Bombay High Court
Vijay Narayan Sawant vs State Of Maharashtra And Ors on 3 September, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:37020
-WP-2505-2023.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2505 OF 2023
WITH
INTERIM APPLICATION NO. 1442 OF 2025
Vijay Narayan Sawant, ..Petitioner
Trustee/Member
Society of Servants of God
Address - 1/59, Botavala Building,
New Prabhadevi Road,
Mumbai - 400 025.
Versus
1. State of Maharashtra
Acting through the office of the
Government Pleader (Writ Cell),
Mumbai.
2. Joint Charity Commissioner
Greater Mumbai Region,
Sasmira, Worli, Mumbai.
3. Lal Ghanshani
Flat No.1, Prem Kutir,
9A, Sadhu Vaswani Road,
Pune - 411 101.
ARUN
RAMCHANDRA
SANKPAL
4. Vineet V. Samtani
122, Delmar Towers I,
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
Clove Village Phase 3,
Date: 2025.09.03
20:57:49 +0530 Wanawadi, Pune - 411 040.
5. Shivshankar G. Kher,
33, Rajgurav Colony,
Telegaon Dabhade,
Talegaon Station, Taluka - Maval,
District - Pune.
1/22
::: Uploaded on - 03/09/2025 ::: Downloaded on - 03/09/2025 21:39:58 :::
-WP-2505-2023.DOC
6. Shireen Sethna,
Residing at Keivcote,
Club Road, Coonoor,
Tamil Nadu.
...Respondents
WITH
WRIT PETITION (STAMP) NO. 7575 OF 2024
Shireen Sethna,
Residing at Keivcote,
Club Road, Coonoor,
Tamil Nadu. ..Petitioner
Versus
1. State of Maharashtra
Acting through the office of the
Government Pleader (Writ Cell),
Mumbai.
2. Joint Charity Commissioner
Greater Mumbai Region,
Sasmira, Worli, Mumbai.
3. Lal Ghanshani
Flat No.1, Prem Kutir,
Sadhu Vaswani Road,
Pune - 411 101.
4. Vineet V. Samtani
122, Delmar Towers I,
Clove Village Phase 3,
Wanawadi, Pune - 411 040.
5. Shivshankar G. Kher,
33, Rajgurav Colony,
Telegaon Dabhade,
Talegaon Station, Taluka - Maval,
District - Pune.
2/22
::: Uploaded on - 03/09/2025 ::: Downloaded on - 03/09/2025 21:39:58 :::
-WP-2505-2023.DOC
6. Vijay Narayan Sawant,
Trustee/Member Society of Servants
of God,
Address-1/59, Botavala Building, ...Respondents
New Prabhadevi Road,
Mumbai 400 025.
Mr. Rishabh Shah, with Suyash Gadre and Madhav Paranjape, for the
Petitioners in WP/2505/2023.
Adv Shivani Bansal, i/b R.S. Associate, for Petitioner in WP(ST) No.
7575 of 2024 and for Respondent No. 6 in WP/2505/2023.
Mr. Aseem Naphade, with Sanket Mangale, i/b Kartik Vig, for
Respondent No.3 & Applicant in IA/1442/2025.
Mr. B.B. Dahiphale, AGP, for the Respondent-State.
Mr. Abhijit Adagule (through VC) with S.S. Patwardhan & A.V.
Hardas, for Respondent No. 7.
CORAM: N. J. JAMADAR, J.
RESERVED ON : 18th AUGUST 2025
PRONOUNCED ON : 3rd SEPTEMBER 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith, and, with the consent of
the learned Counsel for the parties, heard finally.
2. By these Petitions under Article 227 of the Constitution of India,
the Petitioners take exception to a judgment and order dated 28 th
October 2022 passed by the learned Joint Charity Commissioner,
Mumbai, whereby an Application, being Application No. 77 of 2021,
preferred by the Respondent Nos. 3 to 5, seeking the permission of the
Charity Commissioner under Section 36(1) of the Maharashtra Public
Trusts Act 1950 ("Trust Act 1950") for sale of the property admeasuring
50000 sq ft equivalent to 4645.11 sq mtrs, bearing old Survey No. 703,
-WP-2505-2023.DOC
new Survey No. 479, situated Village Talegaon, Tal Haveli, District Pune
("the Trust property"), came to be allowed and permission was accorded
to the Respondent Nos.3 to 5, to alienate the Trust property on 'as is
where is basis' in favour of the M/s Uttam Associates (R7), for a
consideration of Rs.10 Crores, subject to certain conditions.
3. Background facts can be stated in brief as under:
3.1 The Petitioner in Writ Petition No. 2505 of 2023 claims to be a
member of the managing committee/trustee of the Society of Servants of
God ("the Trust"), registered under the Trust Act 1950, vide registration
No. F-454, Mumbai. The Trust was established by late Dr. Dinshaw K.
Mehta. Mrs. Shireen Sethna, the Petitioner in Writ Petition (Stamp) No.
7575 of 2024, is the daughter of late Dr. Dinshaw Mehta.
3.2 The Trust is governed by the Rules and Regulations (Exhibit "A" to
the Petition). Principal object of the Trust is to serve the public at large
and the membership of the Trust is open to anyone who leads and
aspires to lead a "God Guided way of Life".
3.3 Dr Mehta, the original Trustee and Settler, had purchased parcels
of land bearing Survey Nos. 702, 703 and 730, admeasuring 63 acres in
aggregate. The said land is recorded as the Trust property in the
Schedule -I of the Trust.
3.4 Respondent No.3 claims that the Respondent No.3 was the only
surviving Trustee. In exercise of the power conferred by Clause 27 of the
-WP-2505-2023.DOC
Rules and Regulations, the Respondent Nos. 4 and 5 came to be
appointed as the Trustees of the Trust on 13 th January 2021. A report
filed by the Respondent No.3 to record the said change awaits
adjudication.
3.5 The Respondent Nos. 3 to 5 filed an Application under Section
36(1) (a) of the Trust Act asserting that under the Rules and Regulations
of the Trust, the Trustees are empowered to deal with the Trust
properties. To achieve the objects of the Trust, a number of charitable
and philanthropic activities are required to be carried out. To carry out
such activities, funds are required. In addition, for securing and
preserving the Trust property which admeasures approximately 63 acres
and to pay the regular outgoings for the staff, the Trust required funds.
Therefore, the Trust decided to sell the subject property to raise the
funds.
3.6 A public notice inviting the bids was issued on 9 th June 2021.
Three offers were received. The Respondent No. 7 gave the highest offer
of Rs.9.50 crores, with willingness to further enhance the bid if directed
by the Competent Authority. Thus, the Respondent Nos. 3 to 5 sought
permission to sell the subject property to Respondent No. 7.
3.7 The Petitioners resisted the Application by filing intervention
applications.
-WP-2505-2023.DOC
3.8 By the impugned judgment and order, the learned Joint Charity
Commissioner was persuaded to allow the Application opining, inter
alia, that the alienation appeared to be necessary as there was an
apprehension of acquisition of the subject property and the Trust
properties by Talegaon Dabhade Municipal Council and encroachment
over the subject property. The learned Joint Charity Commissioner noted
that the Trust required funds to secure the Trust property. However, since
a Suit in respect of the subject property was sub-judice before the
Bombay High Court and Change Reports were also awaiting
adjudication, though the Respondent Nos. 3 to 5 could execute the Sale
Deed, yet, the consideration could not be allowed to be withdrawn or
used in any form until the disposal of the said Suit and the Change
Report. Resultantly, the Application came to be allowed subject to the
condition that the Trustees shall invest the entire consideration amount
in any nationalized bank or with approved government securities and
nobody should be entitled to utilize the said consideration or interest
thereon till the final disposal of the Suit No. 3151 of 1997 and the
Change Report.
3.9 Being aggrieved, the Petitioners have assailed the impugned order
passed by the learned Joint Charity Commissioner.
-WP-2505-2023.DOC
4. Affidavits in Reply are filed on behalf of the Respondent No.3 and
Respondent No. 7, followed by the Affidavits in Rejoinder on behalf of
the Petitioners.
5. I have heard Mr. Rishabha Shah, the learned Counsel for the
Petitioner, Ms. Shivani Bansal, the learned Counsel for the Petitioner in
Writ Petition (Stamp) No. 7575 of 2024, Mr. Dahiphale, the learned AGP
for the Respondent-State, Mr. Assem Naphade, the learned Counsel for
Respondent No.3 and Mr. Abhijeet Adgule, the learned Counsel for the
Respondent No. 7, in Writ Petition No. 2505 of 2023.
6. Mr. Shah, the learned Counsel for the Petitioner in Writ Petition
No. 2505 of 2023, submitted that the impugned order suffers from
manifest errors. The learned Joint Charity Commissioner did not
properly appreciate the nature of the jurisdiction which the Charity
Commissioner exercises under Section 36 of the Trust Act 1950. In the
process, the learned Joint Charity Commissioner went on to grant
permission for alienation of the subject property for the reasons which
were not at all pleaded by Respondent Nos. 3 to 5.
7. Mr. Shah submitted that, in the Application seeking permission to
alienate the subject property, the Applicants-Respondent Nos. 3 to 5 have
not ascribed any specific reason which necessitated the sale of the
subject property. Moreover, during the course of the evidence, Lal
Ghansani (R-3 - A-1) sought to ascribe myriad reasons to justify the sale
-WP-2505-2023.DOC
of the subject property, which were demonstrably unsustainable.
Ignoring all these infirmities, the learned Joint Charity Commissioner
permitted the alienation of the valuable Trust property by recording
circuitous reasons.
8. Mr. Shah would further urge that, the very competence of Lal
Ghansani (A1), in particular, and the Applicants, in general, to seek
permission to alienate the Trust property was in serious controversy. The
Applicants were not at all in the management of the affairs of the Trust.
The Respondent No.3-Applicant No.1 had indulged in several criminal,
fraudulent and illegal activities. In fact, the Applicant No.1 was removed
from the post of the Secretary of the Trust with effect from 15 th March
2019 and a Change Report to record the said change was filed.
Therefore, the grant of permission for sale of the subject property to the
Applicants was not at all in the benefit and interest of the Trust and was,
on the contrary, prejudicial to the interest of the Trust.
9. The mere continuation of the name of the Applicant No.1 on the
Schedule I of the Trust, long after the Applicant No.1 ceased to be a
Trustee of the Trust, did not empower the Applicant No.1 to act as the
Trustee of the Trust. To this end, Mr. Shah placed reliance on a judgment
of this Court in the case of Muridhar S/o Janrao Kale & Ors Vs State of
Maharashtra through Secretary, School Education Department & Ors1
1 Writ Petition No. 3034 of 2010 decided on 29th October 2010.
-WP-2505-2023.DOC
10. Ms. Shivani Bansal, the learned Counsel for the Petitioner in Writ
Petition (Stamp) No. 7575 of 2024, supplemented the submissions of Mr.
Shah.
11. At the outset, Mr. Naphade, questioned the locus standi of the
Petitioner. It was submitted the Petitioner in Writ Petition No. 2505 of
2023, being a complete stranger and a rank outsider, has no locus to
challenge the impugned order, which has been passed to advance the
objects of the Trust.
12. Suffice to note, in view of the Full Bench Judgment in the case of
Sailesh Developers And Ors Vs Joint Charity Commissioner, Maharashtra
And Ors,2 the concept of locus standi in the matter of challenge to a final
order granting sanction for alienation under Section 36 of the Trust Act
1950, stands considerably expanded and, thus, the aforesaid submission
does not deserve much consideration.
13. Mr. Naphade next submitted that, in exercise of the writ
jurisdiction, what has to be tested is the decision making process. In the
case at hand, the Respondent Nos. 3 to 5 had followed the most
transparent process to sell the asset of the Trust. A public notice was
issued. The Trust obtained the valuation report in respect of the subject
property. The managing committee considered the three offers received
from the bidders. The managing committee, thereafter, resolved to
2 2007(3) Mh.L.J. 717.
-WP-2505-2023.DOC
alienate the subject property to Respondent No. 7, who had given the
highest offer.
14. Mr. Naphade canvassed a further submission that the learned
Joint Charity Commissioner has also ascribed justifiable reasons which
necessitated the alienation of the subject property. Thus the learned
Joint Charity Commissioner was well within her rights in returning a
finding that the alienation of the Trust property was necessary for
achieving the objects of the Trusts. The learned Joint Charity
Commissioner has provided several safeguards while granting
permission for alienation of the subject property. Such discretionary
order is not open for interference in exercise of writ jurisdiction, urged
Mr. Naphade.
15. Before adverting to appreciate the rival submissions canvassed
across the bar, it may be apposite to appreciate the nature of the power
exercised by the Charity Commissioner under Section 36 of the Trust Act
1950. Evidently, sub-Section (1) of Section 36 begins with a non-
obstante clause. Notwithstanding the conferment of the power on the
Trustees to sell or otherwise alienate the Trust property, under Clauses
(a) and (b) of sub-Section (1) of Section 36, no sale, exchange or gift of
any immovable property or no lease beyond the stipulated term shall be
valid without the previous sanction of the Charity Commissioner. The
Charity Commissioner is empowered to accord sanction for such sale or
-WP-2505-2023.DOC
alienation regard being had to the interest, benefit or protection of the
Trust and subject to such conditions as the Charity Commissioner may
deem fit to impose.
16. The power under Section 36(1) of the Trust Act 1950 is thus not
unfettered or unbridled. The sanction for alienation is conditioned by
the imperativeness to secure the interest, benefit or protection of the
Trust. The fact that in addition to the non-obstante clause with which
Sub-section (1) of Section 36 begins, clauses (a) and (b) which begin
with the negative word "no", underscore the peremptory nature of the
sanction by the Charity Commissioner. To put in other words, the power
to sanction the sale or alienation of the Trust property is neither
unregulated nor uncanalized. On the contrary, the said power is to be
exercised in the interest or for the benefit or protection of the Trust.
17. From the phraseology of Section 36(1) of the Trust Act 1950, it
becomes evident that the Charity Commissioner when confronted with
the question of grant of sanction for the sale of the trust property ought
to embark upon a two-fold inquiry. First, whether it is necessary to sell
or alienate the trust property? Second, how best the sale or alienation
would be effected to sub-serve the interest of the trust and its
beneficiaries? The Legislature has broadly indicated the touchstone on
which these two questions are to be tested, namely, the interest of the
trust or for the benefit or protection of the trust.
-WP-2505-2023.DOC
18. In the case of Mehrwan Homi Irani & Anr Vs Charity
Commissioner, Mumbai3 while remitting the matter of grant of sanction
for the alienation of the trust property to the Charity Commissioner, the
Supreme Court observed that the important point to be considered was,
whether the Agreements entered between the Trust and the 5 th
Respondent therein, (for alienation in whose favour the sanction was
accorded) are capable of carrying out the objects of the trust to provide
a Sanatorium for convalescing and sick persons. The objects of the Trust
should be accomplished in the best of its interests. Leasing out of a
major portion of the land for other purposes may not be in the best
interest of the Trust. The Charity Commissioner while granting the
permission under Section 36 of the Bombay Public Trusts Act could have
explored those possibilities.
19. In the case of Sailesh Developers (Supra), the Full Bench of this
Court considered the following questions.
"i) Whether the power vesting in the Charity
Commissioner under Section 36 of the Bombay Public
Trusts Act, 1950 is confined to grant or refusal of
sanction to a particular sale transaction which the
trustees propose to make or it extends to compelling
trustees to sell or transfer the property to another
party who participates in the proceedings under
Section 36 and gives his offer?
3 2001 (5) SCC 305.
-WP-2505-2023.DOC
ii) Whether the party who comes forward to submit
his offer directly before the Charity Commissioner in a
pending application under Section 36 of the said Act
of 1950 has locus standi to challenge the order passed
in a proceeding under Section 36?"
20. The Full Bench answered the aforesaid questions thus:
"(i) The power vesting in the Charity Commissioner
under Section 36 of the Bombay Public Trust Act
1950 is not confined merely to grant or refusal of
sanction to a particular sale transaction in respect of
which sanction is sought under Section 36 of the said
Act. The power of the Charity Commissioner extends
to inviting offers from the members of the public and
directing the trustees to sell or transfer the trust
property to a person whose bid or quotation is the
best having regard to the interest, benefit or
protection of the trust. Hence we declare that the
decision of the Division Bench of this Court in the
case of Jigna Construction Co. Mumbai v. State of
Maharashtra and Ors. does not lay down correct law.
(ii) The party who comes forward and submits his
offer directly before the Charity Commissioner and
complies with other requirements as may be laid
down by the Charity Commissioner in a pending
application under Section 36 of the said Act of 1950
has a locus standi to challenge the final order passed
in a proceeding under Section 36. However, the
scope of the challenge will be limited as indicated in
paragraph 29 above."
-WP-2505-2023.DOC
21. While arriving at aforesaid answers, the Full Bench held that the
enquiry contemplated under Section 36 of the Trust Act 1950 is a
judicial enquiry. 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 to
either to grant sanction to a particular proposal of the trustees or to
reject it. It is 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 a 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 the 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.
-WP-2505-2023.DOC
22. The Full Bench further observed, while deciding which is 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
the 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 the Charity Commissioner to ensure that the property should
be alienated in such a manner that maximum benefits are accrued to the
trust.
23. In the case of Cyrus Rustom Patel Vs Charity Commissioner,
Maharashtra State & Ors,4 the Supreme Court exposited the factors
which ought to be kept in view while deciding an Application for grant
of sanction under Section 36 of the Trust Act 1950. The observations in
paragraph 26 are instructive and hence extracted below:
"26. The power to grant sanction has to be exercised
by the Charity Commissioner, taking into consideration
three classic requirements i.e. "the interest, benefit, and
protection" of the Trust. The expression that sanction
may be accorded subject to such conditions as Charity
Commissioner may think fit under Section 31(1)(b) and
Section 36(1)(c). The Charity Commissioner has to be
objectively satisfied that property should be disposed of
4 (2018) 14 SCC 761.
-WP-2505-2023.DOC
in the interest of public trust; in doing so, he has right to
impose such conditions as he may think fit, taking into
account aforesaid triple classic requirements. It is also
open to the Charity Commissioner, in exercise of power of
Section 36(2) of the Act, to revoke the sanction, given
under clauses (a) and (b) of Section 36 of the Act, on the
ground that the sanction had been obtained by fraud or
misrepresentation or those material facts have been
suppressed while obtaining sanction. The intendment of
the revocation provision is also to sub-serve the interest,
benefit, and protection of the Trust and its property."
(emphasis supplied)
24. On the anvil of the aforesaid enunciation of law, reverting to the
facts of the case at hand, it is imperative to first note the case with which
the Respondent Nos. 3 to 5 approached the Charity Commissioner
seeking permission for the sale of the subject property.
25. The averments in paragraphs 20 and 21 of the Application,
whereupon Mr. Naphade laid emphasis, purportedly spell out the
necessity of the sale of the subject property. They read as under:
"20. The Applicants submit that the Applicants herein
undertake a number of charitable and philanthropic
activities for which necessary funds are required. At the
same time the Trust has to pay regular outgoings for its
staff as well as security for maintaining huge parcel of
land admeasuring 64 acres or thereabout.
-WP-2505-2023.DOC
21. The Applicants submit that the proposed sale
transaction is in the best interest of the Trust due to the
fact that the Applicant No.1 as a Secretary of the said
Trust has received a letter dated 20.5.2019 from the
Chief Officer of Talegaon Dabhade Municipal Council.
The said letter has been addressed in relation to Survey
No. 702, New Survey No. 477 thereby directing the Trust
to make available 1000 sq mtrs of land from the old
Survey No. 702 (new Survey No. 477) for the purpose of
granting water reservoir as well as plantation of trees by
the said Municipal Council."
26. I am afraid, the aforesaid averments do indicate, with sufficient
clarity, the necessity of the sale of the subject property. The assertions
are too general and vague. By stretching one's imagination, one gets an
impression that funds were required to finance the charitable and
philanthropic activities of the Trust, to secure the Trust property and pay
remuneration of the staff. Reference is made, on a tangent, to a
communication received from Talegaon Dabhade Municipal Council to
make available 1000 sq mts of land from old Survey No. 702. It,
however, does not appear that, any portion of the land of the Trust was
acquired under the statutes which permit the acquisition of the land for
the public purpose.
27. Mr. Naphade, the learned Counsel for the Respondent No.3,
attempted to selvage the position by canvasing a submission that though
the Applicants had not pleaded the causes and material particulars, in
-WP-2505-2023.DOC
detail, which warranted the sale of the subject property, yet, the
Applicants had furnished those causes and particulars during the course
of recording of their evidence and all those factors cumulatively
weighted with the learned Joint Charity Commissioner in according the
sanction.
28. To appreciate the aforesaid submission in a correct perspective,
the reasons which weighed with the learned Joint Charity Commissioner
in according the sanction, deserve to be noted. In the impugned order
the learned Joint Charity Commissioner has observed, inter alia as
under:
"The alienation seems to be necessary because of the
apprehension of acquisition by Talegaon Dabhade Municipal
Council and also future acquisition/encroachment. Secondly
the applicant submitted in his reply to intervention application
at Exh. 20 that presently he is incurring expenses for
safeguarding the trust property and ha also constructed
compound wall. He erected a barbed wire fence along the
periphery of the property as well as compound wall which has
cost the applicant No.1 around Rs.40-50 lakhs. Further the
Trust is required the amount for compound wall along with
Security Guards is needed to enhance the safety and security
from the land grabbers and encroachers and to keep
trespassers at bay, to propagate "Nature cure' and ' nutritious
meals' which are the main objects of the Trust. The society is
also awaiting from long time to give scholarship to the
students studying naturopathy in India. Therefore also the
alienation is necessary."
-WP-2505-2023.DOC
29. The aforesaid consideration by the learned Joint Charity
Commissioner, is far from satisfactory. The learned Joint Charity
Commissioner did not pose unto herself the pivotal question as to
whether the proposed sale of the subject property would be in the
interest or for the benefit or protection of the Trust. The said question
ought to have been examined in the light of the causes and
circumstances ascribed by the Respondent Nos. 3 to 5 necessitating the
sale of the subject property. In the absence of the particulars in the
Application especially as regards the claim of the Applicant No.1 that he
had incurred expenses to the tune of Rs. 40 to 50 lakhs and the general
assertions that the funds were required to enhance the safety and
security of the Trust property and to insulate it from land grabbers and
encroachers, the learned Joint Charity Commissioner could not have
lightly acceded to the ever improving version of the Respondent No.3 in
regard to the necessity of sale.
30. It is imperative to note, an averment that the Applicant No.1 had
incurred expenses to the tune of Rs.40 to 50 lakhs to erect a barbed wire
fencing and compound wall was conspicuous by its absence. Nor any
particulars of the alleged expenditure for the said purpose were
furnished. No material was placed to show how the Trust property was
then being secured and the expenditure incurred for the same. Such
-WP-2505-2023.DOC
claims bereft of specific pleading and supporting document should have
put the learned Charity Commissioner on guard.
31. While granting permission for sale of the Trust property, the
Charity Commissioner exercises parens patriae jurisdiction. If the
permission for sale of the Trust property is granted for the mere asking
on flimsy grounds, without evaluating the necessity of the sale of the
Trust property, the very object of entrusting the power with the Charity
Commissioner to accord sanction or authorisation for sale and alienation
of the Trust property would be defeated. The control over the sale and
alienation of the trust property, which the Charity Commissioner is
expected exercise, to advance the objects of the public Trust, in
particular, and the public interest, in general, would be rendered illusory,
if such sanction and authorization is granted in a casual manner.
32. As noted above, the paramount consideration which ought to
weigh with the Charity Commissioner is the interest, benefit or
protection of the Trust. Thus, in the absence of the necessity for the sale
of the Trust property having been clearly made out, the learned Joint
Charity Commissioner was not justified in constructing a case of
necessity of sale of the Trust property for the Respondent Nos. 3 to 5.
33. The submission of Mr. Naphade that there are adequate
safeguards which protect the interest of the Trust in as much as the sale
consideration is not to be utilized till the final disposal of the Suit No.
-WP-2505-2023.DOC
3151 of 1997and the Change Reports, if properly appreciated, runs
counter to the purpose for which the property of the Trust was professed
to be sold. The property of the Trust can be sold primarily to advance
the objects of the Trust. The funds were allegedly necessary to undertake
the charitable and philanthropical activities. A restraint on utilisation of
the funds for any purpose till the final disposal of the Suit, with the
attendant vicissitudes of the litigation, in a sense, defeats the very object
of according sanction for sale. Therefore, no mileage can be drawn from
the stipulation that the Trustees were not to use the consideration at all
till the final disposal of the Suit and the Change Reports.
34. The conspectus of the aforesaid consideration is that, looked from
any perspective, the impugned order does not deserve to be sustained.
The sanction accorded by the learned Joint Charity Commissioner suffers
from singular non application of mind and is, thus, perfunctory. The
impugned order, therefore, deserves to be quashed and set aside.
35. At this stage, it is necessary to note that, Mr. Adgule, the leaned
Counsel for the Respondent No.7 submitted that, in the event, the order
according sanction is set aside, the Respondent Nos. 3 to 5 be directed to
refund the amount which has been paid by the Respondent No. 7 to the
Trust, as shown in the Schedule (Exhibit "C") appended to the Affidavit
in Reply.
-WP-2505-2023.DOC
36. This Court can only clarify that, in view of the setting aside of the
order granting sanction for the sale of the Trust property, the Trust
would be obligated, in law, to refund the part consideration which has
been paid to the Trust by Respondent No. 7.
37. Hence the following order:
:ORDER:
(i) The Petitions stand allowed.
(ii) The impugned order according sanction to
the sale of the trust property stands quashed and set
aside.
(iii) The Application No. 77 of 2021 stands
rejected.
(iv) In view of the disposal of the Petitions,
Interim Application No. 1442 of 2025 also stands
disposed.
(v) Rule is made absolute in the aforesaid terms.
No costs.
[N. J. JAMADAR, J.]
