Gujarat High Court
Balaji Developers vs Saurashtra Rachnatmak Samiti on 4 December, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1204/2008 JUDGMENT DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1204 of 2008
In R/SPECIAL CIVIL APPLICATION NO. 29334 of 2007
With
R/SPECIAL CIVIL APPLICATION NO. 13415 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL Sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BALAJI DEVELOPERS
Versus
SAURASHTRA RACHNATMAK SAMITI & 3 other(s)
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Appearance:
MR UJAS H PATEL(11804) for the Appellant(s) No. 1
MR.ADITYA J PANDYA(6991) for the Appellant(s) No. 1
MR KM ANTANI AGP for the Respondent(s) No. 2,3
MR BHASKAR TANNA, SR. COUNSEL, ASSISTED BY MR DHIRENDRA
MEHTA(458) for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 04/12/2023
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
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The petitioner in the connected writ petition as
also the appellant in the present appeal is a bidder
who claims to be highest bidder having participated
in the proceedings of auction sale of trust
properties held on 14.12.2005.
2. Certain relevant facts to decide the controversy
on hand are noted hereinunder:-
2.1 The property in question belongs to the
respondent No.1 - Saurashtra Rachnatmak Samiti
["Trust" for short] which is admittedly a Public
Trust. An application dated 15.2.2003 had been filed
by the Trust before the Joint Charity Commissioner,
Rajkot seeking sanction of the sale of the property
in question as required under Section 36 of the
Gujarat Public Trust Act, 1950. It is stated that
necessary process was completed and the price of the
land in question had been fixed to the tune of
Rs.1,52,05,000/-. An advertisement under the
signature of the Joint Charity Commissioner was
issued. Out of four parties who had participated in
the bid, the petitioner's bid was found to be highest
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and it was settled at Rs.1,54,11,000/- by the Joint
Charity Commissioner. However, on the objection
raised by the respondent No.4 herein and one Shri
Ashokbhai Rathod, the Joint Charity Commissioner
under the order dated 29.3.2006 had refused to grant
approval to the auction sale held on 27.2.2007 on the
ground that some portion of the property in question
was occupied by certain persons who were leasee or
licensee of the Trust. A direction was issued to the
Trust to apply afresh. The order passed by the Joint
Charity Commissioner was challenged before the
Gujarat Revenue Tribunal ["Tribunal" for short] by
filing appeal No.TEN/AR/11/2006 which was rejected by
the Tribunal vide order dated 27.2.2007. A review
application filed by the Trust was also dismissed on
30.4.2007. The Special Civil Application No.2934 of
2007 challenging the order of the Tribunal had also
been rejected by this Court on 11.3.2008. The
contention in the memo of the appeal is that after
refusal of the permission or sanction of sale, the
Trust had sent a cheque No.734380 dated 5.4.2006
worth Rs.22,95,000/- drawn on ICICI Bank returning
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the amount of deposit made by the petitioner herein
under the registered letter dated 5.4.2006. The said
cheque was, however, sent back to the Trust on the
ground that the petitioner herein had also filed an
appeal bearing No.36 of 2006 before the Tribunal
against the order passed by the Joint Charity
Commissioner which was pending. It seems that a fresh
application was submitted by the Trust on 7.11.2008
under Section 36 of the Bombay Public Trust Act to
the Joint Charity Commissioner, Rajkot which was
filed on record and communication in this regard had
been issued on 27.7.2010 with the assertion that the
fresh application can be filed only after final
disposal of the present appeal which has been filed
by the petitioner herein.
2.2 In any case, from above noted facts, it is
evident that the respondent Trust has chosen not to
challenge the order passed by the learned Single
Judge of this Court in disposal of the writ petition
vide judgment and order dated 11.3.2008 with the
observation that no jurisdictional error in the order
passed by the Tribunal or the Joint Charity
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Commissioner could be pointed out.
3. The submission of the learned counsel for the
petitioner is that the petitioner had entered into an
out of Court settlement with the encroachers of the
land in question and had incurred huge expenses in
taking their consent to part away with the possession
of the property in question. With this submission, it
is argued by the leaned counsel for the petitioner
that equity lies in favour of the petitioner,
inasmuch as, the petitioner has incurred a huge sum
in the land in question bid of which was accepted in
favour of the petitioner being a highest bidder.
4. The facts remain that the petitioner / appellant
herein was merely a bidder and a bid in question
which was submitted pursuant to the auction held on
14.12.2005 had not been accepted. There was no
occasion for the petitioner to enter into any out of
Court settlement with the encroachers / third party
who were in possession of the land in question. A
perusal of the order passed by the learned Single
Judge indicates that the finding returned by the
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Joint Charity Commissioner and the Tribunal that
there were other occupants of the land in question as
leasee and licensee were not brought before the Joint
Charity Commissioner at the time of moving of the
application seeking permission to sell, is upheld by
the learned Single Judge. The submission of the
respondent Trust that it had passed a resolution for
entering into an agreement with the proposed buyer
keeping in view the right of the occupants who are
holding the property in question on the condition of
lease and license and that those occupants are not
desirous to buy the land in question, is noted in
para '9' and '10' as under:-
"9. Apart from the above, if the Charity Commissioner
has declined the proposal since there was no proper
disclosure of the rights of the third party over the land
and has observed for permitting the Trust to make afresh
proposal, such an exercise of the power by the Charity
Commissioner cannot be said as arbitrary or unreasonable.
In the same manner, if the Tribunal has not upset such
order passed by the Charity Commissioner, it cannot be
said that any error apparent on the face of the record
has been committed.
10. The Tribunal while concurring the view has
additionally made the reference of the Judgement of this
Court (Coram: S.K. Keshote, J.) in Special Civil
Application No. 1261/98. In the said judgement, the
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rights of the occupants in capacity as tenants were read
by this Court for giving an option. It is an admitted
position that no such options were given prior to the
submission of the proposal. It is true that the rights of
the person occupying on condition of leave and license
and as that of a tenant cannot be the same, but it would
be expected of the Trust to disclose all rights, if any,
of the third parties and in the event, if it submits a
proposal in a transparent manner, it would enable the
Charity Commissioner to consider the same. As rights of
the Trust is not foreclosed for all time to come and the
Trust can submit a fresh proposal even if the order
passed by the Charity Commissioner is allowed to operate,
it cannot be said that any prejudice would be caused to
the petitioner if the Trust has accepted any amount
anticipating the approval of the Charity Commissioner.
Further, as the Charity Commissioner has not granted the
approval leaving the liberty for fresh proposal, and the
petitioner Trust is required to refund the amount to the
proposed buyer, but such cannot be said as a prejudice in
the eye of law and the reason being that the Trust even
otherwise also cannot enter into the proposal to dispose
of the land without prior approval of the Charity
Commissioner as required under Section 36 of the Bombay
Public Trust Act ('the Act' for short)."
5. It was, thus, observed that as rights of the
Trust is not foreclosed for all time to come and the
Trust can submit a fresh proposal even if the order
passed by the Charity Commissioner is allowed to
operate, no prejudice can be said to have been caused
to the Trust. It is also noted by the learned Single
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Judge that delay in the litigation even if
considered, it does not operate against the interest
of the Trust. It was further noted that the Trust
cannot insist to maintain the offer which was of the
year 2002-2003 and such insistence on the part of the
Trust whose first and foremost attempt should be to
realise the maximum price, is not in the interest of
the Trust. It was further held that the Charity
Commissioner has rightly found that the rights of the
third parties in the proposal were not expressly
disclosed and therefore, merely because the hearing
is given or that right is there to purchase the land
or not, would not make much difference so far as the
legality and validity of the order passed by the
Charity Commissioner is concerned. The learned
Single Judge has, thus, refused to interfere with the
order passed by the Charity Commissioner noticing
that there was no jurisdictional error committed by
the Charity Commissioner or the Tribunal. The
observations in para '14' and '15' in the order
passed by the learned Single Judge are relevant to be
extracted hereinunder:-
"14. Apart from the above, if the fresh proposal is moved
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after inviting the fresh offers on the basis of the price
prevailing now, the matter may be required to be given a
fresh look for exercise of the power under Section 36 of
the Act which in any case cannot be undertaken by this
Court in a petition under Article 227 of the Constitution
arising from the proceedings of the lower authorities.
Therefore, such prayer on behalf of the petitioner cannot
be accepted.
15. In view of the above, it cannot be said that any
jurisdictional error is committed by the lower authority
or that there are any errors apparent on the face of
record, which may cause serious prejudice to the
petitioner Trust. Hence, no case is made out for
interference and therefore, rejected."
6. Having noted all the above facts reflected from
the record, it is more than evident that the
petitioner herein, who is merely a bidder in the
auction sale conducted on 14.12.2005, cannot be
permitted to challenge the order passed by the
learned Single Judge in refusing to accept the
contention of the Trust to enter into negotiation for
the offer which was made in the year 2002-2003.
7. The petition challenging the order of the
Charity Commissioner dated 27.2.2007 has been filed
only after dismissal of the writ petition filed by
the Trust vide judgment and order dated 11.3.2008. In
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any case, the petitioner only being a highest bidder
has no independent right to challenge the findings
returned by the Charity Commissioner in rejecting the
contention of the Trust to approve auction sale. The
appellant herein has no locus to challenge the order
passed by the learned Single Judge dated 11.3.2008 in
the intra-court appeal only on the premise that they
were party before the Tribunal and an appeal filed
by them independently had been rejected vide order
dated 27.2.2007. The fact remains that the petitioner
in the writ petition and the appellant herein had
waited for the outcome of the writ petition filed by
the Trust for a period of more than 1 year to
institute the writ petition only after the decision
of the learned Single Judge dated 11.3.2008,
dismissing the writ petition filed by the respondent
Trust. The reliance placed on the decision of the
Full Bench of the Bombay High Court in Sailesh
Developers & Anr. v. Joint Charity Commissioner,
Maharashtra & Ors. [2007 (3) Mh.L.J. 717] is wholly
misplaced, inasmuch as, the issue of locus therein
was with respect to a proposed bidder who sought to
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challenge the proceedings of auction i.e. the
decision making process of the Chairity Commissioner
in the matter of auction tender or a sale of a public
property.
8. For the fact that the petitioner had entered
into a private negotiation with the occupants of the
land in question which admittedly belongs to the
respondent Trust, no equity can lie in favour of the
petitioner.
9. For the above noted reasons, both, the writ
petition as well as the present appeal, are dismissed
being devoid of merits.
It goes without saying that for any dispute of
the petitioner / appellant with the respondent Trust,
it is open for them to initiate appropriate
proceedings before the competent Court.
Sd/-
(SUNITA AGARWAL, CJ )
Sd/-
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
