SCA No. 17131 of 2004 · Gujarat High Court

Kishan Construction – a partnership firm, SCA/17131/2004 2 JUDGMENT petitioner, through its partner Jitendra H.Desai has filed this petition under Articles 226 and 227 of the Constitution of India, for a writ of certiorari or a writ in the nature of certiorari for quashing and setting aside the order dated 23rd December, 2004, passed by the learned Joint Charity Commissioner in Misc. Application No.15 of 2004. The learned Joint Charity Commissioner has passed the order under Section 41A of the Bombay Public Trusts Act, 1950. The learned Joint Charity Commissioner by his impugned order issued certain directions particularly the Charity Commissioner did not approve the lease deed in favour of the petitioner dated 24th March, 2004, executed by the Board of Trustees, Surat Parsi Panchayat - respondent No.5 to respondent No.14 by which petitioner was put in possession of the land in question.

The facts giving rise to this petition are as under:-

2.1 In Surat large number of Parsi Communities are staying and for the benefit of Parsi Communities, SCA/17131/2004 3 JUDGMENT a public trust i.e. Surat Parsi Panchayat – respondent No.5 through Board of Trustees administering certain property of the said trust has been created under the provisions of Bombay Public Trusts Act, 1950 ( hereinafter referred to as “BPT Act”). The subject matter of this petition is certain lands held by the trust which is known as “Dokhma Land”. This land is connected with the disposal of the dead bodies of the Parsis and the religious ceremonies connected therewith in accordance with the religious tenets, traditions, practices, doctrines and customs prevalent for more than 100 years. This system of the disposal of the dead bodies consists of well – like structures where the bodies are placed. These are required to be surrounded by large areas of vegetation with tall trees for the nurture of vultures. They eat away and dispose of the dead bodies with amazing speed. This system as being in vogue since centuries as commanded in the Parsi Religion.

2.2 It further appears that the Board of Trustees had executed a lease of deed in favour of SCA/17131/2004 4 JUDGMENT the petitioner – M/s. Kishan Construction, a partnership firm, on 24th March, 2004, by which the petitioner was put in possession of the land in question [i.e., confers leasehold rights upon the petitioner for the period of 34 months]. The petitioner thereafter used the land in question and have acted accordingly.

2.3 During the operative period of the above lease, respondent No.1 – the Board of Trustees, Surat Parsi Panchayat, respondent No.2 – Darayas N.Master, respondent No.3 – Dr.D.D.Dumasia, respondent No.4 Dr.H.D.Dodhwala, who are also Parsis had filed an application on 13th July, 2004, before the Charity Commissioner with a prayer invoking powers conferred under Section 41A of the BPT Act. The said application was accompanied by application for interim relief. The Charity Commissioner passed an interim order on 13th July, 2004, restraining the trustees as well as petitioner not to carry out any further activities in this behalf. Thereafter petitioner as well as other respondents served with the notice issued by the office of the Charity SCA/17131/2004 5 JUDGMENT Commissioner. The respondents filed their reply. The petitioner also filed its reply opposing the said application. The petitioner has also filed reply before the Charity Commissioner on 16th August, 2004.

2.4 The Charity Commissioner heard the matter and passed the order on 23.12.2004 issuing certain directions under Sec.41A of the BPT Act. The learned Charity Commissioner has treated deed of lease entered into between the Board of Trustees and petitioner as void ab-initio.

2.5 Being aggrieved and dissatisfied with the aforesaid order, as indicated above, M/s. Kishan Construction, petitioner, has filed petition being Special Civil Application No. 17131 of 2004 before this Court challenging the order of the Charity Commissioner dated 23.12.2004.

2.6 From the record it appears that there were two Misc. Applications No.15/04 and 16/04. However, both the matters have been decided by common judgment by the order of the Charity Commissioner dated SCA/17131/2004 6 JUDGMENT

23.12.2004. However, as there were two different orders, the Kishan Construction filed two Special Civil Applications, for which I have considered the main matter i.e. Special Civil Application No.17131 of 2004 for which I have heard in this behalf. However, there was separate Judicial Misc. Application No.16/04 the petitioner also filed separate Special Civil Application No.17137 of 2004, that is how the Kishan Construction filed two matters. However both the petition raises the question regarding legality and validity of the order of the Charity Commissioner.

2.7 It may be noted that the Board of Trustees of Surat Parsi Panchayat have also filed a petition challenging the said order of Charity Commissioner dated 23.12.2004, that was a Special Civil Application No.825/05 which was filed on 20.1.2005 and this matter was also heard along with the said order in this behalf. This matter also raises same question of facts and law in this behalf.

2.8 As far as the matter of Kishan Construction is SCA/17131/2004 7 JUDGMENT concerned, the Board of Trustees are respondents whereas Special Civil Application No.825/05, the Board of Trustees have filed a petition and in that petition they are petitioners in that matter. Similarly the trustees have also filed second petition being Special Civil Application No.861/06 because, as indicated above, there was two Misc. Petitions where also similar challenge of the order of the Charity Commissioner. However, this petition also raises common question and therefore I have heard two matters of Kishan Construction and two matters filed by the Board of Trustees together. However, for the purpose of convenience and for the sake of brevity, I have taken the facts of only the matter of Special Civil Application No.17131 of 2004 which I have heard as main matter.

Mr.Rashesh S.Sanjanwala, learned Counsel appeared on behalf of the petitioner. He has made following submissions:

3.1 The learned advocate has submitted that the impugned order i.e., order dated 23.12.2004 passed by SCA/17131/2004 8 JUDGMENT the Charity Commissioner is wholly without jurisdiction as none of the directions sought by the respondents No.1 to 4 fall within the scope and ambit of Section 41A of the BPT Act. The learned Joint Charity Commissioner has failed to appreciate the ratio of the various decisions of this Court interpreting Section 41A of the BPT Act. The reliefs as sought for are incapable of being granted under Section 41A of the BPT Act as transfer of property has already taken place and the petitioners are in possession of the lands in question. The deed of lease having already been executed, and the petitioners having been put in possession, the transfer of property is complete and such transfer cannot be interfered with in exercise of powers conferred in Sec.41A of the BPT Act. If at all, proceedings in Civil Court are required to be initiated either by the respondents No.1 to 4 hereinafter obtaining prior permission of the Charity Commissioner.

3.2 In support of the aforesaid contention, he has relied upon Sec.41A of the BPT Act which reads as SCA/17131/2004 9 JUDGMENT under:

Sec.41A. Power of Charity Commissioner to issue directions to trustees and other persons. (1) Subject to the provisions of this Act, the Charity Commissioner may from time to time, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purpose of the trust. (2) It shall be the duty of every such trustee and person to comply with a direction issued to him under sub-sec. (1).

“Sec.50 provides for suits relating to public trust:- “Sec.51 provides for consent of Charity Commissioner for institution of suit:

3.3 Relying upon the aforesaid provisions, the SCA/17131/2004 10 JUDGMENT learned Counsel further submitted that, Section 41-A of the Act cannot be invoked for issuing directions to the petitioner who are neither trustees nor any person connected therewith. The learned Counsel further submitted that the said Sec.41A of the BPT Act is also not attracted as the directions sought do not concern administration and the income of the trust. Thus, the reliefs as prayed for could not have been granted under Sec.41A of the BPT Act. The learned Joint Charity Commissioner has, however, failed to appreciate the ratio of the various decisions of this Court in the true perspective.

3.4 In support of the interpretation of Sec.41A of the BPT Act, the learned Counsel has relied upon Division Bench judgment of this Court in the case of Syedna Mohamed Burhanuddin the 52nd Dai-ul-Multaq and Head of the Dawoodi Bohra Community Vs. Charity Commissioner, Gujarat State, Ahmedabad and Others reported in 1992(1) GLH 331, particularly para 42 on page 362 which reads as under:

The language of Section 41A does not contemplate SCA/17131/2004 11 JUDGMENT issuance of general directions to all the trusts. A general direction which may be necessary to be issued to all public trusts will not ordinarily be left to the discretion of the Charity Commissioner. Its very nature will require it to be made the subject-matter of a statutory rule under the said Act. Issuance of such a direction can hardly be left to the human weakness of the Charity Commissioner. Section 41A, therefore, in our opinion contemplates cases of individual trusts which may be suffering on account of the human weaknesses or lapses of the trustees. Section 41A is to be brought into play where some exceptional, unforeseen, unexpected or peculiar situation has arisen in the administration of a public trust which is required to be cared by a remedial direction or where circumstances have arisen foreboding such a situation which requires a preventive measure in the form of a direction. We, therefore, think that this argument of the learned Government Pleader, flowing from imaginary apprehensions, is misconceived. In this connection, we also cannot overlook the fact that SCA/17131/2004 12 JUDGMENT failure to comply with directions issued under Section 41A is visited upon by penal consequences under Section 67 of the said Act.

3.5 After relying upon the aforesaid judgment, the learned counsel submitted that the order of the Charity Commissioner is contrary to and inconsistent with the principles laid down by a Division Bench judgment of this Court and therefore the order of the Charity Commissioner is bad in law.

3.6 The learned Counsel submitted that, without prejudice to the above (original objector in the proceedings of Sec.41-A of the BPT Act) concerns the purposes for which the land in question was given to the trust. The respondents No.1 to 4 have objected to the transfer on the ground that the land in question is 'Dokhma' land and as such cannot be sold and/or transferred by the trust. On internal pages 25 to 28 of the impugned order, the said objection has been dealt with. The learned Joint Charity Commissioner has cast the entire burden of proving that the land in question is not a dokhma land upon the trust and SCA/17131/2004 13 JUDGMENT has proceeded to issue the direction having found that the trust has failed to prove that the land in question is not a dokhma land, which is neither legal nor proper. The burden of proving that the land in question is a dokhma land and as such cannot be transferred lies on the respondents No.1 to 4 and they having failed to discharge the said burden, the learned Joint Charity Commissioner ought to have held that the said objection is not sustainable.

3.7 The learned advocate further submitted that, in any view of the matter, the impugned directions have been issued without recording any positive finding on the issues as to whether (i) the land in question is Dokhma land, and (ii) the land can be sold by the trust considering the use of the land, the requirements of the trust, the apprehended encroachment on the land and the inability of the trust to protect the possession of the land.

3.8 The learned advocate further submitted that the respondents No.1 to 4 have also raised an issue based on Sec.55 of the BPT Act, which provides SCA/17131/2004 14 JUDGMENT doctrine of Cy pres which means as near as possible, inter alia, contending that, if the lands which are otherwise required to be used as dokhma land, have become incapable of such use, it was obligatory for the trust to make necessary application under Sec.55 of the BPT Act. The petitioner submits that, in the facts of the case, Sec.55 of the BPT Act does not get attracted. It is nobody's case that the original object for which the trust is created has failed or that the income of any surplus balance of any public trust has not been utilised or is not likely to be utilised. The requirement of making such application contemplated under Sec.55 of the BPT Act has not arisen in the facts of the case and as such interference in exercise of powers under Sec.41A of the BPT Act was not called for.

3.9 The learned Joint Charity Commissioner has issued the impugned directions having come to the conclusion that no attempt is made by the trust to obtain the highest rates for the lands in question. The petitioner submits that the purpose behind the entire transaction has been explained by the trust in SCA/17131/2004 15 JUDGMENT the affidavit filed in the proceedings under Sec.41A of the BPT Act. On the contrary, as the trust was not in a position to maintain possession of lands and as tenant of a small portion of the land in question was threatening to encroach upon the entire parcel of land, the part of lands were given on lease to the petitioners for the purpose of securing possession and maintaining possession of the entire land. Under the circumstances, the return of income is not a relevant criteria and the ability of the petitioner to maintain the land and to return the same to the trust as and when called upon to do so is of vital importance. The petitioner submits that the provisions of the BPT Act do not oblige the trust to issue public advertisement and to obtain the highest possible price before transferring any of its properties. It is further submitted that, in view of the above finding, the learned Joint Charity Commissioner has not even independently ascertained that the lease rental being paid by the petitioner to the trust is adequate, considering all the relevant aspects of the matter. SCA/17131/2004 16 JUDGMENT

During the course of the hearing, the trust has expressed desire to sell the lands in question without prejudice to their rights and contentions in this behalf. The petitioner, as lessees of the land, have also not objected to the proposed sale on “as is where is basis” provided the petitioner is permitted to submit its bid and provided that in case the petitioner is not the successful bidder, the amount of Rs.2.25 crores, being the amount paid by the petitioners to the trust, interest thereon and expenses incurred by the petitioner for securing possession of the land and for developing the land are reimbursed to the petitioners.

In view of the above, all the issues can be gone into in the application under Sec.36 of the BPT Act that may be filed by the trust. For the reasons stated hereinabove, the learned advocate submitted that the order of the learned Joint Charity Commissioner is required to be quashed and set aside and some directions may be issued in this behalf. (a) That the trust would be at liberty to apply SCA/17131/2004 17 JUDGMENT under Sec.36 of the BPT Act for permission to sell the land (irrespective of the period). (b) If any such application is made, the Charity Commissioner will adjudicate the issue as to whether the trust is entitled to sell the land and if the trust is found competent to sell the land, the learned Joint Charity Commissioner shall grant permission, however, subject to the following conditions: i. The trust will have to invite offers from intending purchasers by issuing advertisements in newspapers having wide circulation. ii. That the Earnest Money Deposit shall be fixed at Rs.2.25 crores considering the fact that Kishan Construction is already out of pocket by approximately Rs.2.25 crores. iii. Kishan Construction shall also be permitted to submit its offer. SCA/17131/2004 18 JUDGMENT iv. If Kishan Construction is found to be successful bidder, then the amount of Rs.2.25 crores shall be adjusted against the purchase price to be paid by Kishan Construction. v. The sale shall be on “as is where is whatever there is” basis. vi. If Kishan Construction does not succeed in purchasing the land, an amount of Rs.2.25 crores will be paid over to Kishan Construction out of the consideration to be paid by the third party purchaser (without any intent). vii. In case Kishan Construction does not succeed in purchasing the lands then the validity and the legality of the agreement can be gone into in the proceeding under Sec.41A of the BPT Act provided the said proceedings are found to be maintainable in light of the law settled by this Court.

On behalf of the trust, I have heard SCA/17131/2004 19 JUDGMENT Mr.Prashant G.Desai, learned Senior Counsel with Mr.M.I.Merchant, learned advocate in this behalf. It may be noted that the trustees have also filed a petition being Special Civil Application No.861 of

6.1 It is the case of the learned counsel for the trust in Special Civil Application No. 861 of 2005 that the petition filed by them may be treated as reply to the file of the petition filed by Kishan Construction.

6.2 The learned Counsels have submitted as under:-

6.3 They submitted that the trust entered into a lease agreement with Kishan Construction in respect of immovable properties situated at village Karanj having Survey No.16, paiki T.P.Scheme No.3, Final Plot No.33 ad-measuring 13760 sq.mts. (1600 sq.yards) for a period of 34 months. The copy of the said registered deed was registered with the office of the Sub-Registrar at Surat. They also relied upon the provisions which they have filed before the Charity SCA/17131/2004 20 JUDGMENT Commissioner in this behalf.

6.4 The Charity Commissioner ought to have appreciated the fact that the registered lease deed entered into between the trust and the lease is only for a period of 34 months and therefore no previous sanction under Sec.36 of the Act is not necessary before entering into such an agreement.

6.5 The learned Counsel further submitted that the Charity Commissioner has committed an error of law as well as of fact in incorrectly interpreting the sum and substance of the lease deed and has wrongly come to the conclusion that the lease deed is void, inoperative as it is entered into in contravention of the provisions of Sec.36 of the Act. It was submitted that the Charity Commissioner has exceeded his power and jurisdiction in issuing directions which are not covered under the provisions of Sec.41A of the BPT Act. The learned Counsel further submitted that the Charity Commissioner has totally lost sight of the fact that the previous sanction of the authority under the Act is necessary only when the lease is for SCA/17131/2004 21 JUDGMENT a period of exceeding 3 years in case of a non- agricultural land. In the instant case, the lease agreement is for a period of 34 months only and the parties have incorporated a condition wherein if in future in case of extension of such lease, the permission of the authority under Sec.36 of the BPT Act is to be obtained. At this stage, when the period of lease does not exceed 36 months, the authority ought not to have issued the impugned directions.

6.6 The learned Counsel further submitted that the Charity Commissioner has not been able to properly interpret the provisions of Sec.55 of the Act. The provisions of Sec.55 of the Act applies to the income or surplus of the trust and it does not apply to the immovable property, and therefore the proceeding wrongly on such assumption has caused miscarriage of justice which deserves to be quashed and set aside.

6.7 It was further submitted that the authority has not properly appreciated the various terms of the lease deed and has not properly understood the SCA/17131/2004 22 JUDGMENT intention of the parties. The terms in the lease deed for extension and for obtaining the permission of the authority under the Act as and when the deed is extended is permissible under the law and there is no question of obtaining ex-post-facto permission. For the sake of argument, if at all ex-post-facto permission is to be obtained, then also as per the various decisions of High Courts, the said can be granted in appropriate cases. The observations that such permission cannot be granted reflects the non- application of mind on the part of the authority below viz. Charity Commissioner.

6.8 The learned Counsel further submitted that the authority below has incorrectly raised doubts and aspersions against the trustees of trust regarding entering into the lease deed with the lease and has wrongly smelt collusion and favourism.

6.9 The learned Counsel further submitted that the Charity Commissioner has caused a grave miscarriage of justice in coming to the conclusion and also proceeding on the assumption that the lease deed is SCA/17131/2004 23 JUDGMENT void ab initio and is in contravention to the provisions of Sec.36 of the BPT Act.

6.10 The learned Counsel further submitted that the Charity Commissioner has incorrectly come to the conclusion that the Civil Court's jurisdiction is total ousted in the matter of Sec.36 of the BPT Act. In the facts and circumstances of the present case, the findings of the Charity Commissioner below that the Civil Court's jurisdiction is barred is totally illegal, and therefore, deserves to be quashed and set aside.

6.11 The learned counsel further submitted that the Charity Commissioner has incorrectly interpreted word “ensured” and has wrongly proceeded on the presumption that the provisions of Sec.41A of the BPT Act are entirely remedial in nature. If the provisions of Sec.41A of the BPT Act are closely read, then it is crystal clear that these powers are to be exercised subject to the provisions of the Act. Meaning thereby that if a particular power/remedy is given to the other authority/court, then the SCA/17131/2004 24 JUDGMENT jurisdiction of the Charity Commissioner under Sec.41A of the Act is barred, and not appreciating such facts makes the order bad in the eyes of law, without jurisdiction and therefore, deserves to be quashed and set aside.

6.12 The learned Counsel further submitted that the Charity Commissioner has not properly appreciated the fact that the petitioner trustees have in their own wisdom with a view to further developing the trust and utilising the income received from such property for achieving the better objects of the trust has entered into the lease deed. The circumstances under which such lease deed was entered into and which have been more particularly reflected in the reply by the petitioner trustees, ought not to have been discarded and ought to have been appreciated by the Charity Commissioner in this behalf.

6.13 The learned Counsel further submitted that the Charity Commissioner has failed in its duties in not properly appreciating the history how the particular property was received by the trust and has SCA/17131/2004 25 JUDGMENT wrongly read the contents of the document dated

20.7.1964.

6.14 The learned Counsel further submitted that the Charity Commissioner ought to have appreciated the fact that in a major fire caused, the original records of the trust were burnt and are not available, which is an admitted fact on record. In absence of such unavailability of record, the petitioners were obviously helpless in providing the evidence regarding the title of the property and the purpose for which it is received. This necessarily does not mean that the property is received solely for Dokhma purposes. The Charity Commissioner ought not to have passed remarks against the petitioner trustees on this count.

6.15 The learned Counsel further submitted that the Charity Commissioner has erred in not being able to judge the malice intention of the applicants before it in preferring such an application for directions in collusion with the persons who are out to see that whole of the property is being encroached upon, SCA/17131/2004 26 JUDGMENT without any money of the trust. The Charity Commissioner ought to have appreciated the averments made by the trustees to this regard along with the evidence produced in their affidavit-in-reply.

6.16 The learned Counsel further submitted that the Charity Commissioner has failed to consider the fact that presently the trust is receiving a huge amount from the lease-amount (i.e., rent) and the possession of the property in the hands of the lessee is also protected and acquired, since he is put to possession by the trust. If in future and in absence of such a lease deed there are illegal encroachment as is there is some part of the very survey number, then the trust would loose the entire property and would not even get any land out of it. The decision of the trustees ought to have been legal and bonafide and in the interest of the trust which the Charity Commissioner ought to have appreciated in this behalf.

6.17 The learned Counsel further submitted that the Charity Commissioner has erred in interpreting the SCA/17131/2004 27 JUDGMENT various provisions of the Transfer of Properties Act and the Indian Contract Act and has thereby arrived at a wrong conclusion on the basis of misinterpretation of the specific provisions of law.

6.17A The learned counsel for the trustees has invited my attention to the reply filed by them before the Charity Commissioner, particularly para 14 in which it has been stated that certain lands at Village Umarwada and more particularly bearing Survey No.65 which is used for dokhma purpose. The land of the ownership of the trust at Village Karanj bearing Survey No.16 of Final Plot No.33, T.P.Scheme No.3 is the land which is not used for dokhma purpose and the said fact can be clearly seen from the revenue records.

6.18 The respective counsels have also relied upon Sec.23 of the Indian Contract Act which provides “lawful and not lawful” in this behalf. Provisions of Sec.41A of the BPT Act and the jurisdiction of the court, the learned Counsel has relied upon judgment of this Court in the case of Hamumiya Bachumiya and SCA/17131/2004 28 JUDGMENT others Vs. Mehdihusen Gulam Husen and others reported in 19 GLR p.661 and also judgment of this Court in the case of Acharyashree Mahaprabhujini Ranavaswala Bethak Mandir Trust, Godhra & Others Vs. Chokshi Ratilal Chandulal and others reported in 1996(3) GLR 307 which provides power under Section 41A of the BPT Act.

SUBMISSIONS ON BEHALF OF RESPONDENTS No.1 to 4 by Mr.K.N.Dastoor, learned Senior Counsel with Mr.K.I.Shah, learned advocate.

7.1 On behalf of respondents No.1 to 4, I have heard Mr.K.N.Dastoor, learned Senior Counsel with Mr.K.I.Shah, learned advocate in this behalf. Before Mr.Dastoor, learned Counsel gave his reply to the merits of the matter, he has tried to give brief history of the land in question.

7.1A A large part of the lands was originally gifted to the Parsi Community by the Mogul King Akbar. Thereafter several pieces of lands were donated by different donors with the object, purpose SCA/17131/2004 29 JUDGMENT and aim of the said Dokhma Land.

7.1B From the record it also appears that said “Dokhma Lands” were donated by the donors to be specifically used as such and not for any other purpose.

7.2 The learned Counsel submitted that, in the City of Surat, there are lands situated at Village Umarwada and Village Karanj, which is owned by Parsi Panchayat, Surat. A large part of the land was originally gifted to the Parsi Community by the Mughal King Akbar. Thereafter, several pieces of land were donated by different donors with the object, purpose and aim of the said Dokhma Land.

7.3 The learned Counsel has stated that between 1556 and 1605 the King Akbar Shah gifted 100 Acres of land to Surat Parsi Panchayat for using it as Dokhma land. On 22.7.1752 King Ahmed Shah revived the gift by his own decree since the original gift document of Shah Akbar was lost. It was further submitted that several other pieces of land were either donated by SCA/17131/2004 30 JUDGMENT other donors or purchased by the panchayat itself somewhere in 1752 and 1847. All these lands were part of Dokhma land. He has also relied upon “The History of Surat Parsi Panchayat” from 1841 to 1953 recording the history of the Dokhma land pages 35 onwards which was published in 1964.

7.4 It is clear from page 35 onwards of the Book that, originally, a large piece of land was gifted by Shah Akbar to the Parsis of Surat to be used for Dokhma purpose. Thereafter the Panchayat received as gifts and also themselves purchased various pieces of land for “Dokhma Purpose”. “Dokhma Land” is a term used for all the land surrounding the actual wells where the bodies are taken. These lands are meant for the breeding and staying for vultures. Large pieces of land are therefore donated by various donors from Shah Akbar to several others. Some are purchased by the trust itself and all these are known as Dokhma land and the present land is a part thereof. The learned Joint Charity Commissioner has in the judgment at page 165 of the paper book (internal page 86) referred to the vultures aspect of the Dokhma SCA/17131/2004 31 JUDGMENT land. It was submitted that the present trustees have themselves stated in emphatic terms before the various judicial and executive authorities that all the land held by them as Dokhma Land (which includes the present lands in question) has the religious object of using them for carrying out the religious tents of the Parsi religion about the disposal of the dead bodies.

7.5 The learned Counsel further submitted that though there was some other transactions earlier about disposal of the land in favour of other private parties and also certain acquisition proceedings of the said trust, however, he will refer to the same at the relevant time. But, for the present controversy, he submitted that the trust was managing the property in very able way. However, in December 2002, there was a change in the Board of Trustees since the Parsi community seriously opposed the Acts of the previous Board. In the new Board, some old trustees continued and some new are appointed. Dr.Parabia and Mr.Lakdawala were amongst the new trustee. This was done somewhere in December 2002. The learned Counsel SCA/17131/2004 32 JUDGMENT further submitted that on 24.3.2004 the trustees executed a lease deed for 34 months in favour of the petitioner with a “compulsory renewable” clause. The intention was to give away permanent possession to the petitioner. However, the trustees did not take permission under the provisions of Sec.36 of the Act.

7.6 In view of the aforesaid lease deed, the present respondents No.1 to 4 filed an application before the learned Charity Commissioner on 13th July, 2004, under Sec.41A of the BPT Act. On the same day the learned Charity commissioner passed the interim order and thereafter replies were filed and ultimately the Charity Commissioner passed the impugned order in this behalf.

7.7 The learned Counsel further submitted that the Joint Charity Commissioner has duly, properly, validly and lawfully exercised the powers conferred on him under the Act and the petition is liable to be dismissed.

7.8 The learned Counsel submitted that the SCA/17131/2004 33 JUDGMENT petitioners are now trying to create a cloud as regards the object of Dokhma land. There is no positive finding by the Charity Commissioner that the land is Dokhma land. This is a thorough misnomer.

7.9 The learned counsel has relied upon the order of the Charity Commissioner in this behalf. After referring to the order of the Charity Commissioner, he has stated that the Charity Commissioner has clearly stated that the land in question is the `Dokhma' land and is attached to the Umarwada Dokhma land. The Charity Commissioner also held that although the trustees have stated that the land is not used as Dokhma land, they have not stated that it is not Dokhma land and have not shown which is the other, if any, the religious and charitable object.

7.10 The learned Counsel further submitted that the Charity Commissioner has on the strength of the materials on record as also the trust records of his office maintained under the Act held that the land is Dokhma land. It is submitted that this finding of fact arrived at by Charity Commissioner cannot be SCA/17131/2004 34 JUDGMENT disturbed by this Court which is acting as the Writ Court under Articles 226 and 227 of the Constitution of India. The respondents have already contended that, in view of the judgment of the Apex Court, this Court under Article 227 of the Constitution has very limited jurisdiction. The learned counsel submitted that this Court is not to act as an appeal court to adjudicate on the finding of facts arrived at by the learned Joint Charity Commissioner.

7.11 The learned Counsel has invited my attention to the background of the matter to say that this land is a “Dokhma Land”, and if any attempt is made by the trustees to lease out some part of the land, the same cannot be done in this behalf. On

4.4.1993, the previous Board of Trustees had entered into an agreement of sale with Agriculture Produce Market Committee (APMC) to sell large pieces of Dokhma land at Umarwada and Karanj Village and applied to Charity Commissioner for sanction under Sec.36 of the BPT Act. On 11.7.1994 the then Joint Charity Commissioner gave the sanction under Sec.36 of the BPT Act. SCA/17131/2004 35 JUDGMENT

7.12 Being aggrieved and dissatisfied with the said order, four appeals were filed before Gujarat Revenue Tribunal by different members of the Parsi community. On 21.9.2000 the Revenue Tribunal has set aside the sanction and remanded the matter to the Charity Commissioner. At the first hearing, the present Board of Trustees filed a statement that they did not want to pursue the application for sale. APMC thereafter filed Special Civil Application No.4621 of 2003 against the judgment of Revenue Tribunal. They contend inter-alia the Special Civil Application and Joint Charity Commissioner's order dated 11.7.94 as also Revenue Tribunal's judgment dated 21.9.2000 holding that the land was Dokhma land and the trustees reply stating that the land was Dokhma land and they do not want to sell in this behalf.

7.13 The learned Counsel further submitted that, it is therefore no doubt true that the object attached to the land is religious object. The Charity Commissioners, Gujarat Revenue Tribunal and the Collector have also held like that. The trustees SCA/17131/2004 36 JUDGMENT themselves have admitted so before judicial & quasi- judicial and executive authorities. There is, therefore, no scope for any finding regarding the object to the user of the trust land. If the trustees have any material to show that this object is not Dokhma land, they can take such steps as they may deem fit to show that they were incorrect all long. If this Court feels that the trustee be given a chance to prove their case, then without prejudice to all the contentions this Court may remand the matter to the Charity Commissioner on the limited question as to what is the charitable object attached to the trust land. The question of sale and permission to sell only arises after the trustees show what is the true objects.

As the matter stands the lease or sale for construction of houses or buildings is entirely contrary to and inconsistent with the admitted Dokhma object and it will be unfair and unjust to mention anything about the lease or sale or permission under Sec.36 of the BPT Act. The religious property cannot be used for housing purposes. It is not therefore permissible to all the trustees to make any application under Sec.36 of the SCA/17131/2004 37 JUDGMENT BPT Act for sanction any sale or lease unless the trustees make out as to what is the trust object attached to the land. The issue of the object cannot be decided under Sec.36 of the BPT Act. For any change in the entry of the registered trust, further inquiry is required to be made under Sec.22A of the BPT Act. Sec.22A of the Act provides special machinery for inquiry to find out whether any change in any item into the Trust Register is required to be made.

This power to make such inquiry is not conferred by the statute on the Charity Commissioner, but it is conferred on the Deputy or Assistant Charity Commissioner. There is no doubt that the inquiry as to the object attached to the trust property, which is an entry in the Trust Register, falls within the ambit of Sec.22A of the Act and therefore this Court has no power to direct Charity Commissioner to inquire into the object of the trust. Under Sec.70 of the Act, the Charity Commissioner is an appellate authority on any decision taken by Deputy or Assistant Charity Commissioner under Sec.22A of the Act. These are clear provisions to show that the determination of the object attached to SCA/17131/2004 38 JUDGMENT the trust land, which is one of the entries in the Trust Register cannot be the subject matter of any application under Sec.36 of the Act. Whenever an application under Sec.36 of the BPT Act comes up before Charity Commissioner, the object attached to the trust land should be clearly before him. After the determination of the object, trustees are required to see whether the object can be achieved or implemented, and if not, they will have to move the machinery under Secs.55 and 56 which provides for Court's power to hear application for cy pres doctrine to the religious trust.

7.14 The learned Senior Counsel further submitted that, over and above, the Government of Gujarat had issued Notifications on 12.5.2000 and 12.12.2000 to acquire large pieces of Dokhma land at Umarwada and Karanj Villages which include the present land under Sec.4 of the Land Acquisition Act. The learned counsel has stated that on 5.1.2002 the Government issued declaration under Sec.6 of the said Act. Thereafter on 27.2.2002, three persons Dr.Parabia, Mr.E.B.Lakdawala and Mr.Noshir Dordi (one of the SCA/17131/2004 39 JUDGMENT respondents herein) filed Special Civil Application No.3494 of 2002 against the acquisition proceedings (the first two are now the trustees). On 26.6.2002, the Government withdrew the acquisition proceedings under Sec.48(1) of the Land Acquisition Act, by two Notifications namely Notification dated 26th June,

2002. It was stated that the aforesaid notification clearly provides that the Government decided to withdrew parcel of land from the acquisition and thereby exercising the powers conferred by sub- section (1) of Sec.48 of the Land Acquisition Act. The Government of Gujarat withdrawn the land from the acquisition under the provisions of Land Acquisition Act specified in the Schedule. The said schedule pertains to land of Parsi Panchayat trust.

7.15 In view of the aforesaid proceedings, as I have already set above the proceedings of APMC who was intended to be the beneficiaries of the acquisition filed Special Civil Application No.779 of 2003 questioning the withdrawal of the proceedings by the State Government. On 11.7.2003 at the hearing of said SCA No.779/2003, the APMC's Counsel made a SCA/17131/2004 40 JUDGMENT grievance that APMC was not given hearing by the State Government before withdrawing the acquisition. On the AGP stating that the Government will give a hearing to APMC, Counsel for the petitioner did not press the petition and the notice was discharged. The learned Counsel has invited my attention to the order passed by this Court in SCA No.779 of 2003 (Coram: R.K.Abichandani & Kundan Singh, JJ.) on 11th July,

2003. The Division Bench of this Court has relied upon the judgment of Hon'ble Apex Court in the case of Larsen and Toubro Ltd., and State Government HH Employees' Association Vs. State of Karnataka reported in 2001(1) SCC 610 and stated that the matter will be considered and decided irrespective of any order that has already been made withdrawing from the acquisition and in view of the said statement the learned counsel for the petitioner states that the petitioner does not press the petition at this stage. In view of the same, the notice was discharged.

7.16 In view of the aforesaid proceedings, the trustees contended before the Collector that the land was “Dokhma land”. They had contended the same in SCA/17131/2004 41 JUDGMENT their representation dated February 2003. The respondents craves leave to annex a copy of the said representation at pages 19 to 21 signed by the Chairman of the Trustees, since it arises out of this Court's order dated 11.7.2003. On 13.7.2005 the State Government passed an order declaring that in view of the land being Dokhma land and used for the religious object of disposal of dead bodies, the State Government have decided not to alter their decision to withdraw the acquisition proceedings.

7.17 The learned counsel has also invited my attention to the said order passed by the Government by which the Deputy Secretary, Revenue Department, State of Gujarat, has addressed a letter to APMC in this behalf. After referring to the provisions of Land Acquisition Act, and the Notification therein, it was stated that the State Government had already taken a decision to withdraw the acquisition proceedings under Sec.48(1) of the Act and Government reiterate its decision dated 26th June, 2002, by which they withdrew the acquisition proceedings, the Government adhere to the said decision in this SCA/17131/2004 42 JUDGMENT behalf.

7.18 In support of the aforesaid contention, the learned counsel therefore, on the merits of the order of the Charity Commissioner, has stated that the impugned order/directions stated on page 115 in paragraphs 1,3,4,5,6,8,9,10,11 & 12 are within power and jurisdiction of the learned Charity Commissioner under Section 41A of the BPT Act. Therefore such orders and directions are not reversible under the supervisory jurisdiction considering judgment of the Hon'ble Supreme Court in the case of Mohd. Yunus Vs. Mohd. Mustaqim and others reported in AIR 1984 SC 38, Sadhana Lodh. Vs. National Insurance Co.Ltd., and another reported in AIR 2003 SC 1561. The learned counsel submitted that, in view of the aforesaid judgment of the Apex Court, the supervisory jurisdiction conferred on the High Courts under Art.227 of the Constitution is limited to see that an inferior Court or Tribunal functions within the limits of its authority and not to correct an error apparent on the face of the record, much less of an error of law. The learned Counsel further submitted SCA/17131/2004 43 JUDGMENT that the judgment of the Hon'ble Supreme Court in the case of Sadhana Lodh. (supra), the supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior Court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal.

7.19 He further submitted that, in any view of the matter, this Court may not interfere with the order of the Charity Commissioner and this Court may not quash and set aside the order of the Charity Commissioner in this behalf.

7.20 Mrs. Krishna Raval, learned advocate appeared for the Charity Commissioner has supported the order of the Charity Commissioner in this behalf. CONCLUSIONS & FINDINGS:

I have considered the facts and SCA/17131/2004 44 JUDGMENT circumstances of the case. I have also considered the provisions of the Bombay Public Trust Act, particularly, Section 41 of the Act.

8.1 Section 41A of the Act empowers the Charity Commissioner to issue directions in respect of matters falling under Sec.32 to 41. Sec.32 provides for maintenance of accounts. Sec.33 provides for balancing and auditing of accounts. Sec.35 provides for investment of public trust money. Sec.36 provides for alienation of immovable property of public trust. Sec.37 provides for power of inspection and supervision. Sec.38 provides for explanation on report of auditor. Sec.39 provides for report to Charity Commissioner. Sec.40 provides for power of Charity Commissioner to issue orders on report received under section 39 or to remand matter. Sec.41 provides for order of surcharge.

8.1A The object and reasons of Section 41A of the BPT Act reveal that it is considered necessary to empower the Charity Commissioner to issue directions to the trustees to ensure that the trust is properly SCA/17131/2004 45 JUDGMENT administered and the income thereof is properly accounted for and applied to the object and for the purposes of the trust. The Section 41A as proposed (i.e., as amended) is intended to achieve the object. From the object of Section 41A and the judgement of the Division Bench of this Court which I have referred to earlier in the case of Syedna Mohammed Burhanuddin Vs. C.C. (supra) which shows that the Charity Commissioner has power to see that Public Trust properly functions. The public trust deals with public property and public money though it was the duty of the Charity Commissioner to see that the trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust and sub-section (2) of Section 41A of the BPT Act provides that it shall be the duty of every such trustee and person to comply with a direction issued to him under sub-section (1). Section 41A of the BPT Act enables the Charity Commissioner to issue directions for the proper administration of the trust. Therefore, when the Charity Commissioner decides to issue directions to a trustee, it pre- SCA/17131/2004 46 JUDGMENT supposes that there is no proper administration of the trust. Here in this case as trustees have decided to give the property on lease without public auction the Charity Commissioner felt that the action of the trustees is not proper and therefore the Charity Commissioner has considered particularly when some of the Parsis have objected to the same and filed application before the Charity Commissioner.

8.2 Sec.41A of the Act does not contemplate any adjudication. The Charity Commissioner does not make any order or decision but he only issues directions. They pertains to the proper administration of trust in character, they are to be issued for better and more effective administration of a public trust. The said section provides that the Charity Commissioner issued direction for proper administration of a public trust, proper accounting of its income, due appropriation and application of the income to the objects and for the purpose of the trust. The Charity Commissioner has his jurisdiction under Sec.41A confined to these matters only and nothing else. Once the scope of Sec.41A is a limited scope then the SCA/17131/2004 47 JUDGMENT observations made by the Charity Commissioner that the action of the trustees are violating of Sec.36 of the Act is contrary to the power exercised under Sec.41A of the Act. Though the very serious allegations have been made against the Charity Commissioner for exercising this power on one hand and on behalf of other respondents and the counsel for the Charity Commissioner have tried to support the said finding on the ground that though the Charity Commissioner observed against violation of Sec.36 of the Act but the said observation is made in context of only proper administration of trust and, therefore, the same observations are in context of Sec.41A of the Act and the order of Charity Commissioner must be upheld.

8.3 In this aspect the persons who have taken lease have also made elaborate submissions. The trustees have given the property only for 34 months. Therefore, technically, they have not to obtain permission under Section 36 of the Act. However, if one looks to this aspect, once the property has been given on lease by the trustees loses the physical SCA/17131/2004 48 JUDGMENT possession of the property and if the said lease is ultimately renewed then it may be automatically more than 3 years and in that event the Charity Commissioner has to intervene.

8.4 It may be noted that the language of sub- section (1) of Section 36 is clear and the Legislature has in no uncertain terms provided that no sale, mortgage, exchange or gift of any immovable property belonging to a public trust shall be valid without the previous permission of the Charity Commissioner. It becomes clear on a plain reading of this provision that where the Legislature intended that the transaction should be invalid ab initio, it made manifest its intention in clear and unmistakable language. The investment made in contravention to Sec.36 of the Act is invalid.

8.5 Sec.36 of the Act provides several applications including the property to be given on lease by the trustees for more than 36 months. If such application is filed, an application for sanction would have to be considered by the Charity Commissioner by SCA/17131/2004 49 JUDGMENT considering the paramount interest of the trust and not on the fleeting interest of the trustees or of the beneficiaries. The Charity Commissioner would have, therefore, to exercise its jurisdiction by making an inquisitorial enquiry so that public interests of such public trusts are properly served. The Charity Commissioner has to act as protector of public charities in view of the decision in Lallubhai Vs. Brijbhusanlalji reported in 8 GLR 42 and in the case of Hanumiya Bachumiya Vs. Medihusen Gulamhusen reported in 19 GLR 661. As the Sec.36 provides that no sale, mortgage, exchange or gift of any immovable property belonging to a public trust be valid without the sanction of the Charity Commissioner. An ownership consists of a bundle of rights, the various rights and interests in different persons, e.g., a mortgagor and a mortgagee, a lessor and a lessee. Absolute ownership is an aggregate of component rights such as the right of possession, the right of enjoying the usufruct of land, and so on. In view of the same, the lease of the property in question considered the interest in the property and same is governed by Sec.36 of the Act. SCA/17131/2004 50 JUDGMENT

8.6 A lease is defined under the Transfer of Property Act under Sec.105 of the Act. In a lease there is a transfer of interest in land. So the previous sanction of the Charity Commissioner is necessary, if the lease is (i) for a period exceeding ten years in the case of agricultural lands; or (ii) for a period exceeding three years in the case of non-agricultural land or a building belonging to a public trust. As the parties have readily agreed to make an application to the Charity Commissioner under Sec.36 of the Act, this Court is of the view that if this Court request the Charity Commissioner to decide the application under Sec.36 of the Act filed by the trustees and the Charity Commissioner after hearing all the parties concerned pass a quasi-judicial order, the same may be in the interest of justice.

8.7 From the order of the Charity Commissioner it appears that several issues were raised and the impugned order of the learned Joint Charity Commissioner purports to deal with the said issues. SCA/17131/2004 51 JUDGMENT On internal pages No.25 to 28 the issue as to whether the land in question is dokhma land or not is discussed. On internal page No.29 and 30 the applicability of doctrine of cypres has been discussed. On internal pages No.31, 33 & 37 the Joint Charity Commissioner has dealt with the grievance of the original applicant that no attempt has been made to fetch the highest possible price. On page Nos.41 to 44 the applicability of Section 51 of the Bombay Public Trust Act has been discussed. On internal pages 54 & 55 the Joint Charity Commissioner has recorded the findings that the resolution of the panchayat to give the land on lease has not been validly passed. On internal page 58 the clause in the lease deed concerning compulsory renewal has been discussed. On internal page 46 the Joint Charity Commissioner has observed that even if the land is not dokhma land but whatever purpose and object of the trust, the trustees have failed to carry out the said object and the trustees have not properly address this issue before the Charity Commissioner. The Charity Commissioner has also held that whether the land is not a dokhma land or whether the land is SCA/17131/2004 52 JUDGMENT dokhma land, the trustees have not been able to properly produce the evidence which has been recorded on internal page 66 of the order. Even on internal page 84 the learned Joint Charity Commissioner has observed that the learned advocate for the trust has not been able to prove as to what purpose the trust has for the use of the land and he has not been able to produce any satisfactory documentary evidence in this behalf. Ultimately the Charity Commissioner held that from the record that the land may be dokhma land and partly accepted the contention of Mr.K.N.Dastoor, learned Counsel on page 85. On internal page 85 the learned Charity Commissioner has held that the property in question is a public property. However, ultimately in the operative order when the Charity Commissioner has given some directions, the Charity Commissioner has not given any specific findings as to whether the land is dokhma land or not.

8.8 From the order of the Charity Commissioner which is a very long order running into about 120 pages, the Charity Commissioner has given directions concerning Sec.36 of the BPT Act. SCA/17131/2004 53 JUDGMENT

However, without deciding the matter on the merits of the matter which was heard even Kishan Construction and the trustees and even other respondents have agreed that the trustees are prepared to make an application under Sec.36 of the Act to the Charity Commissioner and if the said application is made, all parties will cooperate and put the respective materials and the Charity Commissioner can adjudicate the said application under Sec.36 of the Act. In view of this further development, in my view, it is not necessary to decide about the legality, validity and correctness of the order of the Charity Commissioner.

The learned Joint Charity Commissioner has cast the entire burden of proving that the land in question is not a dokhma land upon the trust and has proceeded to issue the directions having found that the trust has failed to prove that the land is not a dokhma land, which is neither legal nor proper. The learned Joint Charity Commissioner has also failed to record any clear positive findings on the following SCA/17131/2004 54 JUDGMENT issues. (a) Whether the land in question is Dokhma land? (b) If not whether the land can be sold by the trust considering the use of the land, the requirements of the trust, the apprehended encroachment on the land and the inability of the trust to protect its possession of the land.

10.1 The learned counsel has further pointed out that, during the pendency of the present proceedings, the trust has come across certain proceedings concerning the lands in question which contradicts the finding recorded by the Joint Charity Commissioner that the lands were gifted to the trust by Mughal Empire. The trust has also expressed the desire to sell the lands in question and for the said purpose the trust desire to make an application under Section 36 of the Bombay Public Trusts Act, inter-alia for permission to sell. SCA/17131/2004 55 JUDGMENT

10.2 The Kishan Construction, the lessee of the land has also no objection if the land is to be sold provided the said Kishan Construction is reimbursed an amount of Rs.2.25 crores being the amount paid by Kishan Construction to the trust along with interest thereon and the expenses incurred by Kishan Construction for securing possession of the land and for developing the land. If an application is made under Sec.36 of the Act then all issues can be decided by the Charity Commissioner. The Kishan Construction has also contended that though Charity Commissioner has in the earlier part of the order held that the land is dokhma land and rejected the contention of the trustees in this behalf. However, in the operative order, there is no such finding as to whether land is dokhma land or not as well as object of the trust in relation to land. This Court may direct the Charity Commissioner to give clear findings on this aspect and submitted that without adjudicating of the matter if following directions are issued the same may be in the interest of justice.

SCA/17131/2004 56 JUDGMENT (i) That the trust would be at liberty to apply under Sec.36 of the Bombay Public Trusts Act for permission to sell the land. (ii) If any such application is made, the Charity Commissioner will decide the issue as to whether the trust is entitled to sell the land and if the trust is found competent to sell the land, the Joint Charity Commissioner shall grant permission, however, subject to the following conditions. (a) The trust will have to invite offers from intending purchasers by issuing advertisements in newspapers having wide circulation. (b) That the Earnest Money Deposit shall be fixed at Rs.2.25 crores considering the fact that Kishan Construction is already out of pocket by approximately Rs.2.25 crores. SCA/17131/2004 57 JUDGMENT (c) Kishan Construction shall also be permitted to submit its offer. (d) If Kishan Construction is found to be successful bidder, then the amount of Rs.2.25 crores shall be adjusted against the purchase price to be paid by Kishan Construction.

(e) The sale shall be on “as is where is whatever there is” basis. (f) If Kishan Construction does not succeed in purchasing the land, an amount of Rs.2.25 crores will be paid over to Kishan Construction out of the consideration to be paid by the third party purchaser. (g) In case Kishan Construction does not succeed in purchasing the lands then the validity and the legality of the agreement can be gone into in the proceeding under SCA/17131/2004 58 JUDGMENT Sec.41-A of the Bombay Public Trusts Act provided, the said proceedings are found to be maintainable in light of the law settled by this Court. (h) That this Court may give direction to the Charity Commissioner that Charity Commissioner will decide the nature of land as to whether the land is dokhma land or not after considering the evidence which is on record as well as other evidence which may be produced by the parties in this behalf.

10.3 Power of remand:

10.3A In this case it is no doubt true that the Charity Commissioner passed a long and detailed order. However, on certain aspects there are not satisfactory findings arrived at by him in this behalf. It is no doubt true that under Article 227 of the Constitution of India, this Court has a limited jurisdiction to deal with the order of the Charity Commissioner. However, the Charity SCA/17131/2004 59 JUDGMENT Commissioner has not properly considered the evidence of Kishan Construction and has erroneously presumed certain facts of the case and there is subsequent development which has been happened in this matter. This Court is of the view that if the matter is remanded to the Charity Commissioner for deciding the same in accordance with law, the same will be in the interest of justice. This order of remand is necessary for the ends of justice. It is no doubt true that the Charity Commissioner has dealt with several issues in his order. However, on certain aspects, there is no so much clarity in the order of the Charity Commissioner. Over and above, before this Court when the petition was filed, several issues have been raised by Kishan Construction, the trustees as well as Mr.Dastoor, learned Senior Counsel in this behalf. Some of the facts which has been urged before me was not before the Charity Commissioner. As the petition raises question regarding large part of land in Surat dealing with the Charity Commissioner, this Court is of the view that if this Court decides the matter, this Court has a limited jurisdiction under Article 227 of the Constitution of India. In stead of SCA/17131/2004 60 JUDGMENT that if this Court decides to remand the matter and requests the learned Charity Commissioner to decide the matter in accordance with law after going through the old records as well as the new averments made by all the parties which I have recorded in my order, if all issues are properly considered, the same may be in the interest of justice. I am of the view that therefore the Charity Commissioner may decide the same in this behalf. Over and above, the trust has shown the interest that they will file application under Section 36 of the Bombay Public Trusts Act and that will also be decided by the Charity Commissioner.

10.3B Under the provisions of the Bombay Public Trust Act, Charity Commissioner is appointed under the Act and a special machinery is provided by this Act to deal with matters of public trust. Under the provisions of this Act, the Charity Commissioner has four-folded powers – (1) Advisory – giving directions, (2) Administrative – controlling dealings, (3) Supervisory – investing accounts and (4) Quasi-judicial – settling scheme. The duties, SCA/17131/2004 61 JUDGMENT functions and powers of the Charity Commissioner are mentioned in Section 69 of the provisions of the Act in this behalf also. Thus, the Charity Commissioner has a custodial legacy of the property of the trust and has to look after interest and object of the public charitable trust. This Court, while exercising powers under Article 227 of the Constitution of India, while examining the legality and validity of the order of the Charity Commissioner, has also to see that the Charity Commissioner acts accordingly.

10.3C In this peculiar type of case where parsi panchayat dealing with a large part of land, which is according to them a dokhma land. The said land is in relation to carry out the object of the trust in connection with the dead body of parsis after their death. It is no doubt true that on one hand the parsi panchayat has large part of land. It is also well known fact that compare to total population of India, the Parsis are in microscopic minority but they are known for their education, culture and industry. Whatever fields they enter, they excelled in their fields. Take for example Mr.J.R.D.Tata famous for SCA/17131/2004 62 JUDGMENT Industry, Mr.N.A.Palkhivala and Mr.H.M.Seervai famous in field of Law and Dr.Homi Baba famous for Science and Gen. Maneksha in Army. So one has to consider that on one hand the population of Parsis are falling and on the other hand large part of land is available with the Parsis. So on one hand Parsi Panchayat has difficulty of having finance. So if some of the portion of the land is disposed of as per the provisions of the Bombay Public Trust Act with the permission of the Charity Commissioner then surplus of the trust land can be utilised for the betterment of the Parsi Panchayat which will be ultimately used for large interest of the people in this behalf. This is one of the reason why this Court inclined to give some direction to the Charity Commissioner in this behalf. FINAL DIRECTIONS:

In view of the same, this Court requests the Charity Commissioner to decide the matter in accordance with law with following directions. (i) If the trust files an application under SCA/17131/2004 63 JUDGMENT Sec.36 of the BPT Act, the Charity Commissioner will consider the same in accordance with law. (ii) If any such application is made, the Charity Commissioner will decide the issue as to whether the trust is entitled to sell the land and if the trust is found competent to sell the land, the Joint Charity Commissioner shall grant permission, however, subject to the following conditions. (a) The trust will have to invite offers from intending purchasers by issuing advertisements in newspapers having wide circulation at Surat or at least South Gujarat. (b) That the Earnest Money Deposit shall be fixed at Rs.2.25 crores considering the fact that Kishan Construction is already out of pocket by approximately Rs.2.25 crores.

Before I part with the order, this Court is extremely grateful to the assistance given by Mr.K.N.Dastoor, learned Senior Counsel with Mr.K.I.Shah, learned advocate appeared on behalf of some of the objectors. Mr.Prashant G.Desai, learned Counsel with Mr.M.I.Merchant, learned advocate SCA/17131/2004 68 JUDGMENT appeared on behalf of the trust and Mr.R.S.Sanjanwala, learned advocate appeared for the petitioner - Kishan Construction and Mrs. Krishna Raval, learned advocate appeared on behalf of Charity Commissioner, without there being any assistance this Court is not able to decide the matter. Sd/- ( K.M. Mehta, J.)

After pronouncement of the judgment, Ms.Megha Chetaliya, learned advocate for Mr.K.I.Shah prays that this Court may stay the judgment of this Court as his client desires to approach the higher forum. Mr.M.I.Merchant, learned advocate who appears on behalf of original trustees has stated that in this case this Court has only made certain observations and remanded the matter to the Charity Commissioner with certain directions so there is no question of any stay in this behalf and if the stay is granted, there will be further delay.

I have considered the facts and circumstances of SCA/17131/2004 69 JUDGMENT the case. In this case this Court has only given direction to the Charity Commissioner to decide the application under Section 36 of the Act in connection with the property in question. There is no any final adjudication or any question of law involved which this Court decided in this behalf. So the prayer of Ms.Megha Chetaliya, learned advocate is rejected. syed/ ( K.M. Mehta, J. )