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2008 (2) GCD 1518 (Guj) (DB)
Hon’ble Mr. Justice M.S. Shah &
Hon’ble Mr. Justice Ravi R. Tripathi
Upendrabhai Shantilal Maniar [Bhavnagar]
Versus
Sheth Shri Morarjibhai Dhanjibhai Padiya & Anr.
Special Civil Application No. 4185 of 2008—Decided on 06/05/2008
Held :
Court find considerable substance in the submissions made on behalf of the respondent-trust about the present condition of the hostel building, present income of the trust, location of the land and the fact that the professional colleges like Medical, Homeopathic and Engineering Colleges are situated far away and that the present land is now surrounded by not only residential premises but also commercial premises and also considering the highest offer of Rs. 5.95 crores, the decision of the Charity Commissioner rejecting the petitioner’s objections cannot be said to be illegal. The Joint Charity Commissioner has taken into account all the relevant factors including the fact that out of 19 trustees, as many as 18 trustees have resolved to sell the property in question for achieving the objects of the trust more effectively. [Para 9]
As per the findings given by the Joint Charity Commissioner in the impugned order, the trust will be in a position to construct a hostel building at a place near the newly established professional colleges, i.e. colleges of Medicine, Homeopathic, Engineering, etc. and the trust will also be able to provide better facilities and amenities to the students. Court also recorded the statement being made by Mr. Soparkar, Counsel for the respondent trust that the trust will construct a building which can accommodate 100 students as against the capacity of the present building to accommodate only 40 students. Thus, the students of the community would certainly benefit.
[Para 17]
The Joint Charity Commissioner is yet to pass orders on the trustees’ application for sanction under section 36 of the Act, the Joint Charity Commissioner shall take the aforesaid observations into consideration while passing orders on the said application. [Para 18]
Petition Dismissed
M.S. Shah, J.—Leave to amend.
2. Sheth Shri Morarjibhai Dhanjibhai Padiya, Brahmakshatriya Boarding Trust, Respondent No. l herein runs a hostel for the students belonging to Brahmakshatriya community in the city of Bhavnagar, on Plot No. 2178, City Survey No. 2973, admeasuring 2780.875 sq. metres. The hostel building suffered severe damage on account of the earthquake on 26.01.2001, as a result of which out of 24 rooms, 4 rooms were so severely damaged that they had to be pulled down. The building required major repairs and renovations. The expenses were more than the income of the Trust. On 05.03.2007, out of 19 trustees, 18 resolved to sell the land with building so that from out of the funds generated upon such sale, the trust could construct a new hostel building at another place near the newly established professional colleges, like the colleges of Medicine, Homeopathic, Engineering, etc.
3. The trustees accordingly filed an application before the Joint Charity Commissioner, Rajkot seeking sanction to sell the above property under Section 36 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as “the Act”). The petitioner herein filed his objections on 01.02.2008 and also requested that his objections may be decided first before the application of the trustees for sanction is granted.
4. The Joint Charity Commissioner permitted the trustees to invite offers through a public advertisement published in leading newspapers. The offers were invited by 11.03.2008. The petitioner moved the present petition contending that until his objections were heard and decided, the Joint Charity Commissioner should not allow the trustees to proceed with the procedure of inviting tenders and considering the bids received for sale of 2780.875 sq. metres of land with building thereon. Since the Joint Charity Commissioner did not decide the application, the petitioner filed the present petition.
The thrust of the petitioner’s case in the present petition is that as per the decisions of this Court, the trustees cannot be allowed to sell its property in absence of any compelling necessity and that unless and until the Joint Charity Commissioner decides the petitioner’s objections and gives decision and thereafter the petitioner has an opportunity to challenge such decision before the appellate authority, viz. Gujarat Revenue Tribunal, under Section 36(3) of the said Act, and the Appellate Tribunal renders its decision, till then no steps should be taken in the process of consideration of tenders.
5. While issuing notice on 10.03.2008, we had made it clear that there was no stay against receiving tenders or opening tenders, but the respondents shall not take any final decision on the tenders received. It was, however, clarified that there was no stay against considering the objections received by the Joint Charity Commissioner. The Joint Charity Commissioner has accordingly considered the petitioner’s objections and rejected the same by the order dated 03.04.2008 which is challenged before us by amending the petition.
6. The petition has been opposed by the trustees on whose behalf affidavit in reply dated 21.03.2008 has been filed.
7. At hearing of this petition, Mr. Prashant G. Desai, learned Counsel for the petitioner has vehemently submitted that in the matter of Thakorebhai Gangaram vs. Ramanlal Maganlal Reshamwala, 1993 (1) GLH 473; and in Hasam Ibrahim Abdul Latif Supediwala vs. Bhaichand Pranlal Dhoneja & Others, 1999 (3) GLR 2296, two learned Single Judges of this Court have laid down in emphatic terms that before granting sanction under Section 36 of the said Act, the Charity Commissioner must be satisfied that there is a compelling necessity to justify the alienation in question. However, in the facts of this case, the respondents have not shown such a compelling necessity nor has the Joint Charity Commissioner given any such finding about the compelling necessity justifying the proposed alienation of the land with the host
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