Shri Dattatraya Sakharam Yeole, ... vs Shri Hafeez Munoroddin Haji ...
2004 Latest Caselaw 721 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This Writ Petition under Article 227 of the Constitution of India, in substance, takes exception to the order dated June 6, 1981, passed by the Sub Divisional Officer, Nasik Sub Division Nasik in Tenancy Application No. 1 of 1981. Briefly stated, the land in question is Survey No. 726 within Municipal Limits of Nasik. The land is owned by the respondent- Trust. The said Trust is duly registered Trust under the provisions of the Bombay Public Trusts Act, 1950. The respondents, therefore, filed application for grant of exemption under Section 88-B of the Bombay Tenancy & Agricultural Lands Act, 1947 in respect of the Suit lands. That application has been allowed by the impugned order. Against this decision, the petitioner carried the matter in revision which was, however, dismissed as not maintainable. It is not necessary for this court to go into the question as to whether such revision was maintainable or not because this Writ Petition has been admitted as back as on 30th August 1982. As mentioned earlier, in substance, this Writ Petition questions the correctness of the decision dated June 6, 1981 passed by the Sub-Divisional Officer.

2. The first contention canvassed on behalf of the petitioners is that there is no clear finding recorded by the authority as to the purpose for which the trust has been duly registered under the provisions of the Bombay Public Trusts Act. According to him, it is only those Public Trusts which are registered for educational purpose, hospitals, panjarpol, gaushala or for public religious worship would qualify for exemption under Section 88-B of the Act. It is next contended that even the finding recorded by the authority on the issue as to whether the entire income of the suit land is appropriated for the purposes of the Trust cannot be sustained. On the above arguments, leaned counsel submits that the order under appeal be set aside.

3. Although respondents have been served, they had initially entered appearance through Mr. N.S. Shastri. Mr. Shastri is present in Court, but he states that the respondents have now engaged Mr. A.R. Shaikh, without obtaining his no objection. He submits that he has no instructions to appear in the matter. Although Vakalatnama has been filed by Mr. A.R. Shaikh without obtaining no objection from Mr. Shastri, he is not present when the matter is called out for hearing.

4. Having considered the submissions advanced on behalf of the petitioners and on going through the record with the assistance of the counsel for the petitioners, I have no hesitation in dismissing this writ Petition being devoid of merits. The first grievance made on behalf of the petitioners is that there is nothing on record to indicate that the respondent-Trust has been created for one of the purpose stated in Section 88-B(1) (b) of the Act. This submission clearly overlooks the fact that the Certificate issued by the Charity Commissioner in favour of the respondent-Trust has already been brought on record by the respondents before the lower authority. The lower authority has adverted to that Certificate and opined that it qualifies the requirement under Section 8-B(1) (b) of the Act. No doubt the authority has not specifically opined that the respondent-Trust is registered for public religious worship as such, but on going through the Certificate which is issued by the Charity Commissioner, which forms part of the record, it is seen that the respondent-Trust was originally registered mentioning the purpose as "For prayer of Muslim people". However, this object of the Trust has been deleted and the relevant time, the object of the Trust has been stated as follows: "(1) To look after Masjid and to carry on other religious functions as per the custom and practice in force and also to make necessary arrangements for the prayers of Muslims in Masjid; (2) To run Madrasa and Darul-Uloom with a view to impart religious teaching to Muslim boys and girls; (3) To arrange lectures in order to impart religious training to Muslims in general; (4) To propagate religious and other education amongst the members of the Muslim Jamat". Going by the object for which the Trust has been originally formed or, for that matter, even by the amended object of the Trust, it is more than clear that the Trust has been formed, amongst others, for public religious worship. If it is so, the first argument canvassed on behalf of the petitioners is devoid of merits. In other words, the respondent-Trust would qualify the requirements of Section 88-B(1) (b) of the Act.

5. Insofar as the second argument in the context of requirement of Section 88-B(1) (b) (ii) as to whether the entire income of the Suit land is appropriated for the purpose of such Trust, that argument also deserves to be stated only to be rejected. The authority has considered the relevant material on record and has then proceeded to record a finding of fact in favour of the respondent-Trust. That finding of fact will bind this Court as well. I see no infirmity in the view taken by the authority below with regard to the said issue. However, counsel for the petitioners stated that the authority has found that there is no income derived by the Trust from the Suit lands and if it is so, the question of fulfillment of requirement under Section 88-B(1) (b) (ii) does not arise. I find no substance in this argument. The requirement under the said provision is that the Trust should utilise the entire income derived from the land for the purposes of the Trust. In other words, the obligation cast under this provision is to utilise the entire income derived from the land for the purpose of the Trust so as to be exempted from the application of provisions of the Act by virtue of Section 88-B of the Act. That, however, does not mean that if no income is derived by the Trust from the Suit lands, Section 88-B of the Act. That, however, does not mean that if no income is derived by the trust from the Suit lands, Section 88-B will not be available. In any case, it has been found by the authority below on analyzing the evidence on record, including the evidence of the Chartered Accountant of the respondent-Trust, that the accounts of the Trust are audited accounts and which indicates that the income of the Suit lands is appropriated for the purpose of the Trust. There is no reason to doubt the correctness of the said finding reached by the authority below especially when no legal evidence has been adduced by the petitioners in rebuttal. Viewed in this perspective, no interference is warranted in exercise or writ jurisdiction.

6. The Petition, therefore, fails and the same is dismissed with no order as to costs. Rule discharged.