Mangalbhai Shankerbhai Patel ... vs Gujarat Revenue Tribunal
2022 Latest Caselaw 1547 Guj

      C/SCA/2054/2019                           ORDER DATED: 10/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 2054 of 2019

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     MANGALBHAI SHANKERBHAI PATEL SINCE DECEASED & 5 other(s)
                            Versus
             GUJARAT REVENUE TRIBUNAL & 2 other(s)
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Appearance:
MR VIMAL A PUROHIT ADVOCATE (5049) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5
MR NIRAV C SANGHAVI ADVOCATE (5950) for the Respondent(s) No. 3
MR KRUTIK PARIKH AGP for the Respondent State Authorities
NOTICE SERVED BY DS for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                            Date : 10/02/2022

                             ORAL ORDER

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for following reliefs:

"(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or any other appropriate writ, direction or order directing to quash and set aside the order dated 24.09.2018 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN.BA / 244 / 2017;

(B) YOUR LORDSHIP'S MAY kindly be pleased to direct the respondent authorities more particularly Resp.No.1 to take appropriate steps/proceedings under the provisions of section 88-D of Bombay Tenancy And Agriculture Land Act - 1948; (C) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of the order dated 24.09.2018 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.BA/244/2017;

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(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case;

2. Heard learned advocate Mr.Vimal Purohit for the petitioner, learned Assistant Government Pleader for Respondent Nos.1 and 2 - State Authorities and learned advocate Mr.Nirav C. Sanghvi for Respondent No.3.

3. The brief facts giving rise to the filing of the present petition are as under:

3.1 It is the case of the petitioner that an agricultural land bearing survey no.35/1/2 admeasuring 16997 sq mtr situated at Village Vasna Saiyed, Tal.Dist.Vadodara ('the land in question', for short) was cultivated by forefathers of the petitioner viz. Mangalbhai Shankerbhai Patel in the capacity of tenant and he was treated as 'protected tenant' under the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act', for short).

3.2 The aforesaid land was under the administration of Respondent No.3 trust i.e. Shree Vadodara Panjrapole Trust ('the Trust', for short) even prior to 'the Tenancy Act' came into force i.e. before 08.11.1947.

3.3 After the death of forefather of the petitioner, the father of the petitioner started cultivating the land in question and as per the case of the petitioner, the petitioners are in possession of the said land and are still

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cultivating the land in question.

3.4 The present Respondent No.3 applied for certificate exemption as provided under Section 88B of the Act before the Deputy Collector, Vadodara under Sub-rule (1) of Rule 52 of 'the Tenancy Act' and upon such application, the Deputy Collector, Vadodara vide order dated 28.03.1959 granted certificate for eligibility of a trust for exemption under Section 88B of 'the Tenancy Act' in favour of Respondent No.3. (In the order, instead of 'Deputy Collector, Vadodara', it is stated as 'Deputy Collector, Baroda'. However, for the convenience, we may prefer it to be as 'Deputy Collector, Vadodara').

3.5 As per the certificate, the lands which were exempted and held by the trust were stated in a schedule and land in question also is one of the lands, which was exempted vide certificate dated 28.03.1959 issued by the Deputy Collector, Vadodara in favour of the trust under Section 88B of 'the Tenancy Act'. The aforesaid certificate dated 28.03.1959 is still in operation.

3.6 As per the case of the petitioner, in the meantime, the Revenue Department granted exemption to the petitioner under the provisions of Section 20(1) of the Urban Land Ceiling Act vide permission dated 06.10.1988 and in the aforesaid permission the land in question also was exempted along with other lands mentioned in the order. The petitioner has obtained loan also on the land in

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question from the Bank and revenue entries were also mutated to that effect. In short, the petitioner made an attempt to establish that ever since 1940's since the time of their forefathers, the petitioners are in possession of the land in question and they are cultivating the land in question.

3.7 It is the case of the petitioner that the petitioners drew attention of the Mamlatdar & ALT, Vadodara City (West) the fact that the trust is not being administrated properly and there are complaints against the functioning of the trust. The petitioners also drew attention of the Mamlatdar & ALT, Vadodara City (West) that there are FIRs lodged against the trustees / administrators of the trust and also furnished certain newspaper cuttings to the Mamlatdar & ALT, Vadodara City (West). Though not stated in the petition, but from the record it transpires that the petitioner made an online application about the mismanagement of the trust and hence prayed that the certificate issued in favour of Respondent No.3 trust under Section 88B of 'the Tenancy Act' be cancelled by exercising powers under Section 88D of 'the Tenancy Act' and thereafter by virtue of Section 32G of 'the Tenancy Act' the price of the land in question be determined and land be given back to the petitioner on payment of purchase price determined by the Collector as per Section 32G of 'the Tenancy Act' and the land may be given to the petitioner.

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3.8 As the office of Honourable the Chief Minister received aforesaid complaint submitted online by the petitioner, the office of Honourable the Chief Minister forwarded the same to the Revenue Department and the Collector, Vadodara and Collector, Vadodara ultimately forwarded the papers to the Mamlatdar & ALT, Vadodara City (West) and pursuant to that Mamlatdar & ALT, Vadodara City (West) submitted report on 09.11.2016 to the Deputy Collector, Vadodara whereby he stated that the trust has given notice for title clearance for selling the trust land which shows that the trustees are now trying to sell trust property and on the basis of newspaper cuttings, he is of the view that the trustees of the trust have utilized the trust money / property for their personal gain and thereby they have misused the exemption given in favour of trust. The Mamlatdar & ALT, Vadodara City (West) further opined that in view of opinion that he has formed, it is necessary that after hearing both the parties, the exemption to the Respondent No.3 under Section 88B of 'the Tenancy Act; is required to be withdrawn and thereafter after initiating proceedings under Section 32G of 'the Tenancy Act', after determining the purchase price of the land in question, the land may be given to the present petitioner.

3.9 The aforesaid report was submitted by Mamlatdar & ALT, Vadodara City (West) on 09.11.2016. Thereafter once again another report was submitted by Mamlatdar & ALT Vadodara City (West) to the Deputy Collector (Land

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Reforms) Vadodara wherein he has stated that he has already called for the report from the office of the Charity Commissioner about alleged mismanagement of trust properties which he has not received. However, there is an FIR lodged against the trustees of the trust about misappropriation of the trust funds and cheating coupled with the fact that the trustees have given advertisement for sell of the trust land in a Gujarati daily on 08.02.2007 which indicates that trustees are trying to sell the trust land and hence the object for which the trust was created is not being fulfilled and hence Respondent No.3 has violated the conditions of the certificate of exemption granted to it under Section 88B of 'the Tenancy Act' prima-facie and, therefore, the exemption granted to the trust under Section 88B of 'the Tenancy Act' is required to be withdrawn by exercising powers under Section 88D of 'the Tenancy Act'.

3.10 After submission of both these reports dated 09.11.2016 and 12.05.2017, the petitioner preferred Revision Application before the Gujarat Revenue Tribunal under Section 76 of 'the Tenancy Act' and in that Revision Application he prayed for cancellation of certificate dated 28.03.1959 issued by the Deputy Collector, Vadodara under Section 88B of the 'Tenancy Act' in favour of Respondent No.3 in respect of the land bearing survey no.35/1/2 only and further prayed for a direction that by initiating the proceedings under Section 32G of 'the Tenancy Act' the price of the land in question may be

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directed to be determined and thereafter necessary certificate under Section 32H of 'the Tenancy Act' be issued in favour of petitioners. The aforesaid Revision Application was preferred on 13.12.2017. As by way of the aforesaid application, the petitioner was challenging the certificate granting exemption in favour of Respondent No.3 under Section 88B of the Tenancy Act on 28.03.1959, the said application was accompanied by an application for condonation of delay wherein the petitioner has prayed for condonation of delay of 58 years and 06 months.

3.11 In the Revision Application, the main contention of the petitioner was two-fold;

(i) while issuing certificate exempting the trust under the provisions of Section 88B of 'the Tenancy Act', the father of the petitioner was not heard and, therefore, there was violation of principles of natural justice; and

(ii) that by taking note of the reports of the Mamlatdar & ALT, Vadodara City (West), which are referred to in forgoing paras, as the trust is being mismanaged to withdraw the certificate granted under Section 88B of 'the Tenancy Act' by exercising powers under Section 88D of 'the Tenancy Act'.

3.12 Ultimately the Gujarat Revenue Tribunal heard the advocates of the petitioner as well as the respondents in

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the Revision Application preferred by the petitioner, which was numbered as TEN / BA / 244 / 2017 and vide order dated 24.09.2018 passed an order below application for condonation of delay and rejected the application for condonation of delay of 58 years and 06 months preferred by the petitioner.

3.13 It is that order dated 24.09.2018 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN / BA / 244 / 2017 preferred by the petitioner which is under challenge by way of this petition along with a further prayer to direct the respondent authorities, more particularly, Respondent No.1 to take appropriate steps to initiate proceedings under Section 88D of 'the Tenancy Act'.

4. Heard learned advocate Mr.Vimal Purohit for the petitioner.

4.1 Mr.Purohit drew attention of the Court to the reports submitted by Mamlatdar & ALT, Vadodara City (West) i.e. dated 09.11.2016 and 12.05.2017 and stated that twice the Mamlatdar & ALT, Vadodara City (West) has formed an opinion that trust is being mismanaged and the trust is not functioning in a way and for the purpose for which the same was created.

4.2 The trust properties are being misused by trustees of the trust for their personal gain and hence this is a fit case for exercise of powers under Section 88D of the

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Tenancy Act. He further submitted that the Gujarat Revenue Tribunal has committed a grave error by not condoning the delay of 58 years and 06 months as the Gujarat Revenue Tribunal has completely ignored the fact that the order dated 28.03.1959 whereby exemption was granted to Respondent No.3 - Trust under Section 88B of 'the Tenancy Act' was passed without hearing the father of the petitioner and hence since aforesaid order granting exemption under Section 88B of 'the Tenancy Act' was passed in gross violation of principles of natural justice, the delay of 58 years and 06 months would not come in way of the petitioner and hence the Gujarat Revenue Tribunal has committed an error by not condoning the delay of 58 years and 06 months.

4.3 Learned advocate Mr.Purohit also relied upon two judgments of Bombay High Court which are annexed with the petition i.e. in the case of Yadu Dagadu Amrale (Deceased through his L RS) vs. Shriram Samarth Wasudev Swami Math Kanheri reported in 2005 LawSuit (Bom) 483 and in the case of Keraba Dattu Borachate vs. Sheshashai and Vishnu Trust reported in 1990 LawSuit (Bom) 244. Learned advocate Mr.Purohit submitted that the case of the present petitioner is required to be considered in light to these two judgments as the petitioners are in possession of the land since last more than 70 years and much prior to the tillers day, they are declared as 'permanent tenant' and they are in possession of the land and even cultivating the land today

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also and, therefore, as the exemption certificate issued under Section 88B of 'the Tenancy Act' in favour of Respondent No.3 without hearing the petitioners coupled with the fact that the trust is being mismanaged by the trustees, aforesaid certificate is required to be withdrawn / cancelled and, therefore, the impugned order dated 24.09.2018 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN / BA/ 244 of 2017 is required to be quashed and set aside and directions are requires to be issued to the Respondent No.1 to initiate proceedings for exercise of powers under Section 88D of 'the Tenancy Act'.

5.1 As against that, learned advocate Mr.Nirav C. Sanghvi for the Respondent No.3 - Trust submitted that the Gujarat Revenue Tribunal has rightly rejected the Revision Application preferred by the petitioner which was preferred after delay of 58 years and 06 months. The petitioner has not explained the delay of 58 years and 06 months convincingly and merely because the Mamlatdar and ALT, Vadodara City (West) has submitted the reports whereby he has, prima facie, formed opinion that the Trust is being mismanaged and trustees are trying to dispose of the trust property, such contention cannot be believed. No proceedings under Section 88D of 'the Tenancy Act' can be initiated on the basis of the reports submitted by Mamlatdar & ALT, Vadodara City (West).

5.2 Learned advocate Mr.Sanghvi submitted that

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whether trust property is managed properly or is being mismanaged is a question to be determined by the Charity Commissioner after conducting proper inquiry. The Bombay Public Trusts Act, 1950 bars the jurisdiction of even Civil Courts in respect of disputes relate to trust and trust properties and, therefore, only the Charity Commissioner has the power and jurisdiction to conduct an inquiry in this regard and to arrive at a conclusion that trust properties are mismanaged and, therefore, no such action under the provisions of Section 88D of 'the Tenancy Act' can be initiated on the basis of report of Mamlatdar & ALT. The Mamlatdar & ALT, Vadodara City (West) has no business to carry out any inquiry in respect of management of the Trust.

5.3 Learned advocate Mr.Sanghvi further submitted that it is categorically stated by the Mamlatdar & ALT, Vadodara City (West) in his report dated 12.05.2017 that a report about whether trust is being managed properly or not was called for from the office of the Charity Commissioner, however, in the report itself Mamlatdar & ALT, Vadodara City (West) has stated that aforesaid report was not received by the Mamalatdar & ALT, Vadodara City (West). Once the Mamlatdar & ALT, Vadodara City (West) has called for the aforesaid report, he could have waited for that report to come. The opinion formed by Mamlatdar & ALT, Vadodara City (West) is formed only on the basis of material provided by the petitioner which is in the form of FIR and some

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newspaper cuttings and, therefore, that cannot be said to be a valid basis to form an opinion about the functioning of the trust. Only a report of Charity Commissioner based upon the inquiry carried out by the Charity Commissioner can be said to be a valid report which can be relied upon by the authority while initiating proceedings under Section 88D of 'the Tenancy Act' or recommending such proceedings.

5.4 Learned advocate Mr.Sanghvi submitted that merely because the advertisement is given in the newspaper for title clearance in respect of some of the trust properties with an intention to sell, would not mean that trust properties are being mismanaged. Even the Bombay Public Trust Act, 1950 provides for disposal of the trust property after prior permission of the Charity Commissioner. The submission of mismanagement of trust can be believed only in case if trustees of the trust are convicted by any competent Court of law in relation to any complaint about mismanagement about trust properties and not on the basis of First Information Report. Merely because an advertisement is published in the newspaper for title clearance with an intention to sell the trust properties, it cannot be presumed that trust properties are being sold contrary to provisions of law.

5.5 Learned advocate Mr.Sanghvi submitted that in fact the petition is preferred with mala fide intention as land price has been escalated. The petitioner has

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preferred an application under Section 32G of 'the Tenancy Act' for determination of purchase price of the land, however, since exemption to the Trust under Section 88B of 'the Tenancy Act' is in operation, no proceedings under Section 32G of 'the Tenancy Act' could be initiated unless such exemption is cancelled / withdrawn by exercising powers under Section 88D of 'the Tenancy Act' and as the aforesaid case which was numbered as Case No.316 of 2014 has been put into abeyance as the Mamlatdar & ALT, Vadodara City (West) who does not have powers to carry out proceedings under Section 32G of 'the Tenancy Act', the petitioner with a view to become the owner of the land in question started alleging the mismanagement of the trust property. He drew attention of this Court to the report submitted by the Mamlatdar & ALT, Vadodara City (West) dated 09.11.2016 wherein there is a reference about Case No.316 of 2014 preferred by one Vijaykumar Pandya and that the aforesaid case has been put into abeyance.

5.6 Learned advocate Mr.Sanghvi submitted that today the petitioner has no locus to ask for the land in question as the right of the petitioners in respect of the land in question would accrue only once the certificate under Section 88B of ' the Tenancy Act' is cancelled or withdrawn by the competent authority and today when the certificate is very much in existence, the petitioner cannot prefer any application for determination of price of the land in question under Section 32G of ' the

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Tenancy Act' and cannot ask for initiation of any proceeding under Section 88D of ' the Tenancy Act'.

5.7 By making aforesaid submissions, learned advocate Mr.Sanghvi for the Respondent No.3 - Trust has prayed for dismissal of this petition with cost.

6.1 Learned Assistant Government Pleader Mr.Krutik Parikh defended the order passed by the Gujarat Revenue Tribunal which is impugned in this petition by supporting the same and submitted that the order passed by the Gujarat Revenue Tribunal is well reasoned order and the Gujarat Revenue Tribunal has rightly rejected the delay condonation application preferred by the petitioner after delay of of 58 years and 06 months. He submitted that all throughout as canvassed by the petitioner that he was in possession of the land in question and were cultivating the land, the petitioner could have challenged the aforesaid order dated 28.03.1959 immediately after the said order was passed. No evidence is produced by the petitioner to substantiate his claim that father of the petitioner was not heard.

6.2 Learned Assistant Government Pleader drew attention of this Court to the order dated 28.03.1959 and pointed out that Deputy Collector, Baroda has reached subjective satisfaction after holding inquiry under Subsection (2) of Section 88B of the Tenancy Act and thereafter issued such certificate in favour of Respondent

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No.3 and therefore, the Gujarat Revenue Tribunal has rightly rejected the revision preferred by the petitioner on the ground of delay of 58 years and 06 months.

7.1 Having heard learned advocates for the respective parties and having perused the material available on record, what can be seen is that the petitioners are 'protected tenants' in respect of the land in question which was purchased by the Respondent No.3 - Trust and the aforesaid position was in existence even prior to the date on which Act came into force. The certificate of exemption dated 28.03.1959 was issued by the Deputy Collector, Baroda under Section 88B of 'the Tenancy Act' after holding the inquiry as prescribed under sub-section (2) of 88B of 'the Tenancy Act'. On perusal of Revision Application preferred by the petitioner, it seems that the petitioner has mainly challenged the aforesaid certificate issued under Section 88B of 'the Tenancy Act' on the ground of violation of principles of natural justice as the father of the petitioner was not heard and also on the ground of mismanagement of the trust property.

7.2 As far as the violation of principles of natural justice is concerned, the order dated 28.03.1959 itself suggests that the Deputy Collector, Baroda has carried out the inquiry as required under sub-section (2) of Section 88B of 'the Tenancy Act' and hence it was for the petitioner to point out that father of the petitioner was not heard by placing on record some cogent and

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convincing evidence including the documentary evidence to that effect. The petitioner has not produced any such material on record. Further, when the order was passed in the year 1959, the father of the petitioner was alive. There is nothing on record to indicate that when the father of the petitioner expired and why during his lifetime the father of the petitioner did not challenge the aforesaid order dated 28.03.1959 whereby exemption under Section 88B of 'the Tenancy Act' was granted in favour of Respondent No.3. In absence of any such material, the Tribunal has rightly rejected the application of the petitioner for condonation of delay of 58 years and 06 months by assigning cogent and convincing reasons.

7.3 Insofar as the petitioner's submission in respect of mismanagement of trust is concerned, it is rightly contended by learned advocate Mr.Sanghvi for the Respondent No.3 that whether a trust is managed properly or not is a question of determination which would fall within the domain of Charity Commissioner. The Mamlatdar & ALT, Vadodara City (West) has formed an opinion on his own, however, without there being any jurisdiction or basis for forming such opinion. The Mamlatdar & ALT, Vadodara City (West) formed opinion only on the basis of registration of newspaper cuttings which cannot be said to be any convincing material for forming such opinion. What is shocking is the fact that though the Mamlatdar & ALT, Vadodara City (West) called for a report from the Charity Commissioner, even

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before the report of the Charity Commissioner could reach to the Mamlatdar & ALT, Vadodra City (West), by way of two separate reports dated 09.11.2016 and 12.05.2017, twice the Mamlatdar & ALT, Vadodara City (West) formed the opinion that Respondent No.3 trust has committed some irregularities and therefore trust is not being managed properly and, therefore, proceedings under Section 88D of 'the Tenancy Act' required to be initiated. In fact, in absence of any material or findings to the effect that the Trust is not managed properly by way of an order of the Charity Commissioner on the basis of inquiry, Mamlatdar & ALT, Vadodara City (West), on his own, cannot form such opinion in respect of the trust property as the affairs of the public trust are governed by the provisions of the Bombay Public Trust Act, 1950 and, therefore, it is for the Charity Commissioner to exercise powers under appropriate sections including sections 41 and 41A of the Bombay Public Trust Act, 1950 after holding inquiry and to form an opinion about the management of the trust properties.

7.4 Once the certificate of exemption under Section 88B of 'the Tenancy Act' is issued in favour of Respondent No.3 - Trust, it is out of the scope and jurisdiction of the Mamlatdar & ALT, Vadodara City (West) to determine such issue without there being any material in the form of report of Charity Commissioner on the basis of inquiry to the effect that the trust property is not being managed

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properly. The authority can form an opinion that exemption granted under Section 88B of 'the Tenancy Act' is required to be withdrawn only on the basis of such report and not otherwise. In fact, when the certificate of exemption under Section 88B of 'the Tenancy Act' is issued by the Collector or Deputy Collector and authority inferior to that authority cannot carry out or order any such inquiry and hence it is only for the State Government to decide on the basis of material available whether to withdraw the exemption granted under Section 88B of 'the Tenancy Act' or not. Therefore, the Tribunal has rightly rejected the application of the petitioner by not condoning the delay.

7.5 As far as those judgments cited by learned advocate for the petitioner is concerned, both those judgments deal with the peculiar situation under which the certificate under Section 88B of 'the Tenancy Act' was granted to the trust and, therefore, considering those circumstances the Court thought it fit to cancel the certificate of exemption whereas facts on hand are totally different.

In the instant case, the this Court cannot lose sight to the fact that there is a delay of 58 years and 06 months and also to the fact that any mismanagement of the trust has not been believed by the Charity Commissioner. In fact, there was no occasion to consider the report of Charity Commissioner which was called for by the

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Mamlatdar & ALT, Vadodara City (West) and hence the judgments cited by the petitioner would not help the petitioners.

8. In view of the aforesaid discussion, as the petitioner's prayer is two-folds whereby the petitioner has challenged the order dated 24.09.2018 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/ 244 of 2017 which is rejected on the ground of delay and as the second prayer is to direct the authority to initiate the proceedings under Section 88D of 'the Tenancy Act', this Court was constrained to go into the merits of the matter rather then limiting findings of this Court about the aspect of limitation. As this Court is satisfied that neither on the ground of limitation nor on merit any of the submission of the petitioner can be accepted, in view of discussion hereinabove, present petition deserves to be dismissed. Accordingly, the present petition is dismissed. Notice is discharged. No order as to costs.

(NIRZAR S. DESAI,J) MISHRA AMIT V.