BOMI JAL MISTRY Vs. JOINT CHARITY COMMISSIONER MAHARASHTRA

JUDGEMENT

(1.) RULE. Counsel appearing for the respective respondents waive service. By consent of all the Counsel, this petition was heard for final disposal forthwith.

(2.) THIS petition, under Article 226 of the Constitution of India, takes exception to the order passed by the Joint Charity Commissioner, Maharashtra State, Mumbai dated August 6, 2001, on Application No. J-4-100/2000 purported to be under section 36 of the Bombay Public Trusts Act 1950 (hereinafter referred to as the said Act for the sake of brevity), authorizing and according sanction to the respondent trust for alienation and/or to lease out the trust property (excluding fire temple and open land surrounding the fire temple) and development as contemplated in the agreement entered by the trustees with respondent No. 6 dated November 14, 2000 for consideration of Rs. 3. 75 cores and further Rs. 30 lacs to be paid by respondent No. 6 to the trust for carrying on necessary repairs to the existing fire temple and further constructing extension to the Agiyari building admeasuring 3500 sq. ft. free of costs for utilization of Agiyari and religious purpose. The entire transaction has been directed to be completed within a period of 36 months from the date of obtaining IOD and commencement certificate from the Municipal Corporation.

(3.) BRIEFLY stated, the respondent Nos. 2 to 5 are trustees of Muncherji Jamshedji Wadia Fire Temple Trust, which is registered under the Bombay Public Trusts Act, 1950, being Registration No. PTR No. C-445 (Bom. ). The trust has been created by an indenture of trust dated December 21, 1866 by Nusserwanji Muncherji, Burjorji Muncherji and Dadbhoy Pestonji Wadia, Bombay. The principal object of the trust is to maintain and upkeep the fire temple and sacred fire therein for ever for the use of Parsee Zoroastrian community of all classes - that is to say, for the use of all persons whomsoever professing the Zoroastrain faith and to maintain the houses and buildings on the said grounds in connection with the said fire temple for residence of such priests as may from time to time be selected or permitted by the said trustees for the time being to alleviate in and attend upon the said fire temple. It appears that some time in 1993 certain local parsee residents and devotees of the said temple applied to the respondent No. 1 under section 41-E of the said Act seeking to restrain the respondent Nos. 2 to 5 on the allegations that they were committing certain irregularities and were intending to demolish the building and temple complex including Agiyari building and relocate sacred fire installed therein and develop the temple property, the Cosmopolitan Shopping Complex and residential colony for all and sundry. According to them, the respondent Nos. 2 to 5 were acting in breach of their duties as trustees and in violation of the said indenture of the trust. The said application was numbered as Application No. 40 of 1993. The respondent No. 1, in paras 4 and 5 of his order dated January 31, 1997, while disposing of the said application observed that the said application was not bona fide. The respondent No. 1 has further observed that in any case apprehension expressed in the said application was obviously misconceived because no trust property was to be alienated or developed without prior permission of the Charity Commissioner. In the circumstances, the said application came to be dismissed. It appears that one Karsi Behramji Makihatana and others filed writ petition in this Court being Writ Petition No. 519 of 1998 which, however, was allowed to be withdrawn. This Court vide order dated 14-6-1999 recorded the assurance given on behalf of the respondent trust that the trust has no intention to demolish the existing fire temple in the Agiyari or of shifting the sacred fire to any other place. This Court also recorded the fact mentioned on behalf of the trust that the existing Agiyari structure was in the state of disrepair and the trust proposes to develop the property and renovate the existing structure. The order further indicates that the writ petitioners had no objection to any repair of the property or renovation as long as it is carried out in accordance with law and subject to the sanction of the Charity Commissioner. The Court proceeded to observe that, as and when application is made by trustees, they shall advertise the said fact in the newspaper having circulation amongst Parsis and any of the beneficiaries of the trust would be at liberty to object the said application before the Charity Commissioner. No doubt a precipe came to be filed on behalf of the trustees before this Court in the disposed of writ petition that the order dated 14-6-1999 read with 22-7-1999 has created some ambiguity and does not bring out the original intention that the trustees are free to develop the property, subject to sanction from the Charity Commissioner and are not to disturb the Agiyari structure which is only to be repaired or renovated. This Court however passed no order on the said precipe on 9-8-1999. The trustees were advised that the trust was free to proceed with the proposed alienation of the trust property which was imperative having regard to the old and dilapidated structure which needed urgent structural repairs and reconstruction. Due to financial constraints the trustees were not in a position to undertake the repairs and reconstruction of the tenanted building and therefore tenders were invited for development of the trust property. Pursuant to the said tender four offers were received by the trustees from builders of repute. The highest offer was made by the respondent No. 6 for Rs. 3. 75 crores to be paid in 7 installments on which annual interest was to be received. Apart from this the trust was to get Rs. 30 lacs for utilization of the same for repairs or reconstruction, renovation of the existing Agiyari building and construction of extension to the Agiyari building admeasuring 3500 sq. ft. free of costs as per plan. In this view of the matter the trust filed an application before the Charity Commissioner purported to be under section 36 of the Act. 3-A. The said application clearly avers that the building standing on the trust property (excluding the fire temple and open lands surrounding the fire temple) were fully tenanted and required urgent structural repairs and trustees were not in a position to undertake repairs/reconstruction as trust was not receiving any net rent from the tenanted property of the trust. The application further avers that trustees had invited tenders by issuing public notice which was published in the Free Press Journal and Mumbai Samachar issues of May 20, 1999. The offers received from the different developers were stated in the said application and the terms of development agreed by the trustees with the respondent No. 6 developer were also clearly indicated in this application. The application further asserts that the proposed development of the property is in the interest of trust since the trust is not receiving any rent from the tenanted property of the trust. The application further records that there is no specific provision in the instrument of trust to empower the trustees to alienate the trust property, therefore, trustees were approaching the competent authority under section 36 (1) (c) with a request to authorize the trustees to alienate the property in the interest of the trust. The modalities of the development of the trust properties have been clearly stated in this application. Besides this application the trustees placed on record before the Charity Commissioner agreement entered between the trustees and respondent No. 6 builder. The said application was resisted by the objectors by filing objections. Initially about 33 Parsee Zoroastrian worshippers of the fire temple submitted their applications - Exh. 18. Later on only three other objectors filed objections through their Counsel at Exh. 21. The substance of the objections was that the trustees had no authority to alienate the trust property, whereas the indenture of the trust mandates that the trustees shall maintain the trust properties for ever. The objection raised was that the proposed agreement was contrary to the indenture of the trust and in any case it was not in the interest of the trust. It was also contended that if the builder was allowed to construct a residential complex in the compound of Agiyari properties as its extension - and almost touching the sacred building, it would violate the object of the trust. According to the objectors, permission as sought would result in change of user contrary to the objects of the trust and in breach, infringement and contravention of religious function, command, tradition, custom, tenets and usages. According to the objectors the proposed development would affect the sanctity and holiness of the Agiyari building or fire temple and was obviously in contravention of the indenture of the trust. The objectors however conceded that the trust property is in dilapidated condition. Besides this the objectors contended that the trustees were acting in violation of the assurance and undertaking given to this Court in the previous proceedings. According to them the trustees could only carry on repairs to the trust property and cannot be permitted to alienate or demolish any of the trust property. The respondent No. 1 after careful scrutiny of the relevant records and objections taken before him has allowed the application preferred by the trustees by a detailed order dated August 6, 2001. The operative order passed by the respondent No. 1 on the said application reads thus : order