Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 348 (GUJ)

Hadala Bhal Sarvajanik Rahat Mandal Trust v. State of Gujarat

2009-05-07

D.A.MEHTA

body2009
Judgment D.A. Mehta, J.—This petition has been preferred by six different Charitable Trusts challenging the order dated 10th October, 1994 made in Revision Application Nos.TEN.B.A. Nos. 588 to 591 of 1992 whereby the order made by the Deputy Collector, Limdi on 27th May, 1992 was upheld. 2. The facts are that the petitioner No. 1 - Hadala Bhal Sarvajanik Rahat Mandal Trust (herein after referred to as “Trust No. 1”) is a registered Trust under the Bombay Public Trusts Act, 1950 ( the B.P.T. Act ). It is the case of the petitioner that Trust No. 1 and five other Trusts were in existence since the time of the then Limdi State and all the Trusts have different agricultural lands as Trust property donated to the respective Trust for the object and purpose of the Trust. Admittedly, initially the remaining five Trusts were not registered independently, but were managed separately by different Administrators / Managers from time to time and the respective accounts were also maintained separately. The income from the Trusts properties were utilized for the object and purpose of each individual Trust. It is also accepted position that under Saurashtra Barkhali Abolition Act, 1951, an inquiry was undertaken and different occupancy certificates for the lands held by different Trusts, had been issued by the Mamlatdar under Section 15 of the said Act. 3. In 1985, the Mamlatdar and ALT initiated proceedings under the Gujarat Agricultural Lands Ceiling Act, 1960 (the Ceiling Act) and came to the conclusion that Trust No. 1 was the only Trust holding 155 Acres and 30 Gunthas of land. The said Trust was entitled to hold 54 Acres of land as 1 unit and thus, remaining 101 Acres, 30 Gunthas of land was declared to be surplus land under the Ceiling Act. The matter was carried in appeal and, thereafter in Revision before the Tribunal. In Revision Application No. TEN.B.A. No.157/1086, the Tribunal recorded as under: “5. Thus, all these trusts are separately registered in the office of the Deputy Charity Commissioner, Bhavnagar on 18-3-89. Learned advocate Shri Yagnik has relied on sec.79 of the Bombay Public Trust which speaks that the question whether or not a trust exists and such trust is a public trust or the property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner, and his decision is final and conclusive. 6. Learned advocate Shri Yagnik has relied on sec.79 of the Bombay Public Trust which speaks that the question whether or not a trust exists and such trust is a public trust or the property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner, and his decision is final and conclusive. 6. Shri Yagnik has, therefore, argued that the learned Deputy Charity Commissioner, Bhavnagar has decided that there are 6 public trusts and they hold separate property. Hence, the finding of the learned Deputy Charity Commissioner is final and conclusive and no other court has any right to interfere in such final decision. I fully agree with the learned advocate Shri Yagnik in this respect. The result is now that there are 6 different trusts, hence it will have to be found out whether each trust is holding agricultural land below one unit or more than one unit. If any of the trust holds more than one unit, then the learned Mamlatdar would make the inquiry again, give a chance to the applicant of hearing and decide the later afresh. Hence, this case deserves to be remanded to the Mamlatdar, Limdi, for finding out whether the above 6 trusts individually hold more than one unit of agricultural land or not. If yes, the learned Mamlatdar will issue notice against all the trusts hold land more than one unit and hold a fresh inquiry. Hence, the following order. 7. Revision application is allowed. Judgment and orders passed by the lower courts are set aside. The case is remanded to the Mamlatdar, Limdi for rehearing with the directions given above.” 4. In the proceedings of remand, the Mamlatdar and ALT held that there were six different Trusts but only one of the Trusts namely, Trust No. 1 was holding 108 Acres, 22 Gunthas and thus, after deducting 1 unit of 54 Acres, remaining 54 Acres, 22 Gunthas were held as surplus land in hands of the Trust No. 1. In case of the remaining five Trusts, the Mamlatdar came to the conclusion that none of them were holding any land in excess of prescribed ceiling limit. Against the order made by the Mamlatdar, appeals were filed before the Deputy Collector by three of the Trusts and also by the Deputy Mamlatdar (Revenue), Limdi on behalf of the State. In case of the remaining five Trusts, the Mamlatdar came to the conclusion that none of them were holding any land in excess of prescribed ceiling limit. Against the order made by the Mamlatdar, appeals were filed before the Deputy Collector by three of the Trusts and also by the Deputy Mamlatdar (Revenue), Limdi on behalf of the State. By common order dated 27th May, 1992, the Deputy Collector dismissed the appeals filed by the Trusts and allowed the appeal filed by the State. Therefore, all the Trusts approached the Tribunal. Vide impugned order dated 10th October, 1994, the Tribunal upheld the order of Deputy Collector stating that under the Ceiling Act the position as on the appointed date, namely 1st April, 1976, had to be seen, and because the Trusts were registered only in 1989, it cannot be said that the lands were independently held by five remaining Trusts so as to exclude these lands while computing the excess land under the Ceiling Act in hands of Trust No. 1. 5. Learned advocate for the petitioner - Trust has submitted that as could be seen from the earlier order of remand made by the Tribunal, the factum of six different Trusts being in existence was accepted. The Tribunal also recorded that the findings of the Charity Commissioner are binding to all concerned in terms of provisions of Section 79 of the B.P.T. Act, and the only direction was to the Mamlatdar to find out, after inquiry, as to whether the six Trusts, individually, held more than one unit of agricultural land. Therefore, according to the learned advocate, the authorities were not justified in considering the matter as if the case was to be considered under the provisions of the Ceiling Act and only on the appointed date. That the direction of the Tribunal was specific and the scope of inquiry was limited. Therefore, according to the learned advocate for the petitioner Trusts, the Deputy Collector and the Tribunal in the second round had committed an error in referring to the provisions of the Ceiling Act as if the matter was to be processed for the first time. 6. Learned AGP submitted that though affidavit-in-reply was not tendered, the issue being purely a legal issue, respondent authority may be permitted to make submissions. 6. Learned AGP submitted that though affidavit-in-reply was not tendered, the issue being purely a legal issue, respondent authority may be permitted to make submissions. It was contended that the five remaining Trusts had not shown, nor had claimed, that separate entries, as to their so-called holding, were made or should be made in the Revenue Record and, therefore, the position as obtained on 1st April, 1976 was to be considered. That Section 6 of the Ceiling Act had an overriding effect over any other law and, therefore, the approach of the Deputy Collector and the Tribunal was justified in law. 7. The facts are not in dispute. The earlier order of Tribunal rendered on 20th February, 1990 can be read in the manner as proposed by the learned advocate for the petitioner. However, without entering into the controversy whether it was open to the co-ordinate bench of the Tribunal to take a different view, different from the view taken by the another bench between the same parties and in earlier round of proceedings, the matter can be resolved only on a limited ground. 8. Section 79 of the B.P.T. Act provides that any question as to (1) existence of trust, (2) whether such trust is a public trust, and (3) whether a particular property is the property of such trust, has to be decided by the Charity Commissioner as provided under the B.P.T. Act and the decision of the said authority shall be final and conclusive unless set aside by a decision of the Court on application, or of the High Court in appeal. Therefore, in the present case, once the position is accepted that the orders by the Deputy Charity Commissioner registering five remaining Trusts have become final, necessary consequences flowing therefrom had to be given full effect in law and could not be ignored. 9. The evidence on record shows that while recording the change report in the register maintained by the office of the Charity Commissioner, specific entries have been made for deleting certain properties, because such properties had wrongly been entered in the schedule of properties belonging to Trust No. 1, with a corresponding entry in the schedule of properties as belonging to each of the remaining five Trusts. Thus, the Deputy Charity Commissioner had found, as a matter of fact, that the properties in question belonged to each of the five remaining Trusts individually and such properties had wrongly been included in the schedule of properties belonging to Trust No. 1. This is a decision rendered by the Deputy Charity Commissioner under Section 79 of the B.P.T. Act. The said decision has attained finality, having not been challenged by any one. 10. In the circumstances, the Revenue Authorities and the Tribunal were bound by the said order made by the Charity Commissioner. The orders registering the five remaining Trusts and the consequential entries in the register of properties of public trust maintained by the office of the Charity Commissioner, cannot be ignored as they operate in rem and are binding on all persons unless and until challenged before an appropriate forum in accordance with law. In other words, unless and until, such orders made by the Charity Commissioner are modified, or reversed in any manner by a Competent Forum in accordance with law, it is not open to ignore such orders and the consequences flowing therefrom. 11. Once Deputy Charity Commissioner had recorded that certain properties had wrongly been included as being properties of Trust No. 1 and were required to be deleted and incorporated in the schedule of properties belonging to the remaining five Trusts respectively, it had to be presumed that the said properties belonged to the remaining five Trusts even on 1st April, 1976. This has to be appreciated in the context of the undisputed fact that under Section 15 of the Saurashtra Barkhali Abolition Act, 1951, the Mamlatdar himself has recorded and granted separate occupancy certificates to the remaining five Trusts in relation to the lands held by the different Trusts individually. 12. In the aforesaid set of facts and circumstances of the case, in light of what is stated hereinbefore, the petition is required to be allowed. The order made by the Tribunal on 10th October, 2004 is hereby quashed and set aside. Similarly, the order made by the Deputy Collector on 27th May, 1992 is also hereby quashed and set aside. As a consequence the order made by the Mamlatdar treating all the six Trusts as individual trusts, separate and distinct from each other and holding individual properties is confirmed. 13. Rule made absolute. There shall be no order as to costs.