Dashrathlal Bhagvandas Prajapati vs Sadhu Valdas Magandas and Others

J.B. Pardiwala, J.—By way of this appeal under Clause 15 of the Letters Patent, the Appellant, original Respondent No. 1 in the writ petition, seeks to challenge the judgment and order passed by learned Single Judge dated 25.11.2009 disposing of writ petition being Special Civil Application No. 11964 of 2009 preferred by Respondent No. 1 herein in this appeal with certain directions.

Facts relevant for the purpose of deciding the present appeal can be summarized as under:

The Appellant is a Trust registered under the Bombay Public Trusts Act, 1950 situated at Patan. It is the case on behalf of the Appellant-Trust that they are managing about 25 small temples situated on the land where idols are made of earth /soil and not from stone or cement. The temples are situated on the Trust''s property bearing Survey Nos. 882, 880 and 879 of Gundi-Patti, Patan. Trust is also managing crematorium for the people of all the communities by charging a token Rupee 1/- for the purpose of cremation. It is the case of the Trust that every year they organize a fair for 7 days in the month of Kartika i.e. first month of the year. The land on which the fun-fair is being organized is in possession of the Trust for the past almost a century. It is also their case that vide order dated 30th March, 1994 passed by District Collector, Mehsana, the land was regularized in favour of the Trust on payment of certain amount.

Every year, the District Collector, Patan would grant permission to the Trust to organize the fun-fair and accordingly, the District Collector, Patan vide order dated 16th October, 2009 granted permission to organize the fun-fair on the land of the Trust on the condition that the rent of the stalls shall be fixed by putting different stalls on auction under the supervision of the Mamlatdar, Patan and 20% of the amount that may be raised out of the rent of the stalls during the fun-fair shall be deposited with the Government.

It is the case of the appellate-Trust that Respondent No. 1 (original Petitioner) posing himself to be a saint preferred Regular Civil Suit No. 139 of 2008 in the Court of Principal Senior Civil Judge, Patan and prayed for an injunction restraining the Trust from organizing fun-fair, as according to Respondent No. 1, such programs of entertainment are hurting religious feelings of persons like Respondent No. 1 who are leading abstemious life of saints. It appears that Civil Court has not granted any relief so far. In the meantime, Respondent No. 1 preferred Special Civil Application No. 11964 of 2009 almost for identical relief which he prayed for in the Civil Suit.

Learned Single Judge noticed the following aspects while disposing of the petition.

Collector, Patan vide order dated 16.10.2009 granted permission to the Trust to organize fun-fair for religious purpose for the period between the 1.11.2009 to 7.11.2009 i.e. for 7 days on certain terms and conditions, by the time Respondent No. 1, original Petitioner, approached the Court, the fun-fair was already over.

Learned Single Judge also noticed that Regular Civil Suit No. 139 of 2008 is pending in the Court of Principal Senior Civil Judge, Patan filed by Respondent No. 1 herein for identical relief and therefore, learned Single Judge observed that petition is not entertained.

However, learned Single Judge observed that considering the order of allotment passed by the Collector, Mehsana dated 11.4.1994, the allotment of the land in question on which the fun-fair is organized was only for religious purpose and Trust cannot derive any profit out of the same by leasing the shops / stalls during the time of fun-fair.

Learned Single Judge vehemently came to the conclusion that every year as and when the fun-fair is organized, the allotments / leasing of stalls, etc. shall be under the supervision of Collector, Patan and out of total income received by way of rent / license fees, etc. during the time of fun-fair, 80% of the total income shall be retained by the Collector, Patan/ State Government and 20% of the income shall be retained by the Trust for the purpose of administration / management.

Learned Single Judge further provided that Collector, Patan should see to it that the fun-fair is organized only for religious purposes and shall see to it that no other activity is permitted by the Trust which can be said to be objectionable and not connected for the purpose of which the land is allotted.

Learned Single Judge further observed that the nature of the order is kept in mind peculiar facts and circumstances of the case, more particularly, the fact that the fun-fair is organized last couple of years.

The Appellant - Trust is aggrieved by the direction of the learned Single Judge to the extent that 80% of the total income which the Trust may earn during the time of fun-fair will be retained by the Collector, Patan / State Government and only 20% of the same would go to the Trust.

We have heard learned Counsel Mr. Mehul Sharad Shah for the Appellant, Mr. Viral J. Dave, learned advocate for the Respondent No. 1, learned AGP, Ms. Krina Calla for Respondent Nos. 2 and 5 and Mr. C.B. Upadhyaya, learned advocate appearing for Respondent Nos. 3 and 4.

Learned Counsel for the Appellant would submit that when the learned Single Judge came to the conclusion that the petition was not worth entertaining as Respondent No. 1 herein has already preferred Regular Civil Suit for the similar relief and the same is pending in the Civil Court then under such circumstances, Single Judge could not have passed an order directing that 80% of the income will go to the Collector, Patan / State Government and 20% shall be retained by the Trust.

It is also submitted by learned Counsel that fun-fair is being organized for the past couple of years and till this date, nobody has raised any objection of any nature. It is submitted that Respondent No. 1, original Petitioner, has personal scores to settle with the trustees of the Trust and, as a disgruntled person, he preferred the writ petition. Counsel would also further submit that no illegal activities of any nature are being conducted at the time of fun-fair or no other activity, which would hurt the religious feelings of any person, is being undertaken.

Learned Counsel would further submit that the direction of the learned Single Judge as regards sharing the income in the ratio of 80% - 20% is unwarranted and is excessive in exercise of jurisdiction under Article 226 and 227 of the Constitution of India.

Per contra, learned Counsel appearing for the respective parties defended the order passed by learned Single Judge and submitted that the appeal deserves to be dismissed.

Having regard to the rival contentions of the respective parties and in facts and circumstances of the case, we are of the view that the judgment and order passed by learned Single Judge deserves to be interfered to a certain extent. We are of the opinion that when learned Single Judge was prima-facie of the view that the petition deserves to be rejected only on the ground that Respondent No. 1, original Petitioner, has already preferred Regular Civil Suit in the Civil Court at Patan and has prayed for similar reliefs as prayed for in the petition then in that case, entire petition ought to have been rejected in toto without further going into any other controversy having observed so. There was no justifiable reason for the learned Single Judge in exercise of its writ jurisdiction under Article 226 or even supervisory jurisdiction under Article 227 of the Constitution to issue direction to the extent that 80% of the income shall be retained by the State Government and 20% of the income shall be retained by the Trust.

We are of the view that Trust has to maintain its properties. Trust would also incur huge expenses in organizing such events and has to manage many other activities of the Trust. We are of the view that the order which was passed by the Collector, Patan directing the Trust to deposit 20% of the profit with the State Government and retain 80% of the profit at the time of fun-fair was just and proper. We do not find any justifiable reasons for the learned Single Judge to interfere with that order of the Collector, Patan.

In this view of the matter and considering all other relevant aspects, we modify the order passed by the learned Single Judge to the extent that every year as and when the fun-fair is organized, the income which the Trust would derive from the fun-fair shall be divided in the ratio of 80%: 20%. This wise 80% shall be retained by the Trust and 20% shall be deposited with the Collector, Patan. All other directions of the learned Single Judge are not interfered with and the parties shall abide by such directions. The order of the learned Single Judge is modified to the above extent and the appeal also stands disposed of to the above extent with no order as to costs.