NAGESHWAR VIDHYA TRUST Vs. PANKAJBHAI HARISHCHANDRA JANI

JUDGEMENT

(1.) Shri Nageshwar Vidhya Trust, petitioner No. 1; Smt. Chandaben Drukeshkumar Upadhyay, Managing Trustee of Shri Nageshwar Vidhya Trust, petitioner No. 2 and Shri Rajnikant Shantilal Joshi, petitioner No. 3, have filed this petition with a prayer that this Court may issue a writ of mandamus or writ in the nature of mandamus or any other appropriate order or direction transferring the following proceedings: (i) Miscellaneous Judicial Application No. 7 of 2004 along with Suo Motu Application No. 8 of 2004 under Section 41(A) of the Bombay Public Trust Act (hereinafter referred to as "the Act"), (ii) Miscellaneous Judicial Application No. 10 of 2004 under Section 41(A) of the Act, (iii) Scheme Application No. 13 of 2004 under Section 50(A) of the Act; and (iv) Miscellaneous Judicial Application No. 36 of 2004 under Section 41(A) of the Act pending before respondent No. 7, Joint Charity Commissioner at Surat to any other appropriate Authority/Officer/Charity Commissioner other than respondent No. 7 who is competent to adjudicate upon the above mentioned proceedings under the Act as deemed fit in the interest of justice by this Court.

(2.) . The facts giving rise to this petition are as under: 2.1 There is an agricultural land bearing old Revenue Survey No. 35/2 (new Revenue Survey No. 38/4) situated at village Magdalla of sub-District Choryasi of District admeasuring 1 Hectare 32 Are and 53 Sq. mtrs. nearly 13253 sq. mt. which is actually measured as 12098 sq. mtr. after deduction which is called ( Land - A). There is an another land bearing Revenue Survey No. 75 (new Survey No. 48) situated in village Magdalla of sub-District Choryashi of District Surat which is agricultural land admeasuring 4 Acre 1 Guntha and Hectare 1-62-89 Are = 16,744 sq. mtrs. which is called (Land - B) (hereinafter referred to as "the suit properties"). 2.2 From the record it emerges that originally one Shri Mansukhlal Pachhigar was the owner of the suit lands and he has died on 7.3.1993 without making any Will. The pedigree of Mr. Mansukhlal Pachhigar is ad under: <FRM>KT3.htm</FRM> 2.3 Shri Mansukhlal Pachhigar's wife's name is Hasumatiben Mansukhlal Pachhigar. They had two sons, named Shri Subhashchandra Mansukhlal Pachhigar and Shri Ashokbhai Mansukhlal Pachhigar and a daughter named Avantikaben. Her husband's name is Ashwinbhai. Subhashchandra Pachhigar has a daughter Snehal and a son Bijal and Ashokbhai Pachhigar has two sons Gautam and Siddharth. 2.4 Petitioner No. 1 is a trust which is duly registered on 17.10.1996 under the Act having its Registration No. E-3873 at Surat. Petitioner Nos. 2 and 3 are trustees of the said trust wherein petitioner No. 2 Smt. Chandaben Drukeshkumar Upadhyay is its Managing Trustee. The object of the trust is educational development by opening primary and secondary schools and also helping other institutes in connection with educational activities. The trust deed of the said trust is produced on record at Annexure-A to the petition. Dhrukeshkumar @ Bankimbhai Upadhyay is the husband of Chandaben, the trustee of the Nageshwar Vidya Trust. The co-trustee is Rajnikant Shantilal Joshi. Rajnikant Shantilal Joshi is the husband of the sister of Dhrukeshkumar @ Bankimbhai, hence Rajnikant Joshi is "Banevi" of Dhrukeshkumar and hence Rajnikant Joshi happens to be "Nandoi" of Chandaben. Hence the two trustees are related to each other. If you see the object of the trust and trust deed it appears that the trustees have only given Rs. 1001/- to the trust and no other amount has been contributed by the trustees. 2.5 The petitioner states that on 24.9.1998 an agreement to sell came to be entered into between the parties namely, Smt. Chandaben Drukeshkumar Upadhayay and Shri Rajnikant Shantilal Joshi in their capacity as trustees of Nageshwar Vidya Trust and Subhashbhai Mansukhlal Pachhigar and Ashokkumar Mansukhlal Pachhigar for the sale of the land of Regular Survey No. 35/2 (new Survey No. 38/4) for consideration of Rs. 38,33,225/- . Out of that part of the amount was paid and the remaining amount was to be paid by the trustees. 2.6A The petitioner further states that another agreement of Sale Deed was executed on 17.10.1998 between the trustees of the trust on one hand - purchaser of the land and Hasumatiben Mansukhlal Pachhigar, widow of deceased Mansukhlal Pachhigar and Subashbhai Mansukhlal Pachhigar on the other hand in connection with land of Revenue Survey No. 75 for consideration of Rs. 51,62,000/-. 2.6B It appears from the record that the main object of the trust is to run educational institute and in view of the said object of the trust which is on the record of the case. The Trust constructed the school on the said building somewhere in 1998 and the school started running in 1998. The trust not only was running the school but also created investment in the said land with a view to see that trust can be able to carry out its object. 2.7 From the record it appears that the said lands were agricultural lands whereas the purchasers were non-agriculturists. It may be noted that Smt. Avanitkaben Pachhigar addressed a notice dated 20.8.2000 to the Chairman of the Surat Urban Development Authority, the Collector of Surat, the Police Commissioner, the District Education Officer, Additional Jilla Pradamik Officer, Ministry of Urban Development and the Gujarat Electricity Board in which it was stated that she is the owner of the part of the land, the land was agricultural land and there is no procedure to make the land as non-agricultural land and still in the said land the trust has constructed a building which is contrary to the provisions of the Urban Land Act as well as the Bombay Land Revenue Code. Therefore, the entire activity carried out by the Trust of running school in the said building premises is contrary to law. Similar notice was also issued in connection with the second land also by Smt. Avantikaben Pachhigar to all the said authorities. 2.8A In view of the aforesaid facts and circumstances of the case, Ms. Avantikaben Mansukhlal Pachhigar had filed Regular Civil Suit No. 411 of 2000 against the trust as well as trustees Smt. Chandaben Drukeshkumar Upadhayay and Shri Rajnikant Shantilal Joshi; Shri Subashchandra Mansukhlal Pachhigar, Ashokkumar Mansukhlal Pachhigar, Smt. Hasumatiben Mansukhlal Sakarlal Pachhigar. In the said suit she has prayed that the trust may not use the property for which agreement to sell has been executed. The said suit was filed on 29.7.2000. The learned Civil Judge (S.D.) passed an order issuing notice on 29.7.2000 and ultimately at by-parte hearing on 23.2.2001 the learned judge partly allowed the injunction application filed by Ms. Avantikaben Mansukhlal Pachhigar restraining the trustees not to interfere with the possession of the property in question. 2.8B Being aggrieved and dissatisfied with the said order the trust filed an appeal on 9.3.2001 before the learned District Judge, Surat. During the pendency of the proceedings, SUDA issued notice dated 26.2.2001 stating that the school building is illegally constructed and for taking a decision, a meeting is convened and they have to remain present. If they did not remain present, SUDA will remove the illegal construction. 2.8C Surat Urban Development Authority ( hereinafter referred to as "SUDA") has therefore addressed notice dated 26.2.2001 to Chandaben as to why the said construction should not be demolished and the notice was given and hearing of the notice was fixed on 1.3.2000. Similarly, the Circle Inspector also addressed notice dated 30.1.2002 to Mansukhlal and Hasumatiben Mansukhlal in which it is stated that the trust has constructed the school without permission and the authority will take necessary action. 2.8D As the original owners of the land thereafter made some application before Surat Urban Development Authority (SUDA) and ultimately SUDA issued notice dated 26.2.2001 to remove illegal construction. 2.8E It appears from the record that in the said petition it was stated that though the petitioner trust has entered into an agreement to sell at the price of Rs. 265/- per sq. yard, as the price of the land has gone up, the original owners refused to execute the agreement and demanded Rs. 1500/- per sq. yard and that is how the dispute between the original owners of the land and the trust arisen. 2.8F In view of the aforesaid facts and circumstances of the case, it may be noted that the trust filed Special Civil Application No. 1986 of 2001 before this Court on 17.3.2001 with a prayer for quashing and setting aside notice dated 23.2.2001 issued by SUDA. 2.8G Ultimately, when the aforesaid matter Spl. C.A. No. 1986 of 2001 reached hearing before this Court, this Court (A.L. Dave, J) passed the following order: (19.3.2001) "Mr. Surti after arguing, seeks permission to withdraw this petition with a view to approach the authority under Section 36(2) of the Town Planning Act. The petition stands disposed of as withdrawn. Mr. Surti also states that such application will be made before 27th of March 2001 and the authority will not demolish till then." 2.8H It emerges from the record that pursuant to the said notice the trust has also filed application dated 15.3.2001 before SUDA for regularisation of the construction because according to them the construction was without lay out plan and without plan and even no permission was taken. CIVIL SUIT NO. 125 OF 2001 & 126 OF 2001: 2.9 It appears from the record that though the original owners executed Sattakat (agreement of sale) dated 24.7.1998 another agreement of sale dated 17.10.1998 and part of the consideration was paid by the trust, the original owners failed and neglected to execute the Sale Deed after taking consideration and they were not co-operating with the trust, the trust filed Special Civil Suit No. 125 of 2001 against Subashchandra Mansukhlal Pachhigar, Ashokkumar Mansukhlal Pachhigar, Smt. Hasumatiben Mansukhlal Shankarlal Pachhigar and Ms. Avantikaben Ashwinlal Pachhigar in March, 2001 with a prayer that the defendants may not prevent the use of the said land and also for a specific performance of the said land. The said suit was related to agreement dated 24.7.1998 whereas another suit being Civil Suit No. 126 of 2001 related to agreement dated 17.10.1998 against the same defendants and against the same relief. They produced certain documents before the trial court. SPECIAL CIVIL APPLICATION NO. 2031 OF 2003: 2.10 However, in view of the fact that SUDA has issued notice and as per the contention of Ashokkumar Mansukhlal Pachhigar as SUDA was not taking any action against the trustee, Ashokkumar Mansukhlal has filed Special Civil Application No. 2031 of 2003 before this Court with a prayer that this Court may direct the respondent authority namely SUDA to initiate and finalise the action of removal of illegality committed by the trust and implement the action of demolition, cancellation of recognition as well as disconnection of electric supply which has been obtained illegally. In that petition respondent No. 2 trust filed an affidavit in reply and SUDA also filed affidavit and this Court (Coram: R.K. Abichandani and K.M. Mehta, JJ) passed order on 9.9.2003 on the ground that respondent No. 2 has filed an application before SUDA in respect of the property in question and directed that SUDA will consider the same and take an expeditious decision thereon and ultimately the petition was withdrawn.

(3.) . It appears that on 4.12.2003 a memorandum of understanding was issued between Babubhai Karshanbhai Patel and Sandip Hasmukhlal Shah on one hand and the trustees of the trust on the other hand. As per the said understanding between the parties if the original land owners execute sale deed in favour of Babubhai Karshanbhai Patel and another, the trustees agree not to object without compromising the interest of the trust and to cancel the agreement for sale executed in the year 1998 which are referred to earlier.