Bombay High Court
Ramdas Club Akola vs Mayur Dilip Vikhe on 21 December, 2013
Author: Z.A.Haq
Bench: A.B.Chaudhari, Z. A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.49 of 2010
in
WRIT PETITION NO.3265/2009.
APPELLANT : Ramdas Club Akola,
A Trusts Registered under the provisions of
Bombay Public Trusts Act, 1950 bearing Reg.No.
F - 570/Akola through its alleged President
Mr.Ravindra Khandelwal House, Durga Chowk,
igAkola, Tq. and Distt.Akola.
: VERSUS :
RESPONDENTS :- 1. Mayur Dilip Vikhe,
aged 23 years, Occu: Business,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akila. (deleted)
2. Umesh Sheshrao Udhapure,
aged 42 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola. (deleted).
3. Balwant Achyutrao Nanoty,
aged 50 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola.
4. Hemendra Madhukarrao Telkar,
aged about 47 years, Occu: Business,
R/o Rama Empire, Birla Ram Mandir
Road, Akola, Tq. and Distt.Akola. (deleted)
5. Sudhir Dnyandeorao Masne,
aged about 41 years, Occu: Busienss,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akola. (deleted)
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6. Gopal Mahesh Cherukallu,
aged about 50 years, Occu: Business,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
7. Sumit Arun Bhatkar,
aged about 23 years, Occu: Education,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
8. Pundlik Vitthalrao Manmode,
aged about 63 years, Occu: Retired,
ig R/o Gaddam Plots, Akola, Tq. and Distt.
Akola.
9. Dattaraya Ambuji Masne,
aged about 68 years, Occu: Retired,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akila.(deleted)
10. M/s Bajrang Oil Mills and Pulse Mills,
Nagpuri Gin Compound, Akola, Tq.
and Distt.Akola.
Through its Proprietor Shri M/s Bajrang
Hanumanprasad Sharma, aged about
57 years, Occu: Business, R/o Akila, Tq.
and Distt.Akola.
11. Joint Charity Commissioner,
Amravati Region, Amravati.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.K.H.Deshpande, Sr.Advocate with Mr.M.D.Lakhe, Adv. for the appellant.
Mrs.K.S.Joshi, AGP for respondent no.1.
Mr.C.B.Dharmadhikari, Advocate for respondent no.10.
Mr.U.J.Deshpande, Advocate for respondent no.3.
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LETTERS PATENT APPEAL NO.70 of 2010
in
WRIT PETITION NO.3265/2009.
APPELLANT : M/s Bajrang Oil Mills and Pulse Mills,
Nagpuri Gin Compound, Akola, Tq.
and Distt.Akola through its Proprietor,
Shri M/s Bajrang Hanumanprasad Sharma,
aged about 57 years, Occu: Business,
R/o Akola, Tq. and Distt.Akola.
: VERSUS :
RESPONDENTS :- 1. Mayur Dilip Vikhe,
aged 23 years, Occu: Business,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akila. (deleted)
2. Umesh Sheshrao Udhapure,
aged 42 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola. (deleted).
3. Balwant Achyutrao Nanoty,
aged 50 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola.
4. Hemendra Madhukarrao Telkar,
aged about 47 years, Occu: Business,
R/o Rama Empire, Birla Ram Mandir
Road, Akola, Tq. and Distt.Akola. (deleted)
5. Sudhir Dnyandeorao Masne,
aged about 41 years, Occu: Busienss,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akola. (deleted).
6. Gopal Mahesh Cherukallu,
aged about 50 years, Occu: Business,
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R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
7. Sumit Arun Bhatkar,
aged about 23 years, Occu: Education,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
8. Pundlik Vitthalrao Manmode,
aged about 63 years, Occu: Retired,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola.
ig 9. Dattaraya Ambuji Masne,
aged about 68 years, Occu: Retired,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akila.(deleted)
10. Ramdas Club Akola,
A Trusts Registered under the provisions of
Bombay Public Trusts Act, 1950 bearing Reg.No.
F - 570/Akola through its alleged President
Mr.Ravindra Khandelwal House, Durga Chowk,
Akola, Tq. and Distt.Akola.
11. Joint Charity Commissioner,
Amravati Region, Amravati.
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Mr.C.B.Dharmadhikari, Advocate for the appellant.
Mrs.K.S.Joshi, AGP for respondent no.1.
Mr.K.H.Dshpande, Advocate for respondent no.10.
Mr.U.J.Deshpande, Advocate for respondent no.3.
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CORAM: A.B.CHAUDHARI AND
Z. A. HAQ, JJ.
DATED: 21st DECEMBER, 2013.
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ORAL JUDGMENT (Per Z.A.Haq, J.)
1. Heard the learned counsel for the parties.
2. The Letters Patent Appeal No.49 of 2010 arises out of the judgment passed by the learned Single Judge allowing the writ petition, setting aside the order passed by the Joint Charity Commissioner granting permission to the appellant - Trust to sell the property.
3. The appellant - Trust is a Public Trusts. The appellant -
Trusts owned open land. The appellant - Trust had submitted an application under Section 36 of the Bombay Public Trusts Act seeking permission to sell the agricultural land, field S.No.26 and plot owned by it. The appellant - Trust had submitted the draft of public notice to be published in the newspapers to the Charity Commissioner which was approved and was published in the newspapers. Mr.G.G.Agrawal for G.G.Warehousing Corporation had submitted his offer for purchasing the above mentioned agricultural land and plot. An application (Exh.
::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 614) was filed by the appellant - Trust before the Joint Charity Commissioner seeking permission to withdraw the application filed by it under Section 36 of the Bombay Public Trusts Act. The learned Charity Commissioner had directed that the Resolution of the Board of Trustsees should be filed, showing that the appellant - Trust intended to withdraw the application filed by it under Section 36 of the Bombay Public Trusts Act. Mr.Satish Kothari and M/s Bajrang Oil Mills and Pulse Mills, who had also given their offers pursuant to the advertisement, had filed applications before the Charity Charity Commissioner, informing that they had withdrawn the offers given by them for purchasing the property of the appellant - Trust. The learned th Joint Charity Commissioner by the order dated 17 of May, 2007 dismissed the application filed by the appellant - Trust under Section 36 of the Bombay Public Trusts Act, for want of prosecution. An th application was filed on 30 of November, 2007 praying for restoration of application under section 36 of the Bombay Public Trusts Act.
::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 7Subsequently, the appellant - Trust had filed an application praying for permission to amend the application filed by it under Section 36 of the Bombay Public Trusts Act. The amendment was allowed. The Board of Trustsees of the appellant - Trust had accepted the offers of M/s Bajrang Oil Mills and Pulse Mills and passed Resolution to that effect and the copy of the Resolution was submitted before the Joint Charity Commissioner. The relevant documents were filed before the Joint Charity Commissioner. The learned Joint Charity Commissioner by th the order dated 15 of October, 2008 granted permission to the appellant - Trusts to sell the property to the M/s Bajrang Oil Mills and Pulse Mills.
4. The order passed by the Joint Charity Commissioner granting permission to the appellant - Trust to sell the property to M/s Bajrang Oil Mills and Pulse Mills was challenged before this Court by the respondent nos.1 to 9. The claim of the respondent nos.1 to 9 in ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 8 the writ petition was that they were persons having interest in the Appellant - Trust and therefore, they had the right to challenge the order passed by the Joint Charity Commissioner, which according to the respondent nos.1 to 9, was illegal and unsustainable in law. The learned Single Judge by the impugned judgment allowed the writ petition and set aside the order passed by the Joint Charity Commissioner. The appellant - Trust being aggrieved by the order passed by the learned Single Judge has filed L.P.A.No.49 of 2010.
5. M/s Bajrang Oil Mills and Pulse Millss has filed the L.P.A.No.70 of 2010 challenging the order passed by the learned Single Judge. Both these appeals arise out of the same judgment passed by the learned Single Judge and raise common issues, hence they are being disposed of by common judgment.
6. Heard Shri K.H.Deshpande, learned Senior Advocate ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 9 appearing along with Shri M.D.Lakhe, Advocate for the appellant. Shri Deshpande, the learned Senior Advocate has submitted that the learned Trial Judge has committed an error in entertaining the writ petition at the behest of the respondent nos.1 to 9, inasmuch as the respondent nos.1 to 9 do not satisfy the tests of "an aggrieved person"
to maintain the writ petition. Shri Deshpande, learned Senior Advocate has further submitted that the respondent nos.1 to 9 cannot be said to be persons having interest in the appellant - Trust as contemplated by the provisions of Section 2(10) of the Bombay Public Trusts Act. The learned Senior Advocate has further submitted that the impugned judgment further suffers from irregularities and illegalities, inasmuch as the learned Single Judge has not considered the facts in the proper perspective. According to the appellants, the offer given by M/s Bajrang Oil Mills and Pulse Mills was the highest offer and was just and proper and cannot be said to be of such a nature which necessitated the interference by this Court in the exercise of the ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 10 extraordinary jurisdiction. The learned Senior Advocate has further submitted that the M/s Bajrang Oil Mills and Pulse Mills has paid the entire amount to the appellant - Trust pursuant to the permission granted by the learned Joint Charity Commissioner and the sale deeds were registered and it will not be proper to set aside the permission granted by the Joint Charity Commissioner and the consequential actions.
7. Shri C.B.Dharmadhikari, learned Advocate appearing for M/s Bajrang Oil Mills and Pulse Mills (appellant in LPA No.70 of 2010) has adopted the arguments of Shri K.H.Deshpande, the learned Senior Advocate.
8. Shri U.J.Deshpande, learned Advocate appeared for the respondent no.3. The respondent Nos.1, 2 and 4 to 9 had filed an application seeking permission to withdraw from the proceedings ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 11 which application was allowed and the names of the respondent Nos.1, 2 and 4 to 9 were deleted. Shri U.J.Deshpande, has submitted that the Joint Charity Commissioner had committed patent irregularities and illegalities in the proceedings and had granted the permission to the appellant - Trust to sell the property, though the proceedings were dismissed for want of prosecution and were not restored. Shri U.J.Deshpande, learned Advocate has submitted that pursuant to the advertisement following offers were received by the appellant - Trust :-
Name and address Agricultural Land Plot
1 Shri Ghanshyam Joshi, Rs.9.50/- per Sq. ft Rs.10/- per
Khari Bawdi, Akola Rs.3,80,000/- Square foot
Rs.73,800/-
2 G.G. Ware Housing Rs.10.50/- per Sq.ft. Rs.10.50/- per
Corporation M.I.D.C. Rs.4,20,000/- Square foot
Akola Rs.77,490/-
3 Aditya Corporation, Tilak Rs.9.30/- per Sq. ft. Rs.9.80/- per
Road, Akola Rs.3,72,000/- Square foot
Rs.72,324/-
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4 M/s Bajrang Oil Mills and Rs.10/- per Sq. ft. Rs.10/- per
Pulse Mills, Nagpuri Jin, Rs.4,00,000/- Square foot
Akola Rs.73,800/-
5 Shri Satish Kothari, Old Rs.8/- per Sq. ft. Rs.8.50/- per
Kapda Bazaar, Akola Rs.3,20,000/- Square foot
Rs.62,730/-
According to the learned Advocate for respondent no.3, as the appellant - Trust had filed an application seeking permission to withdraw the application filed by it under Section 36 of the Bombay Public Trusts Act, G.G. Warehousing Corporation had withdraw its offer. According to the learned Advocate for the respondent no.3, if the proceedings would have been properly conducted and if fresh offers would have been properly invited, the appellant - Trust would have got offer at a higher price than what is given by M/s Bajrang Oil Mills and Pulse Millss. The learned Advocate for the respondent no.3 has further submitted that the respondents, who had filed the writ petition, were persons having interest in the appellant - Trust as they are residing adjacent to the property of the appellant - Trust and had ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 13 been using the property of the appellant - Trust for various activities including sports, as per the bye laws of the appellant - Trust. The learned Advocate for the respondent no.3 has submitted that the property of the appellant - Trust is sold illegally and therefore, they have the right to maintain their objection and the proceedings.
9. Mrs.K.S.Joshi, the learned Assistant Government Pleader, appearing for the Joint Charity Commissioner has adopted the arguments made by Shri K.H.Deshpande, learned Senior Advocate and has supported the order passed by the Joint Charity Commissioner.
10. We have heard the learned Advocates for the parties and have examined the record with their assistance.
11. The petitioners in Writ Petition No.3265 of 2009 (i.e. original ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 14 respondent nos.1 to 9 in the LPA No.49 of 2010) are neither Trustsees nor the members of the appellant - Trust. In fact, it has come on record that the respondent Nos.1 to 9 had tried to encroach on some portion of the property of the appellant - Trust. In view of this factual position, we are of the view that the original respondent nos.1 to 9 cannot be said to be "persons having interest" in the appellant - Trust as contemplated by the provisions of Section 2 (10) of the Bombay Public Trusts Act. In fact, the original respondent nos.1 to 9 had interest adverse to the appellant - Trust, in view of the attempt on their part to encroach on some portion of the property of the appellant -
Trusts. Moreover, the original respondent nos.1 to 9 cannot be said to be "aggrieved persons" to file the Writ Petition under Articles 226 and 227 of the Constitution of India challenging the order passed by the Joint Charity Commissioner. The superfluous averements made by the original respondent nos.1 to 9 in the writ petition which was filed before this Court alleging that they are the persons having interest in ::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 15 the appellant - Trust, are unacceptable. Only because the original appellants nos.1 to 9 alleged that they have been using the property of the appellant - Trust cannot make them "persons having interest" in the appellant - Trust unless they point out some legal right in their favour to use the property of the appellant - Trust. Shri U.J.Deshpande, learned Advocate for the respondent no.3 has not been able to point out anything from the record to show that the original respondent nos.1 to 9 had any legal right to use the property of the appellant - Trust. The learned Advocate for the respondent no.3 has not been able to point out that the original respondent nos.1 to 9 can be said to be "aggrieved persons" to file the writ petition challenging the order passed by the Joint Charity Commissioner. In our view, the writ petition, at the behest of the original respondent nos.1 to 9, was not maintainable and the failure on the part of the learned Single Judge to consider this aspect in the right perspective, makes the impugned judgment unsustainable in law.
::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 1612. On facts also, we find that pursuant to the public notice th which was issued, offers were received on 11 of May, 2007 and M/s Bajrang Oil Mills and Pulse Mills had given the offer of Rs.10/- per sq. ft. and G.G.Warehousing Corporation had given the offer of Rs.10.50 th per sq. ft. Subsequently, on 15 of October, 2008, the learned Joint Charity Commissioner has accepted the offer of M/s Bajrang Oil Mills and Pulse Mills of Rs.100/- per sq. ft. In the facts of the case, we are of the view that the order passed by the learned Joint Charity Commissioner cannot be said to be perverse and illegal. The learned Joint Charity Commissioner had considered all factual aspects and had granted permission to the appellant - Trust to sell the property at the price at which it is sold to M/s Bajrang Oil Mills and Pulse Mills. The learned Single Judge ought not to have interfered with the well reasoned findings of facts of the learned Joint Charity Commissioner.
::: Downloaded on - 27/01/2014 23:03:44 ::: lpa49.10.odt 1713. In view of the above, the Letters Patent Appeals are allowed.
The judgment passed by the learned Single Judge in Writ th Petition No.3265 of 2009 on 24 of September, 2009 is set aside and the order passed by the Joint Charity Commissioner In Application No. th 36 of 2006 dated 15 of October, 2008 is restored.
In the circumstances, the parties to bear their own costs.
JUDGE JUDGE.
chute
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