Adamji Haji Daud Medical & ... vs State Of Gujarat Through ...
2023 Latest Caselaw 6953 Guj

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    C/SCA/6876/2011                            JUDGMENT DATED: 21/09/2023

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
         R/SPECIAL CIVIL APPLICATION NO. 6876 of 2011
                             WITH
         R/SPECIAL CIVIL APPLICATION NO. 10884 of 2012

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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1    Whether Reporters of Local Papers may be                       NO
     allowed to see the judgment ?

2    To be referred to the Reporter or not ?                        NO

3    Whether their Lordships wish to see the fair                   NO
     copy 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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ADAMJI HAJI DAUD MEDICAL & EDUCATION TRUST THROUGH
                               POA
                             Versus
 STATE OF GUJARAT THROUGH REHABILITATION OFFICER & 8
                             other(s)
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APPEARANCE IN SCA NO.6876 OF 2011:
MR AS ASTHAVADI(3698) for the Petitioner(s) No. 1
MR. K.M. ANTANI, AGP for the Respondent(s) No. 1
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 7
RULE SERVED for the Respondent(s) No. 2,3,4,5,6,8
MR. M.R. BHATT, SENIOR COUNSEL ASSISTED BY MR. VIJAY H
PATEL(7361) for the Respondent(s) No. 9


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     C/SCA/6876/2011                             JUDGMENT DATED: 21/09/2023

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APPEARANCE IN SCA NO.10884 OF 2012:
MR. M.R. BHATT, SENIOR COUNSEL ASSISTED BY VIJAY H
PATEL(7361) for the Petitioner(s) No. 1
MR. K.M. ANTANI, Agp for the Respondent(s) No. 2,3,4
MR AS ASTHAVADI(3698) for the Respondent(s) No. 5
MR VIJAY H NANGESH(3981) for the Respondent(s) No. 9
MR VIMAL A PUROHIT(5049) for the Respondent(s) No. 10
MR. AAMIR S PATHAN(7142) for the Respondent(s) No. 8
RULE NOT RECD BACK for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 6,7
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 CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                            Date : 21/09/2023

                       COMMON ORAL JUDGMENT

1. The petitioners in both the petitions i.e. Special Civil

Application No. 6876 of 2011 and Special Civil Application No.

10884 of 2012 have challenged the same order dated 29.04.2011

passed by the Collector in Appeal Case No. 58 of 2007-08,

considering the fact that the petition being SCA No. 6876 of 2011 is

filed by the Trust and SCA No. 10884 of 2012 is instituted by the

subsequent purchaser - Nirman Estate Developers, being the highest

bidder and having paid Rs.86,25,000/- to the respondent no.1 -

Trust on 04.03.2006 and a demand draft of Rs.48,00,000/- has also

been deposited in the office of the Charity Commissioner for the

purpose of entrustment of the said amount to the Trust and

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accordingly, the petitioner of SCA No. 10884 of 2012 has deposited

Rs.1,34,25,000/- i.e. 15% of the amount. pursuant to the permission

granted by the Charity Commissioner, Rajkot vide order dated

07.05.2009 under Section 36 of the Bombay Public Trusts Act in

Application No. 36/59/98. Therefore, the present common order is

passed and the facts is taken from Special Civil Application No.

6876 of 2011.

2. Heard Mr. A.S. Asthavadi, learned advocate appearing

for the petitioner, Mr. M.R. Bhatt, learned senior counsel assisted

by Mr. Vijay Patel, learned advocate appearing for the respondent

No.9 and Mr. K.M. Antani, learned Assistant Government Pleader

appearing for the respondent - State in Special Civil Application

No. 6876 of 2011. Mr. M.R. Bhatt, learned senior counsel assisted

by Mr. Vijay Patel, learned advocate appearing for the petitioner,

Mr. A.S. Asthavadi, learned advocate appearing for the respondent

No.5 and Mr. K.M. Antani, learned Assistant Government Pleader

appearing for the respondent - State in Special Civil Application

No. 10884 of 2012.

3. By way of the petition being Special Civil Application

No. 6876 of 2011, the petitioner has prayed for the following

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reliefs:

"(a) Your lordships may be pleased to quash and set aside the impugned order dt.29/4/2011 passed by learned collector in Land/ APPEAL/Case No.58 of 07-08 in the interest of justice.

(b) During the pendency and final hearing of this petition, Your lordships may be pleased to stay the implementation and operation of the impugned order dt.29/4/2011 passed by learned collector in Land/APPEAL/Case No.58 of 07-08 in the interest of justice.

(C) Such other and further relief as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the applicants."

4. By way of the petition being Special Civil Application

No. 10884 of 2012, the petitioner has prayed for the following

reliefs:

"(A) THIS HONOURABLE COURT may be pleased to admit and allow this petition;

(B) THIS HONOURABLE COURT may be pleased to issue a writ of certiorari or any other appropriate writ, order and/or directions and may be pleased to quash and set aside the order dated 29.4.2011 passed by the learned Collector in Appeal Case No. 58 of 2007-08 and permit the party to proceed further with the order of the Joint Charity Commissioner passed under Section 36 of the Bombay Public Trust Act;

(C) PENDING HEARING AND FINAL DISPOSAL OF THIS PETITION, this Honourable Court may be pleased to stay the execution, implementation and the operation of the order dated 29.4.2011 passed by the learned Collector in Appeal Case No.58 of 2007-08 (Annexure-A);

(D) Be pleased to pass such other and further relief that is just, fit and expedient in the facts and circumstances of the case."

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5. By way of the present petition, the petitioner herein has

challenged the impugned order dated 29.04.2011 passed by the

Collector, Rajkot in Land/ Appeal No. 58 of 2007-08, wherein, it

was held that the entire land admeasuring 71390 sq.yard is evacuee

property and consequential entry being mutated accordingly. Being

aggrieved by the impugned order, the petitioner is constrained to

approach this Court seeking the relief as stated herein-above.

6. The brief facts leading to the filing of the present

petition i.e. Special Civil Application No. 6876 of 2011 reads thus:

6.1. The land in dispute is the property of Sir Adamji Haji

Daud Medical & Education Trust - petitioner herein. The subject

property was originally purchased by Fatmabai Haji Abdulla

Bawani, w/o. Memon Mohammad Haji Abdulla Bawani on

01.11.1921 for consideration of Rs.4461.14/- and the said amount

was deposited by the purchaser with the Talati, Jetpur on

24.09.1921 admeasuring 71390 sq.yards. The said land was sold by

the erstwhile State to the purchaser- Fatmabai without any

consideration. The sale document to that effect was entered between

the purchaser and the State.

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6.2. The aforesaid land was purchased by Memon Sheth

Adamji Haji Daud for consideration of Rs.15,000/- from Fatmabai

Haji Abdulla on 16.11.1925. Out of the said land, 9323 sq.yards of

land was kept aside for his personal use by Shri Adamji and 62067

sq.yards of land for the purpose of Hospital (9323 sq.yards was

subsequently also gifted as per the Momedian Law to the petitioner

Trust). In view thereof, 2 separate documents were made in the

erstwhile Kathadwala State trasferring the said piece of land in the

name of Sheth Adamji Haji Daud mentioning that the land

admeasuring 9323 sq.yards is for the personal use of Sheth Adamji

and land admeasuring 62067 sq.yards of land is for the purpose of

Hospital. The aforesaid documents came to be made with the

erstwhile Kathadwala State on 27.07.1927.

6.3. On 27.07.1930, Sanad came to be issued stating that

the land admeasuring 62067 sq.yards was purchased for the purpose

of setting up a Hospital as the evacuee had settled a Trust for the

said purpose. On 19.12.1940, the petitioner Trust came to be

registered as Society in the year 1940 under the Societies

Registration Act, 1860 with an object for the purpose of managing

the Hospital (Pg.59).

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6.4. On 08.06.1953, the Collector directed the Assistant

Custodian to take possession of all the properties belonging to

evacuee person except the property belonging to Trust. In due

compliance thereof, the Assistant Custodian issued a declaration on

24.06.1953 that the property i.e. except land admeasuring 62067

sq.yards. of Sir Adamji Haji Daud was declared as evacuee

property. On 07.05.1954, as per Section 7 of the Administration of

Evacuee Property Act, 1950 (hereinafter referred to as 'the EP Act,

1950' for the sake of brevity), no property can be declared to be

evacuee property on or after 07.05.1954. As on 07.05.1954, no

proceedings were pending with respect to 62067 sq.yards.

6.5. On 19.06.1956, the Assistant Custodian addressed a

letter to the petitioner Trust stating that since the property of Sir

Adamji Haji Daud declared has been as evacuee, even the trust

properties are to be managed by the custodian. On 31.08.1956, the

Assistant Custodian directed to surrender the possession of Hajin

Daud Hospital and Sir Adamji Muslim High School under the

provision of EP Act, 1950. On 30.11.1956, the Additional Custodian

of Evacuee Property addressed a letter dated 30.11.1956 to the

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Collector and Deputy Custodian, Rajkot to decide the claim of Sir

Adamji that the property of Hospital and Muslim High School has

been transferred to the petitioner Trust. On 16.01.1957, the

petitioner Trust preferred the appeal against the said order dated

19.06.1956, however, the same came to be returned by the

Additional Custodian with an observation that the appeal was

already pending with another Additional Custodian.

6.6. On 05.05.1957, the Collector vide detailed opinion held

that the evacuee person had orally gifted the disputed property and

since more than 12 years, the Trust is in possession of the disputed

property. It was held that the disputed property belongs to the

Trust, and therefore, cannot be declared as evacuee property.

6.7. On 13.12.1957, the Ministry of Rehabilitation and

Minority Affairs informed the Minister of Revenue that the subject

land property could not be declared as evacuee, the cause of action

having been arose after 07.05.1954 and the property involved is a

Trust property, a request has been made to the Custodian General

to hand over the property belonging to the petitioner Trust. On

31.01.1958, the appeal against the order dated 16.01.1957 came to

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be allowed by Deputy Custodian holding that the Trust property

could not be treated as evacuee property.

6.8. On 24.03.1958, the possession of the property was

handed over to the petitioner Trust by Assistant Custodian of

Evacuee Property. By communication dated 09.05.1970 (Pg.61) and

09.10.1970 (Pg.81), vide the said order, upon the property

belonging to the trust, rent came to be imposed by the Enquiry

Officer, City Survey, Jetpur. On 15.03.1973, the then trustee of the

petitioner Trust sought permission to sell the property to the tune

of 17888 sq.yards under Section 36 of the Bombay Public Trusts

Act, 1950. On 31.08.1976, the petitioner trust's application seeking

permission to sell the property came to be granted by the Charity

Commissioner (Pg.193).

6.9. The Collector quashed and set aside the order dated

09.05.1970 / 09.10.1970 by order dated 09.10.1978 and remanded

the matter back to the file of Enquiry Officer, City Survey, Jetpur,

relating to the rent in Revision Application No. 83 of 1978. On

12.08.1981, in the remand proceedings, the City Survey

Superintendent, Jetpur held that the land to the extent of 9323

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sq.yards only as evacuee property and no dispute with regard to the

land admeasuring 62067 sq.yards in Land Revision No. 83 of 1978.

The said order dated 12.08.1981 came to be challenged by the

Deputy Collector by filing Survey Appeal No. 98 of 1981, which

came to be dismissed by order dated 30.12.1981, in view thereof

the balance land i.e. 62067 sq.yards is of the ownership of the

Trust. On 30.08.1982, the petitioner Trust being aggrieved by the

said order passed by the Deputy Collector preferred Appeal before

the Collector, Rajkot being Land Appeal No. 26 of 1982 under

Section 203 of the Bombay Land Revenue Code. The said appeal

came to be rejected, whereby, it was held that the petitioner Trust

failed to adduce evidence that the land admeasuring 9323 sq.yards

of land belongs to Trust. The Collector also directed the

rehabilitation officer to take appropriate action under the Act.

6.10. On 14.07.1983, the Deputy Custodian was pleased to

hold that an area being 6636 sq.meters of land is an evacuee

property and therefore the same must be taken possession under the

Displaced Persons (Compensation and Rehabilitation) Act, 1954. On

13.11.1984, the petitioner Trust preferred Third Appeal before the

Gujarat Revenue Tribunal being Appeal No. 103 of 1982, which

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came to be allowed and it was held that the proceedings under the

Bombay Land Revenue Code could not have been taken under the

EP Act and the said proceedings have attained finality. On

07.02.1984, the petitioner Trust, aggrieved by the order dated

14.07.1983, preferred Appeal before the Authorized Custodian

General and Deputy Secretary to Government challenging the order

dated 14.07.1983. By order dated 07.01.1984, the Custodian General

has granted status-quo.

6.11. On 05.03.1988, the petitioner Trust applied for

permission under Section 36 of the Bombay Public Trust Act, 1950

seeking permission of sale the property being land admeasuring

62067 sq.yards being Application No. 36/59/98. On 19.07.2005, the

proceedings under Section 36 of the Bombay Public Trust Act,

1950, the respondent no.1 informed the Charity Commissioner that

the land admeasuring 6636 sq.meter is declared as evacuee property

and vests with the government. On 29.07.2005, the Rehabilitation

Office issued a letter stating that the entire property of the

petitioner Trust is to be taken as evacuee property and necessary

entry to that effect has to be entered. Based on the aforesaid letter

dated 29.07.2005, the Entry No. 762 dated 04.08.2005 came to be

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posted as evacuee properties. The objector was also issued notice

regarding the mutation entry. On 09.08.2005, the petitioner trust

addressed a letter to the respondent no.2 that the issue with regard

to evacuee property admeasuring 6636 sq.yards was pending before

authorized custodian (Pg.147).

6.12. On 16.01.2007, the Joint Secretary, Government of

Gujarat informed the petitioner Trust that since the Evacuee

Property Act has been repealed, no proceedings were to be

continued with respect to the Appeal dated 03.08.1983 relating to

the land admeasuring 6636 sq.meters (Pg.90). On 07.02.20007, the

Collector, RO Branch informed the Charity Commissioner not to

auction the land admeasuring 6636 sq.yard of land as the same

vests with the government. On 11.05.2007, the petitioner Trust

preferred a petition before this Court being Special Civil Application

No. 10742 of 2007, wherein, the order dated 14.07.1983 came to

be stayed.

6.13. On 10.09.2007, the Collector, Rajkot indicated that only

the land to the extent of 6636 sq.yards is declared as evacuee

property and that the remaining trust land is not declared as

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evacuee. On 17.09.2007, the petitioner Trust being aggrieved by the

mutation of entry preferred appeal before the Deputy Collector,

Gondal, which came to be allowed, wherein, the mutation entry to

the extent of 62067 sq.yards of land be deleted. On 07.05.2009, the

Charity Commissioner by a detailed order permitted the sale of land

admeasuring 62067 sq.yard of land to the respondent no.10 -

Nirman Estate Developers. On 12.05.2009, the Charity Commissioner

passed detailed order permitting selling the property to the

respondent no.10- Nirman Estate Developers for an amount of

Rs.8,95,00,000/-. The impugned order passed by the respondent

Collector, in relation to the City Survey proceedings, holds the

entire land as evacuee property and consequential entry to be

mutated.

7. Mr. Asthavadi, learned advocate submitted that the

order impugned passed by the Collector in Land Appeal No. 58 of

2007-08 dated 29.04.2011 declared the land of the petitioner trust

as evacuee property under the provision of the Land Revenue Code.

It was submitted that the impugned order passed by the Collector is

pursuant to the complaint, which was filed by the third party,

wherein, the said complaint do not fall fall within the ambit of the

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definition of 'person aggrieved'. It was also submitted that, while

considering the appeal under the provision of the Land Revenue

Code, the Collector has proceeded to pass an order, wherein, the

property in question is declared as evacuee property and further

directed that the aforesaid be mutated in the revenue record, while

conscious of the fact that Special Civil Application No. 10742 of

2007, Special Civil Application No. 10635 of 2007 and Special Civil

Application No. 7925 of 2006 were pending adjudication before this

Court.

8. Placing reliance on the aforesaid, it was submitted that

the order impugned is required to be quashed and set aside on the

aforesaid ground alone.

9. Mr. Manish Bhatt, learned senior counsel assisted by

Mr. Vijay H. Patel, learned advocate appearing for the petitioner

(Nirman Estate Developers) of Special Civil Application No. 10884

of 2021 submitted that, the Collector ought to have seen that

except the land admeasuring 6636 sq.mtrs., other land is not an

evacuee property, and that the order impugned could not have been

passed, which has affected the order passed by the Joint Charity

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Commissioner granting permission under Section 36 of the Bombay

Public Trust Act. It was submitted that, the order passed by the

Collector amounts to over-writing of the order passed by the Joint

Charity Commissioner under Section 36 of the Bombay Public Trust

Act and the Collector has no power or authority to over-write the

order passed by the Joint Charity Commissioner. It was further

submitted that the Collector has no authority and power to decide

about the land admeasuring 6336 sq.yards, which is an evacuee

property, because the Joint Charity Commissioner and the Joint

Secretary of Revenue Department have already held that the law

regarding the evacuee property is repealed and therefore, no further

steps is required to be taken. It was submitted that, the respondent

authority has not properly appreciated the provisions of the

Administration of Evacuee Property Act, 1950. It was submitted

that, the respondent authority has no jurisdiction to decide the

issue with respect to the evacuee property, when the authority was

considering the appeal under the provision of the Bombay Land

Revenue Code.

10. Placing reliance on the aforesaid submission, it was

submitted that the order impugned be quashed and set aside and

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the petition may kindly be allowed.

11. Mr. Vimal A. Purohit, learned advocate appearing for

the respondent no.7 filed affidavit in reply and relying on Para-5 of

the said Affidavit submitted that the respondent no.7 have

preliminary objection, since there is an alternate remedy under law,

if the petitioner is aggrieved by the order passed by the District

Collector in Land / Appeal Case No. 58 of 2007-08 by filing

Revision Application Section 211 of the Bombay Land Revenue Code

before the Special Secretary Revenue Department (Appeals).

12. Mr. K.M. Antani, learned Assistant Government Pleader

submitted that no error could be said to have been committed by

the respondent authority in passing the impugned order.

13. Considering the submissions made by the learned

advocates appearing for the respective parties, the Appeal filed by

the Trust under Rule-108 of the Land Revenue Code, which came to

be partly allowed by order dated 18.09.2007 by the Deputy

Collector, which reads thus:

"The appeal filed by the appellant is partly allowed. The certified entries made by the Defendant No.2 in the Property- Cards apart from those of 6636 Sq.M. in City Survey No.2084/2,

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160-00 Sq.M. in Survey no.5463/2 and 210 Sq.M. in Survey No.5465/2 on 12/09/2005 are cancelled and considering the facts mentioned above, the case is remanded to the City Survey Superintendent, Jetpur to decide the same in accordance with the rules.

The parties be intimated about the decision.

Order issued under my hand and the seal of the Court today on this 17th day of September 2007.

Sd/- (illegible) Deputy Collector Gondal."

14. The said order passed by the Deputy Collector was

subject matter of appeal by the third party, which came to be

allowed by the impugned order dated 29.04.2011. The said order

was not the subject matter of appeal by the competent authority or

the petitioner herein, however, the same was the subject matter of

challenge by the third party. The relevant observation reads thus:

"....Considering such legal provisions, the Deputy Collector, Gondal has decided the case without examining all the details as submitted by the applicants. Thus, this matter appears to be bonafide up to this stage. Further, the applicants have stated that, the state land has been conveyed for a charitable cause of public hospital through a deed of erstwhile Bilkha State, on sell basis. At this stage, since the land has been given for a hospital, the undivided share of sell consideration works out to Rs.13,082/-, the levy (Chauth) applicable thereon arrives at Rs.1222-9 Anna 6 Pie, which was exempted vide British Government Report No.160 dated 17/11/1926 by the Prant Hajur Saheb in favor of Sir Adamji Haji Dawood Educational and Medical Association, Jetpur as per the rules and regulations of the State, since it was a charitable organization and the work involved was noble and the deed was to be executed under the condition of making a public hospital on behalf of the

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management. Thus, a separate deed has been executed for the land admeasuring 62067 Sq. Yards for the purpose of hospital and on such conditions. Thus, the building of Sir Adamjee Haji Dawood Public Hospital was constructed during 1930-31. The hospital was functional till about 1947. The applicants have further stated that, after execution of the deed of Bilkha State, Jetpur Gharbheni Rules, 1940 dated 11/10/1940 declared by Shri G. B. William of the Major Political Agent, Western Kathiawad Agency, Rajkot came be in force and accordingly, the subsequent rules came to be in force. All these orders and conditions apply to the land obtained for charitable cause of public hospital. The stated land cannot be used for any purpose other than a hospital. In these circumstances, it has been submitted that, the attempts made to sell off the land to a builder, i.e. M/s. Nirman Estate, on the basis of the Power of Attorney Deeds executed by the Trustees, who are Pakistan nationale, for the so-called reasons, amount to a serious breach of conditions and in these circumstances, the State Government should take action to escheat the stated land for breach of the conditions, and a public hospital should be made functional thereon. With reference to such a representation of the applicants, the Hon'ble Gujarat High Court, vide its order dated 10/12/2009 in SCA No.17549/2006 for Shree Rashtriya Shala - Rajkot, has confirmed the decisions made by the Joint Charity Commissioner, Rajkot and the In-charge Charity Commissioner, Ahmedabad in his Order No.36/21/2004 dated 26/5/2005 and held that, the conditions under which the lands obtained at a concessional rate during the period of Princely States are required to be followed strictly and the Revenue Department of the Gujarat Government or Collectors are required to take action in the same manner as was conducted by the State during period of erstwhile Princely States. Such has been held and is legal. Further, in this case, the Joint Charity Commissioner, Rajkot has passed a decision that, if a prior approval of the Revenue Department / Collector is required with respect to the basic conditions and titles of the land or if the details pertaining to titles are incomplete, the trust becomes eligible for getting permission to sell under the Public Trusts Act after completion of this procedure. An application seeking prior approval of the Joint Charity Commissioner under section 36 before the approval of the Revenue Department becomes premature automatically and results into a situation of 'putting cart before the horse'. It has been held that, in such circumstances, an application seeking approval under section 36 of the Trusts Act prior than the approval by the Revenue

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Department cannot be allowed. These matters have subsequently been accepted by the Revenue Tribunal and thereafter, the High Court has also allowed SCA No.17579/2006. Further, in the matter of Rashtriya Shala - Rajkot, the Charity Commissioner has filed a Regular Civil Suit in the Court of Principal Judge, Rajkot to appoint a Receiver for the said property with a submission that the property is not safe under the administration of the Trustees. The proceeding in the said matter has reached that stage. Considering the said example, in this case too, the land has been obtained for a charitable cause of public hospital. The said land cannot be used for any other purpose. Not only that, the Jetpur Gharbheni Rules, 1940 also provide that, if the rules are violated, the land cannot be resumed. In these circumstances, since the Joint Charity Commissioner has not given approval with respect to the proceedings of sale in this case and when the said land is under litigation in respect of evacuee, it appears that the Joint Charity Commissioner has undertaken procedure to give prior approval under section 36 at this immature stage. The applicants have filed a revision application on this issue before the Gujarat Revenue Tribunal and obtained an injunction. Considering such facts, it appears that a procedure for the breach of condition on this issue has been undertaken. Deputy Collector has powers to take action for breach of condition under section 79 and 202 of the Land Revenue Code. The Deputy Collector has committed an error by allowing the appeal of the present defendant No.2 without following this procedure on the said issue. In view of the aforementioned facts, the representation made by the applicants appears reasonable.

(8)E Time and again, it has been stated by the applicants that, consequent to obtaining a legal opinion from the then Public Prosecutor, Rajkot, it has been declared that, Trustees of a public trust cannot administer a Trust through Power of Attorney. The sensitive matters of the founders of this Trust who are living in Pakistan are on record. In such circumstances, a procedure for disposing the property is undertaken through a Power of Attorney up to a stage of effecting sell, which is even more sensitive issue. On this issue, the bench of the Hon'ble Gujarat High Court consisting Hon'ble Justice P. N. Bhagwati, Hon'ble Justice Shah and Hon'ble Justice D. P. Desai held in its judgment dated 2/3/1972 in Shri Atmaram Ranchhodbhai v. Gulam Hussain being SCA No.762/1965 (1972 (0) GLHEL - HC 200926) that, ..... "trustees

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cannot transfer their duties functions and powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trustdeed or agreed to by the entire body of beneficiaries .....". Further, trustees going abroad frequently or not holding meeting of the Trust from time to time or remaining absent in Trust-Meetings are not considered fit.

Considering this situation, the Trustees in this case have not provided the details of the Trustees in the appeal before the Deputy Collector filed on the basis of the power of attorney (the power of attorney is not on record.). The details as to under what legal provisions the present applicants are endeavouring for the objects of Dalwadi Trust, cannot be found in the appeal before the Deputy Collector. Further, Power of Attorney holder does not have statutory locus standi to carry out the aims and object of Trustees, and trust has perpetual entity and if trust is not manages as per original spirit for which it was formed. Considering the status of the said property at the relevant times, the rights to sell the properties of the trust cannot be conferred by the Charity Commissioner, because as a result of nonexistence of the original Trustees, third parties are making attempts to dispose the stated property for commercial purpose. In such circumstances, as the Deputy Collector, Gondal has partly allowed the appeal in the impugned RTS Appeal Case, various applicants have made serious representations and a need has arisen to pass an injunction in the RTS Case by this office. Despite that, as the Joint Charity Commissioner has granted an approval for sale at a premature stage, the applicants have filed a litigation seeking an injunction from the Gujarat Revenue Tribunal. Meanwhile, the High Court in its order dated 20/11/2009 in SCA No.11479/2009 filed by the defendant No.2 Sir Adamjee Haji Dawood Education and Medical Society Trust, has held that, Appeal No.58/2007-2008 has been filed before the Collector, Rajkot. Upon hearing the same, it has been stated to decide the matter on merit in the subsequent hearing. As the Hon'ble High Court has taken these aspects into consideration, at this stage, consequent to hearing all the parties in length as mentioned above, the following order is passed.

(9) The present Appeal preferred by the applicant is allowed. The impugned decision, to remand the matter, of the Deputy Collector, Gondal, on the aforementioned details, being an order made without due examination of facts, is set aside. As properties of Pakistan nationale is vested in the State Government, ipso facto, it is held that the procedure as per the

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prevailing act be undertaken. With regard to matters of evacuees, SCA 10742/2007, 10635/2007 and 7925/2006 are pending before the Hon'ble High Court. The final outcome thereof is to be recorded in the Revenue records.

Order issued under my hand and the seal of the Court today on this 29th day of April 2011.

Sd/- (H.S. Patel) Collector Rajkot District."

POSITION OF LAW:

15.1. At this stage, it is apposite to refer to the ratio as

laid down in the case of Whirlpool Corporation V/s. Registrar

of Trade Mark, Mumbai reported in (1998) 8 SCC 1 , Para-15

reads thus:

"15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field."

15.2. It is apposite to refer to the ratio as laid down in

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the case of Magadh Sugar & Energy Limited V/s. State of

Bihar & Ors. reported in 2021 SCC OnLine 801, Para-25

reads thus:

"25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai and Harbanslal Sahni v. Indian Oil Corporation Ltd. Recently, in Radha Krishan Industries v. State of Himachal Pradesh a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed:

"28. The principles of law which emerge are that:

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;

(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under

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Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

15.3. It is apposite to refer to the ratio as laid down by

this Court in Special Civil Application No. 2834 of 2001 vide

oral judgment dated 19.08.2023 in the case of Patani Haji

Mohammad Malam v/s. State of Gujarat, relevant Para-7 to

10 reads thus:

"7. Having heard learned counsel for the respective parties, it appears that the impugned order passed by the authorities below has been assailed mainly on the two grounds (i) that the order passed by the respondent-

Collector is without jurisdiction and (ii) that the order is illegal in view of the provisions of Section 7 of the Evacuee Property Act. While we go into the aspect of the jurisdiction one thing which is not in dispute is that the respondent-Collector is designated as Assistant Settlement Commissioner under the provisions of the Evacuee Property Act and in the instant case the respondent-Collector has sought to exercise powers under the provisions of the Evacuee Property Act. It is required to be noted that when the Collector acts as Assistant Settlement Commissioner under the provisions of Evacuee Properties Act, he is not authorized or empowered to initiate any proceedings under the Bombay Land Revenue Code or the Rules framed thereunder. In the present case, indisputably, the Collector has purportedly exercised the powers under the provisions of the

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Bombay Land Revenue Code though he was acting as a custodian under the provisions of the Evacuee Properties Act. In my opinion when the Collector has been designated to act as the Settlement Commissioner under the provisions of the Evacuee Property Act, he ought not to have exercised the powers under the Bombay Land Revenue Code framed thereunder. In the present case being done, it has to be said that the order passed by the Collector cancelling the Revenue Entry made in favour of the petitioner in purported exercise of powers under the Bombay Land Revenue Code is illegal and bad in law and therefore the same deserves to be quashed and set aside.

8. In so far as the next aspect is concerned, it is by now well settled law that if the custodian has not initiated any proceeding under section 7 of the Evacuee Properties Act to declare the land in question as "Evacuee Property act" before 7 th May, 1954 and that no such proceedings were pending as on 7 th May, 1954, under such circumstances, the land could not be declared as "Evacuee Properties" under the Evacuee Properties Act. Section 7-A of the Evacuee Property Act terminates the power of the custodian (Collector) to exercise such power in the present case. It appears that the owner of the land i.e. Husenbhai Siddibhai had migrated to Pakistan and ¼ of his land share proposed to be declared as "Evacuee Property". However, I find that there is nothing on record to show that any proceeding under section 7 of the Evacuee Property Act was initiated in respect of the said land before 07 th May, 1954 or that any such proceeding was pending before the said date.

9. Under such circumstances, the respondent- Authority could not have exercised the powers under the provisions of the Evacuee Property Act for declaring the property as "Evacuee Property".

This being contrary to the provisions of the Evacuee Property Act, the impugned order deserves to be quashed and set aside on such ground.

10. In view of the above, the present petition deserves to be allowed and the same is accordingly allowed. The impugned order dated 09.01.2001 passed by the Joint Secretary (Appeals) Revenue Department, Ahmedabad and

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also order dated 31.07.1996, passed by the respondent No.2 are quashed and set aside. Subsequent proceeding of issuance of Notice dated 24.11.1995 is also quashed and set aside. Rule is made absolute."

15.4. It is apposite to refer to the ratio as laid down in

the case of Evergreen Apartment Co-operative Housing Society

Limited v/s. Special Secretary (Appeals), Revenue Department,

reported in 1991 GLR (1) 113, relevant Para-12 reads thus:

"12. There is much substance in the second submission of Mr. Hawa also. Ordinarily when a transfer of property takes place by a registered account, an entry is effected in the revenue record and it is certified by the Mamlatdar after making necessary injuries. If there is any dispute regarding mutation, the dispute has to be entered in the register of the disputed cases and then such disputes are to be disposed of by the Mamlatdar. Under sub-rule (5) of Rule 108 of the Rules, the aggrieved party can prefer an appeal within 60 days from the date, of the service of the order. The State Government has power to call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer and to review the same under sub- rule (6) of the rules. It is to be noted in the present case that no appeal had been presented within 60 days from the date of Mamlatdar's order certifying the initial entry. The Assistant Collector, Surat took the said entry in suo motu revision, even though he had no such power under the provisions of Rule 108. It, therefore, appears that the Additional Chief Secretary, Revenue Department remanded the proceeding to the Collector for treating the same as an appeal. This was done after a period of 4 years after the certification of the entry. It was only the State Government which had the power to call for a record of inquiry or proceeding under Sub-rule (6) of Rule 108. Even the State Government was empowered to satisfy itself "as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings". So the entire inquiry and re-visional power has to proceed under the Bombay Land Revenue Rules and not under any enactments like the Bombay Tenancy and Agricultural Lands Act, Urban Land

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(Ceiling and Regulations) Act or Bombay Prevention of Fragmentation and Consolidation of Holdings act. It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the orders passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the pro visions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed. Thus on this second ground also the orders of the Collector and the Additional Chief Secretary appear to be beyond their jurisdiction. The Additional Chief Secretary has held that the sale by auction was not consistent with the provisions of Sec. 27 of the Urban Land (Ceiling and Regulation) Act. Sec. 27 relates to prohibition of transfer of any urban land with a building thereon. Apart from legal position that Sec. 27 has been struck down as ultra vires, it is quite obvious that no such question of transferring urban land with a building thereon has ever arisen in the present case. Thus, the order of the revisional authority has proceeded on a misconception of relevant legal provisions also."

16. This Court while issuing Rule on 30.09.2013 passed

common order in both these petitions and granted status-quo qua

the subject land / structure in question, till final disposal of the

petitions and the same is in operation till date.

17. The petitioner herein has approached this Court being

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aggrieved by the impugned order dated 29.04.2011 passed by the

Collector in Land / Appeal Case No. 58 of 2007-08 mainly on the

ground that the order impugned allowing the said appeal is at the

instance of the third party and that the complaint would not fall

within the ambit of the definition of 'person aggrieved'. Further,

the dispute in question was under the provision of Bombay Land

Revenue Code, the Collector has proceeded to pass an order,

wherein, the property in question is declared as evacuee property

and it was further directed that the aforesaid be mutated in the

revenue record, conscious of the fact that Special Civil Application

No. 10742 of 2007 was pending adjudication before this Court.

Furthermore, the land in question is held to be a non-evacuee

property, except the land admeasuring 6636 sq.mtrs. The order

impugned seeks to over-write the order passed by the Joint Charity

Commissioner under Section 36 of the Bombay Public Trusts Act,

1950, wherein, the Joint Charity Commissioner granted permission

of sale and the petitioner of Special Civil Application No. 10842 of

2021 declared to be the highest bidder. In view of the aforesaid

facts of the present case, the order impugned dated 29.04.2011 is

required to be interfered with.

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18. For the foregoing reasons, the petition is allowed on

two counts, viz. (i) the appeal was filed by the third parties, who

were not party to the proceedings before the competent authority

and neither the State nor the petitioners assail the said order passed

by the Deputy Collector in preferring the appeal (ii) the property in

question / subject property being declared as evacuee property by

the competent authority is beyond the scope of the Bombay Land

Revenue Code, when the concerned authority was exercised the

jurisdiction under the Bombay Land Revenue Code, it was not open

for the competent authority to pass declaratory order, wherein, the

property in question came to be declared as evacuee property and

consequently, it was directed that the entry be mutated in the name

of the State Government, is required to be quashed and set aside.

19. In view of the aforesaid facts and circumstances of the

present case and the position of law as referred herein-above,

exercising extraordinary jurisdiction under Article-226 of the

Constitution of India, the impugned order dated 29.04.2011 passed

by the Collector, Rajkot in Land/ Appeal No. 58 of 2007-08 is

quashed and set aside.

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20. In view of above, both the petitions stand allowed. Rule

is made absolute. Direct service is permitted.

(VAIBHAVI D. NANAVATI,J) Pradhyuman