Yashwant Amratlal Thakkar vs The Charity Commissioner Gujarat ...
2022 Latest Caselaw 4399 Guj

     C/SCA/4164/2021                             JUDGMENT DATED: 26/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4164 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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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 ?

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                     YASHWANT AMRATLAL THAKKAR
                               Versus
               THE CHARITY COMMISSIONER GUJARAT STATE
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP for the Respondent(s) No. 1
MR VISHAL T. PATEL(6518) for the Respondent(s) No.
2,2.1,2.2,2.3,2.4,2.5,2.6
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    CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 26/04/2022

                            ORAL JUDGMENT

1. The present writ-application is filed under Article 226 of the Constitution of India seeking the following reliefs :-

"(A) To issue a writ of mandamus or a writ in the nature of

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mandamus or any other appropriate writ, order or direction by quashing and setting aside the public advertisement issued by the respondent no.2 - Trust in 'Navgujarat Samay' daily newspaper dated 21.02.2021, pursuant to the order passed by the Charity Commissioner dated 12.02.2021 in Application No . 36/02/2021, auction is fixed on 05.03.2021, as there is already order passed by the Charity Commissioner in favour of the present petitioner dated 22.10.2019 in Application No. 36/57/2019 which was not fulfilled because of the material suppression of facts by the Trust before the Charity Commissioner and further be pleased to direct the respondent, no.2-Trust to accept the remaining amount of Rs.2,06,00,000/- alongwith accrued interest thereon to show the bona-fide of the present petitioner, for the reasons stated in the memo of the petition and in the interest of justice;

(B) Be pleased to direct the respondent no.2-Trust to execute the sale in favour of the present petitioner, on petitioner depositing the remaining amount of Rs.2,06,00,000/- alongwith the interest, forthwith, as there is already order passed by the Charity Commissioner in favour of the present petitioner dated 22.10.2019 in Application No. 36/57/2019, for the reasons stated in the memo of the petition and in the interest of justice;

(C) Pending admission, hearing and final disposal of the above Special Civil Application, Your Lordships may be pleased to restrain the respondent No.1 - Charity

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Commissioner to proceed further with the Application No. 36/02/2021 which is fixed on 05.03.2021, for the reasons stated in the memo of the petition and in the interest of justice;

(D) To grant ad-interim relief in terms of Para - (C) hereinabove for the reasons stated in the Memo of Petition.

(E) The Hon'ble Court may kindly be pleased to grant any other appropriate relief as the nature circumstances of the case may require."

2. The brief facts as stated by the writ-applicant in the present writ-applicant are stated thus :-

2.1 A public advertisement came to be issued by the respondent no.2 Trust on 20.9.2019 inviting offers from persons interested for sale of agricultural land of old tenure bearing Survey No.232/1 admeasuring 2125 sq.mtrs. at Ghatlodia (for short 'subject land'). The upset price was fixed at Rs.67.00 lacs.

2.2 Before the Charity Commissioner, 23 persons offered their bids pursuant to the advertisement issued by the Trust for the purchase of the said land. On 17.10.2019, the bids were opened and bid of the present writ-applicant was found highest for Rs.2.76 crores. Charity Commissioner confirmed the sale in favour of the present writ-applicant by order dated 22.10.2019.

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2.3 The writ-applicant deposited 25% amount of the offer price i.e. Rs.53,25,000/- as per the terms and conditions to the Trust on 24.10.2019 by Pay Order.

2.4 On 10.2.2020, a public advertisement came to be published in the daily newspaper on behalf of one Nagjibhai Shivabhai Patel though his advocate stating that by virtue of the agreement to sale dated 23.2.1988 Nagjibhai Shivabhai Patel is in possession of the land bearing Survey No.232/1 of Ghatlodia admeasuring 2125 sq.mtrs. owned by Ramji Mandir Trust.

2.5 On 20.2.2020, writ-applicant has issued notice by Regd. Post to respondent No.2 - Ramji Mandir Trust and the trustees of the Trust, bringing to their notice, public notice issued by Shri Nagjibhai Shivabhai Patel and called upon the respondent No.2 for clarification with regard to the same advertisement dated 10.2.2020 stating that the writ-applicant is interested to purchase the property by depositing the remaining amount.

2.6 The writ-applicant has produced computation of networth certificate issued by the Chartered Accountant. The respondent No.2 Trust on 24.10.2020 without replying to the writ- applicant's notice dated 20.2.2020 passed resolution forfeiting the 25% amount deposited by the writ-applicant towards

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purchase of the subject land in question.

2.7 On 4.12.2020, writ-applicant has once again served notice to the respondent no.2 trust pointing out that the writ- applicant is ready and willing to pay the remaining amount and stated that writ-applicant's earlier notice dated 20.2.2020 not replied whereby writ-applicant drew the attention of the Trust towards public notice issued by Shri Nagjibhai Shivabhai Patel through his advocate which was published in the newspaper on 11.2.2020. writ-applicant also made it clear that the Trust had suppressed the said material fact and once again writ-applicant requested to give title clearance certificate so that writ-applicant can pay the remaining amount and get sale-deed executed in his favour.

2.8 The respondent no.2 Trust approached the Charity Commissioner by filing Application No.36/02/2021 for sale of very land bearing Survey No.232/A being old tenure land admeasuring 2125 sq.mtrs. The Charity Commissioner passed order fixing upset price at Rs.1.70 crores and approved proposed draft for giving public advertisement vide order dated 12.2.2021.

2.9 The proposed draft approved by the Charity Commissioner for giving advertisement for the sale of the property in question is produced at page-55 of the writ-

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application. The advertisement has been published in Navgujarat Samachar on 21.2.2021 which is duly produced at page-57. Against the said action, writ-applicant was constrained to approach this Court by filing the present writ- application.

2.10 This Court by order dated 1.3.2021 after hearing both the sides passed a detailed interim order staying further proceedings pending before the Charity Commissioner for sale of the property in question. The Coordinate Bench of this Court also permitted the writ-applicant to deposit remaining amount alongwith interest @ 11%. Accordingly the writ- applicant had deposited remaining amount of auction price of Rs.2.07 crores and Rs.23.00 lacs being approximate interest from 22.2.2020 to 1.3.2021 with the Registry of this Court by way of Demand Draft.

Submissions on behalf of the writ-applicant :-

3. Mr. B. T. Rao, the learned advocate appearing for the writ-applicant submitted that when property which is put in auction by the Trust, whether Charity Commissioner is right in entertaining second application when the Trust has not declared true and correct facts in the first application which was granted by Charity Commissioner on 24.10.2019.

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3.1 Mr. Rao, the learned advocate submitted that when the property in question was under cloud, the Trust has executed agreement to sale on 23.2.1988 in favour of Shri Nagjibhai Shivabhai Patel who claims to be in possession of the property in question, whether the Trust is right in forfeiting the amount of writ-applicant without giving any reply to petitioner's legal notice dated 20.2.2020 and second notice dated 4.12.2020.

3.2 Mr. Rao, the learned advocate submitted that when the Trust has not denied the notice given by writ-applicant, whether it is open for the Trust to forfeit the amount of the writ-applicant when petitioner has shown willingness to deposit the entire amount before this Hon'ble Court pursuant to order passed by this Hon'ble Court whether the Trust can oppose to it?

3.3 Mr. Rao, the learned advocate submitted that the writ- applicant is 'aggrieved person' as writ-applicant is successful bidder and remaining amount has been deposited. Therefore the only remedy for the writ-applicant is to file petition before this Hon'ble Court against the said proceedings before the Charity Commissioner in peculiar facts.

3.4 Mr. Rao, the learned advocate submitted that the alternative remedy of appeal can be filed by the present writ- applicant before the Gujarat Revenue Tribunal because writ-

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applicant challenges the legality and validity of taking cognizance of the proceedings on application submitted by the Trust. In the order of Charity Commissioner dated 12.2.2021 Charity Commissioner has not taken cognizance of the objections of the writ-applicant and public notice issued by Shri Nagjibhai Shivabhai Patel and passed order granting permission on the ground that writ-applicant is not able to deposit the amount.

3.5 Mr. Rao, the learned advocate submitted that the writ- applicant cannot file appeal because writ-applicant has already accrued right in his favour and the amount was not deposited because of the reason that property in question is in possession of the third party and that was not denied by the Trust pursuant to notice given by the present writ-applicant on 20.2.2020. Remedy of Appeal before Gujarat Revenue Tribunal would lie for those who have participated in the subsequent auction to be held by Charity Commissioner pursuant to order dated 12.2.2021. The writ-applicant is an objector and Charity Commissioner has concluded in the order that writ-applicant has failed to make the payment and therefore Gujarat Revenue Tribunal has very limited jurisdiction when the petitioner is only objector and has not participated in the auction. The Gujarat Revenue Tribunal therefore does not have jurisdiction and cannot entertain appeal by the present petitioner. Appeal before Gujarat Revenue Tribunal would be an eye wash for the

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writ-applicant.

3.6 Mr. Rao, the learned advocate submitted that the respondent no.2 trust has in its affidavit-in-reply admitted that there is an agreement to sale and copy of the agreement to sale is produced by the Trust. In the said agreement to sale the value of the land is fixed at Rs.18,000/- and out of which Rs.13,500/- is paid by Shri Nagjibhai Shivabhai Patel. Therefore Trust was fully aware that there is agreement to sale in favour of Shri Nagjibhai Shivabhai Patel and for that Trust has recovered 75% of the value of the land and as per Shri Nagjibhai Shivabhai Patel possession of the land in question is with him.

3.7 Mr. Rao, the learned advocate submitted that the respondent no.2 has contended in his reply that writ-applicant is unable to pay the amount. That is not correct. When the auction sale came to be confirmed on 22.10.2019 and writ- applicant deposited the amount on 24.10.2019 itself. The writ- applicant has pursuant to order dated 1.3.2021 of the Hon'ble Court deposited the remaining amount of Rs.2.07 crores and interest @ 11% of Rs.23.00 lacs on 5.3.2021 within four days of the passing of the order by the Hon'ble Court.

3.8 Mr. Rao, the learned advocate submitted that the ground raised by the respondent no.1 in the affidavit in reply is that

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the trust is now fetching more amount and therefore trust is not interested to sell the property to the writ-applicant is not correct. It is settled principle of law that merely because Trust is getting more price subsequently is not a ground to cancel the auction.

3.9 In view of above submissions Mr. Rao, the learned advocate relied on the following judgments :-

(a) LPA No.547/2020 (Para-11 internal pages-17-29 of the judgment).

(b) In case of Vedica Procon Pvt. Ltd. reported in 2015(10) SCC 94 (paras-36 to 40).

(c) Bombay High Court for locus reported in 2007(3) Maharashtra Law Journal 717 Full Bench judgment of Hon'ble Bombay High Court. Para-31.

(d) 2021(1) GLR 589 in case of Mahendra Dhisalal Agarwal Vs. Gujarat Revenue Tribunal. Paras-18 to 20.

(e) 2015(13) SCC 233 Rishikiran Logistic Pvt. Ltd. Vs. Board of Trustees of Kandla Port Trust paras-25 to 29 and 37 to 40.

3.10 Mr. Rao, the learned advocate submitted that the writ- applicant is the highest bidder and the said bid by the writ- applicant was accepted by the Trust and resolution was passed to the same effect. The Charity Commissioner confirmed the sale in favour of the writ-applicant. Mr. Rao, the learned

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advocate further submitted that when there was cloud in the title of the property in view of the public advertisement given by Shri Nagjibhai Shivabhai Patel on 12.2.2020 in the Sandesh newspaper, the writ-applicant had drawn attention of the Trust with regard to the said advertisement dated 11.2.2020 by giving a notice dated 20.2.2020. However, the said notice was not replied by the Trust nor any clarification was issued. Mr. Rao, the learned advocate submitted that the writ-applicant is interested in purchasing the said property and to show his bonafide has deposited the entire amount alongwith 11% interest in accordance with the interim order passed by this Court dated 1.3.2021 with the Registry of this Court by way of Demand Draft which is produced on record.

Submissions on behalf of the Respondent No.2,2.1,2.2,2.3,2.4,2.5,2.6

4. Mr. Vishal T. Patel, the learned advocate appearing for the respondents No.2.1 to 2.6 submitted that the writ- application is not maintainable in view of the fact that the writ-applicant can avail alternative remedy by filing an appeal under Sub-Section 3 of section 36 of the Gujarat Public Trust Act within a period of 30 days and without availing the alternative remedy the writ-applicant has approached this Court.

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4.1 Mr. Patel, the learned advocate submitted that the proceedings before the learned Charity Commissioner are yet to commence and therefore the issue raised by the present writ- applicant can be agitated before the learned Charity Commissioner in the said proceedings.

4.2 Mr. Patel, the learned advocate relied on 1994 (3) SCC 552, Paragraph no. 22. 2006 (5) SCC 255, Paragraph no. 8 and

9. 2008 (3) SCC 688, Paragraph no. 8. 2011 (14) SCC 140 and submitted that the relief as prayed for by the writ-applicant in his writ-application cannot be granted by exercising extraordinary jurisdiction under Article 226 of the Constitution of India.

4.3 Mr. Patel, the learned advocate submitted that before according sanction to any of the transaction the learned Charity Commissioner can hold an enquiry in the manner deemed necessary by the learned Charity Commissioner. The writ-applicant has filed his objection before the learned Charity Commissioner agitating the grievances raised in the present writ-application and the issue is pending at large before the learned Charity Commissioner and, therefore, it is not open for the writ-applicant to avail remedies under two forum at the same time. Hence, the present writ-application is not maintainable.

4.4 Mr. Patel, the learned advocate submitted that the said

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order dated 22.10.2019 which accorded sanction in application No.36/57/2019 in favour of the present writ-applicant whose offer was the highest in the said order. The said conditions were required to be complied with strictly by the writ- applicant. The Condition no.1 obliges the writ-applicant to make remaining payment to the Trust within 4 months, i.e. on or before 22.2.2020. The Condition no.2 further provided that the execution of sale deed was to be completed after one month and within 6 months. The Condition no.7 provided that the validity of the sanction accorded will be for 6 months i.e. up to 22.4.2020. It was submitted that the writ-applicant failed to comply with condition no.1 which is mandatory in nature.

4.5 Mr. Patel, the learned advocate submitted that the writ- applicant has failed to make payment of the remaining amount within the stipulated time period as stated in the order dated 22.10.2019 while according sanction in favour of the writ- applicant and, therefore, no legal right accrued in favour of the writ-applicant. Mr. Patel, the learned advocate submitted that the newspaper advertisement dated 11.2.2020 which was published in the newspaper on behalf of Nagjibhai Shivabhai Patel states that an Agreement to Sale in favour of Nagjibhai Shivabhai Patel was dated 23.2.1988. The said agreement to sale will be of no consequences as the same was entered into without obtaining necessary permissions of the learned Charity Commissioner and hence the same is non-est.

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4.6 Mr. Patel, the learned advocate submitted that as far as the legal notices dated 20.2.2020 and 4.12.2020 which were issued by the writ-applicant to the respondent No.2 were concerned, the trustees of the trust time and again requested the writ-applicant to comply with the order passed by the learned Charity Commissioner by making the payment of the remaining amount and execute the sale deed which the writ- applicant failed to comply. Under such circumstance, since the writ-applicant did not make the payment of the remaining amount in accordance with the order dated 22.10.2019, the trustees were well within their right to apply before the learned Charity Commissioner.

4.7 Mr. Patel, the learned advocate submitted that the writ- applicant has sought directions against the respondent Trust to accept the remaining amount and further direction to the Trust to execute the sale deed in favour of the writ-applicant. He submitted that the offer by the writ-applicant made while participating in the said auction. The offer was accorded sanction subject to certain conditions. The said offer was accepted by the Trust at the relevant point of time and the Trust was also bound by the conditions imposed while according sanction. Mr. Patel, the learned advocate submitted that since the writ-applicant was unable to fulfil the conditions imposed and hence in compliance with the order the respondents were entitled to forfeit the amount deposited by the writ-applicant. It was further submitted that the writ-

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applicant was in breach of contract and on one hand submitted still praying for specific performance of the same.

4.8 Mr. Patel, the learned advocate lastly submitted that the order passed by the learned Charity Commissioner was just and proper and the learned Charity Commissioner was empowered by law to pass such order on the application made by the respondent No.2 Trust. The present writ-application is not maintainable in view of above and the writ-application deserves to be rejected as not maintainable. Mr. Patel, the learned advocate submitted that the present writ-application raises various disputed questions of fact which requires documentary evidence as well as oral evidence and jurisdiction lies with the civil court and for this reason also the writ- application is required to be rejected.

5. Heard Mr. B. T. Rao, the learned advocate appearing for the writ-applicant and Mr. Vishal T. Patel, the learned advocate appearing for the respondents No.2.1 to 2.6.

Analysis :-

6. The respondent No.2 Trust approached the office of the Charity Commissioner - respondent No.1 by filing Application No. 36/57/2019 under Section 36 of the Act seeking permission to sell the agricultural land being old tenure bearing Survey No.232/1 admeasuring 2125 sq.mtrs. Mouje : Ognaj at

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Ghatlodia, Dist. Ahmedabad. The upset price of the said land was fixed at Rs.67,00,000/. Pursuant to the said application, respondent No.1 directed respondent No.2 Trust to publish public advertisement in a newspaper in the format as approved by the Charity Commissioner i.e. respondent No.1. The said advertisement for public auction came to be published in the concerned newspaper on 20.09.2019. Pursuant to the said advertisement issued by the Charity Commissioner, the writ-applicant deposited Rs.16,75,000/- being 25% of the offered price fixed by the office of the Charity Commissioner by way of demand draft No.168707 of HDFC Bank Ltd., in favour of Ramji Mandir Trust.

6.1 The respondent No.1 under Section 36 of the Act held public auction. The writ-applicant offered Rs.2,76,00,000/- which was the highest offer and the said offer came to be accepted by the office of the Charity Commissioner i.e. respondent No.1. Accordingly by a Resolution dated 20.10.2019 passed by the Trust, the offer of the writ-applicant amounting to Rs.2,76,00,000/- came to be accepted.

6.2 After considering various aspects the Charity Commissioner granted the permission under Section 36 of the Act to the Trust to sell the land in question in favour of the writ-applicant for a sum of Rs.2,76,00,000/-. The writ-applicant

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was required to deposit the entire amount as stated above within a period of four months, 25% of which amount was to be paid within one week from the receipt of the order of the Charity Commissioner and accordingly on 24.10.2019 the writ- applicant deposited an amount of Rs.53,25,000/- in favour of the Shri Ramji Mandir Trust - respondent No.2.1.

6.3 The period of four months time for depositing the entire amount in accordance with the order passed by the Charity Commissioner dated 22.10.2019 is required to be counted from the date of the order 22.10.2019 which would expire on 21.2.2020.

6.4 After the writ-applicant deposited 25% of the amount in accordance with the order passed by the Charity Commissioner dated 22.10.2020 a public advertisement came to be issued in the daily newspaper, namely, 'Sandesh' on 11.2.2020, by one Nagjibhai Shivabhai Patel through his advocate that an Agreement to Sell (Banakhat) was executed in favour of Nagjibhai Shivabhai Patel on 23.2.1988 by the respondent No.2 Trust and from the said date Agreement to Sell the possession of the land in question is with Nagjibhai Shivabhai Patel.

6.5 Having come to the knowledge about the said notice as referred above which was duly published on 11.2.2020 the writ-applicant issued a notice to the trustees of the respondent

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No.2 - Trust on 20.2.2020 seeking title clearance of the subject land since the writ-applicant was interested in depositing the remaining amount and executing the sale deed. The said notice was duly delivered to the trustees. Since one of the trustees - Bhikhabhai had expired, the said notice was accepted by Jamnabhai one of the trustees of the Trust. Inspite of the writ-applicant's notice dated 20.02.2020 there was no response from the respondent Trust.

6.6 The writ-applicant received a letter from the respondent No.2 Trust on 10.11.2020 which stated that the amount of 25% of the amount offered by the writ-applicant towards the purchase of the land in question was forfeited by the respondent No.2 Trust in view of the resolution dated 24.10.2020.

There appears to be no resolution by the Trust, however it is a communication duly signed by the villagers. The respondent herein has not controverted the same contention taken by the writ-applicant.

6.7 The writ-applicant served notice to the respondent No.2 Trust on 4.12.2020. On receipt of the above referred communication dated 24.10.2020, a copy of which is produced on record, the writ-applicant tried to enter into oral conversation and settlement with the trustees of the respondent No.2 Trust in the interregnum period. The writ-applicant by

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letter dated 4.12.2020 stated that the resolution dated 24.10.2020 there was no discussion with regard to the Banakhat with the third party i.e. Nagjibhai Shivabhai Patel dated 23.2.1988 and the said information was withheld at the time when the writ-applicant was offered the said land for purchase through auction and further that the writ-applicant is ready and willing to pay the entire amount on furnishing the title clearance certificate by the Trust of the subject land.

6.8 The computation of the writ-applicant's networth as on 31.3.2020 as per the certificate given by Mehul Thakkar & Company - Chartered Accountant was Rs.70,06,32,082/-. The said certificate is duly produced at Annexure-A which states that the writ-applicant was possessing sufficient balance to make the remaining amount of the payment to the Trust for the purchase of the land in question.

6.9 The Trust approached the Charity Commissioner by filing fresh Application No. 36/02/2021 on 17.2.2021. The Charity Commissioner passed the order permitting the respondent No.2 Trust to issue a fresh advertisement. The order passed by the Charity Commissioner by order dated 17.2.2021 permitted public advertisement with regard to the same property with condition as indicated in the said order without mentioning that there was already a previous sale dated 22.10.2019 confirmed in favour of the writ-applicant.

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6.10 The said advertisement came to be issued in the newspaper, namely, Nav Gujarat Samachar on 21.2.2021. Being aggrieved by the said advertisement the writ-applicant is constrained to approach this Court.

6.11 The Coordinate Bench of this Court by order dated 1.3.2021 after hearing both the sides passed a detailed order by granting interim relief in favour of the writ-applicant which reads thus :-

"4. Having heard learned counsel appearing for the parties and having gone through the material placed on record, it has emerged that pursuant to the permission granted by respondent No.1 to respondent No.2 to sell the property in question, the advertisement was issued in the newspaper on 24.09.2019. The petitioner has deposited 25% of the amount offered by him. The petitioner has offered Rs.2,76,00,000/. The same offer was accepted. The petitioner was required to make payment of the remaining amount within a period of four months as per the order dated 22.10.2019 passed by respondent No.1. From the record, it is revealed that one Nagjibhai Shivabhai Patel issued public notice, a copy of which is placed on record at Page43 through his Advocate wherein he has specifically stated that the said person is having Agreement to Sell dated 23.02.1988 executed by respondent No.2 in his

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favour. In the said public notice, it has been specifically stated by Nagjibhai Shivabhai that physical possession of the land in question is with him. When the petitioner came to know about the same, the petitioner immediately issued notice to the respondents and pointed out the aforesaid aspect. It is a specific case of the petitioner that no reply was given by the respondents. Thereafter, because of the Covid19 situation, the matter could not be proceeded further. However, the petitioner thereafter once again issued a notice through his Advocate on 04.12.2020 wherein he has once again pointed out that he is interested in the land in question and he is ready and willing to pay the entire remaining amount. However, physical possession of the land be given to the petitioner. It was also pointed out that the Resolution dated 24.10.2019 passed by respondent No.2 to forfeit the amount deposited may also be set aside.

5. In the aforesaid background, it is pertinent to note that now, another application is filed by respondent No.2 under Section 36 of the Act before respondent No.1, pursuant to which, now the order dated 12.02.2021 has been passed by respondent No.1 for issuance of the advertisement in the concerned newspaper, pursuant to which, now advertisement in question has been issued.

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6. At this stage, it is required to be noted that learned advocate for respondent No.2 has not disputed the fact that Agreement to Sell has been executed by respondent No.2 in favour of Nagjibhai Shivabhai in the year 1988. At this stage, if the order dated 22.10.2019 passed by respondent No.1 is carefully seen, in Paragraph6 thereof, it is observed by respondent No.1 that there is no dispute with regard to the property in question. Thus, primafacie, it appears that respondent No.2 has not disclosed about the execution of the Agreement to Sell in favour of Nagjibhai Shivabhai in the year 1988 before respondent No.1 at the relevant point of time. The petitioner came to know about the same when the public notice was issued by the said person through his Advocate on 10.02.2020. The petitioner has, therefore, immediately issued notice through his Advocate to the respondents and asked them to give clarification about the said Agreement to Sell issued in favour of Nagjibhai Shivabhai. It was also pointed out that as per the case of the said person, he is in possession of the said property in question. The petitioner has specifically stated that explanation be given within a period of 7 days so that he can pay the remaining amount and execute the Sale Deed. It was also requested that physical possession of the property in question be given to him with title clearance. However, no reply has been filed by the respondents and now, an amount of Rs.53,25,000/ has been forfeited by respondent No.2 and once

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again the application is filed before respondent No.1 under Section 36 of the Act seeking grant of permission for sale of property in question, pursuant to which, now the order dated 12.02.2021 is passed by respondent No.1 and advertisement in question has been published in the newspaper.

7. Thus, in the facts and circumstances of the present case, this Court is of the view that the petitioner is having primafacie case in his favour. The issue involved in the present petition requires detailed hearing and till the petition is finally decided, if the interim relief as prayed for is not granted, third party right will be created in the property in question pursuant to the advertisement in question and, therefore, the petitioner will suffer irreparable loss.

8. It is also required to be noted that the learned advocate for the petitioner, under the instructions, submitted that the petitioner is ready and willing to make the payment of the remaining amount of Rs.2,07,00,000/ with interest at the rate of 11% within a period of one week from today before the Registry of this Court without prejudice to his rights and contentions and subject to the outcome of this petition.

In view of the above, issue notice returnable on 05.04.2021.

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Till the next date of hearing, interim relief in terms of Paragraph26(C) is granted.

Direct Service is permitted."

6.12 The said interim order dated 1.3.2021 came to be challenged by the respondent Trust being by filing Letters Patent Appeal No.343 of 2021 which came to be dismissed as not pressed by order dated 30.3.2021.

6.13 In view of this Court, the Charity Commissioner by order dated 17.2.2021 could not have granted the permission to the respondent No.2 - Trust for issuance of fresh advertisement for fresh auction. The Charity Commissioner ought not to have entertained such application as it was the duty of the Charity Commissioner to call for the explanation from the respondent No.2 Trust and notice ought to have been issued to the present writ-applicant as 25% of the amount of auction price of Rs.2.07 crores and Rs.23.00 lacs being approximate interest from 22.2.2020 to 1.3.2021 with the Registry of this Court being Rs.53,25,000/- as offered by the writ-applicant was already deposited by the writ-applicant by virtue of order dated 22.10.2019 passed by the Charity Commissioner in favour of the writ-applicant.

6.14 Without considering the said aspect the Charity Commissioner passed the order dated 17.2.2021 permitting the

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Trust - respondent No.2 to issue public advertisement once again. Further it is also observed by this Court that the new advertisement which was published in Nav Gujarat Samachar on 21.2.2021 also does not mention the agreement to sell which was entered into with Nagjibhai Shivabhai Patel on 22.3.1988 and that Nagjibhai Shivabhai Patel is in possession of the said property. It appears that the respondent No.2 Trust has once again tried to mislead with the Charity Commissioner

- respondent No.1.

6.15 The writ-applicant gave two notices to the respondent Trust; one dated 20.2.2020 after issuance of advertisement by Nagjibhai Shivabhai Patel through his advocate on 11.2.2020 which was published in Sandesh daily newspaper and second notice dated 4.12.2020, after receipt of the letter from the Trust on 10.11.2020 forfeiting the amount of 25% deposited by the writ-applicant with the respondent No.2 - Trust. No cognizance was taken by the Charity Commissioner while permitting issuance of the fresh advertisement by the respondent No.2 Trust. The Charity Commissioner ought not to have granted such kind of permission once again for fresh advertisement unless the earlier amount came to be refunded in view of the fact that there was no mistake on the part of the writ-applicant. The earlier trustee who expired had met the writ-applicant several times and had assured the writ-applicant that he would clear the issue of agreement to sell dated

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23.2.1988.

6.16 After issuance of public advertisement in the Nav Gujarat Samachar daily on 21.2.2021 the respondent No.2 immediately filed caveat which shows the intention of the Trust is not to fulfill their obligation and go for fresh advertisement.

6.17 The submissions advanced by Mr. Patel, the learned advocate appearing for the respondent No.2 stating that the transaction with Nagjibhai Shivabhai Patel as back as on 23.2.1988 can be said to be non est since the said transaction was without the permission of the Charity Commissioner and, therefore, the same was not required to be stated in the newspaper advertisement on 20.9.2019 and second 21.2.2021 does not appeal to this Court.

6.18 In view of this Court, it was obligatory on the part of the Trust to indicate subsisting agreement dated 23.2.1988 seeking permission under Section 36 of the Act while applying for sale Trust cannot ignore such agreement on the ground that it is null and void.

6.19. Mr. Patel, the learned advocate appearing for the respondent submitted that it is open for the writ-applicant to avail statutory remedy by filing statutory appeal under Section 36(3) of the Gujarat Public Trust and that this Court may not

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exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. The writ-application also raises various disputed questions of fact.

6.20 This Court has considered the decisions relied upon by the respondent herein.

(a)      2006 (5) SCC 255
(b)      2008 (3) SCC 688

Relying upon the said decisions submissions made by Mr. Vishal T. Patel, the learned advocate appearing for the respondent that the writ-applicant be relegated to statutory alternative remedy is not acceptable to this Court.

6.21 This Court is not inclined to relegate the writ-applicant to avail statutory alternative remedy available under Section 36(3) of the Act in view of the fact that equities are already created in favour of the writ-applicant by interim order dated 1.3.2021 and in due compliance with the said order the writ- applicant has deposited the entire amount in accordance with the order dated 1.3.2021 passed by this Court. The Court entertained the present writ-petition as the order dated 17.2.2021 passed by the Charity Commissioner was in breach of the principles of natural justice. Though there is a statutory appeal available under Section 36(3) of the Act, it is a fact that impugned order passed by the Charity Commissioner is in breach of the principles of natural justice. Merely inviting

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objection would not meet with the principles of natural justice. The writ-applicant was required to be given notice before passing the impugned order.

6.22 Placing reliance on the decision of 2011 (14) SCC 140 Mr. Patel, the learned advocate submitted that writ against the private party is not applicable. In the facts of the present case, writ is maintainable and, therefore, above referred decision is not applicable.

In view of the fact that the writ-applicant herein has challenged the order passed by the Charity Commissioner so as not to proceed further with the Application No.36/02/2021 and pursuant thereto a public advertisement came to be issued in Nav Gujarat Samachar daily dated 21.2.2021 is challenged by the writ-applicant.

6.23 It is the specific case of the writ-applicant that the Charity Commissioner passed an order dated 17.2.2021 without cancelling earlier auction and ordered reauction without giving opportunity of hearing to the writ-applicant and, therefore, the said order dated 17.2.2021 passed by the Charity Commissioner is required to be quashed and set aside. Consequently the advertisement issued in the daily newspaper, namely, Nav Gujarat Samachar dated 21.2.2021 is also required to be quashed and set aside. It is the case of the writ-applicant that

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the valuation as on the date of auction is relevant. The auction sale was conducted after wide publicity and it is not the case that there was no participation in the auction. The writ- applicant was found to be the highest bidder and the sale in his favour came to be confirmed by the Charity Commissioner. The writ-applicant has now deposited the entire sale consideration before this Court in due compliance with the order passed by the Coordinate Bench of this Court dated 1.3.2021. There is no illegality alleged in conducting the auction and the Charity Commissioner therefore could not have permitted readvertisement for holding fresh auction.

6.24 Since the Charity Commissioner has proceeded to publish advertisement and invite fresh bids without taking into consideration the previous sale confirmed by him, it is just and proper that the second advertisement inviting fresh bids requires to be quashed and cancelled.

6.26 In view of above, the public advertisement issued by the respondent No.2 Trust in Nav Gujarat Samachar daily dated 21.2.2021 pursuant to the order passed by the Charity Commissioner dated 12.2.2021 in Application No.36/02/2021 is hereby quashed and set aside. The order passed by the Charity Commissioner dated 12.2.2021 is also hereby quashed and set aside. The amount which is deposited by the writ- applicant before the Registry of this Court being Rs.2.07 crores

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and interest accrued thereon is directed to be transferred to the office of the Charity Commissioner. In view of this Court the writ-applicant has fulfilled all the terms and conditions in tune with the order passed by the Charity Commissioner dated 22.10.2019. The amount of Rs.53,25,000/- forfeited by the respondent Trust is a matter between the respondent Trust and the writ-applicant.

7. This Court is inclined to allow the writ-application to the aforesaid extent exercising its extraordinary jurisdiction under Article 226 of the Constitution of India. The present writ-application succeeds and is allowed to the aforesaid extent. The Charity Commissioner is directed to take into consideration all the above referred aspects more particularly the fact that the entire amount of Rs.2,06,00,000/- alongwith interest in accordance with the order dated 22.10.2019 passed in Application No.36/57/2019 stands deposited by the writ- applicant pending the present writ-application.

(VAIBHAVI D. NANAVATI,J) K.K. SAIYED