2003(1) ALL MR 888
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.G. CHITRE, J.

Mohammed Hanif Babasaheb Bagwan & Ors. Vs. Aba Daji Mali (Deceased) & Anr.

Writ Petition No. 3761 of 1988

10th December, 2001

Petitioner Counsel: Mr. H. A. SOLKAR, Mr. M.H. SOLKAR

Bombay Tenancy and Agricultural Lands Act (1948), S.88-B - Certificate of exemption in favour of institution for public religious worship - Application for - Application made by trustees of a trust which happens to be an institution for public religious worship - Improper selection of words and improper use of words in the application - Mistake on account of ignorance of trustees - Not a ground for the said institution to suffer on its rightful cause - Court granted relief which has been prayed for, by exercise of extraordinary jurisdiction and powers granted by Constitution of India.

Constitution of India, Art.226.

An aggrieved party is not left without remedy as the finality does not affect the extra-ordinary power of this Court in view of the Constitution of India for the purposes of granting a just relief to the Petitioners for administration of justice. In the present case the Petitioners committed the initial error of couching the application in not satisfactory manner and words. The Petitioners did not point out in the said application that the said Macca Masjeed Trust happens to be an institution for public religious worship. They travelled towards only one goal, one destination of pressing that the said certificate was required by the said trust as a public trust. They did not point out in clear words that the said certificate is needed as it happens to be an institution for public religious worship. Afterall, the Petitioners are not well-versed as it appears from the record in picking up appropriate words for the purposes of expressing their desire for an appropriate relief. Unfortunately, in fact such improper selection of words and improper use of the words in the said application made them to come up to this Court for relief. They have to thank themselves for this.

Section 88B provides that the institutions for public religious worship are entitled to get the certificate as contemplated by Section 88B. Shri Solkar submitted that the title of the said trust by itself shows that it is an institution for public religious worship. It is so as the name by itself shows. But that was to be pressed by the Petitioners before the Assistant Collector, Solapur. The default committed by the trustees on this point, may be on account of their ignorance, but it should not be a ground for the said institution to suffer on its rightful cause and, therefore,this Court is granting the relief which has been prayed for by exercise of its extra-ordinary jurisdiction and powers granted by the Constitution of India, in the interest of justice. 1979 Mah. L. J. 687 - Followed.

Cases Cited:
Shrimant Jagdeorao Anandrao Pawar Vs. Kisan Namdeo Pawar, 1979 Mh. L.J. 687 [Para 4]


JUDGMENT

JUDGMENT:- Mr. H.A. Solkar with Mr. M.H. Solkar for the petitioners. The petitioners are hereby assailing the correctness, propriety and validity of : (1) the order passed by the Assistant Collector, Solapur Division, Solapur on 29.2.1984 while deciding Tenancy Application No. 35/1983, (2) the judgment and order passed by Member of M.R.T. Pune in the matter of Tenancy Application No.35/83-MRT-SH-IX-3/84 (TEN-B-232/84) Pune dated 24-9-1984, (3) the order passed by the Assistant Collector, Solapur Division, Solapur in TENANCY/ADM.APPL.NO.9/85, BARSHI-TRUST, BARSI, and (4) the order passed by the Collector, Solapur in Tenancy Appeal No. 2/85 dated 25/2/86.

2. The facts need to be stated for the purposes of unfolding the matter and giving the exact idea of the grievance expressed by the Petitioners. The Petitioners happened to be the trustees of a mosque at Barsi known as "Makka Masjid Trust, Barsi". It owns land bearing Gat No.433 admeasuring 4 hactares and 49 Ares situated at village Soundare, Taluka Barsi, District Solapur. The trustees applied for certificate under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Bombay Tenancy Act" for convenience). The Assistant Collector, Solapur Division, Solapur dealt with the said application which was numbered as 35/83. The learned Assistant Collector rejected the said application by order dated 29.2.1984 holding that the petitioners have not proved the purpose for which all of the expenditure of the said trust was made. The said trustees, the present petitioners, moved a revision petition against the said order before the Maharashtra Revenue Tribunal, Pune which was numbered as Revision Application No. MRT-SH-IX-3/84 (TEN-B-232/84), Pune. The said revision application was heard and decided by designated Member of M.R.T. who dismissed the same summarily by his judgment and order dated 24.9.1984 holding that the enquiry under Section 88-B of the Bombay Tenancy Act is mainly between the Collector and the Trust and it being an administrative order, the revision was not maintainable. After this judgment and order, the present Petitioners moved another application before the Assistant Collector, Solapur making a prayer to him to modify his previous order dated 29.2.1984. The Assistant Collector, Solapur dismissed the said application by holding that he did not have the same jurisdiction and the power. The present Petitioners thereafter filed an application to Collector, Solapur making a prayer to revise the said order which was passed by the Assistant Collector, Solapur. The Collector, Solapur dismissed the said application by holding that he did not have the said power and, therefore, the Petitioners filed this writ petition for invoking the jurisdiction and power of this Court in view of the Constitution of India. The petition was admitted for final hearing by issuing the rule on 1.9.1988.

3. Mr. Solkar, Counsel appearing for the Petitioners, submitted that the learned Assistant Collector initially committed an error of law in misreading the said application and provisions of Section 88-B. He submitted that the Assistant Collector did not notice the exact words and phrases used in provisions of Section 88B(1)(b) which provides that "Nothing in the foregoing provisions except sections 3, 4B , 8, 9, 9A, 9B, 9C, 10, 10A, 11, 13 and 27 and the provisions of Chapters VI and VIII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in the sections mentioned above shall apply to lands which are the property of a trust for an educational purpose, a hospital, Panjarapole, Ghaushala or an institution for public religions worship." He submitted that though Macca Masjeed Trust, Barshi happens to be a registered public trust, it is also an institution for public religions worship and, therefore, there was no need of holding an enquiry as to whether the income of the said Trust happens to be entirely spent for the purposes of such trust. He submitted that the fact that it is an institution for public religious worship is by itself sufficient to allow it to have a certificate which has been contemplated by provisions of Section 88B of the Bombay Tenancy Act. He submitted that the Assistant Collector, Solapur has misdirected himself and, therefore, landed in error of dismissing the said application by holding that the income of the said trust is not spent for the purposes of the said trust. Shri Solkar submitted that the Assistant Collector, Solapur should have granted the certificate as contemplated under Section 88B to the trustees of the said trust, the present petitioners, as prayed by them.

4. Shri Solkar placed reliance on the judgment of this Court in the matter of Shrimant Jagdeorao Anandrao Pawar Vs. Kisan Namdeo Pawar and others, reported in 1979 Maharashtra Law Journal page 687 wherein the Single Bench of this Court held that an aggrieved party is not left without remedy as the finality does not affect the extra-ordinary power of this Court in view of the Constitution of India for the purposes of granting a just relief to the Petitioners for administration of justice. In the present case the Petitioners committed the initial error of couching the application in not satisfactory manner and words. The Petitioners did not point out in the said application that the said Macca Masjeed Trust happens to be an institution for public religious worship. They travelled towards only one goal, one destination of pressing that the said certificate was required by the said trust as a public trust. They did not point out in clear words that the said certificate is needed as it happens to be an institution for public religious worship. Afterall, the Petitioners are not well-versed as it appears from the record in picking up appropriate words for the purposes of expressing their desire for an appropriate relief. Unfortunately, in fact such improper selection of words and improper use of the words in the said application made them to come up to this Court for relief. They have to thank themselves for this.

5. The Assistant Collector was, therefore, misdirected for considering the income of the said trust and it is expedient because in addition to the words used in the said application, the Petitioners annexed audit report of the accounts of the said trust which showed that out of its income of Rs.12587/-, Rs.3244/- were spent on paying taxes, Rs. 103/- on audit fees, Rs.613/- on Court expenses, Rs. 6258/- on establishment expenses. The Assistant Collector held that the expenses on establishment were not proved as no witness was examined on that point. Be that as it may, but apart from that, the bare reading of items of expenditure shows that whatever expenses were incurred were on those major items and the item of expenditure on establishment included the expenditure of salaries of teachers and priests. It also indicated that the said expenditure was incurred on religions purpose of worship. Unfortunately, the Assistant Collector rejected the prayer for granting the certificate and further the petitioners moved an application to M.R.T. invoking its revisional jurisdiction for correcting the said error. The Member of M.R.T. held that the revision application was not maintainable and said revision application was dismissed. The misfortune did not stop here only. The Petitioners further moved an application for modification of the previous order before the Assistant Collector, Solapur who held that he did not have the said jurisdiction or the power to do so. He dismissed the application. The Petitioners further moved an application to the Collector, Solapur for correcting the said order passed by the Assistant Collector in second round. The said application was also dismissed. It is pertinent to note that in between these rounds, no where the petitioners pressed this point that the said trust happens to be an institution of religious worship and on account of that they lingered on in the arena of litigation for number of years. They invited all these things by their mistakes and errors.

6. Section 88B provides that the institutions for public religious worship are entitled to get the certificate as contemplated by Section 88B. Shri Solkar submitted that the title of the said trust by itself shows that it is an institution for public religious worship. It is so as the name by itself shows. But that was to be pressed by the Petitioners before the Assistant Collector, Solapur. The default committed by the trustees on this point, may be on account of their ignorance, but it should not be a ground for the said institution to suffer on its rightful cause and, therefore,this Court is granting the relief which has been prayed for by exercise of its extra-ordinary jurisdiction and powers granted by the Constitution of India, in the interest of justice.

7. When the law provides that an institution for religious worship is entitled to get a certificate as contemplated by section 88B, the present trust and the petitioners should not find any difficulty in getting that provided they are entitled to get it in view of provisions of law as enunciated by section 88B of the Bombay Tenancy Act. The finality achieved by the order which has been passed by the Assistant Collector, Solapur by his order dated 29.2.1984 should not be an obstacle in the way of the Petitioners and the trust, an institution for public religious worship, in getting the said certificate as contemplated by Section 88B. So also the further order passed on the applications moved by the Petitioners should not also be an obstacle in their way for achieving the said certificate which they want and which they are entitled to have in view of provisions of Section 88B of the Bombay Tenancy Act. The view taken by this Court gets fortified by the decision taken by the Single Bench of this Court in the matter of Shrimant Jagdeorao Anandrao Pawar vs. Kisan Namdeo Pawar and others, (quoted supra) where the Single Bench expressed its view in following sentence:-

"Now, turning to the apprehension of the learned counsel for the respondents that because of the wide scope of the exclusion of these benevolent provisions of law the persons aggrieved by such certification would be without remedy, it can only be observed in this context that the finality attached by the State statutes to any such jurisdiction does not affect the extra ordinary jurisdiction conferred by the Constitution upon the High Courts when the matters are properly brought before them and adjudicated upon in respect of the validity or otherwise of the proceedings with regard to certification. Only because finality is given to a particular stage of proceedings, like the one for certification, it does not follow that the Legislature has left loopholes in the scheme of enactment of the jurisdiction and has left the parties without any remedy. The character of the certification proceeding being between the Collector and the applicant trust and the certificate being merely the conclusive piece of evidence, the Legislature should be presumed to have left the matters in its wisdom at the stage of the Collector itself."

8. Thus, in the fitness of things as depicted by the record and the submissions advanced by Shri Solkar for the Petitioners, this Court quashes all the orders which have been mentioned above by condoning the laches and directs the Assistant Collector, Solapur to deal with the application of the Petitioners made on behalf of Macca Masjid Trust, Barshi treating it to be an institution for public religious worship praying for a certificate in view of provisions of Section 88B of the Bombay Tenancy Act. Thus, the writ petition stands allowed and rule stands made absolute. No order as to costs.

9. Record be despatched to the Assistant Collector, Barsi, as early as possible.

10. Parties to act on ordinary copy of this judgment duly authenticated by the Private Secretary of this Court.

11. Certified copy expedited.

Petition allowed.