Gujarat High Court
Charity Commissioner & vs Pir Mohmed Abdul Rasool & 26 on 20 July, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/FA/1084/1995 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1084 of 1995
With
CIVIL APPLICATION NO. 12447 of 2015
In
FIRST APPEAL NO. 1084 of 1995
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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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 or any order made thereunder ?
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CHARITY COMMISSIONER & 1....Appellant(s)
Versus
PIR MOHMED ABDUL RASOOL & 26....Defendant(s)
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Appearance:
IN FIRST APPEAL No.1084 OF 1995
GOVERNMENT PLEADER for the Appellant(s) No. 1
MR GM JOSHI, ADVOCATE for the Appellant(s) No. 1
MR.SHALIN MEHTA, LD. SENIOR COUNSEL for MR MANISH S SHAH,
ADVOCATE for the Appellant(s) No. 2
MR.R.S.SANJANWALA for MR.DILIP KANOJIYA,
MANISH SHAH BHARGAV KARIA & ASSO, ADVOCATE FOR THE
DEFENDANT(S) NO. 21 - 23 , 26
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MR DHIRENDRA MEHTA, ADVOCATE for the Defendant(s) No. 1 , 3 - 7
Appearance:
IN CIVIL APPLICATION NO.12447 OF 2015
MR.MIHIR THAKORE, SR.COUNSEL FOR VIRAL K. SHAH for the Applicant
MR GM JOSHI, ADVOCATE for the Opponent (s) No.
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 19-20/07/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. This First Appeal was originally filed by the Charity Commissioner, State of Gujarat, which is now being prosecuted by the Gujarat State Wakf Board due to the enactment of the Wakf Act, 1995 ('the Act of 1995' for short). The appellant has challenged a judgment and decree dated 05.12.1990 passed by the learned District Judge, Surat.
2. Brief facts are as under.
3. One land bearing survey no.23 of Umarvada, Taluka:Choryasi, District:Surat, now forming Final Plot No.49 in Town Planning Scheme No.8, admeasuring 7105 sq.mtrs. is of the ownership of one Surat Kadiwala Momna Kabrastan Trust (hereinafter to be referred to as 'the Trust' for short). On the premise Page 2 of 29 HC-NIC Page 2 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT that such land was occupied by a few unauthorised occupants, the Trust through its seven trustees filed a Regular Civil Suit No.1 of 1990 before the District Court, Surat, praying interalia, for eviction of such occupants who were defendant nos.1 to 13. The plaintiffs also prayed for a permanent injunction against the occupants from carrying out any construction on the land. The plaintiffs had joined the Charity Commissioner as the defendant no.14.
4. Few months after the institution of the said suit, the plaintiffs and the defendant nos.1 to 13the occupants of the land, presented a compromise pursis, Exh.21, dated 04.12.1990. This so called compromise was signed by four of the trustees i.e. plaintiffs no.1 to 4 and did not carry signatures of the remaining three trusteesplaintiff nos.5 to 7. On behalf of the defendants, all the 13 private defendants signed this document. Significantly, the document did not carry the signature of the Charity Commissioner. We will take note of the contents of this document at a later stage.
5. This pursis was presented before the District Page 3 of 29 HC-NIC Page 3 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT Court on 05.12.1990 and on the same date, the learned District Judge passed an order, which reads as under:
" Read the compromise filed by the trustees of the Surat Kadiwala Memna Kabrastan Trust and the affidavit filed by the trustees of the said trust below the compromisePursis.
I have perused the compromise filed by the trustees, and from the contents of the compromise, it appears that there is dispute it appears that there is dispute regarding possession of the property let out to the tenant by the plaintifftrust. If the compromise is arrived at, it would be in the interest of the trust and that it would prove advantageous to the trust. I am, thus, fully satisfied that the compromise is in the best interest of the plaintifftrust. Plaintiff trust is, therefore, accorded permission to compromise the suit.
Order accordingly C.O.A."
6. The learned Judge thereafter passed a separate order accepting the compromise between the parties and ordering drawing of the decree in terms of the compromise. This order which was also passed on 05.12.1990, reads as under:
"Read the compromise entered into between the parties. By a separate order passed by me below the plaintifftrust's application for according permission to compromise the suit, I have accorded permission to compromise the suit. The compromise is in the interest of the plaintifftrust. Compromise is recorded. Decree be drawn in terms of the compromise. Parties to bear their own costs."
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HC-NIC Page 4 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT On the premise that such compromise could not have been entered into, that too without the permission of the Charity Commissioner and further that the Charity Commissioner was not aware about such agreement between the parties and the District Court accepting such compromise, the Charity Commissioner, filed a belated First Appeal No.1084 of 1995 to challenge the said judgment and decree. The Division Bench after condoning the delay, by a separate order, admitted the First Appeal on 01.04.1995 and ordered the parties to maintain status quo. The report of the Charity Commissioner was called for to ascertain the construction already carried out till then. The said order dated 01.04.1995 reads as under:
"Admit.
There will be status quo as of today. In order to see that this order is not violated, the District Judge, Surat is directed to appoint a Commissioner to see as to how such construction has taken place on the land in question and which shop are occupied and which are not occupied and Report will be submitted to this Court within four weeks from today.
It is further directed that there shall also not be any further dealing by way of sale, transfer, mortgage, or in any other way of any portion of the land, which has been constructed upon by any party.
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Direct service is permitted."
7. It is not in dispute that this order of status quo is continued and is operative till today. Serious dispute with respect to the breach of the status quo came up before this Court in contempt proceedings where the allegations by the new trustees of the Trust were that the parties had expanded the construction and inducted new occupants. We are not directly concerned with these interim proceedings. We may however record that as per Commissioner's report dated 20.04.1995, the land in question was occupied by a five floored constructed building which had 585 shops, out of which, businesses were going on in 475 of them.
8. Civil Application No.12447 of 2015 has been filed by one City Textile Market Association, seeking impleadment as an additional respondent. The case of the association is that its members are the occupiers of the offices and shops constructed on the said plot by the builderone Gopal Dokania. They were put in possession between 1993 to 01.04.1995 before the order of status quo was passed by the Court. The association has 624 members. Any order that may be Page 6 of 29 HC-NIC Page 6 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT passed in the present appeal, is likely to affect their rights and interest. This Civil Application was ordered to be heard along with the First Appeal. Considering the fact that the order of status quo was passed by this Court on 01.04.1995 i.e. more than four years after the District Court passed a compromise decree on 05.12.1990, and in the meantime as per the report of the Commissioner, substantial construction was already carried out, which was also occupied, we grant the application for joining party. The same is allowed and disposed of.
9. We are concerned with the legality of the judgment and decree passed by the District Court accepting the compromise entered into between some of the plaintiffs and the defendant nos.1 to 13. Learned advocate Shri Manish Shah appeared for the Wakf Board and raised following contentions:
I. The compromise was opposed to the requirements of Order 23, Rule 3 of the Civil Procedure Code. He pointed out that the compromise pursis was signed by only four out of 7 plaintiffs and was not signed by Charity Page 7 of 29 HC-NIC Page 7 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT Commissioner though he was defendant no.14. II. Permission of the Charity Commissioner was not obtained before granting longterm lease by the trustees.
III. The Civil Court had no jurisdiction to accept such compromise which contained granting of longterm lease since the issue fell within the exclusive jurisdiction of the Charity Commissioner.
IV. No permission of the Charity Commissioner was obtained before instituting the suit.
10. Our attention was drawn to the judgment of the Division Bench of this Court in case of Huseinmiya Safimiya v. Habibsha Hasamsha Fakir reported in 1985 (2) GLR 928, in which it was observed that the sale of immovable property belonging to a trust is void if the permission of the Charity Commissioner is not obtained.
11. Reliance was placed on the decision in case of Charity Commissioner Gujarat State, Ahmedabad v.
Rustom Faramroz Dabbo and others, reported in AIR Page 8 of 29 HC-NIC Page 8 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT 1979 (Guj) 168, in which, it was observed that when the trustees were not having power to sell the Trust land, the Civil Court could not have invested such power in the trustees and the same could be done only by the Charity Commissioner.
12. Reliance was placed on the case of Shree Gollaleshwar Dev and others v. Gangawwa Kom Shantayya Math and others reported in AIR 1986 (SC) 231 to point out that the expression "persons having interest in the Trust" used in section 50 would include the trustees also.
13. Our attention was drawn to the case of Kantaben T. Shah & Ors. v. Devendrakumar C. Shah & Ors. reported in (2002) 2 GLR 1005, in support of the contention that a compromise pursis must be signed by all parties to the suit and a decree passed on the strength of only by the lawyers is invalid. For the same purpose, reference was made to the decision in case of Pushpa Devi Bhagat (Dead) through Lr. Sadhna Rai (Smt) v. Rajinder Singh and others reported in 2006 (5) SCC 566.
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14. Learned advocate Shri Karia appeared for the existing trustees of the Trust and submitted that the old trustees who were the plaintiffs before the District Court, have either been removed or expired. The present trustees are interested in ensuring that the loss and the damage caused to the Trust by the original trustees, to the extent possible, be salvaged.
15. Shri Mihir Thakore appeared for the newly added parties and submitted that the members of the association are occupying the shops and offices from 1995. When they acquired such properties from the builder, present First Appeal was not even filed. These occupants were naturally not aware about the legality of the decree passed by the trial Court. They have paid full purchase price to the builder. They are thus, bonafide purchasers for value without notice. Whatever be the legality of the judgment and decree, after more than 20 years, it would be inequitable to change the entire possession and to dispossess the occupants.
16. We may peruse the material on record more Page 10 of 29 HC-NIC Page 10 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT closely. As noted, the suit land is of the ownership of the Trust. On the premise that the suit land was unauthorizedly occupied by 13 families, the Trust through its the then existing trustees filed Trust Suit No.1 of 1990 before the District Court, Surat, seeking eviction of the unauthorized occupants. Shortly after filing the suit, four out of the seven trustees of the Trust and the 13 defendantsoccupants, jointly presented a compromise pursis before the Court on 04.12.1990.
17. The terms of this compromise pursis are important. As per this pursis, the defendants admitted the Trust as the owner of the property. The Trust recognized the occupants as legal tenants. The Trust gave up its right to recover the possession. The property was given to the occupants on lease for a period of 31 years, starting from the date of the decree. Upon completion of such period, the lease would be renewed for another period of 31 years by granting escalation in rent at 10%. Such renewal could be made maximum for two terms so that the total lease period would not exceed 93 years. Monthly rent was fixed at Rs.22,000/. The occupants would be Page 11 of 29 HC-NIC Page 11 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT allowed to put up permanent construction and transfer such construction on sale basis for which no permission of the Trust would be needed. The occupants would deposit a sum of Rs.1,51,000/ with the Trust which would be retained as a deposit and would be returned at the end of the lease period without interest.
18. As noted, the District Court passed two separate orders, both dated 05.12.1990. In first such order, the Court held that the compromise was in the interest of the Trust. Having so held and declared, the learned Judge proceeded to pass a separate order, accepting the compromise between the parties and drawing the decree in terms of such compromise. In the process, the learned Judge committed several serious legal errors. First of all, the compromise pursis was signed only by four of the seven existing trustees. All the seven trustees were plaintiffs before the Trial Court. Order 23 Rule 3 of the Civil Procedure Code permits the Trial Court to draw the decree in terms of a compromise. This rule however, requires that the agreement to the compromise should be in writing and should be signed by the parties.
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Quite apart from the compromise not being signed by all the plaintiffs, it also did not contain the signature of the Charity Commissioner though, he was a defendant.
19. We have noted the terms of the compromise, which inter alia, recognized the occupants as legal tenants, granted lease of land initially for a period of 31 years to be renewed twice for the same period and allowed the lessees to carry out construction and sell the same without the permission of the Trust. Under no circumstances, the Trust could have granted such lease without the permission of the Charity Commissioner, nor could the Civil Court have accepted any arrangement, under which, such lease would be executed. More fundamentally, the suit itself could not have been instituted by the trustees without the permission of the Charity Commissioner. Our comments are based on the following statutory provisions contained in the Bombay Public Trust Act, 1950.
20. Subsection (1) of section 36 of the Bombay Public Trust Act, 1950, provides that notwithstanding anything contained in the instrument of trust, no Page 13 of 29 HC-NIC Page 13 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT sale, mortgage, exchange or gift or any immovable property and no lease for a period exceeding ten years in case of agricultural land or exceeding three years in case of non agricultural land or a building of a public trust shall be valid without the previous sanction of the Charity Commissioner. Under sub section (2) of section 36, the decision of the Charity Commissioner under subsection (1) would be communicated to the trustees. Under subsection (3) of section 36, the person aggrieved by such decision could appeal to the Gujarat Revenue Tribunal. As per subsection (4) of section 36, such decision shall, subject to appeal under subsection (3) be final. 20.07.17
21. Section 50 of the Bombay Public Trust Act pertains to suits relating to public trusts and requires that certain classes of suits consisting the public trust can be instituted by the Charity Commissioner after making such inquiry as it thinks necessary or can be instituted by two or more persons having interest in that trust after obtaining consent in writing of the Charity Commissioner. As provided in section 50, the clauses covered in the said section Page 14 of 29 HC-NIC Page 14 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT include where direction is required to recover the possession of the property belonging to a public trust or the trustees thereof or for an account of such property or proceeds from any person including person holding adversely to the public trust.
22. Section 51 lays down the procedure for the Charity Commissioner to grant consent to the persons having interest in any public trust to institute a suit. Subsection (1) thereof provides that if such a person intended to file a suit of the nature specified in section 50, he shall apply to the Charity Commissioner in writing for his consent. The Charity Commissioner after hearing the parties and after making inquiry as he may think fit, may grant or refuse his consent to the institution of the suit. Under subsection (2) of section 51, an order refusing the consent would be appealable. Subsection (3) of section 51 provides that in every suit filed by the person interested in the Trust under section 50, the Charity Commissioner shall be a necessary party.
23. Section 80 of the Bombay Public Trust Act pertains to bar of jurisdiction and provides that save Page 15 of 29 HC-NIC Page 15 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT as expressly provided in the Act, no Civil Court shall have jurisdiction to decide or deal with any question which under the Act is to be decided or to be dealt with by any officer or authority under the Act or in respect of which, the decision or order of such officer or authority has been made final and conclusive.
24. These provisions contained in the Bombay Public Trust Act would therefore immediately demonstrate that the Trust could not have instituted the suit without the consent of the Charity Commissioner. The Trust can also not have leased the Trust property for a period exceeding three years without the previous sanction of the Charity Commissioner. In terms of section 51; the Charity Commissioner being a necessary party to the suit instituted by the Trust, he was by virtue of the said provision as well as by virtue of the provisions contained in section 36 of the Bombay Public Trust Act, most vitally interested person in approving or disapproving the compromise formula between the Trust and the occupants of the Trust land. We may recall, under such agreement, the plaintiffs accepted the defendant nos.1 to 13 as encroachers Page 16 of 29 HC-NIC Page 16 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT since long and regularized their occupation by accepting them as lessees and giving up the prayer for their eviction. In essence, the plaintiffs were granting longterm lease to the occupants of the land which could be done only with the previous sanction of the Charity Commissioner as provided under section 36.
25. Jettisoning all these important and mandatory requirements, the plaintiffs no.1 to 4 and the defendants no.1 to 13 executed a consent deed. More disturbingly, the learned District Judge accepted such consent formula by recording one line reason that he was satisfied that the same was in the interest of the Trust. For coming to such conclusion, no reasons have been cited. Requirement of the consent of the Charity Commissioner before institution of the suit was ignored. The requirement of the sanction by the Charity Commissioner before allowing the Trust to lease its property for a period more than three years was also ignored. The learned Judge rather disturbingly, did not even notice that under this compromise, the Trust had given wide powers to the occupants to enjoy the possession of the land initially for a period of 31 years, which lease period Page 17 of 29 HC-NIC Page 17 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT could be renewed twice by the same period. In the meantime, the lessees could put up a permanent construction and even sell such construction. We do not understand how such an arrangement could be stated to be in the interest of the Trust. In exchange, the occupants would pay a paltry sum of Rs.22000/ per month by way of lease rent. The learned Judge did not even examine the truthfulness of the allegation that the defendants no.1 to 13 were occupying the land in question since long. Merely because the trustees of the Trust and the said defendants jointly made such a statement before the Court, the same should not and ought not to have been accepted. This is not a case where a private individual as a plaintiff was trying to protect his interest in the suit. This is a case where the trustees of a Trust were litigating with respect to the Trust property which litigation was instituted without the consent of the Charity Commissioner. It is because of these reasons that the Bombay Public Trust Act has made detailed provisions to safeguard the properties and interest of the Trust. Ignoring all such statutory provisions and factual aspects, the learned Judge put his seal on the Page 18 of 29 HC-NIC Page 18 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT compromise which was wholly impermissible, was against the statutory provisions and exfacie against the interest of the Trust. We have no hesitation in holding that the trustees of the Trust who were plaintiffs no.1 to 4 and the defendants no.1 to 13 acted illegally and malafide. Their connivance is writ large on the face of the record, which resulted into serious loss to the Trust property. Valuable land admeasuring 7105 sq.mtrs. situated then in the outskirts of the city of Surat, but which by then was part of a Town Planning Scheme, was fritted away for a paltry sum. It is not difficult to imagine the reasons and the consideration for the same.
26. The materials on record present further disturbing features. Through series of Civil Applications and contempt proceedings, it has come on record that soon after this arrangement was made and the District Court without waiting a second's time, approved this on 05.12.1990, the defendants no.1 to 13 gave a power of attorney to the builder/developer on 14.02.1992. Under such power of attorney, all the defendants granted full rights to the developer Gopalkumar Dokania to put up commercial construction Page 19 of 29 HC-NIC Page 19 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT on such land, and to sell such completed construction. It was pursuant to this power of attorney that said Gopalkumar Dokania carried out the construction and also sold large number of shops and offices.
27. The manner in which the entire transaction was carried out, gives a strong primafacie impression that this could not have been the handy work of the original defendants no.1 to 13 who were shown to be poor hutment dwellers and they had some more powerful and resourceful persons behind the scene. The involvement of said Gopalkumar Dokania on record seen after the passing of the decree by the Trial Court would further give reason to believe that it was he who could have from the beginning been such an agency behind the scene. At any rate, when the said power of attorney was being executed in February, 1992, said Shri Gopalkumar Dokania would certainly have examined the background under which the defendants no.1 to 13 got the occupancy rights. These observations would have some bearing on the final directions that we propose to issue which would be clear hereafter.
28. Having noted and recorded our full disapproval to Page 20 of 29 HC-NIC Page 20 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT the manner in which the decree was obtained from the District Court, a serious question arose as to what would be the efficacy of simply setting aside the decree. The question is, is it not a case where moulding the relief would be needed. This is so because the decree was passed way back in the year 1990. The First Appeal was filed in the year 1995 and in the meantime five flooried building had been constructed which contained more than 500 shops and offices, of which, nearly 485 were occupied. Since then units may have been exchanged between the shops and office owners/occupiers. More than 22 years have passed since this Court for the first time in the year 1995 took stock of the ground realities. We are informed that large number of shops and office owners and occupants are carrying on their small and medium business from their respective premises since long.
29. If we simply set aside the decree and annul the consent terms between the original plaintiffs and the defendant nos.1 to 13, the direct effect of the same would be that all parties would be put back at a stage before the compromise was executed. In other words, there would be no lease in favour of the original Page 21 of 29 HC-NIC Page 21 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT occupants, there would be no valid authority in favour of the developer to put up the construction and consequentially the entire construction and the occupation of the owners, occupiers would be rendered illegal. Learned advocates for the opponents have therefore suggested to us not to bring about such drastic result and instead, suggested measures to compensate the loss to the Trust.
30. We have taken into account various factors principally being;
A. After passing of the decree on 05.12.1990, the First Appeal was filed by the Commissioner, of course, since he was not aware about the decree before, in the year 1995.
B. This Court granted order of status quo on 01.04.1995, by which, time as per the report of the Commissioner, construction of five floors was already completed which contained 585 shops and offices, of which, 475 were already occupied. C. These occupants would have paid the purchase price, perhaps not fully aware about the defect of the title.
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D. Even after this Court granted status quo in
1995, 22 more years have passed.
E. The original builder Gopalkumar Dokania and
the City Textile Market Association have offered to compensate the Trust for its loss.
31. Under the circumstances, instead of setting aside the decree of the Trial Court, we propose to mould the relief by directing the shop owners' association and the developer Gopalkumar Dokania to compensate the Trust suitably. For arriving at the appropriate figure, we had heard learned advocates for the parties at considerable length. It was pointed out that prevailing jantri rate for the land in question is Rs.37,250/ per sq.mtrs. However, the jantri rates are only for the purpose of collecting stamp duty and tend to be conservative. The real market rate would be much higher. We are informed that out of 7105 sq.mtrs. of land, some portion is occupied by a mosque and the commercial building is situated on the land admeasuring about 6500 sq. mtrs.
32. We do not propose to compensate the Trust at the Page 23 of 29 HC-NIC Page 23 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT rate of market value of the land presently prevailing. This would be wholly inequitable since the benefit of price escalation during the entire period of 1995 till 2017 cannot result in the benefit to the Trust. At the same time, we cannot also adopt the market rate of the year 1990 to be paid over to the Trust with interest. The formula for reimbursement would have to be some sort of mean between the two. Considering such factors, we would fix a sum of Rs.20 crores to be paid to the Trust in lieu of setting aside the decree of the Trial Court. For arriving at such figure, we have also broadly kept in mind the approximate constructed area of shops and offices and the prevailing market rate for such constructed area. Considering more than 600 shop owners and occupiers, this figure would come to approximately Rs.3 lakhs per person of additional burden.
33. Out of the said sum, 10% would be borne by the developer Gopal Dokania. Advocate Shri Rashesh Sanjanwala for him stated that Shri Dokania is willing to bear such burden and deposit the amount before the Court in installments. He also assured that an affidavit containing his undertaking to this effect Page 24 of 29 HC-NIC Page 24 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT would be filed by Shri Dokania in couple of days. We have therefore proceeded on the basis that Shri Dokania has invited these directions.
34. We have proceeded on the basis of such assurance and anticipation of such undertaking being filed. In absence of such cooperation by Shri Dokania, we had the full mind of directing registering of an FIR and investigation by the police authorities to investigate into the circumstances under which such deal was executed and the role of different parties including that of the developer, if any. Since we have acted on the basis of the assurance and the undertaking of Shri Dokania, in case of breach of such assurance and undertaking, he would expose himself to contempt proceedings.
35. While bring about this arrangement, we cannot lose sight of the fact that the erstwhile trustees of the Trust have acted in most improper and illegal manner. When such sizable amount is now likely to flow in favour of Trust, we would like to provide some safeguards so that the Trust property may not be wasted or used for private purposes.
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36. Under the circumstances, the First Appeal is disposed of with following directions.
I. City Textile Market Association shall pay to the Trust a total sum of Rs.18 crores in following manner.
(i) A sum of Rs.5 crores to be deposited latest by 10.08.2017.
(ii) Thereafter, a sum of Rs.2 crores to be deposited every month on or before the 10th of the month.
(iii) This arrangement will continue till the total sum of Rs.18 crores is deposited by the association. Necessarily, the last installment would be of Rs.1 crore.
(iv) All these deposits shall be made in the Registry of the High Court.
II. Shri Gopal Dokania shall pay to the Trust a sum of Rs.2 crores to be deposited in the following manner.
(i) A sum of Rs.50 lakhs to be deposited latest by 10th August, 2017.
(ii) Thereafter an amount of Rs.20 lakhs to be deposited by the 10th of every month till Page 26 of 29 HC-NIC Page 26 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT the total deposit reaches Rs.2 crores.
(iii)All these deposits shall be made before the Registry of the High Court.
III. As and when the amounts are deposited by the respective parties, the Registry shall transfer to the Trust with an intimation to the Wakf Board. Upon receipt of such amount, the Trust shall not use the same for any purpose, but invest in a fixed deposit in any nationalized bank for a period of 10 years. The interest accruing on such fixed deposits would be periodically received by the Trust and shall be used only for the purpose of the Trust and not for the purpose of any of the Mutavalies/trustees. The said amount or any part thereof shall not be paid treating as income of the Trust. In case either the association or Shri Dokania fails to deposit the amounts as directed above, and either the association or Shri Dokania fails to deposit any two installments or in any manner to deposit the full amount as directed above, it would be open for the Trust or the Wakf Board to bring such facts Page 27 of 29 HC-NIC Page 27 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT to the notice of the Court who shall after hearing the concerned parties, recall this order and shall pass further order and consequential directions. Additionally, Shri Dokania shall be treated to have committed contempt of Court by breaching the undertaking.
IV. It will be the duty of the Wakf Board to ensure that these directions of investing the amounts in the FDs and utilization of the interest for the purpose of Trust alone are properly carried out.
V. At the end of the period of 10 years, the amount will be paid over to the Trust. However, again with the same covenant that the amount will be used only for the purpose of Trust and no other.
VI. City textile market association shall pay a cost of Rs.50,000/ to the Wakf Board.
37. Subject to above directions, the decree of the Trial Court is not disturbed. First Appeal and Civil Application are disposed of accordingly. R & P be Page 28 of 29 HC-NIC Page 28 of 29 Created On Mon Aug 21 00:23:56 IST 2017 C/FA/1084/1995 JUDGMENT transmitted back to the concerned Trial Court.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) ANKIT Page 29 of 29 HC-NIC Page 29 of 29 Created On Mon Aug 21 00:23:56 IST 2017