Bombay High Court
Darul Falah Educational And ... vs The State Of Maharashtra Through ... on 6 April, 2017
Bench: A.S. Oka
wp-6569.16.odt
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6569 OF 2016
Darul Falah Educational & Welfare Trust ... Petitioner
Vs.
The State of Maharashtra and Ors. ... Respondents
Mr. Sagar Anant Joshi for the Petitioner.
Ms. Aparna Vhatkar, AGP for the Respondent Nos.1 and 2.
Mr. Rohit P. Sakhadeo a/w Mr. Rohidas Gawade for the Respondent
No.3.
Mrs. S.V. Sonawane i/by Mr. Satish P. Muley for the Respondent Nos.5 to
7.
CORAM : A.S. OKA &
A.K. MENON, JJ.
DATE : 6th APRIL, 2017
ORAL JUDGMENT (Per A.S.Oka, J.)
1 The parties were put to notice that the Petition will be
taken up for final disposal. Rule. The learned AGP waives service for
first and second respondents. The learned counsel appearing for third
respondent waives service and the learned counsel appearing for the
fifth to seventh respondents waives service.
2 The prayer in this Petition under Article 226 of the
Constitution of India is for quashing and setting aside the order dated
10th March, 2016 passed by the Maharashtra State Minorities
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Commission on an Appeal purportedly filed by the Respondent Nos.5 to
7. While passing the impugned order, the Chairperson of the
Respondent No.4 - Maharashtra State Minorities Commission (for short
"the Commission") has purported to exercise the powers under Section
10 of the Maharashtra State Minorities Commission Act, 2004 (for short
"the said Act of 2004").
3 With a view to appreciate the controversy, few factual
aspects will have to be considered. The Petitioner - Darul Falah
Educational and Welfare Trust is a Public Charitable Trust registered
under the Maharashtra Public Trusts Act, 1950. The Petitioner - Trust
acquired certain lands more particularly described in paragraph 2 of the
Petition under a Deed of Conveyance dated 16 th July, 2014. On the basis
of the said Deed of Conveyance, the name of the Petitioner - Trust
through its Trustees was mutated in revenue records vide Mutation
Entry No.2002 which was certified by the Circle Officer on 15 th
November, 2014. A copy of the said Conveyance Deed as well as the
mutation entry is annexed to the Petition. The Respondent Nos.5 to 7
are shown as the vendors under the said Deed of Conveyance.
4 The Respondent Nos.5 to 7 purported to file an Appeal
before the Commission styled as "RTS Appeal". The title of the Appeal
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shows that the Respondent Nos.5 to 7 purported to prefer the Appeal
against the Mutation Entry No.2002 recorded as per the provisions of
the Maharashtra Land Revenue Code, 1966. The first prayer in the said
Appeal was for calling for the record of the said mutation entry. The
second prayer was for setting aside the order of the Circle Officer of
certifying the said mutation entry and of reinstating the names of the
Respondent Nos.5 to 7 in the revenue record. It was alleged in the said
Appeal that the mutation entry has been effected without notice to the
said respondents. It was contended that though the registered sale deed
is executed by Mr. Adil Ramzan Bhat and six others as the constituted
attorneys of the Respondent Nos.5 to 7, no such power of attorney was
executed by the Respondent Nos.5 to 7 in favour of the said persons
authorising them to sell the property subject matter of this Petition. It is
contended that though the petitioner - Trust had obtained permission of
the Commission for purchasing the said property under the order dated
2nd September, 2014, the petitioner - Trust has not complied with the
terms and conditions of the permission.
5 By the impugned order, the Chairperson of the Commission
purported to issue directions. The first direction was that the Divisional
Commissioner, Konkan Division shall hold an enquiry into the matter
through the Additional Divisional Commissioner. No further steps shall
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be taken on the basis of sale permission granted on 2 nd September, 2014
and all illegal actions taken on the basis of the said permission should
be set aside. The Commissioner of the Municipal Corporation of City of
Thane was directed to carry out the measurement of the property
subject matter of the Mutation Entry No.2002 and take action of
demolition of the construction made by encroaching upon the said
property. Immediate steps were ordered to be taken by the concerned
officer for placing the Respondent No.5 in possession of the said land
and it was directed that those who are guilty should be punished by the
Revenue Department of the State Government. Perusal of the impugned
order shows that the Chairperson of the Commission has purported to
deliver a detailed judgment after recording the submissions of the
Respondent Nos.5 to 7 and the Naib Tahsildar on behalf of the Collector.
Even the Assistant Commissioner of the said Municipal Corporation was
heard.
6 The submission of the learned counsel appearing for the
petitioner is that no power has been conferred by the said Act of 2004
on the Chairperson of the Commission to make any such adjudication
about illegality of a sale transaction. The submission is that there is no
adjudicatory power conferred on the Chairperson and therefore, by
recording findings, the Chairperson could not have issued several
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directions which he has purported to issue. Hence, the impugned order
is without jurisdiction.
7 The learned counsel appearing for the Respondent Nos.5 to
7 relied upon Section 10-A of the said Act which is added by way of an
amendment by the Maharashtra Act No.XXXI of 2005. She submitted
that the Commission has been conferred with all the powers of a Civil
Court under the Code of Civil Procedure, 1908 as specified therein. The
said powers include a power to summon and enforce attendance of any
person, a power to receive evidence on affidavit, a power to issue
requisition for producing public record or documents and a power to
issue commission for recording of evidence of witnesses and production
of documents. Her submission is that the very fact that such powers of
the Civil Court are conferred on the Commission, the Chairperson was
entitled to make an adjudication on the issues raised by the Respondent
Nos.5 to 7 about the illegality of the sale transaction. Inviting our
attention to various clauses of Sub-Section (1) of Section 10 of the said
Act of 2004, she submitted that in any event, the Commission was
entitled to make recommendations and accordingly, the operative part
of the impugned order be read as recommendations to the Divisional
Commissioner, the District Collector, the Municipal Commissioner and
other authorities. She, would, therefore, submit that no interference is
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called for. The learned AGP has supported the impugned order.
However, he also relied upon the affidavit filed by Tahsildar, Thane in
which there is a justification for the actions of the Circle Officer.
8 We have given careful consideration to the submissions. A
copy of the registered sale conveyance deed dated 16 th July, 2014 shows
that a registered conveyance was executed by the Respondent Nos.5 to
7 through their Constituted Attorneys. In the affidavit of Shri Kisan
Kacharu Bhadane, Tahsildar, Thane he has stated that a permission
under Section 63 of the Maharashtra Tenancy and Agricultural Lands
Act, 1948 was granted by the Sub-Divisional Officer on 2 nd September,
2014. The Mutation Entry No.2002 which was effected on 17 th October,
2014 on the basis of the aforesaid sale deed refers to the aforesaid
permission. The Mutation entry was certified by the Circle Officer on
15th November, 2014.
9 As stated earlier, the Appeal preferred by the Respondent
Nos.5 to 7 before the Commission purports to be an Appeal for setting
aside the mutation entry No.2002.
10 Under the Maharashtra Land Revenue Code, 1966 (for
short "the said Code"), remedies of two appeals and two revision
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applications are provided to challenge a mutation entry. In fact, Exhibit
- F to the Petition shows that the Respondent Nos.5 to 7 preferred an
Appeal under Section 247 of the said Code against the mutation entry
before the Sub-Divisional Officer, Thane.
11 Before we deal with the impugned order, it will be
necessary to advert to the provisions of Section 10 of the said Act of
2004 which reads thus :-
"10. (1) The functions of the Commission shall be as
follows :-
(a) to examine the working of various safeguards
provided in the Constitution of India and in the laws
passed by the State Legislature for the protection of
minorities;
(b) to make recommendations with a view to
ensuring effective implementation and enforcement of
all the safeguards;
(c) to monitor the working of the safeguards
provided in the Constitution, laws enacted by the
Parliament and the State Legislature, and policies and
schemes of the State Government for minorities;
(d) to conduct studies, research and analysis on the
questions of avoidance of discriminations against minorities;
(e) to make a factual assessment of the
representation of minorities in the services of the
Government, Government undertakings, Quasi-
Government bodies, Municipal Corporations, Municipal
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Councils, Zilla Parishads, Panchayat Samitis and Village
Panchayats and in case, the representation is
inadequate, to suggest ways and means to achieve the
desired level;
(f) to make recommendations for ensuring,
maintaining and promoting communal harmony in the
State;
(g) to make periodical reports art prescribed intervals
to the Government;
(h) to study any other matter which, in the opinion
of the Commission, is important from the point of view
of the welfare and development of minorities, and to
make appropriate recommendations;
(i) to consider the grievances of the minorities and
to suggest appropriate solution, from time to time;
(j) to look into specific complaints regarding
deprivation of rights and safeguards of minorities and
take up such matters with the appropriate authorities;
(k) to co-ordinate and supervise the implementation
of the Prime Minister's 15 Points Programme for
Welfare of Minorities:
Provided that, if any matter specified in sub-section (1)
is undertaken by the National Commission for
Minorities constituted under section 3 of the National
Commission for Minorities Act, 1992, the State
Commission shall cease to have jurisdiction in such
matters.
(2) The Government shall cause the
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recommendations of the Commission to be laid before
each House of the State Legislature along with the
memorandum explaining the action taken or proposed
to be taken on the recommendations and the reasons
for non-acceptance, if any, of such recommendations."
12 On plain reading of Section 10, it is crystal clear that there
is no power conferred on the Respondent No.4 (the Commission) to
adjudicate upon any dispute or a lis and to pass any executable order
much less to make an adjudication on legality and validity of a sale
transaction. Under clause (i), the Commission gets power to consider
the grievances of the minorities and to suggest appropriate solution,
from time to time. The power under clause (j) of Sub-Section (1) is
conferred to look into specific complaints regarding deprivation of
rights and safeguards of minorities and take up such matters with the
appropriate authorities. As far as the power to make recommendations
is concerned, it is only in clauses (b) and (f) of Sub-Section (1) of
Section 10. Clause (a) of Sub-Section (1) confers power to examine the
working of various safeguards provided in the Constitution of India and
in the laws passed by the State Legislature for the protection of
minorities. Clause (b) confers power to make recommendations with a
view to ensure effective implementation and enforcement of all the
safeguards. Clause (f) confers power to make recommendations for
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ensuring, maintaining and promoting communal harmony in the State.
Sub-Section (2) provides that the recommendations of the Commission
shall be laid before each House of Legislature along with a
memorandum explaining the action taken or proposed to be taken on
the recommendations.
13 Now, coming to the impugned order, after considering the
submissions, the Chairperson of the Commission has purported to
record findings. He has recorded that the role played by the Circle
Officer is suspicious. Secondly, the Chairperson has observed that while
registering the sale deed, the power of attorney holders have given false
statement before the Government Officers and have fabricated the
documents. It is observed that even the petitioner - Trust has
participated in the entire process and therefore, an enquiry is called for
through Economic Offences Wing. In clause 5 of the conclusion, the
Chairperson has raised a question whether the petitioner being a Public
Charitable Trust has obtained permission of the Charity Commissioner
for acquiring the said property and that this aspect has not been
inquired into by the Sub-Registrar of Assurances and the Sub-Divisional
Officer. Perhaps, the Chairperson was completely unaware of the
provisions of Section 36 of the Maharashtra Public Trusts Act, 1950
which requires Trustees to obtain prior permission of the Charity
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Commissioner before selling a Trust property. No such permission was
contemplated for acquiring a property by a Public Charitable Trust.
However, the Chairperson has observed that large amount is spent by
the petitioner - Trust on purchase of the property such as stamp duty
and the amount deposited with Tahsildar. He has expressed suspicion
about the petitioner - Trust possessing such a large amount. He went to
the extent of observing that the Trustees of the petitioner have acted
contrary to the Trust and, therefore, they are liable to be suspended. He
has observed that illegal construction has been carried out on the
property in question. He has directed demolition of the construction
carried out on the subject property and has directed that an action be
taken for immediately placing the Respondent Nos.5 to 7 in possession
of the subject property.
14 From the tenor of the impugned order, it appears that the
Commission has issued aforesaid drastic directions which will nullify
the registered conveyance deed. We have already reproduced the
directions issued under the impugned order. As stated earlier, the power
to make recommendations is confined to clauses (b) and (f) of Sub-
Section (1) of Section 10. Both clauses are not at all applicable in the
present case.
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15 Thus, the Chairperson of the Commission has purported to
exercise the powers while passing the impugned order which were not
vested in him.
16 The learned counsel appearing for the Respondent Nos.5 to
7 has relied upon Section 10-A which reads thus :-
"10-A. Powers of Commission.- The Commission shall, while
performing any of its function under sub-section (1) of
section 10, have all the powers of a Civil Court trying a
suit under the Code of Civil Procedure, 1908 (V of
1908), and, in particular, in respect of the following
matters, namely :-
(a) summoning and enforcing the attendance of any person
from any part of the State and examining him on oath;
(b) requiring the discovery and production of any
document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or document or copy
of such record of document from any office; and
(e) issuing commissions for the examination of witnesses
and documents."
17 Merely because certain powers of the Civil Court under the
Code of Civil Procedure, 1908 are conferred on the Commission, it does
not mean that the Commission gets power to adjudicate as if it is a Civil
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Court. Certain powers are conferred on the Commission under Section
10. Powers under Section 10-A are to be utilised for exercising the
powers under Section 10. That is the only significance of the Section
10-A of the said Act.
18 There is one more important aspect of the matter.
Provisions of the said Act of 2004 are applicable to the minorities as
defined in clause (d) of Section 2. Going by the admitted facts, even
the Trustees of the petitioner belong to minorities as defined under the
said Act. Even the constituted attorneys whose names appear on the
sale deed fall in the category of minorities. In that sense, what was
raised by the Respondent Nos.5 to 7 was a dispute between the
members of the same community who fall in the category of minorities
under clause (d) of Section 2. This is one more reason for interfering
with the impugned order.
19 The impugned order is unsustainable. The impugned order
cannot be read as recommendations of the Commission.
20 Accordingly, the Petition must succeed and we pass the
following order :-
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ORDER
(i) The impugned order dated 10th March, 2016 is hereby
set aside;
(ii) The Complaint filed by Respondent Nos.5 to 7 stands
dismissed;
(iii) We make it clear that we have made no adjudication
on the issue of legality and validity of the Conveyance
Deed dated 16th July, 2014 as well as all steps taken on
the basis of the said conveyance including mutation
entry No.2002. If the Respondent Nos.5 to 7 have any
grievance about the same, it is for them to adopt the
appropriate remedy in accordance with law;
(iv) Rule is made absolute on above terms.
(A.K. MENON, J) (A.S. OKA, J)
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