ASHOK ANANDRAO RASTE Vs. VIJAY RISHIDEO SHASTRI

JUDGEMENT

(1.) THIS petition is directed against the Judgment and Order rendered by the Charity Commissioner at mumbai on 13/6/1986 thereby allowing the application filed under Section 36 (2) of the Bombay Public Trust act, 1950 (the Act for short ). The relevant facts leading to this petition would be briefly stated as under: the land in old City Survey No. 101 (new City survey No. 5873) at Panchvati, District Nasik admeasuring 1 Acre and 3 Gunthas along with structures thereon belongs to Shri Balkrishna Prabhudeo Panchwati trust, which is registered under the Act and the petitioner no. 1 claimed to be the sole trustee of the said trust. Shri Thakkar Vagji Ramdas Seth Bhati was tenant in respect of Survey No. 101 and Mr. Thakkar vagji filed R. C. S. No. 97 of 1920 against the trust. The suit was compromised and accordingly a compromise decree was passed in 1921. As a result, Vagji was to retain his possession for 50 years from the year 1921 to 1971 and on annual rent of Rs. 90/-and he was thereafter required to hand over the possession to petitioner no. 1 after removing structures, if any, erected during the said period of 50 years. However, vagji leased out Survey No. 101 to one Shri R. D. Shastri, the predecessor of the present respondent nos. 1 to 3 on annual rent of Rs. 150/- for the period from 1/2/1924 to 31/1/1972 i. e. till the expiry of the lease period originally granted in favour of vagji. Mr. R. D. Shastri erected temporary sheds on the suit land and leased them to 26 tenants on a monthly rent of Rs. 900/-and the said tenants continued to be in possession all along (Petitioner nos. 2 to 27 ). Mr. Vagji's rights got extinguished on 31/1/1972 as per the decree passed in RCS No. 97 of 1920. The tenants of Mr. Shastri became deemed tenants of the trust in respect of their respective tenements by virtue of amendment to Section 15-A of the Bombay rent Act which came into force with effect from 1/2/1973. The tenants inducted by Mr. Shastri formed an Association by name "niyojit Azad Chowk Bhadekari sahakari Sangh" with a view to form a Co-operative housing Society with Petitioner No. 2 as its Chief Promoter.

(2.) PETITIONER No. 1 -trustee entered into an agreement for sale on 14/8/1975 with the Chief promoter of the said Association of the tenants to sell the suit land for a consideration of rs. 1,00,000/-and received Rs. 10,000/-as earnest money deposit and the said agreement was subject to the sanction to be granted by the Charity commissioner. The trustee released advertisement in a local newspaper called "gaokari" on 9/1/1976 and invited bids for the sale of the suit property. Only one offer for Rs. 70,000/- with earnest money deposit of Rs. 5000/-was received. On 22/1/1976 the petitioner no. 1 submitted an application to the charity Commissioner purported to be an application under Section 36 (1) (a) of the Act seeking sanction for sale of the suit land. Petitioner No. 2 also submitted the similar application on 25/3/1976 to the Charity commissioner. On 3/6/1976 the said application was allowed and thus the proposed sale in favour of respondent nos. 1 to 3 was sanctioned. On 12/6/1976 the petitioner no. 2 submitted an application to the charity Commissioner requesting to reconsider the order dated 3/6/1976. On 12/6/1976 the petitioner no. 1 submitted an application to the Charity commissioner stating that he did not wish to sell the trust property to respondent nos. 1 to 3. On 5/1/1978 the petitioner no. 1-Trust filed an application under section 36 of the Act before the Charity Commissioner for permission/approval to sell the Trust land as per the agreement dated 4/8/1975 and for a consideration of Rs. 1,30,000/-to the Bhadekaru Sangh. The said application was allowed on 10/12/1979 under Section 36 (1) (c) of the Act for sale of the trust property to azad Chowk Bhadekaru Sangh for Rs. 1,30,000/ -. The respondent nos. 1 to 3 filed an application purported to be under Section 36 (2) of the Act before the charity Commissioner on or about 27/2/1980 and the said application was allowed by the Joint Charity commissioner on 20/7/1981 thereby revoking the sanction order dated 10/12/1979. This order dated 20/7/1981 came to be challenged by the petitioner nos. 2 to 27 before this court in Original Side Writ petition No. 1581 of 1981 and the impugned order was stayed. In the meanwhile, the petitioner no. 1 - trust executed sale deed with petitioner nos. 2 to 27 in respect of the suit property purportedly on the basis of the sanction order dated 10/12/1979. Writ Petition no. 1581 of 1981 was decided on 6/2/1986 and the impugned order dated 20/7/1981 was set aside by remanding Application No. 1 of 1980 for fresh hearing and decision by the Charity Commissioner who, in turn, heard the parties and passed the impugned order on 13/6/1986.

(3.) BEFORE I proceed to deal with the petition on merits, it needs to be noted that during the pendency of this petition, some of the petitioners i. e. petitioner nos. 2 to 27 have already alienated their respective shares or part of it to third parties.