CHUNILAL HARMANCHAND Vs. STATE OF GUJARAT & 4

JUDGEMENT

(1.) THE petitioner has preferred the present petition invoking PIL jurisdiction of this Court for appropriate writ to cancel NA permission granted vide order dated 07.03.2012 for Final Plot no.269 of village Vastrapur, District Ahmedabad on the ground that the same was obtained by misrepresentation and against the public interest. The petitioner has also prayed for appropriate writ to prohibit respondent no.3 from entering into sale deed in favour of respondent no.4 and it is prayed that the order of the Charity Commissioner dated 09.07.2013 be quashed and set aside since as per the petitioner, the same is by fraud and misrepresentation. We may record that pending the petition, the petitioner has added prayer to declare that the NA permission issued by respondent no.2 dated 07.03.2012 is liable to be quashed and set aside since the same is inconsistent and incompatible with the Government notification dated 08.01.1974 under section 88 of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as the "Act"). The petitioner further added the prayer by amendment seeking declaration that the transfer of the land bearing Final Plot No.269 of village Vastrapur, the land in question, as null and void since as per the petitioner, the same is in violation of Government Notification dated 08.01.1974. The petitioner has further added the prayer to permanently restrain the respondents no.3 and 4 from using the land in question for the purpose other than education as stated in the notification dated 08.01.1974 of the State Government. A prayer is also added by amendment by the petitioner seeking appropriate writ against respondents no.1 and 2 to take action and the measures forthwith to ensure that no commercial development is carried out by the respondents no. 3 and 4 in violation of the notification dated 08.01.1974 over the land in question. The petitioner has also prayed by amendment to direct the respondents no.1 and 2 to take steps to resume the possession of final plot no.269 from respondents no.3 and 4 for committing violation of the State Government's notification dated 08.01.1974.

(2.) IN our view there are composite and interconnected prayers made in the petition, but in substance, it can be said for challenging the legality and validity of the NA permission granted by the Collector, respondent no.2 and the permission granted by the Charity Commissioner to sell the land in question under section 36 of the Bombay Public Trusts Act, (hereinafter referred to as the "Trust Act") to respondent no.5 herein. Based on both the aforesaid prayers, it can be said that further prayers have been made by the petitioner to declare the transaction for transfer of the land as void and the petitioner is seeking the use of the land only for educational purpose and not for any commercial development even after transfer or in alternative the prayer is made that the land be resumed by the State Government. It is in light of the aforesaid prayers made and the prayers in substance, we may be required to examine the facts of the case.

(3.) THE short facts of the case appear to be that the respondent no.3 is a charitable trust established with an object to undertake educational activities. As per respondent no.3, it has undertaken various educational activities by establishment of colleges, schools, etc. and, pending the litigation, by statutory provision, it is a private university for educational purpose. Since the respondent no.3 was contemplating to expand its activity in the field of education including that by setting up the university, it was in need of huge money, approximately about Rs.200 crores and therefore, it had decided to generate the fund by disposal of its certain properties and one such property was Final Plot No.269 of village Vastrapur(hereinafter referred to as the "land in question"). Since respondent no.3 is a trust, as the permission was required to be obtained for disposal of the land, an application under section 36 of the Trust Act was made before the Charity Commissioner. As per the respondent no.3, all details were submitted, but pending the application under section 36 of the Trust Act, respondent no.3 in order to realise higher value of the land in question, also moved application to the District Collector under section 65 of the Bombay Land Revenue Code (hereinafter referred to as the "Code") for NA permission for residential use. The NA permission was granted by the District Collector vide order dated 07.03.2012 and thereafter, the Charity Commissioner granted permission under section 36 of the Trust Act vide order dated 09.07.2013 for sale of the land to respondent no.4 against the consideration of Rs.137.01 crores. It further appears that after the order dated 09.07.2013 was passed by the Charity Commissioner under section 36 of the Trust Act, on 21.08.2013, one Tushar Patel and another preferred Writ Petition (PIL) No.210/13 before this Court and this Court in the said petition initially granted interim order for status quo. Thereafter, the said writ petition ultimately vide order dated 24.10.2013 was dismissed and it was directed that the petitioners shall pay the cost of Rs. 25,000/ to be deposited with the High Court Legal Service Committee. It appears that thereafter, the petitioner herein challenged the aforesaid decision of this Court dated 24.10.2013 in Writ Petition (PIL) No.210/13 in the case of Tushar Patel and another before the Apex Court being SLP (C) No.20500/13 on the ground that he being the member of the Trust, would be affected. The Apex Court in the said SLP, vide order dated 09.12.2013, observed in the SLP preferred by Tushar Patel that once the High Court found that the litigation was not bonafide, the High Court ought not have gone into the merits of the matter, but so far as the petitioner is concerned, the Apex Court observed that the liberty can be granted to the petitioner to approach before the High Court for redressal of the grievance. Therefore, the Apex Court further observed that if the petitioner approaches before the High Court for redressal of the grievance, the High Court shall consider the matter afresh in accordance with law uninfluenced by the observations made in the impugned judgment in order dated 24.10.2013 in Writ Petition (PIL) No.210/13 concerning to the merits of the matter and the rights and contentions of both the sides were kept open. It may also be recorded that simultaneously Tushar Patel had also filed SLP before the Apex Court against the judgment dated 24.10.2013 being SLP (C) No.36328/13 and the Apex Court dismissed the said SLP.