2005 Supreme(Bom) 1797

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.U. KAMDAR, J.
Bara Imam Masjid Trust & Ors. - Petitioners.
Vs.
The Charity Commissioner, Maharashtra State & Ors. - Respondent.
Writ Petition No.396S of 2005 WITH Writ Petition No.4151 of 2005
Decided on 21st December, 2005.
Advocates Appeared
Mr. R. D. SONI, for Petitioners.
Mr. RAMESH DUBE PATIL for Respondent no.7.
Mr. S. V. DHAKEPHALKAR, for Respondent No.30.
Mr. A. V. ANTURKAR for Mrs. VANITA V. BAKRE SHASTRI, for Respondent Nos. 13, 17, 18 & 21.
P. N. JODHI, for Respondent No.4.

Headnote:Judicial process - Hallmark of judicial process is openness and transparency. - One of the objectors before the Charity Commissioner, in proceedings under Section 36 of the Bombay Public Trusts Act, 1950, in place of attending the hearing of the matter and addressing the Court either by himself or through an advocate or pleader is sending telegrams to the Court as well as letters making false and wild allegations. The tendency which is displayed of sending telegrams and letters to the Judge in private without being appearing in Court is required to be deprecated. The hallmark of the judicial process is openness and transparency it requires that the matter should be thrashed out in the open Court and not by sending telegrams and letters to the Judge in Chamber and refusing to attend the matter in open Court. This kind of tendency must be stopped and necessary action must be initiated for making wild allegations by way of sending telegrams and letters to the Judge privately.

       Bombay Public Trusts Act, 1950 - Section 36 Sale of the Trust property Charity Commissioner cannot substitute the decision of the trust and go behind it. If the trust has taken the decision that they want to dispose the property and enhance their objects by fulfilling more and other objects of the trust then in that event it is neither in the jurisdiction of the Charity Commissioner nor of this Court to substitute the decision of the said trust and go behind it. Essentially it is the trustees who are supposed to determine how best they would and they can deal with the assets of the trust and that is for the benefits of the trust. The power conferred under Section 36(1) on the Charity Commissioner is to ascertain whether the property is sold in the interest of the trust and whether it is sold at the best price available to the trust. The Charity Commissioner cannot go into the validity of the decision whether the property should be rightly decided to be sold or not. The finding of fact whether it is in the interest of the trust or not to sell the property, the decision of the Charity Commissioner must be objective and based on material placed before him. The Charity Commissioner has only considered that it is not for a compelling need by holding that it seems that the trustees are interested in disposing of the property for their own personal benefits because they are likely to get a share of the said amount to themselves under the scheme which has been sanctioned by the Charity Commissioner. These are not the grounds on which the decision of the trustees to sell the property can be interfered with and/or set aside by the Charity Commissioner in exercise of jurisdiction under Section 36(1) of the Act.

       Bombay Public Trusts Act, 1950 - Sections 36 and 50-A(3) Immovable property of trust Alienation of Commissioner for Charities, whether entitled to frame amalgamate or modify schemes Scope for said provisions Both these provisions are independent and not overlapping, not violating each other Power exercised once under Section 50-A(3), the aggrieved person can only prefer can appeal against order of Charity Commissioner. The provisions of both the sections are independent and are not overlapping. The power of the Charity Commissioner to permit the petitioner to amend the scheme of the trust once exercised as far back as 1994 then in that event the person who is aggrieved by the said amendment of scheme can only prefer an appeal against the said order and the Charity Commissioner in a collateral proceedings under Section 36 of the said Act cannot re-examine the validity or otherwise of the order passed by other Commissioner of coordinate jurisdiction under Section 50-A of the said Act. The counsel for some of the objectioners has fairly conceded that the said reasons cannot be supported in law. Even otherwise also the Charity Commissioner has in impugned order exceeded his jurisdiction by going into the validity or otherwise of amended scheme. The said amendment to the scheme under Section 50-A was granted as far back as in 1994 and by virtue of no further challenge thereto has achieved a finality and thus the Charity Commissioner in Section 36(1) proceedings could not have examined the legality or validity of the order passed under the provisions of Section 50-A of the said Act. In that light of the matter, the aforesaid finding of the Charity Commissioner is without jurisdiction and cannot be sustained.

       Bombay Public Trusts Act, 1950 - Sections 36 and 50-A(3) Constitution of India, 1950, Article 226 Alienation of public property of public trust Power of Charity Commissioner, modifying schemes A decision regarding properties taken neither High Court, nor Charity Commissioner can go behind it Power under Section 36(1) is to ascertain whether property is sold in interest of Trust and whether it is sold at best price. If the trust has taken the decision that they want to dispose of the property and enhance their objects by fulfilling more and other objects of the trust then in that event it is neither in the jurisdiction of the Charity Commissioner nor of this Court to substitute the decision of the said trust and go behind it. Essentially it is the trustees who are supposed to determine how best they would and they can deal with the assets of the trust and that is for the benefits of the trust. The power conferred under Section 36(1) on the Charity Commissioner is to ascertain whether the property is sold in the interest of the trust and whether it is sold at the best price available to the trust. The Charity Commissioner cannot go into the validity of the decision whether the property should be rightly decided to be sold or not. The finding of fact whether it is in the interest of the trust or not to sell the property, the decision of the Charity Commissioner must be objective and based on material placed before him. The Charity Commissioner has only considered that it is not for a compelling need by holding that it seems that the trustees are interested in disposing of the property for their own personal benefits because they are likely to get a share of the said amount to themselves under the scheme which has been sanctioned by the Charity Commissioner. These are not the grounds on which the decision of the trustee to sell the property can be interfered with and/or set aside by the Charity Commissioner in exercise of jurisdiction under Section 36(1) of the said Act. Thus, the said finding of the Charity Commissioner cannot be sustained and the same is accordingly quashed and set aside.

       Bombay Public Trusts Act, 1950 - Sections 36 and 50-A Provisions of both the sections are independent and are not overlapping Charity Commissioner in proceedings under Section 36 cannot re-examine the validity or otherwise of the order passed under Section 50-A. Where amendment to the scheme under Section 50-A of the Bombay Public Trust Act was granted as far back as in 1994 and by virtue of no further challenge thereto has achieved a finality, the Charity Commissioner in a collateral proceedings under Section 36 cannot re-examine the validity or otherwise of the order passed by other Commissioner of co-ordinate jurisdiction under Section 50-A of the Act. The finding of the Charity Commissioner in proceedings under Section 36 that grant of an amendment to the scheme in 1994 by the Assistant Charity Commissioner was illegal is without jurisdiction and cannot be sustained.

       Administration of Justice - Tendency displayed of sending telegrams and letters to Judge totally in private That should have been done by appearing in Court Refusing value of Court system Such practice must be stopped and deprecated. The tendency which is displayed of sending telegrams and letters to the Judge in private without appearing in Court is required to be deprecated. The hallmark of the judicial process is openness and transparency, it requires that the matter should be thrashed out in the open Court and not by sending telegrams and letters to the Judge in Chamber and refusing to attend the matter in open Court. This kind of tendency must be stopped and necessary action must be initiated for making wild allegations by way of sending telegrams and letters to the Judge privately.