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2008 (3) GCD 1958 (Guj)
Hon’ble Mr. Justice Jayant Patel
Ramdev Developers Thr’ Partner-Kishor. G. Vavia
Versus
Jt. Charity Commissioner & Ors.
Special Civil Application No. 11542—Decided on 07/05/2008
Bombay Public Trusts Act—Section 36 — Rules 24, 24(2) to (4) — Disposal of land—Permission—No inquiry about necessity to sell—And intention to put money in fixed deposit—Permission set aside—Sustainability—Finding of—Tribunal by it’s order set aside the permission granted by Charity Commissioner without making proper examination of necessity to sell the land and finding that the intention was to deposit amount so released in fixed deposit—Court observed that impugned order of Tribunal is not improper or illegal—Necessity to sell is one of the germane consideration for grant of permission to sell—On the basis of material produced before Charity Commissioner it cannot be said this power to grant permission was properly exercised—The Tribunal order of setting aside the order passed by Charity Commissioner cannot be said to be perverse—The Tribunal has additionally considered the aspects of vesting of the land into the trust or with the Gram Panchayat—Matter in this regard is pending before the District Collector—Court cannot, therefore, record any conclusion—The Court leaving matter open for decision by Collector—Court held that petition is meritless.
Held :
In the order of the Charity Commissioner, there is no examination whatsoever on the aspects of compelling necessity on the part of the Trust to sell the land. The Tribunal, therefore, has rightly observed that there is no compelling necessity for the Trust to sell the land. In any case, on the basis of the material produced on the record before the Charity Commissioner and before the Tribunal in Appeal, it can be said that the aspects of necessity which is one of the germane consideration while, exercising the power under Section 36 of the Act is not satisfied. [Para 4]
The Tribunal has additionally considered the aspects of vesting of the land into the Trust or with the Gram Panchayat. It has been submitted by the learned Counsel for the petitioner as well as the Trust that the matter is pending before the District Collector. Therefore, Court finds that it would not be necessary for this Court to record any conclusion on the said aspects leaving the said aspects open to be considered by the competent authority in accordance with law. [Para 8]
Law Laid Down :
The power of the trustees to alienate the property of charitable trust was analogues to that of a Manage of an infant.
Case Law Analysis :
5 Navtanpuri Dham-Khijda Mandir Trust & Ors. vs. Anilbhai Bhagwanji Jobanputra & Ors., Special Civil Application No. 1009 of 2008, decided on 21.04.2008 [Para 3];; Sridhar Suar and Another vs. Shri Jagan Math Temple and Others, AIR 1976 SC 1860 [Para 3];; Hamumiya Bachumiya and Ors. vs. Mehdihusen Gulamhusen & Ors., 1978 GLR 661 [Para 3];; Hanooman Prasad vs. Mt. Babootee, 1856 (6) Moors IA 393 PC [Para 3];; Hasam Ibrahim Abdui Latiff Supediwala vs. Bhaichand Pranlal Dhoneja & Ore., 1999 (1) GLH 854 [Para 3];; Thakorebhai Gangaram vs. Ramanlal Maganlal Reshamwala, 1993 (1) GLH 473 [Para 3].
Petition Dismissed
Jayant Patel, J.—The short facts of the case appears to be that the Respondent No. 2 is a charitable trust who is holding the land bearing Survey No. 319, which was earlier admeasuring 2 Acre 4 Guntha but now given Final Plot No. 14 admeasuring 6834 sq. mtrs. situated at Town Planning Scheme No. 3, Katargam at Surat. The Respondent No. 2 Trust filed an application dated 26.06.2002 under Section 36 of the Bombay Public Trusts Act for sale of 60% of the land admeasuring 4100.40 sq. mtrs. The said application was submitted before the Charity Commissioner. It appears that the paper advertisements were given and offers were invited. Ultimately, the Charity Commissioner vide order dated 07.01.2004, granted permission to the Respondent No. 2 Trust for disposal of the land by accepting the offer of the petitioner for the sale consideration of Rs. 2,71,00,000/-. The Respondent No. 4 claiming as the benefeciary of the Trust preferred appeal before the Tribunal being Appeal No. 13/04. The Tribunal after hearing both the sides, found that whether the land vest to the Trust or to the Panchayat is not clear and it also found that there is no proper examination by the Charity Commissioner on the aspects of necessity to sell the land. It was also observed by the Tribunal that the intention appears to be of earning income by depositing the amount in the fixed deposit. Therefore, ultimately the Tribunal set aside the order passed by the Charity Commissioner. The Trust has not preferred the petition before this Court, but the petitioner who is one of the offerer whose offer was accepted, has preferred the present petition for challenging the order passed by the Tribunal. Hence, the present petition.
2. Heard Mr. Panchal, learned Counsel for the petitioner, Ms. Patel, learned AGP for Respondent Nos. l & 3 and Mr. Kharadi for Respondent No. 2 Trust and Mr. Shah for Respondent No. 4.
3. The first aspect on the basis of which the Tribunal exercised the power could be said as pertaining to the necessity to sell the land. This Court in Special Civil Application No. 1009 of 2008 & allied matters in the matter of 5 Navtanpuri Dham-Khijda Mandir Trust & Ors. vs Anilbhai Bhagwanji Jobanputra & Ors., decided on 21.04.2008 had an occasion to consider the indispensable requirement on the part of the Charity Commissioner to examine the aspects of necessity and then only to permit the Trustees to sell the property, it was observed by this Court at Paras 7 to 18 as under:
“7. Section 36 of the Act, which is relevant for the purpose of this petition reads as under:—
“Section 36 Alienation of immovable property of public trust.
[(1)] [Notwithstanding anything contained in the instrument of trust—]
(a) no safe, mortgage, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years 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 a public trust, shall be valid without the previous sanction of the Charity Commissioner.
[(2) The decision of the Charity Commissioner under Sub-section (1) shall be communicated to the trustees and shall be published in such manner as may be prescribed.
(3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication.
(4) Such decision shall, subject to the provisions of Sub-section (3), be final.]”
8. As such on the plain language of Section 36 of the Act, it is apparent that it is having over-riding effect upon the instrument of the Trust. The section does not speak for the circumstances under which the Charity Commissioner may grant sanction to the Trust for sale of the immovable property. Rule 24, which is also relevant for the purpose of this petition reads as under:—
“Rule 24. Application under Section 36 of sanction of alienations-
(1) Every application for sanction of an alienation shall contain information inter alia on the following points:
(i)
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