HAMUMIYA BACHUMITA Vs. MEHDIHUSEN GULAMHUSEN

JUDGEMENT

(1.) The petitioners trustees of a registered public trust known as Jahangirpura Masjid Baroda have filed this petition challenging the appellate order of the Revenue Tribunal which has set aside the Charity Commissioners order and has accordingly sanctioned the proposed sale. Respondents Nos. 1 and 2 trustees have been joined along with respondent No. 3 tenant in whose favour the sanction is granted. Respondents Nos. 4 and 5 are the Charity Commissioner and the Revenue Tribunal. It application under sec. 36 of the Bombay Public Trusts Act 1950 hereinafter referred to as the Act had been made by the trustees for sale of the trust land admeasuring 97 sq.yds. in Baroda belonging to the trust which was rented out to respondent No. 3 on a monthly rent of Rs. 51 since many years. In the application it was alleged that the tenant his agreed to purchase the said land for Rs. 15000/ and that the trustees intended to utilise the sale proceeds for construction of a building on the land of the trust 5. No. 19. It was further alleged that under these circumstances it was in the interest of the trust to sell this land to the tenant and therefore sanction was claimed of the Charity Commissioner under sec. 36 of the Act. No valuation report of the expert as required by the relevant Rule 24 was annexed but a Panchnama of the Panch valuation was annexed which went to the extent of stating that even for vacant possession this property would fetch Rs. 10 0 The applicant had also filed a copy of the resolution dated August 19 1970 passed by the general meeting of the Moholla Panch and a copy of the Banakhat dated August 23 1970 As some complaint had been filed from Moholla people opposing this sale the trustees were directed by the Charity Commissioner even to give a public advertisement inviting tenders for the proposed sale of property. In the advertisement the trustees stated that the property was in possession of a tenant and it fetched a rent of Rs. 5/ and it is within the road line of the Municipal Corporation. Till last date for submitting offers no offer had been received. Meanwhile one Amirmiya Azammiya a plumber who was beneficiary of the trust had by his letter dated March 17 1971 offered to give a loan of Rs. 10 0 without interest to the trust for construction on the open plot of other land belonging to the trust if the trust needed money. Thereafter on April 6 1971 the four petitioners trustees withdrew their consent for the proposed sale and prayed that the application for permission be rejected. They had pointed out that this sale was opposed by the Moholla residents who were beneficiaries and if such sale was permitted there were other trust properties which were let out on nominal rent would be considerably affected. They relied on the plumbers offer of the loan of Rs. 10 0 They also relied on the fact that there would be endless disputes amongst the Moholla people. Respondent No. 1 trustee however opposed this withdrawal and insisted on permission being granted as it was in the interest of the trust. Finally the petitioners produced the resolution passed by the trustees to withdraw this proceeding and even they terminated the authority which was previously given to respondent No. 1 to proceed with the application for permission. Even the Moholla residents resolution of October 10 1971 was produced opposing such a sale. The earlier pending suit for eviction of respondent No. 3 tenant had been dismissed by the Court on February 21 1962 The suit had been filed on the ground that a new building was to be constructed on the land let out to the defendant. An appeal against the said decree had been dismissed for non-prosecution by the District Court by the order dated January 18 1963 where it was in terms stated that the trustees had given a statement Ex. 11. for having arrived at a settlement with the tenant and so they did not want to prosecute that appeal. At that time also there was a difference in the trustees and one of the trustee had offered to resign. That Purshis Ex. 11 had stated that the defendanttenant was willing to pay the price of Rs. 10 0 on the persuation of two eminent persons and the Panch had resolved to sale that property on August 5 1962 The difference between the trustees had been mentioned and it was stated that the Charity Commissioner had been moved for permission but as he could dispose of the permission application after this appeal was disposed of this appeal was not prosecuted Mr. Christie stated that the Charity Commissioner even at that time had refused sanction and therefore this fresh application was made on October 13 1970 as opponent No.3 agreed to pay the price of Rs. 15 0

(2.) The Charity Commissioner took into account that the trustees and the Moholla Jamat were not prepared to sell this property obviously because earlier they were under the wrong impression that the tenant could not be evicted and because for construction purposes even now a loan was forthcoming and the trust had a cash of Rs. 17 0 remaining unutilised and especially as the trust had got other open pieces of land besides the disputed land which could very well be sold if necessary instead of the disputed land. In order to avoid perpetuation of disputes between the members of the Jamat an overall view had been taken that this sale was not in the interest of the trust. The fundamental approach of the Charity Commissioner was that in a city like Baroda which was fast developing the market value of the land was not likely to dwindle down in the near future but on the contrary there was every possibility of appreciation of the market price and therefore the trust land should not be allowed to be sold away to the tenant in this manner. He therefore did not hold that the sale was in the interest of the trust and accordingly refused permission by the order dated January 31 1972 In appeal filed by respondent No. 1 trustee the Revenue Tribunal in the impugned order at Annex. C dated October 6 1972 took the view that the Charity Commissioner was rot coming to a finding as to whether the proposed alienation was not fair and done in any way adversely affecting the interest of the trust but he proceeded in the light of the objections received and he was led away by the majority of the trustees withdrawing the application. In view of this wrong approach the Tribunal held that as this was a tenanted land fetching only Rs 5/- per month. and as the Panchnama report disclosed that even with vacant possession the price would be only Rs. 10.000.00 as the public advertisement also did not bring any willing purchaser and the trust had spent away its balance of Rs. 17 0 in other construction incurring a debt of Rs. 3000.00 and as it found that the offer of loan was not bona fide and the trust could not undertake any litigation with the tenant for recovery of possession of the property and the sale proceeds of Rs.15000 would bring yearly interest of Rs. 900.00 if deposited in Bank the sale was clearly in the interest of the trust. Merely because the trustees withdrew the consent of the Jamat opposed on such considerations sanction for such sale which was in the interest of the trust could not be refused. Therefore the Revenue Tribunal has set aside the order of the Charity Commissioner and has sanctioned the proposed sale. That is why the petitioners trustees have filed the present petition challenging the order of the Revenue Tribunal.

(3.) Sec. 36(1) of the Act provides as under :