Allowed

The State of Maharashtra, through Revenue and Forest Dept v. Narshinha Saraswati Swami Dattadev Sansthan, through Shri. Pandurang D. Pujari and Ors.

Bombay HC18 Jun 2013RPW/36/2013

Case brief

AI extract

What is this about?

The High Court allowed a review petition filed by the State of Maharashtra to recall a 2009 order confirming the alienation of public trust land. The Court recalled the order to permit the State to intervene in the main writ petition regarding statutory embargoes, while maintaining the status quo for the sale deed purchaser.

What did the court decide?

Review Petition allowed. Order dated 15 December 2009 recalled. State of Maharashtra joined as party-Respondent. Writ Petition No.618 of 2001 restored to file for final hearing.

The State of Maharashtra, through Revenue and Forest Dept… — Property and Title | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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REVIEW PETITION NO.36 OF 2013 IN

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WRIT PETITION NO.618 OF 2001

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The State of Maharashtra through Revenue and Forest Department .. Petitioner Vs. Narshinha Sarswati Swami Dattadev Sansthan & Ors. .. Respondents

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Mr. N.P. Deshpande, AGP for the Petitioner.

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Mr.A.Y.Sakhare, Senior Advocate with Mr. S.V.Sadavarte for Respondent No.1.

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Mr. Vineet B. Naik, Senior Advocate with Mr. Sukand R. Kulkarni for Respondent No.2.

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Mr. S.A. Sawant for Respodent No.3.

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CORAM : N.M. JAMDAR, J. DATE : 18 JUNE 2013

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P.C. :

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. Heard Mr. Deshpande, learned AGP for the Petitioner, Mr. Sakhare, learned Senior Advocate for Respondent No.1, Mr.Naik, learned Senior Advocate for Respondent No.2, and Mr.Sawant and learned Counsel for Respondent No.3.

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By this Review Petition, the State Government seeks to recall the order dated 15 December 2009 passed in Writ Petition No.618 of 2001. The delay in filing the Review Petition was condoned by order

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passed in Civil Application No.56 of 2013.

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The Writ Petition No.618 of 2001 pertains to the lands bearing Gat No.175/A admeasuring 68 R and Gat No.175/B admeasuring 91 R at Kabnur, Taluka Hatkalangale, District Kolhapur. Respondent No.3-Trust applied to the office of the Charity Commissioner for permission to dispose of the said property. The Charity Commissioner granted permission to alienate the property. One of the bidders, who had participated in the proceedings before the Charity Commissioner, challenged the order of the Charity Commissioner, granting permission in favour of Respondent No.5 by Writ Petition No. 618 of 2001. The Writ Petition No.618 of 2001 along with Civil Applications filed by other parties came up before this Court and was disposed of by Minutes of order dated 15 December 2009. It appears that the Minutes of order were not signed by some of the parties. By the order dated 15 December 2009, the order passed by the Charity Commissioner was confirmed.

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It appears that thereafter sale deed has been executed in favour of Respondent No.2 on 12 March 2012. Thereafter, Respondent No.2 applied to the Revenue Authority for entering his name in the revenue record pursuant to the sale deed in his favour. The Revenue Authority declined to enter his name in the revenue record. Thereupon, the Respondent No.2 filed a Writ Petition No.9588 of 2011. In the said Writ Petition, the Division Bench noted the order passed in Writ Petition No.618 of 2001 dated 15 December 2009. During the course of the hearing, the learned AGP submitted that in view of the provisions

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of Section 8(3) of Exemption from Land Revenue Act, 1863, the sale deed executed in favour of Respondent No.2 itself was not legal. The learned AGP thereafter submitted that the State is contemplating to seek review of the order dated 15 December 2009 and thereupon the present Review Petition has been filed.

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The learned AGP submitted that the review is sought on two grounds, firstly that the lands sought to be alienated are Devasthan Inam lands and as per the embargo contained in the Exemption from Land Revenue Act, 1863, the lands could not have been sold. Secondly, the Respondent No.1-Trust does not come under the management of the Devasthan Management Committee, Western Maharashtra. The learned AGP submitted that these facts were not brought to the notice of the Court when the Minutes of order, signed by some of the parties, were accepted. It is submitted that this statutory embargo was a germane consideration while deciding the Application filed under Section 36 of the Bombay Public Trusts Act, 1950. The learned AGP submitted that in view of this position and the fact that the property is of a public trust, the point regarding applicability of the Act needs to be considered by this Court in detail and for that purpose, the main Writ Petition be heard on merits, after permitting the State of Maharashtra to intervene in the Petition.

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Learned Senior Advocate appearing for Respondent No.2 has opposed the Review Petition. The learned Counsel submits that the Review Petition is not maintainable, as there is no error apparent on the face of record and if a detailed argument is required for

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discerning an error, it cannot be corrected in review jurisdiction. The learned Counsel submitted that it was open to the Applicant-State either to file a suit or to file an appeal against the said order. The learned Counsel submitted that the Applicant-State could have even moved under Section 36 (2) of the Bombay Public Trusts Act, if it was the case that the sanction was obtained by fraud. The learned Counsel has relied upon the decision of the Apex Court in the case of Dokka Samuel Vs. Dr. Jacob Lazarus Chelly, reported in (1997) 4 Supreme Court Cases 478, in furtherance or his submission that the review jurisdiction in the present case ought not to be exercised. The learned Counsel for the Respondent No.2 submitted that the provisions of the Act, which according to the Applicant-State were not considered, are not applicable to the facts of the case and in fact, the said Act now stands repealed. The learned Counsel for Respondent No.2 submitted that the sale deed is executed in his favour and at this stage, if the order under review is recalled and set aside then serious prejudice would be caused.

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While considering this application, the nature of the property and the nature of the proceedings from which the Application arises need to be noted. The property is of a public trust, and the proceedings arose under Section 36 of the Bombay Public Trusts Act for grant of permission to alienate. The legislature has contemplated a supervisory mechanism in the form of Section 36 of the Act in respect of the properties of a public trust. The Charity Commissioner is expected to be guardian of the public properties and consequently, this Court when the matters regarding properties of a public trust came before it for consideration. Thus the proceedings in which the order under

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review is passed are not merely proceedings between the rival parties, neither it was a civil suit instituted for adjudicating personal rights. If there is a statutory embargo to alienate property of the public trust as contended, that would certainly be one of the criteria to be considered in proceedings under Section 36 of the Act. If there is a legislative enactment which places an embargo on a public trust not to dispose of the property, the said embargo will have to be considered as placed in public interest.

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The question is, therefore, whether this ground is taken by the State in the review application is relevant ground for reconsideration of the order passed in the Petition. It cannot be disputed that if there is a statutory embargo as contended, it would substantially change the decision rendered in this Petition. This provision of law was not pointed out to this Court nor any correspondence was placed on record. Merely because there is a lapse on the part of the authorities, the property of public trust cannot be permitted to be sold without examining if there is any statutory embargo.

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However at present, for the purpose of this review petition, whether there is a statutory embargo as pleaded by the Applicant-State or not will have to be considered only prima facie. The ApplicantState has placed on record the copy of the Act of 1963 and reliance is placed on Clause (3) of Section 8 of the Act which reads as under :-

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“8(3) – It is, however, hereby declared that lands held on behalf of religious or charitable institutions wholly or partially exempt from the payment of land-revenue, shall not be transferable from such institutions either by assignment, sale (whether such sale be judicial, public or private), gift,

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devise or otherwise howsoever, and no nazrana shall be leviable on account of such lands.”

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The learned Counsel for Respondent No.2 has submitted that the said Act has been repealed. The learned AGP has pointed out by relying on Section 3 of the Bombay Personal Inams Abolition Act, 1952, that the said Act is not repealed. Be that as it may, these provisions have not been considered in detail when petition was disposed of by minutes of order.

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It has to be noted that the petition was disposed of by minutes of which were signed by some of the parties when others refused to sign. Even though the learned Counsel has submitted that the Minutes of the Order is an order of the Court, they are still Minutes of the Order signed by the parties with no detailed reasoning. This fact is also needs to be considered in the context of the grievance made by the State.

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Even though the matter requires to be examined on merits afresh, considering the fact that the order under review passed in the year 2009 and the review application was moved by the State at a belated stage and that a sale deed has been executed in favour of Respondent No.2, it will be appropriate if the position as on today and the rights accrued to the Respondent No.2, are continued till final disposal of the Writ Petition, subject to the final outcome.

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In the circumstances, I am satisfied that an opportunity needs to be given to the State of Maharashtra to agitate its grievance

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made in this Review Petition. For that purpose, the order dated 15 December 2009 needs to be recalled and the State of Maharashtra needs to be permitted to be joined as party-Respondent to the Petition. All the parties can agitate their grievance on merits in the said Writ Petition. Accordingly, the Review Petition is allowed. The order dated 15 December 2009 passed in Writ Petition No.618 of 2001 is recalled.

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The Petitioner will join the State of Maharashtra as partyRespondent in the Writ Petition. It will be open to the State of Maharashtra to file its affidavit-in-reply in the Petition and if such reply is filed, it will be open to the contesting parties to file their rejoinder/replies to the affidavit of the State Government. It is clarified that as far as the rights which have accrued to the Respondent No.2 pursuant to the order dated 15 December 2009 will not be affected by the order passed in this Review Petition and the position as on today, will continue to operate till the disposal of the Writ Petition No.618 of 2001, subject to the final outcome.

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It is also clarified that the observation as regards the grounds raised by the Applicant-State in this Review Petition will not be construed as a final expression on the merits of the rival contentions which are expressly kept open to be adjudicated in the Writ Petition.

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Accordingly, the Writ Petition No. 618 of 2001 is restored to file and will be listed on the board of final hearing in the week commencing from 1 July 2013. If the Writ Petition is not taken up within

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a reasonable time thereafter, it will be open to the parties to request for early disposal of the Writ Petition.

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N.M. JAMDAR, J.

The State of Maharashtra, through Revenue and Forest Dept v. Narshinha Saraswati Swami Dattadev Sansthan, through Shri. Pandurang D. Pujari and Ors.

Case brief

What is this about?

What did the court decide?

The State of Maharashtra, through Revenue and Forest Dept v. Narshinha Saraswati Swami Dattadev Sansthan, through Shri. Pandurang D. Pujari and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

Statutes considered

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