Bombay High Court
Shri Sakharam S/O Ramaji Shivarkar And ... vs State Of Mahrashtra, Through ... on 7 May, 2024
Author: M.S.Jawalkar
Bench: Avinash G. Gharote, Mukulika Shrikant Jawalkar
2024:BHC-NAG:5589-DB
1 912-WP 3034-2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 3034 OF 2019
SHRI SAKHARAM S/O. RAMAJI SHIVARKAR AND ANR.
...Vs...
STATE OF MAHRASHTRA, THR. SECRETARY, DEPARTMENT OF REVENUE AND FOREST, MUMBAI AND ORS.
Office Notes, Office Memoranda of Court's or Judge's orders
Coram, Appearances, Court's
orders or directions and Registrar's
orders
Shri P.D.Meghe, Advocate and Ms. Aaarti Singh, Advocate for petitioners.
Ms. Deepali Sapkal, AGP for respondent nos. 1, 3 to 5.
Shri P.S.Khubalkar, Advocate for respondent 2.
Shri A.C. Dharmadhikari, Advocate for respondent nos. 7 to 10.
Shri V.N.Morande, Advocate for Intervenor.
CORAM: AVINASH G. GHAROTE AND
SMT. M.S.JAWALKAR, JJ.
DATED : 07th MAY, 2024.
Mr. Dharmadhikari, learned counsel for
respondent nos. 7 to 10 at the outset submits, that
respondent no. 11 is no more. Mr. Meghe, learned
counsel for the petitioners submits, that respondent
no. 11 was added as a Trustee of respondent no. 6
-Trust and therefore, his demise would not make any
difference in continuation of the proceedings.
However, for the sake of record, he seeks permission
to delete respondent no. 11 from the array of the
respondents. The request is accepted. The respondent
no. 11 be deleted forthwith.
2. The petition seeks implementation of
Government Resolution (G.R.) dated 06/11/2018,
which mandates that, there should be a proper
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enquiry regarding the illegal transfer of Trust
properties. It is contended that, since the judgment of
learned District Judge-2, Chandrapur in Trust Suit No.
1 of 2002 dated 20/12/2012 does not indicate a
proper enquiry having been made the matter needs to
be remanded back.
3. The dispute relates to Survey No. 50,
admeasuring 9.20 H.R., situated at Mouza Chicholi,
Tah. Chimur, District Chandrapur. Mr. Meghe, learned
counsel for the petitioners contends, that this is the
property of respondent no. 6 - Trust, for which, he
relies upon the order dated 31/01/1968 passed in
Application No. 161 of 1966 (pg.82) and its findings
rendered thereupon as recorded at pg. 83. He also
relies upon the Revision Application No. 2 of 1988
and 3 of 1988 filed by one Prabhakar Pundlik Thakre
under Section 70-A of the Bombay Public Trust Act,
1950 and the judgment and order rendered therein on
26/10/1988 by learned Joint Charity Commissioner,
Nagpur, in which, the contention that, the Survey
No. 50, area 6.37 H.R. was not the property of the
Trust and was recorded by mistake, it being a private
property, was turned down and the Revision was
dismissed (pg.220). He also relies upon Exh. 64 in
Application No. 161 of 1966 to contend that, by a
permanent lease dated 08/11/1967, the original
owners namely Ramabai W/o. Zamsing, Bhagwansing
3 912-WP 3034-2019.odt
S/o. Zamsing and Laxman S/o. Zamsing had granted
a permanent lease of various properties including
Survey No. 50 in favour of Narayan S/o. Govinda
Patil. He also relies upon Exh. 66 in Application No.
161 of 1966, in which, there is a transfer of the entire
land of village Chicholi as allotted to them to the
Trust. He, therefore, submits that the impugned
judgment, which does not consider these transfers,
cannot be sustained and is liable to be quashed and
set aside.
4. Mr. Dharmadhikari, learned counsel
appearing for respondent nos. 7 to 10, relies upon the
findings rendered in the Application No. 161 of 1966,
decided on 31/01/1968 specifically (pg.91) to
contend that Survey No. 50 was not property of the
Trust and therefore, the plea raised by respondent
nos. 7 to 10 in Trust Suit No. 1/2002 has rightly been
accepted.
5. The learned Assistant Government Pleader
for respondent nos. 1, 3 to 5 has made available the
record of Application No. 161 of 1966 to us. A bare
perusal of record would indicate that, there are
contrary findings regarding Survey No. 50, which is
also reflected from the order of the Assistant Charity
Commissioner, Nagpur dated 31/01/1968. Though
while recording his finding as to point no. 5, there is
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mention about Survey No. 50 of Mouza Chicholi being
a property of the Trust, however, the reasons at
internal page 10 (pg.91), which is based upon Exh.
61, does not indicate so. Exh. 61 is an entry in the
record of rights in respect of respondent no. 6
- Trust for village Chicholi, which indicates that,
Survey No. 50 is not of the ownership of respondent
no. 6 - Trust. However, as indicated above, this very
finding of Survey No. 50 being property of the Trust
was challenged in Revision Application No. 2 of 1988
and 3 of 1988, wherein it has been turned down by
the order dated 26/10/1988. There is Exh. 64, which
is permanent lease granted by original owners namely
Ramabai W/o. Zamsing, Bhagwansing S/o. Zamsing
and Laxmansing Zamsing of various lands including
Survey No. 50 to one Narayan S/o. Govinda Patil.
Exh. 66 is also the document, which indicates transfer
of 25% of the Malgujari of the aforesaid persons to the
Trust.
6. All these documents, which were necessary
to be looked into for the purpose of determining
whether Sr. No. 50 was the property of the Trust or
not. A perusal of judgment dated 20/12/2012 passed
by the learned District Judge-2 Chandrapur in Trust
Suit No. 01/2002 indicates that, neither these
documents were placed before the Court nor the
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record of Application No. 161 of 1966, was every
requisitioned and looked into by the learned District
Judge-2 for the purpose of holding Survey No. 50,
does not belong to the Trust. The entire reasoning is
in one single para i.e. para 9, which according to us, is
not satisfactory.
7. We, therefore, quash and set aside the
impugned judgment dated 20/12/2012 passed by
learned District Judge-2, Chandrapur in Trust Suit No.
1 of 2002 and remand the matter back to the said
learned Court for a decision afresh. We also permit
the petitioners herein to file an application for
impediment in the Trust Suit No. 01 of 2002, which
shall be allowed by the said learned Court. It is also
made clear that, before deciding issue regarding
Survey No. 50, Mouza Chicholi, the learned District
Judge-2, Chandrapur shall requisition the entire
record of Application No. 161 of 1966 and also shall
permit all parties to place on record such documents,
as they may desire to and lead such evidence, as they
may deem fit and thereupon, after considering the
entire material, pass a reasoned order.
8. The parties are directed to appear before
learned District Judge-2, Chandrapur on 10/06/2024.
9. The original record of Application No. 161 of
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1966 is returned back to learned Assistant
Government Pleader.
10. The petition is, accordingly, allowed in the
above terms. No costs.
11. The pending application(s), if any, stand(s)
disposed of.
(SMT. M.S.JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
B.T.Khapekar
Signed by: Mr. B.T. Khapekar
Designation: PA To Honourable Judge
Date: 09/05/2024 16:08:12
