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Fun World And Resorts India Private Limited v/s Vanita Vishram Trust, Surat

    R/letters Patent Appeal No. 1274 of 2018 In Special Civil Application No. 14462 of 2018 With Civil Application No. 1 of 2018

    Decided On, 04 October 2018

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE R. SUBHASH REDDY & THE HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

    For the Appellant: MTM Hakim, Mohmedsaif Hakim, Advocates. For the Respondent: Mohmedsaif Hakim(5394), Mihir Joshi, Senior Advocate, Salil M. Thakore (5821), Advocates.



Judgment Text

Vipul M. Pancholi, J.

Oral

1. This appeal is filed under Clause 15 of the Letters Patent by the appellant - original respondent No.2 against the interim order dated 20.09.2018 passed by the learned Single Judge in Special Civil Application No.14462 of 2018 whereby the learned Single Judge has granted stay of the order passed by the Joint Charity Commissioner, Surat, in Judicial Misc. Application No.17 of 2018.

2. Brief facts leading to the filing of the present appeal are as under:

2.1 Respondent Nos.1 and 2 herein are the original petitioners. Respondent No.1 Trust is a registered Trust under the Public Trusts Act, 1950. The Trust owns land in Surat. The Trust is having an open land which is surrounded by walls. Since many years, Trust has been giving open ground to different entities including Surat Municipal Corporation, private entities etc. for holding book fairs, cultural exhibitions, functions, fairs and other programs for short durations ranging from 1 day to 8090 days. The income so generated by the Trust is used for the educational purposes of the Trust and the said income is one of the major sources of revenue for the Trust and the Trust's educational activities get a major boost from the income so generated.

2.2 It is stated that the petition being Special Civil Application No.6331 of 1996 and allied matters came to be filed against the Trust and the said petitions were disposed of by the Division Bench of this Court by order dated 27.09.1996. While disposing the said petitions, it was directed that the Trustees shall publish appropriate advertisement in the leading newspapers inviting offers for the use of the ground and act in accordance with law having regard to the paramount interest of the Trust and Trust alone. It is further stated that recently, respondent No.1 - original petitioner Trust filed Misc. Civil Application No.1 of 2017 in Special Civil Application No.6331 of 1996 for modification of the order dated 27.09.1996. It is stated that the Division Bench of this Court by order dated 13.03.2018 modified the aforesaid order whereby this Court observed that there is no reason not to allow the applicant - petitioner Trust to go for Etenders, whenever licence is to be issued for a period of 15 days or more. Whenever the said tenders are required to be issued, the Trust is directed to proceed for Etenders for a period of 15 days or more by publishing notice of Etenders in two leading newspapers having wide circulation, one of which should be in Vernacular language, before 10 days. However, when there is a requirement for grant of licence for shorter period than 15 days, permission was granted to the petitioner Trust to grant licence to such applicant by collecting competitive price and, thereafter, it is to be immediately informed to the Charity Commissioner by furnishing particulars of licence and details of the licencee.

2.3 It is the case of the original petitioners that on 25.06.2018, the Trust issued advertisement in English and Gujarati newspapers inviting offers for taking on licence the ground for the period from 01.09.2018 to 25.11.2018 by Etendering. The minimum price was fixed at Rs. 3,00,000/per day. However, no offer came to be received by the Trust and, therefore, it was decided in the meeting to revise the base price from Rs. 3.00. 000/to Rs. 2,00,000/and further decided to go for repeat Etendering process. However, in the second Etendering process also, no offer came to be received by the Trust and, therefore, in the meeting, it was decided to adopt a conventional method of inviting tenders through newspaper advertisement. Therefore, again an advertisement was issued on 25/26.07.2018 in English and Gujarati newspapers inviting offers for taking on licence the ground for the period from 01.09.2018 to 25.11.2018 by regular tendering process. In pursuance to the said advertisement, single offer was received by the petitioner Trust. The offerer has deposited the Earnest Money Deposit of Rs. 43.00. 000/. However, he has requested that the ground to be given to him for 60 days i.e. from 05.10.2018 to 03.12.2018 at Rs. 2,00,000/per day and for preparation days being 28.09.2018 to 04.10.2018 and dismantling days being 04.12.2018 to 06.12.2018, he would pay Rs. 50,000/per day. It is stated by the petitioners that as first two advertisements resulted into no offers and in pursuance to the third advertisement, only one offer was received, the Trust had no option but to accept the same. Otherwise, the said offer will also be lost resulting in major loss of revenue to the Trust. Therefore, it was decided to give licence to one Mr.Hitesh Patel, whose offer was accepted.

2.4 It is stated that the present appellant filed Judicial Misc. Application No.17 of 2018 before original respondent No.1 - Charity Commissioner, interalia praying that inter se bidding between original respondent No.2 i.e. present appellant and Mr.Hitesh Patel be held and the licence be granted to the person giving highest bid. The Joint Charity Commissioner by the impugned order dated 12.09.2018 partlyallowed the said application filed by the present appellant whereby the decision of the Trust of issuing licence for usage of the ground on 10.08.2018 to Mr.Hitesh Patel, Proprietor of Shri Krishna Enterprise, Katargam, Surat, for duration of 05.10.2018 to 03.12.2018, is set aside and further directions are issued.

2.5 The petitioners, therefore, filed captioned petition before this Court. The learned Single Judge by way of the impugned order granted stay of the order passed by the Joint Charity Commissioner. The appellant - original respondent No.2 has, therefore, preferred this appeal.

3. Heard learned advocate Mr.M.T.M. Hakim for learned advocate Mr.Mohmedsaif Hakim for the appellant, learned Senior Counsel Mr.Mihir Joshi assisted by learned advocate Mr.Salil M. Thakore for respondent Nos.1 and 2 - original petitioners and learned Assistant Government Pleader Mr.Rohan Yagnik for respondent No.4.

4. Learned advocate for the appellant mainly contended that by granting stay of the order passed by the Joint Charity Commissioner by the learned Single Judge, final relief is given to the original petitioners and, therefore, the order passed by the learned Single Judge be set aside. It is further submitted that for a period of 15 days or more, as per the direction given by this Court for issuing licence to use the ground of the petitioner Trust, the petitioners were required to follow the procedure of Etendering. However, the petitioner Trust has adopted regular tendering process of issuing advertisement in the newspapers inviting offers for taking on licence the ground for the period from 01.09.2018 to 25.11.2018. Even after receiving one offer, from the concerned party, namely, Mr.Hitesh Patel, at the request of the said person, licence is issued to him for a period of 60 days only i.e. from 05.10.2018 to 03.12.2018 and, therefore, the Joint Charity Commissioner has rightly set aside the said decision taken by the Trust and the licence issued to Mr.Hitesh Patel. It is, therefore, urged that the impugned order granting stay of the order passed by the Joint Charity Commissioner be set aside.

5. On the other hand, learned Senior Counsel Mr.Mihir Joshi assisted by learned advocate Mr.Salil M. Thakore, appearing for respondent Nos.1 and 2, opposed this appeal and mainly contended that the present appellant filed Judicial Misc. Application No.17 of 2018 before the Joint Charity Commissioner against the Trust. However, in the said proceedings, though relief is sought against the successful bidder, he was not joined as party respondent. In spite of that, the Joint Charity Commissioner set aside the licence issued in favour of the successful bidder, namely, Mr.Hitesh Patel. In the present appeal also, Mr.Hitesh Patel is not joined as party respondent. It is further submitted that possession of the ground is already given to the said party on 28.09.2018 for preparation of the fair and from tomorrow i.e. from 05.10.2018, the fair will commence.

6. It is submitted that the original petitioners have initiated Etendering process twice. However, no offer was received pursuant to the same and, therefore, the regular method of tender process was adopted, in which also, only one offer was received. The request of the only bidder is accepted by the petitioner Trust keeping in mind the interest of the Trust. At this stage, it is further contended that the main petition is still pending before the learned Single Judge and, therefore, this Court may not go into the merits of the case of the parties. He, therefore, urged that this appeal be dismissed.

7. We have considered the submissions canvassed by the learned advocates appearing for the parties. Though the submissions are canvassed on the merits of the case by learned advocate Mr.Hakim, we are not inclined to deal with the same at this stage, as the main petition is still pending before the learned Single Jude. It is required to be noted that the appellant had filed Judicial Misc. Application No.17 of 2018 before the Joint Charity Commissioner without joining the successful bidder, though the relief was claimed against the said person. The Joint Charity Commissioner also set aside the licence issued in favour of Mr.Hitesh Patel though he was not joined as party respondent. It is also reflected from the record that the petitioner Trust has twice invited the bids by process of Etender. However, no offer was received and, therefore, on third occasion, regular method of tender process was adopted by issuing advertisement in English and Gujarati newspapers. After the advertisement was published in the English and Gujarati newspapers, only one offer was received from one Mr.Hitesh Patel. However, as contended by the learned advocate for the petitioners that the petitioner Trust had no option but to accept the request of the sole offerer to give the ground for a period of 60 days. Thus, after looking to the interest of the Trust, the said offer was accepted and licence has been issued in favour of Mr.Hitesh Patel. The Charity Commissioner has set aside the said decision taken by the Trust in issuing licence in favour of Mr.Hitesh Patel and further directions were given to the petitioner Trust. It is not in dispute that Mr.Hitesh Patel was not joined as party respondent before the Joint Charity Commissioner. Even th

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e appellant has not joined Mr.Hitesh Patel as party respondent in the present appeal. The decision taken by the Joint Charity Commissioner is challenged before the learned Single Judge in the pending petition and learned Single Judge has yet to examine the validity of the said decision. Thus, when the learned Single Judge has granted stay against the order passed by the Joint Charity Commissioner by way of interim relief, we see no reason to interfere with the same at this stage. 8. It is further borne out from the record that the possession of the ground is already handed over to the licencee on 28.09.2018 for preparation of the fair and from tomorrow i.e. 05.10.2018, the fair will commence and, therefore, at this stage, we are of the view that the impugned order passed by the learned Single Judge is not required to be interfered with. 9. In view of the aforesaid discussion, the appeal is dismissed. Consequently, Civil Application also stands disposed of. 10. It is clarified that any of the observations made by us in the present order will not come in the way of any of the parties at the time of deciding the main petition.
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