Gujarat High Court
Bhikhabhai vs Jagabhai on 15 April, 2010
Author: K.A.Puj
Bench: K.A.Puj
Gujarat High Court Case Information System
Print
SCA/4627/2010 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4627 of 2010
======================================
BHIKHABHAI
RAIJIBHAI BHARWAD
Versus
JAGABHAI
RAIJIBHAI BHARWAD & ORS
======================================
Appearance :
MR.SUBHASH
G BAROT for Petitioner
======================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 15/04/2010
ORAL
ORDER
1 The petitioner has filed this petition under Article 226 of the Constitution of India praying for quashing and setting aside the order dated 25.08.2008 passed by the learned Gujarat Revenue Tribunal, Ahmedabad, in Review Application Nos. 31 of 2008 and 36 of 2008 whereby the learned Tribunal has reviewed the Order passed by the earlier Bench on 21.08.2008 in Appeal Nos. 23 of 2008 and 24 of 2008 dated 21.08.2008.
2 Heard Mr. Subhash Barot, learned Advocate, appearing for the petitioner.
3 It is the case of the petitioner that the land bearing Survey No.491 admeasuring 3 acres 5 gunthas and land bearing Survey No. 493 admeasuring 2 acres 13 gunthas of village Vadaj, District & Sub-District Ahmedabad, is owned by Shri Lalbhai Dalpatram Memorial Trust. The father of the petitioner i.e. Raijibhai Harjibhai Bharwad was tenant of the said land and his name was entered into the revenue records as tenant by revenue Entry No.2940 on 25.11.1948. The petitioner and Jagabhai Raijibhai Bharwad are heirs of said Raijibhai Harjibhai Bharwad, who are entitled to be declared as tenants and possession of the land in question under the Tenancy Act. Jagabhai Raijibhai Bharwad in capacity of heir of Raijibhai Harjibhai Bharwad made an application before learned ALT & Mamlatdar, being Ganot Case Nos.75 of 1992 and 76 of 1992, which came to be allowed and heirs of Raijibhai Harjibhai Bharwad were made entitled to purchase the land by making payment of Rs. 13,656/- to the Trust. The said order was passed on 02.01.1998 by the learned ALT & Mamlatdar, Ahmedabad.
4 Being aggrieved by the said order, the Trust had challenged the said order by filing Revision Case No. 04 of 1998 before the Deputy Collector. During the proceedings before the Deputy Collector, on 26.05.1998, the petitioner preferred a separate Revision Application through his Advocate, wherein, while passing the final order dated 17.06.1998, the Deputy Collector observed that no separate Revision is required to be preferred by the petitioner as Jagabhai Raijibhai Bharwad is representing his case as representative of heirs of Raijibhai Bharwad. On 17.06.1998, the learned Deputy Collector allowed the Revision Application filed by the Trust and set aside the order passed by the learned ALT & Mamlatdar, Ahmedabad, declaring heirs of Raijibhai Harjibhai Bharwad as tenants and making them entitled to purchase the land of the Trust.
5 Being aggrieved and dissatisfied with the said order passed by the Deputy Collector, one of the heirs of Raijibhai Harjibhai Bharwad i.e. Jagabhai Raijibhai Bharwad has preferred Revision Application No.267 of 1998 before the Gujarat Land Revenue Tribunal, Ahmedabad and obtained interim order of status quo on 11.02.1999. During the pendency of above mentioned tenancy proceedings, the trustees of the trust offered the said properties for sale to the brother of the petitioner along with one Dineshbhai Chimanbhai Patel and Hirjibhai Daljibhai Kuniya for a consideration of Rs.12,21,00,000/-.For that purpose, the Trust had applied for permission under Section 36 of the Bombay Public Trust Act, 1950. On 18.07.2007, the Charity Commissioner, published a public notice in Sandesh daily and called for objections to the sale of land of the Trust to the brother of the petitioner and two others. The petitioner filed his objections. One Manav Infrastructure also field its objections. All these objections came to be rejected and the Trust was permitted to sell the land to brother of the petitioner and other two persons by order dated 19.03.2008.
6 It is also the case of the petitioner that one Mr. Rajeshbhai Hasmukhbhai Thakkar, proprietor of Raj Corporation, having interest in the land, took objections on 30.07.2007 and remained personally present during the proceedings before the Charity Commissioner on 6.08.2007. He was informed by the Charity Commissioner that fresh advertisement was likely to be issued and he could take part at the auction.
7 It is the case of the petitioner that no fresh notice was published and, therefore, said Rajesh Hasmukhbhai Thakkar, preferred an Appeal under Section 36(3) of the Bombay Public Trust Act, 1950 before the Gujarat Land Revenue Tribunal, Ahmedabad, which came to be registered as Appeal No. 24 of 2008. Since the objections of Manav Infrastructure were also not considered by the Charity Commissioner, said Manav Infrastructure had also filed an Appeal No.23 of 2008 challenging the order of the Charity Commissioner before the Gujarat Land Revenue Tribunal, Ahmedabad, which came to be registered as Appeal No.23 of 2008. In both the Appeals, the petitioner was made party and because of that the petitioner did not prefer any separate appeal challenging the order dated 19.03.2008 of the Charity Commissioner permitting the Trust to sell the land.
8 Since issue involved in both the Appeals filed before the Gujarat Land Revenue Tribunal was identical, the said Appeals were finally disposed of by common order dated 21.08.2008 declaring that the order of the Charity Commissioner as ab initio void. The Trust was directed to return the consideration amount within 30 days and the Trust was directed to obtain fresh permission in accordance with the procedure prescribed under the law.
9 Since the Tribunal has passed the said order, finally, despite the fact that appeals were to be heard for admission purpose only and even the record of the Charity Commissioner was not called for and even the Appeals were sought to be withdrawn in June 2008, two Review Applications were preferred, being Review Application No. 31 of 2008 in Appeal No. 24 of 2008 and Review Application No. 36 of 2008 in Appeal No. 23 of 2008. It is the case of the petitioner that though the petitioner was party in both the Appeals as well as in the Review Applications, no notices were served upon the petitioner and both the Review Applications were allowed and the Appeals were restored, vide order dated 25.08.2008.
On the date of the restoration of the said Appeals, appellants of those appeals filed withdrawal purshis and sought permission to withdraw the said Appeals and accordingly permission was granted and the appeals were disposed of as withdrawn.
10It is the said two orders which are under challenge in the present petition.
11 Mr. Subhash Barot, learned Advocate, appearing for the petitioner has submitted that the order passed by the Tribunal earlier is well reasoned order and since there being no valid reasons for reviewing of its own order, the Tribunal should not have allowed the Review Applications and should not have restored the Appeals. He has further submitted that the petitioner being a party to the proceedings before the Tribunal,no notice was issued to the petitioner while reviewing the earlier order of the Tribunal and restoration of appeals which were already dismissed by the Tribunal earlier. He has further submitted that the petitioner being the legal heir of the tenant deceased Raijibhai Harjibhai Bharwad, the property could not have been sold by the Trust in favour of the brother of the petitioner and other two persons. He has further submitted that the Trust has not followed the procedure while selling the said property. He has further submitted that the notice issued in the newspaper was not the notice as contemplated under the provisions of the Bombay Public Trust Act and the property was never put to sale and only the objections were invited against the sale of the property to the brother of the petitioner and other two persons. He has further submitted that the Tribunal has earlier set aside the order of the Charity Commissioner and the sale transaction entered into between the Trust and and the parties was cancelled, The Trust has to undergo the procedure for sale of the property. He has further submitted that the earlier order passed by the Tribunal was in accordance with law and settled legal position which was not required to be disturbed by allowing the review applications. It is further submitted that after dismissal of the Appeals by the Tribunal, the same should not be permitted to be restored. He therefore submitted that the right of the petitioner is adversely affected in view of the order passed by the Tribunal and, hence, the petition deserves to be admitted and the interim relief as prayed for is required to be granted.
12 Having heard learned Advocate appearing for the petitioner and having gone through the documents produced along with the petition and the orders passed by the Charity Commissioner as well as the Tribunal, the Court is of the opinion that the Tribunal has rightly restored the Appeals and the Tribunal has not committed any error in restoring the Appeals. There is no dispute that the order passed by the Deputy Collector was not challenged by the petitioner. There is also no dispute about the fact that the petitioner has not filed any appeal before the Tribunal. Even the order passed by the Charity Commissioner overruling the objections raised by the parties including the present petitioner, the petitioner has not filed any appeal before the Gujarat Land Revenue Tribunal. When the appeals came to be heard before the Tribunal in the first round, it was only for the purpose of admission, and at that time, the Revision filed by the petitioner's brother challenging the Deputy Collector's Order in TenancyCase was withdrawn and, hence, there was no proceeding pending to that effect establishing the right of the petitioner or his brother as tenant of the land in question. Even at the time of hearing of the Appeals before the Tribunal in the first round, the appellants have already filed withdrawal purshis before the Tribunal. Instead of entertaining the said withdrawal purshis, the Tribunal has finally decided the said appeals and quashed and set aside the order passed by the Charity Commissioner. As a matter of fact, when there was no appeal which requires any decision of Tribunal as the appeals were sought to be withdrawn, there was no occasion for the Tribunal to pass such order. Even if the Tribunal was not inclined to permit the appellants to withdraw the appeals, in that case, the Tribunal should have admitted the Appeals and kept for final hearing, so that the parties could have made proper submissions in the matter. Without adopting this course, the Tribunal has allowed the said Appeals and set aside the orders passed by the Charity Commissioner.
13 Since the Tribunal has exceeded its jurisdiction in passing such orders and the order is passed contrary to the settled legal position and against the wishes of the appellants, review applications were immediately moved by the both the appellants and after hearing the contesting parties, the said Review Applications came to be allowed by the Tribunal. The appeals were placed on the Board for hearing of the parties, however, the appellants have filed applications to withdraw the said appeals and there was no objections against the said withdrawal applications. In view of the fact that the Tribunal has considered the entire aspect of the matter in the second round of litigation and found that no Ganot case is pending, the withdrawal applications were not entertained by the Tribunal and without calling the record or without informing the parties, finally disposed off the appeals by allowing the same at the admission stage. The said two appeals were therefore rightly restored by entertaining the review applications and after restoration of the appeals, the same were allowed to be withdrawn on the basis of withdrawal purshis filed by the said appellants.
14 Since the present petitioner was not an aggrieved party at any stage and has not preferred any proceedings challenging the orders of the Charity Commissioner on the Ganot cases, the petitioner has no locus standi to challenge the order passed by the Tribunal permitting the apepllants to withdraw the said Appeals. The grievance of the petitioner in the present petition before this Court is that no opportunity was given to him before restoring and thereafter allowing the appellants to withdraw the appeals. In the opinion of this Court after withdrawal of the Ganot Case by the petitioner's brother which was not objected by the petitioner, and in absence of any proceedings initiated by the petitioner, and simply because he was joined as a party, though not being proper or necessary party in appeals sought to be withdrawn , his consent or his presence is not required. Hence, there is no substance in the petition and the same is required to be rejected. There is also another ground which is weighed with the Court for dismissal of the petition and it is that the property was sold by the Trust for an amount of Rs. 12,21,00,000/- and at any stage neither the petitioner nor any one else has come forward to make any higher offer to purchase the said property. Since the orders were passed in the best interest and for the benefit of the Trust, there is no question of disturbing the said order passed by the Charity Commissioner or by the Tribunal.
15 In the above view of the mater, the present petition has no substance or merit and the same is summarily dismissed.
(K.A. PUJ, J.) pnnair Top