Bombay High Court
Shri. Saraswati Education ... vs Jt. Charity Commissioner, ... on 29 November, 2021
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 4081 OF 2021
1. Shri Saraswati Education Society,
Akola, A Public Trust, duly registered
under the PTR No. F-676/Akola,
through its Secretary,
Sachin Keshav Joshi,
Aged about 55 years, Occ. Business,
R/o Keshav Nagar, Akola,
Tq. And Dist. Akola.
2. Sachin Keshav Joshi,
Aged about 55 years, Occ. Business,
R/o Keshav Nagar, Akola,
Tq. And Dist. Akola.
PETITIONERS
...Versus...
Jt. Charity Commissioner, Amravati
Region, Amravati. RESPONDENT
-----------------------------------------------
Mr. C.S. Kaptan, Senior Advocate a/b Mr. J.B. Gandhi, Advocate
for the Petitioners.
Ms. Hemlata Jaipurkar, AGP for the Respondent/State.
-----------------------------------------------
CORAM : AVINASH G. GHAROTE, J.
DATED : 29th NOVEMBER, 2021.
ORAL JUDGMENT :-
Heard.
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2. Rule, Rule made returnable forthwith. Heard finally
with the consent of the learned counsel for the rival parties.
3. It is not disputed by the learned AGP for the
respondent, that an order under section 36(1)(a) of the then
Bombay Public Trust Act, came to be passed on the application
filed by the petitioners according sanction in the following
terms:
"1) Sanction is hereby accepted under section
36(1)(a) of Bombay Public Trust Act, 1950, to sell
immovable property of the above described Trust
i.e. Field Survey No.49 admeasuring 20 acres and
36 gunthas and field Survey No.50 admeasuring 32
acres and 35 gunthas situated at village Gaigaon,
Taluka Balapur, District - Akola for the
consideration of rs.11,50,000/- (Rs. Eleven Lakhs
Fifty Thousand) to Shekh Sikandar s/o Shekh
Hayder and other nine as named in the Agreement
for Sale and plot No.82 admeasuring 4800 square
feet at Mouza Khadki Bk. Taluka and District -
Akola for Rs.1,20,000/- (Rs. One Lakh Twenty
Thousand) to Shri Najukrao Awadhotrao Hagwane.
2) The sale-deed should be executed within a
period of six months from the date of this order or
within such further time that may be extended by
the Joint Charity Commissioner, Nagpur if deemed
necessary.
3) The amount received from sale of the
immovable property be spent over fulfilling the
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objects of the Trust as mentioned in the application
and should not be handed over to anybody without
prior permission of the Joint Charity Commissioner,
Nagpur.
4) This order is subject to the Trustee
complying with the provisions and prohibition, if
any, contained in any other law in force and which
are applicable to the Trust and its property."
4. Thereafter since there were certain disputes, the
land in question became the subject matter of the Spl.C.S. No.
81/1999 instituted by Shaikh Sikandar Sk. Haidar Vs. The
present Petitioners. This suit came to be compromised on
14.10.2019, and a compromise decree came to be passed by the
Jt. Civil Judge Senior Division, Akola, under Exh. 172. In
pursuance to the said compromise decree, an application came
to be filed by the petitioners for extention of time, of the period
of permission, as granted by the order dated 11.09.1998 in
terms of the compromise. The said application was granted,
however instead of extending the time to execute the sale-deed
as per the terms of compromise, it was directed to be so
executed as per the order dated 11.09.1998. An application for
correction of this order came to be rejected by order dated
03.09.2021. The present petition seeks to challenge the order
4 49.WP.4081-2021 JUDGMENT.odt
dated 03.09.2021 as well as the order dated 18.08.2021 to the
extent it does not mention the extention of the permission
granted under Section 36 of the Bombay Public Trust Act, in
terms of the compromise.
5. Mr. Kaptan, learned Senior counsel for the
petitioners submits, that the compromise as recorded in Spl.C.S
No. 81/1999, was between the parties to the Application No.
37/1994 and their legal heirs and nominees, considering which,
the extention of time ought to have been in pursuance what was
been recorded in the compromise and the terms contained
therein, and no doing so would result in putting the entire
matter into litigation afresh, which considering the chequered
history needs to be avoided.
6. Ms. Jaipurkar, learned AGP for the respondent
submits, that a fresh resolution was required to be submitted by
the petitioners before the respondent, which has not been done,
and therefore, the impugned orders cannot be faulted with.
7. A perusal of the order dated 11.09.1998 indicates
the sanction was granted for sale of the land to persons who
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were the plaintiffs in Spl.C.S. No. 81/1999. Since the dispute in
Spl.C.S. No. 81/1999, came to be compromised between the
parties thereto, the permission dated 11.09.1998, ought to have
been extended, keeping the compromise in mind, as that was
the basic reason stated for filing of the application for extention,
which is reflected from the order dated 18.08.2021. So also
since permission to sell under section 36 of the Bombay Public
Truct Act was already granted on 11.09.1998, there was no
requirement of a fresh resolution as is contended by learned
AGP. That being the position, in my considered opinion, the
order dated 03.09.2021, is required to be quashed and set-aside
and it is accordingly so done. Insofar as the order dated
18.08.2021 is concerned, the clause No. 1 of the said order is
modified by extending the time of the order dated 11.09.1998
and permitting the execution of the sale-deed in terms of the
compromise recorded between the parties as reflected in
compromise decree passed in Spl.C.S. No. 81/1999 and the time
as mentioned in the order dated 18.08.2021 is also extended for
the period of one month from today. The petition accordingly is
allowed in the above terms. No order as to costs.
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8. Rule is made absolute.
( AVINASH G. GHAROTE, J.)
S.D.Bhimte
Signed By:SHRIKANT
DAMODHAR BHIMTE
Signing Date:01.12.2021 14:34
