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2003 DIGILAW 485 (GUJ)

JALARAM GROUP HOUSING SOCIETY v. STATE

2003-08-22

K.A.PUJ

body2003
K. A. PUJ, J. ( 1 ) SINCE main petition i. e. S. C. A. No. 4977 of 1995 as well as all Civil Applications are connected with each other, all of them are disposed of by this common judgment. ( 2 ) THE petitioner in S. C. A. NO. 4977 of 1995, filed under Article 226 of the Constitution of India, has challenged the order dtd. 17. 06. 1991 passed by the State Government under Section 20 of the Urban Land (Ceiling and Regulation Act), 1976 (hereinafter referred to as the ulc Act) and the order dtd. 20. 06. 1991 passed by the Charity Commissioner while exercising powers under Section 36 of the Bombay Public Trust Act, 1950 (hereinafter referred to as the bpt Act ). ( 3 ) CIVIL Application No. 2974/2003 is filed by Purshottamnagar Cooperative Housing Society Ltd. (Vibhag 1 to 27) original respondent No. 5 in S. C. A. NO. 4977 of 1995 for vacating of interim relief granted by this Court vide order dtd. 29. 06. 1995 and 30. 06. 1996 in S. C. A. NO. 4977 of 1995. ( 4 ) CIVIL Application No. 4106/03 is filed by one Mr. Rajubhai Shyambhai Zariwala of Surat requesting this Court to allow him to be joined as party respondent in S. C. A. NO. 4977 of 1995. ( 5 ) CIVIL Application No. 5400/03 is filed by the original petitioner seeking amendment in the petition by inserting para 3 of the Civil Application as para 3 (13), 3 (14) and para 10 (BB) and Para 10 (BBB) of the petition. ( 6 ) DURING the pendency of the petition, Civil Application No. 2676/96 was filed by one Mr. Jaswantlal J. Patel seeking permission of this Court to allow him to be joined as party - petitioner in S. C. A. NO. 4977 of 1995. However, the said Civil Application was withdrawn on 20. 03. 1996. ( 7 ) DURING the pendency of the present petition, one more Civil Application was filed by one Mr. Bharatbhai Keshavbhai Unadkat @ Jasdanwala requesting this Court to allow him to be joined as party - respondent in S. C. A. NO. 4977 of 1995. However, the said Civil Application was withdrawn on 29. 04. 2003. 03. 1996. ( 7 ) DURING the pendency of the present petition, one more Civil Application was filed by one Mr. Bharatbhai Keshavbhai Unadkat @ Jasdanwala requesting this Court to allow him to be joined as party - respondent in S. C. A. NO. 4977 of 1995. However, the said Civil Application was withdrawn on 29. 04. 2003. ( 8 ) AS far as main petition is concerned, it is the case of the petitioner that respondents No. 3 and 4 which are Charitable Trusts had entered into a development agreement with the petitioner firm on 11. 06. 1987 under which all the lands belonging to the Trusts were agreed to be sold and/or to be developed through the petitioner at the following prices. Village Survey No. Rate in Rupees per Sq. Mtr. Bhatar 38,39,40 495/- Bhatar 58 550/- Pandesara 1/1 301/- ( 9 ) IN view of the said development agreement, the respondent Trusts have made an application dtd. 05. 01. 1988 before the Charity Commissioner under Section 36 of the BPT Act. The Trusts have also made an application dtd. 08. 11. 1990 before the State Government with respect to all the properties as referred to in the petition for being granted exemption from the Provisions of ULC Act. In response to the said application, the State Government granted exemption under Section 20 of the ULC Act by its order dtd. 12. 03. 1991 in respect of total area approximately admeasuring 68387 Sq. Mtrs. while granting the exemption under Section 20 of the ULC Act, the State Government had imposed certain conditions to secure the interest of the Trusts and one of the important condition imposed in the order was that the Trusts would sell the said land only at the highest possible price. Since there was some discrepancy in the area of the land, the State Government has passed another order on 27. 03. 1991 modifying its earlier order dtd. 12. 03. 1991. ( 10 ) IT is the case of the petitioner that one Mr. Girishbhai Dalsukhbhai Godani who is the son of Shri Dalsukhbhai Godani who was a Revenue Minister, State of Gujarat, at the relevant point of time, entered into the scene and negotiated with the Trustees in the name of respondent No. 5 society and agreement for sale was entered into between the Trusts and the said society on 11. 04. 1991. Girishbhai Dalsukhbhai Godani who is the son of Shri Dalsukhbhai Godani who was a Revenue Minister, State of Gujarat, at the relevant point of time, entered into the scene and negotiated with the Trustees in the name of respondent No. 5 society and agreement for sale was entered into between the Trusts and the said society on 11. 04. 1991. It is further stated that the Trusts thereafter made another application before the State Government praying for exemption under Section 20 of the ULC Act specifying therein that the respondent No. 5 society was the proposed buyer of the lands in question. Pursuant to the said application, the State Government reviewed its earlier order dtd. 12. 03. 1991 and passed an order on 17. 06. 1991 under Section 20 of the ULC Act permitting the Trusts to sell the lands in question to the respondent No. 5 society and removing the earlier conditions imposed in the order dtd. 12. 03. 1991 with regard to the property being sold at the maximum price. ( 11 ) IT is further stated that the Trusts had made an application dtd. 15. 05. 1991 to the Charity Commissioner seeking his sanction under Section 36 of the BPT Act. Pursuant to the said application, the Charity Commissioner issued a public advertisement in the local Gujarati daily gujarat Mitra in its edition dtd. 17. 05. 1991. The Charity Commissioner thereafter passed an order on 20. 06. 1991 granting sanction to the Trusts to sell the lands to respondent No. 5 society inter alia on the ground that the State Government has exempted the land under the ULC Act, subject to the condition that the same would be sold to respondent No. 5 society. ( 12 ) IT is further stated that pursuant to the public advertisement, the petitioner raised objections vide its letter dtd. 18. 05. 1991 offering the same price which was mentioned in the development agreement as well as asking for the personal hearing in the matter. The petitioner has also pointed out in the said objections raised on 18. 05. 1991 that comparing the prices of the petitioner and the respondent No. 5 society, the difference in the price would be more than approximately Rs. 2 Crores. The petitioner has also pointed out in the said objections raised on 18. 05. 1991 that comparing the prices of the petitioner and the respondent No. 5 society, the difference in the price would be more than approximately Rs. 2 Crores. However, the said objections were not considered by the Charity Commissioner and the sanction under Section 36 of the BPT Act was granted by an order dtd. 20. 06. 1991. ( 13 ) IT is also the case of the petitioner that even after granting sanction under Section 36 of the BPT Act, the petitioner made several representations to the Charity Commissioner. However, the petitioner was assured time and again that justice would be done to the petitioner. Since no action was taken by the Charity Commissioner, the petitioner wrote a letter dtd. 01. 05. 1995 to the Charity Commissioner requesting him to grant the personal hearing and pointing out relevant facts. Pursuant to the said letter, the Charity Commissioner sent his reply on 09. 05. 1995 stating that the order was already passed on 20. 06. 1991 and the petitioner was already informed earlier about this order. ( 14 ) IT is further stated that one Mr. Suresh Patel and 8 others have challenged the order dtd. 20. 06. 1991 passed by the Charity Commissioner by filing appeal before the Gujarat Revenue Tribunal. However, the Tribunal vide its order dtd. 10. 12. 1991 dismissed the said appeal and being aggrieved by the said decision of the Tribunal, the said Shri Suresh Patel and other 8 persons have filed S. C. A. No. 8990/1991 before this Court, inter alia, challenging the order dtd. 20. 06. 1991 passed by the Charity Commissioner as well as the order dtd. 10. 12. 1991 passed by the Gujarat Revenue Tribunal. Since the said petition was admitted by this Court and interim relief was granted, the present petition filed by the petitioner in the year 1995 was also admitted and was ordered to be heard along with said S. C. A. No. 8990/1991. ( 15 ) MR. K. G. Vakhariya, learned senior counsel appearing with Mr. Tushar Mehta, learned advocate for the petitioner has submitted that impugned order dtd. 17. 06. ( 15 ) MR. K. G. Vakhariya, learned senior counsel appearing with Mr. Tushar Mehta, learned advocate for the petitioner has submitted that impugned order dtd. 17. 06. 1991 passed by the Revenue Department, State of Gujarat is unjust, illegal and without jurisdiction in as much as the State Government has concluded the matter under Section 20 of the ULC Act by passing the order dtd. 12. 03. 1991 and exempting the land subject to the condition that the same would be sold to a person offering maximum available price. Passing of the order dtd. 17. 06. 1991 amounts to reviewing of the order dtd. 12. 03. 1991 whereby the condition subject to which the exemption was accorded, were substantially changed. Mr. Vakhariya has alternatively submitted that before applying for exemption under Section 20 of the ULC Act, the respondents trusts have already entered into a development agreement with the petitioner and since the petitioner has acquired the vested rights over the land in question, no orders with regard to the said land could be passed in absence of the petitioner and behind its back. Since the impugned order dtd. 17. 06. 1991 was passed by the Revenue Department behind the back of the petitioner, the same was illegal and arbitrary, being violative of the principles of natural justice and hence, requires to be quashed and set aside. ( 16 ) MR. Vakhariya has further submitted that the order dtd. 20. 06. 1991 passed by the Charity Commissioner in purported exercise of his powers under Section 36 of the BPT Act is also unjust, illegal and arbitrary as while passing the impugned order, the Charity Commissioner has totally ignored the purpose and legislative intent which requires the Charity Commissioner to consider before taking a decision whether or not to sanction sale of all Trusts properties under Section 36 of the BPT Act. He has further submitted that while exercising powers under Section 36 of the BPT Act, the Charity Commissioner is under the statutory obligation to ensure that alienation of the property by the Trusts is in the larger interest and for the benefit of the public trust. It is the duty of the Charity Commissioner to see that the Trust gets the maximum amount possible out of the alienation of the property so that the interest of the beneficiaries of the public trust are not jeopardized in any manner. It is the duty of the Charity Commissioner to see that the Trust gets the maximum amount possible out of the alienation of the property so that the interest of the beneficiaries of the public trust are not jeopardized in any manner. He has further submitted that because of the sanction given by the Charity Commissioner to sell the property in favour of respondent No. 5 society, the interest of the trust was adversely affected as the amount received by the Trust would be much less than the amount being the market price of the lands in question. He has further submitted that since the Charity Commissioner has not at all taken into consideration the relevant mandatory requirements of Section 36 of the BPT Act, the impugned order dtd. 20. 06. 1991 is unjust, arbitrary, irrational and dehors the Provision of Section 36 of the BPT Act. ( 17 ) MR. Vakhariya has further strongly submitted before the Court that both the authorities while exercising the powers under Section 20 of the ULC Act as well as Section 36 of the BPT Act were pressurised and persuaded by Shri Dalsukhbhai Godani, the Revenue Minister in the State of Gujarat at the relevant point of time and hence, the orders passed by both the authorities are unjust, illegal, being in malafide exercise of powers for extraneous considerations and are violative of Articles 14 and 19 of Constitution of India. ( 18 ) IN support of his submission that Charity Commissioner has no power to review his own order, Mr. Vakhariya has relied on the decision of the Honble Supreme Court in the case of INDIAN NATIONAL CONGRESS (I) V/s. INSTITUTE OF SOCIAL WELFARE, AIR 2002 S. C. 2158 wherein it is held in para 33 that "it is almost settled law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power of review is conferred upon it. In Smith V/s. East Ellos Rural District Council (1956) 1 All ER 855, it was stated that the effect of fraud would normally be to vitiate all acts and order. In Smith V/s. East Ellos Rural District Council (1956) 1 All ER 855, it was stated that the effect of fraud would normally be to vitiate all acts and order. In Indian Bank V/s. Satyam Fibers (India) Private Limited, (1996) 5 SCC 550 , it was held that a power to cancel/recall an order which has been obtained by forgery or fraud applies not only to Courts of law, but also statutory tribunals which do not have power of review. Thus, fraud or forgery practice by a political party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to de-register such a political party. " Applying the above ratio of decision to the facts of the present case, Mr. Vakhariya has submitted that it was only due to political pressure brought on the statutory authorities, such unlawful and illegal decisions were taken. It is not necessary to mention the name of the intending purchaser while granting permission under Section 20 of the Act and yet the permission was granted to the Trust only on the condition that the land would be sold to the respondent No. 5 society. He has further submitted that in the earlier order of the Charity Commissioner, the condition was imposed to sell the property at the maximum price. However, the said condition was given go-bye in the subsequent order and that was also done at the behest of Mr. Dalsukhbhai Godani, the Revenue Minister in the State Government at the relevant point of time. Because of these extraneous considerations, the statutory authorities have not discharged their functions and fraudulently taken the decision contrary to the interest of the Trust. He has therefore submitted that the cumulative effect of the transactions entered into would certainly lead to draw an inference that the decisions were taken in collusion with all the parties and the same being fraudulent transactions deserves to be quashed and set aside by this Court while exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India. ( 19 ) MR. S. N. Shelat, learned Advocate General appearing for respondents No. 1 and 2 has submitted that so far as the order under Section 20 of the ULC Act is concerned, the petitioner has no legal right to seek any relief from this Court. ( 19 ) MR. S. N. Shelat, learned Advocate General appearing for respondents No. 1 and 2 has submitted that so far as the order under Section 20 of the ULC Act is concerned, the petitioner has no legal right to seek any relief from this Court. He has further submitted that the petitioner is neither the owner of the properties in question nor any right is conferred upon the petitioner under any legally executed documents. He has further submitted that the alleged development agreement would not create any interest of the petitioner in the property and hence, the challenge made to the order passed under Section 20 of the ULC Act is not entertainable while exercising powers under Article 226 of the Constitution of India. In support of his submission, he relied on the order passed on 30. 04. 1982 by this Court in LPA No. 135/1982. So far as the order passed by the Charity Commissioner is concerned, Mr. Shelat has submitted that the order was passed in the year 1991 whereas the present petition was filed in 1995. No justifiable reasons were given by the petitioner for delay caused in filing the present petition. He has further submitted that the order passed by the Charity Commissioner under Section 36 of the Act can be challenged before the Gujarat Revenue Tribunal within 30 days from the date of the publication of the order, as provided in Sub-section (3) of Section 36 of the BPT Act. Since the petitioner has not challenged the said order before the Gujarat Revenue Tribunal, Ahmedabad and since the said order was challenged by one Mr. Suresh Patel and other persons before the Gujarat Revenue Tribunal in appeal under Section 36 (3) of the BPT Act and the said appeal having been dismissed and Special Civil Application having been filed before this court against the dismissal of the appeal as well as against the order of the Charity Commissioner, has been withdrawn, the petitioner cannot agitate the said issue before this Court in the present petition. He has further submitted that the issues raised in the present petition are disputed questions of facts and they are based on merely certain oral assertions and hence, the same cannot be raised in the present petition before this Court. He has further submitted that the issues raised in the present petition are disputed questions of facts and they are based on merely certain oral assertions and hence, the same cannot be raised in the present petition before this Court. He has lastly submitted that the order passed by the Gujarat Revenue Tribunal prevails as on today and the same having not been challenged in the present petition, the order passed by the Charity Commissioner is final. The petition, therefore, deserves to be dismissed with cost. ( 20 ) MR. S. H. Sanjanwala, learned Senior advocate appearing for respondent No. 5 Society has submitted that the petitioner has made certain false averments to its own knowledge, in the petition. He has further submitted that in para 10 of the petition, the petitioner has made an averment that order dtd. 20. 06. 1991 was kept as a close secret and specific attempts were made to ensure that nobody comes to know about the sanction being accorded by the Charity Commissioner by the said order. These are the false averments and they are made only with a view to mislead this Court as the petitioner was well within the knowledge of the said order and that was reflected in its own letters and correspondence. Pursuant to the letter dtd. 07. 08. 1991 written by the petitioner to the Charity Commissioner, the Charity Commissioner gave reply on 22. 08. 1991 wherein it is specifically stated that the Charity Commissioner has granted permission to the Trust to sell the lands in question to the respondent No. 5 Society by passing a common order on 20. 06. 1991. The petitioner has also admitted the receipt of the letter dtd. 22. 08. 1991. In its letter dtd. 07. 09. 1991, it was stated that sanction made in favour of the respondent No. 5 society was legal. Thus, it cannot be said that the petitioner was not aware about the order passed by the Charity Commissioner on 20. 06. 1991. Mr. Sanjanwala has further submitted that the order passed by the Charity Commissioner was merged with the order passed by the Gujarat Revenue Tribunal and having regard to the principle of merger, it is not open for the petitioner now to challenge the order of the Charity Commissioner before this Court. 06. 1991. Mr. Sanjanwala has further submitted that the order passed by the Charity Commissioner was merged with the order passed by the Gujarat Revenue Tribunal and having regard to the principle of merger, it is not open for the petitioner now to challenge the order of the Charity Commissioner before this Court. He has further submitted that even if the petitioner is not a party to the proceedings before the Gujarat Revenue Tribunal, the said order binds to the petitioner. In support of his submission, he relied on the decision of the Honble Supreme Court in the case of SOMNATH SAHU V/s. STATE OF ORISSA AND OTHERS. , 1969 (3) SCC 384 wherein it is held as under:-"the order of respondent No. 4 dtd. 11. 03. 1960 has merged in the appellate order of the State Government dtd. 2. 01. 1962 and it is the appellate decision alone which subsists and is operative in law and is capable of enforcement. In other words the original decision of respondent No. 4 dtd. 11. 03. 1960, no longer subsists for it has merged in the appellate decision of the State Government and unless the appellant is able to establish that the appellate decision of the State Government is defective in law the appellant will not be entitled to the grant of any relief. There can be no doubt against an order passed by a tribunal; the decision of the appellate authority is the operative decision in law if the appellate authority modifies or reverses it. In law the position would be just the same even if the appellate decision merely confirms the decision of the Tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which is subsisting and is operative and capable of enforcement. " .