GULAB HASAN PATHAN Vs. GULSHAN FAROOK PATHAN

JUDGEMENT

(1.) THIS Letters Patent Appeal is at the instance of original writ petitioners as they are aggrieved by order dated 12.3.98 whereby the learned Single Judge dismissed the writ petition filed by them in limine.

(2.) THE respondent No.1 herein (sole trustee) made an application under section 36(1)(b) of the Bombay Public Trust Act, 1950 (for short "Act of 1950") in the matter of Masjid Devasthan Trust (for short "Trust"), Taluka Junnar, District Pune praying for sanction of the Charity Commissioner to permit the sole trustee to enter into the lease transaction in respect of the agricultural land held by the trust. In the application the sole trustee stated that the trust was registered in the year 1961 which owns about 105 acres of agricultural land. The land bears Gat No. 1009, Hissa Nos. 1 to 5 and is situated at village Hivre, Narayangaon, Taluka Junnar. Out of 105 acres of the land owned by the trust, 35 acres of land is Bagayat land while rest is Jirayat land. It was also stated in the application that about 50 acres of land is cultivable and can be utilised for seasonal crops but rest of the land requires lot of improvement such as irrigation, levelling, pipeline, plotting etc. before it can be cultivated. The sole trustee stated that as the land of the trust is not being put to its maximum output for want of funds and expertise, it was desirable to lease out the said land. He averred that in connection thereof he had already invited tenders in sealed covers by publication of advertisement in local Marathi newspaper Prabhat dated 25.10.96 which is widely circulated in Narayangaon locality and in response thereto, two offers were received but the offer of Belvandi Champagne Farms Pvt. Ltd. was found reasonable and accordingly, memorandum of understanding was entered with the proposed lessee on 16th January, 1998. The sole trustee averred that from the lease premium the Mosque building would be reconstructed which requires reconstruction and the said amount shall also be utilised for fencing of the Kabrastan properties, colouring and for construction of the Arabic Madarasa and celebrating annual festivals of Islamic faith. Alongwith the application the sole trustee annexed memorandum of understanding entered with the proposed lessee. The Joint Charity Commissioner considered the application and after taking up the matter with the sole trustee and the proposed lessee, partly allowed the application by order dated 4.2.98. Thereby, the Joint Charity Commissioner granted sanction to the sole trustee of the trust under section 36(1)(b) to lease out the trust property bearing Gat No. 1009/1 to 1009/3, for a period of 50 years to the proposed lessee on the terms and conditions mentioned in the draft memorandum of understanding. The Joint Charity Commissioner further directed that the lessee shall pay the lease amount as per the memorandum of understanding by Account Payee cheques/demand drafts in the name of the trust and that lease amount shall be utilised interalia for the purposes and objects of the trust. The said order dated 4.2.1998 came to be challenged by present petitioners in writ petition No. 1263 of 1998. The petitioners claimed themselves to be the beneficiaries of the trust and also trustees thereof but stated that the dispute as to whether petitioners were trustees or not was pending. The petitioners challenged the order passed by the Joint Charity Commissioner on diverse grounds amongst others that the sanction accorded by the Joint Charity Commissioner was not to the interest, benefit or protection of the trust. The learned Single Judge before whom the writ petition came up for admission, dismissed the writ petition in limine by following order:- "No reason to interfere. I find that Joint Charity Commissioner, Pune Region, Pune has taken into consideration all the aspects before granting sanction under section 36(1)(b). Reasoning given in para 5 of the impugned order affirmed. Rejected."

(3.) FROM the bare perusal of the application made by the sole trustee under section 36(1)(b) of the Act of 1950 before the Charity Commissioner, it is clear that the trust owns 105 acres of agricultural lands. Out of the said land 35 acres is bagayat land. Besides that, even as per the sole trustee about 50 acres of land is cultivable. In the application, the sole trustee has stated that present annual income from the said agricultural land is Rs.1 lakh approximately. As regards the utilisation of proceeds from lease, the sole trustee averred that the funds would be used for Mosque building, fencing of Kabrastan properties, colouring and for construction of Arabic Madarsa. No details have been given in the application about the utilisation and expenditure of existing annual income of rupees one lac. No material was placed by the sole trustee as well showing the expenditure of annual income of Rs.1 lac derived from the said agricultural land. It does not appear from the order passed by the Joint Charity Commissioner that he examined the accounts of the trust at least of the last three years to find out whether the existing income of Rs.1 lac was properly utilised by the sole trustee. Surprisingly it is only the sole trustee who gave an advertisement in local Marathi newspaper Prabhat for lease of the agricultural land owned by trust before making application under section 36(1)(b). The Joint Charity Commissioner did not take steps before passing the order under section 36(1)(b) inviting offers for the lease of the land by trust by giving advertisements in widely circulated newspapers. It was particularly necessary in the facts and circumstances of the case as the sole trustee intended to lease the agricultural land admeasuring 105 acres which is substantially large chunk of land for long term of lease exceeding 10 years. The land is situate at village Hivre, Narayangaon which is indisputably very suitable for grapes growing. Obviously, if the offers were invited by advertisement in widely circulated newspapers of National and State level, the offerers interested for this large tract of land for growing grapes and agro processing activity could have made their offers giving wider choice of selection and proper return. Not only that, it appears from the application itself that for the purposes of stamp duty the State Government has fixed the valuation of bagayat land at Rs.75,000/- per acre and for jirayat land at Rs.25,000/- per acre. The Joint Commissioner did not make efforts nor did he take steps to find out market value of the land in question and the lease premium based on that valuation. It is admitted case of the sole trustee that in pursuance to the notice published by him in Prabhat on 25.10.96 inviting tenders for the lease of agricultural land of the trust, only two offers from (i) from Belwandi Champagne Farms Pvt. Ltd. and (ii) Indage Wines, Mumbai were received. This itself shows that advertisement inviting offers was not made in widely circulated newspapers. The Joint Charity Commissioner failed to consider that the lease of agricultural land for a period of 50 years is a very long tenure and the lease amount was required to be fixed keeping in view this aspect. We also find that the Joint Charity Commissioner failed to pay due attention to the terms and conditions of the memorandum of understanding dated 16th January, 1998 entered into between the sole trustee and the proposed lessee which provided permission to the lessee to set up agro processing unit for commercial yield and to set up vineyards which obviously would affect the nature of the land when granted for such a long term of lease. The Joint Charity Commissioner was not right when he observed in para 5 of the impugned order that the trust land is undeveloped from which trust does not get income. This is factually incorrect as we have already noted above that out of 105 acres of land, 35 acres of land is bagayat land and in all about 50 acres of land is under cultivation from which the trust admittedly derives annual income of Rs.1 lakh. At the rate of lease premium fixed under the memorandum of understanding the trust will initially receive an amount of Rs.2,10,000/- per year for few years and marginal increase thereafter. Even presently, without lease, the trust is deriving annual income of Rs.1 lac from the agricultural land and, therefore, it is very difficult to appreciate how the lease of the land for 50 years at such a low lease premium would be in the interest and for the benefit of the trust. In our considered opinion, the Joint Charity Commissioner failed to give due regard to the interest, benefit and protection of trust property while considering the application made by sole trustee under section 36(1)(b) of the Act of 1950 for grant of permission to him to lease the trust property for 50 years. We do not want to deal with the matter further and elaborately as the application made by sole trustee under section 36(1)(b) needs to be examined and considered by the Joint Charity Commissioner afresh in accordance with law. By indicating the reasons in brief our endeavour was to demonstrate that Joint Charity Commissioner has not taken into consideration all relevant aspects and the impugned order cannot be sustained. We may observe that by our order dated September 8, 2001 we permitted learned counsel for respondent No.3 to seek instructions as he submitted before us on that date that respondent No.3 is prepared to enhance the lease premium but today during the course of arguments Mr. Gupte, learned counsel for respondent No.3 submitted that the said respondent is not desirous of enhancing the lease premium.