as his name was jointly entered into the register with Janardandasji.
(5) In short, one, who is pujari and administrator of Koteshwar Mahadev Mandir and who is receiving remuneration as a pujari, cannot be an inferior holder in respect of the disputed lands.
(6) That, the lands in question are not inherited by the applicant nor it has been received by him by succession, nor he has acquired by transfer as a tenant in land under the Tenancy Law.
(7) Pujari Janardandasji and his disciple Vishwamberdas were receiving remuneration as pujari and administrator. Therefore, they remained as pujari and administrator and they cannot be declared as inferior holders.
(8) If the applicants happen to pay revenue or they happen to cultivate the land, they were doing so on behalf of Devasthan. Therefore, pujari or administrator do not acquire any right. In other way also, the applicants cannot be said to be inferior holder since the applicants were in occupation and were administering the disputed land not in a personal capacity, but were Page 37 of 66 C/FA/216/1983 JUDGMENT occupying it on behalf of Devasthan. Therefore, they cannot be declared as inferior holder.
34. The petitioner has raised the following points.
(1) Under Inam Abolition Act, Ambajimata Trust has received compensation. Therefore, it cannot have any right, title or interest over the land in question. Hence, the said Trust cannot question or challenge the petitioner's claim.
(2) The competent authority under the Act has passed an order declaring the properties to be Devasthan land. The said order has become final. Assuming that the order passed by the authority is void order, even then such order is good and valid unless the same is challenged and set aside by the competent court. The order passed herein by the authority, however, is not void order.
(3) The possession is with the petitioner. That vide sweep of, 'otherwise' would include the petitioner's possession also.
(4) In PTR Register of the petitioner, the Page 38 of 66 C/FA/216/1983 JUDGMENT property in question is shown as petitioner's property.
(5) Originally, challenge was only to the revenue entry. That challenge went up to the Special Secretary, Revenue Department (SSRD). In the order under challenge, SSRD has held that qua some land, the petitioner is inferior holder, while qua other land the petitioner is not. Such holding is bad and erroneous.
(6) The channel and hierarchy through which the proceedings went up to the SSRD would clearly show that those proceedings were under Land Revenue Code. Reference to Inam Abolition Act is just by inadvertence. Since the jurisdiction cannot be conferred even by the consent, the order passed by the Revenue Authority is without jurisdiction.
(7) That the main affected party is the State Government and the State Government has not come forward to question the petitioner's claim.
Taking the last contention first, the attractive submission is not possible to accept. It is not that some unaffected party or one, who is a third party to the proceeding, has come forward and raised nice question for Page 39 of 66 C/FA/216/1983 JUDGMENT consideration of the Court. The respondent - Ambajimata Trust is not an "outsider" in that sense. Besides that, it may also be noted that the Collector and the other Officers manage Ambajimata Trust. Further, who has come forward to question is not an answer to the question that the petitioner is or is not inferior holder. The order under challenge cannot be faulted on this plea.
35. Before dealing with the other submissions of learned advocate for the petitioner, it may be stated that the matter was partly reheard on 8/9.1.2014. Learned advocate for the respondent opened the argument by submitting that Amabajimata Trust was registered in 1962. That the properties referred to by the petitioner are very much part of the property of Ambajimata Trust. Learned Senior Advocate Ms.Ketty Mehta has improved the submission at the time of rehearing to considerable extent. In contrast to earlier submission, now learned advocate for respondent submitted that properties in question are Inami institution. Earlier it was contended that the properties in question are not Inami land but, they are independent institutions. Then, now it was urged with vehemence that occupation of the petitioner is in capacity of servant. That all the properties, including the properties Page 40 of 66 C/FA/216/1983 JUDGMENT referred to by the petitioner - are the Devasthan land and occupation and possession of the petitioner in the circumstances of the present case is in the capacity of servant of the respondent - Trust. The occupation of the servant cannot be occupation of one's own - de hors the owner's occupation. In support of this submission, reliance was placed on para11 of the reported decision in Kamlaben, wd/o Naranbhai Jhinabhai & Ors. v. Patel Gopaldas Venidas, 1982 GLH 967.
It was submitted that claim of inferior holder ought not to be accepted as the petitioner was always occupying the property as a servant of the Amabajimata Trust. Reliance was placed on definition of 'inferior holder'. Further, strong reliance on Section 24 of the Devasthan Inam Abolition Act was placed in the argument now developed by the learned advocate for the respondent. It was submitted that since claim for registration under Bombay Public Trusts Act is found unacceptable by the two courts below and otherwise also, the properties in question being integral part of the Amabajimata Temple, in view of Section 24 of the Devasthan Inam Abolition Act, claim of petitioner should be rejected. It was submitted that all pervasive effect given to Page 41 of 66 C/FA/216/1983 JUDGMENT entries made in the register under the Bombay Public Trusts Act must have obvious consequence and the claim agitated by the petitioner must, therefore, fail.
36. Improvement made by the learned advocate for the respondents in this submissions was commented upon by the learned advocate for the petitioner. The comment on this should not detain us more because if the improved submission is otherwise finds supports from the material on record, it cannot be discarded. The submissions are not pleading. To arrive at the correct conclusion from the material on record, with the aid and assistance of the learned advocates for the parties is more important and propriety and validity of two inconsistent submissions takes back seat.
37. As to the submission that since respondent has received the compensation under the Act, respondent cannot be heard to object petitioner's claim, it can be said that tricky submission is though attractive, it has no substance. The compensation is paid to the respondent on account of abolition of Inam by the legislative provision under the Act while claim of the petitioner - none of the different submissions made - does not Page 42 of 66 C/FA/216/1983 JUDGMENT come into conflict with receiving of compensation by the respondent in any way. Otherwise also, inquiry into the nature and extent of respondent's right to object is less important if the petitioner manages to show successfully that he is inferior holder. Therefore, real question to be considered is whether the petitioner is inferior holder as claimed by it or not.
38. Let us consider whether the petitioner is inferior holder or not. The word "inferior holder" is defined in section 2(9) of the Act. It reads thus: "2(9) `inferior holder' means a person who is in possession of a Devasthan land whether by inheritance, or succession or valid transfer under the tenancy law or otherwise and who, being liable to pay assessment in cash or kind, holds such land, whether on payment of assessment or not"
It refers to devasthan land. Devasthan land is defined in section 2(7) of the Act. It reads thus: "(7) "Devasthan land" means a village, portion of a village or land held under a Devasthan inam"
Devasthan inam is defined in section 2(6) of the Act. It reads thus: Page 43 of 66 C/FA/216/1983 JUDGMENT "2(6) "Devasthan inam" means an inam consisting of a grant or recognition as a grant
(a) of a village, portion of a village or land, whether such grant be
(i) of soil with or without exemption from payment of land revenue, or
(ii) of assignment of the whole of the land revenue of the village, portion of the village or, as the case may be, land, or of a share of such land revenue, or
(iii) of total or partial exemption from payment of land revenue in respect of any land; or
(b) of cash allowance or allowance in kind by whatever name called, by the running authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under section 53 of the Code or in any other revenue record or public record maintained in respect of alienation or determined as such by a decision under section 5 of the Gujarat Surviving Alienations Abolition Act, Guj. XXXIII of 1963, but does not include
(i) revenue free sites granted by a competent authority for the construction of schools, colleges, hospitals, dispensaries or other public works from which no profit is intended to be derived, or
(ii) any alienation to which the Page 44 of 66 C/FA/216/1983 JUDGMENT provisions of the Gujarat Surviving Alienations Abolition Act, Guj.
XXXIII of 1963, or of any of the laws specified in the Schedule thereto apply;
39. The Deputy Collector had held inquiry and by order dated 28.3.1979 it has held that all the lands of village Jariyavav, Kumbhariya, Koteshwar and Ambaji are Devasthan lands. Thus, all the lands of these villages are held as Devasthan land. The said authority has also found that these villages were not paying land revenue, or to be precise, they were paying the land revenue to Ambaji Trust. One of the consequences of passing of the Gujarat Devasthan Inams Abolition Act, 1969, is that land revenue is now to be paid to the State.
40. Strong reliance was placed by the learned advocate for the petitioner on the above order of the Deputy Collector. It was contended that in view of the clear finding of the competent authority, the say of the Secretary in the order under challenge that the lands or about couple of it are not Devasthan Inam land ought to be set aside, more particularly when the order of the Deputy Collector has become final. I accept this submission. I may examine, whether the petitioner is inferior holder or not, by proceeding on the basis that the lands are Page 45 of 66 C/FA/216/1983 JUDGMENT Devasthan Inam land. So inquiry would be limited to that issue only. It may also be recalled that it is also conceded by the respondents, when the matter was reheard, that the lands in dispute are Devasthan Inam lands.
41. In the order under challenge, the Secretary has held that the petitioner cannot be considered to have become "inferior holder" by "succession" or by "inheritance" or by "valid transfer under the tenancy land". This finding of the authority was not seriously challenged by the petitioner. The claim of the petitioner is that the petitioner was very much in possession of the lands in question and in the circumstances of the case, the petitioner would fall under residuary clause "otherwise". That on the true and correct meaning of clause "otherwise", the petitioner can be held to be "inferior holder".
42. To appreciate this submission and to appreciate the meaning of "otherwise", section 2(9) may be referred to and quoted again; `inferior holder' means a person who is in possession of a Devasthan land whether by inheritance, or succession or valid transfer under the tenancy law or otherwise and who, being liable to pay assessment in cash or kind, holds such land, whether on payment of assessment or Page 46 of 66 C/FA/216/1983 JUDGMENT not"
The word "otherwise" is considered by the Supreme Court in some cases. In R & B Falcon (A) PTY Limited vs. Commissioner of Income Tax, (2008)12 SCC 466, it is held, "As a general rule, `otherwise' when following an enumeration, should receive an ejusdem generis interpretation. " (para26) In Controller of Estate Duty, Madras v. Smt. Parvathi Ammal, AIR 1975 SC 435, inter alia, section 10 of the Estate Duty Act, fell for consideration. Later part of the said section says," of any benefit to him by contract or otherwise". It refers to liability of donor arising by entering into contract or otherwise.
Therein also, it is held, "The word 'otherwise' should be considered `ejusdem generis' and should be interpreted to mean some kind of legal obligation. " (para13).
Explaining meaning of `ejusdem generis', the Supreme Court in Amar Chandra Chakraborty v. The Collector of Excise, Govt. of Tripura, Agartala & Ors., AIR 1972 SC 1863, has held thus : "The ejusdem generis rule strives to reconcile the incompatibility between specific and general words. This doctrine Page 47 of 66 C/FA/216/1983 JUDGMENT applies when (I) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category, (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration and (v) there is no indication of a different legislative intent." (para9).
43. As it is virtually not possible for the legislature to be exhaustive by enumerating every kind of possession by the holder, it refers three modes and then employs the word "otherwise". For construing it, the principle of ejusdem generis is the key. Acquiring of possession through some valid and lawful mode, may cloth the person who claims to be in possession, with recognition as "inferior holder". For instance, if a person claims to have acquired right under tenancy law and if such claim turns out to be doubtful or so overstretched that it cannot be termed as "valid transfer under tenancy law", then his claim as inferior holder via tenancy law would fall. Similarly, claim of acquiring right under the mode "otherwise" ought to be based on some valid and legal basis. Bare possession itself may not be sufficient. It is the say of the respondent that the petitioner is trespasser. Whether the petitioner is a trespasser or not, is apart, there is a finding of the competent authority Page 48 of 66 C/FA/216/1983 JUDGMENT that the petitioner is a paid Pujari of Ambaji Mata Trust. This finding is based on evidence. There are receipts on record about payment of salary as pujari and payment of amount of `pujapa' to the petitioner. There are other materials also in this regard. That finding is upheld in First Appeal No. 216/1983 decided along with the present petition. The finding of Special Secretary in the order under challenge is also on this line.
44. Learned advocate Mr. S.P.Majmudar for the petitioner has drawn attention to the judgment of the Civil Court in Regular Civil Suit No. 13/1973 decided on 30.4.1977. It appears to be the suit filed by the petitioner against the administrator of Ambaji Mata Trust. In the said suit, the plaintiff has prayed for a declaration that the suit property is of the ownership of the plaintiff and the defendant has no right to interfere with the plaintiff's management and use of the suit property. In that suit, Court has decided various issues, one of the issues was, whether the petitioner was a servant or not. Its finding is in negative. In other words, it is in favour of the petitioner. It was submitted that this finding has become final. Though the said suit of the petitioner came to be dismissed by the Court, it was submitted that the party Page 49 of 66 C/FA/216/1983 JUDGMENT aggrieved and affected, viz. respondent herein, ought to have challenged the said finding by filing an appeal against the said judgment. The respondent has allowed the said finding to become final. Therefore, the petitioner cannot be considered to be a servant.
45. It is not possible to agree with the submission of the learned advocate for the petitioner. As observed above, the competent authorities, i.e. Joint Charity Commissioner and the District Court, Palanpur, have found that the petitioner is a paid pujari. The Joint Charity Commissioner has decided the petitioner's claim in exercise of its powers under Section 70A. In his suomotu exercise of powers, Joint Charity Commissioner has considered the evidence led in the proceedings by the parties. The order of the Joint Charity Commissioner is dated 14.11.1980. The finding of the Court in R.C.S. No. 13/1973, dated 30.4.1977 has not helped the petitioner to obtain finding either before the Joint Charity Commissioner or before the District Court that he is not a paid pujari of the Trust. Further, the submission that the respondent has allowed that finding to be final is not possible to accept, as the said suit came to be dismissed by the Court. It is the petitioner, who appears to have allowed dismissal of the suit by the trial court to Page 50 of 66 C/FA/216/1983 JUDGMENT become final. Finding adverse to the plaintiff in the suit which is dismissed, and if such dismissal has become final, then such adverse finding is of no consequence, the petitioner could not seek support from it profitably from such finding.
The petitioner was holding on behalf of Ambaji Mata Trust. At the best, it can be said that the petitioner may continue his present occupation/possession as long as Ambaji Mata Trust does not remove him. It is dependent on the pleasure of Ambaji Mata Trust. Since the petitioner's occupation of the property in issue and his continuation in possession was heavily dependent on, until Ambaji Mata Trust decides otherwise, claim of the petitioner that his case is covered under the mode "otherwise" is not possible to accept.
46. The case can be considered by examining the meaning of "possession" and "liable to pay"
occurring in the definition of "interior holder".
It was submitted by the learned advocate for the respondent that Ambaji Mata Trust was liable to pay assessment. An attempt was made by the petitioner to show that the petitioner has paid the assessment. Mere fact of payment of revenue does not help the petitioner. In the Page 51 of 66 C/FA/216/1983 JUDGMENT circumstances of the present case, it is not possible to say that the petitioner was liable to pay the assessment. It is possible to agree with the submission of the respondent that the petitioner had paid the assessment on behalf of the respondent. Similarly, section 2(9) refers to "possession". It was asserted by the petitioner, and much emphasis was placed on this, that the petitioner was/is in possession. But, possession in the circumstances of the present case, as discussed above, cannot be said to be possession in the mode as contemplated in Section 2(9). Further, the correct purport and import of "possession" can be had if it is read as "right to possess". Claim which is contingent, uncertain and dependent on wishes and approval of others cannot be termed as right. In order to qualify the claim as a right, such claim should have element of permanence, it should have "status of irremovability" and status and position should be of enduring nature. On this touchstone of right to possession also claim of the petitioner fails.
47. It was submitted by the learned advocate for the respondent that the Joint Charity Commissioner has held that Koteshwar Temple etc. are integral part of Ambaji Mata Trust. That later on, this finding is affirmed by the Page 52 of 66 C/FA/216/1983 JUDGMENT District Court. In view of Section 24 of the Act, claim of the petitioner should be rejected. Section 24 reads thus: "24. Application of Bom.XXIX of 1950 not affected; Nothing in this Act shall be deemed to affect the operation of the Bombay Public Trust Act, 1950 (Bom.XXIX of 1950) in respect of any land held by an inamdar under the provisions of this Act or of any right or liability in respect of such land of any person in charge of such religious or charitable institution or having the management therefor merely by reason of the conversion of such land as an unalienated land and application thereto of the provisions of the Code and the rules made thereunder."
48. Replying this assertion, learned advocate for the petitioner has submitted that in PTR Register, Valmikeshwar Ashram is not shown as the property of Ambaji Mata Trust. In support of this assertion, attention of the Court was drawn to pages 38 & 39 of the PaperBook. Pages 38 & 39 are part of the evidence of witness Jani. Said Mr. Jani was an administrator of Ambaji Mata Temple around October, 1972. The learned advocate for the petitioner has drawn attention to the say of this witness in crossexamination. If we read the examinationinchief, it would appear that reliance placed on one sentence of the said witness is not consistent with his evidence if Page 53 of 66 C/FA/216/1983 JUDGMENT considered as a whole. Further, the Joint Charity Commissioner and the District Court has appreciated the material including the evidence of Mr. Jani and have held against the petitioner. The concurrent findings of the authorities are based on the material on record. No serious error is pointed out in that finding, which would necessitate reappreciation of material by this Court. As referred above, the petitioner's First Appeal No. 216/1983 arising from the order of the District Court is dismissed today. It is too late to urge that Valmikeshwar Ashram etc. are not integral part of Ambaji Mata Trust. Further, the petitioner's case otherwise also fails, therefore, rejection of the petition on this additional ground of section 24 of the Gujarat Devasthan Inams Abolition Act Act may not be examined closely.
49. Lastly, reference may be made to the submission of the learned advocate for the petitioner. It runs thus: That the Mamlatdar, had cancelled Entry No.91 by order dated 4.12.1979. Entry No. 91 was in the Revenue Register of Danta Taluka. Cancellation of that entry was challenged by the petitioner before the Deputy Collector in RTS Appeal No. 61/1984. That appeal came to be allowed. It followed by series of proceedings before different revenue Page 54 of 66 C/FA/216/1983 JUDGMENT authorities and it culminated in the proceedings before SSRD (Special Secretary) against whose order, present petition is filed. The proceedings that had originated by revenue Entry No.91 and the consideration of the appeal by SSRD also points to the fact that the proceedings were under the Bombay Land Revenue Code, 1879. That mere reference to Gujarat Devasthan Inam Abolition Act by "inadvertence" it was submitted, does not cloth with jurisdiction to the revenue authority to decide the question of title and interest of a person under the Gujarat Devasthan Inam Abolition Act. That parties have participated in the proceedings is immaterial because jurisdiction cannot be conferred upon the authority even by consent. Further, it was submitted that revenue authority while deciding validity of mutation entry cannot decide the question under the Gujarat Devasthan Inam Abolition Act. That such cross utilization of power is bad and illegal. In support of this, reliance is place on Laxmi Associates v. Collector, Vadodarsa & Anr. 2006(3) GLR 1982.
49.1 In Laxmi Associate's case (supra), the petitioner had filed an application under section 65 of the Bombay Land Revenue Code to the Collector for N.A.Permission. The authority was Page 55 of 66 C/FA/216/1983 JUDGMENT of the opinion that there is breach of section 9 of the Bombay Prevention of Fragmentation Act, 1947. So, holding so, without issuing any notice to the party for the alleged violation of section 9 of the Prevention of Fragmentation Act, the Collector had rejected the application for N.A. permission under section 65. The said action of the collector came up for consideration before this Court. Allowing the petition and quashing the order of the Collector, this Court has held that cross utilization of power by the revenue officer under different law/s is not permitted.
50. Ingenious attempt made to develop the submission on the basis of Laxmi Associate's case (supra), is not possible to accept. This submission has no substance. It would appear that in that case, Collector had proceeded to reject the application, under one Act, i.e. Bombay Land Revenue Code, for the alleged violation of provisions of another Act i.e. The Prevention of Fragmentation Act, without issuing any notice to the party and without giving an opportunity of hearing to the party. In the present case, the submission made by the learned advocate for the petitioner that "inadvertently" reference is made to Gujarat Devasthan Inam Abolition Act, is contrary to the record. Not only that, but the parties have proceeded to conduct the proceedings Page 56 of 66 C/FA/216/1983 JUDGMENT before the authority with knowledge and understanding that in the issue is status of the petitioner under the Gujarat Devasthan Inam Abolition Act, revenue entries and proceedings under the revenue laws, truly speaking, were never in issue between the parties. In an appeal before the Deputy Collector by the petitioner, wherein cancellation of revenue Entry No.91 was challenged, it may be noted, the say of the petitioner was that he is inferior holder under the Gujarat Devasthan Inam Abolition Act. In that proceedings and in the later proceedings, case of the petitioner was that he is inferior holder under the Gujarat Devasthan Inam Abolition Act. Thus, it is not correct to say that the proceedings were under the revenue laws before the revenue authorities and the said authorities have wrongly assumed jurisdiction under the Gujarat Devasthan Inam Abolition Act. The proceeding had proceeded under the Gujarat Devasthan Inam Abolition Act. The parties were prosecuting the proceedings for deciding issue under the Gujarat Devasthan Inam Abolition Act. The authority was competent to conduct the proceedings. That being so, the present case is not the case wherein party can press into service the principle that even consent cannot confer jurisdiction. The present case is not a case of defect in jurisdiction, in any manner. This Page 57 of 66 C/FA/216/1983 JUDGMENT submission, therefore, also fails.
51. Can a person be pujari and at the same time, inferior holder. He can. It depends. To be exact, inferior holder can be pujari, but all pujari, as in the present case, cannot be inferior holder. In the present case, it is accepted that lands bearing survey Nos. 1, 2, 3, 8, 78/A & 79 are Devasthan Inam land. The claim of the petitioner that he is inferior holder is not possible to accept. Hence, the petition fails.
III.
Special Civil Application No. 13396/2008 :
Now Special Civil Application No. 13396/2008 may be considered.
52. The respondentplaintiff instituted Regular Civil Suit No. 179/1991 before the Civil Court (SD), Palanpur praying, in substance, that the defendant therein be restrained by injunction from causing interference in the plaintiff's possession of the suit properties. The suit properties are, Survey Nos. 1, 2, 3, 8, 71 & 79 of village Koteshwar. The plaintiff's claim is based on an assertion that under the Devasthan Inam Abolition Act, 1969, plaintiff is declared inferior holder. To be precise, claim is, Page 58 of 66 C/FA/216/1983 JUDGMENT predecessor Pujari Janardandasji from whom the plaintiff claims to have acquired occupancy right as a disciple of Janardandasji was the inferior holder.
53. The petitionerdefendant has denied all the assertions of the plaintiff. Learned trial Court, after considering the rival submissions made by the parties, was pleased to grant injunction. In appeal, the first Appellate Court has maintained the interim relief. The petitionerdefendant has challenged the order passed by the first Appellate Court in the present petition.
54. The order of the first Appellate Court runs into typed 44 pages. Its daunting length is misleading, as submissions of the learned advocate for the parties extend to endless length and it is only in the last paragraph, i.e. para 91, Court winds up discussion saying that since 45 years, the plaintiff is in occupation and possession of the properties granted to him by Danta Maharana and panipatrak, jungle book, revenue receipts etc. revenue records show continuous and unbroken possession of the plaintiff. In that circumstances, no proper and reasonable cause to interfere in the order of trial Court,it says, as lower Court does not appear to have committed any error in evaluating Page 59 of 66 C/FA/216/1983 JUDGMENT evidence. Holding so, it confirms the order passed by the learned trial Court.
55. Heard learned Senior Advocate Ms. Ms.Ketty Mehta for the petitioner and learned advocate Mr. S.P.Majmudar for the respondent.
56. The submissions of Ms. Mehta are mainly three fold; (i) it is proved by oral and documentary evidence on record that the plaintiff is trespasser; (ii) plaintiff has failed to show successfully that he is inferior holder; and
(iii) in the suit filed earlier, i.e. Civil Suit No. 13/1973, predecessor Janardandasji had failed.
57. In the written submissions, learned advocate has invited attention to the documentary evidence produced by the petitioner to rebut the assertions of the respondent.
58. On the other hand, learned advocate Mr. Majmudar for the respondent supports the order under challenge. It was submitted that the learned first Appellate Court has elaborately considered the rival submissions of the parties and the said order does not call for any interference in exercise of powers under Article 227, particularly when the petitioner seeks Page 60 of 66 C/FA/216/1983 JUDGMENT interference in the concurrent findings of the learned lower Courts. It was submitted by Mr. Majmudar that assuming that the possession of the respondent is unauthorized, even then the fact is that the respondent is in possession of the suit properties since last 50 years and that implies that the plaintiffrespondent cannot be evicted without following the due procedure of law. The suit of the present nature would not be barred under Section 80 of the CPC. It was also submitted that one of the consequences of Hazoor Order and the order of the Supreme Court is lands in question declared Government land and further consequence is it devolves upon the plaintiff as inferior holder. That the State has neither challenged the assertion of the respondent urging that he is not inferior holder nor has taken any action for eviction on the ground that the respondent is not inferior holder. That being so, the claim of the petitioner is neither proper nor legal.
59. The most favourable points in favour of the respondentplaintiff are mainly two; one is orders of two Courts below, which are in favour of the plaintiff. Powers of this Court in a petition under Article 227 of the Constitution of India wherein two Courts below in interim discretionary order has exercised discretion in Page 61 of 66 C/FA/216/1983 JUDGMENT favour of the plaintiff are severally limited. Generally, the Court would not interfere in those cases and would not upset the two Courts' orders. The other favourable point is plaintiff's possession of the land in dispute etc.
60. Taking the second point first, the learned advocate for the petitioner has in written submissions referred to voluminous documentary evidence produced by the respondent before the learned trial Court. Reference may be made to these documentary evidence:
(a) Marks 21/8, 21/39 to 21/42, 21/57 to 21/60 are the receipts of payment of salary paid to Janardandasji as apujari.
(b) Marks 21/10 to 21/45 : documents showing land given by Ambaji Mata Temple Trust for the use of "Mela" and other use and amount collected for the use of such land.
(c) Marks 21/9 and 21/46 to 21/48 : Light bills etc. paid by Ambaji Mata Temple Trust in respect of the property in dispute.
(d) Mark 21/3 : Order of Joint Charity Commissioner.
(e) Mark 21/4 : Judgment of the District Court.
(f) Marks 25/2 to 25/6 and 25/8, 25/13 to 25/26 and 25/40 to 25/49 : other receipts of payment of salary to Janardandasji as pujari.
Page 62 of 66C/FA/216/1983 JUDGMENT
(g) Mark 25/1: Order of the Collector dated 18.4.1963 increasing the pay of pujari Janardandasji.
(h) Mark 25/11: Application by Brahmins, who had performed puja at Koteshwar temple, wherein Brahmins had requested for payment of bus fare.
(i) Mark 25/32 : order by Maharaja of Danta.
(j) Mark 25/34 to 25/39 and 25/50 : Receipts of daily income from Koteshwar temple.
(k) Marks 25/52 & 25/53 : Receipts of payment made for use of land by third parties for the purpose of "Mela" held on 14.8.1973 and on other dates.
(l) Marks 25/54 & 25/55 : Applications by Pujari Janardandaji to increase his pay.
61. When any order can be said to be perverse ? One answer is when the authority or Court passes an order ignoring or in disregard of documentary or other evidence on record, such order can be said to be perverse. In the present case, the conclusion drawn by the lower appellate Court, as referred to above, is mainly based on continuous and uninterrupted possession of the respondent. The learned Court has not even distinguished the abovereferred documentary evidence placed on record by the petitioner. It is the say of the petitioner that the respondent is a trespasser. The respondent denies this. At Page 63 of 66 C/FA/216/1983 JUDGMENT this stage of the proceedings, it would not be proper to draw a conclusion about the nature of occupation of the respondent, but the respondent in order to succeed in the claim for interim relief has to show successfully that his occupation is lawful occupation, in the sense that his occupation has some basis supported and identifiable by law. Mere say that he is in possession of the property, on the face of overwhelming/voluminous material, as referred to above, his occupation cannot be said to be lawful occupation or cannot be said to be occupation of kind that can be successfully enforced or defended in the Court, in case of interference in it. In the circumstances of the present case, it can be said that the order passed by the lower appellate Court is perverse. Hence, interfere is called for.
62. As to the interference with the concurrent findings of the two lower Courts, it can be said that the order passed in ignorance or in total disregard of the documentary evidence on record calls for interference in the present case. The order under challenge is perverse. Hence, interference is called for. Further, it is also important to note that the predecessor of the petitioner, namely, Janardandasji, who was vigorously litigating against Ambaji Mata Temple Page 64 of 66 C/FA/216/1983 JUDGMENT Trust, has passed away. The petitioner has rightly questioned the right and status of the present petitioner, who claims to be the successor of Janardandasji. The respondent has not shown that the respondentsuccessor of Janardandasji has ever been recognized by the petitioner. It may also be noted that even Janardandasji had earlier failed in Civil Suit No. 13/1973, which was contested and decided on merits, and as referred to above, after dismissal of the suit, party had not persuaded the matter further.
63. The present petition, therefore, succeeds. The orders passed by the Courts below are hereby quashed and set aside. It would be open for the petitioner to recover possession of the land in dispute from the respondent in accordance with law.
64. In view of the foregoing discussion, all the three cases are hereby disposed of. First Appeal No. 216/1983 is dismissed with costs. Similarly, Special Civil Application No. 2947/1999 is also dismissed with costs. Rule is discharged. Special Civil Application No. 13396/2008 is allowed. It would be open for the petitioner to recover possession of the land etc. in dispute from the respondent, in accordance Page 65 of 66 C/FA/216/1983 JUDGMENT with law. Rule is made absolute. No cost.
(R.D.KOTHARI, J.) Patel Page 66 of 66