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Judgment
D.A. Mehta, J.—A practising Advocate of Rajkot who is a follower of Ramgufa Sadavrat has approached this Court by filing this Public
Interest Litigation. The petitioner has stated that the case pertains to three parcels of land situated near Alang in Talaja Taluka of District
Bhavnagar. It appears that due to development of Alang the land in the surrounding areas has become very valuable and in relation to three plots of
land approximately Rs. 1 crore and odd have been awarded by Land Acquisition Officer as compensation while the claim is for larger amount.
Reference u/s 31 of the Land Acquisition Act is pending before the District Court, Bhavnagar being Land Reference No. 20 of 1998 and by order
dated 20-10-1999 this Court (Coram : C. K. Thakker, Actg.C.J. and K. M. Mehta, J.), has directed that the amount shall not be withdrawn by
respondent Nos. 7 to 18.
The petitioner has made a prayer to the effect that :
17[A] This Hon''ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of mandamus or any other appropriate writ, Direction
or order, declaring that the lands bearing Survey Nos. 14, 15 & 16 are belonging to the Ramgufa Ramji Mandir Temple - Sadavrat-Trust and the
amount of compensation deposited before the District Court at Bhavnagar in land Reference No. 20 of 1998 pending before the District Court,
Bhavnagar be either forfeited to the Government or to be paid to the Trust and not to the Respondent Nos. 7 to 18.
In the erstwhile Slate of Bhavnagar certain land situated in village Bharapara admeasuring 209 vighas and village Mathavada admeasuring
660.75 vighas were granted to Ramgufa Ramji Mandir Sadavrat and were recognised as such by the then State of Bhavnagar. One Bava Ishwarlal
Hanumandas was Manager/Administrator of the said properties. As per the Hajur Order No. 1481 of 30-6-1902 read with Hajur Order No. 56
dated 22-7-1903, the said land was assessed at one anna being Devsthan land. It further appears from the record that this assessment was
originally levied at the rate of one anna since S.Y. 1989 and the aforesaid Hajur orders merely recognised this. From the copies of the orders of
assessment which have been produced at Annexure ""B"" to the petition, it is seen that while determining the assessment at the rate of one anna,
Hajur order also provided that to ensure proper use and disbursement of the proceeds from the said lands the Ajam Vahivatdar and Thanedar
were directed to look after the proper administration and management of the said properties. The said two officials as described in the then State
of Bhavnagar were holding ranks equivalent to the present day District Collector and District Superintendent of Police. That the properties in
question were charitable and/or religious properties is also supported by the accounts for S.Y. 1994 and 1997 produced along with the petition.
After the independence in 1947 the then State of Sauraslura was formed by merger of old native States. On formation of the said State of
Saurashtra promulgation entries were recorded on 17-7-1955 and the lands at village Bharapara were allotted Survey Nos. 14, 15 and 16. The
said entries recorded that Narbheram Vashram was Manager of Ramgufa Ramji Mandir. The Saurashtra Barkhali Abolition Act, 1951 came into
effect from 1-9-1951 and by virtue of Section 5 of the said Act Barkhah'' Tenure stood abolished and all rights, title and interest of all the
Barkhalidars in agricultural land comprised in Barkhali estate ceased and vested in State free from all encumbrances, i.e. Slate of Saurashtra at the
relevant point of time. We shall revert to the other provisions of this Act little later.
The petitioner has annexed family tree (pedigree) at Annexure ""C"". From the said pedigree it is seen that originally Bava Hanumandas was
managing the temple properties of the temple, and thereafter, his son Ishwardas and then Vashramdas. Mr. Narbheram is the son of Vashram and
Narmadabai is the wife of Narbheram. Narbheram had two sons viz. Durlabhdas and Jaduram and both of them had four sons each. Respondent
Nos. 7 to 10 are sons of Durlabhdas Narbheram (i.e., grandsons of Narbheram Vashramdas), while respondent Nos. 11 to 15 are the sons and
wife of one Raghuram Jaduram (i.e., great grandsons of Narbheram Vashramdas and wife of grandson of Narbheram Vashram) and respondent
Nos. 16 to 18 are grandsons of Narbheram Vashramdas. These relationships assume importance because it is the say of the respondents that their
father/grandfather/great grandfather had committed an error by treating the lands in question as trust properties. It is the further say of the
respondents that they are legal owners as a matter of right of the land in question, and hence entitled to the compensation from the State resulting
from the acquisition under the Land Acquisition Act.
The mistakes said to have been committed by ascendants of respondent Nos. 7 to 18 are : firstly, application dated 16-11-1961 by late
Narbheram Vashramdas, his wife Narmada and his sons before the Charity Commissioner seeking registration of a public trust registered as
Ramgufa Mandir Trust bearing No. A/865 and secondly, the application dated 17-12-1962 made by Bava Durlabhdas Narbheram under the
Agricultural Land Ceiling Act seeking exemption u/s 3(d) of the said Act. It is pertinent to note that in both the applications made before the
appropriate authorities viz., the authority under the Agricultural Land Ceiling Act as well as under the Bombay Public Trust Act, the say of the
petitioner was that all the properties situated at village Bharapara and village Mathavada inclusive of agricultural lands were the properties of the
trust. That is to say, at no stage was any claim a put before either of the appropriate authorities that any portion of such land was privately owned
and belonged to one or more than one individuals.
On 16-2-1964 the Deputy Collector, Mahuva has issued certificate of exemption u/s 3(d) of the Gujarat Agricultural Land Ceiling Act, 1960,
on the basis of his order of the said date wherein it is observed as under : FREE ENGLISH TRANSLATION :
Taking into consideration the documents of right, title of Government records these lands appear to be of the temple and the produce therefrom is
being used for charity; land admeasuring 83.2 at village Bharapara and 203.15 at village Mathavada are not hit by the Ceiling Act and it is hereby
ordered that the said lands should be granted certificate u/s 3(d) of the Act.
Thereafter, in the said order lands bearing Survey Nos. 14/1, 15/1 and 16/1 of village Bharapara have been described showing their respective
areas and the assessment. Similarly, the lands of different Survey Nos. of village Mathavada have also been described. The same description
appears in the certificate dated 16-2-1964 issued u/s 3(d) as per the said order. Similarly, on application given by Bava Narbheram Vashram on
16-11-1961 the Charity Commissioner after making necessary inquiries u/s 19 of the Bombay Public Trust Act, registered the trust on 11-11-
1965 and the properties which have been described as the trust properties are the same lands which have already been referred to herein before.
Respondent Nos. 7 to 18 have put in their appearance through one Dhanjibhai Nanjibhai Patel, Power of Attorney Holder and contended as
under :
(i) That the petition does not involve any public interest.
(ii) The petitioner does not have any locus-standi.
(iii) The subject-matter of petition is sub-judice.
(iv) That as per the order dated 17-6-1995 u/s 22A of the Bombay Public Trust Act as per change report No. 273 of 1995 the lands bearing
Survey Nos. 14/1, 15/1 and 16/1 of village Bharapara have been declared to be not the property of the public trust.
(v) That by order dated 27-2-1997 the Joint Charity Commissioner, Rajkot has confirmed the order of Assistant Charity Commissioner,
Bhavnagar.
(vi) The petitioner preferred Civil Application u/s 72 of the Bombay Public Trust Act and the said Civil Application No. 69 of 1997 was dismissed
by the District Judge, Bhavanagar vide order dated 17-12-1999.
(vii) That for same subject-matter some other persons in a representative capacity have filed Regular Civil Suit No. 852 of 1996 and the said Civil
Suit and other connected proceedings therewith are pending before the Civil Judge (S.D.), Bhavnagar as well as District Judge, Bhavnagar.
(viii) That Reference u/s 31 of the Land Acquisition Act is pending before the District Court, Bhavnagar in relation to the same lands. On the basis
of the aforesaid facts, it is stated that the petition is required to be dismissed.
We may first of all decide the question as to whether the petitioner has any locus-standi and whether there is any public interest in this litigation.
From the additional affidavit-in-rejoinder dated 4-11-1999, it is very apparent that respondent Nos. 7 to 18 entered into a land development
agreement on 25-5-1995 with one M/s. Harekrishna Land Developers, and after partial development of the land, on 7-6-1996 both the parties
entered into an agreement for sale for a consideration of Rs. 4,10,500/-. By joint application dated 16-3-1998, respondent Nos. 7 to 18 through
their Power of Attorney Holder and M/s. Harekrishna Land Developers have applied to the Special Land Acquisition Officer that they have
already incurred expenditure to the tune of Rs. 15,12,480/- and the said aspect should be borne in mind before deciding the compensation and in
case adequate compensation is paid to them they have no objection to land being acquired.
The petitioner has averred in the affidavit-in-rejoinder as also in the petition that he is a practising Advocate and follower and devotee of
Ramgufa Mandir, that he has no other personal interest and the only anxiety is to ensure that when the properties of the trust are acquired, the
compensation should not fall into wrong hands, but should go to the trust or should be forfeited by the Government. We have no doubt in our
minds that this petition involves public interest and the petitioner has no axe to grind of his own and the petition is brought before the Court only for
the purpose of placing the relevant facts before the Court so as to ensure that properties of a public trust are not wasted and/or are not
manipulated and taken disadvantage of by few individuals for their personal benefit and gains.
The fundamental question that requires ascertainment is as to whether properties in question belong to the public trust in the name of Ramgufa
Temple or whether the properties in question belong to an individual or a group of individuals. For this purpose, a related issue, namely, whether an
application u/s 22A of the Bombay Public Trust Act is maintainable or not and whether the order passed by the Assistant Charity Commissioner,
Bhavnagar on such an application is validly made, will have to be examined.
We may usefully reproduce provisions of Section 22A of the Bombay Public Trust Act.
22A. If at any time after the entries are made in the register under Sees. 21 or 22 it appears to the Deputy or Assistant Charity Commissioner that
any particular relating to any public trust, which was not the subject-matter of the inquiry u/s 19 or sub-section (3) of Section 22, as the case may
be, has remained to be enquired into, the Deputy or Assistant Charity Commissioner, as the case may be, may make further inquiry in the
prescribed manner, record his findings and make entries in the register in accordance with the decision arrived at or if appeals or applications are
made as provided by this Act, in accordance with the decision of the competent authority provided by this Act. The provisions of Sees. 19, 20, 21
and 22 shall so far as may be, apply to the inquiry, the recording of findings and the making of entries in the register under this Section.
As can be seen, the said Section requires that any time after the entries in the register are made any particular relating to any public trust which was
not the subject-matter of the inquiry has remained to be inquired into it would be open to the Deputy or Assistant Charity Commissioner to make
further inquiry, record his findings and make entries in the register. In this connection, our attention was drawn to two decisions of this Court
namely, (i) Kuberbhai Shivdas & Anr. v. Mahant Purshottamdas Kalyandas & Anr., reported in 1961 GLR 564 and (ii) A. C. Joshi, City Deputy
Collector, Ahmedabad v. Shukla Ramanujacharya & Anr., reported in 1976 GLR 529. As the later decision which is rendered by Division Bench
of this Court has taken into consideration the earlier decision of the learned single Judge we may only refer to the said decision. The Division Bench
of this Court has laid down as to what is the scope of provisions of Section 22A of the Bombay Public Trust Act in the following terms :
Section 22A of the Bombay Public Trust Act obviously contemplates a fresh inquiry in cases where ""any particular"" relating to any public trust,
which was not the subject-matter of an inquiry u/s 19, has remained to be inquired into. In other words, the Section has application to the cases
where even though inquiry u/s 19 has been made, some particulars relating to a public trust remained to be inquired into in an inquiry conducted u/s
19- If a reference is made to Section 19 it will be found that it, inter-alia, contemplates an inquiry for the purpose of ascertaining (i) whether any
property is the property of such trust; and (ii) any other particulars as may be prescribed u/s 18(5). Looking to these provisions of Section 19, it is
obvious that the question whether any property is the properly of a particular trust is one of the questions which is required to be inquired during
the course of the inquiry contemplated by him.
The question which is now sought to be inquired at the instance of the Government is whether the property in question is the property belonging to
the Government and not to the trust in question. If it is found that the consideration of this question is a particular relating to the trust in question,
which particular was not the subject-matter of inquiry u/s 19, and which has remained to be inquired into, then provision of Section 22A would
fully apply to the facts of the case and the Deputy Charity Commissioner would have jurisdiction to go into that question.
It is an admitted position that during the course of the original proceedings u/s 19 of the Act, there was no information before the concerned
authority that the disputed property was the property of the Government. If there was no such information, it follows that the said information was
not the subject-matter of inquiry u/s 19 of the Act, and that, therefore, that information remains to be inquired into now. Therefore, if the
connotation of the word ""particular"", which is found used in Section 22A and which is consistently accepted by this Court in various of its
decisions, is followed, then the jurisdiction of the Deputy Charity Commissioner to inquire into the question, raised by the Government before him
u/s 22A of the Act, cannot be challenged.
Therefore, applying the aforesaid ratio to test the version of the respondent Nos. 7 to 18 let us see whether the order of the Assistant Charity
Commissioner passed purportedly u/s 22A of Bombay Public Trust Act is valid in law or not. In the decision rendered by this Court the admitted
position oi'' facts was that in the original proceedings u/s 19 of the Act, there was no information before the concerned authority that the disputed
property was of the Government, and because that information was not available, it could not be the subject-matter of inquiry u/s 19 of the
Bombay Public Trust Act, and hence, the action u/s 22A of the Bombay Public Trust Act was held to be validly taken. In the case before us, we
have very carefully gone through the order of the Assistant Commissioner passed on 17-6-1995 and we find that basically there are two aspects
which go to show that there were no particulars in relation to the trust property which remained to be inquired into which would give jurisdiction to
the authority to take action u/s 22A of the Bombay Public Trust Act and the applicants who are respondent Nos. 16, 17 and 18 cannot be
permitted to initiate fresh inquiry in relation to the same subject-matter viz., on the basis of the same particulars that were available at the time of
original proceedings. The applicants, who have challenged original registration u/s 22A of the Bombay Public Trust Act are none else, but
successors/heirs/descendants of Narbheram Vashram and the entire application is based on the premise that late Narbheram Vashram, his wife
Narmadabai and late son Durlabhram Narbheram had committed an error in treating lands bearing Survey Nos. 14/1, 15/1, and 16/1 of village
Bharapara public properties belonging to charitable trust. The basis tor making this statement is firstly, the certificate issued by the Mamlatdar
under the Barkhali Abolition Act and secondly, certain mutation entries in the revenue records.
However, the Assistant Charity Commissioner in his order dated '' 17-6-1995 has very carefully after referring to the certificate issued under
the Barkhali Abolition Act refrained from basing his findings thereupon because the said certificate describes the holder of the land in question ""Shri
Bava Narbheram Vashramdas (Ramgufa Ange)"". The entire thrust of the order is based on the entries in revenue records. According to the
Assistant Charity Commissioner in the record of proceedings of inquiry u/s 19 of the Bombay Public Trust Act, reference is made to Exhs. 1/1 to
1/18 while in the judgment granting registration u/s 19 of the Bombay Public Trust Act the reference is only made to Exhs. 1/1 to 1/17 and hence
according to him there is an omission in the process of inquiry resulting in the incorrect decision. However, on going through the earlier portion of
the said order, it is apparent that document Exh. 1/15 deals with recording of death of Narbheram Vashram on 12-9-1962 and insertions of sons
and widow as the heirs in relation to land in question bearing Survey Nos. 14/1, 15/1 and 16/1 of Bharapara village. It is further recorded in the
order that this is noted at note No. 137 as described in document Exh. 1/15 and therein, it is staled that Shri Ramgufa Angc Bava Narbheram
Vashramdas is to be deleted and the names of the heirs to be inserted. Thereafter, it is recorded in the order that 7/12 record of rights for Survey
No. 14/1 is exhibited at 1/16, 7/12 record of right for Survey No. 15/1 is exhibited at 1/17 and 7/12 record of right of Survey No. 16/1 is
exhibited at 1/18. Therefore, it is apparent that this limb of the order of the Assistant Charity Commissioner has no basis, inasmuch as it is not the
case of anyone, either the applicant or the authority, that the particulars relating to the said Survey numbers were not taken into consideration at the
time when the original inquiry was made in proceedings u/s 19 of the Bombay Public Trust Act. In fact, to the contrary, stand of the applicant has
been that the said land had been included as being properties of the trust by the reason of their forefather being illiterate and not having the
knowledge about their legal rights.
The Assistant Charity Commissioner summoned one Maniram Narsiram Agrawat who was the then Talati-cum-Secretary for ascertaining the
correctness of the revenue records of village Bharapara and recorded his statement at Exh. 21. After referring to the statement of the said Talati it
is staled that though in the record of right at Exh. 15, it is shown as on 17-7-1955 that the holder/ occupier of the land in question is Bava
Narbheram Vashramdas (Ramgufa Ange), however, thereafter, on and from 12-9-1962 vide Exh. 16 in the entries made in the record of right the
words ""Ramgufa Ange"" stand deleted. Thereafter, the Assistant Charity Commissioner says that ""as on today from the record of rights in village
form Nos. 7/12. 8A and 6A it appears that the aforesaid Survey numbers seem to belong to individual persons and not the trust"" and in support of
the same reference is made to revenue record exhibited at Exhs. 22 to 27. The Assistant Charity Commissioner further refers to various entries in
revenue records made on 1-1-1993 and 16-3-1993 to show that those entries regarding sale of some portion of land would not have been
possible if the land in question belonged to the trust and because of entries recording sale of some portion of the land an inference is drawn that the
lands in question are the private properties of the concerned individuals. The entire foundation of the order suffers from the basic fallacy, inasmuch
as, firstly, the entries are � made in 1993 i.e., after 12-9-1962 (Exh. 16) when the words ""Ramgufa Ange"" stood already deleted from the
revenue records and secondly, entries pertained to a period which could not be a part of the proceedings of inquiry u/s 19 as the order had been
made in 1965 regarding land in question to the trust properties. The Assistant Charity Commissioner further ignores the fact that Exh. 16 which
records entry as of 12-9-1962 was very much part of the particulars in the original proceedings of inquiry u/s 19 and it could not be stated that it
was a particular which was not the subject matter of inquiry or has remained to be inquired into, as the fundamental case of the applicant in the
application u/s 22A of the Bombay Public Trust Act was as stated earlier, on the plea of ignorance of law. In the impugned order the Assistant
Commissioner goes to record that if the properties in question had belonged to the institution it would have continued to be mentioned in the
revenue record but after the trust was registered as such the properties in question have not so remained in the revenue record, and hence,
according to him inference can be drawn that the land in question did not belong to the trust at the time of registration.
Therefore, to sum up, the order of the Assistant Charity Commissioner is based solely on revenue record and that too for the period after the
trust was duly registered, and it is nowhere shown, though various inferences are drawn, as to what particulars relating to the trust remained to be
inquired into or were not the subject-matter of inquiry u/s 19. In this manner, provisions of Section 22A of the Act have been wrongly invoked by
the applicant-respondents and the Assistant Charity Commissioner committed gross error of law in not only entertaining the said application but
allowing it. The entire order, to say the least, is not only perverse, based on conjectures and surmises (taking place of valid legal inference) drawn
from convoluted facts. The most glaring aspect is the omission of even reference to original grant made by the then State of Bhavnagar specifically
describing the land in question to be trust properties and that being the only reason for assessing the same at a concessional rate. The revenue
records on which reliance was placed before the Assistant Charily Commissioner and even before us pertained to a period after the demise of
Narbheram Vashram and there is no explanation forthcoming as to how, why and in what circumstances the word ""Ramgufa Ange"" which
admittedly formed part of revenue records till then stood omitted. It is very apparent that, looking to the subsequent developments, namely, growth
of Alang and surrounding areas, respondent Nos. 7 to 18 became aware about the potentiality of the land in question and actuated by personal
avarice stage managed the entire show right from the time of making application u/s 22A of the Act.
The effect of mutation entries in revenue records is a well settled legal position and is thus beyond any pale of controversy. We may only briefly
recapitulate what has been consistently laid down :
Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person
in whose favour mutation is ordered to pay the land revenue in question.
It is settled law that mutation entries are only to enable the State to collect revenues from the persons in possession and enjoyment of the property
and that the right, title and interest as to the property should be established de hors the entries. Entries are only one of the modes of proof of the
enjoyment of the property. Mutation entries do not create any title or interest therein.
It is settled law that mutation entries arc only for the purpose of enabling the State to collect the land revenue from the person in possession, but it
does not confer any title to the land. The title would be derived from an instrument executed by the owner in favour of an alienee as per the Stamp
Act and registered under the Registration Act.
(1) Smt. Sawarni Vs. Smt. Inder Kaur and Others, .
(2) Sankalchan Jaychandbhai Patel and Others Vs. Vithalbhai Jaychandbhai Patel and Others, .
(3) State of U.P. Vs. Amar Singh etc., .
Therefore, the entire premise on which the Assistant Charity Commissioner acted is bad in law and without factual foundation.
The power of attorney holder of respondent Nos. 7 to 18 one Shri Dhanjibhai Nanjibhai Patel makes averments on oath in the affidavit-in-
reply and at page 65 states that : ""my knowledge"", without clarifying as to how and in what circumstances he acquired such knowledge as no
relationship with any of the respondent Nos. 7 to 18 or any of their predecessors is shown. It is very surprising that though the application for
treating the land in question as trust property was given by Bava Narbheram Vashram personally, the power of attorney holder in the affidavit-in-
reply at various stages states that the lands in question were given to Bava Narbheram Vashram for personal cultivation. In the entire affidavit-in-
reply there is no whisper as to how the said averment is made. To the pointed question that was put to the Advocate of respondent Nos. 7 to 18
as to how such knowtedge was derived by power of attorney holder there was no answer forthcoming except for stating that, that would be the
consequence of the certificate issued under Saurashtra Barkhali Abolition Act, 1951; and that when the certificate issued in Form 10 under Rule
61 describes the holder/occupier of the land as Shri Bava Narbheram Vashramdas (Ramgufa Ange) it meant that the lands in question were given
for personal cultivation and the bracketed portion ''Ramgufa Ange'' had to be ignored because that was the effect of Barkhali Abolition Act. With
reference to Para 4 of the petition, power of attorney holder in Para 16 of the affidavit-in-reply states that the original grant made by the then State
of Bhavnagar is not relevant and only the latest position of the said land has to be taken into consideration. He states that -""I say that the annexure
being of the year 1899 is not relevant in the present context"" - without slating as to how the said annexure is not relevant.
Therefore, in light of our aforesaid findings other objections as enumerated hereinbefore raised on behalf of respondent Nos. 7 to 18 would not
survive and we do not find it necessary to deal with each of them individually as most of them relate to proceedings which are in consequence of
the aforesaid order dated 17-6-1995 passed by Assistant Charity Commissioner, Bhavnagar.
The learned Assistant Government Pleader appearing for respondent Nos. 1 to 4 has categorically stated that the Government supports the
case of the petitioner, viz., that the properties in question are trust properties and it is in the larger public interest to ensure that the compensation
for the said properties does not fall in hands of the persons who are not interested in the well being of the trust. It is further submitted that the Court
should take appropriate action against Talati-cum-Mantri and the State would carry out any direction in this behalf. In fact respondent Nos. 5 and
6 who are Talati-cum-Mantri of village Mathavada and village Bharapara respectively, though served, have not put in any appearance. The
Collector, Bhavnagar is directed to make an inquiry himself or through a senior officer as regards the role played by Talati-cum-Mantri of village
Bhavapara and take appropriate action in the matter including recovery of appropriate amount towards the loss which would have been caused to
the State exchequer due to the actions of the said Talati-cum-Mantri who was in charge at the relevant point of time when the mutation entries
were made in the revenue records. The Collector shall conclude these proceedings within a period of six months and report to this Court. The
Registry is directed to place this matter along with the report on 23-10-2001.
On behalf of respondent Nos. 7 to 18 great emphasis was laid on the occupancy certificate granted under the Saurashtra Barkhali Abolition
Act, 1951 to submit that as per provisions of Section 5 the said Act, all rights, title and the interest of the barkhalidar in agricultural land comprised
in barkhali estate ceased and vested in the State of Saurashtra free from all encumbrances. The say of the respondents is that in such
circumstances, it is not necessary and relevant, once the Saurashtra Barkhali Abolition Act has come into effect, to consider any other aspect of
the matter, because all rights, title and interest existing prior to the point of time of the said Act coming into force did not survive by virtue of the
provisions of the said Act.
''Barkhalidar'' has been defined u/s 2(i)(a) to mean a person who holds a tenure as Barkhalidar and includes any person who has been granted
any such tenure; the proviso provides that where a forefather of barkhalidar is alive only such forefather who is alive shall be deemed to be the
barkhalidar for the purpose of the said Act. Section 2(iia) defines the ''Estate'' and lays down that estate includes Jagir, Inam or other grant or
interest or aggregate of interests of similar nature in land, but shall not include an occupancy. Clause (iii) of Section 2 defines ''gharkhed'' to mean
land lawfully reserved by a Barkhalidar for cultivating personally before 20th July, 1949, which is under personal cultivation of the Barkhalidar on
the date of the coming into force of this Act. As per the scheme of the Act such a Barkbalidar who is holding a tenure which has been granted to
him by way of estate for the purpose of gharkhed is required to make an application u/s 6 of allotment of land for personal cultivation under the
said Act, at any time within four months from the date of the commencement of the said Act. Thereupon, the Mamiatdar is required to undertake
an inquiry and pass an order under sub-section (2) of Section 7 making allotment to Barkhalidar of such land as may be specified in the order. In
pursuance of such order under sub-section (2) of Section 7 the Mamiatdar is required to issue the occupancy certificate in the prescribed form in
respect of the gharkhed land allotted to the Barkhalidar. Once, order u/s 7 has been made and land for gharkhed has been allotted the Barkhalidar
becomes an occupant u/s 15 of the said Act and hence subject to conditions that may be imposed an occupancy certificate as prescribed in Rule
61 of the Saurashtra Barkhali Abolition Rules, 1951 is required to be issued in Form X. The Explanation u/s 15 makes it abundantly clear that for
the purpose of the said section gharkhed cultivated personally by holder of religious and charitable institution shall be deemed to be ""land"" and the
religious or charitable institution shall be deemed to be occupant of such land. When we take into consideration Form X as prescribed under the
Rules we find that condition No. 3 reiterates the workings of the Explanation u/s 15 in the following terms :
(1) xxxxx
(2) xxxxx
(3) In the case of Religious and Charitable Institution, gharkhed cultivated personally by the holder shall be deemed to be ""land"" and the Religious
or Charitable Institution shall be deemed to be an occupant of such land.
Therefore, on conjoint reading of the provisions of the Act, the Rules and the prescribed Form the scheme that emerges is, Barkhalidar who is
holding tenure under any grant before coming into force of the said Act is deemed to be deprived of his right, title and interest and yet by virtue of
provisions of Section 6 he is entitled to make an application to the Mamlatdar and the Mamlatdar after conducting necessary inquiry passes an
order and allots land under Sec, 7 of the Act; in pursuance of such order an occupancy certificate in Form X is issued u/s 15 of the Act. The
Explanation and condition No. 3 in Form X specifically ensures that in the case of grant whose nature is for charitable of religious purpose, the
allotment of land for gharkhed and the occupancy certificate, though in the name of Barkhalidar nonetheless enure for the benefit of such a religious
or charitable institution only. In other words the, Barkhalidar, though is stated to be allotted land for gharkhed i.e., personal cultivation, by virtue of
provision incorporated as Explanation u/s 15, such a Barkhalidar is de facto trustee of the properties in question and holds such properties and
intermeddles with such properties as an Administrator or Manager and for and on behalf of such religious or charitable institution. Therefore, the
contention of respondent Nos. 7 to 18 that, once occupancy certificate is granted under the Saurashtra Barkhali Abolition Act, 1951, the properly
ceases to have the character belonging to religious and charitable institution and becomes personal property of the individual whose name is
mentioned in the certificate cannot be countenanced. When a pointed query was put to Counsel for the respondent as what would be effect of the
bracketed portion ''Ramgufa Ange'', we were told that in view of the absolute provision of Barkhali Abolition Act the said words have to be
ignored and the land in question treated as private properties of Narbhcram Vashram. This explanation does not stand in light of the scheme of the
Act as we have just examined and elaborated herein before. The Explanation u/s 15 as well as condition No. 3 in Form X would become
redundant and it is well settled principle of interpretation that one cannot ascribe tautology to the legislature.
We are fortified in the view that we have taken by a decision of a learned single Judge of this Court in the case of Bhatt Chimanlal Ratanji &
Anr. v. Patel Manu Ladhu & Anr., reported in 1979 GLR 143. The facts in the said case were that one Bhatt Bhalchandra Ratanji as well as his
two brothers had contested the decision of Deputy Charity Commissioner, Rajkot holding that the suit properties were public trust properties. That
the plaintiff appellant had treated the properties as their private properties and had sold all those properties. Thereafter, the matter had come up
before the Court and the contesting purchasers had come up in appeal because the trial Court had dismissed the various suits for possession filed
by the trustees. Ultimately, the matter went up to the Supreme Court and was remanded by the Supreme Court directing the High Court to go into
the limited plea based on the occupancy certificate issued u/s 7 of the Barkhali Abolition Act, 1951 and its effect. It is in this backdrop that this
Court decided the issue and held as follows :
The moot question that arises is : what is the effect of the intervention of the Saurashtra Barkhali Abolition Act on the original character of the
property in the hand of Bhalchandra as the trust property? The history of the land as given above shows that Bhalchandra got these lands as a
barkhalidar because he claimed to hold the lands as such in his capacity as the owner of the temple. In other words, he was the barkhalidar of the
lands in question because he was associated with the temple as a priest. It is immaterial whether he was declared to be as one''of the trustees of the
temple or not in an inquiry u/s 19 of the Act. The fact remains that as a man associated with the temple and not as its absolute owner, but as a
person whose family members were the trustees of the temple and not its owners he claimed and got lands. It has to be, therefore, held that the
property was under his barkhali tenure right, not in his individual capacity, but in his capacity as the person associated with the temple. He had no
independent existence, separate from that of the temple. If all lands were with Bhalchandra and his brothers as the persons associated with the
temple and they were barkhalidar only because of that, it is obvious that they got the occupancy rights also in that very capacity and not in their
independent capacity. The occupancy conferred on Bhalchandra, therefore, was because he was barkhalidar, and therefore, his occupancy rights
are to be treated as conferred on him in his capacity as the man or a person associated with the management of the temple.
Therefore, in light of the aforesaid position in the backdrop of facts, circumstances and evidence on record and settled legal position we may
test the bona fides of respondent Nos. 7 to 18. It is significant to note that the original grant made by the then State of Bhavnagar pertained to
various properties including agricultural lands situate in two villages viz. Bharapara and Mathavada. Late Shri Narbheram Vashram obtained
occupancy certificate under the Barkhali Abolition Act in relation to such lands and there are two different certificates relatable to the respective
lands situated in two villages. Respondent Nos. 7 to 18 in their application for change u/s 22A of the Bombay Public Trust Act have very
convenlently raised dispute as to the ownership in relation to lands situated at Bharapara only, while accepting the status/nature of the properties
situated at Mathavada as being charitable/religious in nature. This one factor establishes the mala fides of respondent Nos. 7 to 18; having realised
the value of Survey Nos. 14/1, 15/1 and 16/1 of Bharapara (being in proximity of Alang) the entire exercise to change the nature of ownership was
undertaken. Late Shri Narbheram Vashram declared all the properties situated in both the villages as belonging to the public trust, all these
properties were originally received under the grant of the then State of Bhavnagar; as stated two different occupancy certificates were issued under
the Barkhali Abolition Act; all the agricultural lands were sought to be exempted simultaneously u/s 3(b) of the Gujarat Agricultural Lands Ceiling
Act; accumulative effect of all these makes it abundantly clear that all the properties were charitable in nature belonging to a public trust and there
was no claim staked at any stage by the original recipient of the grant of the occupancy certificates that the properties were of private ownership at
any point of time. If this be so, the design of respondent Nos. 7 to 18 to say the least, requires to be deprecated.
As already stated hereinbefore the Assistant Charity Commissioner was in error in entertaining the application u/s 22A of the Bombay Public
Trust Act. We have already shown the absence of jurisdictional facts which would permit him to undertake the said inquiry, there being absence of
any particulars relating to the public trust which were omitted to be considered in the original inquiry made u/s 19 of the Bombay Public Trust Act.
Moreover, the entire emphasis of relying upon the entries in the revenue records could not confer any title on respondent Nos. 7 to 18 and if that
be so, even under law the Assistant Charity Commissioner could not have founded his inquiry and consequent order on such entries.
To summarise :
[i] Once the lands in question were public trust properties, the same having been acquired for the public purpose, the compensation should go only
to the temple or should be forfeited by the Government.
[ii] Respondent Nos. 7 to 18 had no title to the land in question which would enable them to apply u/s 22A of the B.P.T. Act.
[iii] The Assisiant Charity Commissioner, in aforesaid circumstances, could not have entertained the application u/s 22A either on facts or in law.
[iv] The lands in question were exempted under the Agricultural Lands Ceiling Act and the effect of declaration made by late Narbheram/Late
Durlabhram have not been taken into consideration by authority while dealing with application u/s 22A of the Act.
[v] The original grant made by the then State of Bhavnagar has been ignored without any valid reason.
[v] The occupancy certificate under the Barkhali Abolition Act specifically described the lands as ""Ramgufa Ange"" and this description cannot be
ignored, more so, in light of the scheme of the Barkhali Abolition Act discussed hereinbefore.
In light of what is stated hereto before we hold that the petitioner has locus siandi and the petition involves public interest and is maintainable.
We, therefore, allow this petition and direct that the amount of compensation deposited before the District Court at Bhavnagar in Land Reference
No. 20 of 1998 pending before the District Court, Bhavnagar be forfeited to the Government.
In view of the fact that we have held that the entire exercise commencing from application, subsequent inquiry and the consequential order u/s
22A of the B.P.T. Act are bad in law all the subsequent/consequential proceedings shall be treated as bad in law and the subsequent orders
passed by the Joint Charity Commissioner, District Court, Bhavnagar are quashed and set aside, and the consequential First Appeal before this
Court has become infrucluous. We further direct that all other related proceedings before any Forum in relation to the described lands except the
Land Reference No. 20 of 1998 shall be treated as infructuous and be disposed of accordingly by the respective Forum. Rule made absolute. We
further direct that respondent Nos. 7 to 18 shall pay by way of costs Rs. 1,000/- each and the said amount shall be paid into the Chief Minister''s
Relief Fund and the respondents shall produce the proof of the same before the Registrar, High Court of Gujarat within a period of four weeks
from the date of this order.
Petition allowed.