Bombay High Court
M/S. S. Kumar Developers vs Bhimrao S/O Laxman Jadhao on 30 July, 2012
Author: A. B. Chaudhari
Bench: Vasanti A. Naik, A. B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL NO.279/2012
IN
WRIT PETITION NO.2749/2006 (D)
M/s. S. Kumar Developers
and Builders, through it's Partner
Lakhichand Marotrao Dhobale,
aged about 62 years, Occu. Business,
R/o 14, Mahima Complex, 5th Floor,
Great Nag Road,
Nagpur-440009. ig .....APPELLANT
-VERSUS-
1) Bhimrao S/o Laxman Jadhao,
aged about 81 yrs.,
Occ.Agriculturist,
2) Vinayak S/o Laxman Jadhao,
aged about 76 yrs.
Occ.Agriculturist
3) Sukhdeo S/o Laxman Jadhao,
aged about 74 yrs.
Occ.Agriculturist
Nos.1 to 3 R/o Shivaji Nagar,
Karanja, Tah. Karanja,
Distt. Washim.
4) Keshaoraj Maharaj Sanstha,
Karanja a registered public
trust No.A-1279, through
Shri Vishnu Keshaorao Amte,
Trustee, aged about 68 yrs.,
R/o Karanja Lad,
Tah.Karanja Lad, Distt.Washim.
5) Joint Charity Commissioner,
Amravati Region, Amravati. .....RESPONDENTS
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S/Shri A.C.Dharmadhikari & N.D.Khamborkar, Advs. for appellant.
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CORAM: SMT. VASANTI A. NAIK &
A. B. CHAUDHARI, JJ.
DATED:30.07.2012
ORAL ORDER (Per A. B. Chaudhari, J.)
1) We have heard learned counsel for the appellant at length.
2) By the present letters patent appeal, the appellant, who is the purchaser of a tenanted agricultural land, has challenged the judgment and order dated 11/06/2012 passed by the learned Single Judge of this Court setting aside the order of sanction under Section 36 of the Bombay Public Trusts Act, 1950 for sale of the suit land and remanded the proceedings at the behest of the tenants to the Joint Charity Commissioner, Amravati.
3) Mr. A. C.Dharmadhikari, learned counsel for the appellant, in support of the appeal, made the following submissions.
(1) The original tenants of the suit land i.e. respondent Nos.1 to 3 herein had no locus standi to claim to be the necessary parties in the proceedings under Section 36 of the Bombay ::: Downloaded on - 09/06/2013 18:55:06 ::: 3007lpa279.12-Judgment 3/10 Public Trusts Act, 1950 or the right of hearing as wrongly held by the learned Single Judge.
(2) The grant of sanction to sell the suit land under Section 36 of the Bombay Public Trusts Act, 1950 nowhere envisages a notice of hearing or of the said proceedings under Section 36 of the Act of 1950 and that is another reason why they were neither necessary, nor proper parties.
(3)ig After the sanction was granted by the Joint Charity Commissioner, a sale deed came to be executed in favour of appellant and thus in the wake of the said fait accompli the writ petition could not have been entertained by the learned Single Judge to reopen the proceedings of sanction under Section 36 of the Bombay Public Trusts Act, 1950. He relied on the judgment in the case of Shri Mahadeo Deosthan, Wadali and others vs. Joint Charity Commissioner, Nagpur and others reported in 1989 Mh.L.J. 269 and another judgment in the case of Shailesh Developers and another vs. Joint Charity Commissioner, Maharashtra and others reported in 2007(3) Mh.L.J. 717.
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(4) The public trust-respondent No.4 was
having an exemption certificate under Section
129(b) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 and that being so the tenants i.e. respondent Nos.1 to 3 had no right at all to make any grievance.
4) We have perused the judgment and order dated 11/06/2012 passed by the learned Single Judge.
We have heard Mr.Dharmadhikari, learned counsel for the appellant, at length. We have seen the order made by the Joint Charity Commissioner, Amravati under Section 36 of the Bombay Public Trusts Act, 1950.
5) At the outset, it will be useful to note the relevant facts which were within the full knowledge of the Joint Charity Commissioner. The suit land is situated at Mouza Kali, Taluka Karanja (Lad), District Washim. The tenants are the residents of Karanja (Lad), District Washim. Advertisement was published by respondent No.4-Trust in the newspapers daily Insight on 17/03/2005 and Amravati Evening on 21/03/2005, published at Amravati. In para 3 of his order the Joint Charity Commissioner says thus -
It is further submitted that the aforesaid property is not in possession of the Trust ::: Downloaded on - 09/06/2013 18:55:06 ::: 3007lpa279.12-Judgment 5/10 but is in possession of the tenants.
In para 7, it is said thus -
These papers appears to be of wide circulation in the area where the property is situated. The advertisement specifically states that the property is to be sold with the disputed tenants in the Court with tenancy right.
6) From the above, it is clear that the Joint Charity Commissioner was fully aware about the fact that the land was tenanted land and they were in possession and not respondent No.4-Trust. Despite this position, the Joint Charity Commissioner did not issue any notice to the tenants, nor directed the applicant before him to add the tenants as parties to the proceedings under Section 36 of the Bombay Public Trusts Act, 1950. In our opinion, in the above factual background and in the light of the fact that the tenancy rights are governed by the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 and not only that the proceedings for conferral or ownership rights of tenancy on them have also been pending it was all the more necessary to notice them. The tenancy rights of the tenants conferred by the Special Act, namely the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, ::: Downloaded on - 09/06/2013 18:55:06 ::: 3007lpa279.12-Judgment 6/10 1958 cannot be superseded or overridden, nor they can be ignored in the proceedings relating to sanction for sale of the land occupied by them. In our opinion, therefore, they are obviously the necessary and proper parties and in their absence, the proceedings were hit by the defect of non-joinder of necessary parties, which ought to have resulted into dismissal of the proceedings. The submission made by Mr.A.C.Dharmadhikari, being sold along ig Advocate with the that tenancy the rights land of was the tenants to the third purchaser is wishy-washy. No tenanted land could at all be sold or permitted to be sold without following the procedure under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. At any rate, the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 is a Special Law and the provisions of the Bombay Public Trusts Act, 1950 cannot override the mandate of the said Special Law. Thus, we hold that the rights of the tenants to participate in the proceedings under Section 36 stand on a higher footing.
7) Next, Rule 7 of the Bombay Public Trusts Rules, 1951 reads thus -
7. Manner of inquiries [Except as otherwise provided in the ::: Downloaded on - 09/06/2013 18:55:06 ::: 3007lpa279.12-Judgment 7/10 Act and these rules, inquiries under or for purposes of sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2)(a), 47, 50A, 51, 54(3) and 79AA(2) or any other inquiry which the Charity Commissioner may direct to be held for the purposes of the Act,] shall be held, as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Court Act, 1882, and elsewhere under the Provincial Small Cause Court Act, 1887. In any enquiry a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf :
Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, be made by the party in person.
7) Perusal of the above Rule shows that Section 36 of the Bombay Public Trusts Act, 1950 relating to the previous sanction for sale is included in the said Rule for the purposes of holding enquiries. It is, thus, clear that for conduct of enquiry in the prescribed manner, the enquiry is to be held as per Rule 7 of the Bombay Public Trusts Rules, 1951 by following the procedure prescribed for trial of suits under the Presidency Small Cause Court ::: Downloaded on - 09/06/2013 18:55:06 ::: 3007lpa279.12-Judgment 8/10 Act, 1882 and here in Vidarbha the Provincial Small Cause Court Act, 1887. Needless to say that the trial of the proceedings under Section 36 of the Bombay Public Trusts Act, 1950 would obviously mean dismissal of such proceedings if there is a non-joinder of necessary parties. Thus, for this additional reason also the initiation and culmination of the proceedings under Section 36 of the Bombay of the issue Public Trusts Act, 1950 was illegal. This takes care of locus standi argued by Mr.Dharmadhikari, learned counsel for the appellant.
8) Next issue whether tenants did not have any right because of the exemption certificate obtained by respondent No.4-Trust under Section 129(b) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 is an issue to be considered upon hearing the tenants in the said proceedings under Section 36 of the Bombay Public Trusts Act, 1950 and one does not know what submissions could be advanced on the said aspect by the tenants.
9) The reliance placed by learned counsel for the appellant on the judgment in the case of Shri Mahadeo Deosthan, Wadali and others vs. Joint Charity Commissioner, Nagpur and others reported in 1989 Mh.L.J. 269 is misplaced. In the said case one of the ::: Downloaded on - 09/06/2013 18:55:06 ::: 3007lpa279.12-Judgment 9/10 trustees had filed an application under Section 36(2) of the Bombay Public Trusts Act, 1950 for revoking the sanction and it is in that context this Court held that revocation was not possible. The said decision is obviously not applicable to the case at hand.
10) In this context a Division Bench decision in the case of Shri Keraba Dattu Borachate and others v. Shri 1990(3) BCR Sheshashai 656 would and be Vishnu slightly Trust reported relevant as in to whether the tenants have any right to be heard or not. That was a case where the Trust had claimed exemption certificate without notice to the tenant and a Single Judge of this Court held in the case of Shrimant Jagdesras Anandrao Pawar v. Kisan Namdeo Pawar and others reported in 1979 Mh.L.J. 687 that such an hearing to the tenants was not contemplated.
The Division Bench in the case of Shri Keraba Dattu Borachate and others v. Shri Sheshashai and Vishnu Trust reported in 1990(3) BCR 656 rejected the argument that the enquiry held by the Collector before grant of exemption certificate is a matter exclusively between the Collector and the Trust and the tenants are not entitled to appear in such proceedings.
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The said decision has been followed by
three learned Single Judges of this Court. At any
rate, in our opinion, when the requirement of notice and the mode of service on the parties concerned (here the tenants) are regulated by statutes setting up and regulating the functions of the Courts or Tribunals, the proceedings must be conducted in accordance with the provisions as laid down in the no notice Statute. A judicial decision rendered where there is to the necessary party is without jurisdiction and is liable to be quashed. Such an order clearly violates the fundamental and basic rule of natural justice.
12) The upshot of the discussion is that the learned Single Judge was right in following the above principle and remanding the proceedings to the Joint Charity Commissioner for fresh disposal in accordance with law.
13) In the result, we find no error in the impugned judgment as the same is just, legal and proper. Letters Patent Appeal No.279/2012 is thus dismissed summarily. No costs.
JUDGE JUDGE
KHUNTE
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