Gujarat High Court
Vijaybhai Kantibhai Patel vs Jangleshwar Mahadev Trust on 7 July, 2021
Bench: B.N. Karia
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
VIJAYBHAI KANTIBHAI PATEL V/s. JANGLESHWAR MAHADEV TRUST & Others
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 628 of 2010
In
R/SPECIAL CIVIL APPLICATION NO. 9001 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
========================================================
1 Whether Reporters of Local Papers may be allowed to see -
the judgment ?
2 To be referred to the Reporter or not ? -
3 Whether their Lordships wish to see the fair copy of the -
judgment ?
4 Whether this case involves a substantial question of law as -
to the interpretation of the Constitution of India or any
order made thereunder ?
========================================================
VIJAYBHAI KANTIBHAI PATEL
Versus
1. JANGLESHWAR MAHADEV TRUST
2. RAJESHBHAI NARANBHAI BHAYANI
3. JOINT CHARITY COMMISSIONER
========================================================
Appearance:
MR AMIT V THAKKAR(3073) for the Appellant
MR MI MERCHANT(479) for the Respondent No. 1.1
MR RR MARSHALL, SENIOR COUNSEL FOR MR ARPIT A
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
VIJAYBHAI KANTIBHAI PATEL V/s. JANGLESHWAR MAHADEV TRUST & Others
MR SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER for the
========================================================
CORAM:HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MR. JUSTICE B.N. KARIA
Date :07/07/2021
CAV JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. Mr.Vijay Kantilal Patel, a practicing lawyer of Surat along
with a group of his lawyers friends, seems to be indulging in land
dealings also, besides their pious and noble profession of Advocacy
and the litigation history of this case shows that where the
Respondent - Jangleshwar Mahadev Trust, a Public Trust having
obtained the permission from the Charity Commissioner sold the
land in question of 5 Acres and 37 Gunthas situated at Revenue
Survey No.12 in Village Kamrej, District - Surat to the Respondent
No.2 - Rajeshbhai Naranbhai Bhayani, who was already a lessee of
the said land in question and the land in question was sold to him
for a sum of Rs.11,21,000/- on 17.2.2001 by a Registered Sale
Deed, is being challenged by Petitioner - Mr.Vijay Kantilal Patel.
The said proceedings all through at all steps have been challenged
merely on the alleged claim that he was ready to offer 25% more of
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
VIJAYBHAI KANTIBHAI PATEL V/s. JANGLESHWAR MAHADEV TRUST & Others
the price of the land in question of Rs.11,21,000/- and, therefore,
neither the Charity Commissioner was justified in granting the sale
permission nor the Gujarat Revenue Tribunal as well as the learned
Single Judge were justified in rejecting his case and hence, he has
continued with this Letters Patent Appeal in the present case.
2. During the course of arguments, it has come before us by way
of series of Affidavits filed by Respondent No.2 - Rajeshbhai
Naranbhai Bhayani with site photographs that the said land stood
now sold to over more than 300 persons in different plots and they
have raised their construction of Residential Houses etc. on the said
land but, still, the Appellant wants it to be restored back to him on
the ruse that he was ready to offer 25% more and, therefore, why it
has been allowed to be sold at the given price to the Respondent
No.2 - Rajeshbhai Naranbhai Bhayani.
3. We are a bit surprised at the persistence of the Petitioner
Advocate (well he has not disclosed this status in pleadings, but it
was revealed in the course of arguments), who having failed at all
levels, is fighting for this land from 1999 till 2021 for last 21 years.
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The lack of bona fides and prevalence of greed in the background is
more than apparent.
4. The learned Single Judge dismissed the Writ Petition filed by
the Petitioner with the following reasons and observations which
would summarize the entire case of the Petitioner and Respondents
also.
"7. Heard learned counsel for the respective parties.
It appears from the record that at the time when
the application seeking permission of the competent
authority to sell the land in question was made by the sole
trustee - (Late) Smt. Kantaben Zaverilal Joshi, the
said land had already been given on a five year lease to
respondent no.2 for cutting the grass, at an annual rent of
Rs.900/-, in order to protect the land from encroachment.
The respondent no.2 was possessing the said land as a
tenant under a lease agreement entered into between
the sole trustee and respondent no.2. It is a fact situation
that the said lease document was executed on a stamp paper
of inadequate value and that it was also not registered. On
the basis of such a document, respondent no.2 could never
have got any right established in any Court of law
since the said document would have been inadmissible in
evidence. At the best, respondent no.2 could have got the
right of a licensee established but, in that case also, the
Trust could have got back possession of the said land at the
end of five years. However, the fact remains that at the
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VIJAYBHAI KANTIBHAI PATEL V/s. JANGLESHWAR MAHADEV TRUST & Others
relevant time, the disputed land was in the possession of
respondent no.2 in the capacity of a tenant.
8. It is pertinent to note that the respondent no.2 had
expressed his willingness to purchase the land in question
at the price of Rs.11,21,000/- as against the Government
approved Valuer's price valuation of Rs.10,80,000/-.
The petitioner had not given or specified the exact amount at
which he was ready to purchased the disputed land. His
statement that he was willing to pay 25% more than the
negotiated price could not be considered to be a valid offer,
particularly, when he did not take any step to
give an effective offer, along with the requisite deposit,
during the period between 15.10.1998 and 15.04.1999.
It is also required to be noted that the petitioner had not
raised any objection that the market price valuation,
given in the Government approved valuer's Report, is not
proper or that it is low, etc. In other words, the valuation as
fixed by the Government approved valuer was not
challenged by the petitioner. Thus, when no challenge was
put forward by the petitioner/objector regarding the
valuation of the land and when no sale instances or other
evidence or valuation report pointing to the fair market price
significantly higher than what was assessed by the
Government approved Valuer, the respondent no.3 -
authority was justified in accepting the fair market value
of the land on the basis of the Valuation Report.
9. Keeping in mind the fact that respondent no.2 was
possessing the disputed land in the capacity of a 'tenant' at
the relevant time and that he had quoted a price much
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
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higher than the Government approved Valuer's price,
which had remained unchallenged coupled with the fact that
the petitioner had not taken any steps to give any effective
offer, along with the requisite deposit, during the period
between 15.10.1998 and 15.04.1999, the respondent no.3 -
authority was justified in coming to the conclusion that there
was compelling necessity for alienating the disputed
land, particularly, when the sole trustee was an elderly lady
aged about 80 years and there was every possibility that
the disputed land would have been encroached upon.
The decisions relied upon by the learned counsel
for the petitioner, though being a good law, will not apply
to the facts of the case on hand, in view of the discussion
made herein above.
10. Looking to the facts of the case, it would be relevant to
refer to a decision of this Court in the case of Thakorebhai
Gangaram v. Ramanlal Maganlal Reshamwala, 1993 (1)
G.L.H. 473, wherein, it has been held that the primary
power to grant sanction is vested by the
Legislature advisedly in the Charity Commissioner and that
the Charity Commissioner should exercise such power justly
and fairly and after taking into consideration the
relevant factors. Once such sanction is granted, it would be
unjust to upset such sanction in appeal u/s. 36(3) on grounds
which do not materially affect the satisfaction reached
by the Charity Commissioner.
11. While upholding the decision of the authority below, I
also agree with the view taken by the Bombay High Court in
Arunodaya Prefab's case (supra) that it is not open to the
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
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Charity Commissioner to consider uninvited offers
from third parties except for ascertaining the market price of
the property and that the Charity Commissioner cannot sell
or require the trustees to sell the property to such
third parties. If the Charity Commissioner considers
the sale proposed by the trustees adverse to the interests
of the trust, he could only decline sanction. The
facts of the present case are almost similarly situated. I
concur with the view adopted by the Bombay High
Court in the said decision.
12. In view of the above discussion, the concurrent
findings arrived at by the authority / Tribunal below and the
settled law on the subject, I am of the opinion that the
Tribunal has not committed any error in law or on facts by
dismissing the appeal preferred by the petitioner. I also find
that the respondent no.3-authority has exercised the power
to accord sanction in accordance with the
provisions of Section 36(1) of the Act and that no illegality
or impropriety has been committed by him while
doing so. Hence, the present petition deserves to be
dismissed.
13. For the foregoing reasons, the petition is dismissed.
Rule is discharged. Interim relief, if any, stands vacated.
Sd/-
[K.S.JHAVERI, J.]"
5. Earlier also, when the interim relief was refused by the Gujarat
Revenue Tribunal, the Petitioner filed Special Civil Application
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
VIJAYBHAI KANTIBHAI PATEL V/s. JANGLESHWAR MAHADEV TRUST & Others
No.1353 of 2000 which came to be dismissed by another learned
Single Judge of this Court (Coram : M.R. Calla, J.), coming down
heavily on the bona fides or locus standi of the Petitioner in the
following manner :
"5. This Court finds that apart from the question as to
what is the bonafide locus standi of the present petitioner to
raise the objections in this case, it appears from the reading
of the order passed by the Charity Commissioner that he has
addressed himself to all these questions and, therefore, it
cannot be said that the order passed by the Charity
Commissioner prima facie suffers from any illegality or
infirmity. This authority is, therefore, of no avail to the
petitioner in the facts of present case.
6. Learned counsel for the respondent - Trust has cited
the case of Prithvi Builders v. Manekchowk Khoda Dhor
Panjarapole Sanstha, reported in 1996 (2) GLH 615
wherein the court has observed that normally in the matter
of selling out properties of the Trust, the Trustees or the
Charity Commissioner are to act in the best interest of the
Trust and that ordinarily reflects when the best available
price is secured for the property to be sold, but at the same
time, it could not be a case of single golden scale criteria
that any time or every time a higher offer comes one should
require the Authority to postpone the process, which had
already commenced. It has to be brought to a logical end.
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Therefore the petitioner may have stated in his objections
that he was prepared to pay more than 25% of the price
over and above the price at which the property was
proposed to be sold out by respondent No.1. But merely
because such a statement was made, it cannot be said that
the same was an effective offer. No deposits had been
offered or made and the other necessary requirements with
regard to the deposit of the earnest money etc.had also not
been held out. In any case, the Joint Charity Commissioner
has taken into consideration all the relevant aspects as well
as the objections of the petitioner and taking into
consideration the entirety of the facts, it cannot be said that
the Gujarat Revenue Tribunal was wrong in vacating the
ex parte order. I do not find any substance in this Special
Civil Application. The same is hereby dismissed. No order as
to costs.
Sd/-
(M.R.Calla,J)"
6. The Letters Patent Appeal against the said order of the learned
Single Judge also came to be dismissed, namely, Letters Patent
Appeal No.89 of 2000 in Special Civil Application No.1353 of 2000
by the Division Bench of this Court (Coram :
D.M.Dharmadhikari, CJ & B.C. Patel,J.) by a short order, which
is also quoted below :
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
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"Learned Single Judge rightly refused to interfere with the
order of the Gujarat Revenue Tribunal, vacating the ex-parte
order of stay. We also do not find any ground to take a
different view. Learned counsel submits that, if the sale deed
is executed with the proposed purchaser the appeal would
become infructuous. Learned counsel for the appellant
insisted that this Court should direct that the appeal should
be heard expeditiously and within a stipulated time. We
reject the appeal, but expect the Tribunal to expeditiously
decide the pending appeal. We also make it clear that the
pending appeal shall be decided by the Tribunal without
influenced by any observations made by this Court while
rejecting this appeal. The permission to sell granted shall
naturally be subject to the result of the pending appeal. No
order on civil application. No order as to costs.
Sd/- Sd/-
(D.M. Dharmadhikari, C.J. ) ( B. C. Patel, J )"
7. The details of 375 plots sold to various persons as per list
given in the Affidavit of the Respondent No.2 - Rajeshbhai
Naranbhai Bhayani dated 22.2.2021 is also placed on record which
has not been rebutted. Prior to that, in an Affidavit dated 21.11.2004
also, the said Respondent submitted that after due purchase of the
land in question for full consideration under the permission of the
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Charity Commissioner as he was already Tenant / Lessee on the
same land for last 5 years, the land was duly sold to him for full
consideration of Rs.11,21,000/- and, therefore, doubting the motive
of the Petitioner to assail the said sale, the Respondent filed the said
Affidavit. In the first Affidavit itself dated September, 2004, the
said Respondent had stated in Para.4 that the Petitioner along with
his Advocate friends - Mr.Bhavesh C. Mehta and Mr.S.I. Patel,
Advocate were in the habit of assailing all the sales of Public
Trust and in Para.5, it is clearly stated that in another similar
challenge, on a compromise with the purchaser, said Mr.Bhavesh
C. Mehta received a sum of Rs.6 lakhs. When the Trustees of one
Bhartiya Vidhya Manal Trust Kamrej had to enter into the said
settlement with him.
8. In the background of these facts, the contentions of the learned
counsel for the Petitioner - Appellant, Mr.Amit Thakkar, relying on
some of the Case Laws which are cited below, contended that the
Charity Commissioner could not have sanctioned the said sale in
favour of Respondent No.2 without Public Auction and inviting
offers from public at large and in the face of the fact that the
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Petitioner was offering 25% more of the price, the Charity
Commissioner ought not to have granted such sale permission. On
the issue of sale already having taken place, Mr.Amit Thakkar,
learned counsel, submitted that it was directed to remain subject to
pendency of this Appeal under the interim order of this Court and,
therefore, if the order of Charity Commissioner goes, the sales in
favour of other persons - third parties have to be set aside.
9. Learned counsel for the Petitioner - Appellant sought to rely
on the following judgments to fortify his contentions essentially to
the effect that loss to the interest of Public Trust cannot be caused by
the Charity Commissioner and he cannot give his approval for the
illegal transactions in respect of the Trust properties.
Sr. Mode of Citation Name of Party
No.
1. 2019 (17) SCC 419, Shri Ambadevi Sanstha and
Othes v. Joint Charity
Para : 10 to 14, 23 & 24
Commissioner and Others.
2. 2018 (14) SCC 761 Cyrus Rustom Patel v.
Charity Commissioner,
Para : 16 to 36
Maharashtra State and
Others.
3. 2007 SCC Online Bom 124 Sailesh Developers and
Another v. Joint Charity
C/LPA/628/2010 CAV JUDGMENT DATED: 7/7/2021
VIJAYBHAI KANTIBHAI PATEL V/s. JANGLESHWAR MAHADEV TRUST & Others
2007 (3) Mah LJ 717 Commissioner, Maharashtra
and Others.
Para : 27 to 30
4. 2013 (11) SCC 531 Bhaskar Laxman Jadhav and
Others v. Karamveer
Para : 50 to 54
Kakasaheb Wagh Education
Society and Others.
5. 2001 (5) SCC 305 Mehrwan Homi Irani and
Another v. Charity
Para : 9
Commissioner, Bombay and
Others.
6. 1986 (3) SCC 91 Chenchu Rami Reddy and
Another v. Government of
Para : 10
Andhra Pradesh and Others.
10. Having perused the judgments cited by the learned counsel for
the Appellant in detail, we are satisfied that none of them supports
the case of the Appellant - Petitioner and they are clearly
distinguishable on facts. In the case of Shri Ambadevi Sanstha &
Another v. Joint Charity Commissioner & Others, reported in
(2019) 17 SCC 419, in Para.20 and 21 relied upon by learned
counsel, the Supreme Court found that no effort was made to
ascertain the valuation of the house and no reserve price was fixed
and, therefore, the sale was impermissible. But in the present case,
we find that the valuation of the property was about Rs.10,80,000/-
and the property in question was sold to an existing lessee at
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Rs.11,21,000/-. Therefore, not only the valuation was available but
price realized was more than the valuation by an Approved Valuer.
There is no mala fides alleged against the Charity Commissioner as
such in the present case.
11. In the case of Cyrus Rustom Patel v. Charity
Commissioner, Maharashtra State & Others, reported in (2018)
14 SCC 761, the Supreme Court, relying upon the decision of
Bhaskar Laxman Jadhav, observed that there was lack of bona
fides of Trustees and that could not have been overlooked and in
such circumstances, safest course to sell the trust land was through
auction. In the present case, we find that the land has not only been
sold to the existing lessee at a price higher than the price valued by
the Approved Valuer and there is no allegation of lack of bona fides
on the part of sole Trustee of the Temple Trust in question. Thus,
that judgment is also not applicable.
12. Similarly, the judgment of Full Bench of Bombay High Court
relied upon by learned counsel in the case of Sailesh Developers,
the Full Bench of Bombay High Court interpreted the powers of
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Charity Commissioner under Section 36 of the Bombay Public
Trusts Act, 1950 and held that it extends to inviting offers from the
members of the public and directing the trustees to sell or transfer
the trust property to a person whose bid or quotation is the best,
having regard to the interest, benefit and protection of the trust. In
the present case before us, the vague offer given by the Petitioner, a
practicing lawyer, that he could pay 25% more than the price offered
by the Respondent, is neither here nor there. He never deposited
25% more with the Charity Commissioner and, therefore, such
vague offer without any earnest money or deposit of the price was
absolutely meaningless. The sum of Rs.5 lakhs now deposited under
the interim order of the Court to make the sale subject to the
litigation, cannot be stated to be price offered by the Petitioner at the
time of purchase of the property. After 20 years now, the sale made
by Registered Sale Deed dated 17.2.2001, cannot be up-set on the
basis of such vague offer and wild allegations against the
Respondents. A sale to the existing lessee at a price higher than
approved by Valuer's valuation is prima facie not only valid and
acceptable, but the Registered Sale Deeds in favour of Respondent
No.2 and now further sales made to over 300 persons cannot be set
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aside on such meritless litigation for motivated purposes at the instance of
a group of lawyers and that too without impleading all of them nor there
is any valid ground to do so. It is better that the lawyers limit their
activities to their profession rather than land dealings in this manner. We
would not like to comment any further on this and suffice it to say that
the present litigation is found to be without merit in law and without
bona fides and equity.
12. In view of this, we are not inclined to accept any of the
submissions made by learned counsel for the Appellant - Petitioner. The
Letters Patent Appeal is found to be devoid of merit and the same is liable
to be dismissed. The same is accordingly dismissed. No costs.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
FURTHER ORDER
Mr. Amit Thakkar, learned counsel, after the pronouncement of the
Judgement, submits that Rs.5 Lakhs was deposited vide Interim Order of
the learned Single Judge in the Order impugned before us, may be
ordered to be refunded as the same is deposited in the Registry of this
Court. Upon proper application for refund and upon verification of the
said fact, the Registry may take steps to refund the said amount of the
Appellant after obtaining due Acknowledgment of the same and in
accordance with Rules.
(DR. VINEET KOTHARI,J)
(B.N. KARIA, J)
(V.J.SATWARA)
