JESUS AND MARY GUJARAT SOCIETY Vs. LAKHABHAI ARJANBHAI

JUDGEMENT

(1.) The petitioner is a registered Society under the Societies Registration Act No. 21 of 1860. It is alleged that it was also registered as a public trust under the provisions of the Bombay Public Trusts Act No. 29 of 1950 at Baroda office. The Society passed a Resolution in its meeting held on 1-4-1974 to purchase land for agricultural training to be given to Home Science girls of "Seva Niketan", i.e., the Institution run by the Society at village Gothada, Taluka Savali, District Baroda and to move an application for that purpose before the concerned Collector for permission to purchase the land of S. No. 24 belonging to one Shri Lakha Arjan and S. No. 27 of Manilal Govind of Gothada. It is alleged that "Seva Niketan", Gothada (Savali) also runs a "J. M. Mahila Unnati Kendra" and "J. M. Gruhini School" at Gothada. On 28-5-1974 the respondent No. 1 Lakha Arjan (who is now represented by LRs., i.e., respondent Nos. 1/1 to 1/4) entered into a written agreement to sell the agricultural land admeasuring 2 Acres and 23 Gunthas in S. No. 24 of village Gothada to the petitioner-Society for a sum of Rs. 17,500.00. The reference has been made to the order dated 2-8-1974 passed by the Collector, Baroda granting permission for the sale and purchase of the land of S. No. 27 belonging to Manilal Govindlal and land of S. No. 24 belonging to Lakha Arjan. The sale deed was then executed on 29-8-1974 by the respondent Lakha Arjan in favour of the petitioner-Society but it was executed only in respect of 1 Acre and 38 Gunthas of land out of S. No. 24 belonging Arjan, although Banakhat was made for the entire land, i.e., 2 Acres and 23 Gunthas. The sale deed was registered on 30-9-1974. The case of the petitioner-Society is that the respondent Lakha Arjan had represented to the Sister Ann Joan of the petitioner-Society that he belonged to poor strata of the society and, therefore, 25 Gunthas of the land out of 2 Acres and 23 Gunthas comprising S. No. 24 be allowed to remain with him so that he can maintain himself and his family and that if any objection is later on taken on the ground of fragmentation, he commits himself to set things right in accordance with the Rules. These averments have been made in the petition to explain as to why the sale deed was executed only in respect of 1 Acre and 38 Gunthas of the land instead of 2 Acres and 23 Gunthas, although the agreement and the permission granted by the Collector was for the entire land of 2 Acres and 23 Gunthas and thus out of sympathetic consideration the petitioner-Society purchased only 1 Acre and 38 Gunthas of land and yet did not reduce the amount of Rs. 17,500.00 which was agreed for the entire land of 2 Acre and 23 Gunthas. It is also stated that the petitioner-Society had in fact paid Rs. 18,768.50 Ps., to the respondent including the advances, which had been made to the respondent on his frequent personal needs. Upon the execution of the sale deed dated 29-8-1974 the possession of the land admeasuring 1 Acre and 38 Gunthas was handed over to the petitioner-Society and the case of the petitioner- Society is that this land is being used to achieve the objects of the Society, the land was mutated in favour of the petitioner-Society in Revenue Records by Mutation Entry No. 7063 on 9-1-1975 certified on 20-4-1975.

(2.) That later on after a period of nearly 6 years a notice dated 1-9-1980 was issued by the Assistant Collector to show cause as to why the said sale should not be declared invalid being in contravention of the Bombay Prevention of Fragmentation Act. The matter was then heard before the Assistant Collector, Baroda who passed the order dated 27-5-1981 that the sale of 1 Acre and 38 Gunthas out of S. No. 24 was not in breach of the said Act and hence the said sale was held to be legal and valid and it was also held that the petitioner was running a School at Gothada and it was catering for public purpose within the ambit of the Government Resolution. The respondent Lakha Arjan then preferred a Revision Petition against the Assistant Collector's order dated 27-5-1981 before the Secretary (Appeals), Revenue Department, Government of Gujarat who remanded the matter for fresh notice and fresh hearing vide order dated 16-11-1981. In the remanded proceedings, as aforesaid, the Assistant Collector passed an order on 1-6-1982 holding that the sale was in contravention of the provisions of S.8 of the Bombay Prevention of Fragmentation Act and, therefore, the possession of the land should be restored to respondent No. 1. Against this order dated 1-6-1982 passed by the Assistant Collector, this time the petitioner-Society preferred Revision Application before the Secretary (Appeals), Revenue Department, who dismissed the Revision Application vide its order dated 30-10-1982 conveyed to the petitioner-Society vide communication dated 6-12-1982 and thus order dated 1-6-1982 passed by the Assistant Collector was confirmed. Aggrieved from this order dated 30-12-1982 passed by the Secretary (Appeals), Revenue Department, the petitioner-Society preferred this Special Civil Application on 23-2-1983 with the prayer that the impugned orders dated 1-6-1982 passed by the Assistant Collector, Baroda and the order passed on 6-12-1982 by the Secretary (Appeals), Revenue Department may be quashed and set aside. It appears that while issuing Rule, ad interim relief in terms of Para 15(B) was granted in this matter and thereby the operation of the impugned orders dated 1-6-1982 and 6-12-1982, i.e., Annexures 'L' and 'M' was stayed on 24-2-1983. On 20-10-1997 this Court (Coram : S. K. Keshote, J.) after hearing the learned Counsels for both the sides opined that the Panchanama had to be prepared in respect of the land bearing S. Nos. 17, 19, 20, 23, 24 and 27 which was purchased by the petitioner and are in possession of it for all these years with reference to the fact as to what activities on the lands of these Survey Nos. the petitioner is carrying on for all these years, the care was to be taken by the officer concerned as to what use the lands are being put to by the petitioner and accordingly the Collector, Baroda was directed to get the Panchanama of the lands, as aforesaid, prepared with reference to the aforesaid object and purpose by an officer not below the rank of Deputy Collector and the Panchanama was to be prepared after notice to the petitioner and the respondent Nos. 1/1 to 1/4 and the same was to be sent to this Court on or before 10-12-1997. In pursuance of this order, the Panchanama was prepared on 6-12-1997 and the copy of the same is on record.

(3.) The learned Counsel for the petitioner has assailed the impugned orders Annexures 'L' and 'M' dated 1-6-1982 and 6-12-1982 respectively on several grounds and has also submitted that the objections could not be taken against the executed sale deed of 1974 after a period of 6 years in the year 1980 and while inviting the attention to the objects of the petitioner-Society it has been submitted with reference to the provisions of S.8A that S. 7 and 8 of the Bombay Prevention of Fragmentation Act, 1947 shall not apply to a transfer of any land for such public purpose as may be specified in this behalf by the State Government by Notification in the Official Gazette. He has invited the attention of this Court to the Government Resolution, the copy of which has been placed on record as Annexure "J" at page 41 of the paper-book of this Special Civil Application. The contents of Annexure "J" show that in exercise of the powers conferred by S.8A, the Notification was issued on 14-4-1959 declaring that the provisions of S.7 and S.8 shall not apply to the transfer of a land for the public purposes, namely, (i) construction of public wells, tanks, canals, channels or other waterways, (ii) construction of dharmashalas, schools, public dispensaries and public libraries, (iii) construction of roads, (iv) burial or cremation ground, (v) construction of latrines by a Local Authority for use of the public, (vi) construction of houses by Cooperative housing societies and (vii) construction of gymnasium for the use of the public. The learned Counsel for the petitioner has submitted that the petitioner- Society is a Public Trust and the Resolution, which was passed by the petitioner- Society on 1-4-1974 for purchasing the land in question, copy of which is placed on record as Annexure 'C' at page 20 of the paper-book, shows that the land was purchased for training to be given to the Home Science girls and this activity includes the public purpose of having a School and it is covered by the public purposes mentioned in the Notification issued by the Government of Gujarat, the copy of which is at Annexure 'J'. On these premises, it has been submitted that there was no basis or justification for the Assistant Collector to pass the impugned order dated 1-6-1982 nor the order could be upheld, as has been done by order dated 6-12-1982 by the Secretary (Appeals), Revenue Department of the Government of Gujarat. The learned Counsel for the petitioner has cited the following cases in support of his submissions and has also relied upon the meaning of the word "School" as given in the Law Lexicon - 1997 Edition by Mr. P. Ramanatha Aiyar as under : "SCHOOL :- An institution of learning of a lower grade than a College or a University, a place of primary instruction. "School" is a generic term, and denotes an institution for instruction or education in general. A School is an institution for learning; and educational establishment; an assemblage of scholars; those who attend upon the instruction in a school or any kind; any place or means of discipline, improvement, or instruction. The term "School" also denotes a collective body of public in any place of instruction and under the direction and disciplines of one or more instructions." In [1984 (2)] XXV (2) GLR 1225 (Ranchhodbhai Lallubhai Patel v. State of Gujarat) the Court considered the case of a transfer without the permission of the Collector in which the proceedings for fine and summary eviction were initiated after 7 years and it was held that the exercise of the powers under S.9 of the Bombay Prevention of Fragmentation Act, 1947 at a grossly belated stage was unreasonable, unjust and illegal. In 1992 (1) GLH 93 (Bhaniben Makanbhai Tandel v. State of Gujarat ) the Court was concerned with the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 and the purchase of agricultural land by a non-agriculturist. The delay in initiation of the proceedings by the Government was found to vitiate the proceedings and the order of Mamlatdar to hand over the possession of agricultural land to the original vendor failing which sale was to be declared invalid, was quashed. In this case, after the registration of the document, mutation entries were made in 1968 and the same was certified on 13-6-1969. The contention was that such entry was illegal on the ground that the petitioners were not agriculturists in respect of the land and the transaction was hit under S.63 of the Tenancy Act. The order to hand over the possession back to the original vendor was passed. Aggrieved from the said order, Tenancy Appeal No. 66 of 1978 was preferred before the Deputy Collector, Valsad and the same was dismissed on 5-6-1978. The Gujarat Revenue Tribunal also dismissed the Revision Application on 11-1-1980 and thereupon the Special Civil Application was filed. The Court found that with regard to the entries made in the year 1969, the proceedings under S.84C of the Tenancy Act were initiated in 1975 and thus there was a delay of 7 years and on that ground the impugned orders were quashed. In (1976) XVII GLR 464 (Chhaganbhai v. Vallabhbhai) the Court was concerned with the Bombay Prevention of Fragmentation and Consolidation of Holdings Act and the Court held that though S.35 of the Act confers upon the State Government revisional jurisdiction which it may exercise 'at any time', but it should exercise it within a reasonable time. It was further held that what is a reasonable time depends upon the facts and circumstances of each case and merely because S.35 or any other section of the said Act does not prescribe any period of limitation and provides that it may be exercised 'at any time', it does not mean that it can be exercised after any length of time. In Para 9 of this judgment a reference was made to a Supreme Court decision in the case of State of Gujarat v. Patel Raghav Natha , reported in (1969) X GLR 992 (SC) : [AIR 1969 SC 1297] in which the Supreme Court held that even if no limitation is prescribed, the jurisdiction is to be exercised within a reasonable time depending upon the facts and circumstances of each case. The exact words, in which the Supreme Court observed, are as under :-