VISHNUBHAI HIRABHAI DORIWALA Vs. AMDAWADI SHRIMALI SONI

JUDGEMENT

(1.) By passing the order on 31st January, 1994, the Joint Charity Commissioner, Baroda, granted the permission to the respondent No. 1, a registered Trust under the Bombay Public Trusts Act, to sell the land in question to respondent No. 2, against which Revision Application preferred came to be dismissed by the Gujarat Revenue Tribunal by its judgment dated 19th February, 1996. The petitioner by this application under Arts. 226 & 227 of the Constitution of India, therefore, challenges the legality and validity of both the orders.

(2.) 2. Briefly stated, the facts leading the petitioner to file the petition are that the respondent No. 1 is a Public Charitable Trust registered under the provisions of the Bombay Public Trusts Act (for short, "the Act"). The Trust owns the land, the final Plot number of which is 13. That land is situated in Katargam area of Surat city. The same is admeasuring 7619.37 sq. meters. For boosting the purpose and object of the Trust and for the well being of the community people, the Trust decided to sell the land. It was also difficult for the Trust to protect the land from the hutment-dwellers who were often trying to trespass into the land and encroach the same. The respondent No. 1 therefore, resolved to sell the land. As the permission to sell the land under Sec. 36 of the Act was necessary, the respondent No. 1 applied on 15th June, 1991 for necessary permission. Revubhai Popatbhai Patel one of the partners of respondent No. 2 putforth his offer to purchase the land for Rs. 92,61,101/- but the Joint Charity Commissioner did not accept the offer. The respondent No. 1 again applied for the sale of the land pursuant to which the Joint Charity Commissioner gave the public notice inviting the tenders in sealed covers on 14th June, 1993. The upset price was fixed at Rs. 93,00,000/-. The respondent No. 2 sent his offer by a registered letter but not in sealed cover. The same was received by the Officer of the Joint Charity Commissioner on 21st June, 1993. A member of the staff of the Officer of the Joint Charity Commissioner opened the said letter and kept the same open & unsealed from 21st June, 1993 till 25th June, 1993, the day on which the tenders were to be opened. The petitioner send the offer for Rs. 1,11,00,000/- along with 10% deposit amount on 24th June, 1993. That Letter of Offer was received by the Joint Charity Commissioner on 25th June, 1993. That offer was in sealed cover. The Charity Commissioner called the advocate for the respondent No. 2 and the Managing Trustee of respondent No. 1 to remain present on 25th June, 1993 when the tenders received were to be opened. The petitioner was not informed. In the presence of the Advocate and Managing Trustee when the tenders were opened, the offer of the respondent No. 2 was accepted. In the tender sent, the respondent No. 2 was accepted. In the tender sent, the respondent No. 2 had by erasing the figure of Rs. 96,00,000/-, substituted the figure of Rs. 1,22,00,000/- and that too without any signature or initial. Original offer was then returned to the advocate for respondent No. 2 and only the xerox copy was kept by the Joint Charity Commissioner. Ordinary practice regarding submission of tender and auction for getting the maximum possible price was not followed. The offer of respondent No. 2 was also conditional. The petitioner had informed the Joint Charity Commissioner that if time was given to him, as the time prescribed in the advertisement was too short he would file the tender of a particular value and if required he was prepared to increase the same, but to his utter surprise he was not called in person. On 31st January, 1994 the Joint Charity Commissioner passed a resolution-cum-order accepting the tender of the respondent No. 2 and rejecting the tender of the petitioner. The petitioner therefore preferred the Trust Appeal No. A.S. No. 1 of 1994 in the Gujarat Revenue Tribunal under Sec. 36(3) of the Act. It was pointed out to the Tribunal that the offer of respondent No. 2 was not in sealed cover and, therefore, it was not the valid offer. The Joint Charity Commissioner ought to have asked others to raise the price with a view to get the best price for the land in the interest of the Trust. The petitioner also brought to the notice of the Tribunal that his offer was not considered and rejected on irrelevant ground. He was also not given the opportunity to increase the price. As he was not called on 25th June, 1993 he could not do so. The handing over of the original tender back to the advocate of respondent No. 2 was contrary to law. The Tribunal however did not accept any of his submissions and rejected the Revision Application on 19th February, 1996. Being aggrieved by such orders the present petition is filed calling in question the legality and validity of the aforesaid two orders.

(3.) It is the contention of the learned advocate representing the petitioner that the learned Joint Charity Commissioner has passed the order arbitrarily overlooking the provisions of law. No endeavour to get the maximum possible price in the interest of Trust was ever made by the learned Joint Charity Commissioner. As made clear by the Supreme Court in the case of Ram & Shyam Company vs. State of Haryana, AIR 1985 SC 1147 when not the property of the individual but the property belonging to the State or the community or the public property is to be dealt with for public purpose and in public interest or the interest of the community, there should be no hanky panky and the deal must be done by the best price so that larger revenue coming into the coffers of the Trust administration would serve the interest' of those of for whose benefit the Trust is established & functioning. It is made clear at this stage that for the purpose of applying the principle as made clear by the Supreme Court so far as this case is concerned the Court may read the word 'Trust" in the place, the word "State". Regarding the approach to be adopted while dealing with the public properties attention of this Court is also drawn to another decision of the Supreme Court rendered in the case of Divya Manufacturing Company (P) Ltd. & Ors. vs. Union Bank of India & Ors., 2000 (6) SCC 69 wherein it is laid down that if any irregularity or illegality or fraud is found in auctioning out the property, it would be just and proper on the part of the Court to direct for inviting the sealed tenders again and carry out the auction or sale in accordance with law after giving due publicity in the newspaper. In the case on hand, the Charity Commissioner did not try his best to get the maximum price. The petitioner had offered to purchase the land for Rs. 1,40,00,000/- against the offer of respondent No. 1 for Rs. 1,22,00,000/-. The petitioner also challenges the orders on two more grounds. Firstly the tender must be unconditional but in the case on hand the offer of the respondent No. 1 was conditional, and secondly the offer must be sent in the sealed cover. However, in this case the offer was sent in cover simply pasted with gum, with the result the member of the staff of the Joint Charity Commissioner's office was able to open the same on 21st June, 1993, and he kept the same open & unsealed till 25th June, 1993 the day on which the tenders were to be opened. Owing to such mischief, the orders in question may be held bad in law. In support of such contention, my attention is drawn to the two decisions, one of the Bombay High Court in Datta Gyanaba Bokde vs. Vice Chancellor, Marthwada University, Aurangabad & Ors., 1990 Mah. LJ 775, and another of the Apex Court in Tata Cellular vs. Union of India, AIR 1996 SC 11. Attention is also drawn to the decision of this Court rendered in the case of Thakorebhai Gangaram vs. Ramanlal M. Reshamwala, 1993 (1) GLH 473, wherein the guideline for the powers to be exercised by the Charity Commissioner under Sec. 36 is given for the purpose of fetching maximum possible price. These decisions are not correctly appreciated by both the authorities below is also the submission advanced.