Bombay High Court

A.H. Wadia Trust And 4 Ors vs Charity Commissioner on 9 October, 2024

Author: Abhay Ahuja

Bench: Abhay Ahuja

2024:BHC-OS:16107


                                                                    1-Originating Summons-1-2022.doc


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     ORDINARY ORIGINAL CIVIL JURISDICTION

                                            ORIGINATING SUMMONS NO. 1 OF 2022

                    1. A. H. WADIA TRUST                              )
                       A Public Chartiable Trust, registered under,   )
                       the Bombay Public Trust Act, 1950, under       )
                       Registration No : PTR. No. E-470 (Bom)         )
                       Having its office at :                         )
                       70, Dr.V.B. Gandhi Marg, Mumbai 400023         )
                                                                      )
                    2. JEHANGIR ADI WADIA                             )
                                                                      )
                    3. MUNCHERJI NUSSERWANJI MUNCHERJI                )
                       CAMA                                           )
                                                                      )
                    4. ADIL JEHANGIR WADIA                            )
                                                                      )
                    5. SHEROO JEHANGIR WADIA                          )
                       Plaintiffs No. 2 to 4, all Adults, of Mumbai, )
                       Indian Inhabitants, being the present Trustees )
                       of the Plaintiff No.1. A. H. Wadia Trustees )
                       Having their office at :                       )
                       70, Dr. V.B. Gandhi Marg, Mumbai 400 023. )... PLAINTIFFS
                                     VS.
                    THE CHARITY COMMISSIONER                               )
                    Office of the Charity Commissioner                     )
                    Maharashtra State, Mumbai,                             )
                    3rd Floor, 83 Annie Besant Road                        )
                    Worli, Mumbai 4000 018.                                )...DEFENDANT


                    Mr.Pankaj Sawant Senior Advocate a/w Mr. Chaitanya Chavan, Mr.
                    Manish Acharya, Mr. Amit Joshi i/b L R & Associates, Advocates for the
                    Plaintiffs.
                    Mr. Mohit Jadhav, Additional Government Pleader for the State of
                    Maharashtra.



                    avk/nikita gadgil/ksg                                                      1/28




                ::: Uploaded on - 11/10/2024                      ::: Downloaded on - 11/10/2024 23:33:08 :::
                                                 1-Originating Summons-1-2022.doc


                               CORAM    :     ABHAY AHUJA, J.
                        RESERVED ON     :     14th AUGUST 2024
                     PRONOUNCED ON      :     9th OCTOBER 2024

 JUDGMENT :

1. When the matter is called out, none is present for the parties.

However, since this matter has been listed for pronouncement, the

order is being pronounced.

2. By this Originating Summons, the Plaintiffs No. 2 to 5 as the

trustees of the Plaintiff Trust seek the opinion of this Court on a

question regarding management of the Plaintiffs' property and have

inter alia raised the following questions:

a) Whether the Defendant can be directed to dispose of

expeditiously the Plaintiff Trust's application under Section 36 of the

Trust Act seeking sanction of Defendant for selling/alienating the

Plaintiff Trust's land covered under the said notices and public notice in

favour of the Purchaser on an as is where is basis ?

b) Whether the Trustees of the Plaintiff Trust are empowered to

undertake any development activities on its land covered under the

said notices and the public notice by executing Slum Rehabilitation

Scheme in accordance with the Slum Act and the said notices ?

1-Originating Summons-1-2022.doc

c) If yes, since the Plaintiff Trust lacks requisite experience, skills

and competence in developing property by demolishing slums,

constructing building and providing infrastructure can it collaborate

with a partner/joint venture collaborator possessing necessary

competence, skills and experience in the field of development and

construction for executing Slum Rehabilitation Scheme on the Plaintiffs'

lands covered under the said notices and the public notice in

accordance with the Slum Act?

3. Plaintiff No.1 is a Public Trust (the "Plaintiff Trust") registered,

under the provisions of the Maharashtra Public Trusts Act, 1950

(earlier known as the Bombay Public Trusts Act, 1950) (the "Public

Trusts Act"). Plaintiffs No. 2 to 5 are the Trustees of Plaintiff Trust. It

has been submitted that the Plaintiffs are the owners of vast lands (the

'Plaintiffs' lands') situate and lying in different places in Mumbai.

4. Mr. Sawant, learned Senior Counsel appearing for the Plaintiff

Trust has submitted that the Plaintiff Trust is constituted pursuant to

directions contained in the last Will and Testament (the "said Will")

dated 9th May 1882 of one Ardeseer Hormarjee Wadia (the "said

Testator") by which inter alia an obligation was cast on the Plaintiff

1-Originating Summons-1-2022.doc

Trust to undertake charitable activities as enunciated thereunder for

betterment of the weaker and needy strata of the society. That this

Court granted probate of the said Will on 23 rd February, 1883. It has

been submitted that the said Will not only acts as an instrument of

incorporation of the Plaintiff Trust but also determines the object and

scope of the Plaintiff Trust such that all the policy decisions of the

Plaintiff Trust are required to be in consonance with the clauses of the

said Will determining the functioning and manner of administration

and management thereof.

5. The said Testator through the said Will distributed various

immovable assets and properties to his legal heirs in the manner

provided therein and directed the Trust to be formed in accordance

with the said Will in order to apply the income of the said Testator's

residuary estate to charitable purposes and to undertake the following

charitable activities:

I. Establishment of dispensaries and sinking and building and repairing of wells II. Giving aid from time to time to the poor, deserving, needy sections of society by undertaking such works of charitable nature in such parts of town ad island of Bombay.

1-Originating Summons-1-2022.doc

III. Utilize any sum or sums out of corpus of the residuary estate of the said Testator for aforementioned charitable purposes.

6. It has been submitted that the Plaintiff Trust in accordance with

the said Will has been carrying out philanthropies for more than a

century. That in accordance with the provisions of the said Will the

Plaintiff Trust disburses a large portion of its income towards providing

medical and educational aid to the weaker sections of society

irrespective of caste, creed and locality. That, the Plaintiffs, in

accordance with the objects of the Plaintiff Trust, provide financial

assistance to needy individuals as also to institutions, which inter alia,

include the Indian Cancer Society, Indian Red Cross Society, K.E.M.

Hospital Pune, Bharatiya Vidya Bhavan, David Sassoon Library and

Reading Room and the K.R. Cama Oriental Institute. The details of the

Medical and Education Aid provided by the Plaintiff Trust in the last

five years has been submitted as under:

Year Total In Rupees Spent By the Plaintiff Trust On Charitable Activities 2011 Rs.3,37,49,964/-

                 2012                       Rs.4,07,41,195/-
                 2013                       Rs.5,93,99,906/-
                 2014                       Rs.7,41,64,329/-
                 2015                      Rs.12,12,66,425/-








                                                   1-Originating Summons-1-2022.doc

7. Mr. Sawant, learned Senior Counsel would submit that as can be

seen, in order to carry their duties as Trustees, the Plaintiffs herein

have to spent large amounts of money / funds and in order to generate

revenue for supporting its charitable activities, the Plaintiff Trust, to a

certain extent depends on funds generated from sale of its lands. The

Plaintiff Trust sells its lands that either are not generating any revenue

to the Plaintiff Trust or are completely encroached upon since the

process of eviction of such encroachers if adopted would require huge

expenditure to be incurred on account of cost of legal proceedings and

other consequential outgoings and would take years to achieve.

8. Further, it is submitted that the Plaintiff Trust lacks expertise in

exploiting the development potential of these lands and generally opt

to sell such lands in accordance with law, and to utilize the sale

proceeds for the objects of the Plaintiff Trust. That, as per the policy of

the Plaintiff Trust sale proceeds earned by selling the Plaintiff Trust's

lands is invested in various investment schemes and a portion of

interest earned thereon is expended for carrying out the Plaintiff Trust's

charitable activities.

1-Originating Summons-1-2022.doc

9. Mr.Sawant, learned Senior Counsel would submit that the need

to approach this Court through the present Originating Summons arose

when the Slum Rehabilitation Authority (SRA) issued various notices

inter alia seeking to submit Slum Rehabilitation Scheme pertaining to

the Plaintiffs' lands covered thereunder in time bound manner failing

which the SRA would initiate the process of acquisition of the Plaintiffs'

lands cited in the schedule of properties attached to the said notices.

10. Mr.Sawant has taken this Court through the various notices

issued by SRA which are summarized as under:

(i) On 18th June 2015, the Plaintiff Trust received notice dated 16 th

June 2015 from SRA titled as 'Show Cause Notice', being the first of

three such notices purporting to state inter alia as follows:

"....Accordingly in keeping with the aims and objects of the Government of Maharashtra to remove the slums from the Mumbai city and its suburban districts and to make the city slum free and in view of the provisions of Section 12 (10) and 13(1) of the Maharashtra Slum Areas (IC&R) Act, 1971 and considering the provisions of Appendix-IV of amended DCR 33(10). You are called upon to indicate whether you claim to have first preferential right for implementation of the Slum Rehabilitation Scheme on the subject property under amended DCR 33(10) as per Section 13(1) of Slum Act, and in case of claim to such a right, you are further called upon to submit documents to substantiate such claim and to submit the Slum Rehabilitation Scheme in respect of said lands under

1-Originating Summons-1-2022.doc

the amended Regulation 33(10) of Development Control Regulations of Greater Mumbai, 1991 within 3 months from the date of receipt of this notice....

(emphasis supplied).

By the said notice SRA further stated as follows:

"Please take note that if you fail to intimate the claim under Section 13(1) of Slum Act and/or to establish your ownership claim as contemplated U/Sect. 13(1) of Slum Act and/or to the submit the Slum Rehabilitation Scheme within 3 months, Slum Rehabilitation Authority will be compelled to initiate action under Maharashtra Slum Areas (I.C. & R.) Act 1971 for acquisition of the said lands for implementation of Slum Rehabilitation Scheme in the larger interest."

(ii) The said first notice was accompanied by a Schedule of

Properties which the SRA contended constituted that portion of the

Plaintiffs' lands falling within the purview of the said first notice. It has

been submitted that the contents of the said first notice suggests that

the SRA intended to implement the Slum Rehabilitation Scheme under

the provisions of Development Control Regulations, 1991 (hereinafter

referred to as 'the DCR') in respect of all the Plaintiffs' lands described

in the Schedule thereto, whether or not the same were encroached

upon.

1-Originating Summons-1-2022.doc

(iii) On 22nd June 2015, the Plaintiff Trust received notice dated 16 th

June 2015 from SRA. It is submitted that the said second notice was in

terms identical with the first notice, and to the said notice was annexed

a Schedule of Properties that included the survey numbers of around

500 plus plots of the Plaintiffs' lands, which allegedly fell under the

scope of the second notice.

(iv) On 1st July 2015 the Plaintiffs received yet another notice dated

30th June 2015 inter alia stating and calling upon the Plaintiffs as

follows:

".....However to impetus the S.R. scheme and to make the Mumbai City slum free, you are hereby intimated that if any land in possession and in title of yours, has failed to find mention in the list of Survey number attached in the above referred letter, you may submit the claim of redevelopment U/s.13(1) and proposal for the same along with the following information.

a) The CTS.No./Survey No./Final plot No. of lands along with the area encroached by Slum Dwellers.

b) The lands along with Survey No./C.T.S. No./ Final plot no. declared as slum or census slum.

c) The details of transaction if any, made by you in respect of encroached lands.

d) The lands on which slum rehabilitation scheme are implemented or in respect of which proposals are submitted with SRA either by you or any other person/firm/company etc.

e) The lands in respect of which the acquisition proceedings are pending.

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You are requested to submit the proposal for redevelopment, if any, with respect to lands mentioned above within three months from the date of receipt of letter. Please note that your failure to submit the required information shall be construed as absence of willingness to redevelop these areas as a preferential right under Section 13(1) of Slum Act and SRA will proceed further to take the decision în accordance with Law in respect of the lands which are encroached by Slum Dwellers."

(v) By a letter dated 7th August 2015, the Plaintiffs inter alia sought,

clarification on various issues from the SRA.

(vi) Thereafter on 7th October, 2015 the Plaintiffs also came across a

public notice dated 5th October 2015 issued by the CEO of SRA

notifying the land owners/landlords on whose lands the encroachments

exist to submit a proposal of Rehabilitation Scheme to the SRA within a

period of three months from the date of the said public notice failing

which the SRA would initiate the action of acquisition of such lands

and that once such acquisition is initiated, the owners of such lands will

not possess any right to claim any interest in such lands.

11. It has been submitted without admitting that the said notices and

the said public notice are valid and maintainable in law, that through

the said notices and the public notice, the SRA has made it amply clear

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that it is desirous of implementing the scheme for rehabilitating the

slum dwellers on the Plaintiffs' lands covered under the said notices

and public notice and that the Plaintiff Trust is exposed to the

possibility of losing all its lands to SRA.

12. Mr.Sawant, learned Senior Counsel would submit that since

nowhere in express terms the Trust permits the Plaintiff Trust to

undertake any activity of development and/or construction and also

that the Plaintiff Trust lacks requisite expertise in the field of

construction and development of lands, the Plaintiff Trust will have to

rope in an entity possessing requisite skills and experience in the field

of development and construction. Therefore, unless the Plaintiff Trust

ventures into the domain of development of land and construction in

consortium with a competent entity, it stands on the brink of losing

almost all of its lands to SRA as per the said notices and the public

notice.

13. Mr.Sawant, learned Senior Sounsel would submit that although

the Trustees have powers of sale and to convert into money all or any

of the Trust's immovable properties, it is not provided in the Trust Deed

that the said discretion to sell includes the power to develop the lands

1-Originating Summons-1-2022.doc

for the benefit of the beneficiaries of the Trust. Mr.Sawant draws the

attention of this court to internal page 18 of the said Trust Deed and in

particular to the paragraph on powers of sale submitting however that

the power to sell is a much wider power which would include the

power to develop by itself or jointly. Mr.Sawant also draws the

attention of this court to the powers of the Trustees on the same page

in all respects with the fullest discretionary power with respect to the

estate to apply the same for charitable purposes and therefore urges

this court to consider the same to hold that the power of sale would

also include the power of the trust to by itself or jointly develop its

properties to carry out the purposes of the Trust.

14. In such circumstances the Plaintiffs have approached this Court

through the present Originating Summons seeking an opinion, advise

or direction on the issue as to whether the Plaintiff Trust can undertake

development activities on its lands to execute Slum Rehabilitation

Scheme by forming consortium with a developer possessing requisite

skills, competence and experience in the field of development of lands

and construction of buildings.

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15. It has been submitted that the scope of the present Originating

Summons is restricted only to adjudication of questions relating to

administration and management of the Plaintiff's lands and nothing

more and that the question relating to validity and maintainability of

the aforementioned notices issued by SRA would not fall within the

purview of the present Originating Summons, and that the Plaintiffs

have already challenged the maintainability and validity of the

aforementioned notice issued by SRA through a Writ petition (being

Writ Petition No. 2763 of 2015) filed in this Court and which is pending

hearing for admission and interim reliefs. That no statement, averment

or contentions raised by the Plaintiffs in this Originating Summons

shall be deemed to be treated as waiver of the Plaintiffs' rights to

challenge and oppose the maintainability of the aforementioned notices

issued by SRA.

16. Mr.Sawant fairly submits that in view of the written statement

filed on behalf of the State highlighting the requirement of prior

sanction of the Charity Commissioner under Section 36 of the Public

Trusts Act to sell the immovable properties of the Plaintiff Trust, he has

instructions not to press for question (a) as that decision would be

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taken by the Plaintiff Trust at an appropriate time after this Court

decides on questions (b) and (c).

17. Mr.Sawant submits that the said Will-Trust ought to be

interpreted so as to allow the Plaintiff Trust to undertake development

activities as being incidental to its main charitable activities. It is

submitted that under the said Will except the immoveable properties

that are specifically devised under the said Will, the Trustees of the

Plaintiff Trust is given the full power to sell and convert the immovable

assets of the said Testator's estate into money along with full

discretionary power to sell by public auction or private contract

together or in parcel subject to such terms and conditions as to any

matter including time or mode of payment, title thereof, indemnity

against or apportionment of encumbrances etc. In other words, the

Plaintiff Trust along with its Trustees are entrusted with the fullest

power to exploit the potential of the immovable properties of the

Plaintiff Trust that were owned by the said Testator. Under Section

36A(2) of the said Trust Act, the Trustees are conferred with all powers

to do things necessary for the achievement of the objects of the Trust.

The said provision reads as follows:

1-Originating Summons-1-2022.doc

"Section 36 (A) restrictions on, trustees: Powers and duties of and restrictions on, trustees :

(1) A trustee of every public trust shall administer the affairs of the trust and apply the funds and properties thereof for the purpose and objects of the trust in accordance with the terms of the trust, usage of the institution and lawful directions which the Charity Commissioner or Court may issue in respect thereof. and exercise the same care as a man of ordinary prudence does when dealing with such affairs, funds or property, if they were his own.

(2) The trustee shall, subject to the provisions of this Act and the instrument of trust, be entitled to exercise all the powers incidental to the prudent and beneficial management of the trust, and to do all things necessary for the due performance of the duties imposed on him.

(3) No trustee shall borrow moneys (whether by way of mortgage or otherwise) for the purpose of or on behalf of the trust of which he is a trustee, except with the previous sanction of the Charity Commissioner, and subject to such conditions and limitations as may be imposed by him in the interest or protection of the trust.

(4) No trustee shall borrow money for his own use from any property of the public trust of which he is a trustee.

Provided that, in the case of trustee who makes a gift of debentures or any deposit in his business or industry the trustee shall not be deemed to have borrowed from the trust for his own use."

18. It is submitted that the said Will was penned in the year 1882

when the problem of encroachment of lands by slum dwellers did not

exist, at least to the extent as it exists today nor was the concept of

development of land so very prevalent in the manner it is understood

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now. Consequently, the said Testator had not appreciated the

development potential of the said Testator's land, and need to develop

the lands as then the City of Mumbai did not face the drawback of

severe population explosion and the issue of space constraint. In light

of this, obviously the said Testator had not foreseen or anticipated the

aforementioned exigencies that it would be necessary to confer upon

the Plaintiff Trust the authority to develop and sell the said lands to

meet the expenses charitable of the Trust, if necessary.

19. That the Plaintiff Trust owns vast chunk of lands lying and

situate within the territorial limits of Mumbai city and its suburban

areas. The Plaintiffs' lands would generate maximum revenue to the

Plaintiff Trust, which inter alia gives financial boost to its charitable

activities. In light of the said notices and the public notice, it has

become necessary for the Plaintiff Trust to manage its lands by

developing the same in accordance with the Maharashtra Slum Areas

(Improvement Clearance & Redevelopment) Act 1971 (the "Slum Act).

However, as the said Will is silent on the aspect of authority of the

Trustees of the Plaintiff Trust to develop its lands for rehabilitation of

the slum dwellers, the opinion, advice and direction of this Court has

been sought.

1-Originating Summons-1-2022.doc

20. It is submitted that, therefore, in order to ensure and protect the

continuation of the Plaintiff Trust it is necessary to interpret the said

Will and consequently allow the Plaintiff Trust to undertake

development and construction activities by collaborating with an

efficient and competent partner having requisite skills and experience

in the field of development and construction. The Plaintiff submits that

such a move will benefit the Plaintiff Trust by enhancing its earnings

from its lands and consequently by bolstering its source of finance for

carrying out charitable activities.

21. Mr.Sawant, learned Senior Counsel, submits that therefore, the

Plaintiffs have approached this Court through the present Originating

Summons seeking an opinion, advice and direction to the effect that

the Plaintiff Trust should be permitted to undertake the activities of

development of its lands and construction thereon in consortium with a

competent partner possessing requisite experience, skills and

capabilities.

22. It cannot be disputed that the present proceedings pertain to

determination of the question relating to the administration of the

Plaintiff Trust after the Plaintiffs received the first notice calling upon

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the Plaintiff Trust inter alia to submit the Slum Rehabilitation Scheme

in connection with the Plaintiffs lands covered thereunder. That the

said notices posed serious threat to the existence of the Plaintiff Trust

and that the said Will does not provide any express authorization to the

Trustees of the Plaintiff Trust to undertake any development activity on

the Plaintiff Trust's lands.

23. It has been submitted that there is no complicated question of

facts involved in the present Originating Summons and hence, the

Plaintiffs are applying to this Court under Section 56A of the Trust Act

for summary disposal of the questions raised.

24. On 20th February 2024, when the matter was called out, the

following order was passed:

"1. This Suit has been filed as an Originating Summons under Rule 238 of the Bombay High Court (Original Sides) Rules, 1980, seeking determination of a question arising in the administration of the Plaintiff no.1 - Trust which has been created pursuant to a Will dated 9th May 1882 of Mr.Ardaseer Hormarjee which was probated on 23rd February 1883.

2. Mr.Sawant, learned Senior Counsel for the Plaintiffs would submit that the Will has created a Trust with respect to all the properties of the Testator and has granted the fullest discretionary power to the Trustees with respect to the estate or the proceeds to apply the same for charitable purposes.

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Learned Senior Counsel would submit that the Will directs the Trustees for all or any of the purposes of the Will in their discretion to sell and convert into money all or any of the immovable estate for the purposes of the Trust. That once a larger power to sell has been granted to the Trustees, the power to enter into joint development agreements in respect of the immovable estate would naturally be included in such a power. Learned Senior Counsel would submit that, however, since the specific power to jointly develop the immovable estate is not there, this Suit has been filed by way of an Originating Summons seeking clarification of this Court under Rule 238 of the Bombay High Court (Original Side) Rules, 1980.

3. On a query from the Court if the registered Trust Deed is annexed to the Suit filed by way of an Originating Summons, this Court is informed that the Originating Summons can be amended to include the same. Let the Originating Summons be amended by 5th March 2024.

4. Mr.Jadhav, learned Additional Government Pleader is present for the State and represents the Charity Commissioner's Office and submits that a copy of the Originating Summons also be served upon him.

5. Let a copy of the amended Originating Summons be served upon the learned Additional Government Pleader by 7 th March 2024 and let a Written Statement be filed by the Charity Commissioner's Office, with a copy to the other side.

6. At the joint request of the learned Counsel, list on 26 th March 2024. High on Board."

25. Thereafter, on 26th March 2024, the following order was passed:

"1. Pursuant to the order dated 20th February 2024, today the matter has been listed high on board at the joint request of the learned Counsel for the parties. However, when the

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matter is called out, Mr.Joshi, learned Counsel appearing for the Plaintiff would submit that pursuant to the said order of this Court, an application for certified copies of the documents has been filed with the office of the Charity Commissioner, Mumbai, however, the certified copies of the said documents are still awaited and some time be granted.

2. Mr.Jadhav, learned Additional Government Pleader present in the Court and submits that he would also look into the status of the issuance of certified copies of the said documents.

3. At the joint request of the learned Counsel, list on 2 nd May, 2024.

4. Let copies of the papers and proceedings be furnished to the learned Additional Government Pleader."

26. On 10th June 2024, the following order was passed :

"1. Mr.Mohit Jadhav, learned Additional Government Pleader, appears for the State and seeks some more time to file reply in the matter submitting that the reply is being finalized. Mr.Pankaj Sawant, learned Senior Counsel for the Plaintiffs has no objection, if some time is granted.

2. Accordingly, at the request of the learned AGP, list on 24 th June 2024.

3. Let the reply be filed by the next date with a copy to the other side."

27. On 14th August 2024, this matter has been heard and closed for

orders.

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28. The learned Government Pleader has filed written statement

dated 18th June 2024 on behalf of the Defendant. The written

statement basically revolves around the grant of permission by the

Charity Commissioner under Section 36 of the Public Trusts Act which

may not be relevant in view of the submission by Mr.Sawant, learned

Senior Counsel appearing for the Plaintiff that he has instructions not

to press for prayer clause (a) with respect to the permission under

Section 36 of the Public Trusts Act.

29. I have heard Mr. Pankaj Sawant, learned Senior Counsel for the

Plaintiffs as well as Mr. Mohit Jadhav, learned AGP for the State and

with their able assistance, I have considered the matter.

30. Under Rule 238 of the Bombay High Court (Original Side) Rules

it is provided as to who may apply for the issue of originating summons

and in respect of what matters. It has inter alia been provided that the

Trustees under any deed or instrument of trust or any person claiming

to be interested as beneficiary under the trusts may apply for the issue

of an originating summons before the Judge in Chambers for such relief

of the nature or a kind as the circumstances of the case may require for

the determination of questions or matters including the determination

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of any question arising in the administration of the estate or trust. Rule

238 of the Bombay High Court OS rules is usefully quoted as under:

"238. Who may apply for issue of originating summons and in respect of what matters The executors or administrators of a deceased person or any of them and the trustees under any deed or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir or legal representative, or as beneficiary under the trusts of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may apply for the issue of an Originating Summons returnable before the Judge in Chambers for such relief of the nature or kind following as may by summons be specified and circumstances of the case may require the determination, without an administration of the estate or trust, of any of the following questions or matters:-

(a) any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or legal representative or beneficiary;

(b) the ascertainment of any class of creditors, devisees, legatees, heirs, legal representatives, beneficiaries or others;

(c) the furnishing of any particular accounts by the executors, administrators or trustees and the vouching (when necessary) of such accounts.

(d) the payment into Court of any moneys in the hands of the executors, administrators or trustees;

(e) directing the executors, administrators or trustees to do or abstain from doing any particular act in their character as such executors, administrators or trustees;

(f) the approval of any sale, purchase, compromise or other transaction;

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(g) the determination of any question arising in the administration of the estate or trust."

(emphasis supplied)

31. The Originating Summons, as noted above, has been taken out

by the Trustees of the Plaintiff No. 1 Trust for determination of a

question arising in the administration of the estate of the Trust as to

whether the Trustees of the Plaintiff Trust are empowered to undertake

any development activities on its lands and since the Plaintiff Trust

lacks requisite experience, skills and competence in developing

property by demolishing slums, constructing building and providing

infrastructure can it collaborate with a partner/joint venture

collaborator possessing necessary competence, skills and experience in

the field of development and construction on the Plaintiffs' lands.

32. A perusal of internal page 18 of the provisions regarding the

Plaintiff Trust suggests that the Trustees have been invested in all

respects with the fullest discretionary power in and about the

application of the estate of the proceeds of the conversion thereof to

charitable purposes. The direction to the Trustees for the purposes of

the Trust is to sell and convert into money all or any of the immovable

estate as the Trustees may think proper with full discretionary power to

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sell by public auction or private contract as they may think fit. The

relevant portions are usefully extracted as under:

"I desire that my said Trustees and Trustee shall have in all respects the fullest discretionary power in and about the application of my said residuary estate or the proceeds of the conversion thereof to such charitable purposes as aforesaid. .....

.....

I direct my said Trustees and Trustee for all or any of the purposes of this my Will in their or his or her discretion to sell and convert into money all or any of my immoveable estate to grant or reserve such easements in upon over or under any portion of the same as my said Trustees and Trustee may think proper with full discretionary power to sell by public auction or private contract together or in parcels subject to such terms and conditions as to the evidence or commencement of the title or the time or mode of payment of the purchase money or indemnity against or apportionment of encumbrances or as to any other matters relating to the said sale as they or he or the may think fit. Also to fix reserved biddings and buy in property advertized for sale and vacate or vary contract for sale and to resell as aforesaid without liability to answer for any consequential loss and generally to effect the sale and conversion of my said estate on such terms and in such manner as my said Trustees or Trustee shall deem most advantageous. Also full discretionary power during the suspense of the sale conversion or getting in of my said estate to manage and order all the affairs thereof such as regards the letting building occupation cultivation repairs insurance against fire receipt for rents indulgences and allowances to tenants and all other matters whatsoever thereto appertaining also full discretionary power to employ receivers bailiffs accountants agents and others in and about the affairs of my said estate with such salaries and remunerations as my said

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Trustees end Trustee shall think reasonable. Provided always and I hereby direct that the power of sale and conversion hereinbefore lastly given to my said Trustees and Trustee shall be limited to such parts of my immoveable estate as shall not be specifically devised by my said will or any Codicil or Codicils thereto."

(emphasis supplied)

33. As can be seen, the Trustees have full discretion and power to

sell the Trust property which would however be subject to the

provisions of Section 36 of the Public Trusts Act. In my view, the

power to sell is a much wider power which would include the power to

develop singly or jointly subject to the provisions of the Public Trusts

Act and applicable law and regulations including the Slums Act.

Moreover, under Section 36A(2) of the said Trusts Act, the Trustees are

conferred with all powers to do things necessary for the achievement of

the objects of the Trust. Also true that the said Will creating the

Plaintiff Trust was penned in the year 1882 when the problem of

encroachment of lands by slum dwellers did not exist, at least to the

extent as it exists today nor was the concept of development of land so

very prevalent in the manner it is understood now. Consequently, the

said Testator would not have appreciated the development potential of

the said Testator's land, and need to develop the lands as then the City

of Mumbai did not face the drawback of severe population explosion

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and the issue of space constraint. In light of this, obviously the said

Testator had not foreseen or anticipated the aforementioned exigencies

that it would be necessary to confer upon the Plaintiff Trust the

authority to develop and sell the said lands to meet the expenses

charitable of the Trust, if necessary. It is not in dispute that the