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Gujarat High Court
Judgename :D.A.MEHTA
KACHHIYA PATIDAR SAMAJ - Appellant
Versus
JOINT CHARITY COMMISSIONER - Respondent
SPECIAL CIVIL APPLICATION 24544 Of 2007
Decided On : 09/25/2007
Whether in the facts of the case Charity Commissioner was justified in refusing permission to sell trust properties?
Head Note :
(a) Bombay Public Trusts Act, 1950 (Bom. Act 29 of 1950) - Sections 28-A and 36 - Disposal of Trust property - Permission - Refusal by Charity Commissioner - Sustainability - Finding of - Charity Commissioner rightly rejected the application by Trust seeking permission for disposal of property because the intention of the Trustees was not found to be bona fide - He found that a third party had been put in possession of the property and also permitted to put up construction before obtaining permission for sale - The contention that possession of the property in question has not been parted with by petitioner in favour of third party (Sohan Developers) is required to be stated only to be rejected - Even if the legal possession remained vested in the Trust it is apparent that de facto i.e. physical possession has been handed over to the third party - Then even if the construction is put up by Trust through third party agency there is no evidence that construction was in the interest of the Trust and was guided by completing necessity - The Charity Commissioner is the custodian of properties of Public Trust and Trustees cannot be allowed to treat the properties as their private properties - In the facts of the case before application for permission to sell was processed the third party had already entered the property in question, demolish it and put up a new construction - In the light of the said facts and law the action of the respondent authorities cannot be faulted with.
Held :
The contention that possession of the property in question has not been parted with by the petitioner in favour of Soham Developers is required to be stated only to be rejected. Nature of possession varies from case-to-case and even if the legal possession remains vested in the Trust it is apparent that de facto, i.e. physical possession has been handed over to Soham Developers. As found by the Joint Charity Commissioner even if the construction is being put up by the Trust through the agency of Soham Delvelopers, nothing has been brought on record to establish that construction of shops was in the interest of the Trust and was guided by a compelling necessity. Even if, for the saek of argument, one accepts that the shops were being constructed by the Trust the alienation thereof has to be for the purposes of and objects of the Trust.
The Trust cannot be heard to state that till the point of time the Trust puts up the construction the trust cannot be questioned. The Charity Commissioner is the custodian of the properties of the Public Trust which are within public domain and cannot be treated by the trustees as their private properties so as to deal with them in any manner that the trustees feel inclined to. It is required to be stated that the dispute herein is not a dispute between the private parties, is not a dispute in relation to any private property, is not a dispute in relation to any personal rights, but is a dispute wherein public property and public interest are involved. The alienation of any property has to be in accordance with the norms laid down regarding disposal of properties by Public Trust and no person can be even put in constructive possession without following the due process of law.
The facts in the present case reveal that even before the application under Section 36 of the Act was processed and an order made, Soham Developers had already entered the property in question, demolished the existing superstructure and put up a new superstructure. However, till the point of time the bid of Soham Developers was finally accepted and the sale concluded in favour of Soham Developers there could be no occasion for Soham Developers to enter the property. [Para 10]
Head Note :
(b) Constitution of India, 1950 - Articles 226 and 227 - Jurisdiction under - Exercise of - Scope - Indicated.
Held :
The position in law is well-setteled that while exercising jurisdiction under Articles 226 and 227 of the Construction, the Court is only required to go into the validity of the decision making process and not the decision per se. If the decision recorded by authority is a possible decision on the facts and in the circumstances of the case, merely because another view of the matter is possible on the same set of facts, circumstances and evidence on record that by itself is not sufficient to permit the Court to entertain the position. Even re-appreciation of evidence is not permissible. The only other ground on which the Court can intervene is perversity. [Para 9]
Law Laid Down :
The Charity Commissioner is the custodian of properties of Public Trust which are within Public domain and cannot be treated by Trustees as their properties.
Case Law Analysis :
Kishan Construction vs. Dara M. Mistri, Special Civil Application No. 17131 of 2004, Decided on 18.04.2006 [Para 12];; Saurashtra Rachanatmak Samiti, Rajkot vs. State of Gujarat & Ors., 2007 (2) GLR 1649 [Para 12];; Thakorebhai Gangaram vs. Ramanlal Maganlal Reshamwala, 1993 (1) GLH 473 [Para 12].-Relied on
Conclusion :
Trust was not justified in alienating the trust property to third party before permission of Charity Commissioner for sale under the law.
Decided in Favour of :
Respondent
Petition Rejected
( 2 ) THE petitioner-Trust is in possession of land bearing City Survey Nos. 2180 and 2181 at Bardoli on and from 03. 06. 1996. It is also an accepted fact that on the date of purchase of the said land, namely, 03. 06. 1996, a building was already in existence on the said land. It is further stated by the petitioner-Trust that in 2005 there was oral discussion with local land developer Mr. Hemant Joshi of M/s. Soham Developers for development of land belonging to the petitioner-Trust. In Paragraph No. 5. 6 of the petition it is stated that an oral scheme was formulated with the five conditions stated therein:
"5. 6 Petitioner has no funds for new building constructions, therefore oral scheme was formulated that: for and on behalf of the Petitioner, building construction permission obtains from the Bardoli Municipality. Then obtain sanction for Sale the said lands from the Respondent no. 1 and during procedure for sanction for Sale the said lands, for and on behalf of the Petitioner, as a Contractor Mr. Hamant Joshi, Soham Developers has to demolish the 100 years old building structures and construct a new building. After obtaining sanction for Sale the said lands and after completing the new building constructions, Petitioner will apply for obtaining sanction from the Respondent no. 1 for Sale the new building constructions. Prior to sanction from the Respondent no. 1 there would be no transfer in any manner in favour of any one who is interested to purchase either the said lands or new building constructions except possession would be handed over for the purpose of new building constructions for and on behalf of the Petitioner. If possession would be handed over only for demolishing old structures and new construction activities for and on behalf of the Petitioner. And such Contractor s Possession i. e. Agent s Possession would be treated as Petitioner s Possession. And in fact till to day Petitioner has not transferred the Possession, Right and Title of the said lands or building constructions in any manner in favour of the any one. "
( 3 ) SUBSEQUENTLY, in 2005 permission to put up construction was obtained from Bardoli Municipality. The petitioner-Trust made an application under Section 36 of the Bombay Public Trusts Act, 1950 (the Act) and it is the say of the petitioner that at the time of filing application the old dilapidated building was standing on the land. After moving an application under Section 36 of the Act possession of the land was handed over to Soham Developers, as an agent of the petitioner for demolition of the old building and putting up new construction. Thereafter, in 2006, namely, 11. 07. 2006 the Joint Charity Commissioner issued direction to stop the construction. Prior thereto a hearing took place on 28. 04. 2006 before the Joint Charity Commissioner and on 05. 05. 2006 an order was made for issuance of public notice for which a draft of public notice was prepared by the Office of the Joint Charity Commissioner and handed over to the Trust for publication. It appears that on publication of the notice in all six offers were made, out of which Soham Developers was offerer No. 5. One Dineshbhai Dhirubhai Rudani filed objections in response to the public notice. In the objections it was submitted that the property in question, though described as land with building, in fact on inspection, was found to be property comprised of land on which fresh construction was undertaken and hence, the Joint Charity Commissioner found it necessary to initiate inquiry.
( 4 ) IT has been found that the construction has not been put up by the
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