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2009 DIGILAW 352 (GUJ)

Lilaben L. Joshi v. Kantilal Fogatlal Joshi

2009-05-07

D.A.MEHTA

body2009
Judgment D.A. Mehta, J.—This petition has been filed challenging the orders dated 25th October, 1991 in Revision Application No. TEN.B.A.415/87 and dated 16th July, 1993 in Review Application No. TEN.C.A.8/92 made by the Gujarat Revenue Tribunal (the Tribunal). 2. The dispute between the parties relates to lands bearing Survey Nos. 233, 278, 650 and 713 of Village : Majrole, Taluka : Sinor, District : Vadodara. It is the say of the petitioners that respondents have wrongly been treated to be tenants of the lands in question because both the petitioners and respondents are descendants of real brothers, and hence, in terms of provisions of Section 4(a) of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act) a member of the owner’s family cannot be treated to be a tenant. For this purpose on behalf of the petitioners reliance has been placed of judgment of this Court in the case of Smt. Amthibai Wd/o. Jesangbhai Nathubhai vs. Patel Shankerbhai Purshottamdas, reported in 1982 GLH 1046 . 3. None appears on behalf of respondents. 4. As can been seen from the record, the impugned orders have been made by the Tribunal in third round of litigation between the parties. It is not necessary to refer to the earlier rounds of litigation. Suffice it to state that at different points of time the lower authorities took different view of the status of the parties, including treating both the petitioners and respondents as joint tenants. However, the impugned orders made by the Tribunal cannot be sustained for the reasons that follow hereinafter. 5. The Tribunal has proceeded on footing that the lands in question belong to the Trust or the temple, and the petitioners or their predecessors were only the Administrators or Managers of the Trust property. Thus, according to the Tribunal, an Administrator cannot be termed to be a relative of the tenants and their respective relationship cannot be pressed into service for invoking Section 4(a) of the Act. The Tribunal has failed to appreciate the fact that there is no cogent evidence to establish the title of the property being vested in a trust. All the authorities proceeded on the footing that the temple is to be equated with a Trust and hence the property belongs to a Trust. 6. The Tribunal has failed to appreciate the fact that there is no cogent evidence to establish the title of the property being vested in a trust. All the authorities proceeded on the footing that the temple is to be equated with a Trust and hence the property belongs to a Trust. 6. Even if one proceeds on footing that the property belongs to a Trust, the authorities, including the Tribunal, ought to have taken care to examine as to whether necessary permission as required under provisions of Section 36 of Bombay Public Trusts Act, 1950 (the B.P.T. Act) has been obtained or not. Under Section 36(1)(b) of the B.P.T Act, it is provided that regardless of the contents of an instrument of Trust, no lease for a period exceeding ten years in the case of agricultural land belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Hence, even if the judgment of this High Court on which reliance is placed on behalf of the petitioners was to be distinguished on the ground that the property belongs to a Trust, it was incumbent upon the authorities, including the Tribunal, to examine as to whether the pre-requisite condition stipulated by Section 36(1)(b) of the B.P.T. Act has been satisfied. As already noted hereinabove, all the authorities including Tribunal have fallen into error in presuming that the property belongs to a Trust only on the averment that the predecessor of the petitioners was Poojari in the temple. The Tribunal failed to appreciate the distinction between a Poojari and a Trustee of the Trust as understood in law. Moreover, if there was dispute as to the ownership of the property, the Revenue Authorities could not have resolved the said dispute but ought to have directed the parties to approach a Civil Court and obtain an appropriate declaration in the manner envisaged by law. Similarly, before coming to the conclusion that the property belongs to a Trust, the authorities ought to have verified as to whether the Trust was registered under the B.P.T. Act and whether the property in question had been declared to be the ownership of the Trust before the Charity Commissioner. Similarly, before coming to the conclusion that the property belongs to a Trust, the authorities ought to have verified as to whether the Trust was registered under the B.P.T. Act and whether the property in question had been declared to be the ownership of the Trust before the Charity Commissioner. Section 79 of the B.P.T. Act categorically stipulates that any question (1) whether a trust exists; (2) such a trust is a public trust; (3) a particular property is property of such a trust : shall be decided by authority under the B.P.T. Act. Such a decision of the said authority under the B.P.T. Act shall be final and conclusive except when set aside as provided. 7. In light of the fact that none of the authorities have recorded any findings in this regard considering the position in law, it would be just and proper to quash and set aside the orders dated 25th October, 1991 and dated 16th July, 1993 made by the Tribunal. Revision Application No. TEN.B.A.415/1987 shall stand restored to the file of the Tribunal for deciding the matter afresh in accordance with law after considering the correct position in law. It will be open for the Tribunal to pass appropriate orders in accordance with law including an order of remand, for permitting the parties to adduce necessary evidence, if necessary. 8. The petition is allowed in the aforesaid terms. Rule made absolute. There shall be no order as to costs.