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1991 Supreme(Bom) 338
IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
John Solomon of Bombay India others... Plaintiffs.
Versus
Municipal Corporation of Greater Bombay others... Defendants.
Long Cause Suit No. 724 of 1976, decided on 25-7-1991.
Advocate appeared :
Solomon i/by Solomon Co., for plaintiffs.
U.J. Makhija i/by Crawford Bayley Co., for defendant No. 1.
A.R. Kini, for defendant No. 3.
K.P. Khambata with S.U. Kamdar i/by Arun Sapkal Co., for defendants 4 to 6 16.
T.M. Nadar i/by Gagrat Co., for defendant No. 28.
The main legal point established in the judgment is the interpretation and application of the Bombay Public Trust Act, 1950 in determining the validity of lease transactions, auction sale, and obligations under the settlement.
Headnote:
JCT - Jewish Cemeteries Trust - Bombay Public Trust Act, 1950 - Section 36 - Summary: The court discussed the validity of lease transactions, auction sale, and obligations under the settlement between the trust, BMC, and the State Government. The key legal provisions of the Bombay Public Trust Act, 1950 were interpreted to determine the legality of the transactions and the obligations of the parties involved.
Fact of the Case:
The Jewish Cemeteries Trust sought reliefs regarding lands at Grant Road and Haines Road, Bombay. The trust was looking after two cemeteries and had entered into lease transactions without proper consent. The State Government threatened to resume possession of the Grant Road land, leading to a settlement for the relinquishment of the land for a public garden and the grant of additional land at Haines Road for use as a burial ground. The BMC attached the land for arrears of property taxes, and it was auctioned to defendant 4. The trust sought injunctions, possession of the Haines Road land, and the money realized from the sale of the Grant Road land.
Finding of the Court:
The court found the suit maintainable, rejected the plea of multifariousness, and established the validity of the statutory notices served. The court also found a binding agreement between the trust and the State Government, and that defendant 28's position as a lessee was valid. The court ruled that the plaintiffs' claim was not within limitation and granted relief and costs as per para 23 of the judgment.
Issues: The issues included the maintainability of the suit, multifariousness, validity of statutory notices, binding agreement, limitation, defendant 28's position as a lessee, and relief and costs.
Ratio Decidendi: The court held that the plea of multifariousness was waived due to delayed objections from the defendants. The court also ruled that the lease transactions were valid and binding, and the auction sale did not confer full ownership rights to the purchasers. Additionally, the court found that the obligations under the settlement did not create enforceable rights in favor of the trust.
Final Decision: The court did not grant the reliefs claimed by the plaintiffs but ordered the BMC to provide a fit and convenient site for the burial of the Jewish dead within one year.
Plaintiffs' case
2. The JCT is a public trust registered as such under the Bombay Public Trust Act, 1950. This trust was looking after the maintenance of two cemeteries of the Jewish Community of Bombay- these being located at Grant Road and Haines Road. The burial ground at Grant Road had been fully occupied. However the ground did not cease to be a cemetery. This was on account of Jewish tenets which hold burial grounds to be sacrosanct and incapable of other uses. Three portions of the cemetery land were set apart, two being leased to Bhagirathibai and the Ahmed Umar Oil Mills respectively. The third was utilised by the trust for the quarters of a care-taker. On or about 6-2-1956 three of the then eight trustees without the knowledge and consent of their co-trustees let out the remaining land to defendant 28 (sometimes wrongly described as defendant 27 but hereinafter referred to as defendant 28) on a rental of Rs. 700/- p.m. and the liability to pay municipal taxes. The lease was renewed on 1-11-1959- again without the knowledge and consent of the other trustees. Neither transaction had the sanction of the Charity Commissioner as required by section 36 of the Bombay Public Trusts Act, 1950 (BPT Act). The lease and renewal were therefore not legal or binding on the plaintiffs. Defendants 5 to 27 as members of defendant 4 were inducted into small patches of the land. Thereupon these defendants had put up structures on which they were doing business in metal scrap.
3. In about 1954 the State Government which is defendant 3 had threatened to resume possession of the Grant Road land. This action was impugned by the plaintiffs through an appeal bearing No. 228 of 1959 before the Maharashtra Revenue Tribunal (MRT). During the pendency of the appeal a settlement was arrived at between plaintiffs, the 1st defendant (BMC) and the 3rd defendant. Amongst other things the settlement (also referred to as consent terms) Provided for the relinquishment of the Grant Road land by plaintiffs for the setting up of a public garden and in lieu thereof their being granted additional land at Haines Road for use as a burial ground. Pursuant thereto, the appeal to the MRT despite the objection of defendant 28 was allowed to be withdrawn by the plaintiffs. The trust made over possession of the Grant Road land to the State Government who in their turn passed it on to the BMC. Neither of them took meaningful steps to evict defendants 4 to 28 or put up a garden on the land. Partly this was on account of writ petitions bearing Misc. Petition Nos. 85 of 1963 and 814 of 1967 against defendants 1 to 3. In 1971 and 1972 the BMC attached the land under sections 203 and 207A(3) of the BMC Act, 1888 for arrears of property taxes amounting to Rs. 56,717.13 ps. for the period 1-10-1965 to 31-3-1971. No notice of the arrears was served on plaintiffs. Defendant 28 had made efforts to stave off the sale, but in vain. In the auction the property was purchased for Rs. 3,00,000/- by defendant 4 an association of defendants 5 to 27. A sale certificate was issued by the BMC on 31-3-1973. This sale was void and moreover had been questioned by defendant 28 in Suit No. 948 of 1973 pending in this Court. Defendant 1 had not carried out the obligations cast upon them under the settlement. Defendants 4 to 28 had actual or constructive notice of the terms of settlement. Therefore they also are bound by the covenants contained in the said settlement. Defendant 1 has not delivered possession of the alternative site at Haines Road. That site has not properly levelled or fenced as required by the settlement. On the other hand the BMC has permitted a large number of temporary structures to come up on the land.
4. On the basis of the above averments plaintiffs claim the following reliefs in the alternative. Firs
