Gujarat High Court
Classic Network Private Limited ... vs Gujarat Revenue Tribunal, Ahmedabad on 25 June, 2021
Author: Ashutosh J. Shastri
Bench: Ashutosh J. Shastri
C/SCA/8246/2021 ORDER DATED: 25/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8246 of 2021
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CLASSIC NETWORK PRIVATE LIMITED THROUGH DIRECTOR SMIT
PURSHOTTAMBHAI KANERIYA
Versus
GUJARAT REVENUE TRIBUNAL, AHMEDABAD
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Appearance:
MR SAURABH SOPARKAR, SENIOR ADVOCATE,with MR SP
MAJMUDAR(3456) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,5,6,8,9
MR DIGANT B KAKKAD(6523) for the Respondent(s) No. 7
MR RS SANJANWALA, SENIOR ADVOCATE with MR AADIT R
SANJANWALA(9918) for the Respondent(s) No. 3,4
MR MEHUL SURESH SHAH, SENIOR ADVOCATE for RESPONDENT NO.5
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 25/06/2021
ORAL ORDER
1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the legality and validity of an order dated 1.6.2021 passed by respondent No.1 in Revision Application No.10 of 2021.
2. Both the contesting parties represented by respective learned senior advocates have argued the matter at great length as if the matter is to be finally heard, but later on, after completion of the submissions, learned senior advocate Mr. Sanjanwala has submitted that since the petition is at an admission stage, whatever order that may be passed at an interim stage, may be passed after assigning reasons, if interim relief to be considered and as such, under this set of circumstance, the Court is dealing with the issue of interim relief as to whether to be granted or not.
3. The Court is conscious about the proposition that at the time when the issue of interim relief is to be dealt with, detailed analysis of merit is not to be undertaken, but the main factors which are to be Page 1 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 considered are to dealt with by the Court in its proper perspective and for that purpose, background of the facts situation prevailing on record deserves little consideration.
4. Now, in this context, since both the sides have extensively taken the Court to the pleadings, following few circumstances on record at this stage are not possible to be unnoticed by the Court before dealing with the submission of both the sides.
(1) For the purpose of seeking exchange of land in question, as indicated in the application, which application is attached to the petition compilation on page 33, in which para 4 to 8 are the circumstances stated for seeking permission under Section 36 of the Bombay Public Trust Act and the justification is projected that in the interest of education of the institute and in the interest of the students at large, the permission deserves to be granted. Since at this stage, the Court is examining the issue of interim relief only, detailed circumstances are not incorporated hereunder in the present order, but this application appears to have been allowed by an order dated 29.4.2021 and while coming to the conclusion, the In-charge Joint Charity Commissioner has imposed certain conditions after arriving at subjective satisfaction as to why permission deserves in the overall interest of the Trust. On page 95 onwards, para 19 and 20 are the reasons as to why the conditional permission deserves to be granted.
(2) From the record, it appears that the written submissions have been filed by Shivam Kelavani Trust, reflecting on page 57 onwards, and in response to the material produced before the In-charge Joint Charity Commissioner, an order appears to have been passed, inviting objections by issuing a public notice/ order. The record further indicates that to indicate the bonafides, one Classic Network Pvt. Ltd. (the petitioner herein) Page 2 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 had deposited a sum of Rs.4 Crore, vide Demand Draft of Oriental Bank of Commerce dated 1.10.2020, reflecting on page
67. (3) The record further indicates that on page 69, an objection which has been raised by the respondent Nos.3 and 4 represented by learned senior advocate Mr. Sanjanwala, in which objections have been raised by indicating that it should be by public auction and the amount of deposit of Rs.4 crore is not to be accepted for multiple reasons, as stated in the objection application. This objection was given on 3.11.2020, which clearly emerges that the respondent Nos.3 and 4 have not at all shown any interest in the land in question nor reflects that they are in any way remotely connected either with Trust or interested with the affairs of the Trust and specifically they have not asserted that they are very much interested in the land which is sought to be exchanged.
(4) The other objections are also almost on the similar line, but then after considering every material, including the contents of the objections and analyzing the stand of the objections, a conditional permission has been granted.
(5) The record further reveals that basically, by raising the grievance about non-granting of opportunity to them along with multiple other grievances with regard to the manner of grant of permission under Section 36 and also raising the issue related to the market value, a petition was brought before this Court on 14.5.2021, as affirmed on that day. The said petition being Special Civil Application No.7584 of 2021 filed by the present respondent Nos.3 and 4 came to be contested by the respondent Trust, in which affidavit-in-reply as well as affidavit-in-rejoinder came to be filed.
Page 3 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021C/SCA/8246/2021 ORDER DATED: 25/06/2021 (6) Proceedings since throwing some light about the conduct of
respondent Nos.3 and 4 and their manner and method of opposing Section 36 proceedings, the Court would like to consider some of the contents of the affidavit-in-reply as well as rejoinder which are placed on record for perusal of the Court and relied upon by both the sides.
(7) In the affidavit-in-reply, which is reflecting on page 170 of the petition compilation, in addition to the plea with regard to availability of an alternative remedy under Section 36(3) of the Bombay Public Trust Act, 1950 ('Trust Act' for short), a plea with regard to the conduct of respondent Nos.3 and 4 is also clearly asserted. A specific assertion is made that the respondent objectors are nothing but a busybody, somehow want to put hurdles in the way of the respondent Trust, so that the Trust may not continue to keep interest for which it has been set up and a plea with regard to locus is also raised in para 9 of the said reply. In addition to the justification of exchange, which is required, a further clear assertion is made in para 14 that the respondent Nos.3 and 4 herein who filed the aforesaid petition have conveniently not joined the Classic Network Pvt. Ltd., which is a necessary and proper party and affected as well since it has substantially deposited the amount and this being specifically in the knowledge of the respondents- petitioners of said petition, conveniently they have not joined the said firm and made an attempt to get an order behind the back of the affected person who is necessary and proper party. In para 17 and 19, the conduct is agitated by the Trust and it has also been clearly asserted that non-hearing plea which has been raised by these objectors in the aforesaid petition is not at all just and proper and the order was passed after granting clear opportunity to them. On the contrary, on account of the conduct of these respondent Nos.3 and 4, educational Page 4 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 institution work is at stake, career of so many students who are prosecuting their studies is also largely affected and ultimately, the same is not at all in the interest of the Trust which is of paramount consideration.
(8) Now, to this clear assertion, to deal with the respondent objectors who are petitioners of the said petition have filed detailed affidavit-in-rejoinder from page 196 onwards, in which since all these aforesaid objections have been raised, have merely asserted in rejoinder that the petitioners are interested in the Trust and also interested in immovable property of the Trust. Now, this is for the first time coming out in the rejoinder but no such attempts were made by these objectors to justify their real interest in the property, but here it is revealed that one of the objectors happened to be a qualified Engineer dealing in the business of real estate construction and development for more than 25 years who has developed several residential and commercial projects in Rajkot, whereas petitioner No.2, i.e. another objector, is also dealing in independent retail business in Rajkot and is a public spirited citizen and with a view to give an impression that they are interested person, the affidavit-in- rejoinder is filed with such bald assertions.
(9) It further appears that from para 6 of the said rejoinder, which is filed on 22.5.2021 on oath initially objecting that the said Classic Network Pvt. Ltd. is neither a necessary nor a proper party and any decision would not affect in any way the said firm since at this stage, no rights have been accrued in its favour. But, from the beginning, said deponent was aware about the fact of deposit of substantial amount, as indicated above, and is also aware about the said firm's specific request in response to the Trust application under Section 36 of the Trust Act. Now, at this stage, with a view to cure the defect of non-joinder of proper partys, a clear assertion is made in para 6 that the Page 5 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 petitioners undertake to implead Classic Network Pvt. Ltd. to that petition, if required by the Hon'ble Court. But, it appears that no such attempt was made despite such undertaking. Now, that petition on the basis of the aforesaid pleadings came to be disposed of by the Court, vide order dated 24.5.2021, reflecting on page 168, permitting these objectors who are petitioners of the said petition, to prefer an appeal before the Gujarat Revenue Tribunal under Section 36(3) of the Trust Act and a direction was given which is contained in para 3 and 4 of the said order on page 169 of the petition compilation.
(10) Pursuant to the aforesaid order passed by the Court, an appeal came to be filed before the Gujarat Revenue Tribunal, Ahmedabad by these objectors, i.e. respondent Nos.3 and 4 herein, referred to and attached to the petition compilation on page 238. Here also, an appeal came to be presented with an assertion, but no clear interest is shown by the objectors either to offer a bid or to indicate interest in the immovable property and most material part is that though the issue related to joining of the affected party, as indicated above, is center of the controversy, still when the appeal is filed, again the said firm has not been joined though a substantial amount is already deposited by the said firm. The said firm is directly and substantially concerned in the land in question and further, by a specific reasoned order, a permission was granted to exchange the land between this company as well as the respondent Trust. But, the objectors have not conveniently joined the said party for the reasons best known to them. In this appeal proceedings, an application is filed for seeking interim relief, but in the interim application also, no details are provided nor their interest is shown and mere assertion is made that they are interested in the affairs of the Trust, but how and in what manner, no such pleadings are visible.
Page 6 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021C/SCA/8246/2021 ORDER DATED: 25/06/2021 (11) Now, on the aforesaid background of facts, though the appeal
was to be heard as per the direction visible from the earlier order of High Court, learned Tribunal has passed the impugned order granting stay in the proceedings till final disposal of the appeal. Virtual effect would be that though these objectors are not interested in the property in question nor connected with the Trust affairs in any manner, nor have participated in any activity of the Trust, even remotely, an order came to be passed in their favour without joining the present petitioners in the said proceedings. The main reasons which have been given in the impugned order, reflecting on page 256, are that there is a difference in valuation of the land and further material reason is that no documents are produced with regard to ownership of Classic Network Pvt. Ltd. of the lands which are permitted to be exchanged and as such, a suspicion arose prima facie which led the Tribunal to pass an order. A reading of the order is indicating that if the interim relief is not granted, a prejudice will take place to the Trust and likelihood of inconvenience to be caused to the Trust, as indicated in para 13 of the said order. The overall reason appears to have been that the Classic Network Pvt. Ltd. is not the owner of the land which is permitted to be exchanged.
(12) This Court on the basis of the aforesaid material revealed that para 3 of the order dated 24.5.2021 appears to have indicated to hear and dispose of the appeal as reflecting, but the order which had been passed of granting permission under Section 36 of the Trust Act dated 29.4.2021 is stayed as an interim order. Now, it is this stay order which has been made the subject matter of the present petition filed by the petitioner by raising multiple contentions.
5. In the context of the aforesaid peculiar background of facts and Page 7 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 in light of the aforesaid record, being available, the Court has been briefed about the rival submissions made by learned counsel appearing for the respective parties.
6. Prima facie, the Court is satisfied that the respondent objectors are not party interested in the property, are dealing in the business of real estate and retail business and are not connected with any Trust activity of any nature nor have taken any interest in the Trust affairs. This position is revealed from the pleadings themselves and therefore, at this stage, before dealing with the submissions, the Court is reminded with one of the decisions delivered by the Division Bench of this Court, which is pressed into service and brought to the notice of a decision dated 18.7.2019 passed in Letters Patent Appeal No.848 of 2017, and by interpreting the relevant provisions of the Trust Act, a proposition is laid down as to who can be the person having interest.
7. Now, in light of the aforesaid position prevailing on record, learned senior advocate Mr. Saurabh Soparkar for the petitioner has agitated that without joining necessary and proper party, the appeal could not have been entertained by the Tribunal and such appeal itself is not maintainable and as such, the interim order could not have been passed. It has further been contended that this grant of interim relief is virtually allowing the appeal proceedings itself and has serious implications upon the petitioner who has deposited the sizable amount to indicate its bonafide, has taken substantial steps to exchange the land, as permitted, by the Charity Commissioner after taking all proper steps, by observing the conditions which have been imposed upon and as such, has submitted that the respondent objectors have conveniently made an attempt to abuse the process by not joining the petitioner though from the day one, they were aware about existence of the petitioner.
7.1. Leaned Senior advocate Mr. Soparkar has submitted that there was a conscious stand taken by the Trust specifically indicated the Page 8 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 existence of the petitioner and based upon it, even the respondents have asserted and undertaken to join the petitioner, if so desired, but since the petition came to be disposed of on account of alternative remedy, the said issue ought to have been taken into account by the respondents while preferring an appeal. Simply because the petition came to be disposed of, that undertaking part would not go away. However, be that as it may, apart from the said aspect, the conduct of the objectors is quite dubious and clearly indicates that somehow, they want to keep the transaction in question in abeyance under one reason or the other since they are dealing in real estate marketing in the area. It has further been contended that what is to be taken into consideration is the best interest of the Trust and not of the either party. Here is a case in which these respondents have not shown interest to participate and just went on raising objections and bald assertion is made on the basis of the material which has no nexus and according to Mr. Soparkar, this is a fit case in which it is to be observed that these objectors are nothing but a busybody and at their instance, entire Trust interest could not have been put to stake and in any case, as a consequent of it, the petitioner may not be allowed to be prejudicially affected in any form.
7.2. Mr. Soparkar has further submitted that it is a settled position of law that during pendency of the appeal, no such orders could be passed which would virtually allow the proceedings and here in the instant case, despite aforesaid infirmities, interim stay has been awarded, which is again on a wrong basis and false reasons. The petitioner is the owner as on date of passing the order, having a registered sale transaction in its favour, is owner of the property in question and to show its bonafides, has paid the amount of Rs.4 crore long back and therefore, in this situation, at least, it was expected on the part of the Tribunal to see that whether prima facie case exists, whether the objectors are the persons interested or whether balance of convenience and irreparable loss are in whose favour. These objectors Page 9 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 are not interested in purchasing the property, which is clearly visible from the proceedings and from their main assertion. In fact, they are not going to lose anything if interim relief is not granted, because that was only object for which they went on litigating and raising flimsy objection and as such, there is a prima facie no legal right in their favour, there is no prima facie case in their favour and granting of interim relief by the Tribunal, on the contrary is seriously damaging the interest of the Trust as well as the petitioner and therefore, in absence of any justification on all the three ingredients which are governing the issue of grant of interim relief, the order is not sustainable.
7.3. It has been contended that as per the Jantri value, execution of the document has also taken place and under the instruction, Mr. Soparkar has submitted specifically that the appeal is still at large and if the Tribunal determines even more value, since the petitioner has substantially reached the advance stage, is ready and willing to deposit and pay any amount which may be determined even by the Tribunal, but to allow this order to operate is clear injustice to the petitioner and further, it has been asserted that not only 50% amount is already deposited, as indicated, but the lands have been converted into N.A. and then on the basis of the market value, the registered documentation has taken place. Hence, in such a situation, to allow the objectors to get an order behind the back of the most affected person, same would rather be clear injustice to the petitioner and as such, such an order is not sustainable in the eye of law.
7.4. Mr. Soparkar has submitted that this transaction and the value related to the land is always subject to the outcome of the main appeal proceedings and hence, these objectors are not going to be prejudicially affected in any manner and are not going to lose anything, hence at their instance, the petitioner as well as the Trust may not be put to any jeopardy since the objectors are having clear malafide intent of hampering with some hidden agenda, such an Page 10 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 attempt may not be encouraged. Hence, Mr. Soparkar has submitted that since these objectors, i.e. respondent Nos.3 and 4, are busybody, interim relief granted in their favour be quashed and set aside.
8. Learned senior advocate Mr. Mehul Suresh Shah appearing for respondent No.5 has submitted that since the Trust is suffering since long about paucity of space, the area which is highly commercialized, is not in the interest of the education and the students thereof and as such, permission was sought for. It has been contended that all precautionary measures have been taken by the Joint Charity Commissioner by imposing conditions and Mr. Shah has vehemently submitted that these objectors are dealing in the business of real estate and therefore, want to somehow create hurdles in the way of the petitioner though they are not remotely concerned. None of these persons are remotely connected with the affairs of the Trust nor have contributed anything to the Trust nor are beneficiary nor are the persons who are not even remotely interested in the property. It is only with a view to see that hurdle is put about shifting, this sort of flimsy objections have been raised and except bald assertion, only at the fag-end, with a view to come out from the arena of locus standi, have made an assertion that they are interested, but till date, neither they have participated nor they have given any proposal, it is only and only with a view to create hurdle, this sort of litigation is dragged on for some ulterior motive. By adopting all other submissions of learned senior advocate Mr. Soparkar with respect to interest of the Trust, exercise of jurisdiction by the Joint Charity Commissioner, Mr. Shah has relied upon the judgment of the Division Bench, as referred to above, and contended that these objectors are nothing but a sheer busybody, cannot come in the way of the person interested and therefore, at their instance, the activity of the Trust and the permission granted already may not be put to a halt. It has further been submitted that a reasoned order is passed by the Joint Charity Commissioner and knowing full well from the beginning that the Page 11 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 petitioner company had entered into the transaction with the Trust which has been approved by the Charity Commissioner on suitable conditions, still, is to drag on which is also seriously prejudicing the interest of the education in the institution run by the Trust. On the contrary, surrounding of the institution is very much projected, no need to repeat, but it is self-explanatory from the record that how genuine need of the trust and paramount interest is to be taken care of the Trust which has well been examined while passing the order in origin and therefore, the Appellate Authority ought not to have passed a cryptic order by stalling the entire process and virtually allowing the main proceedings at this stage.
8.1. Learned senior advocated Mr. Mehul Shah has further submitted and made a statement at bar that it was unequivocally submitted and declared before the Appellate Forum i.e. the Tribunal, that present petitioner is the owner of the land in question which is permitted to be exchanged and documentation is registered one, it is of a public domain and therefore, once registered sale transaction is there, it is a deemed notice even to the objectors and therefore, when such is the declaration emphatically made before the Tribunal, it was perverse on the part of the Tribunal to record that there is no ownership of the present petitioner company and therefore, the order is erroneous, tilted with perversity and suffers from convenient non- application of mind and hence, on this count alone, the impugned order is required to be set aside.
8.2. Mr. Shah has further submitted that the ingredients governing the grant or refusal of interim relief are not analyzed in any form by the Tribunal while passing the impugned order and on the contrary, the balance of convenience and irreparable loss are leaning in favour of the Trust as well as the present petitioner in view of the sizable amount having been deposited and documentation in registered form has been executed. It has been contended that there is no prejudice of any nature likely to be caused to the objectors, i.e. respondent Nos.3 Page 12 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 and 4, if interim relief is not granted to them. On the contrary, their status in law is stranger and at whose instance, such kind of challenge may not be entertained. Since these aspects have been completely lost sight by the Tribunal, the order in question is not just and proper.
8.3. Apart from that, grant or refusal of interim relief is basically based upon equitable consideration and the conduct of the objectors in conveniently not joining the most affected persons though declared before the Court and made an attempt to get the order behind the back of the necessary and proper party, who is directly and substantially affected, and outcome of any nature would not only affecting the Trust but also to the petitioner company. That being the position, this attempt itself is sufficient enough to oust the objectors from equitable consideration. The law is absolutely clear on this aspect and therefore, Mr. Shah has requested to set aside the impugned order or in the alternative, stay the order which has been passed.
8.4. Mr. Shah has further submitted that it is needless to say that all the parties to the proceedings are bound by the outcome of the main appeal proceedings which are very much pending before the Tribunal and as such, if impugned order even if stayed, will not affect the objectors, i.e. respondent Nos.3 an 4 herein.
9. As against the aforesaid submissions, learned senior advocate Mr. R.S. Sanjanwala assisted by learned advocate Mr. Aadit R. Sanjanwala appearing on behalf of the contesting objectors has vehemently contended that the order passed by the Tribunal is perfectly just and proper and there is no infirmity in it. Learned senior advocate Mr. Sanjanwala, has submitted that while passing the original order, the Joint Charity Commissioner had not taken into consideration the paramount interest of the Trust and did not see to it that the property in question may fetch high price. It has been Page 13 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 submitted that respondent nos. 3 and 4- the original objectors may be not connected with the Trust or its affairs, but they are having legitimate right to raise objections, whenever any application under Section 36 is submitted and being dealt with by the concerned Charity Commissioner. It has been submitted that the surrounding area might be thickly populated by now on account of development, but that would not mean that educational activity cannot run at a place where it is being run by the Trust. It has been further submitted that non- joinder of the necessary party may not in any way fatal to the order which is under challenge. The reason is that he petitioner is not the owner of the land in question which is sought to be exchanged rather permitted to be exchanged and simply because the petitioner has deposited some amount would not bring it to the periphery of the necessary and proper party. What is to be examined is that whether effective decision is possible to be taken or not in absence of the petitioner and as such, simply because they are affected person may not become necessary and proper party. It has been contended that this non joinder issue is not a deliberate move of the petitioner and merely with a view to see that since the petitioner is not having any title over the land which is sought to be exchanged, no right is crystallized in their favour and as such, rightly, have not been joined. It has been contended that the objectors are the public spirited person of the city and are well known in their own locality and connected with the real estate business and as such are very much concerned and interested in the issue of the price where in exchange of land of the Trust at some lesser amount. It has been submitted that the Jantri and the index related to assessment of the land price is also already brought before the authority concerned and as such, simply because any deed of transaction of adjacent land may not have been placed on record, the same would not absolve the authority concerned from examining the issue.
10. According to learned senior advocate Mr. R.S. Sanjanwala, the Page 14 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 reasons which are assigned by the authority while passing the impugned order are not perverse in any form and as such, the order does not call for any interference. Learned senior advocate has submitted that in the previous proceedings, the petition was disposed of since respondent Nos.3 and 4 have got an alternative remedy and, therefore, now since the petition came to be disposed of, the assertion in the pleadings are not of any significance and, therefore, simply because in some corner of the affidavit-in-rejoinder, it has been submitted that the petitioner undertook to implead the Classic Network Private Limited, may not oblige the respondent to join compulsorily since it was added in the said line that if required by this Court, and therefore, simply because the petitioner has deposited the amount and armed with an order permitting the land exchange may not be joined. Learned senior advocate Mr. Sanjanwala has submitted that so far as documents related to ownership are concerned, the same were not produced before the Tribunal and, therefore, simply because the learned counsel representing the Trust has asserted about the transaction being registered, the same would be a bald statement and as such, the reason assigned about the non production of the documents relating to ownership cannot be said to be unjust and perverse and in any case, the petitioner having no legal right to insist on commenting upon the impugned order, particularly, when the petitioner itself has also not made any attempt to join in the proceedings and therefore, non joinder by the objectors may not be viewed so seriously because if the petitioner is very much aware and interested and affected, it would have made an attempt to join in the proceedings.
11. Learned senior advocate Mr. Sanjanwala has submitted that apart from all these technicalities, what was real issue in the proceedings is whether the Trust property can be deviated by private negotiation or not and when that is found to be improper by the Tribunal, an order justifiably came to be passed. It has been Page 15 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 submitted that there are catena of decisions on the issue and with a view to made an endeavor on achieving best price of the property of the Trust, a Public auction must be undertaken and as such, here no attempts were made by the in-charge Charity Commissioner, to hold public auction. On the contrary, interest of the Trust has been taken care of by the concerned respondents to agitate the issue and raise the grievance irrespective of the fact that whether the objectors are interested in affairs of the Trust or not, or are interested in offering the bid to the property in question. Having got the legitimate right to raise objections, moment they found that the property in question is to be dealt with in an irregular manner and as such, when the Tribunal has considered every aspect of the matter, it cannot be said at this stage that any illegality is committed.
12. Apart from that, learned senior advocate Mr. Sanjanwala, has submitted that even from the rojkam of the proceedings also, though there is a mandate from the High Court not to function during the pandemic period as stated in a circular and documents which are attached to the petition, still however, the authority has seen to it to grant permission and processed the proceedings during such prohibited period and therefore also, the exercise of discretion undertaken is not just and proper. To substantiate this contention, learned senior advocate Mr. Sanjanwala relied upon and taken the Court to few of the documents to indicate the aforesaid circumstances and, thereby, has contended that in any case, the order passed by the Tribunal is a reasoned order, and passed well within the discretion and, therefore, may not be interfered with in exercise of extra ordinary jurisdiction.
13. Learned senior advocate Mr. Sanjanwala, at this stage has argued as if the petition is to be finally dealt with, but then after submitting at length, has requested the Court to restrict this hearing upto the issue of interim relief since other parties are still to be served and, therefore, keeping that factor in mind, learned senior advocate Page 16 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 Mr. Sanjanwala, has drawn attention of this Court to few of the decisions which are propounded by the Apex Court with regard to merits and has submitted that all these authorities were cited before the Tribunal and the Tribunal has exercised the discretion. Since the Tribunal has not analyzed in detail the said documents and decisions, it cannot be said in any manner that any irregularity has taken place. Learned senior advocate has referred to those decisions which were produced on record before the Tribunal and after referring to it, has vehemently opposed to grant any relief in favour of the petitioner. Learned senior advocate has submitted that grant of interim relief and refusal thereof is basically depending upon the strong prima facie case and other aspects governing it and none of the factors are leaning in favour of the petitioner nor in favour of the Trust and, therefore, when prima facie Tribunal found that there is a good case in favour of the objectors during the pendency of the main proceedings, interim stay has been granted, which cannot be said to be erroneous in any form.
14. Following decisions are referred to by learned senior advocate to substantiate his contentions:-
(1) In the case of Chenchu Rami Reddy and Another Vs. Government of Andhra Pradesh and others reported in (1986)3 SCC 391;
(2) In the case of Cyrus Rustom Patel Vs. Charity Commissioner, Maharashtra State and others reported in (2018)14 SCC 761;
(3) In the case of Shri Ambadevi Sanstha and others Vs. Joint Charity Commissioner and others, reported in (2019)17 SCC 419;
(4) In the case of Sailesh Developers and Another Vs. Joint Charity Commissioner, Maharashtra and others reported in 2007(3) Mh.L.J. 717 [2007 SCC OnLine Bom.124] But, since no microscopic analysis at this stage of the proceedings is to be under taken, and particularly, when learned senior advocate Mr. Sanjanwala, has insisted since there are several respondents, the Court is dealing not so minutely at this stage of the proceedings, but Page 17 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 the submissions related to interim relief, as contended, are being considered by this Court
15. In addition to this, in support of learned senior advocate Mr. Sanjanwala, Mr. Diggant Kakkad, learned advocate appearing on behalf of one of objector being respondent no. 7 has contended that basically he adopts the submissions made by learned senior advocate but additionally has pointed out that by way of application, has submitted an offer, but at belated stage, he candidly submitted and basically has relied upon the contentions raised by learned senior advocate Mr. Sanjanwala. It has been pointed out that respondent no. 7 - has preferred an appeal being Appeal No. 11 of 2021 against the original order, which is subsequent to what has been filed by other objectors in which he has already joined Classic Network Private Limited as party to the proceedings, but then, has candidly submitted that by way of pursis, as adopted the decision which has been taken which is impugned in the proceedings. But substantially, learned advocate Mr. Kakkad has submitted that respondent no. 7 is also objecting and with no other submissions, a request is made to consider the case.
16. From the aforesaid material, at this stage of proceedings, to conclude and analyze minutely the merit or de-merit of the submissions would tantamount to prejudicially affecting the right of representation at an appropriate stage in the present proceedings, but prima facie, the Court is satisfied that there is a strong case made out by the petitioner to call for an interference at an interim stage. Here, the background of facts clearly reveals that the permission has already been granted by imposing appropriate conditions, which conditions have never been breached, on the contrary, a substantive progress has been made and in response thereto, the petitioner has deposited 50% amount, i.e. Rs.4 crore, and in addition thereto, the land which has been permitted to be exchanged, is also purchased by Page 18 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 the petitioner through a lawful transaction of registered document on the basis of the Jantri value and the same has also been converted into N.A. and registration of document itself is a deemed notice and is a public domain, the same would not have been been ignored by the Tribunal. Learned Tribunal ought not to have ignored the proposition that prima facie case and prima facie title cannot be confused and no interim relief be granted against the title holder.
17. Further, it appears that the objectors, i.e. respondent Nos.3, 4 and 7, are appearing to be a busybody since they are neither concerned with the Trust affairs nor have participated in the activity of the Trust nor are the beneficiaries nor are the donors in the Trust and therefore, they appear to be totally strangers to the Trust and as such, they cannot be said to be a person interested. Apart from this, these objectors, except raising objections, have not shown any interest in purchase of the property at any time. It is only with a view to come out from the rigor of locus, a bald assertion at a much belated stage is made but is of no consequence, as it appears from the proceedings. Additionally, the conduct of the respondent objectors is also such which would not permit this Court to accept the plea at this stage in view of the principle of equity, knowing full well from the beginning about the existence of the petitioner and its deposit and the steps in furtherance of the permission having been granted, conveniently, the petitioner has not been joined at any stage and an attempt is made to obtain the orders behind the back of the petitioner. It is clearly suggesting from the record that even though they had undertaken in the rejoinder affidavit in the previous proceedings to join the petitioner, despite disposal while preferring an appeal, the petitioner has not been joined and straightway, the order is persuaded to be passed which is impugned in the present proceedings. Additionally, these objectors are dealing in real estate business, which is clearly averred by them in the earlier round of litigation, and simultaneously, despite public notice having been given, they have not offered any bid Page 19 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 nor made any attempt to show remotely the interest in the property except for raising objections with regard to valuation. Therefore, their entire endeavour is prima facie found to be just to delay the proceedings in any form for unforeseen reasons. If a person is dealing in real estate business, he would be aware about the real value of the property and transaction which is taking place in the area, but still not a single transaction is produced on record of adjacent land or property to justify their grievance about the price. This prima facie appears to be a conduct of busybody. In addition to this, the previous order of this Court is suggesting that the appeal proceedings were ordered to be disposed of at the earliest, but it appears that the present objectors have seen to it that the interim relief issue be decided in such a manner that entire main proceedings may be put to a halt for quite some time.
18. Prima facie, the documents available on record suggest that these respondents have no lawful interest in the property, have persuaded the Tribunal to ignore certain material aspects about registered documentation in favour of the petitioner, about huge deposit which has been made and to arrive at a conclusion which is far from truth. In fact, registered document is a deemed notice and is of a public domain and therefore, when the objectors were clearly aware about the said fact, when the Trust has categorically drawn the attention of the Tribunal about such registered transaction and lawful ownership of the petitioner of the land in question, still the Tribunal ignored the said aspect which has materially affected the decision making process and therefore, the reasons which are assigned are quite perverse which are required to be examined thoroughly at an appropriate stage in the present proceedings, but prima facie, continuing an interim relief which has been obtained by the respondent objectors would rather run counter to the interest of the Trust which has been taken care of by the Joint Charity Commissioner at the relevant point of time and would prejudicially Page 20 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021 C/SCA/8246/2021 ORDER DATED: 25/06/2021 affect seriously the present petitioner which has stepped quite forward pursuant to the conditional permission having been granted and therefore, if interim relief is granted in the present proceedings, there is no prejudicial affect on the objectors and they are not going to be put to any jeopardy or loss and therefore, balance of convenience and irreparable loss aspects are also clearly leaning in favour of the petitioner rather than objectors and prima facie, strong case is made out by the petitioner. At this stage, without much discussing at length the merit or de-merit of the submissions, the matter requires consideration.
19. The Court while arriving at this conclusion to consider the request of interim relief, is assisted of the decision delivered by Hon'ble the Apex Court reported in the case of Prasar Bharati Vs. Board of Control for Cricket in India and others reported in (2015)6 SCC 614 and also the observations made by the Division Bench of this Court on the issue of person interested, i.e. the judgment rendered in Letters Patent Appeal No.848 of 2017 on 18.7.2019.
20. Hence, following order is passed:-
(1) RULE . The parties are at liberty to apply for early hearing upon completion of pleadings.
(2) In view of the aforesaid background of facts and chronology and sequence of events, there shall be an INTERIM RELIEF of staying the operation and implementation of the impugned order dated 1.6.2021. It is needless to clarify that the parties to the proceedings will be bound by the ultimate outcome of litigation.
(3) Learned advocate Mr. Aadit Sanjanwala for respondent Nos.3 and 4, learned senior advocate Mr. Mehul Suresh Shah for respondent No.5 and learned advocate Mr. Digant Kakkad for respondent No.7 waive service of notice of Rule.
Direct Service for respondent Nos.1,2,6,8 & 9 is permitted.
(ASHUTOSH J. SHASTRI, J)
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C/SCA/8246/2021 ORDER DATED: 25/06/2021
FURTHER ORDER
At the time of pronouncement of the order, learned senior advocate Mr. R.S. Sanjanwala has requested the Court to suspend the operation of the order for a period of one week. Since the Court has considered the case at length, the Court is not inclined to consider the request. The request is accordingly rejected.
(ASHUTOSH J. SHASTRI, J) OMKAR Page 22 of 22 Downloaded on : Mon Jun 28 20:40:31 IST 2021