CAV JUDGEMENT
(PER: HONOURABLE MR. JUSTICE J.B PARDIWALA)
By this writ-application in the nature of a public interest litigation, the petitioners, who claim themselves to be the public spirited citizens, have prayed for the following reliefs:-
(A) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondent Authorities, more particularly, respondent No. 2, to cancel the NA permission granted vide order dated 7th March, 2012, as having been obtained by misrepresentation and being illegal and against public interest;
(B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction, directing the cancellation of sale deed dated 20 September, 2010, by the respondent No. 3 in favour of respondent No. 4, pursuant to the order of the Charity Commissioner as having been entered into by fraud and misrepresentation;
(C) Pending admission, hearing and final disposal of the petition, be pleased to direct the respondents to maintain status-quo and not permit any additional construction or alienation or change in nature of the land bearing F.P No. 215 of village Vastrapur, Dist. Ahmedabad;
(D) Grant ex-parte ad-interim relief in terms of para (A), (B) and (C) above;
2. The case made out by the petitioners in this petition may be summarized as under:-
2.1 According to the petitioners, the respondent No. 3, namely, the Ahmedabad Education Society, is a public Trust registered under the provisions of the Bombay Public Trusts Act, 1950. The said Trust was established for the promotion of educational activities. According to the petitioners, with the aid of contributions from the public at large, the Trust has been in a position to run and manage around 22 educational institutes in the city of Ahmedabad. The Trust, i.e the respondent No. 3 herein, had purchased a few parcels of land bearing survey Nos. 157 and 159 respectively some time in the year 1956. Since the land was agricultural in nature, the necessary permission was prayed for by the original owners from the Collector of Ahmedabad and pursuant to such application filed by the original owners of the land, the Collector, vide order dated 19 October, 1956, had accorded the permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act, read with Rule 25 of the Bombay Tenancy and Agricultural Lands Rules, in favour of the original owners, permitting them to sell their agricultural land situated in the village of Vastrapur to the trustees of the Ahmedabad Education Society for educational purpose, on the condition that the land shall be used for the purpose for which the permission was granted, within a period of three years from the date on which the possession would be taken by the trustees.
2.2 According to the petitioners, the land, which was bought in the year 1956, was not used for educational purpose within a period of three years as directed by the Collector, Ahmedabad, and the land remained vacant. Thereafter, on 8 January, 1974, the Revenue Department of the State Government issued a Notification in exercise of the powers conferred by Clause (b) of sub-section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948, (for short “the Act, 1948”), specifying few parcels of land as being reserved for non-agricultural development. The said notification was issued by the State Government since the Government was of the opinion that it would be desirable to do so for educational purpose.
2.3 The parcels of land which the Trust purchased in 1956, were also included in the Notification dated 8 January, 1974, issued by the State Government, under Section 88(1)(b) of the Act, 1948. It is the case of the petitioners that from the year 2004-2005, the Trustees started functioning in a very high-handed and irresponsible manner quite detrimental to the interest of the Trust.
2.4 According to the petitioners, the land in question, which is now notified as final plot No. 215, was specifically reserved for the purpose of education. In spite of the same, the Trust decided to sell the plot of land, and accordingly, filed an application dated 18 January, 2008, with the Charity Commissioner, under Section 36 of the Bombay Public Trusts Act, seeking the necessary permission. The Charity Commissioner, vide order dated 17 July, 2010, accorded the necessary permission to sell the land.
2.5 The order passed by the Charity Commissioner, in exercise of his power under Section 36 of the Act, 1950, granting permission to the Trust to sell the land, was challenged by one of the objectors by way of a statutory appeal provided under Section 36(3) of the Act, 1950, before the Gujarat Revenue Tribunal. However, the Gujarat Revenue Tribunal dismissed the appeal vide it's order dated 6 March, 2012, thereby affirming the order of permission granted by the Charity Commissioner in favour of the Trust.
2.6 It is the case of the petitioners that on 3rd August, 2009, i.e when the proceedings were pending before the Charity Commissioner, the respondent No. 2 Collector addressed a communication to the Charity Commissioner, stating that the permission as prayed for by the Trust should not be granted without the prior permission of the State Government.
2.7 It is the case of the petitioners that despite such objection raised by the Collector, the Charity Commissioner proceeded ahead and granted the permission in favour of the Trust. Thereafter, on 20 September, 2010, the Trust executed a sale deed in favour of the respondent No. 4 with respect to a part of the final plot No. 215, admeasuring 4,667 square meters, for a total sale consideration of Rs. 27,20,11,111/- (Rupees twenty seven crore twenty lac eleven thousand one hundred eleven only). According to the petitioners, on 15 February, 2011, the name of the respondent No. 4 was mutated in the city survey records pursuant to the sale deed executed by the Trust.
2.8 On 13 April, 2011, the Trust applied for N.A permission with respect to the plot in question as if the Trust was in possession of the land, without disclosing about the sale deed dated 20 September, 2010.
2.9 It is the case of the petitioners that in the application dated 30 November, 2011, filed with the Collector, Ahmedabad, seeking Non-Agricultural permission with respect to the final plot No. 215, it was stated that the Non-Agricultural permission was sought for, for residential purpose i.e for the purpose of construction of quarters for the staff and the students. According to the petitioners, such representation was a false representation before the Collector. It is the case of the petitioners that by making such false representation before the Collector, the respondent No. 3 Society obtained the N.A permission.
2.10 According to the petitioners, the respondent No. 2 Collector, without verifying the revenue records and without seeking any further clarification from the Society, passed an order dated 7 March, 2012, for various parcels of land, inclusive of final plot No. 215 thereby granting Non-Agricultural permission for residential use, despite the fact that the land was to be used only for the purpose of education. It is also the case of the petitioners that all the above referred facts were brought to the notice of the respondent No. 2 Collector, vide representation dated 24 May, 2013, but the respondent No. 2 ignored the same, and therefore, they were left with no other option, but to knock the doors of this Court by way of this public interest litigation.
3. In essence, the sum and substance of the case of the petitioners is that the Collector, in the year 1956, had permitted the original owners of the land to sell the same in favour of the Trust, on the condition that the same shall be used only for the purpose of education. The lands being agricultural in nature, could not have been otherwise bought by the Society, but since they were to be used only for the purpose of education, the Collector, in exercise of power under Section 63, had accorded the necessary permission. In the year 1974, the land was reserved for non agricultural purpose vide Notification issued under Section 88 of the Bombay Tenancy Act. According to the petitioners, the Society has no right to sell the land to a third party, namely, the respondent No. 4, who has put up a commercial complex on the said land. Thus, according to the petitioners, the Trustees of the Society have acted contrary to the provisions of law and have failed to protect the interest of the Trust.
4. Stance of the Respondent No. 3, The Ahmedabad Education Society:
4.1 The Ahmedabad Education Society was established in 1935 under the Societies Registration Act, and thereafter, was also registered as a Trust in the year 1953, under the provisions of the Bombay Public Charitable Trusts Act, 1950. The Society's main objective is to promote education and for that purpose, over a period of time, it has been able to develop 22 educational institutes, which includes very reputed institutes such as H.L College of Commerce, L.M College of Pharmacy, M.G Science College, L.D Arts College, A.G Teachers School, Amrut Modi School of Management etc. According to the respondent No. 3, it is one of the most prominent education trust in Ahmedabad and lacs of students have been imparted education from the institutes past almost 75 years. The Society was established under the inspiration provided by Sardar Vallabhbhai Patel. Late Sardar Vallabhbhai Patel was actively supported by visionaries like G.V Mavalankar and other industrialists like Sheth Kasturbhai Lalbhai, Amrutlal Hargovindas etc. According to the respondent No. 3, they purchased land admeasuring hundreds of acres in the Navrangpura area, which ultimately proved to be a boon for the future expansion of the education.
4.2 According to the respondent No. 3, recently they have promoted, formed and established its own University, namely, Ahmedabad University, with the sole objective to provide quality and specialized well class education in the country. The Ahmedabad University was established under the Special Act enacted by the State Legislature. The University aims to make the city of Ahmedabad a credible, global education and research destination. According to the respondent No. 3, for the purpose of setting up of the University, a corpus fund of Rs. 600 to 700 crore is required, and therefore, with the sole objective of setting up of such University, a Resolution was passed by the Trustees of the Society to sell few scattered parcels of land.
4.3 According to the respondent No. 3, the petitioner No. 1 is a Court bird and a habitual litigant; he is in the habit of filing false, frivolous and vexatious litigations against the Society and the petition has not been preferred bonafide, but only with a view to extort personal benefits. It is the case of the respondent No. 3 that after obtaining of the necessary permissions as required in law, the transaction with the respondent No. 4 was finalised and they have not acted in any manner which could be termed as detrimental to the interest of the Trust.
It is the case of the respondent No. 3 that the petition deserves to be rejected with heavy costs, as it is nothing but an abuse of process of law.
5. Stance of the respondent No. 4:
5.1 According to the respondent No. 4, the petition although filed in the nature of a public interest litigation, the same is nothing but an outcome of the personal grudge which the petitioners have against the respondent No. 3.
5.2 According to the respondent No. 4, if the petitioners are aggrieved by the sale deed dated 20 September, 2010, executed by the respondent No. 3 in their favour, then the proper course would have been to initiate appropriate proceedings under the provisions of the Gujarat Public Trusts Act, 1950 for setting aside the order dated 17 July, 2010, passed by the Charity Commissioner, Ahmedabad, in Application No. 36/3/2008, based on which the sale deed came to be executed by the respondent No. 3 in favour of the respondent No. 4.
5.3 The petitioners have not challenged the order dated 17 July, 2010, passed by the Charity Commissioner, Ahmedabad, and in the absence of such a challenge, they cannot pray for an order from this Court to cancel the N.A permission dated 7 March, 2012.
5.4 According to the respondent No. 4, the petition deserves to be rejected solely on the ground of delay and laches. There is no explanation worth the name at the end of the petitioners as to why they remained silent for almost a period of three years from the date of the execution of the sale deed in favour of the respondent No. 4.
5.5 According to the respondent No. 4, pursuant to the application filed by the Society seeking permission to sell the land, the Charity Commissioner issued a public notice in the newspapers having wide circulation in the city, whereby bids were invited from the interested parties. The bidders were directed to submit their offers to the respondent No. 3 Society. The objections were also invited from the public at large with respect to the sale of the parcels of land. The objectors were directed to submit their objections in writing to the Charity Commissioner.
5.6 It is the case of the respondent No. 4 that pursuant to such a public notice, it conveyed its offer to purchase the lands for a total consideration of Rs. 22 crore along with the letter of offer.
5.7 The respondent No. 4 also sent a DD of Rs. 3,30,00,000/- (Rupees three crore thirty lac only), to the respondent No. 3 Society. In the auction which was conducted by the Charity Commissioner, the respondent No. 4 offered a price of Rs. 27,20,11,111/- (Rupees twenty seven crore twenty lac eleven thousand one hundred eleven only), for purchase of the land bearing final plot No. 215/2, admeasuring about 4,667 square meters. The offer of the respondent No. 4 was the highest.
5.8 According to the respondent No. 4, the Charity Commissioner, after taking into consideration the objections which were received, accorded his approval to sell the land in question in favour of them for a total sale consideration as referred to above.
5.9 According to the respondent No. 4, even in the record of the city survey, its name was mutated as the owner of the land bearing survey No. 215/2 admeasuring 4,667 square meters. The respondent No. 4, thereafter, presented the layout plans for development on the land before the Ahmedabad Municipal Corporation. The lay out plans for construction of commercial complex (ground plus ten floors) was finally sanctioned by the Ahmedabad Municipal Corporation, in accordance with the Rules and Regulations. The respondent No. 4 also deposited a total sum of Rs. 4,24,19,730/- (Rupees four crore twenty four lac nineteen thousand seven hundred thirty only), to the Ahmedabad Municipal Corporation under various heads.
5.10 Pursuant to the permission granted by the authority, the respondent No. 4 has already put up construction of eight floors on the land in question, and so far has invested a huge sum of Rs. 47,53,63,868/- (Rupees forty seven crore fifty three lac sixty three thousand eight hundred sixty eight only), towards purchase of the land, its development, and construction of the commercial complex thereon.
5.11 According to the respondent No. 4, because of this litigation it has suffered a huge monetary loss. Many persons have booked shops and offices in the said commercial complex, and because of the frivolous litigation initiated by the petitioners, the prospective buyers are now quite wary of the whole situation.
5.12 According to the respondent No. 4, there being no merit in this public interest litigation, the same deserves to be rejected with heavy costs.
6. Stance of the respondent No. 2, the Collector, Ahmedabad:
6.1 According to the Collector, Ahmedabad, the Society bought different parcels of land in the year 1958 bearing Survey Nos. 148, 150, 151, 152, 153, 156, 157, 159, 160, 163, 165 and 167 within the city of Ahmedabad. All these parcels of land were allotted final plot No. 215.Paiki and 269 respectively. According to the Collector, since the lands were agricultural, they could not have been sold by the original owners to the Society, and, therefore, at the relevant point of time, the Society had applied for the necessary permission to buy the agricultural plots of land. The Collector, by an order dated 19 October, 1956, accorded the permission to the original owners to sell their parcels of agricultural land in favour of the Society, on the condition that the land shall be used for educational purpose.
6.2 It is the stance of the Collector that the Society's main objective is to impart education, and at the relevant point of time, the Society was desirous of setting up various educational institutions. It is only after considering such a purpose that the permission was granted by the Collector in favour of the original owner to sell their agricultural land in favour of the Society, because otherwise agricultural land cannot be bought by a non-agriculturist without the prior permission of the Collector as envisaged under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948.
6.3 It is also the stance of the Collector that the State Government, vide it's Notification dated 8 January, 1974, reserved the parcels of land which includes the subject land for non-agricultural purpose under the provisions of Section 88(b)(i) of the Act, 1948. The purpose for issuing such a Notification was to exempt the land from the application of the provisions of the Act, 1948, since they were to be utilized only for the educational purpose.
6.4 It is also the stance of the Collector that in the year 2007, the Society preferred an application before the Collector for converting 4,668 square meters of final plot 215.paiki and 46,514 square meters of land in final plot No. 219. According to the Collector, in the application which was filed in the year 2007, it was stated that the permission was being prayed for the residential purpose.
6.5 Thereafter, vide application dated 19 May, 2011, the Society applied for obtaining N.A permission for land bearing final plot Nos. 215.paiki and 269 admeasuring 27,953 square meters. In the said application also, it was stated that the permission was being prayed for to construct staff quarters and hostels.
6.6 According to the Collector, although the Society had applied for N.A permission with respect to final plot No. 215.paiki admeasuring 4,664 square meters in the year 2008, the same could not have been sold to any other person as the land was earmarked and notified to be used only for educational purpose, according to the Government Notification dated 8 January, 1974.
6.7 It is also the case of the Collector that pursuant to the notice issued by the Charity Commissioner, inviting objections with respect to the permission prayed for by Society to sell the land, it was brought to the notice of the Charity Commissioner that the permission as prayed for should not be granted as the land is to be used only for educational purpose.
6.8 According to the Collector, the respondent No. 3 could not have sold the plot of land in favour of the respondent No. 4 and the sale has changed the purpose for which the land was permitted to be bought in the year 1956.
7. Submissions on behalf of the petitioners:
7.1 Mr. Shalin Mehta, the learned Senior Advocate, assisted by Mr. P.K Pancholi, the learned Advocate appearing for the petitioners, vehemently submitted that it was not permissible in law for the Society to sell the plot of land admeasuring 4,664 square meters of final plot No. 215, as the transaction is hit by the provisions of Section 63 of the Act, 1948. Mr. Mehta submitted that in the year 1956, the Society was permitted to buy few parcels of agricultural land only on the condition that the same are to be used for educational purpose. If the purpose would have been other than education, then probably the Collector would not have granted permission to buy the agricultural land in view of the provisions of Section 63 of the Act, 1948. Mr. Mehta submitted that even according to the permission of the year 1956, the Society was obliged to put the lands for agricultural use within a period of three years. However, the Society was unable to use the land for agricultural purpose and on the expiry of the period of three years, the Society was already in breach of the conditions imposed by the Collector.
7.2 According to Mr. Mehta, at that relevant point of time itself the Collector could have initiated the necessary proceedings for breach of the conditions imposed in the order of the year 1956. However at that relevant point of time, such breach was not taken into consideration.
7.3 Mr. Mehta submitted that on 8 January, 1974, the State Government, in it's Revenue Department, issued a Notification in exercise of the powers under Section 88B(1) of the Act, 1948, thereby reserving few parcels of land which includes the subject land for non-agricultural development. The object of issuing such Notification exempting the parcels of land from the provisions of the Act, 1948 was that the lands could be used for educational purpose. According to Mr. Mehta, even taking into consideration the Notification dated 8 January, 1974, the Society could not have sold the land in favour of the respondent No. 4.
7.4 Mr. Mehta led much stress on the fact that the land was purchased by the Society for educational purpose and now, by selling the same in favour of the respondent No. 4, it is going to be used for commercial purpose. Mr. Mehta submitted that the respondent No. 3 has completely ignored and undermined the importance of the Notification, which was issued in the year 1974, under Section 88B(1) of the Act, 1948. Mr. Mehta submitted that for the alleged breach of such a Notification, it is always open for the State Government to even withdraw the Notification of the year 1974, in exercise of powers under the provisions of Section 88D of the Act, 1948.
7.5 Mr. Mehta very strenuously tried to convince us that the bonafide of the Trust is very doubtful because while applying for the N.A permission, all the material facts were withheld from the authority, more particularly the order of the Collector passed in the year 1956, and the Notification of the year 1974, issued under Section 88 of the Act, 1948.
7.6 Mr. Mehta submitted that while applying for N.A permission, it was stated in the application that the permission was prayed for because the Society wanted to construct hostel and staff quarters for the employees of the Society, whereas the intention was otherwise. According to Mr. Mehta, if the correct facts would have been brought to the notice of the authority, then probably the N.A permission would not have been granted. Mr. Mehta also submitted that the first N.A permission was for residential purpose, but thereafter, surreptitiously, by concealing material facts, the respondent No. 4 succeeded in getting even the purpose changed from residential to commercial.
7.7 Mr. Mehta also submitted that the respondent No. 4 could not be said to be a bonafide purchaser of the property for value without notice and, therefore, the equities which are now sought to be created in favour of the respondent No. 4 should be ignored. Mr. Mehta also submitted that even the Collector had lodged his objections with the Charity Commissioner, but the Charity Commissioner omitted to take into consideration such objections and proceeded to grant the permission in favour of the respondent No. 3 to sell the land in favour of the respondent No. 4.
7.8 Mr. Mehta also invited our attention to the Memorandum of Association of the Society. According to Mr. Mehta, the objects do not permit sale of any parcels of land in favour of any third party for the purpose of making profit out of the same. Mr. Mehta also submitted that the petition may not be rejected solely on the ground of delay because the cause for filing the petition arose only in the year 2012 i.e from the date the N.A permission for commercial use was granted in favour of the respondent No. 4.
7.9 Mr. Mehta, placing reliance on the decision of the Supreme Court in the case of United India Insurance Company Limited v. Manubhai, reported in (2008) 10 SCC 404, submitted that although an action is brought by the private individuals before the Court, but if the cause espoused in the writ-petition has wider ramifications, and would affect others also over and above the private individuals, then such cases may not be dealt with as individual cases, and such a litigation may be regarded as a public interest litigation.
7.10 According to Mr. Mehta, even if it is not so regarded, the Court may consider the same to be ‘public law litigation’.
7.11 Mr. Mehta also placed reliance on the decision of the Supreme Court in the case of Adarsh Shiksha Mahavidyalaya v. Subhash Rahangdale reported in (2012) 2 SCC 425 and submitted that with passage of time, the law has given a new dimension to the power of the Courts to make investigation into the issues of public importance although the petitioner of a particular case may have moved the Court for vindication of a private interest.
In the aforesaid circumstances referred to above, Mr. Mehta submitted that the petition merits consideration in public interest and the reliefs prayed for deserve to be granted in the interest of the public at large.
8. Submissions on behalf of the respondent No. 3, Society:
8.1 Mr. Mihir Joshi, the learned Senior Advocate, assisted by Mr. Merchant, the learned Advocate for the Society submitted that this petition deserves to be rejected only on the ground that it is at the behest of persons whose bonafides and credentials are beyond any doubt.
8.2 Mr. Joshi submitted that a true public interest litigation is the one in which a selfless citizen having no personal motive of any kind, except either compassion for the weak and disabled or deep concern of stopping serious public injury, approaches the Court for either of the following purpose:-
(i) Enforcement of fundamental rights of those who genuinely do not have adequate means of access to the judicial system, or statutory provision incorporating the directive principles of the State policy for amelioration of their condition; and
(ii) Preventing or annuling executive acts and omissions violative of the Constitution or law resulting in substantial injury to the public injury.
8.3 Mr. Joshi vehemently submitted that the petitioner No. 1 has left no stone unturned to harass the Society in all possible manner. Mr. Joshi submitted that the petitioner No. 1 has set his eye on the Society with an oblique motive and such oblique motive is evident from the number of litigations which he has instituted against the Society. Mr. Joshi submitted that the petitioner No. 1, perhaps, at a point of time apprehending that his credentials would come under a severe attack, very craftly joined one another person as petitioner No. 2, who has nothing to do in any manner with the Society.
8.4 According to Mr. Joshi, the purpose for asking the petitioner No. 2 to join in the petition could only be to save the petition from being rejected on the ground of oblique motive on the part of the petitioner No. 1.
8.5 Mr. Joshi submitted that howsoever genuine a cause brought before the Court by public interest litigants may be, the Court should decline its examination at the behest of persons like the present petitioners, who, in fact, are not public interest litigants and whose bona fides and credentials are in doubt.
8.6 Mr. Joshi submitted that there is no merit worth the name in any of the submissions canvassed on behalf of the petitioners, so far as the position of law is concerned. According to Mr. Joshi, there is no breach of any of the provisions of the Act, 1948, or the Bombay Public Trusts Act, or the Bombay Land Revenue Code.
8.7 Mr. Joshi submitted that there is no dispute about the fact that the lands are the property of the respondent No. 3 Society. According to Mr. Joshi, his client is one of the most well reputed educational Society in the State of Gujarat. It has affiliations with Universities of Oxford, Cambridge etc. The Society is running and managing almost more than 22 premier educational institutes in the city of Ahmedabad. Mr. Joshi also submitted that his client is desirous of setting up a University known as ‘Ahmedabad University’ for which his client is in need of finance to the tune of more than Rs. 350 crore.
8.8 Mr. Joshi submitted that the Government of Gujarat has also enacted an Act, called “The Gujarat Private Universities Act, 2009” and the Society has entered into a Memorandum of Understanding dated 13 January, 2009, with the State Government for planning to set up a University.
8.9 In the Memorandum of Understanding, which is on record, it is specifically stated that the Ahmedabad Education Society proposes to set up a private University in Gujarat, involving an investment of approximately Rs. 350 crore. According to Mr. Joshi, if few scattered parcels of land of the ownership of the Trust itself are sold for the purpose of generating necessary funds to set up Ahmedabad University, then the use of the funds could definitely be said to be used for educational purpose only, and therefore, the hue and cry raised by the petitioners that the land is being sold to a third party to make profit out of the same is without any basis.
8.10 Mr. Joshi submitted that over a span of almost six decades, the Society has been able to acquire and purchase huge parcels of land, and it was only due to such foresightness of the Trustees that today premier institutes have come up all over the city imparting education to lacs of students every year.
8.11 Mr. Joshi submitted that the petitioners are in no way concerned with the internal management and functions of the Trust and the only reason why they have raised frivolous and vexatious objections is to extort money from the Trust. Mr. Joshi submitted that by now the petitioner No. 1 has instituted not less than twenty litigations against the Trust on one or the other ground, and has failed miserably in all such litigations.
8.12 Mr. Joshi submitted that the allegation of fraud levelled on his client in obtaining the N.A permission are also baseless. Mr. Joshi submitted that the whole idea in first getting N.A permission was to see that the best of the price is being fetched when the plot is sold to any third party because the value of a non-agricultural land would obviously be much much higher than an agricultural land.
8.13 Mr. Joshi submitted that his client first approached the Charity Commissioner with an application under Section 36 of the Bombay Public Trusts Act, seeking permission to sell the land. The Charity Commissioner, pursuant to such application being filed, invited objections and after receiving the objections, the same were considered objectively. The Charity Commissioner, after over-ruling the objections, accorded the necessary permission, taking into consideration the interest of the Trust.
8.14 Mr. Joshi submitted that the matter did not rest there, but the order of the Charity Commissioner was further challenged by one of the objectors by way of an appeal before the Gujarat Revenue Tribunal under Section 36(3) of the Bombay Public Trusts Act, 1950, and such appeal was also dismissed.
8.15 Mr. Joshi submitted that in the present petition, there is no challenge to the order of the Charity Commissioner granting permission to his client to sell the land, including the order passed by the Gujarat Revenue Tribunal in appeal. If the petitioners were so much concerned about the interest of the Society, what had stopped them from approaching the higher forum for the purpose of challenging the order of the Charity Commissioner as well as the Appellate Authority. Mr. Joshi submitted that having not challenged the order of the Charity Commissioner as well as the Appellate Authority, the N.A permission cannot be challenged by way of this public interest litigation.
8.16 Mr. Joshi submitted that the petition deserves to be rejected even on the ground of delay and laches, inasmuch as the transactions are of the year 2010 and the order of the Charity Commissioner is also of 17 July, 2010.
8.17 Mr. Joshi submitted that the Charity Commissioner conducted the auction of the land in question and in the auction proceeding, the bid of the respondent No. 4 was the highest, and accordingly, the bid was finalised. Pursuant to such finalization of the bid by the Charity Commissioner, a sale-deed dated 20 September, 2010 was executed by the Trust in favour of the respondent No. 4, for total sale consideration of Rs. 27,20,11,111/- (Rupees twenty seven crore twenty lac eleven thousand one hundred eleven only). Mr. Joshi also submitted that after the sale deed was executed, the possession was taken over by the respondent No. 4 and the necessary entry has also been mutated in the record of right showing the name of the respondent No. 4 as the owner.
8.18 Mr. Joshi also brought to our notice that the respondent No. 4 has commenced the construction and as on today, the construction has reached to the level of 8 storey and a huge amount has been invested by the respondent No. 4 in the project, which has been undertaken on the subject land. Mr. Joshi submitted that even assuming the worst against his clients, without admitting, then also the only breach that could be complained of would be a breach of Section 63 of the Act, 1948, for which it is too late in the day to initiate any proceedings because it is by now well settled that the action proposed to be taken for violation of Section 63 of the Act, 1948 has to be within a reasonable period of time. After a lapse of almost five decades, the action cannot be initiated for violation of Section 63 of the Act, 1948.
8.19 Mr. Joshi also invited our attention to Section 88B of the Act, 1948. According to Mr. Joshi, even independent of the Notification of the year 1974, Section 88B otherwise exempts from certain provisions to the lands, which are the property of a Trust for educational purpose.
In such circumstances referred to above, Mr. Joshi submitted that there being no merit in the petition, the same deserves to be rejected with heavy costs.
9. Submissions on behalf of the respondent No. 4:
9.1 Mr. Dhaval C. Dave, the learned Senior Advocate, assisted by Mr. Jigar M. Patel, the learned Advocate for the respondent No. 4, submitted that his client is a bonafide purchaser of the land in question for value without notice. Mr. Dave submitted that his client is in no way concerned with the earlier transactions, which had taken place between the Society and the original owners of the land. Mr. Dave submitted that pursuant to the notice issued by the Charity Commissioner for auction of the plot of land, his client being interested, participated in the auction proceeding and emerged as the highest bidder, and accordingly, the Charity Commissioner finalised the bid in favour of his client. According to Mr. Dave, at the relevant point of time, his client relied on the order passed by the Charity Commissioner granting permission in favour of the Society to sell the land, which was confirmed by the Gujarat Revenue Tribunal in appeal. Accordingly, the Society executed the sale-deed dated 20 September, 2010, in favour of his client for total sale consideration of Rs. 27,20,11,111/- (Rupees twenty seven crore twenty lac eleven thousand one hundred eleven only).
9.2 Mr. Dave also submitted that after the sale-deed was executed in favour of his client, the necessary plans for development were produced before the Ahmedabad Municipal Corporation and the layout plans for construction of the commercial complex (ground plus 10 floors) was approved by the authorities. At the relevant point of time, along with the necessary layout plans and design, his client deposited a total sum of Rs. 4,24,19,730/- (Rupees four crore twenty four lac nineteen thousand seven hundred thirty only), with the Ahmedabad Municipal Corporation towards T.P Scheme betterment charge, scrutiny fees and other allied miscellaneous charges, tree plantation charges, water charge, additional FSI charge, parking deposit and other allied charges. Mr. Dave submitted that after obtaining the necessary permission to start with the construction, his client has completed approximately 70 per cent of the construction work, and almost eight floors have already been constructed. Mr. Dave also submitted that by now his client has invested a total sum of Rs. 47,53,63,868/- (Rupees forty seven crore fifty three lac sixty three thousand eight hundred sixty eight only), in the project and has sold the units in the complex to different persons.
9.3 Mr. Dave submitted that this petition deserves to be rejected solely on the ground of delay and laches. Mr. Dave, in support of his submissions, relied on two decisions of the Supreme Court, namely, (i) in the case of Printers (Mysore) Ltd. v. M.A Rasheed reported in (2004) 4 SCC 460 and (ii) in the case of R.M Trust v. Koramangala Residents Vigilance Group reported in (2005) 3 SCC 91
In such circumstances referred to above, Mr. Dave prays that this petition deserves to be rejected with heavy costs.
10. Submissions on behalf of the respondent No. 2, Collector:
Mr. Parth Bhatt, the learned Assistant Government Pleader appearing for the State-respondents submitted that he does not propose to make any submissions, except to adopt the stance as taken in the affidavit-in-reply sworn by the Collector.
11. Having heard the learned counsel appearing for the parties and having gone through the materials on record, in our opinion, the following questions arise for our consideration in this public interest litigation.
(a) Whether this litigation in public interest, is a bonafide and genuine public interest litigation, or is at the behest of two meddlesome inter-lopers with a malafide intention of vindicating their personal vengeance or grievance?
(b) Whether the Society committed any illegality in selling one of its parcels of land admeasuring 4,667 sq. mtrs. in favour of the respondent No. 4 for the purpose of raising the necessary finance to set up Ahmedabad University in terms of the Memorandum of Understanding dated 13 January, 2009 with the Government of Gujarat?
(c) Whether this petition deserves to be rejected on the ground of delay and laches?
12. Ordinarily, the Court would allow a litigation in public interest if it is found:
(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India or any other legal right and relief is sought for its enforcement;
(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;
(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;
(iv) That such person or group of persons is not a busy body or a meddlesome inter-loper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;
(v) That the process of public interest litigation was not being abused by politicians or other busy bodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;
(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;
(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;
(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;
(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;
13. That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busy body or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to black-mailing or considerations extraneous to public interest.
14. In the case of Shri Sachidanand Pandey v. State of West Bengal, reported in AIR 1987 SC 1109, the Supreme Court observed as follows:-
Today public spirited litigants rush to file cases in profusion under this attractive name. They must inspire confidence in Courts and among the public They must be above suspicion. Public Interest Litigation has now come to stay. But one is led to think that it poses a threat to Courts and public alike. Such cases are now filed without any rhyme or reason. It is therefore necessary to lay down, clear guidelines and to outline the correct parameters for entertainment of such petitions. If Courts do not restrict the free flow of such cases in the name of Public Interest Litigation, the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves Administrative and executive functions. This does not mean that traditional litigation should stay out. They have to be tackled by other effective methods, like decentralizing the judicial system and entrusting majority of traditional litigation to Village Courts and Lok Adalats without the usual populist stance and by a complete restructuring of the procedural law which is the villain in delaying disposal of cases….
It is only when Courts are apprised of gross violation of fundamental rights by a group or a class action or when basis human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially the Supreme court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. It is necessary to have some self-imposed restraint on Public Interest Litigants.
15. In a recent pronouncement of the Hon'ble Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal, reported in (2010) 3 SCC 402, in paragraphs 178, 179, 180 and 181, the Supreme Court laid down the following guidelines relating to Public Interest Litigation:-
“178. We must abundantly make it clear that we are not discouraging the Public Interest Litigation in any manner, what we are trying to curb is its misuse and abuse. According to us, this is a very important branch and, in a large number of PIL petitions, significant directions have been given by the Courts for improving ecology and environment, and the directions helped in preservation of forests, wildlife, marine life etc. It is the bounden duty and obligation of the Courts to encourage genuine bonafide PIL petitions and pass directions and orders in the public interest which are in consonance with the Constitution and the laws.
179. The Public Interest Litigation, which has been in existence in our country for more than four decades, has a glorious record. This Court and the High Courts by their judicial creativity and craftsmanship have passed a number of directions in the larger pubic interest in consonance with the inherent spirits of the Constitution. The conditions of marginalized and vulnerable section of society have significantly improved on account of Court's directions in PIL.
180. We have carefully considered the facts of the present case. We have also examined the law declared by this Court and other Courts in a number of judgments. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:
(1) The Court must encourage genuine and bonafide PIL and effectively discourage and curb the PIL filed for extraneous consideration.
(2) Instead of every individual judge devising his own procedure for dealing with the Public Interest Litigation, it would be appropriate for each High Court to properly formulates rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to the Secretary General of this Court immediately thereafter.
(3) The Courts should prima-facie verify the credentials of the petitioner before entertaining a PIL.
(4) The Courts should be prima-facie satisfied regarding the correctness of the contents of the petition before entertaining petition.
(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.
(6) The Court should ensure that the petition which involves larger public interest gravity and urgency must be given priority over other petitions.
(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the Public Interest Litigation.
(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.”
16. In a much recent pronouncement of the Hon'ble Supreme Court in the case of P. Seshadri v. S. Mangati Gopal Reddy, reported in (2011) 5 SCC 484, the Supreme Court has observed that:-
Public Interest Litigation can only be entertained at the instance of bonafide litigants. It cannot be permitted to be used by unscrupulous litigants to disguise personal or individual grievances as Public Interest Litigations. The Supreme Court does not approve of an approach that would encourage petitions filed for achieving oblique motives on the basis of wild and reckless allegations made by individuals i.e busybodies, having little or not interest in the proceedings. The credentials, the motive and the objective of the petitioner have to be apparently and patently aboveboard Otherwise the petition is liable to be dismissed at threshold.
17. Having bestowed our thoughtful consideration to all the relevant aspects of the matter, we have no hesitation in reaching to the conclusion that the present petition is not a genuine bonafide public interest litigation, but has been filed with an oblique motive.
18. Our attention has been drawn to a list of litigations instituted by the petitioner No. 1 against the Society, which is suggestive of the fact that the petitioner No. 1 has left no stone unturned to harass the trustees of the Society with an oblique motive in all possible manner.
The list of the litigations instituted by the petitioner No. 1 against the Trust so far, is as under:-
Sr. No. List of Case with details Outcome/Status of Case
1. Inquiry Case No. 15/2011-Pending for Quashing-Hon'ble High Court was Impugned Complaint - pleased to admit and grant stay on Metropolitan Court investigation and operation of Ld. Magistrate
_________________________________ in MCA/16532/2011 _______________________
2. Petition(s) for Special Leave Petition was rejected and interim relief in to Appeal (Cri) favour of AES granted by Hon'ble High Court No(s). 1401/2012-Hon'ble in MCA/16532/2011 was confirmed.
______ Supreme Court______________________________________________________
3. SLP (Civil) No. 21621/2006 Rejected with observations in favuor of AES
4. Judicial MiscApp 47/2006 Rejected with observations/issues in favor of-by Mr. Tushar Patel before AES ___________________________________
Ld. Charity Commissioner
5. CA/1882/2007-Filed by Rejected with observations/issues in favour of Tushar For amendment post AES
______ election____________________________________________________________
6. IN SCA/23262/2006-High This LPA was filed by Mr. Tushar Patel against Court the order rejecting CA/1882/2007 challenging
7. LPA/1087/2007 filed by electoral list and post election event with Mr. Tushar Patel before above allegations - this LPA was also rejected.
______ Hon'ble High Court___________________________________________________
8. SCA/13505/2009 and Writ and LPA were rejected in favour of AES LPA/2025/2010 filed by vide order dated 13.10.2011
Mr. Tushar Patel before _____ Hon'ble High Court_________ ___________________
9. SCA/2984/2010 and Writ and LPA were rejected in favour of AES LPA/1246/2010 filed by vide order dated 13.10.2011
Mr. Tushar Patel before ______ Hon'ble High Court_________________________________ ______________
10. Cr. Misc. Application/83/2010-Petition was disposed of in favour of Filed before Hon'ble High Prosecution
______ Court_______________________________________ ____________
11. Inquiry Case No. 355/2006-Report stating that “no offence has been made filed before Navrangpura out” was filed
______ Police Station_______________________________________________________
12. Cri. Complaints by Mr. Tushar Report stating that “no offence has been made verbetim to impugned out” was filed complaint-various police ______ agencies____________________________________________________________
13. Objections filed by Mr. Tushar Change Report was confirmed-detailed before Ld. Assistant Charity adjudication of allegations in favor of AES Commissioner in Change Report No. 416/2007 U/s 22 ______ of BPT Act__________________________________________________________
14. Judicial Misc. App 13/2010-Rejected by Ld. Charity Commissioner with filed by Mr. Tushar before observation in favor of AES
______ Ld. Charity Commission
15. Judicial Misc. App 03/2010-Rejected by Ld. Charity Commissioner with Filed by Mr. Tushar before observation in favor of AES
______ Ld. Charity Commissioner______________________________________________
16. Appeal No. 68/2010-Filed by Appeal of Mr. Tushar was rejected and Order in Mr. Tushar Patel before Ld. favour of AES was upheld.
______ Charity Commissioner________________________________________________
17. Misc Civil Application Pending-No interim relief is granted to 909/2011-Filed by Mr. Tushar Mr. Tushar Patel Patel before Hon'ble City Civil Court (as Second Appeal) _________________________________________
19. At this stage, it may not be out of place to state that over and above the present petition, two more petitions have been filed by the petitioners against the Society, being Writ Petition (PIL) No. 210 of 2013 and Writ Petition (PIL) No. 275 of 2013 respectively, levelling the same frivolous and vexatious allegations with respect to two other parcels of land. Those two petitions were heard analogously, and we are going to dispose of the same by a separate judgment along with the present one.
20. For no fault on the part of the Society, it appears that the petitioners have dragged the Society into an unnecessary litigation, thereby trying to tarnish the image of a Trust, which is running and managing twenty two educational institutes in the city of Amedabad.
21. The Supreme Court in the case of T.N Godavarman v. Union of India, reported in (2002) 10 SCC 606, observed that however genuine a cause brought before the Court by a public interested litigant may be, the Court must decline its examination at the behest of a person, who, in fact, is not a public interested litigant and whose bonafides and credentials are in doubt. At the same time, the Supreme Court also observed that in a given exception case where bonafides of a public interested litigant are in doubt, the Court may still examine the issue having regard to the serious nature of the public cause and likely public injury by appointing amicus curiae to assist the Court but under no circumstances with the assistance of a doubtful public interest litigant.
22. In the present case, not only the bonafides and the credentials of the petitioners are in doubt, but there is no such public cause brought to our notice, which if not looked into, would result into public injury. In the words of the Supreme Court, a writ-petitioner, who comes to the Court for relief in public interest, must come not only with clean hands like any other writ-petitioner, but also with a clean heart, clean mind and clean objective [See Ramjas Foundation v. UOI, 1993 Supp (2) SCC 20.]
23. In the present case, we do not find anything clean, not to speak of clean hands or clean heart or clean mind or clean objective. The only objective seems to be to harass the Society and the list of litigations instituted by the petitioner No. 1 speaks for itself.
We find substance in the submission of Mr. Joshi, the learned Senior Advocate appearing for the Society that perhaps, the petitioner No. 1 apprehending that his credentials would be under a severe attack, very thoughtfully joined one another person while filing, the petition, who is in no way concerned in any manner with the Society. However, that would hardly save the situation for the petition to be branded as lacking in bonafides.
We, therefore, answer the first question accordingly.
24. Having answered the first question against the petitioners, we could have stopped here saying no more, but since we have heard the matter at length, we have thought fit to even answer the other two questions.
Second Question:
25. A lot of hue and cry has been raised by the learned counsel for the petitioners that the Society has committed serious breach of various provisions of the Act, 1948, and could not have taken the decision to sell a parcel of the land in favour of a third party, more particularly when such parcels of land were permitted by the Collector at the relevant point of time, to be bought on the condition that the same should be used for educational purpose only.
26. Before we proceed to examine this issue, it will be more expedient for better adjudication of the controversy to look into few relevant provisions of the Act, 1948.
26.1 Section 63, which is in Chapter V speaks about restrictions on transfers of agricultural lands, managements of uncultivated lands and acquisition of estates and lands. Section 63 reads as under:-
Section 63. Transfer to non-agriculturists barred.
(1) Save as provided in this Act,-
(a) no sale (including sales in execution of a decree of a Civil Court or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or
(b) no mortgage or any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, [or]
[(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein.] shall be valid in favour of a person who is not an agriculturist [or who being an agriculturist cultivates in personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer]:
Provided that the Collector or an officer authorised by the [State] Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, [or for such agreement] on such conditions as may be prescribed.
[Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist of agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.]
(2) Nothing in this section shall be deemed to [prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease, of] a dwelling house or the site thereof or any land appurtenant to it favour of an agricultural labourer or an artisan [or a person carrying on any allied pursuit.]
[(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of and land or interest therein effected in favour of a co-operative society as security for the loan 24 of the Bombay Agricultural Debtor’ Relief Act, 1947]].
[(4) Nothing in section 63A shall apply to any sale made under sub-section(1).]
26.2 Rule 36 of the Bombay Tenancy & Agricultural Lands Rules, 1956 prescribes the conditions on which permission for sale etc. of the land under Section 63 of the Act, 1948 may be granted. Rule 36 reads as under:-
“36. Conditions on which permission for sale etc. of land under Section 63 may be granted. - (1) The Collector or other officer authorized under the proviso to sub-section (1) of Section 63 shall not grant permission for the sale, gift, exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural labourer or who, being an agriculturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied:-
(a) such a person bonafide requires the land for a non-agricultural purpose; or
(b) the land is required for the benefit of an industrial or commercial undertaking or an educational or charitable institution;or … … …
A plain reading of Section 63 aforenoted would suggest that any transfer of an agricultural land shall be invalid, if it is in favour of a person who is not an agriculturist. According to the learned counsel appearing for the petitioners, this Section assumes importance because in the year 1956 when various parcels of agricultural lands were bought by the Society, they could not have been bought without the prior permission of the Collector, but the Collector in special circumstances, had permitted the owners of the agricultural land to sell their land in favour of the Society since the Society was to use the land for educational purpose. Since the parcel of land admeasuring 4,667 square mts. has been sold in favour of the respondent No. 4, who has put up a commercial complex on the same, according to the learned counsel for the petitioners the same is in breach of Section 63 of the Act referred to above.
27. We shall now look into the provisions of Section 88 of the Act, 1948. Section 88 speaks of exemption to Government lands and certain other lands. For our purpose, Section 88(1)(b) is relevant. It reads as under:-
88. Exemption to Government lands and certain other lands.
[(1) [Save as otherwise provided in sub-section (2), nothing in the foregoing provisions of this Act] shall apply-
(a) to lands belonging to, or held on lease fro, the Government;
[(aa) to lands held or leased by a local authority;]
(b) to any area which the State Government may, from time to time, by notification in the Official Gazette, specify as being reserved for non-agricultural or industrial development:]
[Provided that if after a notification in respect of any area specified in the notification is issued under this clause, whether before or after the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1965 the limits of the area so specified are enlarged on account of the addition of any other area thereto, them merely by reason of such addition, the reservation as made by the notification so issued shall not apply and shall be deemed never to have applied to the area so added, notwithstanding anything to the contrary contained in any judgment, decree, or order of any court, tribunal or any other authority:
Provided further that if any land in the area so added has been transferred or acquired after the issue of notification referred to in the first proviso but before the 29 day of October, 1964, such transfer or acquisition of land shall have effect as if it were made in an area to whither this clause applies];
A plain reading of Section 88 would indicate that once a Notification is issued by the State Government, reserving a parcel of land for non-agricultural or industrial development, none of the provisions of the Act, 1948 would apply. Thus, the land, which is reserved under the provisions of Section 88 would get protection from any claim as regards tenancy.
28. According to the learned counsel appearing for the petitioners, since the parcel of land in question is covered by the Notification, and the Notification being still in force, it could be said that although the same was reserved for educational purpose, the same has been used for commercial use.
29. Section 88B of the Act, 1948 provides for exemption from certain provisions of the Act to the lands, which are the property of a Trust for an educational purpose. Section 88B(1)(b) reads as under:-
88B. Exemption from certain provisions to and of local authorities, universities and trusts.
[(1) Nothing in the foregoing provisions, except sections 3, 4B, 9, 9A, 9B, 9C, 10, 10A, 11, 13, and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above, shall apply-
(a) to lands held or leased by a University established by law in the [Bombay are of the State of Gujarat]; and
(b) to lands which are the property of a trust for an educational purpose [a hospital, Punjrapole,] [or Gaushala]:
Therefore, Section 88B would otherwise also exempt from applicability of the provisions of Section 63 of the Act, since the land in question is a property of a Trust running the educational institutions.
30. Section 88D of the Act, 1948 provides for the power to the Government to withdraw the exemption issued under Section 88. Section 88D(1)(i) is relevant for our purpose, and it reads as under:-
88D. Power of Government to withdraw exemption.
(1) Notwithstanding anything contained in sections 88, 88A, 88B and 88C, if the State Government is satisfied,-
(i) in the case of an area referred to in clause (b) of section 88, that the chances of non-agricultural or industrial development are remote, or that after the eviction of tenants from any land in such area, the land has not been used for a non-agricultural or industrial purpose,
Thus, according to Section 88D, at any point of time if the Government is of the opinion that the chances of non-agricultural use of an area referred to in Clause (b) of Section 88 of the Act, 1948 are remote, then in such circumstances, the Government has the power to withdraw the Notification under Section 88D.
31. Relying on the aforenoted provisions, according to the learned counsel appearing for the petitioners, since there is a breach of the Notification of the year 1974, issued by the State Government under Section 88 of the Act, 1948, the State Government could have withdrawn the exemption, in exercise of the power under Section 88D of the Act 1948.
32. We are of the opinion that there is no merit in the vociferous submission canvassed on behalf of the petitioners that there has been a breach of the provisions of the Act, 1948. We have examined the matter considering first the order of the Collector passed in the year 1956. In the year 1956, the Society thought fit to buy parcels of agricultural land so that various educational institutions could be set up in the city of Ahmedabad. Accordingly, vast parcels of land were bought and it is only because of such foresightness of the Trustees at the relevant point of time that as on today there are not less than thirty premier educational institutes in the city of Ahmedabad with sprawling campus and the best of the facilities.
33. So far as the present land is concerned, it was bought in the year 1956, by the Society from some of the agriculturists. Since the Society, otherwise could not have bought the agricultural lands, being non-agriculturist, the Collector, at the relevant point of time, granted permission to sell such agricultural land, as the land was to be used for the educational purpose. In the year 1974, the Government thought fit to issue a Notification under Section 88 of the Act, reserving few parcels of land for non-agricultural purpose, thereby exempting such lands from the provisions of the Act.
34. We have examined the issue raised by the petitioners, keeping in mind two aspects. For the moment, we accept the entire case of the petitioners. Let us assume that there is a breach of the provisions of Section 63 of the Act, 1948. How this breach could be remedied at this stage? The reason for saying so is that the Notification under Section 88 issued by the State Government in the year 1974 is still in force. As long as the Notification issued by the State Government under Section 88 of the Act, 1948 remains in force, there is no question of taking any action under the provisions of Section 63 of the Act, 1948.
35. The second aspect of the matter is that let us assume for the moment that the State Government deems fit to withdraw the Notification of the year 1974, in exercise of the powers under Section 88D of the Act, 1948. Even then, no proceedings could be initiated for the breach of the provisions of Section 63 of the Act, 1948, for the simple reason that the land in question is already converted to non-agriculture. Once the land is converted into N.A use, the restriction under Section 63 of the Tenancy Act would cease to operate, and consequently, the transfer could not be said to be hit by the provisions of the Tenancy Act.
36. It appears from the materials on record that the Society is desirous of starting a private University, known as “Ahmedabad University”. For that purpose, the State of Gujarat has passed an enactment called “The Gujarat Private Universities Act, 2009.” The object of enacting such an Act was to provide for establishment and incorporation of private Universities in the State of Gujarat, with emphasis to provide for qualitative and industry relevant higher education and to regulate their functions and for the matters connected therewith and incidental thereto.
37. It also appears from the materials on record that a Resolution was passed by the Board of Trustees unanimously for setting up of Ahmedabad University, and for that purpose, the Society entered into a Memorandum of Understanding dated 13 January, 2009, with the Government of Gujarat. In the Memorandum of Understanding, which is annexed as Annexure “R-1” at page 63 of the paper book, the name of the project has been shown as ‘Establishment of Private University, location at Ahmedabad and the approximate investment in terms of rupees to be 350 crore’. It is for this purpose that the Society is in need of funds and to generate the necessary funds, thought fit to sell three scattered parcels of land situated in the city of Ahmedabad. For raising the necessary funds for the purpose of setting up of a private University, if the Society thought fit to sell three of its scattered parcels of land, then in such circumstances, we fail to understand what illegality could be said to have been committed by the Society. After all, the money is ultimately going to be used for educational purpose. To raise a sum of Rs. 350 crore is very difficult and it is not possible to raise such a huge amount through donations, keeping the parcels of land in tact. The Society, therefore, thought fit to first approach the Charity Commissioner by filing an application under Section 36 of the Bombay Public Trusts Act, 1950.
38. Section 36 of the Bombay Public Trusts Act, 1950 provides that no sale of any immovable property of a Public Trust is permissible without the previous sanction of the Charity Commissioner. Section 36 reads as under:-
Section 36. Alienation of immovable property of public trust.
[(1) [Notwithstanding anything contained in the instrument of trust-]
(a) no sale, mortgage, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building,
[(2) The decision of the Charity Commissioner under sub-section (1) shall be communicated to the trustees and shall be punished in such manner as may be prescribed.
(3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication.
(4) Such decision shall, subject to the provisions of sub-section (3) be final]
39. Accordingly, the necessary application was filed before the Charity Commissioner. The Charity Commissioner took into consideration the following three aspects before according sanction in favour of the Trust:-
(1) Whether there was any compelling necessity to justify the alienation?
(2) Whether the alienation was fair and reasonable?
(3) Whether the alienation in any way adversely affected the interest of the Trust?
40. We have ‘gone through the order of the Charity Commissioner. The Charity Commissioner has assigned cogent reasons in his order granting permission to the Society to sell the parcel of land in question. We have also taken notice of the fact that before passing the necessary order, the Charity Commissioner had invited objections from one and all concerned in the matter. It appears that around ten objections were lodged before the Charity Commissioner. Even the petitioners could have lodged their objections, which they are raising for the first time by way of this petition, after a period of almost four years. The Charity Commissioner, took into consideration all the objections and ultimately, reached to the conclusion that alienation was justified and was in the interest of the Trust. It also appears that one of the objectors filed an appeal before the Gujarat Revenue Tribunal, against the order of the Charity Commissioner granting permission, and the said appeal was also ordered to be dismissed by the Tribunal.
41. At this stage, it deserves to be noted that in the present petition, both the orders are not under challenge, namely, the order passed by the Charity Commissioner in exercise of power under Section 36 of the Act, as well as the order passed by the Gujarat Revenue Tribunal, as an Appellate Authority, under Section 36(3) of the Act, 1950. It also appears that after the order was passed by the Charity Commissioner, a public notice was issued by the Charity Commissioner, inviting bids from the interested parties for the purpose of putting the plot of land in question for auction. Many parties tendered their bids and one of those was the respondent No. 4. The bid of the respondent No. 4 was found to be the highest at Rs. 27,20,11,111/- (Rupees twenty seven crore twenty lac eleven thousand one hundred eleven only). Since the bid of the respondent No. 4 was the highest, ultimately the same was finalised and pursuant to the finalisation of the sale, a registered sale-deed was executed by the Society in favour of the respondent No. 4, on 20 September, 2010.
42. It also appears that after the sale-deed was executed, the name of the respondent No. 4 was mutated in the records of the City Survey and thereafter, the respondent No. 4 submitted the lay out plans for construction of a commercial complex (ground plus ten floors) with the authorities of the Ahmedabad Municipal Corporation. It also appears that the Ahmedabad Municipal Corporation sanctioned the lay out plans, and while according such sanction, charged a sum of Rs. 4,24,19,730/- (Rupees four crore twenty four lac nineteen thousand seven hundred thirty only), which was deposited by the respondent No. 4 towards the T.P scheme betterment charge, scrutiny fees and other allied miscellaneous charges, tree plantation charges, water charges, additional FSI charges, parking deposit and other allied charges.
43. It also appears from the photographs that as on today, almost 70% of the construction has been completed, inasmuch as eight floors have already been constructed and it is stated on oath by the respondent No. 4 that they have sold most of the units in the complex to different parties.
44. A lot of hue and cry has been raised regarding the N.A permission, which has been granted by the authorities in favour of the Society first, and thereafter, in favour of the respondent No. 4, with change of purpose. The only prayer in this petition is for an issue of appropriate order or direction to cancel the N.A permission granted in favour of the Society, vide order dated 7 March, 2012, and also an appropriate order or direction for cancellation of the sale-deed executed by the Society, dated 20 September, 2010, in favour of the respondent No. 4.
45. Taking into consideration the materials on record, we do not find an iota of substance in any of the allegations levelled by the petitioners so far as obtaining of the N.A permission is concerned. Mr. Joshi is justified in submitting that if the Society would have sold the plot of land without getting it converted to Non Agricultural use, then the Society would not have fetched a handsome price, which they have been able to fetch today in the interest of the Trust after selling it as a Non Agricultural land. The allegations that while praying for N.A permission, it was not brought to the notice of the authorities that they intended to sell the land to a third party, is also without any basis.
46. We are also not impressed by the submission canvassed on behalf of the petitioners that the Trust's deed does not permit the Trustees to sell the land owned by the Trust, even if the sale is necessitated for a bonafide reason. Section 36 opens with non-obstante clause, for it provides that: “Not withstanding anything contained in the instrument of trust”. On its plain language it would mean that even if the instrument of trust prohibits the trustees either expressly or impliedly, even then the Charity Commissioner would be empowered, and obliged to authorise any trustee to dispose of such property on an application made in that behalf, regard being had to the interest or benefit or protection of the trust. In any case when the instrument of trust is silent or aphonic about the authority of the trustees in that regard or that it does not expressly or impliedly prohibit the trustees, then surely in such a case the trustees can approach the Charity Commissioner under S. 36(1)(a) for giving authority to dispose of any immovable property of the public trust. It is incorrect to say that the Charity Commissioner cannot at all authorise the trustees to dispose of any immovable property of a public trust and that the Civil Court is only competent to authorise the trustees in that behalf. Whereas the authorisation by the Civil Court under S. 50 is of general nature for the whole or any part of the trust property to be alienated in any manner on such terms and conditions as the Court may deem necessary, the authorisation by the Charity Commissioner under S. 36(1)(a) is only when it is found to be “in the interest or benefit or protection of the public trust” that any immovable property thereof should be disposed of. The existence of “interest or benefit or protection of any public trust” is the precondition and therefore, this would be perceptibly distinct from general authorisation perceived by Section 50 of the Act. The quintessence of authorisation under Section 36 of the Act is that the Charity Commissioner has to record his satisfaction that disposal of any immovable property of the public trust was, and is, in the interest or benefit or protection of the trust. The Legislative scheme is that the Charity Commissioner has been made the final arbiter for this purpose. The legislature was conscious that the Charity Commissioners are judicial officers of the status of District Judges who are already enjoying some of the powers under the Civil Procedure Code and there was no reason why the same powers should not be given to them while administering the provisions of this Act and, supervising the trusts. Therefore, legislature introduced clause (a) to Section 36 empowering the Charity Commissioner to authorise the trustees to dispose of any immovable property of the trust in the interest or benefit or protection of the trust.
47. In any view of the matter, we are not at all convinced with the case set up by the petitioners, and are of the opinion that no illegality could be said to have been committed by the Society in selling the plot for the purpose of raising the necessary funds to set up Ahmedabad University. The petitioners are in no way concerned with the management of the Trust. They have no right to advise whether the Society should go for setting up of a University or not.
48. The trustees of a Charitable Trust are required to act as persons of ordinary prudence and as reasonable persons, entrusted with responsibilities. If the project of the Trust does not go to its logical end for a long period of time for want of the necessary finance, the Trust would suffer more than any other person. The trustees, considering the magnitude of their project of establishing a private University, if resolved to sell three of its scattered parcels of land to generate the necessary funds, which were otherwise lying vacant and constantly under the threat of being encroached upon, could not be said in any manner to have acted detrimental to the interest of the Trust. It deserves to be noted that the petitioners have not alleged malafides against any of the Trustees. Not a single Trustee in his personal capacity has been joined as a party respondent in the petition. Not a single averment is made against any particular Trustee. It must also be remembered that the respondent No. 3 is a Public Charitable Trust. If any interest of the beneficiaries is affected, then only the restricted class of its beneficiaries would be entitled to move the Court. This is not a case where public interest in its wide sense is involved, or the public rights of a large, almost unrestricted body of individuals is involved.
We, accordingly, answer the second question.
Third Question:
49. It is well-settled that this sacrosanct jurisdiction of public interest litigation should be invoked very sparingly and in favour of a vigilant litigant. The power of the High Court to be exercised under article 226 of the Constitution, being discretionary, its exercise must be judicious and reasonable. The persons seeking relief against the State under article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief, obtainable thereunder unless they fully satisfy the Court that the facts and circumstances of the case clearly justify the laches or undue delay on their part in approaching the Court for grant of such discretionary relief.
50. Where the High Court grants relief to a citizen or any other person under article 226 of the Constitution of India against any person including the State without considering his blameworthy conduct, such as laches or undue delay, acquiescence or waiver, the relief, so granted, becomes unsustainable, even if, the relief was granted in support of the alleged deprivation of his legitimate right by the State. Delay is a very important factor while excising extraordinary jurisdiction under article 226 of the Constitution, and the third party interest created on account of delay, should not be disturbed.
51. Reference could also be made to the observations passed by the Supreme Court in the case of Delhi Development Authority v. Rajendra Singh, (2009) 8 SCC 582, made in para Nos. 52 and 53, which are as under:-
“52. In Narmada Bachao Andolan v. Union of India, SCC para 229, this Court has held that PIL should be thrown out at the threshold if it is challenged after the commencement of execution of the project. It was also held that no relief should be given to persons who approach the Court without reasonable explanation under Articles 226 and 32 after inordinate delay.
53. We reiterate that the delay rules apply to PILs also and if there is no proper explanation for the delay, PILs are liable to be summarily dismissed on account of delay. In the case on hand, it is not in dispute that both the petitioners though claiming that they are very much conversant with environment and ecology, approached the High Court only in the middle of 2007, hence on the ground of delay and laches, the writ petitions were liable to be dismissed.”
52. In State of Madhya Pradesh v. Nandlal Jaiswal, AIR 1987 SC 251, the Supreme Court in paragraph 23 observed as under:-
“23. Now, it is well settled that the power of the High Court to issue an appropriate writ under article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled With the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions or this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal”.
53. Bearing the aforesaid principles in mind, we have no doubt in our mind that this petition deserves to be rejected also on the ground of delay. We have taken note of the developments, which have taken place so far. The following aspects need to be considered:-
(a) The permission to sell the plot of land was granted by the Charity Commissioner on 17 July, 2010;
(b) The sale-deed was executed by the Society in favour of the respondent No. 4 on 20 September, 2010;
(c) The appeal, which was preferred before Gujarat Revenue Tribunal against the order of the Charity Commissioner was also ordered to be dismissed on 6 March, 2012;
(d) The N.A permission, which has been impugned, is dated 7 March, 2012;
(e) The lay out plans for construction of the commercial complex (ground plus ten floors) were sanctioned in the year 2012 and the necessary permission to put up the construction was accorded vide order dated 6 August, 2012;
(f) The respondent No. 4, by now, has put up construction upto eighth floors and almost 70% of the construction has been completed;
(g) The respondent No. 4 has so far invested a sum of Rs. 47,53,63,868/- (Rupees forty seven crore fifty three lac sixty three thousand eight hundred sixty eight only).
54. The aforesaid makes it clear that the project has proceeded substantially and even if the petitioners would have been able to point out some gross illegality, we would have refused to interfere in the matter, solely on the ground of delay. As observed by the Supreme Court in the case of Nandlal Jaiswal (supra), that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere even if the State action complained of is unconstitutional or illegal.
55. For the foregoing reasons, we hold that there is no merit worth the name in this petition and the same deserves to be rejected with costs.
56. In the words of the Supreme Court, the Court must not allow its process to be abused for oblique consideration by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the past time of meddling with judicial process either by force of habit, or from improper motives and try to bargain for a good deal as well as to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busybodies deserve to be thrown out by rejection at the threshold, and in appropriate cases, with exemplary costs. [See Dattaraj Nathuji v. State of Maharashtra, (2005) 1 SCC 590].
57. This is an appropriate case which deserves to be rejected with exemplary costs. The petition is accordingly rejected with costs, quantified at Rs. 25,000/- (Rupees twenty five thousand only).
The order of status-quo as regards the nature and the character of the property, as also alienation, passed by us is ordered to be vacated forthwith. Civil Application No. 9922 of 2013 stands disposed of.
The petitioners are directed to deposit the amount of Rs. 25,000/- (Rupees twenty five thousand only), with the High Court Legal Services Authority, within a period of one week from tody. If the amount of costs is not deposited as directed, then in such circumstances, the Legal Services Authority shall proceed to recover the same from the petitioners, in accordance with law.
After this order is passed, Mr. Pancholi, the learned advocate appearing on behalf of the petitioner, prays for stay of operation of our order.
In view of what has been stated above, we find no reason to stay our order. Prayer is refused. Let a certified copy of the order be given to the petitioner by tomorrow, if applied.