Bombay High Court
Letters Patent Appeal No.49 Of 2 vs : on 21 December, 2013
Bench: A.B. Chaudhari, Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.49 of 2010
in
WRIT PETITION NO.3265/2009.
APPELLANT : Ramdas Club Akola,
A Trusts Registered under the provisions of
Bombay Public Trusts Act, 1950 bearing Reg.No.
F - 570/Akola through its alleged President
Mr.Ravindra Khandelwal House, Durga Chowk,
igAkola, Tq. and Distt.Akola.
: VERSUS :
RESPONDENTS :- 1. Mayur Dilip Vikhe,
aged 23 years, Occu: Business,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akila. (deleted)
2. Umesh Sheshrao Udhapure,
aged 42 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola. (deleted).
3. Balwant Achyutrao Nanoty,
aged 50 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola.
4. Hemendra Madhukarrao Telkar,
aged about 47 years, Occu: Business,
R/o Rama Empire, Birla Ram Mandir
Road, Akola, Tq. and Distt.Akola. (deleted)
5. Sudhir Dnyandeorao Masne,
aged about 41 years, Occu: Busienss,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akola. (deleted)
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6. Gopal Mahesh Cherukallu,
aged about 50 years, Occu: Business,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
7. Sumit Arun Bhatkar,
aged about 23 years, Occu: Education,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
8. Pundlik Vitthalrao Manmode,
aged about 63 years, Occu: Retired,
ig R/o Gaddam Plots, Akola, Tq. and Distt.
Akola.
9. Dattaraya Ambuji Masne,
aged about 68 years, Occu: Retired,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akila.(deleted)
10. M/s Bajrang Oil Mills and Pulse Mills,
Nagpuri Gin Compound, Akola, Tq.
and Distt.Akola.
Through its Proprietor Shri M/s Bajrang
Hanumanprasad Sharma, aged about
57 years, Occu: Business, R/o Akila, Tq.
and Distt.Akola.
11. Joint Charity Commissioner,
Amravati Region, Amravati.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.K.H.Deshpande, Sr.Advocate with Mr.M.D.Lakhe, Adv. for the appellant.
Mrs.K.S.Joshi, AGP for respondent no.1.
Mr.C.B.Dharmadhikari, Advocate for respondent no.10.
Mr.U.J.Deshpande, Advocate for respondent no.3.
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LETTERS PATENT APPEAL NO.70 of 2010
in
WRIT PETITION NO.3265/2009.
APPELLANT : M/s Bajrang Oil Mills and Pulse Mills,
Nagpuri Gin Compound, Akola, Tq.
and Distt.Akola through its Proprietor,
Shri M/s Bajrang Hanumanprasad Sharma,
aged about 57 years, Occu: Business,
R/o Akola, Tq. and Distt.Akola.
: VERSUS :
RESPONDENTS :- 1. Mayur Dilip Vikhe,
aged 23 years, Occu: Business,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akila. (deleted)
2. Umesh Sheshrao Udhapure,
aged 42 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola. (deleted).
3. Balwant Achyutrao Nanoty,
aged 50 years, Occu: Business,
R/o Ramdaspeth, Akola, Tq. and
Distt.Akola.
4. Hemendra Madhukarrao Telkar,
aged about 47 years, Occu: Business,
R/o Rama Empire, Birla Ram Mandir
Road, Akola, Tq. and Distt.Akola. (deleted)
5. Sudhir Dnyandeorao Masne,
aged about 41 years, Occu: Busienss,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akola. (deleted).
6. Gopal Mahesh Cherukallu,
aged about 50 years, Occu: Business,
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R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
7. Sumit Arun Bhatkar,
aged about 23 years, Occu: Education,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola. (deleted).
8. Pundlik Vitthalrao Manmode,
aged about 63 years, Occu: Retired,
R/o Gaddam Plots, Akola, Tq. and Distt.
Akola.
ig 9. Dattaraya Ambuji Masne,
aged about 68 years, Occu: Retired,
R/o Ramdaspeth, Akola, Tq. and Distt.
Akila.(deleted)
10. Ramdas Club Akola,
A Trusts Registered under the provisions of
Bombay Public Trusts Act, 1950 bearing Reg.No.
F - 570/Akola through its alleged President
Mr.Ravindra Khandelwal House, Durga Chowk,
Akola, Tq. and Distt.Akola.
11. Joint Charity Commissioner,
Amravati Region, Amravati.
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Mr.C.B.Dharmadhikari, Advocate for the appellant.
Mrs.K.S.Joshi, AGP for respondent no.1.
Mr.K.H.Dshpande, Advocate for respondent no.10.
Mr.U.J.Deshpande, Advocate for respondent no.3.
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CORAM: A.B.CHAUDHARI AND
Z. A. HAQ, JJ.
DATED: 21st DECEMBER, 2013.
ORAL JUDGMENT (Per Z.A.Haq, J.)
1. Heard the learned counsel for the parties.
2. The Letters Patent Appeal No.49 of 2010 arises out of the
judgment passed by the learned Single Judge allowing the writ petition,
setting aside the order passed by the Joint Charity Commissioner
granting permission to the appellant - Trust to sell the property.
3. The appellant - Trust is a Public Trusts. The appellant -
Trusts owned open land. The appellant - Trust had submitted an
application under Section 36 of the Bombay Public Trusts Act seeking
permission to sell the agricultural land, field S.No.26 and plot owned by
it. The appellant - Trust had submitted the draft of public notice to be
published in the newspapers to the Charity Commissioner which was
approved and was published in the newspapers. Mr.G.G.Agrawal for
G.G.Warehousing Corporation had submitted his offer for purchasing
the above mentioned agricultural land and plot. An application (Exh.
14) was filed by the appellant - Trust before the Joint Charity
Commissioner seeking permission to withdraw the application filed by it
under Section 36 of the Bombay Public Trusts Act. The learned
Charity Commissioner had directed that the Resolution of the Board of
Trustsees should be filed, showing that the appellant - Trust intended
to withdraw the application filed by it under Section 36 of the Bombay
Public Trusts Act. Mr.Satish Kothari and M/s Bajrang Oil Mills and
Pulse Mills, who had also given their offers pursuant to the
advertisement, had filed applications before the Charity Charity
Commissioner, informing that they had withdrawn the offers given by
them for purchasing the property of the appellant - Trust. The learned
th
Joint Charity Commissioner by the order dated 17 of May, 2007
dismissed the application filed by the appellant - Trust under Section
36 of the Bombay Public Trusts Act, for want of prosecution. An
th
application was filed on 30 of November, 2007 praying for restoration
of application under section 36 of the Bombay Public Trusts Act.
Subsequently, the appellant - Trust had filed an application praying for
permission to amend the application filed by it under Section 36 of the
Bombay Public Trusts Act. The amendment was allowed. The Board
of Trustsees of the appellant - Trust had accepted the offers of M/s
Bajrang Oil Mills and Pulse Mills and passed Resolution to that effect
and the copy of the Resolution was submitted before the Joint Charity
Commissioner. The relevant documents were filed before the Joint
Charity Commissioner. The learned Joint Charity Commissioner by
th
the order dated 15 of October, 2008 granted permission to the
appellant - Trusts to sell the property to the M/s Bajrang Oil Mills and
Pulse Mills.
4. The order passed by the Joint Charity Commissioner
granting permission to the appellant - Trust to sell the property to M/s
Bajrang Oil Mills and Pulse Mills was challenged before this Court by
the respondent nos.1 to 9. The claim of the respondent nos.1 to 9 in
the writ petition was that they were persons having interest in the
Appellant - Trust and therefore, they had the right to challenge the
order passed by the Joint Charity Commissioner, which according to
the respondent nos.1 to 9, was illegal and unsustainable in law. The
learned Single Judge by the impugned judgment allowed the writ
petition and set aside the order passed by the Joint Charity
Commissioner. The appellant - Trust being aggrieved by the order
passed by the learned Single Judge has filed L.P.A.No.49 of 2010.
5. M/s Bajrang Oil Mills and Pulse Millss has filed the
L.P.A.No.70 of 2010 challenging the order passed by the learned
Single Judge. Both these appeals arise out of the same judgment
passed by the learned Single Judge and raise common issues, hence
they are being disposed of by common judgment.
6. Heard Shri K.H.Deshpande, learned Senior Advocate
appearing along with Shri M.D.Lakhe, Advocate for the appellant. Shri
Deshpande, the learned Senior Advocate has submitted that the
learned Trial Judge has committed an error in entertaining the writ
petition at the behest of the respondent nos.1 to 9, inasmuch as the
respondent nos.1 to 9 do not satisfy the tests of "an aggrieved person"
to maintain the writ petition. Shri Deshpande, learned Senior
Advocate has further submitted that the respondent nos.1 to 9 cannot
be said to be persons having interest in the appellant - Trust as
contemplated by the provisions of Section 2(10) of the Bombay Public
Trusts Act. The learned Senior Advocate has further submitted that the
impugned judgment further suffers from irregularities and illegalities,
inasmuch as the learned Single Judge has not considered the facts in
the proper perspective. According to the appellants, the offer given by
M/s Bajrang Oil Mills and Pulse Mills was the highest offer and was just
and proper and cannot be said to be of such a nature which
necessitated the interference by this Court in the exercise of the
extraordinary jurisdiction. The learned Senior Advocate has further
submitted that the M/s Bajrang Oil Mills and Pulse Mills has paid the
entire amount to the appellant - Trust pursuant to the permission
granted by the learned Joint Charity Commissioner and the sale deeds
were registered and it will not be proper to set aside the permission
granted by the Joint Charity Commissioner and the consequential
actions.
7. Shri C.B.Dharmadhikari, learned Advocate appearing for
M/s Bajrang Oil Mills and Pulse Mills (appellant in LPA No.70 of 2010)
has adopted the arguments of Shri K.H.Deshpande, the learned Senior
Advocate.
8. Shri U.J.Deshpande, learned Advocate appeared for the
respondent no.3. The respondent Nos.1, 2 and 4 to 9 had filed an
application seeking permission to withdraw from the proceedings
which application was allowed and the names of the respondent Nos.1,
2 and 4 to 9 were deleted. Shri U.J.Deshpande, has submitted that the
Joint Charity Commissioner had committed patent irregularities and
illegalities in the proceedings and had granted the permission to the
appellant - Trust to sell the property, though the proceedings were
dismissed for want of prosecution and were not restored. Shri
U.J.Deshpande, learned Advocate has submitted that pursuant to the
advertisement following offers were received by the appellant - Trust :-
Name and address Agricultural Land Plot
1 Shri Ghanshyam Joshi, Rs.9.50/- per Sq. ft Rs.10/- per
Khari Bawdi, Akola Rs.3,80,000/- Square foot
Rs.73,800/-
2 G.G. Ware Housing Rs.10.50/- per Sq.ft. Rs.10.50/- per
Corporation M.I.D.C. Rs.4,20,000/- Square foot
Akola Rs.77,490/-
3 Aditya Corporation, Tilak Rs.9.30/- per Sq. ft. Rs.9.80/- per
Road, Akola Rs.3,72,000/- Square foot
Rs.72,324/-
4 M/s Bajrang Oil Mills and Rs.10/- per Sq. ft. Rs.10/- per
Pulse Mills, Nagpuri Jin, Rs.4,00,000/- Square foot
Akola Rs.73,800/-
5 Shri Satish Kothari, Old Rs.8/- per Sq. ft. Rs.8.50/- per
Kapda Bazaar, Akola Rs.3,20,000/- Square foot
Rs.62,730/-
According to the learned Advocate for respondent no.3, as the
appellant - Trust had filed an application seeking permission to
withdraw the application filed by it under Section 36 of the Bombay
Public Trusts Act, G.G. Warehousing Corporation had withdraw its
offer. According to the learned Advocate for the respondent no.3, if
the proceedings would have been properly conducted and if fresh
offers would have been properly invited, the appellant - Trust would
have got offer at a higher price than what is given by M/s Bajrang Oil
Mills and Pulse Millss. The learned Advocate for the respondent no.3
has further submitted that the respondents, who had filed the writ
petition, were persons having interest in the appellant - Trust as they
are residing adjacent to the property of the appellant - Trust and had
been using the property of the appellant - Trust for various activities
including sports, as per the bye laws of the appellant - Trust. The
learned Advocate for the respondent no.3 has submitted that the
property of the appellant - Trust is sold illegally and therefore, they
have the right to maintain their objection and the proceedings.
9. Mrs.K.S.Joshi, the learned Assistant Government Pleader,
appearing for the Joint Charity Commissioner has adopted the
arguments made by Shri K.H.Deshpande, learned Senior Advocate
and has supported the order passed by the Joint Charity
Commissioner.
10. We have heard the learned Advocates for the parties and
have examined the record with their assistance.
11. The petitioners in Writ Petition No.3265 of 2009 (i.e. original
respondent nos.1 to 9 in the LPA No.49 of 2010) are neither Trustsees
nor the members of the appellant - Trust. In fact, it has come on
record that the respondent Nos.1 to 9 had tried to encroach on some
portion of the property of the appellant - Trust. In view of this factual
position, we are of the view that the original respondent nos.1 to 9
cannot be said to be "persons having interest" in the appellant - Trust
as contemplated by the provisions of Section 2 (10) of the Bombay
Public Trusts Act. In fact, the original respondent nos.1 to 9 had
interest adverse to the appellant - Trust, in view of the attempt on their
part to encroach on some portion of the property of the appellant -
Trusts. Moreover, the original respondent nos.1 to 9 cannot be said to
be "aggrieved persons" to file the Writ Petition under Articles 226 and
227 of the Constitution of India challenging the order passed by the
Joint Charity Commissioner. The superfluous averements made by
the original respondent nos.1 to 9 in the writ petition which was filed
before this Court alleging that they are the persons having interest in
the appellant - Trust, are unacceptable. Only because the original
appellants nos.1 to 9 alleged that they have been using the property of
the appellant - Trust cannot make them "persons having interest" in
the appellant - Trust unless they point out some legal right in their
favour to use the property of the appellant - Trust. Shri
U.J.Deshpande, learned Advocate for the respondent no.3 has not
been able to point out anything from the record to show that the original
respondent nos.1 to 9 had any legal right to use the property of the
appellant - Trust. The learned Advocate for the respondent no.3 has
not been able to point out that the original respondent nos.1 to 9 can
be said to be "aggrieved persons" to file the writ petition challenging the
order passed by the Joint Charity Commissioner. In our view, the writ
petition, at the behest of the original respondent nos.1 to 9, was not
maintainable and the failure on the part of the learned Single Judge to
consider this aspect in the right perspective, makes the impugned
judgment unsustainable in law.
12. On facts also, we find that pursuant to the public notice
th
which was issued, offers were received on 11 of May, 2007 and M/s
Bajrang Oil Mills and Pulse Mills had given the offer of Rs.10/- per sq.
ft. and G.G.Warehousing Corporation had given the offer of Rs.10.50
th
per sq. ft. Subsequently, on 15 of October, 2008, the learned Joint
Charity Commissioner has accepted the offer of M/s Bajrang Oil Mills
and Pulse Mills of Rs.100/- per sq. ft. In the facts of the case, we are
of the view that the order passed by the learned Joint Charity
Commissioner cannot be said to be perverse and illegal. The learned
Joint Charity Commissioner had considered all factual aspects and had
granted permission to the appellant - Trust to sell the property at the
price at which it is sold to M/s Bajrang Oil Mills and Pulse Mills. The
learned Single Judge ought not to have interfered with the well
reasoned findings of facts of the learned Joint Charity Commissioner.
13. In view of the above, the Letters Patent Appeals are
allowed.
The judgment passed by the learned Single Judge in Writ
th
Petition No.3265 of 2009 on 24 of September, 2009 is set aside and
the order passed by the Joint Charity Commissioner In Application No.
th
36 of 2006 dated 15 of October, 2008 is restored.
In the circumstances, the parties to bear their own costs.
JUDGE JUDGE.
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