{"id":52213,"date":"2008-10-22T00:00:00","date_gmt":"2008-10-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kulkarni-vs-the-joint-charity-commissioner-on-22-october-2008"},"modified":"2018-06-22T06:04:45","modified_gmt":"2018-06-22T00:34:45","slug":"kulkarni-vs-the-joint-charity-commissioner-on-22-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kulkarni-vs-the-joint-charity-commissioner-on-22-october-2008","title":{"rendered":"Kulkarni vs The Joint Charity Commissioner on 22 October, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Kulkarni vs The Joint Charity Commissioner on 22 October, 2008<\/div>\n
Bench: V.C. Daga<\/div>\n
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n                  CIVIL APPELLATE JURISDICTION\n\n\n               WRIT PETITION NO. 6743     OF     2007\n\n\n     The Central Hindu Military Social\n\n\n\n\n                                                             \n     Education Society, A Society duly\n     registered under     the Societies\n     Registration Act & also under the\n\n\n\n\n                                     \n     Public Trust Act, 1950, having\n     office    at   Rambhoomi,    Bhosla\n     Militiary     School      Compound,\n     Anandvalli, Nashik, through its\n     Secretary-   Shri      Divakar   K.\n\n\n\n\n                                    \n     Kulkarni.                                 ...      Petitioner.\n\n                  Vs.\n\n\n\n\n                           \n     1. The Joint Charity Commissioner\n        Nashik Region, Nashik.\n               \n     2. The Chairman\/Manager, Janlaxmi\n        Co-operative    Bank      Ltd.\n        Sammruddhi Gadkari Chowk, Agra\n        Road, Nashik.                          ...      Respondents.\n              \n     P.N.Joshi for the petitioner.\n      \n\n\n     S.D.Rayrikar, A.G.P. for respondent No.1.\n   \n\n\n\n     A.S.Desai for the Respondent No.2.\n\n     Umesh Mankapure, Amicus Curiae is present.\n\n                             WITH\n\n\n\n\n\n                  WRIT PETITION NO. 5861 OF 2008.\n                                            2008\n\n\n     Maharashtra Rashtrabhasha Sabha,\n     Rashtrabhasha Bhavan, 387, Narayan\n     Peth, Pune Through it's authorised\n\n\n\n\n\n     Representative Satish Sampathlal\n     Surana, Age 45 years, Occupation\n     Service, R\/o 24, Nutan Housing\n     Society, Nutan Colony, Aurangabad.        ...      Petitioner\n\n\n                 Vs.\n\n\n\n\n                                     ::: Downloaded on - 09\/06\/2013 14:00:28 :::\n                                      -2-\n\n     1. The   State   of   Maharashtra,\n        Through:Charity   Commissioner,\n        Maharashtra State, Mumbai.\n\n     2. The   Joint    Charity   Commi-\n\n\n\n\n                                                                      \n        ssioner, Pune Region,Pune.\n\n     3. Shantaram Ramchandra Patil, Age\n\n\n\n\n                                              \n        65 years, Occ: Retired, R\/o\n        1327\/A, Sadashiv Peth, Pune-30.\n\n                                                        ...      Respondents.\n\n\n\n\n                                             \n     P.B.Shirsath with V.N.Tayade\n     for the Petitioner.\n\n     V.A.Sonpal, A.G.P. for Respondent Nos\n\n\n\n\n                                \n     N.P.Deshpande for Respondent No.3.\n                   ig           CORAM :      V.C.DAGA, J.\n\n                                DATED :      22nd October 2008.\n                 \n     JUDGMENT :\n<\/pre>\n
     ——–\n<\/p>\n
     .         Rule    in both petitions returnable                 forthwith.\n<\/p>\n
     Heard finally by consent of the parties.\n<\/p>\n
     2.        These    petitions,      filed under Article 227                    of<\/p>\n
     the    Constitution      of India, are directed against                     the<\/p>\n
     orders    passed    by    the   Joint     Charity         Commissioner,<\/p>\n
     Nashik    and    Pune rejecting applications                filed       under<\/p>\n
     section    36(1)(a) of the Bombay Public Trust Act, 1950<\/p>\n
     (‘B.P.T.Act’      for    short).      In both petitions              parties<\/p>\n
     are    different    but the legal contentions                 raised        are<\/p>\n
     common    based on more or less similar basic facts,                          so<\/p>\n
     this     common    judgment     shall       dispose of both<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                      -3-<\/span><\/p>\n
     these petitions.\n<\/p>\n
     Facts in W.P.No.6743\/2007 :\n<\/p>\n
     ————————-\n<\/p>\n
     3.        The      petitioner- Central Hindu Military Social<\/p>\n
     Education Society is a Trust duly registered under the<\/p>\n
     provisions      of the B.P.T.Act owning properties one                        of<\/p>\n
     which    bearing Plot No.11, Survey Nos.                710, 711, 714,<\/p>\n
     Hissa    No.12,      admeasuring      517.50     sq.mtrs.            situate<\/p>\n
     within the limits of the Nashik Municipal Corporation,<\/p>\n
     Nashik (“said property” for short).\n<\/p>\n
     4.        The
\n                     ig petitioner    trust    is running           a     Bhosala<\/p>\n
     Military      School    and other allied institutions.                      The<\/p>\n
     petitioner      trust finding it difficult to develop                       the<\/p>\n
     said property for want of financial resources, adopted<\/p>\n
     a    resolution in its General Body Meeting held on 30th<\/p>\n
     November,       1997    to    enter     into     an     agreement             of<\/p>\n
     development        with one Janlaxmi Co-operative Bank Ltd.,<\/p>\n
     (“Bank”      for    short).     Accordingly,         the      petitioner-\n<\/p>\n
     Trust    executed development agreement in favour of the<\/p>\n
     said    Bank    and    handed over possession             of     the      said<\/p>\n
     property in the year 1977 itself and got it developed.\n<\/p>\n
     5.        The      petitioner- Trust faced legal problems in<\/p>\n
     executing      the    registered documents in favour of                     the<\/p>\n
     Bank    so    as to transfer part of the interest                    in     the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                     -4-<\/span><\/p>\n
     said    property     in    favour    of the Bank         for      want       of<\/p>\n
     permission     of the Charity Commissioner under                    section<\/p>\n
     36(1)(a)     of    the    B.P.T.      Act.      Consequently,              the<\/p>\n
     petitioner-       Trust    moved    an application           before        the<\/p>\n
     Joint    Charity     Commissioner, Nashik some time in                     the<\/p>\n
     month    of July, 1999, to seek permission under section<\/p>\n
     36(1)(a)     of the B.P.T.      Act so as to transfer part of<\/p>\n
     the    property     in favour of the Bank in terms                  of     the<\/p>\n
     development agreement.\n<\/p>\n
     6.          The Charity Commissioner after hearing parties<\/p>\n
     to    the<\/p>\n
                 application, by a reasoned order, refused                        to<\/p>\n
     grant post facto sanction finding that no tenders were<\/p>\n
     invited     by the Trust before sealing the agreement and<\/p>\n
     handing     over    possession of the subject              property          in<\/p>\n
     favour      of the Bank and that as per clause (iv) of the<\/p>\n
     development       agreement dated 30th September, 1998, the<\/p>\n
     obligation     to    obtain    permission       from       the      Charity<\/p>\n
     Commissioner under B.P.T.           Act was thrown on the Bank,<\/p>\n
     especially,       when    the trustees were supposed to                  have<\/p>\n
     obtained such sanction.         This order is under challenge<\/p>\n
     in    this petition at the instance of the petitioner in<\/p>\n
     W.P.No.6743\/2007.\n<\/p>\n
     Facts in W.P.No.5861\/2008 :\n<\/p>\n
     ————————-\n<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                        -5-<\/span><\/p>\n
     7.          In    this petition also, petitioner is a public<\/p>\n
     trust    registered        under the provisions of the                     B.P.T.\n<\/p>\n
     Act     established        and    controlled            by     the        Central<\/p>\n
     Government        for    promotion of Hindi language owning                         a<\/p>\n
     property         bearing    Survey      No.44,          Sheet         No.          73<\/span><\/p>\n
     admeasuring 1077 sq.          meters situated at Aurangabad.\n<\/p>\n
     8.          The    said trustees considering prime                      location<\/p>\n
     of    the    Trust property resolved to develop                       the      said<\/p>\n
     property      and    assigned the rights of                 development            in<\/p>\n
     favour      of    one “M\/s.      Yogiraj Builders” in                 the      year<\/p>\n
     1977.\n<\/p>\n
     9.          The    petitioners      claim        to       have      moved          an<\/p>\n
     application        under    section      36      of     the      B.P.T.          Act<\/p>\n
     sometime      in the year 1977.          However, according to the<\/p>\n
     office       of     the    Charity       Commissioner,                no       such<\/p>\n
     application        was filed by the Trust.                No evidence            was<\/p>\n
     produced      on    record to show that such an                    application<\/p>\n
     was    moved at any time muchless on 23rd October, 1997.\n<\/p>\n
     The present proceedings under section 36 (1)(a) of the<\/p>\n
     B.P.T.       Act    were initiated by filing an                    application<\/p>\n
     dated dated 9th August, 2001.\n<\/p>\n
     10.         According to the petitioners, the tenders were<\/p>\n
     floated      in    the    local newspapers on               13th      February,<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                           -6-<\/span><\/p>\n
     1998.      In       response thereto, four         persons         submitted<\/p>\n
     their     tenders        on 25th February, 1998.            According           to<\/p>\n
     the    petitioners, one M\/s.Yogiraj Builders offered                            to<\/p>\n
     give    highest percentage of constructed portion in the<\/p>\n
     building to the Trust to be constructed on the subject<\/p>\n
     plot    of     the Trust within a period of 20 months                       from<\/p>\n
     the date of development agreement.\n<\/p>\n
     11.        The       agreement for development was executed on<\/p>\n
     16th    March, 1998.          The total built up area was                 2,154<\/p>\n
     sq.meters.           Out   of   this 1,217      sq.mtrs.           area       was<\/p>\n
     agreed<\/p>\n
                to be given to the Trust.             As against this, 17<\/p>\n
     shops     in       the   basement plus 17 shops on              the     ground<\/p>\n
     floor were to be retained by the builder and developer<\/p>\n
     on    lease for a period of 99 years.                 The Trust was             to<\/p>\n
     execute       lease      deed   in    favour of       the      builder        and<\/p>\n
     developer.\n<\/p>\n
     12.        The       application dated 9th August, 2001                   moved<\/p>\n
     under section 36 (1)(a) was treated as application for<\/p>\n
     ex     post     facto sanction by the Charity               Commissioner.\n<\/p>\n
     The    said application, after hearing the trustees, was<\/p>\n
     rejected by the Charity Commissioner for want of power<\/p>\n
     to    grant        ex post facto sanction to           the      arrangement<\/p>\n
     arrived       at    between     the    trust    and      the     developer.\n<\/p>\n
     Consequently, application came to be rejected.\n<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                     -7-<\/span><\/p>\n
     Submissions :\n<\/p>\n
     ———–\n<\/p>\n
     13.       Mr.P.N.Joshi,       learned    counsel appearing                 for<\/p>\n
     the    petitioner    in W.P.No.6743\/2007            raised        solitary<\/p>\n
     contention that the Joint Charity Commissioner was not<\/p>\n
     precluded      from considering the grant of ex post facto<\/p>\n
     approval or sanction to the development agreement.                           He<\/p>\n
     thus,    submits    that     matter be remitted back                to     the<\/p>\n
     Joint Charity Commissioner for consideration afresh.\n<\/p>\n
     14.<\/p>\n
               Mr.Shirsath, learned counsel appearing for the<\/p>\n
     petitioners      in W.P.No.5861\/2008 urged that the                    Joint<\/p>\n
     Charity    Commissioner without ascertaining the fact of<\/p>\n
     filing    earlier    two applications dated 23rd                  October,<\/p>\n
     1997    and 24th October, 1998 filed by the                  petitioners<\/p>\n
     erroneously      held   that    no   such       applications             were<\/p>\n
     received by its office.\n<\/p>\n
     15.       He    further    submits that the           impugned         order<\/p>\n
     dated    16th    May, 2008 is passed without               hearing         the<\/p>\n
     Advocate    for the petitioner as such impugned order is<\/p>\n
     in breach of the principles of natural justice.\n<\/p>\n
     16.       According     to    Mr.Shirsath, the agreement                   for<\/p>\n
     development      is not within the sweep of section 36                       of<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                          -8-<\/span><\/p>\n
     the B.P.T.Act, 1950.           The lease is to be created after<\/p>\n
     the    terms      of    development agreement              are     fulfilled.\n<\/p>\n
     Therefore,        it    was   well    within the           rights        of     the<\/p>\n
     trustees to apply for sanction before execution of the<\/p>\n
     long term agreement of lease.\n<\/p>\n
     17.         In    the submission of the learned counsel, the<\/p>\n
     Charity      Commissioner       while granting             sanction         under<\/p>\n
     section      36 is required to bear in mind the                      interest,<\/p>\n
     benefit      and protection of the trust.                  He has power to<\/p>\n
     refuse<\/p>\n
                 permission        for sale of the trust property                      on<\/p>\n
     the    ground of inadequacy of consideration and he                             may<\/p>\n
     reject      the    agreement     on       that    ground.          The      Joint<\/p>\n
     Charity      Commissioner       has committed error in                   relying<\/p>\n
     upon    the Division Bench judgment of this Court in the<\/p>\n
     case    of       Madhukar Sundarlal Seth v.                S.K.Laul,<\/a>          1993<\/p>\n
     Mh.L.J.       1107.      According to him, power under section<\/p>\n
     36    of    the    B.P.T.Act, which vests with                  the      Charity<\/p>\n
     Commissioner,          is   very limited.         He has        to     consider<\/p>\n
     genuine      need to sell immovable property of the Trust.\n<\/p>\n
     Secondly,        he has also to consider whether or not                         the<\/p>\n
     said    property is being sold in the interest of                           Trust<\/p>\n
     and    its beneficiaries.           He cannot substitute his                    own<\/p>\n
     ideas and views vis-a-vis functioning of trust as held<\/p>\n
     by    the    Division       Bench    of this       Court        in     Suburban<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>
\n                                             -9-<\/span><\/p>\n
     Education           Society           v.      Charity        Commissioner               of<\/p>\n
     Maharashtra State,<\/a> 2004 (2) All.M.R.                           575.\n<\/p>\n
     18.        According         to       the    learned         counsel,          in     the<\/p>\n
     present       case, the learned Joint Charity                         Commissioner<\/p>\n
     has     erroneously         held that the construction                       will       be<\/p>\n
     unauthorised          and the same will not come in the aid of<\/p>\n
     Trust     or    the builder to regularise                      the      transaction<\/p>\n
     without       any sound reason.              In his submission, various<\/p>\n
     reasons       mentioned          by    the Trust for             developing           its<\/p>\n
     property have not been considered by the learned Joint<\/p>\n
     Charity Commissioner.\n<\/p>\n
     19.        Mr.Shirsath            submits      that        if the          Trust      has<\/p>\n
     taken     a    decision that the Trust wants to dispose                                 of<\/p>\n
     the     property       to fulfil its objects, then it                          is     not<\/p>\n
     within the jurisdiction of the Charity Commissioner to<\/p>\n
     go    behind        this decision in exercise of powers                           under<\/p>\n
     section       36 of the B.P.T.              Act.      Reliance is placed on<\/p>\n
     the     judgment       of this Court in the case of Bara                            Imam<\/p>\n
     Masjid     Trust       v.    Charity         Commissioner,              Maharashtra<\/p>\n
     State,<\/a>        2006 (1) Mh.L.J.              809.    In his submission, the<\/p>\n
     power    conferred          on    the Charity            Commissioner             under<\/p>\n
     section       36(1)    is     to ascertain whether                    or     not      the<\/p>\n
     property       is    being sold in the interest of the                            Trust<\/p>\n
     and that at the best available price.\n<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span><\/p>\n
                                        – 10 –\n<\/p>\n
     20.       It    is    further submitted that the                   since        the<\/p>\n
     petitioner      Trust      had    no finance         to     construct           and<\/p>\n
     develop    the      old    building, it had no option                    but      to<\/p>\n
     invite     tenders        and    enter       into      an     agreement           of<\/p>\n
     development      with      M\/s.Yogiraj        Builders            as     it     had<\/p>\n
     offered    to give maximum constructed area to the Trust<\/p>\n
     as    compared      to    other offerers.          The      learned         Joint<\/p>\n
     Charity Commissioner failed to take into consideration<\/p>\n
     the    legal    and factual aspects and thereby                      erred        in<\/p>\n
     rejecting the application.\n<\/p>\n
     21.       He    further submits that the Trust has entered<\/p>\n
     into an agreement for development of its plot with the<\/p>\n
     builder    and,      immediately,          applied for          sanction          as<\/p>\n
     contemplated        under    section 36 of the B.P.T.                    Act      to<\/p>\n
     the    Joint    Charity      Commissioner.           No ex        post        facto<\/p>\n
     sanction      was asked for by the petitioners because the<\/p>\n
     lease    was    to    be    created only after              the      terms        of<\/p>\n
     agreement      for    development          are     fulfilled           as       per<\/p>\n
     condition      No.4 in the agreement.              Reliance is            placed<\/p>\n
     on the judgment of the division bench of this Court in<\/p>\n
     the    case    of    A.R.Khan Construwell & Co.                    v.         Youth<\/p>\n
     Education      and Welfare Society, Nasik,
\n                                         Nasik<\/a> 2006(2) Mh.L.J.\n<\/p>\n
     595.<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p>\n
                                     – 11 –\n<\/p>\n
     22.       Per     contra,    Mr.Deshpande,            learned         counsel<\/p>\n
     appearing for respondent No.3 urged that this is not a<\/p>\n
     fit    case for entertaining petition under Article                          227<\/p>\n
     of the Constitution of India.             He further submits that<\/p>\n
     it    is absolutely false on the part of the petitioners<\/p>\n
     to    contend     that they had filed application                   on     23rd<\/p>\n
     October, 1997 and another application on 14th October,<\/p>\n
     1997.     According to him, had these applications                         been<\/p>\n
     filed,    the     petitioners would have certainly                    pressed<\/p>\n
     those     applications        rather       than         entering           into<\/p>\n
     transactions       with    the builder.        He     further         submits<\/p>\n
     that<\/p>\n
             no evidence in this behalf is produced on record<\/p>\n
     to    support     filing    of two      applications           on     earlier<\/p>\n
     occasions.\n<\/p>\n
     23.       Mr.Deshpande        further      submits           that        under<\/p>\n
     section      36   of    the B.P.T.Act      previous          sanction          is<\/p>\n
     contemplated.          Therefore,    the Trust should not                  have<\/p>\n
     finalised the transaction.           He submits that one cannot<\/p>\n
     finalise      the deal and then approach for permission or<\/p>\n
     sanction.      In his submission, the Charity Commissioner<\/p>\n
     by     the     impugned     order       has    rightly         held        that<\/p>\n
     application       is not maintainable.          He further            submits<\/p>\n
     that    the    petitioners     had engaged as many                as     three<\/p>\n
     advocates.        All    of them chose to remain absent                    when<\/p>\n
     the     matter      was     heard    by       the       Joint         Charity<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p>\n
                                            – 12 –\n<\/p>\n
     Commissioner.            If    that     be so, he         submits         that       no<\/p>\n
     grievance         in this behalf can be allowed to be made or<\/p>\n
     entertained at the instance of the petitioners.\n<\/p>\n
     24.         Mr.Deshpande further submits that the trustees<\/p>\n
     of    the    Trust have executed an agreement to                          purchase<\/p>\n
     built-up         area    of 1,197 sq.ft.           in the same            building<\/p>\n
     for     Rs.13,00,000\/-.           The      amount         has      been        paid.\n<\/p>\n
     According         to    him,    the     builder       has      earned        profit<\/p>\n
     running      into       crores, as against which the Trust                         has<\/p>\n
     suffered         loss    of    about Rs.64,00,000\/-.                  He,      thus,<\/p>\n
     prayed for dismissal of the petition.\n<\/p>\n
     Consideration :\n<\/p>\n
     ————-\n<\/p>\n
     25.         At    the    outset, having seen the pleadings                           in<\/p>\n
     the   petition being Writ Petition No.6743\/2007 and the<\/p>\n
     prayers      made,      the facts of the case do                   not      justify<\/p>\n
     invocation        of    Article        226 of      the      Constitution             of<\/p>\n
     India.       Hence petition as filed under Article 226                               is<\/p>\n
     liable to be rejected.            Order accordingly.\n<\/p>\n
     26.         Let    me    first    consider            the      submission            of<\/p>\n
     Mr.Shirsath (in W.P.No.5861\/2008) that the application<\/p>\n
     moved    by the Trust under section 36(1) of the                             B.P.T.\n<\/p>\n
     Act   was not for post facto sanction.                        The     submission<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p>\n
                                          – 13 –\n<\/p>\n
     made is misplaced.           In this case, property has already<\/p>\n
     been    developed.          Construction is complete                 in     toto.\n<\/p>\n
     Funds    are spent by the developer.                 Third party rights<\/p>\n
     are    already      created.         Now,    no    other        person          can<\/p>\n
     compete.       The fate of the property is already sealed.\n<\/p>\n
     Under       these      circumstances,         by       no       stretch           of<\/p>\n
     imagination       it    can be said to be an application                        for<\/p>\n
     prior    sanction.       The condition to execute lease                       deed<\/p>\n
     is    a part of composite transaction.                   It is one of the<\/p>\n
     conditions of the development agreement.\n<\/p>\n
     27.<\/p>\n
                 Now, let me examine, the submission made as to<\/p>\n
     whether      or not an application for post facto sanction<\/p>\n
     can    be    considered       on the text of section                 36(1)        of<\/p>\n
     B.P.T.       Act.      The    relevant part of the                section         36<\/p>\n
     reads as under :\n<\/p>\n
                 S.36 (1) : Notwithstanding anything contained
\n                 in the instrument of trust —\n<\/p><\/blockquote>\n
                 (a)     no sale, exchange                  or     gift       of     any<\/p>\n
                 immovable property; and<\/p>\n<\/blockquote>\n
                 (b)     no lease for a period exceeding ten
\n                 years in the case of agricultural land or for
\n                 a period exceeding three years in the case of
\n                 non-agricultural land or building; belonging<\/p>\n
                 to a public trust shall be valid without the
\n                 previous sanction of the Charity Commissioner.
\n                 Sanction may be accorded subject to such
\n                 conditions as the Charity Commissioner may
\n                 think fit to impose, regard being had to the
\n                 interest, benefit or protection of the trust;\n<\/p><\/blockquote>\n
                 (c)        If     the     Charity          Commissioner               is<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p><\/blockquote>\n
                                 – 14 –\n<\/p><\/blockquote>\n
               satisfied that in the interest of any public
\n               trust any immovable property thereof should be
\n               disposed of, he may, on application, authorise
\n               any trustee to dispose      of such property
\n               subject to such conditions as he may think fit<\/p>\n
               to impose, regard being had to the interest or
\n               benefit protection of the trust.” (Emphasis
\n               supplied)<\/p>\n<\/blockquote>\n
     28.       The   question posed is no more res integra                    in<\/p>\n
     view of earlier judgements of this Court on the issue.\n<\/p>\n
     29.       In    the case of Chandrabhan Chunnilal Gour                   v.<\/p>\n
     Shravan   Kumar Khunnolal Gour,
\n                               Gour 1980 Mh.L.J.                 690;       the<\/p>\n
     learned single Judge has held as under :\n<\/p>\n
               “The use of the word “previous” before the
\n               word “sanction” in     section 36(1), Bombay
\n               Public Trusts Act clearly means that sanction
\n               contemplated by subsection (1) has to be
\n               obtained before the transaction is completed
\n               and not thereafter. Ex-post -facto sanction<\/p>\n
               cannot validate the transaction. The second
\n               sentence added by the Amending Act of 1971<\/p>\n
               merely authorises the Charity Commissioner to
\n               impose conditions as he may think fit while
\n               granting sanction.    Once having said that
\n               sanction has to be previous, it was not
\n               necessary to repeat the same word again while<\/p>\n
               empowering the Charity Commissioner to impose
\n               conditions.   Hence, merely because the word
\n               “sanction” in the second sentence is not
\n               preceded by word “previous” it cannot be said
\n               that Legislature had empowered the Charity
\n               Commissioner to accord sanction after the<\/p>\n
               transaction.   Clause (g) of section 69 refers
\n               to sanction under section 36 and cannot be
\n               taken to enlarge the scope of section 36. It
\n               the Charity Commissioner has to exercise power
\n               under section 69, he can exercise it only in
\n               the manner provided in section 36(1). Hence,
\n               if   section 36 requires     sanction to    be
\n               previous, there is no power in the Charity<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p><\/blockquote>\n
                                   – 15 –<\/p><\/blockquote>\n
               Commissioner to accord sanction after the
\n               transaction and validate it by the so called
\n               ex-post-facto sanction. Section 36(1) is not
\n               merely procedural or technical. Section 41-E
\n               cannot   be said to     empower the   Charity<\/p>\n
               Commissioner   to grant an ex-post     -facto
\n               sanction.” (Emphasis supplied)<\/p>\n
     The   above judgment is approved by the Division                      Bench<\/p>\n
     of    this court in the case of Charity Commissioner                        v.<\/p>\n
\n\n     Shantidevi      L.   Chhaganlal       Foundation          Trust,\n                                                               Trust         1989\n\n     Mh.L.J.    1048 in the following words :\n\n\n\n\n                               \n               \"16.     In Chandrabhan vs.      Shrawan Kumar\n                  \n<\/pre>\n
               (supra), a single Judge of this Court held
\n               that sanction contemplated by section 36(1)
\n               has   to    be obtained   from    the   Charity
\n               Commissioner   before the      transaction   is<\/p>\n
               completed and there is no power in the Charity
\n               Commissioner to accord sanction after the
\n               transaction is completed and validate it by ex
\n               post facto sanction.” ……\n<\/p>\n
     30.       Reading     of    the       aforesaid             sub-section<\/p>\n
     unequivocally goes to show the permission contemplated<\/p>\n
     under    section     36(1) is a prior “permission” and                    not<\/p>\n
     subsequent “permission or sanction”.\n<\/p>\n
     31.       The   Supreme Court in para-63 of its                  judgment<\/p>\n
     in    the case of Life Insurance Corporation of India v.\n<\/p>\n
     Escorts    Ltd.,     & Ors.,\n                            Ors. (1986) 1 SCC 264, observed                      as\n\n     under:\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 14:00:28 :::<\/span>\n                                    - 16 -\n\n\n<\/pre>\n
                  “63.   …………. We find, on a perusal of
\n                  the several, different sections of the very
\n                  Act,   that the Parliament      has not      been
\n                  unmindful of the need to clearly express its<\/p>\n
                  intention by using the expression “previous
\n                  permission” whenever it      was thought that
\n                  “previous permission” was      necessary.      In<\/p>\n
                  Sections 27(1) and 30, we find that the
\n                  expression ‘permission’ is qualified by the
\n                  word ‘previous’ and in Sections 8 (1), 8(2)
\n                  and 31, the expression ‘general or special
\n                  permission’   is   qualified    by    the    word<\/p>\n
                  “previous”, whereas in Sections 13(2), 19(1),
\n                  19(4), 20, 21(3), 24, 25, 28(1) and 29 the
\n                  expressions ‘permission’ and       ‘general    or
\n                  special permission’ remain unqualified.       The
\n                  distinction   made by     Parliament      between<\/p>\n
                  permission simpliciter and previous permission
\n                  in the several provisions of the same Act
\n                  cannot be ignored or strained to be explained<\/p>\n
                  away by us. That is not the way to interpret
\n                  statutes. …………..”\n<\/p>\n
     In     the    above view of the matter, submission made                     by<\/p>\n
     Mr.Shirsath holds no water.\n<\/p>\n
     Absence of transparency :\n<\/p>\n
     ———————–\n<\/p>\n
     32.          So far as absence of a transparency leading to<\/p>\n
     absence       of public invitation of tenders is concerned,<\/p>\n
     this    Court     as well as the Apex Court have repeatedly<\/p>\n
     held    that the sale of socialist\/ public property must<\/p>\n
     be transparent.\n<\/p>\n
     33.          In   a case of Ram and Shyam Company v.                  State<\/p>\n
     of Haryana,
\n        Haryana AIR<\/a> 1985 SC 1147;           the Apex Court tried to<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p>\n
                                         – 17 –\n<\/p>\n
     make    distinction between two types of properties                             and<\/p>\n
     disposal       thereof,     i.e.     the use and disposal of                    the<\/p>\n
     private       property and socialist property;                    and went on<\/p>\n
     to    observe     that owner of private property                     may      deal<\/p>\n
     with    it in any manner he likes without causing injury<\/p>\n
     to any one else.        But the socialist property has to be<\/p>\n
     dealt      with    in   a       public      interest.           The        marked<\/p>\n
     difference       lies   in this is that while the                    owner        of<\/p>\n
     private       property may have a number of                 considerations<\/p>\n
     which     may    permit     him to dispose of his                 property         a<\/p>\n
     song.      On the other hand, disposal of trust                        property<\/p>\n
     partakes<\/p>\n
                    the character of a Trust in its disposal and<\/p>\n
     there should be nothing hanky and panky and it must be<\/p>\n
     done    at the best price so that larger revenue                           coming<\/p>\n
     into the coffers of the State.\n<\/p>\n
     34.        While    taking       the above view, the Apex                   Court<\/p>\n
     relied upon various judgments including that of Ramana<\/p>\n
     Dayaram Shetty v.          The International Airport Authority<\/p>\n
     of    India,
\n           India<\/a>       (1979)    3    SCR 1014 = AIR            1979       SC    1628;\n<\/p>\n
     wherein    the property of the public sector undertaking<\/p>\n
     was    involved.     It is, thus, clear that the                     socialist<\/p>\n
     property      or the property held in Trust is treated                            at<\/p>\n
     par    with     the public property or government                      property<\/p>\n
     for    the purposes of sale or transfer.                    If that be so,<\/p>\n
     the same consideration would hold good for disposal of<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n<\/p>\n
                                      – 18 –\n<\/p>\n
     the properties of the public Trust.\n<\/p>\n
     35.        The only question that arises in this case for<\/p>\n
     consideration        is:     whether on the facts               found,        the<\/p>\n
     petitioner Trust was justified in agreeing to transfer<\/p>\n
     property held by it in favour of the developer or Bank<\/p>\n
     by    a   private      negotiation       without       inviting         public<\/p>\n
     offers.\n<\/p>\n
     36.        It     is    needless   to       mention           that        while<\/p>\n
     developing       the    property   held       in     Trust       by     public<\/p>\n
     charitable<\/p>\n
                      trust,     the Trust is expected to make                     all<\/p>\n
     attempts        to   obtain    best       available         price         while<\/p>\n
     disposing       of the public property or the property held<\/p>\n
     in    trust.      This     principles      may be        taken       as     well<\/p>\n
     established by now.\n<\/p>\n
     37.        In   Fertilizer     Corporation Kamagar                 Union        v.\n<\/p>\n
     Union     of India,\n                  India AIR 1981 SC 344 (at p.                   350) the Apex\n\n\n\n\n\n<\/pre>\n
     Court speaking through Chandrachud, C.J., observed :\n<\/p>\n
               “We want to make it clear that we do not doubt
\n               the bona fides of the authorities, but as far
\n               as possible, sales of public property, when<\/p>\n
               the intention is to get the best price, ought
\n               to take place publicly. The vendors are not
\n               necessarily bound to accept the highest or any
\n               other offer, but the public at least get the
\n               satisfaction the the Government has put all
\n               its cards on the table”.\n<\/p><\/blockquote>\n
                                                ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span><\/p>\n
                                         – 19 –\n<\/p><\/blockquote>\n
     38.         In     Sachidanand      Pandey        v.        State       of     West<\/p>\n
     Bengal,      AIR    1987     SC 1109        (at    p.1133)         O.Chinnappa<\/p>\n
     Reddy,      J.   after considering almost all the decisions<\/p>\n
     of    the    Apex    Court    on the        subject         summarised           the<\/p>\n
     propositions in the following terms :\n<\/p>\n
                 “On a consideration of the relevant cases
\n                 cited at the bar the following propositions
\n                 may be taken as well established :       State
\n                 owned or public owned property is not to be
\n                 dealt with at the absolute discretion of the<\/p>\n
                 executive.   Certain precepts and principles
\n                 have to be observed. Public interest is the
\n                 paramount consideration. One of the methods<\/p>\n
                 of securing the public INTELSAT when it is
\n                 considered necessary to dispose of a property
\n                 is to sell the property by public auction or
\n                 by inviting tenders.     Though that is the<\/p>\n
                 ordinary rule, it is not an invariable rule.
\n                 There may be situations      where there are
\n                 compelling reasons    necessitating departure
\n                 from the rule but then the reasons for the
\n                 departure must be rational and should not be
\n                 suggestive of discrimination. Appearance of<\/p>\n
                 public justice is as      important as doing
\n                 justice.   Nothing should be done which gives<\/p>\n
                 an appearance of bias, jobbery or nepotism”.\n<\/p><\/blockquote>\n
     39.         On   the   aforesaid touchstone, if the cases in<\/p>\n
     hand are      examined,      the      petitioner            trust,        neither<\/p>\n
     invited      tenders nor held public auction but chose                             to<\/p>\n
     hold negotiations with private party straightway.                                Had<\/p>\n
     they    invited      tenders, the possibility of                    the      Trust<\/p>\n
     getting       better       offers.           In        both         petitions,<\/p>\n
     transparency in the subject transactions is lacking.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span><\/p>\n
                                 – 20 –\n<\/p>\n
     40.       On the above canvass, both these petitions are<\/p>\n
     without     any   merit.   In       the    result,         both      these<\/p>\n
     petitions    are dismissed.     Rule is discharged with                    no<\/p>\n
     order as to costs.\n<\/p>\n
                                                (V.C.DAGA, J.)<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:00:28 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Kulkarni vs The Joint Charity Commissioner on 22 October, 2008 Bench: V.C. Daga IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6743 OF 2007 The Central Hindu Military Social Education Society, A Society duly registered under the Societies Registration Act & also under the Public Trust […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-52213","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nKulkarni vs The Joint Charity Commissioner on 22 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kulkarni-vs-the-joint-charity-commissioner-on-22-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kulkarni vs The Joint Charity Commissioner on 22 October, 2008 - 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