1989 Supreme(Bom) 273

IN THE HIGH COURT OF BOMBAY
Dharmadhikari C.S. Tipnis V.P., JJ.
Charity Commissioner, Maharashtra State, Bombay .... Appellant.
Versus
Shantidevi Lalchand Chhaganlal Foundation Trust by
Trustees Lalchand Chhaganlal Jain others.... Respondents.
First Appeal No. 532 of 1989, decided on 15-9-1989.
Advocates appeared :
R.M. Kadam, A.G.P., for appellant.
Ashok Desai with N.G. Thakkar, N.D. George D.S. Sakhalkar, for respondents.

Headnote:BOMBAY PUBLIC TRUSTS ACT, 1950

       Sections 36, 50, 80-Alienation of trust property-Sanction under Section 36-Even though trustee in trust instrument is empowered to alienate trust property, sanction of under Section 36 is must-Civil Court has no jurisdiction for such sanction.

       Taking into consideration the various provisions of the Act which make the Charity Commissioner as the main protector of the public trusts and the guardian custodian of the properties of the public trusts. Court feels that the charity Commissioner under the provisions of Section 36 has the exclusive jurisdiction to deal with the matters provided therein. Clause (iii) or clauses (i) and (q) of Section 50 will not give jurisdiction to the Civil Court to sanction sale, exchange or gift of any immovable property or lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case 9f non-agricultural land or a building belonging to the public trust. The said jurisdiction exclusively vests with the Charity Commissioner. So far as sub-clause (i) of Section 50 is concerned, no doubt the same refers to a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the Court may deem necessary. However in Court opinion. read in the context of other provisions of the Act in general and in the context of the provisions of Section 36 of the Act in particular, it must be held that the professions of sub-clause (i) of Section 50 gives jurisdiction to the Civil Court only to authorise the trustees to alienate the trust property when either the instrument of trust prohibits the same and/or does not authorise the trustees. Only is such cases the Civil Court can give directions authorising the trustees to alienate the trust property on such terms and conditions as the Court may deem necessary. However, after such authorisation, if the alienation is of the nature mentioned in Section 36 of the Act, for such each specific or particular transaction the sanction of the Charity Commissioner will be necessary.

       In the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of Section 50 (iii) or sub-clause (i) or (g) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement exh. J or the lease deed exh. K. The development agreement exh. J and the lease deed as per the draft lease deed exh. K with be valid only with the previous sanction of the

       Charity Commissioner by virtue of the provisions of Section 36 of the Act.

       Sections 36, 50 (1), 51 and 80-Bombay Public Trust Rules, 1961, Rule 24 -Development agreement entered into by certain trustees of public trust and proposed lease deed of trust lands- It being one transaction contemplating lease of trust property for 99 years-- It falls within provisions of Section 36 (1) (b)-Civil Court has no jurisdiction to sanction such development agreement and lease deed of trust lands - Charity Commissioner can grant such sanction.

       Thus, the development agreement and the proposed lease deeds are integral part of one transaction and either is incapable of implementation without the other. Thus, reading those two documents in their proper perspective, in substance they are one transaction contemplating lease of t he trust Property for 99 years and would squarely fall within the provisions of Section 36 (1) (b) of the Act. It is also to be noticed that in para 22 of the plaint, the plaintiffs (respondents herein) have averred that in the facts and circumstances mentioned above the trust is entitled to directions under Section 50 (1) of the Act for development and consequential alienation of the property by way of lease in terms of the draft agreement.

       On consideration of the provision of Section 36 and Section 50 of the Act, we are of the opinion that Section 36 or the Act as applicable to the State of Maharashtra is a complete Code by itself and though the order of the Charity Commissioner is not made expressly final, no appeal, or revision having been provided against any order passed by the Charity Commissioner under Section 36 of the Act, the same is in fact final and conclusive. Therefore, by virtue of the provisions of Section 80 of the Act, once the matter falls properly within the provisions of Section 36, the Civil Court will have no jurisdiction to deal and decide the subject-matter. It is also not possible to accept the submission of Mr. Desai for the respondents plaintiffs that power to sanction alienation in the matter of sale, exchange or gift of any immovable property or grant of lease is vested in both the authorities, viz. the Charity Commissioner under Section 36 of the Act and the Civil Court under Section 50 clause (iii) and sub-clauses (i) and (q). In the very nature of things, the Charity Commissioner is in a better position to scrutinise specific transactions consider all the terms and conditions, consider the interest, benefit and protection of the trust and he is also in a better position to invite tenders or offers, scrutinise the same and put necessary conditions as he my think fit to impose. He is an officer who is well conversant with problems of public trust. On the other hand, it is difficult to imagine the Civil Court under taking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the trust. The provisions of Sections 36 and 50 of the Act will have to be under stood and interpreted harmoniously in such a way as to see that none is rendered redundant and both become operative.

       Taking into consideration the various provisions of the Act make the Charity Commissioner as the main protector of the public trusts and the guardian custodian of the properties of the public trusts, court feels that the Charity Commissioner under the provisions of Section 36 bas the exclusive jurisdiction to deal with the matters provided there in. Clause (iii) or clause (i) and (q) of Section 50 will not give jurisdiction to the Civil Court to sanction sale, exchange or gift of any immovable property or lease for a period exceeding ten year in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building belonging to the public trust. The said jurisdiction exclusively vests with the Charity Commissioner. So far as sub-clause (i) of Section 50 is concerned, no doubt the same refers to a direction authorising the whole or any part of the trust property to be let, sold mortgaged or exchanged or in any manner alienated on such terms and Conditions as the court may deem necessary. However, in our opinion read in the context of other provisions of the Act in general and in the context of the provisions of Section 36 in particular, it must be held that the provisions of sub-clause (i) of Section 50 gives jurisdiction to the Civil Court only to authorise the trustees to alienate the trust property when either the instrument of trust prohibits the same/and/or does not authorise the trustees. Only in such cases the Civil Court can give directions authorising the trustees to alienate the trust property on such terms and conditions as the Court may deem necessary. However, after such authorisation, if the alienation is of the nature mentioned in Section 36 of the Act, for such each specific or particular transaction the sanction of the Charity Commissioner will be necessary. In this context, it cannot be forgotten that Section 36 is a special provision whereas Section 50 is general in nature. Hence, so far as specific transactions arc concerned, the special provision must prevail over the general provision it is well settled principle of interpretation that what is prohibited directly cannot be permitted to be achieved indirectly.

       BOMBAY PUBLIC TRUST RULES, 1961.

       Rule 24.

       See Bombay Public Trust Act, 1950, Sections 36, 50 (1), 51 and 80.