@)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3995 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NAGESHWAR VIDHYA TRUST Versus PANKAJBHAI HARISHCHANDRA JANI -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3995 of 2005 Mr N.D. Nanavati, sr. advocate, with Mr. Jal Soli Unwala for Petitioner Nos. 1-3 Mr D.D. Vyas, sr. advocate, with Mr Deep D Vyas for Respondent No. 1 to 4 Mr. Kamal Trivedi, Addl. Advocate General appears as amicus curiae Mrs Vidhatri Parekh for Respondent Nos. 5-6 Mr TS Nanavati for Respondent No. 7 Mr Devang Vyas for Respondent No. 8 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 5 / 5 /2005 C.A.V. JUDGEMENT 1.1 Shri Nageshwar Vidhya Trust, petitioner No. 1; Smt. Chandaben Drukeshkumar Upadhyay, Managing Trustee of Shri Nageshwar Vidhya Trust, petitioner No. 2 and Shri Rajnikant Shantilal Joshi, petitioner No. 3, have filed this petition with a prayer that this Court may issue a writ of mandamus or writ in the nature of mandamus or any other appropriate order or direction transferring the following proceedings: (i) Miscellaneous Judicial Application No. 7 of 2004 along with Suo Motu Application No. 8 of 2004 under Section 41(A) of the Bombay Public Trust Act (hereinafter referred to as "the Act"), (ii) Miscellaneous Judicial Application No. 10 of 2004 under Section 41(A) of the Act, (iii) Scheme Application No. 13 of 2004 under Section 50(A) of the Act; and (iv) Miscellaneous Judicial Application No. 36 of 2004 under Section 41(A) of the Act pending before respondent No. 7, Joint Charity Commissioner at Surat to any other appropriate Authority/Officer/Charity Commissioner other than respondent No. 7 who is competent to adjudicate upon the above mentioned proceedings under the Act as deemed fit in the interest of justice by this Court. 1.2 The said petition was filed on 9.3.2005. This Court passed orders dated 11.3.2005, 15.3.2005 and 21.3.2005. 1.3 Pursuant to the order passed by this Court, on behalf of the petitioner Mr. N.D. Nanavati, learned senior counsel with Mr. Jal Unwala, learned advocate, appears whereas on behalf of respondent Nos. 1 to 4, Mr. D.D. Vyas, learned senior advocate with Mr. Deep D. Vyas, learned advocate, appears. This Court has not issued any notice. However, as the record of the matter is voluminous and question raised in the petition is delicate one, this Court requested Mr. Kamal Trivedi, learned Additional Advocate General and sr. advocate, to appear as amicus curiae on behalf of respondent No. 7. As Mr. Trivedi is senior advocate, he has requested Mr. T.S. Nanavati, learned advocate, to appear on behalf of respondent No. 7. 2. The facts giving rise to this petition are as under: 2.1 There is an agricultural land bearing old Revenue Survey No. 35/2 (new Revenue Survey No. 38/4) situated at village Magdalla of sub-District Choryasi of District admeasuring 1 Hectare 32 Are and 53 Sq. mtrs. nearly 13253 sq. mt. which is actually measured as 12098 sq. mtr. after deduction which is called ( Land - A). There is an another land bearing Revenue Survey No. 75 (new Survey No. 48) situated in village Magdalla of sub-District Choryashi of District Surat which is agricultural land admeasuring 4 Acre 1 Guntha and Hectare 1-62-89 Are = 16,744 sq. mtrs. which is called (Land - B) (hereinafter referred to as "the suit properties"). 2.2 From the record it emerges that originally one Shri Mansukhlal Pachhigar was the owner of the suit lands and he has died on 7.3.1993 without making any Will. The pedigree of Mr. Mansukhlal Pachhigar is ad under: Mansukhlal Pachhigar (died on 7.3.1993) | | | Hasumatiben M. Pachhigar (Wife) | | | ----------------------------------------------------- | | | | | | | | | Subhashchandra Ashokbhai Avantikaben Pachhigar Pachhigar Pachhigar (Son) (Son) (daughter) | | (Husband's name | | Ashwinbhai) | | ------------- ------------------- | | | | | | | | | | | | Snehal Bijal Gautam Siddharth 2.3 Shri Mansukhlal Pachhigar's wife's name is Hasumatiben Mansukhlal Pachhigar. They had two sons, named Shri Subhashchandra Mansukhlal Pachhigar and Shri Ashokbhai Mansukhlal Pachhigar and a daughter named Avantikaben. Her husband's name is Ashwinbhai. Subhashchandra Pachhigar has a daughter Snehal and a son Bijal and Ashokbhai Pachhigar has two sons Gautam and Siddharth. 2.4 Petitioner No. 1 is a trust which is duly registered on 17.10.1996 under the Act having its Registration No. E-3873 at Surat. Petitioner Nos. 2 and 3 are trustees of the said trust wherein petitioner No. 2 Smt. Chandaben Drukeshkumar Upadhyay is its Managing Trustee. The object of the trust is educational development by opening primary and secondary schools and also helping other institutes in connection with educational activities. The trust deed of the said trust is produced on record at Annexure-A to the petition. Dhrukeshkumar @ Bankimbhai Upadhyay is the husband of Chandaben, the trustee of the Nageshwar Vidya Trust. The co-trustee is Rajnikant Shantilal Joshi. Rajnikant Shantilal Joshi is the husband of the sister of Dhrukeshkumar @ Bankimbhai, hence Rajnikant Joshi is "Banevi" of Dhrukeshkumar and hence Rajnikant Joshi happens to be "Nandoi" of Chandaben. Hence the two trustees are related to each other. If you see the object of the trust and trust deed it appears that the trustees have only given Rs. 1001/- to the trust and no other amount has been contributed by the trustees. 2.5 The petitioner states that on 24.9.1998 an agreement to sell came to be entered into between the parties namely, Smt. Chandaben Drukeshkumar Upadhayay and Shri Rajnikant Shantilal Joshi in their capacity as trustees of Nageshwar Vidya Trust and Subhashbhai Mansukhlal Pachhigar and Ashokkumar Mansukhlal Pachhigar for the sale of the land of Regular Survey No. 35/2 (new Survey No. 38/4) for consideration of Rs. 38,33,225/- . Out of that part of the amount was paid and the remaining amount was to be paid by the trustees. 2.6A The petitioner further states that another agreement of Sale Deed was executed on 17.10.1998 between the trustees of the trust on one hand - purchaser of the land and Hasumatiben Mansukhlal Pachhigar, widow of deceased Mansukhlal Pachhigar and Subashbhai Mansukhlal Pachhigar on the other hand in connection with land of Revenue Survey No. 75 for consideration of Rs. 51,62,000/-. 2.6B It appears from the record that the main object of the trust is to run educational institute and in view of the said object of the trust which is on the record of the case. The Trust constructed the school on the said building somewhere in 1998 and the school started running in 1998. The trust not only was running the school but also created investment in the said land with a view to see that trust can be able to carry out its object. 2.7 From the record it appears that the said lands were agricultural lands whereas the purchasers were non-agriculturists. It may be noted that Smt. Avanitkaben Pachhigar addressed a notice dated 20.8.2000 to the Chairman of the Surat Urban Development Authority, the Collector of Surat, the Police Commissioner, the District Education Officer, Additional Jilla Pradamik Officer, Ministry of Urban Development and the Gujarat Electricity Board in which it was stated that she is the owner of the part of the land, the land was agricultural land and there is no procedure to make the land as non-agricultural land and still in the said land the trust has constructed a building which is contrary to the provisions of the Urban Land Act as well as the Bombay Land Revenue Code. Therefore, the entire activity carried out by the Trust of running school in the said building premises is contrary to law. Similar notice was also issued in connection with the second land also by Smt. Avantikaben Pachhigar to all the said authorities. 2.8A In view of the aforesaid facts and circumstances of the case, Ms. Avantikaben Mansukhlal Pachhigar had filed Regular Civil Suit No. 411 of 2000 against the trust as well as trustees Smt. Chandaben Drukeshkumar Upadhayay and Shri Rajnikant Shantilal Joshi; Shri Subashchandra Mansukhlal Pachhigar, Ashokkumar Mansukhlal Pachhigar, Smt. Hasumatiben Mansukhlal Sakarlal Pachhigar. In the said suit she has prayed that the trust may not use the property for which agreement to sell has been executed. The said suit was filed on 29.7.2000. The learned Civil Judge (S.D.) passed an order issuing notice on 29.7.2000 and ultimately at by-parte hearing on 23.2.2001 the learned judge partly allowed the injunction application filed by Ms. Avantikaben Mansukhlal Pachhigar restraining the trustees not to interfere with the possession of the property in question. 2.8B Being aggrieved and dissatisfied with the said order the trust filed an appeal on 9.3.2001 before the learned District Judge, Surat. During the pendency of the proceedings, SUDA issued notice dated 26.2.2001 stating that the school building is illegally constructed and for taking a decision, a meeting is convened and they have to remain present. If they did not remain present, SUDA will remove the illegal construction. 2.8C Surat Urban Development Authority ( hereinafter referred to as "SUDA") has therefore addressed notice dated 26.2.2001 to Chandaben as to why the said construction should not be demolished and the notice was given and hearing of the notice was fixed on 1.3.2000. Similarly, the Circle Inspector also addressed notice dated 30.1.2002 to Mansukhlal and Hasumatiben Mansukhlal in which it is stated that the trust has constructed the school without permission and the authority will take necessary action. 2.8D As the original owners of the land thereafter made some application before Surat Urban Development Authority (SUDA) and ultimately SUDA issued notice dated 26.2.2001 to remove illegal construction. 2.8E It appears from the record that in the said petition it was stated that though the petitioner trust has entered into an agreement to sell at the price of Rs. 265/- per sq. yard, as the price of the land has gone up, the original owners refused to execute the agreement and demanded Rs. 1500/- per sq. yard and that is how the dispute between the original owners of the land and the trust arisen. 2.8F In view of the aforesaid facts and circumstances of the case, it may be noted that the trust filed Special Civil Application No. 1986 of 2001 before this Court on 17.3.2001 with a prayer for quashing and setting aside notice dated 23.2.2001 issued by SUDA. 2.8G Ultimately, when the aforesaid matter Spl. C.A. No. 1986 of 2001 reached hearing before this Court, this Court (A.L. Dave, J) passed the following order: (19.3.2001) "Mr. Surti after arguing, seeks permission to withdraw this petition with a view to approach the authority under Section 36(2) of the Town Planning Act. The petition stands disposed of as withdrawn. Mr. Surti also states that such application will be made before 27th of March 2001 and the authority will not demolish till then." 2.8H It emerges from the record that pursuant to the said notice the trust has also filed application dated 15.3.2001 before SUDA for regularisation of the construction because according to them the construction was without lay out plan and without plan and even no permission was taken. CIVIL SUIT NO. 125 OF 2001 & 126 OF 2001: 2.9 It appears from the record that though the original owners executed Sattakat (agreement of sale) dated 24.7.1998 another agreement of sale dated 17.10.1998 and part of the consideration was paid by the trust, the original owners failed and neglected to execute the Sale Deed after taking consideration and they were not co-operating with the trust, the trust filed Special Civil Suit No. 125 of 2001 against Subashchandra Mansukhlal Pachhigar, Ashokkumar Mansukhlal Pachhigar, Smt. Hasumatiben Mansukhlal Shankarlal Pachhigar and Ms. Avantikaben Ashwinlal Pachhigar in March, 2001 with a prayer that the defendants may not prevent the use of the said land and also for a specific performance of the said land. The said suit was related to agreement dated 24.7.1998 whereas another suit being Civil Suit No. 126 of 2001 related to agreement dated 17.10.1998 against the same defendants and against the same relief. They produced certain documents before the trial court. SPECIAL CIVIL APPLICATION NO. 2031 OF 2003: 2.10 However, in view of the fact that SUDA has issued notice and as per the contention of Ashokkumar Mansukhlal Pachhigar as SUDA was not taking any action against the trustee, Ashokkumar Mansukhlal has filed Special Civil Application No. 2031 of 2003 before this Court with a prayer that this Court may direct the respondent authority namely SUDA to initiate and finalise the action of removal of illegality committed by the trust and implement the action of demolition, cancellation of recognition as well as disconnection of electric supply which has been obtained illegally. In that petition respondent No. 2 trust filed an affidavit in reply and SUDA also filed affidavit and this Court (Coram: R.K. Abichandani and K.M. Mehta, JJ) passed order on 9.9.2003 on the ground that respondent No. 2 has filed an application before SUDA in respect of the property in question and directed that SUDA will consider the same and take an expeditious decision thereon and ultimately the petition was withdrawn. 3. It appears that on 4.12.2003 a memorandum of understanding was issued between Babubhai Karshanbhai Patel and Sandip Hasmukhlal Shah on one hand and the trustees of the trust on the other hand. As per the said understanding between the parties if the original land owners execute sale deed in favour of Babubhai Karshanbhai Patel and another, the trustees agree not to object without compromising the interest of the trust and to cancel the agreement for sale executed in the year 1998 which are referred to earlier. 4. From the record it emerges that at the instance of Babubhai Karshanbhai Patel and another the matter was settled between the trustees and the original land owners. As a result of which the trust acting through both the trustees executed the deed of cancellation of agreement for sale referred to hereinbefore with respect to both the lands on 27.1.2004. In view of the said understanding the original land owners returned the amount received by them at the time of execution of the agreement for sale to the trust by way of two cheques. Shri Babubhai Karshanbhai Patel also paid Rs. 20 lakhs in lieu of the construction made by the trust over the land in question. 5. After the aforesaid cancellation of agreement of sale the original owners i.e. Pachhigar family executed sale deed on 29.1.2004 in favour of Shri Babubhai Karshanbhai Patel, HUF, (petitioner in Special Civil Application No. 6433 of 2004) for a total consideration of Rs. 12 lakhs. 6. It appears from the record that the trust in its meeting held on 30.1.2004 passed a Resolution pointing out the above referred facts and resolving to accept a sum of Rs. 20 lakhs and further resolving to handover the actual and peaceful possession of the land and building to Shri Babubhai Karshanbhai Patel, HUF. 7. In January 2004, since the trust was running a school in the construction, the trust requested Shri Babubhai Karshanbhai Patel, HUF, to permit the trust to complete the term and give licence to the trust to enter into the premises till 31.5.2004 so that the interest of the students are not jeopardized. 8. From the record it appears that Shri Babubhai Karshanbhai Patel has permitted the trust to run the school on humanitarian gesture and in the interest of the students who are studying in the school run by the trust on an undertaking from the trust that the said permission would come to an end on 31.5.2004 and no activities would be carried by the trust thereafter. 9.1 It appears from the record that Shri Rajnikant Shantilal Joshi, petitioner No. 3 herein, who was one of the trustees of the trust filed Civil Suit No. 192 of 2004 on 7.4.2004 contending that all his signatures are obtained by another trustee by misleading him. 9.2 It appears from the record that Shri Babubhai Karshanbhai Patel was constrained to restrain the trustees of the trust from entering into the land in question and has demolished the school building on 9.4.2004 on the ground that Shri Babubhai Karshanbhai Patel is a rightful owner having sale deed in his favour. APPLICATION NO. 7 OF 2004: 9.3 In view of the aforesaid proceedings it appears that Pankajbhai Harishchandra Jani, respondent No. 1; Manishaben Mayurbhai Patel, respondent No. 2; Manojbhai Ratilalbhai Kansari, respondent No. 3; Anilbhai Bhikhubhai Shah, respondent No. 4; herein, who happen to be parents of the students who were studying in the school filed an application before the Joint Charity Commissioner being Nyay Misc. Application No. 7 of 2004 against the trust and two trustees under Section 41A of the Act with a prayer to have obtained interim injunction that as regards the subject matter of trust, the Charity Commissioner may call for proceedings of the trust from respondent No. 3 i.e. Additional Charity Commissioner, Surat and examine the obtaining of movable and immovable property. The said Pankajbhai Harishchandra Jani has also prayed that as regards suit land, the trust may not surrender the said land to the original owners without obtaining prior permission of the Charity Commissioner. Respondent Nos. 1 and 2 also produced necessary records before the Charity Commissioner. The said application was filed on 28.4.2004. 9.4 It appears from the record that temporary injunction was also prayed and interim relief was granted in the said application by the Joint Charity Commissioner. The matter was made returnable on 15.5.2004. In the said proceedings Shri Panjakbhai H. Jani also tendered reply at Exh. 8 with certain documents. Manishaben Mayurbhai Patel also gave combined reply of application for injunction and main application Exh. 9. Opponent No. 1 tendered an application to join proposed opponent No. 4 namely, Anilbhai B. Shah, which came to be granted by the Charity Commissioner below Exh. 12. Advocate for applicant applied for appointment of Commissioner which came to be granted on Exh. 13. 9.4A It also appears from the record that somewhere in March 2004 Chandaben filed her appearance and tendered objection Application No. 3 of 2004 on 25.3.2004. 9.4B On 11.5.2004 office of the Joint Charity Commissioner issued directions to the Assistant Charity Commissioner to inquire in respect of the affairs of Nageshwar Trust on six points as stated in the said communication. On 12.5.2004 Chandaben Dhrukeshkumar filed reply and Rajnikant Shantilal Joshi filed reply in connection with the property of the trust. 9.4C On 12.5.2004 opponent Chandaben also filed an application to join her husband Dhrukeshkumar Bankimbhai Indurai Upadhyaya as party opponent No. 4 which was ordered to be kept for hearing. The applicant preferred an application for appointment of Court Commissioner Exh. 54 wherein below order dated 12.5.2004 came to be passed. 9.4D On 14.5.2004 Babubhai Karsanbhai Patel HUF inter alia lodging objections against hearing of the matter as well as the order of appointment of Commission which was partly implemented till that date. On 14.5.2004 the Principal Bhartiben Pradipbhai Trivedi was ordered to be joined as party and matter was ordered to be kept on 15.5.2004 which came to be issued vide Exh. 26. In the further hearing the Charity Commissioner also passed order dated 14.5.2004 that as the suits are pending Commission work should at present be stalled. However, inventory work can be continued. Shri B.K. Patel, Karta of B.K. Patel, HUF, seeks to be joined as a party vide application and he was ordered to be joined as party opponent by order dated 17.5.2004. Chandaben Dhrukeshkumar filed reply to this application. On 17.5.2004 Rajnikant Joshi sought time to file reply to the main application and stay application. On 17.5.2004 the Assistant Charity Commissioner reported to Joint Charity Commissioner the inventory work carried out on 15.5.2004. On 19.5.2004 on behalf of opponent No. 1 an affidavit of Chhaganben Odhavjibhai Vaghani is placed on record for the purpose of reconfirming the fact that Babubhai Karsanbhai Patel on 31.1.2004 in his presence had handed over cheque of Rs. 5 lakh and cash of Rs. 15 lakh which was received by the trustee shri Joshi. 9.4E On 19.5.2004 the District Education Officer addressed a letter to the Joint Charity Commissioner in respect of seeking recognition of Standards I to VII and of English Medium from Standards IV to VII. 9.4F On 21.5.2004 Rajnikant Joshi tenders a list of documents particularly affidavit of Chandaben Dhrukeshkumar Upadhayay in Special Civil Application No. 2131 of 2003 along with documents and communications between the parties since 1998 between Nageshwar Vidya Trust and SUDA authorities. Application No. 8 of 2004: 9.4G From the record it appears that the learned Joint Charity Commissioner initiated suo motu proceedings under Section 41A of the Bombay Public Trust Act against the trust, trustees, original owners of the property (Pachhigars), SUDA as well as new purchasers of the school property, Power of Attorney holder of the two trustees, Sub-Registrar of documents, Surat; DEO, Primary Education Officer and Secondary Education Officer, Surat, inter alia fixing the date of hearing on 17.5.2004 and replies to be preferred on or before 15.5.2004. In that proceedings Chandaben filed her reply and other documents which I have referred to earlier also, given in the record particularly letter of DEO, reply filed by Rajnikant Joshi and Dhrukeshkumar Indurai Upadhyay. 9.4H The District Education Officer addressed a letter dated 14.5.2004 informing that the school premises have been demolished on 11.5.2004. He has also produced account books of the school for the year 1997-98, 1998-99 and 1999-2000. These accounts show that the trust has received Rs. 5 lakhs by cheque and Rs. 20 lakhs by cash which does not seem to be reflected therein. On 18.5.2004 the office of the Primary Education Officer informed the Joint Charity Commissioner about several irregularities of the school and stated that inquiries have been initiated and show cause notices have also been sent. On 18.5.2004 the District Education Officer informed the learned Joint Charity Commissioner certain findings with respect to the affairs of the management of the school. 9.4-I On 19.5.2004 Babubhai K. Patel tendered on record copies of documents containing plaint in Regular Civil Suit No. 411 of 2000, Special Civil Application No. 1986 of 2001 filed by Nageshwar Vidya Trust against Suda and the application filed before SUDA which has been stated earlier. Affidavit of Chhaganbhai Odhavjibhai Vaghani also produced on 18.5.2004 in the proceedings to corroborate the fact that on 31.1.2004 in the presence of Babubhai Karsanbhai Patel an amount of Rs. 5 lakh was paid by cheque and Rs. 15 lakh was paid by cash to trustee Shri Rajnikant Joshi. In both application Nos.7 of 2004 and 8 of 2004 the Charity Commissioner on 4.6.2004 passed a detailed order running into about 80 pages and while passing the said orders, he has given 32 separate directions to the trust and other people. 9.5 Being aggrieved and dissatisfied with the aforesaid order of the Charity Commissioner, Babubhai Karshanbhai Patel, HUF, karta of Babubhai Karshanbhai Patel in whose favour the original land owners have executed sale deed, filed petition before this Court being Special Civil Application No. 6433 of 2004. The said petition was filed on 7.6.2004. It was submitted that under Section 41A of the Act the Charity Commissioner has power to give directions for proper administration of the trust. In the guise of Section 41 of the Act the Charity Commissioner has decided title dispute which is not within his jurisdiction. 9.6 It may be noted that one Prafulbhai Chhaganbhai Panseria claimed