Ajit B. Jadhav vs Devasthan Vyavasthapan Committee and Others

M.S. Sonak, J.—These petitions concern properties bearing Gat No. 175/A admeasuring 68 Acres and 175/B ad-measuring 91 Acres, situated at Village Kabnur, Tal. Hatkangle, District Kolhapur (said property).

There is dispute inter se between respondent Nos. 1A and 1B in relation to the said property. In these proceedings, however, there is no occasion for resolution of such a dispute.

On or about 21 March 2000, the Devasthan Managing Committee (DMC) of respondent No. 1A, vide Application No. 55 of 2000 applied for sanction to the Joint Charity Commissioner under Section 36(1)(a) of the Maharashtra Public Trusts Act, 1950 (said Act) for sale of the said property in favour of one Mr. Khodre (respondent No. 3) herein. By order dated 24 January 2001, the Joint Charity Commissioner granted such sanction for sale of said property to Mr. Khodre for consideration of Rs. 33 Lacs.

The petitioner, instituted the present Writ Petition No. 618 of 2001, inter alia, on the ground that the consideration offered is too meagre and fresh tenders ought to have been invited in the matter. This Court, by order dated 13 March 2001, admitted this petition, granted interim reliefs, staying the impugned decision and further directed the invitation of fresh tenders/bids, by issuance of public notice. By the year 2006, since no decision had been arrived at, despite lapse of five years from the date of making of order of 13 March 2001, this Court directed invitation of fresh bids, again by issuance of public notice. Since the same position continued upto 2009, this Court by order dated 14 August 2009 directed invitation of fresh bids once again.

In pursuance of the aforesaid, fresh bids were invited and the petitioner was found to be the highest bidder, having bid an amount of Rs. 1,65,00,600/-. Before the sale could be confirmed in favour of the petitioner, several civil applications were filed opposing the confirmation thereof. Respondent No. 1B, who claims some rights in respect of the said property, also filed a civil application, seeking recall of the order dated 14 August 2009, in pursuance of which fresh bids came to be invited for the sale of said property. On 13 November 2009, this Court directed the parties interested in the said property to deposit an amount of Rs. 2 Crores each in this Court. The petitioner and another party interested in purchasing the said property deposited the said amount.

By order dated 15 December 2009, this petition was disposed of by accepting minutes of the order tendered by the petitioner and respondent No. 1A. In terms thereof, the petitioner was declared as the highest bidder in respect of purchase of the said property, the bid amount being Rs. 2,05,11,000/-. Several civil applications instituted by respondent No. 1B were also dismissed, however, liberty was granted to respondent No. 1B to institute appropriate proceedings with regard to its claim of title to the said property. It was clarified that the order dated 15 December 2009 was itself to be treated as a sale certificate in favour of the petitioner.

The Respondent No. 1B, in pursuance of the liberty granted on 15 December 2009, instituted Regular Civil Suit No. 331 of 2009 on or about 28 December 2009. This civil suit was dismissed on 27 January 2010. The appeal against the decree dated 27 January 2010 was dismissed on 6 September 2010. The Second Appeal No. 202 of 2014 is, however, pending admission before this Court.

The Respondent No. 1B had also instituted Letters Patent Appeal against the order dated 15 December 2009, but the same was unconditionally withdrawn on 22 January 2010.

On or about 12 March 2010, in pursuance of the order dated 15 December 2009, respondent No. 1A executed a Sale Deed in favour of the petitioner herein selling, transferring and conveying the said property for consideration of Rs. 2,05,11,000/-.

As there was delay and resistance in issuance of L-4 order (a formal order made by the State Government in the matter of sale of Devasthan properties), the petitioner instituted Writ Petition No. 9588 of 2011 seeking appropriate directions in the matter of grant of sale. In January 2012 or thereabouts, respondent No. 1B as also the State for the first time raised a grievance that said property was in-alienable in view of the bar contained under Section 8(3) of the Exemption of Land Revenue Act, 1863, applicable to the said property. The statement was made on behalf of respondent No. 1B as well as the State that the Review Petition would be instituted against the order dated 15 December 2009. By order dated 13 June 2012, this Court, disposed of Writ Petition No. 9588 of 2011, after recording that respondent No. 1B as well as the State have already instituted Review Petitions seeking review of order dated 15 December 2009 in Writ Petition No. 618 of 2001, granting liberty however, to the petitioner to approach this Court, if cause of action exists after the Review Petitions are decided.

This Court, by order dated 18 June 2013 permitted respondent No. 1B to withdraw the Review Petition instituted by it. However, the Review Petition instituted by the State was allowed, primarily to consider the effect of Exemption of Land Revenue Act, 1863 upon the sale of said property. In its order dated 18 June 2013, this Court made the following observations:

"7. 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 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.

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.

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 Applicant- State 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:--

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

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.

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.

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."

The petitioner instituted Petition for Special Leave to Appeal (Civil) No. 23292 of 2013 before the Hon''ble Apex Court, which was dismissed. However, this Court was requested to dispose of the petition in not later than six months leaving all questions of fact and law open.

On or about 21 August 2013, the State filed an affidavit-in-reply in the present petition, broadly raising the following issues:

"(a) By placing reliance upon letters dated 6 December 1972 and 3 January 1974, the State has contended that the said property never vested in Devasthan Management Committee (DMC) of respondent No. 1A;

(b) That the said property being Devasthan Inam Land was always exempted from payment of land revenue. Therefore, by virtue of provisions contained in Section 8(3) of the Exemption of Land Revenue Act, 1863, the said property was in-alienable;

(c) That some time before the year 1989, one Shri. Narsu L. Kamble an agriculturist/tenant illegally alienated the said property. Therefore, the Tehsildar, Hatkanagale by an order dated 3 July 1989 after declaring such alienation as void forfeited the said property in favour of the State. This order was given effect to vide Muation Entry No. 16083, which records that possession of the said property was taken over by the Circle Inspector on behalf of the State."

The petitioner filed an affidavit-in-rejoinder on 7 October 2013 to counter the contentions raised by and on behalf of the State in its affidavit dated 21 August 2013. Therein, the petitioner pointed out as under:--

"(a) That the letters dated 6 December 1972 and 3 January 1974 make reference to some properties of respondent No. 1B registered under No. KA-1024, whereas the registration number in respect of respondent No. 1A is Trust A-3595. Accordingly, the contention that the said property was never vested in the DMC of respondent No. 1A, is misconceived;

(b) That the Exemption of Land Revenue Act, 1863 was not at all applicable to the State of Kolhapur, which was governed by ''Karveer Sarkarche Mulki Vathukum''. In the list of laws adopted by the Kolhapur State, there is no reference to Exemption from Land Revenue Act, 1863;

(c) In any case and without prejudice, the said property had always been assessed for payment of land revenue and in pursuance of the same, land revenue has also been paid from time to time to the State. Accordingly, there arises no question of bar contained in Section 8(3) of the Exemption from Land Revenue Act, 1863 being attracted."

The State apart from institution of Review Petition, which was since allowed by order dated 18 June 2013, also instituted substantive Writ Petition No. 11804 of 2013 to question, inter alia, order dated 24 January 2001, by which the Joint Charity Commissioner, Pune sanctioned the sale of said property under Section 36(1)(a) of the said Act and for quashing the proposal of respondent No. 1A bearing Application No. 55 of 2000 in that regard. In Writ Petition No. 11804 of 2013, the grounds and contentions, virtually identical to those stated in affidavit-in-reply dated 21 August 2013 in Writ Petition No. 618 of 2001, have been raised. It is for this reason, both these Writ Petitions are taken up for consideration together.

Mr. Vineet Naik, learned senior counsel for petitioners in Writ Petition No. 618 of 2001 and for Respondent No. 2 in Writ Petition No. 11804 of 2013, made the following submissions:--

"(a) That the petitioner, in pursuance of various orders made in Writ Petition No. 618 of 2011, has already paid an amount of Rs. 2,05,11,000/- to respondent No. 1A and even executed a Sale Deed. At this point of time, it would be harsh and inequitable to make any order, which would affect the title of the petitioner to the said property, acquired in pursuance of the Sale Deed dated 12 March 2010;

(b) That respondent No. 1B has absolutely no right, title or interest in respect of the said property. The Letters Patent Appeal instituted by respondent No. 1B against the order dated 15 December 2009 made in Writ Petition No. 618 of 2001 was withdrawn unconditionally by respondent No. 1B. The Review Petition instituted by respondent No. 1B against the order dated 15 December 2009, was also withdrawn. Respondent No. 1B, instituted Regular Civil Suit No. 331 of 2009 in an attempt to establish its title to the suit property. However, the same has been dismissed on 27 January 2010. The appeal against the same has been dismissed on 6 September 2010. The second appeal is pending consideration. Therefore, there is no question of respondent No. 1B agitating any rights in respect of the said property, in the present proceedings;

(c) That the DMC constituted by the State for the Management of respondent No. 1A, is itself ''State'' or in any case an instrumentality of the State. Therefore, the so called forfeiture of the said property by the Tehsildar''s order dated 3 July 1989 and the Mutation Entry No. 16083 carried out in pursuance thereof, is nothing but forfeiture in favour of respondent No. 1A and entry in favour of respondent No. 1A. Accordingly, there was no question of challenge to Mutation Entry No. 16083;

(d) The Exemption from Land Revenue Act, 1863 was never applicable to the said property, which is admittedly situated within the then province of State of Kolhpaur. The State was governed by Karveer Sarkarche Mulki Vathukum and the list of laws adopted from British India, make no reference to the Exemption of Land Revenue Act, 1863. Accordingly, there was no question of applicability of the Exemption from Land Revenue Act, 1863 insofar as the said property is concerned. The alternate contention that the Exemption from Land Revenue Act 1863 stands specifically repealed by Bombay Personal Inam Abolition Act, 1952, however, was not pressed by the learned senior counsel for the petitioner;

(e) In the alternate, it was submitted that the said property had always been assessed to land revenue and the land revenue was in in fact paid in respect of the said property to the State. Accordingly, even if the provisions of Exemption of Land Revenue Act, 1863 are regarded as applicable, the provisions contained in Section 8(3), which impose a bar upon alienation, would not apply;

(f) Finally, it was urged that the State Government in respect of Devasthan Trust viz. Karveer Nivasini Devi Trust, Kolhapur, approved the sale of its properties, by recording that the provisions of Exemption from Land Revenue Act, 1863 were not applicable to it. This was, despite the fact that there is no difference whatsoever in the status of the said Trust and respondent No. 1A. Accordingly, it was urged that the State Government has adopted an unequal yardstick, in the matter of both the status of respondent No. 1A and approval for sale of its properties."

Mr. Nitin Deshpande, learned AGP, who appears for respondent-State in Writ Petition No. 618 of 2001 and for the petitioner-State in Writ Petition No. 11804 of 2013 made the following submissions:

"(a) That the material on record, very clearly establishes that the title in respect of said property as well as the possession thereof, vested in the State Government inter alia in view of the following provisions:

(i) That the said property was never vested in the DMC of respondent No. 1A;

(ii) That such effect was produced by Tehsildar''s order dated 3 July 1989 read with Mutation Entry No. 16083, which has till date, remain unchallenged.

(b) That by virtue of Kolhapur State (application of laws) Order, 1949, the provisions of Exemption from Land Revenue Act, 1863 are very much applicable to the said property;

(c) That there is ample material on record, which will establish that the said property was exempted from payment of land revenue and was in fact, included in the Register of the alienated properties. Accordingly, by virtue of the bar contained in Section 8(3) of the Exemption from Land Revenue Act, 1863, the said property was in-alienable. The proposal of respondent No. 1A being proposal No. 55/2000 as also the sanction accorded by the Joint Charity Commissioner are therefore, ultra vires and required to be struck down."

Mr. S.A. Sawant, learned counsel for respondent No. 1A in Writ Petition No. 618 of 2001 and for respondent No. 3 in Writ Petition No. 11804 of 2013, supported and adopted the submissions made by Mr. Vineet Naik, learned senior counsel for the petitioner in Writ Petition No. 618 of 2001. Similarly, Mr. A.Y. Sakhare, learned senior counsel for respondent No. 1B in Writ Petition No. 618 of 2001 and for respondent No. 1 in Writ Petition No. 11804 of 2013, submitted that by virtue of the order dated 18 June 2013 made in the review petition, there was no bar to respondent No. 1B urging that it had rights, title and interest in the said property. Mr. Sakhare adopted the substantial submissions made by Mr. Nitin Deshpande, learned AGP in the context of Exemption from Land Revenue Act, 1863 and submitted that the sanction granted by the Joint Charity Commissioner under Section 36(1)(a) of the said Act, without taking into consideration the provisions in Exemption from Land Revenue Act, 1863, was vulnerable and required to be struck down.

The rival contentions now fall for determination.

In the light of the order made by this Court on 18 June 2013 allowing the review petition instituted by the State, the crucial issues which arise in both petitions are as follows:

"(a) Whether the Exemption from Land Revenue Act, 1863 is at all applicable to the said property? And

(b) If applicable, whether the said property was exempted from payment of land revenue, so as to attract the bar of alienability contained in Section 8(3) of the Exemption from Land Revenue Act, 1863?"

The Exemption from Land Revenue Act, 1863 was enacted to facilitate the adjustment of unsettled claims to exempt from the payment of Government land revenue and to regulate the succession to, and transfer of, lands wholly or partially exempt from the payment of such revenue in those parts of the Bombay Presidency which are subject to the operation of Act XI of 1852 of the Legislative Council of India. The preamble to the Exemption from Land Revenue Act, 1863, reads thus:

"Preamble.- WHEREAS, it has been deemed expedient to provide for the final adjustment, summarily, of unsettled claims to exemption from the payment of land-revenue, and to fix the conditions which shall secure, in certain cases, the recognition of titles to such exemption with respect to succession and transfer in those districts of Bombay Presidency to which the operation of Act XI of 1852 of the Legislative Council of India extends; It is hereby enacted as follows :-

The Bombay Rent Free Estate Act, 1852 (Act XI of 1852) indicates that it extends to certain districts of the Bombay Presidency. Based upon the same, Mr. Vineet Naik contended that the Exemption from Land Revenue Act, 1863 was not per se applicable to the said property, which was admittedly situated in the Kolhapur State, and consequently was neither a part of British India nor a part of Bombay Presidency. Mr. Vineet Naik made reference to Notification dated 7 April 1922, by which some laws found to have been beneficial in their operation in British India were declared to be applicable to the Kolhapur State. In the Schedules appended to the Notification dated 7 April 1922, there is no reference to the Exemption from Land Revenue Act, 1863. This, according to Mr. Vineet Naik, establishes that the Exemption from Land Revenue Act, 1863 was never applicable to the said property.

In the context of Kolhapur State (Application of Laws) Order, 1949, Mr. Vineet Naik, submitted that Section 3 of the said order made applicable to the erstwhile State of Kolhapur all enactments specified in Parts I and II of the schedule. However, the Exemption from Land Revenue Act, 1863 finds no reference either Part I or Part II of the schedule. Accordingly, Mr. Vineet Naik submitted that the provisions of Exemption from Land Revenue Act, 1863 can never be made applicable to the said property.

In order to determine whether the Exemption from Land Revenue Act, 1863 is at all applicable to the said property, reference shall have to be made to the decision of the Division Bench of this Court in case of Ganapatrao Shankarrao Indulkar and Others Vs. State of Bombay, AIR 1959 Bom 263 : (1958) 60 BOMLR 888 : (1959) ILR (Bom) 67 . The said decision, takes cognizance of the circumstance that on 15 August 1947, the paramount authority of British Crown lapsed consequent upon the consequent upon the enactment of the Indian Independence Act, 1947. Further, on 1 February 1949, there was a merger agreement between the Ruler of the Kolhapur State and the Government of India, and in pursuance of the same, with effect from 1 March 1949, the Kolhapur State merged with the Bombay Province. The Government of India, on 1 March 1949, under the authorities vested in it under the Extra Provincial Jurisdiction Act, 1947, made two orders. The first being, the Administration of Kolhapur State Order and the second being, the Kolhapur State (Application of Laws) Order 1949. By the first order made provisions for administration of the State of Kolhapur. By the second order, divers Acts, which were in force in the Bombay Province (whether enacted by the Bombay State Legislature or Central Legislature) were made applicable to the area of erstwhile Kolhapur State. Section 3 of the Kolhapur State (Application of Laws) Order, 1949 provides that all enactments specified in Parts I and II of the schedule and all notifications, orders, schemes, rules and by-laws issued, made or prescribed under such enactments and in force in the Province of Bombay immediately before the coming into force of the Order, shall extend to and be in force in the Kolhapur State subject to any amendments to which the said enactments are for the time being generally subject in the Province of Bombay. Further Section 4 of the Kolhapur State (Application of Laws) Order, 1949 provides that notwithstanding anything in the said enactments defining the extent of and appointing the date for commencement, the said enactments except where expressly provided shall apply to the Kolhapur State, and shall be deemed to have come into force in the case of enactments specified in Part I of the said Schedule on the date on which this Order comes into force and in the case of enactments specific in Part II of the said Schedule on the 1 May 1949. Further, Section 5 of the Kolhapur State (Application of Law) Order, 1949 provides for Repeal of enactments in force in Kolhapur State.

In light of the decision of the Division Bench of this Court in case of Ganpatrao Indulkar (supra), which basically interprets the provisions of Kolhapur State (Application of Law) Order 1949, all enactments specified in Part I and Part II of the schedule to the said order in force in the Province of Bombay immediately before the coming into force of the said order, shall extend to and be in force in the Kolhapur State. However, if list of enactments in Part I and Part II of the schedule to the Order 1949 is perused, then there is no direct reference to the Exemption from Land Revenue Act 1863. There is, however, direct reference to the Bombay Land Revenue Code, 1879 in Part I of schedule to the Order 1949.

Section 127 of the Bombay Land Revenue Code, 1879 reads thus:

"127. Act XI of 1852 and Bombay Acts II and VII of 1863 how far applicable to lands in such sites :- Act XI of 1852 and Bombay Acts II and VII of 1863 shall be deemed to be applicable, and to have always been applicable, in the territories to which they respectively extend, to all lands within the limits of the site of any town or city in which an inquiry into titles has been made under the provisions of Bombay Act IV of 1868 which have been hitherto ordinarily used for agricultural purposes only; but the provisions of the said Acts shall not be deemed applicable to any other lands within the limits of the site of any such town or city."

Act XI of 1852 is the Bombay Rent Free Estates Act, 1852 and the Bombay Acts VII of 1863 is Exemption from Land Revenue Act 1863, to which reference has been made earlier. Section 127 of the Bombay Land Revenue Code, 1879, therefore, provides that Act XI of 1852 and Act VII of 1863 shall be deemed to be applicable, and to have always been applicable, in the territories to which they respectively extend, to all the lands within the limits of site of any town or city in which an inquiry into titles has been made under the provisions of Bombay Act IV of 1868 which have been hitherto ordinarily used for agricultural purposes only; but the provisions of the said Acts shall not be deemed to have applicable to any other lands within the limits of the site of any such town or city.

Upon coming into force of the Maharashtra Land Revenue Code, 1966, by virtue of Section 336 thereof, the Bombay Land Revenue Code, 1879 stands repealed. The repeal shall, however, not affect the previous operation of any law so repealed or anything duly done or suffered thereunder; or any right, privilege, obligation or liability acquired, accrued, or incurred under any law so repeated; or any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or "any investigation, proceeding, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid"; and any such investigation, proceeding, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Code had not been passed. Provided also that anything done or any action taken including any rules, assessments, appointments and transfers made, notifications, orders, summons, notices, warrants and proclamations issued, authorities and powers conferred, forms and leases granted, survey and boundary marks fixed, record of rights and other records framed or confirmed, rights acquired, liabilities incurred and times and places appointed under any law so repealed shall, in so far as it is not inconsistent with the provisions of this Code be deemed to have been done or taken under the corresponding provision of the Code; and shall continue to be in force accordingly unless and until superseded by anything done or action taken under the Code.

In light of the aforesaid provisions, including in particular the provisions contained in Section 127 of the Bombay Land Revenue Code, 1879 to be read with the repeal and savings clause contained in Maharashtra Land Revenue Code 1966, at least prima facie, it cannot be said that the provisions of Exemption from Land Revenue Act 1863 do not apply to the said property.

The next crucial issue, however, is whether the said property was at any time exempted from payment of land revenue, so as to attract the bar of alienability under Section 8(3) of the Exemption from Land Revenue Act, 1863. In this regard, reference shall have to be made to Section 8 of Exemption from Land Revenue Act, 1863, which reads thus:

"8. Lands held on behalf of religious or charitable institutions :- Clause 1st- Lands held wholly or partially exempt from the payment the land-revenue on behalf of religious or charitable institutions shall, if already formally adjudicated to be permanently so continuable, be so continued wholly or partially exempt from such payment of land-revenue as aforesaid, according to the terms of the adjudication.

Clause 2nd - Lands held on behalf of religious and charitable institutions, either wholly or partially exempt from the payment of land-revenue, shall, if not already formally adjudicated to be permanently so continuable, be declared to be so wholly or partially exempt from such payment of land-revenue as aforesaid; subject, however, to the payment of annual quit-rent equal to one-fourth of the assessment, which shall be ascertainable under the rules annexed to section 2.

Clause 3rd - 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, devise or otherwise howsoever, and no nazrana shall be leviable on account of such lands.

Clause 4th - If the holders, managers or trustees of such lands shall refuse to accept the terms provided by clause 2 of this section, and shall demand a trial and adjudication of the title by which the land is held wholly or partially exempt from land-revenue, they shall be entitled to the same, on the conditions described in section 7 and subject to the liabilities provided in section 6."

(emphasis supplied)

The Section 8 of the Exemption from Land Revenue Act, 1863, provides that lands held wholly or partially exempt from the payment of the land-revenue on behalf of religious or charitable institutions shall, if already formally adjudicated to be permanently so continuable, be so continued wholly or partially exempt from such payment of land revenue, according to the terms of the adjudication. This means and implies that if any, land in-question held by a religious or charitable institutions has been already adjudicated to be wholly or partially exempt from the payment of land revenue, then consequent upon the enactment of the 1863 Act, such position shall continue according to the terms of the adjudication. Clause (3) of Section 8 of the Exemption from Land Revenue Act, 1863, however, provides declaration that the 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, devise or otherwise howsoever, and no nazrana shall be leviable on account of such lands.

Mr. Nitin Deshpande, learned AGP, at the outset, submitted that the said property was ''alienated land'' as defined under Section 2(2) of the Maharashtra Land Revenue Code, 1966 (the Code), since the said property is admittedly recorded in the register of alienated lands kept by the Collector in terms of Section 75 of the Code. Mr. Desphande submitted that the alienated lands, by definition, are exempt from payment of rent or land revenue.

The Section 2(2) of the Code defines the term ''alienated'' in the following manner:

"(2) "alienated" means transferred in so far as the rights of the State Government to payment of rent or land revenue are concerned, wholly or partially, to the ownership of any person;

The Section 75 of the Code entitled ''Register of alienated land'' reads thus:

"75. Register of alienated lands.

A register shall be kept by the Collector in the form prescribed by the State Government of all lands, the alienation of which has been established or recognized under the provisions of any law for the time being in force; and when it shall be shown to the satisfaction of the Collector that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government, grant to any person whom he may deem entitled to the same a certified extract from the said register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed and shall be deemed to be as valid a proof of title as the said sanad."

In the present case, the State, alongwith its affidavit-in-reply has produced an extract of Village Form-III, which is prescribed Register of alienated lands as referred to in Section 75 of the Code. The extract makes reference to the said property. However, if the definition contained in Section 2(2) of the Code and the provisions contained in Section 75 of the Code are cumulatively considered, then, Mr. Deshpande''s contention that the moment a property is found registered in the Register of alienated lands, the same has to be conclusively accepted as being a land, which was exempt from land revenue whether wholly or partially, cannot be accepted.

The definition of a term ''alienated'' under Section 2(2) of the Code means transferred in so far as the rights of the State Government to payment of rent or land revenue are concerned, wholly or partially, to the ownership of any person. Section 75 of the Code makes reference to inclusion in the Register of alienated lands, lands, the alienation of which has been established or recognized under the provisions of any law for the time being force. Section 75 of the Code further provides that when it shall be shown to the satisfaction of the Collector that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government, grant to any person whom he may deem entitled to the same, a certified extract from the said register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed and shall be deemed to be as valid a proof of title as the said sanad.

Therefore, notwithstanding the inclusion of the said property in the Register of alienated lands, the question would still remain as to whether or not, in terms of the sanad granted, the said property had been exempted from the payment of land revenue either wholly or partially. The inclusion in the register of alienated lands, would not doubt be one of the important pieces of evidence in this regard. However, the blanket proposition that the very inclusion of the property in the Register of alienated lands means that the property in question well exempted from payment of land revenue, cannot be accepted.

Both Mr. Deshpande and Mr. Naik had their own interpretation with regard to the entries in Village Form-III. This is because certain columns thereof indicate that the said property was assessed to land revenue in an amount of Rs. 9/-. The final column, i.e., column No. 15, which is entitled as ''balance with the alienee or nuksan'' also indicates the figure of Rs. 9/-. According to Mr. Deshpande, all lands are assessed for land revenue, but in case of alienated lands which are exempt from payment thereof, column No. 15 as aforesaid indicates loss to the Government, which in the present case was Rs. 9/- because the said property was wholly exempt from payment of land revenue. According to Mr. Naik correct interpretation is that the lands were assessed for payment of land revenue and column No. 15 makes reference to the land revenue due and payable by the assessee, which is in the present case is Rs. 9/-. Mr. Naik also placed reliance upon the certain receipts, which according to him indicate that the land revenue was paid in respect of the said property.

From the aforesaid, the position which emerges is that it is not possible to state with certainty whether or not the said property was, at any stage, exempted from payment of land revenue. This is essentially a question of fact and the material on record placed by either parties is not at all sufficient to conclude this issue one way or other. Mr. Vineet Naik, in such circumstances, would urge that the Writ Petition No. 11804 of 2013 instituted by the State is required to be dismissed, since disputed question of fact has been raised by the State and it is not possible to adjudicate the same in exercise of the writ jurisdiction. On the other hand, Mr. Deshpande, learned AGP submitted that in view of at least prima facie material indicating the applicability of the Exemption of Land Revenue Act, 1863, it would be appropriate if the Joint Charity Commissioner''s sanction order dated 24 January 2001 is struck down and the matter remanded to the Joint Charity Commissioner for fresh decision, including inter alia the consideration of implication arising out of the applicability of the provisions of Exemption of Land Revenue Act, 1863 to the said property.

If the order dated 24 January 2001 by which the Joint Charity Commissioner granted sanction for the sale is perused, then it is obvious that the issue of applicability of Exemption of Land Revenue Act, 1863 was not considered by the Joint Charity Commissioner exercising powers under Section 36(1)(a) of the said Act. This is obviously because, no such issue was ever raised by any parties before the Joint Charity Commissioner. Nevertheless, such issue is undoubtedly, relevant to the decision as to whether or not the said property is in alienable by virtue of the provisions contained in Section 8(3) of the Exemption of Land Revenue Act, 1863. Since, at least prima facie, the provisions of Exemption of Land Revenue Act, 1863 are found to be applicable to the said property, it would be appropriate if the order dated 24 January 2001, by which the Joint Charity Commissioner granted sanction for sale of the said property under Section 36(1)(a) of the said Act, is kept in abeyance, until such time the Joint Charity Commissioner, once again visits the issue of grant of sanction under Section 36(1)(a) of the said Act, by taking into consideration the plea of the State based upon applicability of the Exemption of Land Revenue Act, 1863 as well as the defences of the petitioner in Writ Petition No. 618 of 2001 with regard to the same. In this petition, on account of the self imposed limitations arising out of the proceedings under Articles 226 and 227 of the Constitution of India, it is not possible to adjudicate upon the disputed questions which may even require the taking of parole evidence. Normally, the issue of applicability of provisions of law would not involve adjudication into disputed questions of fact. However, in the present case, there is uncertainty in the matters of territorial extent of previous laws and legislations, which have since been repealed. Besides, the issue as to whether or not the said property had at any time been exempted from the payment of land revenue, is also basically an issue of fact, which will have to be decided after taking evidence. Such exercise, cannot be effectively undertaken in the present proceedings under Articles 226 and 227 of the Constitution of India.

In this petition or for that matter in the proceedings before the Joint Charity Commissioner, there is, however, no scope to consider the contentions raised by and on behalf of the respondent No. 1B. The respondent No. 1B claims right, title and interest in the suit property. Since such claim could not have been decided by this Court in exercise of its writ jurisdiction, liberty was granted to respondent No. 1B to institute proceedings before the Civil Court. In pursuance of such liberty, the respondent No. 1B did institute Regular Civil Suit No. 331 of 2009, which was, however, dismissed by the judgment and decree dated 27 January 2010. The appeal against such decree dated 27 January 2010 was dismissed by the first Appeal Court on 6 September 2010. The respondent No. 1 has instituted a Second Appeal No. 202 of 2014, which is stated to be pending admission in this Court. Accordingly, whatever right, interest or title, which the respondent No. 1B claims in respect of the said property, shall be decided in the Second Appeal No. 202 of 2014 and therefore, there is no necessity to deal with the contentions raised by and on behalf of the respondent No. 1B with regard to its claim to the said property.

Further, now that issue of sanction under Section 36(1)(a) of the said Act is being remanded to the Joint Charity Commissioner for fresh adjudication, the contention of the State Government that the said property was never vested in the DMC of respondent No. 1A, which is again on disputed question of fact, can be kept open for the decision of the Joint Charity Commissioner. In the proceedings before the Joint Charity Commissioner, apart from documentary evidence, even parole evidence is normally taken and all these will assist in the effective adjudication of such issues, which are essentially issues of fact.

The reason, for not setting aside the Joint Charity Commissioner sanction dated 24 January 2011, is because on the basis of the same, the respondent No. 1A has already executed a sale deed in favour of the petitioner in respect of the said property. The petitioner has paid the consideration of Rs. 2,05,11,000/- towards such conveyance. Further, even though, this Court by its order dated 18 June 2013, recalled its earlier order dated 15 December 2009, it was directed that the position emerging from the execution of the sale deed dated 12 March 2010 shall continue till the final disposal of the writ petition and subject to the final outcome. The issue of sanction under Section 36(1)(a) of the said Act, after taking into consideration the contention of the State, is now being remanded to the Joint Charity Commissioner for fresh decision after afford of opportunity to the petitioner as well as the State to lead evidence in the matter. Accordingly, until such decision is taken, it would not be appropriate to disturb the position which has arisen out of the execution of the Sale Deed dated 12 March 2010, during pendency of the present petition. However, the status of such Sale Deed dated 12 March 2010 and the rights claimed by the petitioner on the basis thereof, would be subject to the final decision, which the Joint Charity Commissioner may arrive at, in pursuance of this remand order. Further, both the petitioner, as well as the State shall, pending final decision as may be arrived at by the Joint Charity Commissioner, not alter the status quo with regard to the said property, either by way of change in nature of the said property or by purporting to sell, transfer, convey or otherwise in any manner deal with the same.

Accordingly, both the petitions are disposed of with the following order.

"A} The sanction order dated 24 January 2001 issued by the Joint Charity Commissioner, is directed to be kept in abeyance until fresh decision under Section 36(1)(a) of the said Act is arrived at by the Joint Charity Commissioner in the matter;

B} The issue of sanction under Section 36(1)(a) of the said Act for the sale of the said property by respondent No. 1A to the petitioner is remanded for fresh consideration to the Joint Charity Commissioner, who is directed to decide the same in accordance with law, as expeditiously as possible, and in any case within a period of 18 months from today;

C} Upon remand, the Joint Charity Commissioner to take into consideration the objections raised by and on behalf of the State Government, including inter alia, the following:

I) That the said property was never vested in the DMC of respondent No. 1A;

II) The impact of the provisions of Exemption From Land Revenue Act, 1863, if applicable to the said property.

D} The Joint Charity Commissioner shall permit the petitioner as well as the State Government to produce documentary as well as parole evidence in respect of their contentions and thereafter take appropriate decision in the matter within the period of 18 months from today;

E} The observations in this judgment and order on the issue of applicability of Exemption From Land Revenue Act, 1863, are prima-facie and the the Joint Charity Commissioner shall be at liberty to take a decision upon the said issue, based upon the material which may be placed on record by the State Government and the petitioner in that regard;

F} That pending the final decision by the Joint Charity Commissioner, as aforesaid, the position emerging from execution of the Sale Deed dated 12 March 2010 between the petitioner and respondent No. 1A shall continue. Both the petitioner as well as the State, pending such decision by the Joint Charity Commissioner, shall not alter the status quo with regard to the said property, either by way of change in nature of the said property or by purporting to sell, transfer, convey or otherwise in any manner deal with the same;

G} The amount of Rs. 2 Crores deposited by the party, (other than the petitioner) in pursuance of the order dated 13 November 2009, if not already withdrawn, may be refunded to the said party alongwith interest, if any, that may have accrued thereon, within a period of four weeks from today;

H} The sanction order dated 24 January 2001 issued by the Joint Charity Commissioner (now kept in abeyance) and the Sale Deed dated 12 March 2010 between the petitioner and respondent No. 1A shall abide by final decision that may be taken by the Joint Charity Commissioner, in pursuance of the remand;

I} The parties shall, however, have right to take recourse against any order that may be made by the Joint Charity Commissioner, in pursuance of remand and seek for appropriate reliefs/interim reliefs at that stage;

J} The claims of respondent No. 1B, if any, to the said property shall abide by the decision in Second Appeal No. 202 of 2014."

Rule is made absolute to the aforesaid extent in both the petitions. There shall be no order as to costs.

All parties to act upon an authenticated copy of this judgment and order.