Calcutta High Court (Appellete Side)
Pravash Hazra vs Subrata Sen And Ors on 7 May, 2008
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J (2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
C.O. No. 1101 of 2006
Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Pravash Hazra.
Versus
Subrata Sen and Ors.
For the Petitioner: Mr. Sakti Nath Mukherjee,
Mr. Niloy Sengupta,
Mr. Indranil Karta,
Mr. A. Chatterjee.
For opposite party No.2: Mr. Amitesh Banerjee,
Mr. Jishnu Chowdhury,
Mr. Sanjev Kr. Trivedi.
Heard On: 23.04.2008 & 24.04.2008.
Judgement On:07.05.2008.
Prasenjit Mandal, J. : This application under Article 227 of the
Constitution of India is directed against the order no.11 dated
24.01.2006and order no.15 dated 04.03.2006 passed by the learned District Judge, South 24 Parganas in Misc. Case No.310 of 1998 whereby by the first order dated 24.01.2006 the learned District Judge has granted permission to sell the debuttar properties as described in the body of the application to M/s. Power Transmission and Casting Private Limited at a consideration of Rs.25,00,000/- in modification of the earlier order dated 09.09.1998 and by the second order dated 04.03.2006 the learned Judge has rejected the prayer of the applicant to rescind the order dated 24.01.2006.
The fact of the case leading to the passing of the impugned orders is that by order dated 09.09.1998 the learned District Judge granted permission to the trustee to sell certain immovable properties to one intending purchaser namely, Sri Pravash Hazra or his nominee at a consideration of Rs.25,00,000/-. More than 8 years had passed; but Sri Pravash Hazra was not able to complete the transaction and as such the trustee revoked the power of attorney executed in favour of Sri Hazra intimating him to cancel the agreement of sale dated 10.12.1997. Thereafter, by the impugned order dated 24.01.2006 the learned District Judge, South 24 Parganas modified the order dated 09.09.1998 and permitted the sebait, Prem Chand Sen, to sell the property at a consideration of Rs.25,00,000/- to M/s. Power Transmission and Casting Private Limited along with other conditions. Sri Hazra filed a petition praying for modification of the said order and giving him an opportunity to purchase the debuttar property at the said consideration money and thus to rescind the order dated 24.01.2006. That petition was rejected. So, Sri Hazra has filed the present application under Article 227 of the Constitution of India to set aside the impugned orders.
The learned Advocate for the petitioner has contended before me on law points. First of all, he has submitted that the impugned orders are not maintainable at all because Section 34 of the Indian Trusts Act, 1882 will not be applicable in the instant case because the intended sale does not come within the meaning of management or administration of the trust property. He has also contended that the provisions of Section 7 of the Charitable and Religious Trust Act, 1920 will not also apply because the trust in the instant case was not created or existing for a public purpose of charitable or religious nature and so the Section 7 of the Charitable and Religious Trust Act, 1920 could not apply at all.
It is also contended before me that the petition over which the impugned order dated 24.01.2006 was passed does not lay down any section or provision under which the said petition was filed. Under the circumstances, the impugned orders cannot be sustained and must be set aside. This is the main contention of the petitioner with respect to the present application under Article 227 of the Constitution of India.
On hearing submissions of the learned Advocates of both the sides and on perusal of the record, it appears that the sebait/trustee filed the application which was numbered as Misc. Case No.310 of 1998 under Sections 34 and 36 of the Indian Trusts Act, 1882 praying for sale of certain immovable properties of the ancestral family deity, Sri Sri Gopi Chand Ballav Jew, for performing the daily seva puja, repairing works of the building, etc. and for that reason one agreement was held between the sebait/trustee and one, Pravash Hazra, for sale of the property mentioned in schedule 'A' of the said application. That Misc. Case was allowed permitting the sebait/trustee to sell the said property to Sri Pravash Hazra by the order dated 09.09.1998. Since then, 8 years had already passed but the intending purchaser, Sri Pravash Hazra, was not able to purchase the said property of the deity. That order dated 09.09.1998 was not challenged by Sri Hazra at any point of time. But ultimately when he failed to perform his part of the agreement and when the sebait sought permission of the Court under Sections 34 and 36 of the Indian Trusts Act, 1882 to sell the said property to M/s. Power Transmission and Casting Private Limited the applicant woke up and he filed an application for setting aside or rescind the order dated 24.01.2006 and as such the two impugned orders were passed. A person cannot be allowed to blow hot and cold in the same breadth. Once he supported the order dated 09.09.1998 when it was made in his favour under Sections 34 and 36 of the Indian Trusts Act, 1882. No doubt, the property in case belonged to the ancestral family deity, Sri Sri Gopi Chand Ballav Jew, and so the provisions of Sections 34 and 36 of the Indian Trusts Act, 1882 would apply in case of any order made relating to the management and administration of the properties of the deity. The purpose of sale had been clearly indicated in the order dated 09.09.1998 which was not challenged by the petitioner because it was in his favour.
The applicant knew very well the contents of the application (annexure 'G') over which the impugned order dated 24.01.2006 was passed. Moreover the Misc. Case No.310 of 1998 arose out of an application under Sections 34 and 36 of the Indian Trusts Act, 1882. So the applicant was in a position to know under which provision or application was filed by the sebait for modification of the order dated 09.09.1998.
It is also pertinent to refer the ruling AIR 1975 Calcutta 67 which clearly lays down the ratio that in the given circumstances as in the present case the provisions of the Indian Trusts Act, 1882 should be followed.
Therefore, I hold that the applicant cannot be allowed to challenge the order dated 24.01.2006 when the sebait/trustee got the order for sale of the property of the deity to another person in lieu of Sri Hazra. The impugned order dated 24.01.2006 passed by the learned District Judge, I hold, comes within the purview of Section 34 of the Indian Trusts Act, 1882 as the petitioner has failed to comply with the performance of his part with regard to the agreement for sale. He cannot have any say when the sebait/trustee had taken steps for disposal of certain property of the deity to a third party after waiting for a period more than the reasonable period.
It is true that such disposal of property does not come within the purview of Section 7 of the said Charitable and Religious Trusts Act, 1920 because the4 property belongs to a private endowment.
In view of the above observations, I hold that the contention of the applicant cannot be accepted. I hold that the present application under Article 227 of the Constitution of India is devoid of merits and that there is nothing to interfere with the impugned orders.
Accordingly, the application under Article 227 of the Constitution of India is dismissed on contest but without costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocate for the parties on their usual undertaking.
(Prasenjit Mandal, J.)