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IN THE HIGH COURT OF BOMBAY AT AURANGABAD
S.S. SHINDE, J.
Suresh s/o Shivram Naiknaware & Others
Versus
The Joint Charity Commissioner & Others
Writ Petition No.3170 of 2013
Decided on: 04-09-2013
Sanction of Charity Commissioner to lease deed of temple trust property without publishing advertisements in local newspapers, improper. - It appears that the procedure followed by the trustees not to give advertisement and accept the offer of the respondent No. 3 and enter into lease agreement was not in a transparent manner. In the year, 2010 itself the respondent No. 2 had given the said property on leave for 9 years and 11 months to respondent No. 3.
Thereafter, in the year, 2011 further step is taken to give the said property for thirty years. The procedure followed by the trustee should be transparent and such procedure should inspire confidence. However, it is an admitted position the trustees have not issued any advertisement and it is also not their case that they had invited offers/bids for giving entire agricultural land to the extent of 285 acres of the trust on lease for 30 years.
The trustees have to deal with the trust property keeping in mind that, an element of public interest is involved in it. At least, the In-charge Joint Charity Commissioner, Latur should have been more vigilant and it was the duty of the In-charge Joint Charity Commissioner to direct the trustees to publish an advertisement in popular Marathi and English newspapers inviting offers from the interested persons so as to give said property on lease for 30 years to higher bidder keeping in view interest of the trust.
It appears that the Agricultural Land will not only be used for agricultural purpose but, the go down will be constructed to store the food grains and also respondent No. 3 wishes to construct cold storage, other processing projects, to have the water tank for storage of water, panjarapol, fishery business and also other projects as mentioned in the lease deed. Therefore, in the facts of the present case, the In-charge Joint Charity Commissioner, should have taken decision more carefully, taking into consideration all the aspects which are discussed herein above.
Bombay Public Trusts Act, 1950 - Section 36(1)(b) - Constitution of India, Article 226 - Locus standi to challenge lease of Trust property.
Petitioners, being villagers and devotees of diety have locus-standi to challenge sanction granted by Joint Charity Commissioner to lease of temple property. - In the facts of the present case, not only the petitioners are interested in the affairs of the trust since the trust is situated in their village but also the Gram Panchayat has passed resolution in the General Body meeting of the Gram Panchayat disapproving the manner in which the property of the respondent No. 2 trust is given on lease. However, even the resolution mentions that the present trustees should be removed for their close door affairs of executing lease deed in favour of the respondent No. 3.
Therefore, taking into consideration the pleadings in para I of the writ petition, and also the interest of the petitioners and other villagers, as reflected in their representations given to the Joint Charity Commissioner, Latur and the Collector, Latur, in the month of March, 2013 and further passing of the resolution in the General Body Meeting of the Gram Panchayat, would lead to the only conclusion that the petitioners along with other villagers are interested persons in the affairs of the trust. Not only they are the villagers of village Hinglajwadi but, they have stated that they are devotees of Dattatraya Devi Math Sanstha, Hinglajwadi. Upon careful perusal of various documents which are placed on record along with the affidavit-in-reply filed by the respondent No. 2 and 3, it is crystal clear that the villagers of the said village have shown kin interest in protection of the trust property. Therefore, the petitioners have locus standi to challenge the decision of the In Joint Charity Commissioner, Latur. However, as held by the Full Bench in case of Shailesh Developers and another, 2007 (4) All MR 100 (FB), the challenge will be limited to decision making process of the Charity Commissioner.
Constitution of India, 1950 - Article 226 - Delay in filing writ petition.
Where delay of two years in filing writ petition challenging decision of Charity Commissione r was sufficiently explained therefore delay condoned. - The petitioners have stated in the petition that as soon as they came to know that the trust has decided to give 117 Hectares 43 Ares land on lease for 30 years and further the decision taken by the In-charge Joint Charity Commissioner, Latur and lease deed, they have applied for certified copies of the decision of the In-charge Joint Charity Commissioner, Latur in the month of March, 2013 and after receiving such copies, the representation was given to the In-charge Joint Charity Commissioner, Latur and the District Collector, Latur in the month of March, 2013 itself requesting therein to look into the matter and take appropriate decision to recall the decision of the In-charge Joint Charity Commissioner, Latur and also to cancel the lease deed in the interest of trust since the lease deed executed between the respondents No. 2 and 3 was without giving an advertisement in the newspaper and without knowledge of the public at large. Therefore, the petitioners have explained the delay/laches. Therefore, the objection raised by the respondent Nos. 2 and 3 that there is delay/laches in filing the writ petition deserves no consideration.
1. Rule, returnable forthwith. By consent of the parties, taken up for final hearing.
2. This writ petition takes exception to the order passed by the In-charge Joint Charity Commissioner, Latur dated 13th June, 2011.
3. The background facts as disclosed in the petition are, as under:
The petitioners are the residents of village Hinglajwadi and devotees of the Dattatraya Devi Math Sanstha, Hinglajwadi and therefore, they are interested persons as per Section 2(10) of the Bombay Public Trust Act, 1950 (for short, referred to as the said Act) and therefore, they are having locus to approach before this Court and file the writ petition and to challenge the order passed by the In-charge Joint Charity Commissioner, Latur dated 13th June, 2011 under Section 36(1)(a) of the said Act.
4. The respondent No.1 without considering the fact that, the application was filed by the respondent No.2 and the land admeasuring 117 Hectares 43 Ares was given on rent for a period of 30 years for which the respondent No.1 granted permission vide its order dated 13th June, 2011. The said order is against the interest of the trust as land is given on rent of Rs.60,000/- per year to the respondent No.3 and that too, without issuing any tender, advertisement or public notice and therefore, ultimately the trustees have given such property on lease as if it is their own property, the trustees ought to have acted as a guardian of the said property but contrary to the object or being trustees they granted such land in favour of the respondent No.3 and for that the respondent No.1 granted permission.
5. It is further stated that though the order is passed on 13.6.2011, the petitioners as well as other villagers were not knowing that, such lease deed was executed and that was accepted by the respondent No.1 and after knowing this fact, the petitioners and other villagers submitted an application to the Joint Charity Commissioner and the District Collector and obtained the certified copies from the office of the Joint Charity Commissioner and found as to how the In-charge Charity Commissioner has committed illegality by granting a permission under Section 36(1)(a) of the said Act.
6. It is stated by the petitioners that, Datta and Devi Math Sansthan, Hinglajwadi is registered under the said Act having its registration No.A-2580 (Osmanabad). The copy of the memorandum of Association of the trust has been placed on record at Exh.A to the petition.
7. The petitioners stated that the trust is having a property admeasuring 117 Hectares and 43 Ares at Hinglajwadi and there was entry on the Schedule I in respect of the agricultural land as well as there was entry of the agricultural land in the 7/12 extract. The petitioners have placed on record copies of the said Schedule I and 7/12 extracts at Exh.B.
8. The petitioners stated that on 12th March, 2013 the petitioners got a knowledge that the respondent No.2 executed a lease deed in favour of the respondent No.3 for a rent of Rs.60,000/- per annum and thereafter, to increase Rs. 15,000/- per year upto 30 years and to that, the trustees have given their consent on that lease deed itself. The copy of the undated lease deed has been annexed at Exh.C to the petition.
9. The petitioners stated that the Chairman of the trust is authorized by the other trustees to file an application to seek permission by the Charity Commissioner under Section 36(1)(a) of the said Act. The petitioners have placed on record at Exh.D the copy of the affidavit filed by the chairman of the trust.
10. The petitioners stated that the petitioners have obtained the copy of the impugned order by which the Charity Commissioner has granted permission vide its order dated 13.6.2011, which has been placed on record at Exh.F.
11. The petitioners stated that after getting knowledge that such illegal lease deed was executed by the trustees in favour of the respondent No.3 and therefore, the Grampanchayat has passed a resolution that the said illega
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