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2009 Supreme(Guj) 308
2009 (2) GCD 1626 (Guj)
Hon’ble Mr. Justice D.A. Mehta
Hadala Bhal Sarvajanik Rahat Mandal Trust & Ors.
Versus
State of Gujarat & Ors.
Special Civil Application No. 1742 of 1995—Decided on 07/05/2009
Appearance :
Mr. Suresh M. Shah, for the Petitioners.
Mr. P.J. Yagnik, for the Petitioners.
Ms. Maithili Mehta, AGP for the Respondent Nos.1-3.
Point in Issue :
Whether finding of Deputy Commissioner Charity about status of trust can be substituted without any appeal or revision against it?
Headnote:Head Note :
Gujarat Agricultural Lands Ceiling Act, 1960 — Section 6 — Proceeding under — Bombay Public Trust Act — Sections 79, 79(1) to (3) — Saurashtra Barkhali Abolition Act, 1951 — Section 15 — Six trusts — Separately registered — And finding of Deputy Charity Commissioner that they have separate holdings and independent — Finding is final and conclusive under the law — On remand to determine possession of each unit separately can not be used to substitute the earlier finding of Deputy Commissioner.
Held :
Section 79 of the B.P.T. Act provides that any question as to (1) existence of trust, (2) whether such trust is a public trust, and (3) whether a particular property is the property of such trust, has to be decided by the Charity Commissioner as provided under the B.P.T. Act and the decision of the said authority shall be final and conclusive unless set aside by a decision of the Court on application, or of the High Court in appeal. Therefore, in the present case, once the position is accepted that the orders by the Deputy Charity Commissioner registering five remaining Trusts have become final, necessary consequences flowing therefrom had to be given full effect in law and could not be ignored.
[Para 8]
In the circumstances, the Revenue Authorities and the Tribunal were bound by the said order made by the Charity Commissioner. The orders registering the five remaining Trusts and the consequential entries in the register of properties of public trust maintained by the office of the Charity Commissioner, cannot be ignored as they operate in rem and are binding on all persons unless and until challenged before an appropriate forum in accordance with law. [Para 10]
In the set of facts and circumstances of the case, in light of what is stated hereinbefore, the petition is required to be allowed. The order made by the Tribunal on 10.10.2004 is hereby quashed and set aside. Similarly, the order made by the Deputy Collector on 27.05.1992 is also hereby quashed and set aside. As a consequence the order made by the Mamlatdar treating all the six Trusts as individual trusts, separate and distinct from each other and holding individual properties is confirmed. [Para12]
Law Laid Down :
The finding of Deputy. Charity Commissioner about status of trusts can not be ignored as it operates in rem and binding on all unless challenged before appropriate Forum.
D.A. Mehta, J.—This petition has been preferred by six different Charitable Trusts challenging the order dated 10th October, 1994 made in Revision Application Nos.TEN.B.A. Nos. 588 to 591 of 1992 whereby the order made by the Deputy Collector, Limdi on 27th May, 1992 was upheld.
2. The facts are that the petitioner No. 1 - Hadala Bhal Sarvajanik Rahat Mandal Trust (herein after referred to as “Trust No. 1”) is a registered Trust under the Bombay Public Trusts Act, 1950 ( the B.P.T. Act ). It is the case of the petitioner that Trust No. 1 and five other Trusts were in existence since the time of the then Limdi State and all the Trusts have different agricultural lands as Trust property donated to the respective Trust for the object and purpose of the Trust. Admittedly, initially the remaining five Trusts were not registered independently, but were managed separately by different Administrators / Managers from time to time and the respective accounts were also maintained separately. The income from the Trusts properties were utilized for the object and purpose of each individual Trust. It is also accepted position that under Saurashtra Barkhali Abolition Act, 1951, an inquiry was undertaken and different occupancy certificates for the lands held by different Trusts, had been issued by the Mamlatdar under Section 15 of the said Act.
3. In 1985, the Mamlatdar and ALT initiated proceedings under the Gujarat Agricultural Lands Ceiling Act, 1960 (the Ceiling Act) and came to the conclusion that Trust No. 1 was the only Trust holding 155 Acres and 30 Gunthas of land. The said Trust was entitled to hold 54 Acres of land as 1 unit and thus, remaining 101 Acres, 30 Gunthas of land was declared to be surplus land under the Ceiling Act. The matter was carried in appeal and, thereafter in Revision before the Tribunal. In Revision Application No. TEN.B.A. No.157/1086, the Tribunal recorded as under:
“5. Thus, all these trusts are separately registered in the office of the Deputy Charity Commissioner, Bhavnagar on 18-3-89. Learned advocate Shri Yagnik has relied on sec.79 of the Bombay Public Trust which speaks that the question whether or not a trust exists and such trust is a public trust or the property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner, and his decision is final and conclusive.
6. Shri Yagnik has, therefore, argued that the learned Deputy Charity Commissioner, Bhavnagar has decided that there are 6 public trusts and they hold separate property. Hence, the finding of the learned Deputy Charity Commissioner is final and conclusive and no other court has any right to interfere in such final decision. I fully agree with the learned advocate Shri Yagnik in this respect. The result is now that there are 6 different trusts, hence it will have to be found out whether each trust is holding agricultural land below one unit or more than one unit. If any of the trust holds more than one unit, then the learned Mamlatdar would make the inquiry again, give a chance to the applicant of hearing and decide the later afresh. Hence, this case deserves to be remanded to the Mamlatdar, Limdi, for finding out whether the above 6 trusts individually hold more than one unit of agricultural land or not. If yes, the learned Mamlatdar will issue notice against all the trusts hold land more than one unit and hold a fresh inquiry. Hence, the following order.
7. Revision application is allowed. Judgment and orders passed by the lower courts are set aside. The case is remanded to the Mamlatdar, Limdi for rehearing with the directions given above.”
4. In the proceedings of remand, the Mamlatdar and ALT held that there were six different Trusts but only one of the Trusts namely, Trust No. 1 was holding 108 Acres, 22 Gunthas and thus, after deducting 1 unit of 54 Acres, remaining 54 Acres, 22 Gunthas were held as surplus land in hands of the Trust No. 1. In case of the remaining five Trusts, the Mamlatdar cam
