Gujarat High Court
Maneklal vs Joint on 18 March, 2011
Author: Chief Justice
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/1446/2010 14/ 14 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1446 of 2010
In
SPECIAL
CIVIL APPLICATION No. 5668 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=========================================================
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 ?
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MANEKLAL
P SHAH TRUSTEE OF BHUJ PANJRAPOL TRUS - Appellant(s)
Versus
JOINT
CHARITY COMMISSIONER RAJKOT & 3 - Respondent(s)
=========================================================
Appearance
:
MR
AR THACKER for
Appellant(s) : 1,
MR CB UPADHYAYA for Respondent(s) : 1,
MR SP
HASURKAR for Respondent(s) : 2,
MR KIRTIDEV R DAVE for
Respondent(s) : 3 - 4.
MR RAHUL K DAVE for Respondent(s) : 3 -
4.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: /03/2011
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The present Appeal is directed against the judgment and order dated 5th May 2010 passed by the learned Single Judge in Special Civil Application No.5668/2010, wherein the petition preferred by the appellant herein was ordered to be summarily dismissed.
The brief facts relevant for the purpose of deciding the present Appeal can be summarised as under:-
The appellant is one of the trustees of respondent no.2 Trust.
The respondent no.2 Trust is registered under the Bombay Public Trusts Act, 1950 with the Assistant Charity Commissioner at Bhuj.
The Trust was owning agricultural land bearing Survey No.15 admeasuring 8-Acres-39-Gunthas in village Mirjapur, Taluka Bhuj.
The Trust decided to dispose of the said agricultural land in the year 2005. The Trust took the decision to dispose of the land as after the earthquake in the year 2001, the sheds and godowns which were available for keeping the cattle were destroyed and new land was allotted by the State Government on which sheds, godowns and tubewell were required to be built and for that purpose there was an estimate of Rs.38 lakhs which the Trust would incur. In order to meet these expenses, the Trust took a decision to put the land for sale.
The Trust, after passing necessary resolution in the meeting of the Trust, applied for permission under Section 36 of the Bombay Public Trusts Act, 1950 (for short, 'the Act') before the Joint Charity Commissioner, Rajkot.
It appears that the appellant, as one of the trustees, opposed the idea of the Trust to sell the land and, therefore, he appeared before the Joint Charity Commissioner and tendered his objections. The Joint Charity Commissioner, Rajkot took into consideration three things:
(i) whether there was a compelling necessity to justify the sale of land;
(ii) whether the alienation was just and fair; and
(iii) whether the alienation, in any way, would adversely affect the interest of the Trust.
After considering all the relevant aspects of the matter including the objections of the appellant and the documentary evidence on record, the Joint Charity Commissioner granted permission to sell the land vide order dated 27th October 2008 passed in Application No.36/25/ 2005, subject to certain conditions.
The appellant, feeling aggrieved, preferred appeal being Appeal No.TEN/AR/17/2008 before the Gujarat Revenue Tribunal under Section 36(3) of the Act. The Tribunal was satisfied with the order passed by the Joint Charity Commissioner and after considering all the relevant aspects of the matter, thought fit to dismiss the appeal vide its judgment and order dated 22nd February 2010. Feeling aggrieved by the order passed by the Gujarat Revenue Tribunal in Appeal No.TEN/AR/17/2008, the appellant preferred Special Civil Application No.5668/2010 and challenged the order of the Tribunal. The learned Single Judge, after having gone through the orders passed by the Joint Charity Commissioner, Rajkot and the Gujarat Revenue Tribunal and also considering the case-law relied upon by the appellant, came to the conclusion that both the authorities, namely, the Joint Charity Commissioner, Rajkot and the Gujarat Revenue Tribunal have taken just and appropriate decision and no interference was warranted in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India.
The learned Single Judge has further observed that bare perusal of the order of the Tribunal would suggest that each and every objection raised by the appellant was separately and distinctly dealt with by the Tribunal and proper reasons are given as to why the objections raised by the appellant are not to be accepted. The learned Single Judge also took notice of the fact that proper advertisement in local daily was published and objections were invited in this regard. No procedural infirmity worth the name was noticed by the learned Single Judge. Considering all this aspects, the learned Single Judge thought fit to dismiss the petition summarily. It is against this order of the learned Single Judge that the appellant has preferred the present petition.
We had heard learned counsel Mr.A.R.Thacker for the appellant at length on 8th March 2011. The matter was treated as part-heard and once again it was taken up for hearing on the next date i.e. on 9th March 2011. The principal contentions on behalf of the learned counsel for the appellant are as under:-
The decision of the Trust to sell the land is not in the interest of the Trust;
There was no compelling necessity to justify the alienation; and The alienation is not just and fair.
So far as these contentions are concerned, we brought to the notice of the learned counsel that they are all findings of facts and having regard to the fact that both the authorities, namely, the Joint Charity Commissioner and the Tribunal have recorded clear-cut finding as regards the compelling necessity to justify the alienation and the finding about the decision taken in the interest of the Trust which has been further confirmed by the learned Single Judge, we would not like to disturb the findings of facts recorded by the authorities below and confirmed by the learned Single Judge. However, learned counsel thereafter strenuously urged that the entire sale of land is not in accordance with the provisions of the Act. According to him, one trustee could not have executed the sale deed in favour of the buyer and further the value of the property has escalated, which is now about Rs.1.5 crores whereas the sale consideration has been only for Rs.54,05,000=00. He further contended that as per the constitution of the Trust, nine trustees can be appointed out of which posts of four trustees are vacant and at present there are only five trustees administering the affairs of the Trust. Therefore, according to him, four trustees out of nine trustees could not have taken the decision to dispose of the land of the Trust.
We have noticed that in the entire writ petition there is no challenge to the sale of the land. The subject matter of challenge was the order of the Joint Charity Commissioner, Rajkot granting permission to the Trust to sell the land under Section 36(1) of the Act, and confirmed by the Tribunal in appeal. Even otherwise, the appellant could not have made the sale of the land, subject matter of challenge. Assuming for a moment that the permission granted by the Joint Charity Commissioner is not in accordance with law, by itself, would not be sufficient to annul the entire sale. For annulment of sale, the appropriate proceedings are to be initiated in accordance with law. Legality and validity of a sale has to be challenged in a civil court by filing a civil suit seeking appropriate declaration. Sale cannot be annulled in exercise of powers under writ jurisdiction.
We also take notice of the fact that the appellant has not produced the constitution of the Trust. In the absence of the constitution of the Trust, it is very difficult to decide as to whether one trustee could have been delegated the powers of entering into the transaction with the buyer or execute the sale deed in favour of the buyer on behalf of the Trust. In the absence of any evidence in this regard, we do not propose to go into all these aspects. We are convinced and satisfied with the order of the learned Single Judge, which has considered in detail the orders of the authorities below, namely, the Joint Charity Commissioner, Rajkot as well as the Tribunal.
However, learned counsel still continued with his submissions and submitted that the law in this regard is well-settled and the authorities below and the learned Single Judge as well has not considered the case-laws. He has relied upon the judgment of this High Court in the matter of Hamumiya Bachumiya and others v/s. Mehdihusen Gulamhusen and others, reported in 1978 GLR 661. He has relied upon this judgment for the purpose of canvassing the proposition that it is the paramount duty of the trustees to protect the interest of the Trust and avoid alienation, in any way, adversely affecting the interest of the Trust. In this case, the Charity Commissioner had refused permission to sell a property which was a subject matter of challenge in appeal before the Tribunal and the Tribunal set-aside the order of the Charity Commissioner and granted sanction under Section 36 of the Act. Learned Single Judge took the view on the peculiar facts of that case that the Charity Commissioner was justified in refusing sanction and the Tribunal had committed an error in setting aside the order of the Charity Commissioner.
In the case of Hamumiya Bachumiya and others (supra), the Charity Commissioner took into account the fact that the Trust cannot be given permission to sell the land only on the ground that the tenant himself wanted to purchase the property by paying price of Rs.15,000=00 and that it would be difficult to evict the tenant and for construction purposes a loan was forthcoming and the Trust was having a cash of Rs.17,000=00 remaining unutilised and as the Trust had got other open pieces of land besides the disputed land, the land in question can be sold. The facts were altogether different and the ratio of the judgment rendered by the learned Single Judge in Hamumiya Bachumiya's case cannot be applied in the present case as the same is in context with peculiar factual background.
Learned counsel has relied upon another judgment of this Court in the matter of Thakorebhai Gangaram v/s. Ramanlal Maganlal Reshamwala, reported in 1993(1) GLH 473. In this judgment, the learned Single Judge has given guidelines for exercise of powers by the Charity Commissioner under Section 36 of the Bombay Public Trusts Act. In this judgment, it is said that before the Charity Commissioner sanctions alienation of Trust's property he has to apply his mind to the 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?
This judgment has also taken a view that once the Charity Commissioner is convinced and after due regard to the three material questions referred to above got necessary permission, the same cannot be disturbed by the Tribunal on grounds which do not materially affect the satisfaction reached by the Charity Commissioner. This judgment is also not helpful to the appellant as we are of the view that all the three material questions about compelling necessity, fair and just nature of alienation and the interest of the Trust have been well answered by the authorities below and taken care of.
Counsel also relied upon the judgment of the Division Bench of this Court in the matter of Upendrabhai Shantilal Maniar v/s. Sheth Shri Morarjibhai Dhanjibhai Padiya and another, reported in 2008(3) GLH 308. This judgment is also not helpful, in any manner, as in this judgment the concept of compelling necessity has been explained. On the contrary, this judgment says that the expression "compelling necessity" cannot be used for the purpose of tying down the trustees for all time to come or for preventing them from making much better bonafide use of the assets of the trust with the sanction of the Charity Commissioner.
Counsel has further relied upon the decision of the Supreme Court in the matter of H.E.H. The Nizam's Jewellery Trust M/s.Shanti Vijay and Company, etc. vs. Princess Fatima Fouzia and others, reported in AIR 1980 SC 17. He has relied upon this judgment to canvass the proposition that in the case of a private trust where there are more trustees, all must join in the execution of the trust. The concurrence of all is in general necessary in a transaction affecting the trust property, and a majority cannot bind the trust estate. He has relied upon this judgment to canvass the proposition that a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees.
This judgment is also not helpful because as we have observed earlier that the sale is not under challenge and the entire sale cannot be annulled on the premise that the permission under Section 36 of the Act is not proper. On the contrary, in this judgment the Supreme Court has said that as a necessary corollary, that where there are several trustees they must act unanimously in making a sale or a contract of sale in respect of trust property, unless it is provided otherwise by the terms of the trust deed. As we have observed, we do not have the trust deed as it has not been produced at any point of time.
We have noticed and prima facie it appears that the writ petition preferred by the appellant-original petitioner was lacking in bonafides. On account of some inter se disputes amongst the co-trustees the entire issue became vexed and lot of judicial time has also been wasted for no good reasons.
We are of the view that the learned Single Judge has committed no error much less an error of law in dismissing the petition summarily after having considered all the relevant aspects of the matter, more particularly, the orders passed by the Joint Charity Commissioner, Rajkot and the Tribunal.
In this view of the matter, we are not inclined, in any manner, to interfere. The Appeal must fail in absence of any merits. The Appeal is accordingly dismissed.
In the facts and circumstances of the case, we deem it fit and appropriate to impose cost of Rs.10,000=00 upon the appellant. The appellant shall deposit a sum of Rs.10,000=00 with the Red Cross Society, Ahmedabad and produce the receipt of the same before the registry of this High Court within a period of fifteen days from today.
(S.J.Mukhopadhaya, CJ.) (J.B.Pardiwala, J.) /moin Top