Bombay High Court
Arjun Soniram Shinkar And Anr vs The State Of Maharashtra And Ors on 24 September, 2025
2025:BHC-AUG:26195
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6226 OF 2008
1. Arun s/o Soniram Shinkar
Age : 35 years, Occu. : Business,
R/o. : Galli No. 4,
Dhule, Dist. Dhule.
2. Sau. Savita w/o Arun Shinkar
Age : 35 years, Occu. : Household,
R/o. : Galli No. 4, Dhule,
Dist. Dhule. .. Petitioners
Versus
1. State of Maharashtra
Though Joint Charity Commissioner,
Aurangabad Division, Aurangabad.
2. Assistant Charity Commissioner,
Dhule, District Dhule.
3. Joint Charity Commissioner,
Dhule, District Dhule.
4. Lad Samaj Shakiya Wani Samaj
Sanstha, Gut No. 4, Dhule, Dist. Dhule
Through its President.
5. Lad Samaj Shakiya Wani Samaj
Sanstha, Gut No. 4, Dhule, Dist. Dhule
Through its Secretary.
6. Ashok s/o Shravan Patkar
Age : Major, Occu. : Business,
R/o. : 17, Patkar Nagar, Deopur,
Dhule, Dist. Dhule. .. Respondents
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Mr. N. L. Choudhari, Advocate for the Petitioners.
Smt. A. S. Deshmukh, AGP for Respondent Nos. 1 to 3.
Mr. V. D. Hon, Senior Advocate i/b Mr. A. V. Hon, Advocate for
Respondent Nos. 4 and 5.
Mr. Ajay G. Talhar, Advocate for Respondent No. 6 (through V.C.).
CORAM : KISHORE C. SANT, J.
Date on which reserved for judgment : 08th September, 2025.
Date on which judgment pronounced : 24th September, 2025.
JUDGMENT :
-
. The petitioners have approached this Court challenging
judgment and order dated 30.10.2007 passed by the learned Joint
Charity Commissioner, Aurangabad in Enquiry No. 7/2007 in PTR
No. A-276/Dhule. The application of the petitioners came to be
rejected and possession is directed to be recovered from the
petitioners. The respondent No. 1 is the State of Maharashtra,
respondent Nos. 2 and 3 are learned Assistant Charity
Commissioner (A.C.C.), Dhule and learned Joint Charity
Commissioner (J.C.C.), Dhule respectively and respondent No. 4 is
a trust namely Lad Samaj Shakhiya Wani Samaj Sanstha having
trust at Dhule. Other respondents are the trustees.
2. Few facts giving rise to the present petition are that, the
respondent Nos. 4 and 5 are trust having property admeasuring
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183.9 sq.mtr. in City Survey No. 1319 situated in Dhule. The land
was purchased by the trust in the year 1972 for the purpose of
function hall and marriage hall. The trust resolved on
01.10.1989. It was resolved by the trustees to sell out the
property of the trust and to acquire a bigger plot as the present
land was inadequate. In the year 1989 again a proposal was
passed. The resolution was passed on 17.01.1999 in the general
body meeting and an advertisement pursuant to the same came to
be published calling for prospective purchasers and for
negotiations. A committee was formed. An advertisement came
to be issued on 21.01.2001. Since there was no proper response,
third time the advertisement was issued in newspaper dated
11.10.2001. The trust received offers from various persons. The
offer of the petitioners was accepted as it was found to be highest
i.e. Rs. 31.11 Lakhs. The said offer was accepted in a meeting
dated 18.11.2001 as it was matching with the Government
valuation. The valuer's report was showing the value to be 22.47
Lakhs. Pursuant to the said even the agreement came to be
executed in favour of the petitioners. It is thereafter, the trust
filed an application seeking prior sanction from the learned
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Assistant Charity Commissioner to learned Joint Charity
Commissioner, Nashik by filing an application No. 120/2001 by
making compliances.
3. In the enquiry respondent No. 6 - Ashok Patkar raised an
objection in the said proceeding. The learned Joint Charity
Commissioner, Nashik again directed to publish an advertisement
and call for fresh offers. Pursuant to the said, an advertisement
was again published on 30.12.2002. However, there was no
response. The respondent No. 6, however, shown relevant to
purchase the properties for Rs. 50 Lakhs. The learned Joint
Charity Commissioner, therefore, directed respondent No. 6 to
deposit an amount of Rs. 50 Lakhs in a fixed deposit. However,
the respondent No. 6 did not appear thereafter.
4. During the pendency of the proceeding the trust received a
good offer for purchase of one property in Gat No. 177 at Mohadi,
near Dhule. The said land was admeasuring 2 H 26 R. The price
of the land was Rs. 47,50,000/-. The trust, therefore, requested
the petitioners to pay some amount of consideration. The
petitioners paid an amount of Rs. 18 Lakhs on 23.02.2004 and
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Rs. 15 Lakhs on 11.08.2004. However, thereafter the learned Joint
Charity Commissioner refused to grant sanction by way of
impugned order and thus, the petitioners have approached this
Court.
5. In view of subsequent developments the petitioners carried
out amendment with leave of this Court in 2019. In the
meantime, the petition came to be admitted, however, interim
relief was refused against which L.P.A. No. 28/2009 was preferred.
In the said L.P.A. an order is passed restraining respondents from
taking coercive action pursuant to impugned order dated
31.10.2007. It is further brought on record that the petitioners
had availed loan from one Waman Vishnu Shinkar Nagari
Sahakari Sanstha. They could not utilize the property of the trust
and could not generate revenue. Therefore, he could not pay the
amount of loan and now action under section 101 of the
Maharashtra Co-operative Societies Act (for short "M.C.S. Act") is
initiated. In the proceeding under section 101 of the M.C.S. Act
they filed an application to the society for attaching the property
of the trust newly acquired allegedly from the funds of the
petitioners. Now, the property of the trust is seized by the society.
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However, no further steps are taken. One FIR is also now
registered against the petitioners on 29.09.2016 and under section
3(b) and 4 of the Maharashtra Protection of Interest of Depositors
(In Financial Establishments) Act (for short "M.P.I.D. Act") along
with other I.P.C. sections. A petition for quashing was also filed
and that was also withdrawn by the petitioners. In view of
subsequent development it is stated that, the petition was fixed for
hearing on 13.11.2017 . The L.P.A. was heard finally on
24.11.2017. L.P.A. is now disposed of observing that the interim
order shall be in force till disposal of the writ petition. Ultimately,
it is stated that, now the petitioners are facing great financial
difficulties as they have paid the amount to the extent of
Rs. 33,00,000/- to the society now added as respondent No. 4 and
thus now prayer is made that the respondent No. 4 society be
directed to refund the amount of Rs. 33,00,000/- deposited with it
along with interest and prayers are added to that effect.
6. The learned Advocate Mr. Choudhari for the petitioners
vehemently argued that the learned Joint Charity Commissioner
has committed an error in rejecting the application seeking
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sanction under section 36 of the Bombay Public Trust Act. So far
as locus standi is concerned, he submits that, it is the petitioners
who are ultimate sufferers and therefore, they have every right to
challenge the impugned order. He also submits that, since the
trust has purchased a new property from the funds of the
petitioners, they are entitled to get that property purchased by the
trust. He submits that, learned Joint Charity Commissioner has
committed an error by dismissing the application seeking previous
sanction. He relies upon the following judgments :
(I) Parsi Zoroastrian Anjuman, Mhow Vs. The
Sub Divisional Officer/The Registrar of Public
Trusts & Anr. reported in 2002 Live Law (SC) 96.
(II) Suburban Education Society , Mumbai and
another Vs. Charity Commissioner of Maharashtra
State reported in 2004 (2) Mh.L.J 792.
7. The learned Senior Advocate Mr. Hon for respondent Nos. 4
and 5 submits that, the petitioners do not have any locus standi as
there is no right vested with the petitioners. The entire
transaction is illegal as the same is without prior sanction of the
authorities under the Bombay Public Trust Act. Section 36 of the
Bombay Public Trust Act requires that, the transaction can be
made only with prior sanction. He submits that, sub section 5
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makes a provision of granting post facto sanction. However, the
said amendment is introduced in the year 2017. He relies upon
the judgment in the case of Chandrabhan Chunnilal Gour Vs.
Shravan Kumar Khunnolal Gour and another reported in 1980
Mh.L.J. 690. He submits that the provision needs to be construed
strictly. The order was, in fact, challenged by filing writ petition
by the trust and the same is even withdrawn. When the trust itself
is not interested in prosecuting the writ petition, there is no
question of the petitioners getting any locus standi to challenge
the impugned order. When so called agreement was executed the
uncle of the petitioner No. 1 was office bearer of the trust and it
is because of that relation the agreement was entered into for
inadequate consideration. Thereafter even action was required to
be directed under section 41 (B) of the Act. There is also interim
order passed by the Division Bench in L.P.A. not to use the
property. The property is thus lying idle. Now, even the Municipal
Corporation has issued notice stating that the building is in
dilapidated condition.
8. The learned Advocate Mr. Talhar for intervener adopts the
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argument of learned senior advocate Mr. Hon for respondent
Nos. 4 and 5. He submits that, when the same notice was
published in the newspaper it does not show the upset price. No
resolution was on record.
9. In the case of Suburban Education Society (supra), the trust
was having two plots. The trust entered into memorandum of
understanding with two parties for sell of the plots and thereafter
applied for sanction under section 36(1)(a) of the Bombay Public
Trust Act. The said application came to be dismissed on receiving
objections from third party. The Charity Commissioner found the
consideration to be inadequate. In a challenge by the trust, this
Court recorded in the said case that, the transaction was genuine.
The procedure adopted was transparent including public notices
and receiving offers which were exceeding the market value. It
was ultimately held that the learned Charity Commissioner failed
to appreciate the adequacy of the sell price and passed an order
on extraneous consideration. It was held that, though the
agreement was entered prior to obtaining sanction and advance
was accepted that would not invalidated the sale application and
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the application was allowed.
10. In the case of Parsi Zoroastrian Anjuman (supra),
application seeking a sanction for sell of properties came to be
rejected. The matter ultimately reached to the Hon'ble Apex
Court. The Hon'ble Apex Court held that, the Registrar's role is
confined to ensure that the decision is in accordance with the trust
deed and relevant clause. It is not open for the Registrar to go
into the aspect as to what is beneficial or prejudicial to the interest
of the trust. On facts it was observed that the trust had made a
transparent and democratic decision. The said judgment was
under the Madhya Pradesh Public Trust Act. This Court finds that,
both the judgments are not applicable to the present case.
11. So far as judgment relied upon by the learned senior
advocate Mr. Hon in the case of Chandrabhan Chunnilal Gour
(supra), is concerned, this Court held that, there is no provision of
granting ex post facto sanction to the transaction entered without
prior sanction as required under section 36 (1) of the Bombay
Public Trust Act. This Court finds that, the said judgment is
squarely applicable to the facts of this case.
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12. In view of these judgments and from the facts of the case it
is clear that, in the present case, before even applying for a
sanction under section 36 (1) (a) of the Bombay Public Trust Act,
the trust entered into an agreement and accepted the amount of
consideration from the petitioners. Even if the petitioners paid the
amount to the trust that itself would not create any right in favour
of the petitioners. Section 36 of the Bombay Public Trust Act
requires prior sanction for transaction. It is the application of the
trust which is rejected by the authority. As already discussed,
there was even a writ petition filed by the trust which came to be
withdrawn later on and presently there is challenge only by the
petitioners and not by the trust.
13. In the judgment in the case of Shri Ambadevi Sanstha and
Ors. Vs. Joint Charity Commissioner and Ors. reported in (2019)
17 SCC 419. In the said case, the learned Charity Commissioner
granted sanction to sell the properties in the interest of trust. It
was the case that, the trust was not having proper income. The
said was challenged before the High Court. The High Court
confirmed the order passed by the learned Charity Commissioner.
The Hon'ble Apex Court set aside the order of sanction by setting
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aside the order passed by the High Court. It is held that, three
classic requirements must be satisfied being interest, benefit and
protection of the trust. It is the duty of the learned Charity
Commissioner in the cases while granting sanction to be atmost
vigilant. In that case the said permission was granted without
ascertaining the proper value and without fixing the reserved
price. It is held that, for not following these two things the sell
was invalid.
14. In the present case, this Court finds that, the learned Charity
Commissioner has rightly passed an order. There was no proper
valuation done by the trust. Looking to the reasoning of the
learned authority this Court finds that, no case is made out calling
for interference at the hands of this Court. The writ petition,
therefore, stands dismissed. Rule is discharged. No order as to
costs.
( KISHORE C. SANT, J. )
15. At this stage, learned advocate for the petitioners seeks to
continue interim arrangement for a period of four weeks from
today.
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16. At the request of learned advocate for the petitioners,
interim arrangement which was in force to continue for a period
of four weeks from today.
( KISHORE C. SANT, J. )
P.S.B.
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