Gujarat High Court Case Information System Print SCA/9001/2004 11/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9001 of 2004 For Approval and Signature: HONOURABLE MR.JUSTICE [ENTITY] 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 [ACT] or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? [ENTITY] - Petitioner(s) Versus [ENTITY] & 2 - Respondent(s) Appearance : MS [ENTITY] FOR MRS [ENTITY] for Petitioner(s) : 1, MR [ENTITY] for Respondent(s) : 1, RULE UNSERVED for Respondent(s) : 1.2.1 MR [ENTITY] for Respondent(s) : 2, MR [ENTITY] for Respondent(s) : 3, CORAM : HONOURABLE MR.JUSTICE [ENTITY] Date : 19/02/2010 ORAL JUDGMENT
1. This petition is directed against the order passed by the Gujarat Revenue Tribunal (for short, the Tribunal ) in [CASE NUMBER] dated 09.06.2004, whereby, the said appeal was dismissed and the orders dated 29.04.1999 and 04.05.1999 passed by the Joint Charity Commissioner, respondent no.3 herein, were confirmed.
2. The facts in brief are that respondent no.1 herein is a public trust registered under the [ACT] (for short, the Act ) having Registration No.A/1012/Surat. The respondent no.1-Trust is the owner of the land bearing Block No.12, admeasuring 5 Acres and 37 Gunthas, of Village Laskana, Taluka Kamrej, District Surat.
3. An application dated 25.07.1998 came to be filed by the sole trustee of respondent no.1-Trust, (deceased) [ENTITY], before respondent no.3, seeking permission to sell the said property in favour of respondent no.2, who was said to be in possession of the land during the preceding five years as a lessee. Pursuant thereto, the respondent-authority issued a public notice and invited objections against the proposed sale transaction. The petitioner herein filed his objections mainly contending that if at all the land is to be sold away, he is prepared to buy it at 25% more than the price notified in the public notice and that the sale of the trust property in favour of respondent no.2 was a collusive transaction for personal gain. After hearing both the sides, respondent no.3 granted permission to sell the property in question in favour of respondent no.2, vide order dated 29.04.1999.
4. Against the said order passed by respondent no.3, the petitioner filed an appeal before the Tribunal, which came to be numbered as [CASE NUMBER]. Along with the said appeal, an application for stay was also preferred. The Tribunal, vide order dated 10.02.2000, vacated the stay earlier granted by it on the order dated 29.04.1999 passed by respondent no.3. Against the said order, the petitioner preferred [CASE NUMBER] before this Court, which was dismissed. Letters Patent Appeal was filed by the petitioner being [CASE NUMBER] against the order passed in [CASE NUMBER], which was dismissed and the matter was remanded to the Tribunal. Thereafter, the Tribunal proceeded with the hearing of the appeal and vide impugned order dated 09.06.2004 dismissed the same. Hence, this petition.
5.0 Learned counsel for the petitioner has submitted that the disposal of the trust property by the sole trustee in favour of respondent no.2 was a collusive transaction for personal gain and was also against the interest of the temple trust. The respondent-authority has not appreciated the objections filed by the petitioner in its true perspective. She has submitted that if at all the land was to be sold away, the respondent no.3-authority ought to have considered the offer made by the petitioner since the petitioner had showed his willingness to purchase the property in question by paying 25% more than the price notified in the public notice.
5.1 Learned counsel for the petitioner has further submitted that the respondent-authority has also not appreciated the fact that in the revenue records, nowhere the name of respondent no.2 was shown as the tenant or occupier of the land in question till 1997 1998 and that there was no evidence on record to show that the so-called rent paid by respondent no.2 was credited in the account of the trust.
5.2 Learned counsel for the petitioner has further submitted that the advertisement was issued only for invitation of objections and not for offers. It is a consistent practice to invite offers / tenders in the case of sale of a public property before giving permission to sell the land. However, the said procedure was given a go-bye by the respondent-authority by straightaway accepting the price mentioned in the application preferred by respondent no.2.
5.3 Learned counsel for the petitioner has, therefore, submitted that the Tribunal has failed to appreciate the evidence on record in its proper perspective. Hence, the impugned order passed by the Tribunal deserves to be quashed and set aside.
5.4 Learned counsel for the petitioner has relied upon a decision of this Court in the case of [PRECEDENT], wherein, it has been held that the Courts have to act as constitutional protector of all charities and that the jurisdiction is analogous to one as a protector of an infant. It has been further held therein that the quarrels amongst trustees cannot be allowed to have any place in the matters of public trust properties and that paramount interest of the trust must be taken into account and not the interest of the trustees or beneficiaries.
5.5 Learned counsel has relied upon a decision of the Apex Court in the case of [PRECEDENT], wherein, it has been held that the action of grant of lease, under the [ACT], to a person who wrote a letter to the Chief Minister by making allegations against the highest bidder at auction, is arbitrary, if no opportunity is given to the highest bidder.
5.6 Learned counsel has lastly relied upon another decision of the Apex Court in the case of [PRECEDENT], wherein, it has been held that the property of religious and charitable endowments or institutions must be jealously protected because large segment of the community has beneficial interest thereon. Sale by private negotiations, which is not visible to the public eye and may even give rise to public suspicion, should not, therefore, be permitted unless there are special reasons to justify the same.
6.0 Mr. [ENTITY], learned counsel appearing on behalf of respondent no.2, has submitted that the petitioner is a Lawyer practicing in the Courts at Surat and is having the habit of raising objections in every public auction.
6.1 Learned counsel has further submitted that under the provisions of [SECTION] of the Act r/w. [SECTION] of the Rules framed thereunder, the Charity Commissioner is concerned only with according or refusing sanction to particular sale which the trustees propose to make. He has submitted that it is not open to the Charity Commissioner to consider uninvited offers from third parties except for ascertaining the market price of the property. The Charity Commissioner cannot sell or require the trustees to sell the property to such third parties and if he considers the sale proposed by the trustees adverse to the interests of the trust, he could only decline sanction.
6.2 In support of the above submission, learned counsel has relied upon a decision of the Bombay High Court in the case of [PRECEDENT]., wherein, similar principle has been observed.
6.3 Learned counsel has also relied upon another decision of this Court in the case of [PRECEDENT] through Trustees & Ors., 1996 (2) G.L.H. 615, wherein, it has been that a valid offer means a firm offer of specific ascertained amount accompanied by requisite deposit of earnest money before the expiry of last date for making offers and does not mean an offer of certain amount over and above the maximum price offered by anybody else.
6.4 Learned counsel has further submitted that since both the respondent no.3-authority and the Tribunal have recorded concurrent findings, this Court may not interfere with the impugned orders by exercising powers under [SECTION] of the [ACT] as the scope is very limited. He has, therefore, submitted that looking to the facts of the case and the settled position of law, the Tribunal was justified in dismissing the appeal preferred by the petitioner. Hence, this Court may not exercise its discretionary powers in favour of the petitioner.
7. Heard learned counsel for the respective parties. It appears from the record that at the time when the application seeking permission of the competent authority to sell the land in question was made by the sole trustee (Late) Smt. [ENTITY], the said land had already been given on a five year lease to respondent no.2 for cutting the grass, at an annual rent of Rs.900/-, in order to protect the land from encroachment. The respondent no.2 was possessing the said land as a tenant under a lease agreement entered into between the sole trustee and respondent no.2. It is a fact situation that the said lease document was executed on a stamp paper of inadequate value and that it was also not registered. On the basis of such a document, respondent no.2 could never have got any right established in any Court of law since the said document would have been inadmissible in evidence. At the best, respondent no.2 could have got the right of a licensee established but, in that case also, the Trust could have got back possession of the said land at the end of five years. However, the fact remains that at the relevant time, the disputed land was in the possession of respondent no.2 in the capacity of a tenant.
8. it is pertinent to note that the respondent no.2 had expressed his willingness to purchase the land in question at the price of Rs.11,21,000/- as against the Government approved Valuer's price valuation of Rs.10,80,000/-. The petitioner had not given or specified the exact amount at which he was ready to purchased the disputed land. His statement that he was willing to pay 25% more than the negotiated price could not be considered to be a valid offer, particularly, when he did not take any step to give an effective offer, along with the requisite deposit, during the period between 15.10.1998 and 15.04.1999. It is also required to be noted that the petitioner had not raised any objection that the market price valuation, given in the Government approved valuer's Report, is not proper or that it is low, etc. In other words, the valuation as fixed by the Government approved valuer was not challenged by the petitioner. Thus, when no challenge was put forward by the petitioner/objector regarding the valuation of the land and when no sale instances or other evidence or valuation report pointing to the fair market price significantly higher than what was assessed by the Government approved Valuer, the respondent no.3-authority was justified in accepting the fair market value of the land on the basis of the Valuation Report.
9. Keeping in mind the fact that respondent no.2 was possessing the disputed land in the capacity of a 'tenant' at the relevant time and that he had quoted a price much higher than the Government approved Valuer's price, which had remained unchallenged coupled with the fact that the petitioner had not taken any steps to give any effective offer, along with the requisite deposit, during the period between 15.10.1998 and 15.04.1999, the respondent no.3-authority was justified in coming to the conclusion that there was compelling necessity for alienating the disputed land, particularly, when the sold trustee was an elderly lady aged about 80 years and there was every possibility that the disputed land would have been encroached upon. The decisions relied upon by the learned counsel for the petitioner, though being a good law, will not apply to the facts of the case on hand, in view of the discussion made herein above.
10. Looking to the facts of the case, it would be relevant to refer to a decision of this Court in the case of [PRECEDENT], wherein, it has been held that the primary power to grant sanction is vested by the Legislature advisedly in the Charity Commissioner and that the Charity Commissioner should exercise such power justly and fairly and after taking into consideration the relevant factors. Once such sanction is granted, it would be unjust to upset such sanction in appeal u/[SECTION] on grounds which do not materially affect the satisfaction reached by the Charity Commissioner.
11. While upholding the decision of the authority below, I also agree with the view taken by the Bombay High Court in [PRECEDENT]'s case (supra) that it is not open to the Charity Commissioner to consider uninvited offers from third parties except for ascertaining the market price of the property and that the Charity Commissioner cannot sell or require the trustees to sell the property to such third parties. If the Charity Commissioner considers the sale proposed by the trustees adverse to the interests of the trust, he could only decline sanction. The facts of the present case are almost similarly situated. I concur with the view adopted by the Bombay High Court in the said decision.
12. In view of the above discussion, the concurrent findings arrived at by the authority / Tribunal below and the settled law on the subject, I am of the opinion that the Tribunal has not committed any error in law or on facts by dismissing the appeal preferred by the petitioner. I also find that the respondent no.3-authority has exercised the power to accord sanction in accordance with the provisions of [SECTION] of the Act and that no illegality or impropriety has been committed by him while doing so. Hence, the present petition deserves to be dismissed.
13. For the foregoing reasons, the petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
[[ENTITY], J.] Pravin/*