1. 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 4100.40sq. 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 respondents Nos.1 & 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:

âS7. Section 36 of the Act, which is relevant for the purpose of this petition reads as under:-

âSSec. 36 Alienation of immovable property of public trust.

[(1)] [Notwithstanding anything contained in the instrument of trust-]

(a) no sale, 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.]âý

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:-

âSRule 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) whether the instrument of