Bombay High Court
Bharat Gunvantrai Shah And Ors vs Charity Commissioner And Ors on 19 July, 2017
Bench: K.K. Tated
47.7726.14-wp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7726 OF 2014
Bharat Gunvantrai Shah & Ors. ... Petitioners
V/s.
Charity Commissioner, Mumbai & Ors. ... Respondents
Mr. Uday Warunjikar i/b. Jitendra S. Shukla for the petitioners
Mr. A. D. Vatkar, AGP for respondent No.1.
Mr. Simil Purohit, Akash Lodha, Mr. Karan i/b. Wadia Ghandy & Co. for
respondent Nos.2 to 5.
Mr. V. C. Ghosalkar for respondent No.6.
CORAM: K.K. TATED, J.
DATED : JULY 19, 2017
JUDGMENT :
1. Heard the learned counsel for the parties. By consent of the
parties, the matter is taken up for final disposal at the stage of
admission itself.
2. By this petition under Article 226 and 227 of the Constitution of
India, the petitioner challenges the order and judgment dated
07.07.2011 passed by the Charity Commissioner, Maharashtra State,
Mumbai in application J-4/140/2010 u/s.36(1)(a) of the Maharashtra
Public Trusts Act, 1950 granting sanction in favour of the respondent
trust for sale of trust property i.e. land admeasuring 190.64 sq. mtr. (as
per the records maintained by Superintendent of Mumbai City Survey
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and Land Records) being CTS No.1222 of Fort Division, together with
building standing thereon known as "Kothari Mansion", consisting of
ground plus four floors situated at Mint Road, Opposite GPO, Fort,
Mumbai -400001 on "as is where is basis" to respondent No.6 for
consideration of Rs.1,05,00,000/- as per the terms and conditions
mentioned in the Memorandum of Understanding (MOU). In addition
to this amount, respondent No.6 had to clear the Trust liabilities
towards various statutory dues i.e. arrears of monthly taxes of
Rs.39,39,024/- arrears of repair cess of Rs.18,89,826/- reimbursement
of property tax of Rs. 6 lacs and penalty of late payment of property
taxes repair cess approximately Rs.25,50,000/- i.e. sum of
Rs.89,79,850/-. The total consideration was Rs.1,94,78,850/-. Lastly
the Charity Commissioner has also directed to complete the sale within
six months from the date of granting sanction. The Purchaser to bear
the expenses of transaction, right from registration of the stamp duty
and other ancillary expenses/fees.
3. Pursuant to the said sanction granted by the learned Charity
Commissioner, the Trust has executed deed of conveyance dated
28.12.2012 in favour of respondent No.6 and same was registered.
4. The Trust in question is registered as a public Charitable Trust
under the provisions of the Maharashtra Public Trust Act, 1950 being
registration No.A-1904 (Bom). The trust is governed by the High Court
decree passed in Suit No.3360/47 (scheme). The main object of the
Trust is to maintain the clinic or ward for Hindus suffering from
tuberculosis (TB) and pay expenses in respect thereof and for treatment
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with nominal fees or without fees or otherwise of all Hindus suffering
from TB either as indoor patients or outdoor patients or otherwise as
may be deemed fit by the Trustees. The Trustees have powers to sell
the property of the trust as per clause 20 of the High Court Decree in
Suit No.3360/2014 (scheme - Exhibit 17).
5. The said property was tenanted property and very old which was
constructed about at least 80 years ago. It was the contention of the
Trust in application u/s.36(1)(a) of the said Act that the Trust was not
fetching income except rent from the tenanted premises. Therefore, it
was not even difficult to maintain the property. The tenants of the
property were not paying rent regularly. So the trust was finding it
extremely difficult to manage and administer the said property. Not
only that the said property was required heavy repairs and that was not
possible for the Trust to do the same. Because of that the Trust's other
activities were affecting. Hence, the Trusts by resolution dated
15.04.2009 decided to sell the said property.
6. The Trust invited offers in respect of the said property. The
Trustees, with intention to get good offers, decided to invite the offers
by giving public notice in newspapers and accordingly they gave public
notice in two newspapers viz "Mumbai Samachar" (Gujarati) and "Free
Press Journal" (English) dated 17.04.2009. In response to the said
public notice no offer was received by the Trust. After expiry of the
time stipulated in public notice for submitting the offer respondent
No.6, by his letter dated 05.05.2009 offered to purchase the property.
The Trustees accepted the offer given by respondent No.6 by passing
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unanimous resolution to that effect on 05.08.2010.
7. For the purpose of sale, the Trustees had obtained a valuation
report from the Government approved valuer Anmol Sekhri Consultants
Pvt. Ltd. who assessed the valuation at Rs.1,03,74,151/- in August
2010 and Gore Associates, Consulting Architects, Surveyors and
registered valuer who assessed the property at Rs.1,94,32,464/- in May
2011.
8. During pendency of the application for sanction, respondent No.6
purchaser, by his letter dated 20.06.2011 agreed to revise his offer by
paying consideration amount of Rs.1.05 crores shown in the MOU. In
addition to this amount the respondent No.6 also agreed to discharge
the Trust liability of Rs.89,78,850/-.
9. The learned Charity Commissioner, considering the Trust'
application u/s.36(1)(a) of the said Act and Valuation Report submitted
by the Trust and public notice given by them and offer given by
Respondent No.6, granted sanction to sell the property to Respondent
No.6 by its judgment dated 07.07.2011.
10. Being aggrieved by the judgment dated 07.07.2011 passed by the
learned Charity Commissioner, Maharashtra State, Mumbai, the
petitioner filed the present writ petition under Article 226 and 227 of
the Constitution of India challenging the same on various grounds as
narrated in the writ petition.
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11. The main contention of the petitioner is that the Trust, without
following due process of law as required by the said Act, decided to sell
the suit property in favour of respondent No.6 by executing the MOU
dated 09.08.2010. The learned counsel for the petitioner submits that
as per the MOU the respondent Trust decided to dispose of the valuable
property of the Trust without calling offers from public at large. The
learned counsel for the petitioner submits that the area of the property
as per valuation report submitted by Anmol Sekhri Consultants Pvt.
Ltd. dated 11.08.2010 is as under:
"1. Land Area - 228 sq. yards, 2052 sq.ft. (As per Mumbai City
survey & land records)
A. Terrace covered with AC sheets, approx area - 1700 sq.ft.
B. 4th Floor area - 1891 sq.ft. carpet, 2175 sq.ft. built up
C. 3rd Floor area - 1891 sq.ft. carpet, 2175 sq.ft. built up
D. 2nd Floor area - 1891 sq.ft. carpet, 2175 sq.ft. built up
E. 1st Floor area - 1891 sq.ft. carpet, 2175 sq.ft. built up
F. Ground Floor - 1891 sq.ft. built up ground floor open area
occupies in front of restaurant - 360 sq.ft. built up
II Total area - 12579 sq.ft. built up (as per physical
measurement)"
12. The learned counsel for the petitioner submits that the land
area admeasuring about 228 sq.yard equivalent to 2052 sq.ft. having
built up area of 12579 situated in the heart of Mumbai City i.e. Fort,
the respondent Trust disposed of the same for meager amount i.e. only
Rs.1,94,78,850/-. He submits that the petitioners are ready and willing
to pay the said amount to the respondent trust. He submits that this is
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a loss to the Trust as well as public at large. Therefore, the sanction
accorded by the learned Charity Commissioner by impugned order
dated 07.07.2011 is required to be set aside.
13. The learned counsel for the petitioner submits that the learned
Charity Commissioner has failed to appreciate the fact that, when
initially the respondent Trust issued public notice calling offers from
public at large for sale of the property they failed to get any offer from
the public. He submits that the respondent Trust, on the basis of the
offer given by respondent No.6, entered into MOU privately and made
an application for sanction under section 36(1)(a) of the said Act. He
submits that the learned Charity Commissioner failed to give public
notice after making the application by respondent Trust on 14.09.2010
calling the offers from public at large. This is contrary to the law and
on this ground also the sanction accorded by the learned Charity
Commissioner in favour of the respondent No.6 is required to be set
aside.
14. The learned counsel for the petitioner submits that the learned
Charity Commissioner has failed to apply his mind to the facts and
circumstances of the case. He submits that respondent No.1 learned
Charity Commissioner failed to appreciate the applicable laws, more
particularly provisions of section 36(1)(a) of the said Act at the time of
passing the impugned order dated 07.07.2011. He submits that the
respondent No.1 ought not to have granted sanction since the
precondition for the same as found in section 36 of the said Act was not
satisfied by respondent Nos.2 to 5, the Trust and Trustees thereof.
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15. The learned counsel for the petitioner submits that respondent
No.1 failed to appreciate that the alleged MOU dated 09.08.2010 was
void-ab-initio and same was beyond the powers of respondent Nos.3 to
5 and hence, there is no question of granting any sanction in favour of
them to sell the said property to respondent No.6. He submits that the
alleged MOU dated 09.08.2010 was nothing but sham, bogus and
deceptive and fraudulent act jointly done by respondent Nos.3 to 5 on
the one hand and respondent No.6 on the other. He submits that the
respondent No.1 has failed to appreciate that there was neither any
occasion nor any need for respondent Nos.3 to 5 to enter into MOU.
16. The learned counsel for the petitioner submits that they learnt
about the transaction between respondent Trust and respondent No.6
purchaser in the year 2014 when respondent No.6 filed suit against
them for eviction and executed decree. He submits that as soon as they
learnt about the sale of property in the year 2014, they filed the present
Writ Petition. He submits that respondent No.6 obtained exparte decree
in RAE & R Suit No.591/951/2012 on 19.04.2014 and executed the
same and thereafter they immediately filed the Writ Petition on
29.07.2014. Therefore, there is no question of laches and/or delay on
their part to file the Writ Petition. He submits that the petitioner was
tenant of 1st and 3rd floor of the said property for last several years.
17. The learned counsel for the petitioner submits that bare reading
of the impugned judgment dated 07.07.2011 passed by the learned
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Charity Commissioner shows that he failed and neglected to consider
interest, benefit and protection of the Trust at the time of according
sanction u/s.36(1)(a) of the said Act. He submits that if the sanction is
granted by the learned Charity Commissioner without considering the
interest of the Trust and allowed them to sell the property at a meager
price than the market rate, same order is required to be set aside. In
support of this contention, he relies on the Full Bench Judgment of this
court in the matter of Sailesh Developers & Ors. Vs. Joint Charity
Commissioner, Maharashtra 2007(3) BCR 7. He relies on para 29
and 30 of the said judgment which read thus
"29. While exercising power either under clause (b) or clause
(c), the Charity Commissioner can impose conditions having
regard to the interest, benefit or protection of the trust. Before
passing an order of sanction or authorisation, the Charity
Commissioner has to be satisfied that the trust property is
required to be alienated. Once the Charity Commissioner is
satisfied that the alienation of the trust property is necessary in
the interest of the trust or for the benefit of the trust or for the
protection of the trust, it is very difficult to accept the submission
that the power of the Charity Commissioner is restricted either to
grant sanction to a particular proposal of the trustees or to reject
it. It is the duty of the Charity Commissioner to ensure that the
transaction of alienation is beneficial to the trust and its
beneficiaries. He has to ensure that the property is alienated to a
purchaser or buyer whose offer is the best in all respects. It is not
necessary in every case that the Charity Commissioner has to
ensure that property is sold by the trustees to the person offering
highest price or consideration. What is the best offer in the
interest of the trust will again depend on facts and circumstances
of each case. In a given case, while alienating the trust property,
the trustees may provide that as a part of consideration for
alienation, the purchaser should construct a building on a part of
the trust property for the use by the trustees for the objects of the
trust. In such a case, it may be necessary to ascertain the
reputation and capacity of the purchaser apart from the
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consideration offered. When the Charity Commissioner is
satisfied that trust property needs to be alienated and when he
finds that the offer received by the trustees may not be the best
offer, he can always direct that bids be invited by a public notice.
When a better offer is received in public bidding or auction, it is
very difficult to say that the power of the Charity Commissioner
is restricted and he cannot enjoin the trustees to sell or transfer
the trust property to a third party who has given an offer which is
the best in the interest of the trust. The Trustees approach the
Charity Commissioner only when they are satisfied that there is a
necessity to alienate the trust property. The trustees hold the
property for the benefit of the beneficiaries and therefore once
they express desire to alienate the property, it is obvious that
Charity Commissioner can always impose condition while
granting sanction that the property shall be sold or transferred to
a person who has come with an offer
which is the best offer in the interests of the trust. The Section gives
a power to the Charity Commissioner to impose conditions and the
said conditions will include a requirement of selling or transferring
or alienating the trust property to a purchaser who has offered the
best deal having regard to the interest and benefit of the
beneficiaries and the protection of the trust. The power to impose
conditions cannot be a limited power when the law requires the
Charity Commissioner to exercise the said power having regard to
the interest, benefit and protection of the trust. Once the Charity
Commissioner accepts the necessity of alienating the trust property,
the trustees cannot insist that the property should be sold only to a
person of their choice though the offer given by the person may not
be the best offer. The property may be vesting in the trustees but the
vesting is for the benefit of the beneficiaries. The Charity
Commissioner has jurisdiction to ensure that the property is sold or
transferred in such a manner that the maximum benefits are
available to the beneficiaries of the Trust. Under Clause (b) of
Section 36 of the said Act, the Charity Commissioner has
jurisdiction to decide whether it is in the interest of the trust that
the property of the trust be sold or transferred. Once the learned
Charity Commissioner is satisfied that the property is required to be
transferred or sold in the interest of the Trust, the learned Charity
Commissioner cannot remain silent spectator when he finds that
the transaction proposed by the Trustees is not in the interest of the
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Trust or its beneficiaries. Once the necessity of sale or transfer is
established, the Charity Commissioner can certainly ensure that
best available offer is accepted, so that the transaction is for the
benefit of the trust. If the trustees were to be the final authority to
judge what is in the interest of the Trust, the legislature would not
have enacted provision requiring prior sanction. While deciding
which is the best offer, the learned Charity Commissioner is bound
to take into consideration various factors which cannot be
exhaustively listed. However, the paramount consideration is the
interest, benefit and protection of the trust. It is obvious from the
scheme of Section 36 that legislature never intended that trustees
could sell or transfer the trust property vesting in them as if it was
their personal property. It is the duty of Charity Commissioner to
ensure that the property should be alienated in such a manner that
maximum benefits are accrued to the trust. The Charity
Commissioner while considering an application under Section
36(1) of the said Act of 1950, in a given case can opt for public
auction or can invite bids. . Thus narrow interpretation sought to
be given to the power of Charity Commissioner under clauses (a)
and (b) of Sub Section 1 of Section 36 cannot be accepted. Thus the
view taken in the case of A.R. Khan Construwell and Co. (supra) is
the correct view. The case of Arunodaya Prefab is not correctly
decided.
30) The second question referred to the Full Bench for decision is
regarding locus standi of a person who appears before the Charity
Commissioner and offers his bid to challenge the order passed by
the Charity Commissioner. The trustees and persons having an
interest in the Trust can always challenge the order. We have
already held that the proceeding under Section 36 of the said Act
before the learned Charity Commissioner is a judicial proceeding.
The Apex Court has held that a trust property is on par with a
public property so far as its sale or transfer is concerned. It is,
therefore, very difficult to say that such a person who appears
before the Charity Commissioner and offers his bid has no locus
standi to challenge the final order passed by the Charity
Commissioner. Such a person will certainly have locus standi to file
the petition under Articles 226 and 227 of The Constitution of
India for challenging the final order passed under Section 36 of the
said Act. However, the scope of challenge will be naturally limited.
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Such a person will be in a position of a bidder challenging the
auction or tender process of sale of a public property. The challenge
by such a person to the order will be limited to the decision making
process of the Charity Commissioner. In the case of A.R. Khan
Construwell the Division Bench has rightly held that after the
decision in the case of Arunodaya Prefab, the concept of locus
standi has been expanded."
18. On the basis of the abovementioned facts and the law declared
by this court in the aforesaid judgment, the learned counsel for the
petitioner submits that this is a fit case where the impugned order
passed by the learned Charity Commissioner dated 07.07.2011 on
respondent Trust's application u/s.36(1)(a) of the said Act is required
to be set aside.
19. On the other hand, the learned counsel for respondent Trust
vehemently opposed the Writ Petition. He submits that, after
considering the evidence on record and valuation reports of the
Government approved valuers and the offer given by respondent No.6
which was in the interest of the Trust, the learned Charity
Commissioner passed the impugned order and accorded sanction for
their transaction. Therefore, there is no question of allowing the Writ
Petition by setting aside the impugned order. He submits that in any
case, the petitioner has filed the Writ Petition in the year 2014 i.e. after
more than three years when the transaction was completed between
the Trust and respondent No.6. Even on the ground of laches on the
part of the petitioner this is a fit case to reject the same with costs.
20. The learned counsel for respondent No.6 vehemently opposed
the Writ Petition. He submits that the Writ Petition as it is filed by the
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petitioner is not maintainable in law. He submits that as per the
sanction granted by the learned Charity Commissioner by the
impugned order, the respondent Trust executed the Deed of
Conveyance dated 20.12.2011 in his favour. He submits that the said
conveyance was duly registered. He submits that the learned Charity
Commissioner, at the time of considering the proposal given by
respondent No.6 to purchase the suit property, considered the market
value on the basis of two valuation reports of the Government
approved registered valuers. He submits that the respondent No.6, in
fact, purchased the said property for Rs.1,94,78,850/-. He submits that
though the valuation of the suit property was made at Rs.1.5 crores,
the respondent No.6 accepted the respondent Trust's liability to the
extent of Rs.89,78,850/- towards the arrears of municipal taxes, repair
cess etc. He submits that if both the valuation reports submitted by the
valuer is compared, then in that case it is crystal clear that the
respondent No.6 has paid much more price to the respondent Trust.
Considering these facts, the learned Charity Commissioner has
permitted the respondent Trust to sell the said property to respondent
No.6.
21. The learned counsel for respondent No.6 submits that the
petitioner was tenant in respect of 1 st and 3rd floor of the said property.
He submits that as soon as the conveyance dated 20.12.2011 was
executed in favour of respondent No.6, he issued letter dated
07.01.2012 to the petitioner calling upon him to pay the arrears of
rent, assessment taxes and repair cess in respect of the said property.
Said letter was duly served on the petitioner on 09.01.2012. They
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acknowledged the same by putting their stamp. Therefore, the
statement made by the petitioner on solemn affirmation in the Writ
Petition that they learnt about the transaction between the respondent
Trust and respondent No.6 in the year 2014 is incorrect. He submits
that the petitioner, in para 13 of the Writ Petition submits that they
learnt about the transaction between respondent No.6 and the
respondent Trust when the decree dated 19.04.2014 was executed and
the petitioner was dispossessed from the tenanted premises. Paragraph
13 of the Writ Petition reads thus
"13. The petitioners states that there is no delay in filing the
present petition. The petitioners have learnt about the impugned
sanction accorded by the respondent No.1 in favour of the
respondent No.2 and the consequent conveyance executed by the
respondent Nos.2 to 5 in favour of respondent No.6 only upon the
execution of the aforesaid Ex-parte decree on 19.04.2014.
Therefore, this petition filed today is in time. The petition under
Articles 226 and 227 of the Constitution of India is the only remedy
which is effective and efficacious. In the event, the reliefs prayed
therein, are granted the same will be effective and complete and this
petition is the only efficacious remedy."
22. The learned counsel for respondent No.6 submits that bare
reading of the letter dated 07.01.2012 duly served on the petitioner
and para 13 of the petition shows that the petitioner, with mala fide
intention made incorrect statement on solemn affirmation to gain
favourable orders in their favour. For making incorrect statement, the
Writ Petition is liable to be dismissed summarily with costs.
23. The learned counsel for the respondent No.6 submits that
pursuant to the decree passed by the Small Causes Court, Mumbai in
RAE & R Suit No.591/951/2012, as on today, the petitioner is not a
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tenant of the suit property i.e. Kothari Mansion. He submits that in any
case as soon as the impugned order was passed by the learned Charity
Commissioner on 07.07.2011, the respondent Trust, after following
due process of law, executed a registered conveyance deed dated
20.12.2011 in favour of respondent No.6. He submits that the said
conveyance deed is not challenged by the petitioner by following due
process of law. He submits that in view of conveyance dated
20.12.2011 in favour of respondent No.6 nothing survives in the Writ
Petition, because as on today, the respondent Trust is not owner of the
suit property. In support of his contention, the learned counsel for
respondent No.6 relies on the Division Bench judgment of this court in
the matter of Sam Sarosb Bhacca Vs. P. V. Kakade, Joint Charity
Commissioner, LAWS (Bom)-1993-2-105. He relies on para 3 of the
said judgment, which reads thus:
"3. In the case of Shri Mahadeo Deosthan Wadali, a question
arose as to whether the Charity Commissioner can under Section
36 (2)of the said Act, revoke the sanction given to a public trust for
alienation of its immoveable property by a sale deed, after the sale
deed is executed pursuant to the sanction granted under Section 36
(1) of the said Act and the property alienated by the trust no longer
retains the character of property as that of a public trust. In that
case, an application for obtaining sanction for transfer of 10 acres
of land belonging to Shri Mahedeo deosthan Wadali, a registered
public trust was made to the Joint Charity commissioner under
Section 36 (1) of the said Act. The Joint Charity commissioner,
after making necessary enquiries, had granted sanction, the trust
executed a registered sale deed in respect of the property in favour
of the purchaser thereof and poosession of the property was given to
the purchaser. The entire transaction was completed. Thereafter
an application under section 36 (2) of the said Act for revoking the
sanction already granted was filed by a trustee along with other
persons on the ground that while obtaining sanction, the other
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trustees had grossly undervalued the property by Suppressing
material fact. The questions about maintainability of the
application under Section 36 (2) of the said act and jurisdiction of
the Joint Charity Commissioner to revoke the sanction after the sale
deed was executed exhausting the sanction already granted
were raised. The Joint Charity Commissioner was of the view that
the application for revocation was maintainable despite the earlier
execution of the sale deed. On merits, the Joint Charity
Commissioner came to the conclusion that the earlier sanction was
obtained by the concealment of material facts and revoked the
sanction. The Order of the Joint Charity Commissioner was
challenged by the trust and the trustees other than one who had
applied for revocation of the sanction in the Writ Petition before the
Division Bench of this Court, the Division bench held that if in
pursuant to the sanction, a sale deed is executed, the property
would be divested of the character as a trust property and interest
would be created in the purchaser who may not get an opportunity
to show why the sanction should not be revoked. A property may
change hands several times and if a sanction granted in respect of a
trust property could be revoked at any time even after successive
sale deeds and even after it changes its character as the trust
property, a chaotic condition is likely to be created. It has been
further held by the division Bench that a sanction, therefore, has to
be granted to alienate the trust property and has to be revoked only
for the trust property i.e. while the property retains the character as
the trust property and not after the public trust is divested of that
property and interest in such property is created in persons on than
the trustees. The Division Bench has also held that the power of
revocation in the inter of harmony, has to be exercised only when
the sanction remains alive and does not get itself merged in the sale
deed and the power granted to the Joint charity Commission under
Section 36 (2) of the said Act cannot be invoked by the Joint
Charity Commissioner to revoke a sanction granted under Section
36 (1) of the said Act, after the sanction
merges itself into a sale deed and the property loses the character as
that of a trust property. The Division Bench allowed the said Writ
Petition and the orders passed by the Joint Charity Commissioner
under Section 36 (2) of the said Act were quashed and set aside as
being without jurisdiction.
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On 6th November, 1989, while relying upon the judgment of
the division Bench of this Court in the case of Shri Mehadeo
Deosthan, Wadali, the 1st Respondent held that the ratio laid
therein applied to the facts involved in the present case and
further held that he had no jurisdiction to entertain and
decide the said application of the petitioners under Section
36 (2) of the said Act. The present Petition is filed to
challenge the said Order of the 1st Respondent."
24. In this authority, the Division Bench of this court held that if
entire transaction is completed, then the application u/s.36(1)(a) of
the said Act for revocation of sanction to sell the Trust property is not
maintainable. On the basis of these submissions and the law declared
by this court in the matter of Sam Sarosb Bhacca (supra), the learned
counsel for respondent No.6 submits that the petition itself is not
maintainable in law. He submits that in any case, considering the facts
and circumstances of the present case that the learned Charity
Commissioner, after considering the valuation report, application dated
14.09.2010 made by the Trust in which the Trust has specifically stated
that it is not possible for them to maintain suit property because of
meager income from the tenants, there is no substance in the Writ
Petition and it is liable to be dismissed with costs.
25. Heard both sides at length. The point involved in the present
Writ Petition is whether the impugned order dated 07.07.2011 passed
by the learned Charity Commissioner, Maharashtra State, Mumbai on
application made by the respondent Trust u/s. 36(1)(a) of the said Act
is required to be set aside.
26. It is to be noted that respondent Nos. 2 to 5, in their application
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u/s.36(1)(a) of the Act specifically stated that it is very difficult for
them to maintain the old building. They also stated that they were
getting meager income by way of rent from the Trustees. Paragraph 6
of the said application reads thus:
"6. Compelling Necessity to alienate the property :
a. The building is very old and was constructed about atleast 80
years ago. The building has already completed its useful life. The
proeprty is becoming more and more burdensome to the said Trust
with each day passing by due to the reasons like (a) the property
fetching no income or profit tot he said Trust, (b) the property
being in dilapidated condition requiring heavy repairs © the said
Trust as being public trust not earning anything from the property
except the rent from the tenanted premises therein which is not
even sufficient to maintain the property (d) there being no
tenement occupied by the said trust itself in the property (f) there
being no tenements which are vacant and being capable of being
occupied by the said trust itself in the property (g) various
unauthorised occupants occupying the tenements in the property
not paying any rent for the same, and (h) the holding of the
property by the said trust not resulting into achivevement of any of
its objects.
b. Considering the aforesaid facts and position the said trustees
are of the view to sell the property and utilize the amount of sale
proceeds for carrying out the objects of the Trust more effectively
and efficiently."
27. This itself shows that it was very difficult for the Trust to
maintain the suit property and that was affecting their aims and objects
for want of funds.
28. It is to be noted that before selling the suit property, respondent
Nos.2 to 5 Trust had issued public notice in two news papers calling
offers from the public at large. They have not received any response
Basavraj G Patil 17/19
47.7726.14-wp
pursuant to the said public notice. Thereafter respondent No.6 gave his
offer to purchase the suit property for Rs.1,05,00,000/-. During the
course of discussion the respondent No.6 agreed to accept the
respondent Trust's other liabilities also to the extent of Rs.89,78,850/-.
The learned Charity Commissioner, after considering the valuation
report, financial position of respondent No.2 Trust and offer given by
respondent No.6, passed the impugned order. Moreover, after passing
the impugned judgment dated 07.07.2011, the respondent Trust
executed registered deed of conveyance in favour of respondent No.6
on 20.12.2011. As soon as the conveyance was registered in favour of
respondent No.6, the respondent No.6 issued notice dated 07.01.2012
to the petitioner for arrears of rent, assessment tax and repair cess. In
spite of having knowledge about the transaction between respondent
Trust and respondent No.6, the petitioner filed the Writ Petition on
29.07.2014 i.e. after more than two years.
29. Bare reading of reply filed by respondent No.6 dated 30.09.2014
shows that the petitioner has filed the Writ Petition just to protect his
tenancy in respect of 1st and 3rd floor in the suit property. The
respondent No.6 filed the said suit which was decreed by the Small
Causes court on 19.04.2014. Thereafter the said decree was executed
by respondent No.6 and vacated the petitioner by due process of law.
Because of these events, it seems that the petitioner has filed the Writ
Petition to pressurize the respondent Trust and respondent No.6.
30. The authority cited by the petitioner in the matter of Sailesh
Developers (supra)is not applicable in the facts and circumstances of
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47.7726.14-wp
the case. In the case in hand, the learned Charity Commissioner, after
considering two valuation reports and the application made by the
respondent Trust showing their difficulties in maintaining the suit
property, passed the impugned order. Apart from that pursuant to the
order dated 07.07.2011 passed by the learned Charity Commissioner,
the respondent Trust executed registered conveyance dated 20.12.2011
in favour of respondent No.6.
31. Hence, on the basis of these facts, as well as in view of the
Division Bench judgment of this court in the matter Sam Sarosb Bhacca
(supra), I do not find any substance in the Writ Petition. Hence, the
Writ Petition stands rejected.
(K.K. TATED, J.)
Basavraj G Patil 19/19
