MOTILAL GIRDHARILAL SHARMA Vs. DATTATRAY BANDU JAGTAP

JUDGEMENT

(1.) By this petition, the petitioners seek to quash and set aside a judgment and order passed by the Joint Chanty commissioner, Pune region, Pune on 10-5-1991 on an application being Application no. 41/1990 filed by respondent Nos. 1 and 2 under Section 36 (2) of the Bombay Public trusts Act, 1950 (hereinafter referred to as "the said Act"). The petition further challenges another order dated 10-5-1991, passed by the joint Charity Commissioner, Pune region, pune on an application being Application no. 1 1/90 filed under Section 41 (E) of the said act, by which, for the reasons mentioned in the Judgment and order passed on Application no. 41/1991, the petitioner Nos. l to 3 were permanently restrained from dealing with the property in question.

(2.) A brief relevant facts of the case were as under :- (a) On 10-5-1956 one Mr. Wamanrao Laxmanrao Dahanukar gifted four plots of land bearing CTS Nos. 563, 564, 568 and 569 situated in Dahanukar colony at village-Kothrud, Dist.-Pune to "bharat Dalit sevasangh" which was the public trust registered under the provisions of the said Act. The gift was made by registered gift deed which was conditional in nature and the said deed contained a clause of reversion if the condition of the gift was not complied with. (b) In the year 1981, respondent no. 6-Trust decided to sell the lands gifted to them and applied to the Charity Commissioner for permission to sell the lands to one Mr. Gupta. In 1983 Mr. Wamanrao Laxmanrao dahanukar expired and his heirs raised an objection to the proposed sale of lands to Mr. Gupta and claimed reversion of the lands for breach of a condition in the gift deed. This proposed sale in favour of Mr. Gupta could not be completed for such and other diverse reasons. By early 1985, respondent No. 6-Trust was in debts. On 3-3-1985 in the meeting of the trustees of respondent No. 6 it was resolved to sell the land in question and the proposed sale was to be effected after advertisement. The Chairman of the trust Mr. Keshav Rajbhog was authorised to do all necessary acts to effect the sale. (c) On 10-4-1985 the Chairman of respondent No. 6-Trust Mr. Keshav Rajbhog entered into an agreement for sale with the petitioner-society and agreed to sell the said land at the rate of Rs. 30/- per square foot. This transaction was to be completed after obtaining the sanction of the Charity Commissioner under Section 36 (1) A of the said Act. An amount of Rs. 40,000/- was also taken by cheque on behalf of respondent No. 6-Trust and the fact of the taking such an amount by cheque was also mentioned in the agreement for sale. (d) After entering into such an agreement for sale, on 20-4-1985 an advertisement was given by the respondent no. 6-Trust in "bombay Sakal" inviting offers for purchase of the said land In response to this advertisement, respondent No. 6-Trust received three quotations of which the quotation of the petitioners at the rate of Rs. 30/ - per square feet was the highest. (e) These offers were considered by respondent No. 6-Trust in the meeting of the trustees held on 28-4-1985 and the trustees unanimously resolved that the quotation of the petitioners should be accepted. The minutes of this meeting also recorded that petitioner nos. 1, 2 and 3 had agreed to obtain the no objection certificate from Mr. Dahanukar. (f) According to the petitioners due to efforts made by them, they could secure an affidavit dated 15-5-1985 affirmed by a constituted attorney of 4 members of the dahanukar family withdrawing their objections for sale of the lands as communicated to the Charity Commissioner by their earlier letter dated 4-1-1993. On the same day i. e. on 15-5-1985, the said constituted attorney representing 4 members of the Dahanukar family addressed a separate letter to the Charity Commissioner re-stating that the said members of Dahanukar family were withdrawing their objections to the sale raised in the letter dated 4-1-1983 and further stating that they had no objection to the sale of the said lands. (g) On 11-6-1985, the President of respondent No. 6-trust filed an application dated 7-6-1985 in the office of the Chanty commissioner at Pune seeking a sanction to the proposed sale of the lands to the petitioners. The letter mentioned that respondent No 6-Trust had resolved to sell the lands in order to repay the loan due to Bank of Maharashtra and to execute certain planned projects. The society had resolved to give an advertisement in newspaper and to disclose condition No. 8 in the gift deed to the persons who make offers and such persons would also be asked to obtain a no objection certificate from the Dahanukars. That in pursuance of the advertisement, three quotations had been received and the quotation given by the petitioners was found to be the highest. It was disclosed that the sale price was to be Rs. 8,48,490/- of which Rs. 2.5 lakhs was to be utilised for repayment of the bank loan and the rest of the amount was to be utilised for construction at Hingane. It appears that the application did not disclose that an agreement for sale had already been executed by the President of respondent No. 6-Trust with then proposed petitioner No. 4-Society. The application also did not disclose that an amount of Rs. 40,000/- has been accepted by then proposed petitioner No. 4-Society. A reading of the application also indicates that there is no mention of the affidavit dated 15-5-1985 affirmed by the Constituted attorney on behalf of 4 members of Dahanukars family or of the letter dated 15-5-1985 signed by the constituted attorney on behalf of the said members of Dahanukars family, addressed to the Charity Commissioner at Pune. (h) On 25-6-1985, the Joint Chanty commissioner, Pune region, Pune was pleased to pass an order according sanction to respondent No. 6-Trust to sell the land for an amount of Rs 8,48,500/- to Popular Star society on the terms and conditions mentioned in the said order. The terms and conditions so mentioned were that the purchaser would pay the entire consideration by cheque in the name of the trust and would bear the entire expenses of registration and other incidental expenses if any. Another condition imposed in the order is that the amount of sale proceeds should be held as Trust Corpus and kept intact forever in the form of investments in long term fixed deposits with any Scheduled Bank or Cooperative bank approved by the State government under Section 36 of the Bombay public Trusts Act, 1950, and only the interest thereon shall be spent on the objects of the trust and the trust corpus would not be spent or utilised on the objects of the trust without the prior permission of the Joint Charity commissioner, Pune region, Pune. It was also directed that the execution of the sale should be completed within 6 months from the date of the order or within such further time that may be granted by the Joint Charity commissioner if deemed fit. (i) That on 16-7-1985 the four heirs of the deceased Wamanrao Dahanukar executed a release deed. This release deed recorded that the executants had received an amount of Rs. 50,000/- and had agreed to waive condition No. 8 in the gift deed which laid down a restriction on the sale of the land. According to the petitioners this release deed was executed by the heirs of deceased Dahanukar on their request and on their efforts and endorsement on this release deed indicated that the payments had been made to heirs of Mr. Dahanukar on behalf of respondent No. 6-Trust. (j) On 5-10-1985 respondent No. 6-Trust applied for exemption under Section 20 of the Urban Land Ceiling Act for transfer of the land to petitioner No. 4. (k) As the necessary permission for completion of the sale transaction under ULC act has not been received, on an application made by respondent No. 6-Trust, on 30-12-1985 the Joint Charity Commissioner, Pune region, Pune, granted a modification to the order of sanction and directed that the sale deed should be executed and completed by 30-6-1986. (l) On 26-6-1986 the Joint Charity commissioner, Pune region, Pune passed another order modifying his earlier orders directing the sale should be executed and complied within 6 months of the receipt of requisite permission of competent authority under Bombay ( ) Land Ceiling Act and the pune Municipal Corporation Act. By a further resolution in the meeting of the Respondent no. 6-Trust held on 16-10-1987 it was observed that it had become difficult for the trust to pursue the applications seeking permissions for completion of the sale and it was thus resolved that a power of attorney would be given to petitioner Nos. 1 and 3 for pursuing the said applications and accordingly, on 16-10-1987 such an irrevocable power of attorney came to be executed by and on behalf of respondent no. 6-Trust. (m) On 27-10-1988 the State government accorded'exemption under section 20 of the ULC Act for transfer of the said land to the petitioners in terms of the said order. On 21-11-1988 the Pune Municipal corporation approved the plan for construction on the said land and issued a commencement certificate. (n) On 1-9-1989, petitioner No. 4 through its Secretary-petitioner No. 3 preferred an application to the Joint Charity commissioner Pune. The application was styled as one under Section 41-A of the BPT act. It was mentioned in this application that the respondent No. 6 had executed an agreement of sale in favour of petitioner No. 4 and that petitioner No. 4 had paid Rs. 40,000/- as earnest money. That petitioner No. 4 had also paid Rs. 50,000/- to Indumati Dahanukar and Avinash Dahanukar for removing their objection raised in their letters dated 4-1-1983 and 10-6-1983 relating to the sale of the said land. That petitioner No. 4 had also paid an amount of Rs. 29,547.93/- for stay of the auction of the land contemplated by the tahshildar Karyalaya. It was prayed in this application that respondent No. 6-Trust should be directed to complete the transaction by accepting the remaining amount and should be directed to deposit such amount in bank. The say of respondent No. 6 on this application is not in this compilation. The Charity commissioner by his order dated 8-12-1989 directed the parties to complete the sale transaction within 3 months subject to prevailing relevant legal provisions applicable to the property and the transaction. The Joint charity Commissioner further directed respondent No. 6-Trust to give credit of rs. 1,19,547.93/- to the petitioner stating that the said amount was already received and that the transaction should be completed by payment of the remaining amount. (o) In pursuance of the order passed by the Joint Charity Commissioner on 14-1-1990 the trustees of respondent No. 6-Trust resolved to execute a registered conveyance and accordingly, the sale deed of the land was executed on 15-2-1990 in favour of the petitioner No. 4-Society. (p) On 28-2-1990, the sale deed dated 15-2-1990 was lodged for registration before the Sub-Registrar Haveli No. 2. (q) On 20-5-1990 the petitioners published a notice of the intended purchase in "daily Sakal". An objection to the sale was published in "dainik Prabhat" on behalf of the trust and its trustees. This objection was issued through an Advocate Eknath Kamble. It appears that objection was merely technical in nature which can be seen from a further letter dated 2-7-1990 addressed by the President of respondent No. 6 to respondent No. 1 stating that the sale had indeed been effected in favour of "popular Star Society" and not to "popular housing Society Ltd. " or "popular Star association". (r) On 22-8-1990 respondent Nos. 1 and 2 filed an application being Application no. 3/90 under Section 36 (2) of the BPT Act seeking revocation of the sanction order dated 25-6-1985 passed in Application No. 100/85. Another Application No. 11/90 purporting to be under Section 41-E of the said Act was also filed by respondent Nos. 1 and 2 and the same sought an injunction against the completion of the registration of the sale deed and an order restraining the operation of an irrevocable power of attorney executed by the President of respondent No. 6-Trust. A third application came to be filed under Section 41-A of the said act and the same is still not yet disposed of. (s) During the pendency of the aforesaid applications, on 28-8-1990 the sale deed dated 15-2-1990 came to be registered. (t) On 10-5-1991 the Joint Chanty commissioner, Pune region, Pune was pleased to allow application No. 41/90. He revoked the sanction to the sale of lands granted in application No. 100/85 and directed the trustees to take necessary further legal steps for recovery of the property and return of the amount as contemplated under Section 36 (2) and (4) of Bombay Public Trusts Act, 1950. It is an admitted position that the said order was passed on the footing that the sale deed dated 15-2-1990 had not been registered. A plain reading of the order indicates that the order was passed without the knowledge that the sale deed dated 15-2-1990 had been registered on 28-8-1990. On the facts of the case, the additional Chanty Commissioner concluded that the permission to sell the land has been obtained by fraud, mis-representation and concealment of facts. On the same date i. e. on 10-5-1991, the Joint Chanty Commissioner also disposed ot Criminal Application No. 11/90 and directed that for the reasons mentioned in the Judgment and order passed in application No. 41/90, the petitioners were permanently restrained from dealing with the property in question in any manner. (u) Aggrieved by the aforesaid 2 orders, the petitioners filed this petition in this court.

(3.) On behalf of the petitioners the first objection that was raised was that the Joint chanty Commissioner, Pune region, Pune could not have exercised powers under Section 36 (2) of the BPT Act as the sale deed dated 15-2-1990 had already been registered on 28-8-1990 i. e. prior to the order dated 10-5-1991 revoking the sanction granted on 25-6-1985. It was contended that the legal question as to whether revocation of sanction granted under section 36 (1) was permissible after execution of the sale deed pursuant to grant of sanction was no longer res-integra and was decided by several judgments. Reliance was placed on a division Bench Judgment of this Court in the case of Shri Mahadeo Deosthan Vs. Jt. Charity Commissioner, reported in 1969 mh. L. J. 269. It was further pointed out that the ratio laid down by the Division Bench of this Court was followed by a Single Judge in the case of Fatmabai Vs. State of maharashtra reported in AIR 1991 Bombay 220 and yet again by another Division Bench of this Court in the case of Dr. Sam Sarosh bhacca and Ors. Vs. P. V. Kakade, Jt. Charity commissioner and Ors. reported in 1994 BLR 714.