Motiram Rajaram Shende vs State of Maharashtra and Others

Mohta, J.—Does section 56B of the Bombay Public Trusts Act, 1950, mandate giving of a notice by the Land Acquisition Officer to the Charity Commissioner in respect of enquiry u/s 5A of the Land Acquisition Act for acquisition of land belonging to a Public Trust is a crucial point that arises in this petition.

Section 56B of the BPT Act reads thus:--

"(1) In any suit or legal proceedings in which x x x x any question affecting a public religious or charitable purpose is involved, the Court shall not proceed to determine such question until after notice has been given to the Charity Commissioner.

(2) If upon the receipt of such notice or otherwise the Charity Commissioner makes any application in that behalf, he shall be added as a party at any stage of such suit or proceedings.

(3) In this section "Court" shall mean any Civil Court of competent jurisdiction in the State of Maharashtra."

Contention is that whenever any question affecting a public trust is involved in any legal proceedings, notice contemplated by sub-section (1) is a must. Now the use of phraseology, "any question affecting a public religious or charitable purpose" in sub-section(1) and restricted meaning given to the term "Court" in sub-section(3) is significant. This exhibits clear legislative intention of giving mandate of giving notice only against "Court" and that too if question affecting a "public religious or charitable purpose" is involved. The words "public trust" are not used. By no stretch of imagination the two can be equated. The later connotes an entity and former the purpose of the said entity. There can be no manner of doubt that in certain proceedings against the public trust question affecting a public religious or charitable purpose, can be involved. But this does not mean that whenever a public trust is likely to be adversely affected in any manner in any proceedings it has an impact on its purpose. Unless determination of a question has an effect on the purpose as such, section 56B cannot be attracted. Such effect must be direct and proximate and not indirect or remote as held, even in the case of Shah Jagmohandas Purshottamdas and Another Vs. Jamnadas Vrajlal Gandhi and Others, on which strong reliance was placed on behalf of the petitioner. this case related to the appointment of trustee under a scheme for managing a charity u/s 92 of the Civil Procedure Code. It has been held therein that appointment of a proper person has direct bearing on the purpose of the trust, for an unfit person is bound to adversely affect the public religious or charitable purpose. It is contended before us on that analogy that whenever the property of the trust is acquired, it is bound to have its reflection in the income and assets of the trust which if adversely affected is bound to have its impact on the purpose of the trust. If this line of reasoning is accepted, even eviction suits, execution proceedings or for a matter of that any action against a public trust would attract the bar. If prevented the legislature from using the term "trust" in place of "purpose". In the case of Tribhuvandas Purshottamdas Thakur Vs. Ratilal Motilal Patel, , interpreting this very section, the Supreme Court has held that "a suit to enforce a mortgage decree against property belonging to a public trust is not a suit or proceeding in which a question affecting a public religious or charitable purpose is involved." In Shri Krishna A. Khasgiwale v. Sitaram L. Rathi that execution proceedings against the property claimed to be belonging to a public trust does not attract this bar.

There is yet another angle looked from which it will be clear that in an enquiry u/s 5-A of the L.A. Act before the Land Acquisition Officer, section 56-B is not attracted. In this connection, restrictive meaning given to the word "Court" in section 56-B(3) has to be noticed. Bar of section 56(B)(1) is against a "Court" a term specifically defined for this purpose by section 56-B(3). Obviously Land Acquisition Officer is not a "Civil Court of competent jurisdiction". Even otherwise, the Division Bench of this Court in the case of Prabhakar Vasudav Gadgil and Others etc. Vs. P.Y. Deshpande Special Land Acquisition Officer and Another, has held that Collector acting u/s 18 of the Land Acquisition Act is not a "Court". In this connection reliance also can be placed on the case of Ratandasji v. Babubhai, AIR 1972 Guj 216, wherein it has been held that Gujarat Revenue Tribunal constituted under the provisions of section 51(2) of the Act does not answer the description of the term "Court" in view of the special definition u/s 56-B(3).

Our attention was invited to the decision of the Division Bench of this Court in the case of Govardhandhari Devasthan Vs. Collector of Ahmednagar and Others, This case related to the determination of questions under sections 31 and 32 of the L.A. Act. Section 31 and 32 of the L.A. Act. Section 31 provides for payment of compensation or deposit of same in Court and section 32 deals with investment of money deposited in respect of lands belonging to persons incompetent to alienate. Taking into consideration the fetter on the trustee to transfer the property of the trust u/s 36 of the BPT Act without sanction of the Charity Commissioner who is authorized also to put certain conditions which may be similar as are enacted by section 32 of the L.A. Act, it has been held:--

"Therefore, if validly a notice is given u/s 56B of the Bombay Public Trusts Act by the Collector in the compensation proceedings and, acting upon the provisions u/s 36 by laying down the conditions for the purpose of alienation of the given property, the Charity Commissioner permits the trustees to act in consonance with the principles underlying section 32 of the Land Acquisition Act, then substantially the procedure required by section 31(1) of the Land Acquisition Act would not be required to be followed, for thin the case would be answered by showing that the trustees possessed the capacity to alienate the property in keeping with the provisions of section 36 of the Bombay Public Trusts Act. in all other cases, where, either because the notice is not given of because there was no valid sanction in favour of the trustees even otherwise capable to alienate the property, the Collector will have to have recourse to the provisions of sections 31 and 32 of the Land Acquisition Act. in such cases also, when the matter goes to the Court under sub-section (2) of section 31, the Court is bound to give notice, as is required by section 56B of the Bombay Public Trusts Act, to the Charity Commissioner,"

It will also have to be borne in mind that the element of compulsion exists in proceedings for acquisition under the L. A. Act and volition of the trust or the trustee individual or as a body is wholly immaterial. The purpose of section 56-B is to protect the purpose of the trust and to put fetter on certain powers of the trustees and not to confer any overriding authority on the Charity Commissioner in all matters relating to trust property. The ratio of the Govardhandhari Devasthan''s case will therefore have no application to the proceedings u/s 5A of the L.A. Act. Our attention was invited to the following observations (at P. 401) (of Mah LJ) : (at P. 340 of AIR) in the sad decision :--

"No doubt, section 56-B speaks of the notice being given by the Court, meaning any civil Court of competent jurisdiction in the State of Maharashtra Sub-section (3), but the principle underlying section 56B is that the Charity Commissioner, in whom the power to supervise the charities has been conferred by the statute, has to be heard whenever the matter arises affecting a public, religious or charitable trust in any legal proceedings."

It is argued that these observations support the stand that notice is mandatory whenever trust is intended to be affected. In our view, these observations will have to be read in the context of the case in which they are made and not in isolation, specially when there is a direct authority of the Supreme Court on the point which is already referred to above.

Two more points are also raised; (1) no proper hearing was given before issuance of notification u/s 6 of the L. A. Act and (2) the acquisition is mala fide. To appreciate these points, it will be necessary to state some relevant facts. The petitioner is duly registered public trust known as "Dharmartha Sanstha" at village Pimpri Kurd in District Akola. For the purpose of extension of Gaothan of the said village land was necessary. The petitioner owns field survey No.1 in the village. It is just adjacent to the northern side of the Gaothan. The area acquired is only 6 acres out of the said field which is quite big in area. Notification u/s 4 of the L. A. Act was issued on the 13th February 1979. Even before the issuance if this notification elaborate enquiry including hearing of several parties through Counsel (which generally is not done) had taken place. The petitioner had objected to the acquisition on the grounds that (1) Government land at village Chorwad Khurd at a distance of nearly 11/2 furlongs was available, (ii) the southern side field survey No. 50 was more suitable, (iii) field survey No. 1 was garden land having a well and Dharmal (place where cattle drink water) and (iv) there was no need for extension of Gaothan. On 15th March 1979 the learned Counsel for the objector sought time to file documents and requested for spot inspection. This second request for spot inspection was rejected on the ground that even before issuance of section 4 notification the spot was seen in presence of parties on 28th January 1979. Case was fixed for argument on 2nd of April 1979, when arguments were heard and the case was fixed for submitting the report. Two days thereafter i.e. on 4th April 1979 once again a prayer was made for heating. It was also allowed. On 5th April 1979 a fresh hearing took place, when an application was made to examine some of the villagers who were willing to occupy the plots in the Government land at Chorwad Khurd. It was rejected and then report overruling the objections and recommending issuance of notification u/s 6 was submitted. This notification came to be issued in 4th February 1981. We see no substance in the grievance that belated application for examining certain villagers who were willing to go to village Chorwad was wrongly rejected. Even of few villagers choose to oblige the petitioner, that would not have been decisive. The grievance about issuance of section 6 notification without heating the petitioner therefore is clearly altruistic and cannot be accepted.

Now, the point about mala fides. It is contended that attempt to acquire this land is going on in the village on account of village politics since the year 1925-26, the principal person behind this move being one Narayan Kunbi, the grand-father of Subhas who was Sarpanch of the village Gram Panchayat in the year 1978. Even in the year 1971-72 the son the Narayan and (father of Subhash) has made a move to acquire this land by getting passed a resolution to that effect in the Village Gram Panchayat. Previously all authorities had recommended Government land at village Chorwad Khurd, plot were actually laid there and the stand of the Government that villagers are not ready to shift there is not correct. F.S. 50 is not being acquired as it belongs to father of Sarpanch of the village. Now the map showing how the Gaothan would be formed after the acquisition of different fields has been placed before us. The mere perusal of that map leaves no manner of doubt that field survey No.1 is the most suitable land from pint of view of the convenience of the villagers. It becomes a compact area with road in the middle portion. With F. S. 50 it becomes an oblong portion and the approach road is difficult. F.S. 50 is certified to be of a low level where water logging takes place and health authorities have certified F.S. No.1 as suitable from that point of view also. In this background, the allegations of mala fide cannot have any foundation. No doubt Gram Panchayat has been passing resolutions for acquisition of field survey No.1 for extension of Gaothan and even the higher-ups have been pressing the authorities to expedite the matter as early as possible, but this does not mean that this is done on account of any malice. These are all repeated attempts at persuading the authorities to acquire most suitable land as expeditiously as is possible. After all choice of authorities who have better knowledge of all relevant factors has to be accepted as correct normally and we see no case to interfere in this choice. It is true that initially there was a move to acquire the Government land. Certain persons had objected and the Naib- Tahsildar gave a repot that the objectors could not dictate the choice of a particular land for Gaothan. S.D.O. also had accepted this recommendation. It is not known how but even the appeal., the second appeal review were entertained against these recommendation. Plots were laid but they remained unoccupied as villagers did not go there. The Gram Panchayat again passed a resolution for acquisition of land adjoining to the existing Gaothan, and this is how once again rethinking on the point started. On 5th April 1978 Talathi reported that field survey No. 50 was suitable but this report was not accepted by the Naib-Tahasildar who recommended acquisition of field survey No.1. Parties were heard even at that stage and it is thereafter that the S.D.O. submitted his report. Though once the spot was seen in the absence of the representatives of the Trust, on 28th January 1979 it was seen in presence of all. It is contended that after all, it is a public trust property having a well and horticulture. The report of the authorities is that the whole of it is not a horticulture land and even that portion had small fruit trees which were recently planted. Well and Dhamal portion is not being acquired. Considering the fact that population is growing and the plan of extension has to be on long term basis, the objectors'' contention about absence of need also cannot be accepted. It is true that Government land is available but it is at a distance. It is also true that the villagers cannot dictate the Government in the choice of the land but in case a genuine representation about non-suitability of a particular land is accepted of rethinking the said policy of reviewing the earlier decision cannot be termed as mala fide of illegal. It is permissible for everybody to be wiser by experience.

For all these reasons, we see no merit in this petition which is dismissed but in the circumstances without any order as to costs.

Petition dismissed.