Mangalbhai Shankerbhai Patel Since Deceased vs Gujarat Revenue Tribunal

A.J.Desai, J

[1.0] By way of present appeal under Clause 15 of the Letters Patent, the appellants herein - original petitioners have challenged an oral order dated 10.02.2022 passed by the learned Single Judge in Special Civil Application No.2054/2019 by which the learned Single Judge refused to entertain the petition by which the original petitioners had challenged an order dated 24.09.2018 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.BA/244/2017 challenging an order / certificate dated 28.03.1959 after a period of 58 years and 6 months.

[2.0] Learned advocate Mr. Vimal Purohit appearing for the original petitioners would submit that the learned Gujarat Revenue Tribunal as well as the learned Single Judge have committed an error in not entertaining the case of the original petitioners on merits and only on the ground of delay both, the learned Gujarat Revenue Tribunal as well as the learned Single Judge ought not to have rejected the case of the original petitioners. He would further submit that it is an undisputed fact that the Mangalbhai Shankerbhai Patel was ‘protected tenant’ and therefore, certificate dated 28.03.1959 ought not to have been issued by the Deputy Collector. He would further submit that even the Trustees of the respondent Trust are acting contrary to the Trust Deed and therefore also, the learned Gujarat Revenue Tribunal as well as the learned Single Judge ought to have considered the said aspect.

[3.0] On the other hand, learned Senior Advocate Mr. Shalin Mehta with learned advocate Mr. Nirav Sanghavi appearing for respondent No.3 – Trust has opposed the present appeal and supported the reasons assigned by the learned Gujarat Revenue Tribunal.

[4.0] We have heard learned advocates appearing for the respective parties.

It is an undisputed fact that the certificate dated 28.03.1959 by which exemption under sub-Section (1) of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Tenancy Act”) came to be challenged by way of revision application only in the year 2017 that too by the legal heirs of the deceased who claimed to be the protected tenant of the land in question. Therefore, it is an undisputed fact that the decision has been challenged after a period of 58 years and 6 months. It is also pertinent to note that only subsequent to the death of the predecessor of the original petitioners, revision application was filed. When the predecessor of the original petitioners was alive, no challenge was made.

[4.1] We have also gone through the reasons assigned by the learned Single Judge rejecting the petition and confirming the order passed by the learned Gujarat Revenue Tribunal.

[4.2] We are in agreement with the observations made by the learned Single Judge in paragraphs 7.1 to 7.4, which read as under:

“7.1 Having heard learned advocates for the respective parties and having perused the material available on record, what can be seen is that the petitioners are ‘protected tenants’ in respect of the land in question which was purchased by the Respondent No.3 – Trust and the aforesaid position was in existence even prior to the date on which Act came into force. The certificate of exemption dated 28.03.1959 was issued by the Deputy Collector, Baroda under Section 88B of ‘the Tenancy Act’ after holding the inquiry as prescribed under sub-section (2) of 88B of ‘the Tenancy Act’. On perusal of Revision Application preferred by the petitioner, it seems that the petitioner has mainly challenged the aforesaid certificate issued under Section 88B of ‘the Tenancy Act’ on the ground of violation of principles of natural justice as the father of the petitioner was not heard and also on the ground of mismanagement of the trust property.

7.2 As far as the violation of principles of natural justice is concerned, the order dated 28.03.1959 itself suggests that the Deputy Collector, Baroda has carried out the inquiry as required under sub-section (2) of Section 88B of ‘the Tenancy Act’ and hence it was for the petitioner to point out that father of the petitioner was not heard by placing on record some cogent and convincing evidence including the documentary evidence to that effect. The petitioner has not produced any such material on record. Further, when the order was passed in the year 1959, the father of the petitioner was alive. There is nothing on record to indicate that when the father of the petitioner expired and why during his lifetime the father of the petitioner did not challenge the aforesaid order dated 28.03.1959 whereby exemption under Section 88B of ‘the Tenancy Act’ was granted in favour of Respondent No.3. In absence of any such material, the Tribunal has rightly rejected the application of the petitioner for condonation of delay of 58 years and 06 months by assigning cogent and convincing reasons.

7.3 Insofar as the petitioner’s submission in respect of mismanagement of trust is concerned, it is rightly contended by learned advocate Mr.Sanghvi for the Respondent No.3 that whether a trust is managed properly or not is a question of determination which would fall within the domain of Charity Commissioner. The Mamlatdar & ALT, Vadodara City (West) has formed an opinion on his own, however, without there being any jurisdiction or basis for forming such opinion. The Mamlatdar & ALT, Vadodara City (West) formed opinion only on the basis of registration of newspaper cuttings which cannot be said to be any convincing material for forming such opinion. What is shocking is the fact that though the Mamlatdar & ALT, Vadodara City (West) called for a report from the Charity Commissioner, even before the report of the Charity Commissioner could reach to the Mamlatdar & ALT, Vadodra City (West), by way of two separate reports dated 09.11.2016 and 12.05.2017, twice the Mamlatdar & ALT, Vadodara City (West) formed the opinion that Respondent No.3 trust has committed some irregularities and therefore trust is not being managed properly and, therefore, proceedings under Section 88D of ‘the Tenancy Act’ required to be initiated. In fact, in absence of any material or findings to the effect that the Trust is not managed properly by way of an order of the Charity Commissioner on the basis of inquiry, Mamlatdar & ALT, Vadodara City (West), on his own, cannot form such opinion in respect of the trust property as the affairs of the public trust are governed by the provisions of the Bombay Public Trust Act, 1950 and, therefore, it is for the Charity Commissioner to exercise powers under appropriate sections including sections 41 and 41A of the Bombay Public Trust Act, 1950 after holding inquiry and to form an opinion about the management of the trust properties.

7.4 Once the certificate of exemption under Section 88B of ‘the Tenancy Act’ is issued in favour of Respondent No.3 – Trust, it is out of the scope and jurisdiction of the Mamlatdar & ALT, Vadodara City (West) to determine such issue without there being any material in the form of report of Charity Commissioner on the basis of inquiry to the effect that the trust property is not being managed properly. The authority can form an opinion that exemption granted under Section 88B of ‘the Tenancy Act’ is required to be withdrawn only on the basis of such report and not otherwise. In fact, when the certificate of exemption under Section 88B of ‘the Tenancy Act’ is issued by the Collector or Deputy Collector and authority inferior to that authority cannot carry out or order any such inquiry and hence it is only for the State Government to decide on the basis of material available whether to withdraw the exemption granted under Section 88B of ‘the Tenancy Act’ or not. Therefore, the Tribunal has rightly rejected the application of the petitioner by not condoning the delay.”

[5.0] In view of the above discussion, there is no substance in the present Letters Patent Appeal and same is accordingly dismissed. Notice is hereby discharged.

In view of dismissal of Letters Patent Appeal, Civil Application (For Stay) also stands dismissed.