ORDER
Tipnis, J.
1. This is an appeal by the Charity Commissioner, Maharashtra State, Bombay, against the judgment and order dated 17th Feb., 1989 passed by the learned Judge. City Civil Court, Bombay, in a suit filed by the present respondents as plaintiffs under S. 50 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as the 'Act').
2. The respondents as plaintiffs filed the aforesaid Short Cause Suit No: 7436 of 1988 in the Bombay City Civil Court. The respondents averred that they are the trustees of Smt. Shantidevi Lalchand Chhaganlal Foundation Trust which came into existence under a deed of trust dated 28th April, 1979, The said trust is registered with the Charily Commissioner, Bombay, as a public trust. Subsequently, the trust acquired a landed property at Malbar Hill with regard to which a change report was filed with the Charity Commissioner and the same was accepted by him. Thereafter, the trust acquired another property at Chimpoli village, Borivli. A change report in respect of the same was also filed with the Charity Commissioner and during the pendency of the suit, the same had been accepted by the Charity Commissioner. Thus, the said property has become the property of the said public trust.
3. The respondents wanted to develop the trust property at Borivli and in that view, they wanted to enter into an agreement with Satrunjaya Darshan Construction Company Private Limited. It is mentioned that the wife and son of one of the trustees i.e. respondent No. 2 are the Directors of the said company. The respondents, therefore, prayed for an amendment or modification of the instrument of trust as mentioned in Schedule I. They further prayed that after the Court passes the decree, it be declared that the said amended instrument of trust shall govern the trust. It was further prayed that the Court should issue directions for development of the immovable property at Borivli on the terms and conditions mentioned in Exh. .1 i.e. the joint development agreement dated 15th June, 1988 and the consequential alienation of the property on the terms and conditions mentioned in Exh. K. There was further prayer for a declaration that after the directions are issued by the Court, no separate sanction from the Charity Commissioner is necessary for the development and consequential alienation by way of lease. In the alternative, it was also prayed that if the Court holds that sanction is necessary, then the Court be pleased to order the Charity Commissioner to accord sanction to develop the property by joint venture on the terms and conditions mentioned in Exh. J and consequential alienation of the prOpeity on the terms and conditions of exhibits J & K. Exh. J is the agreement of joint development entered into between the trustees and said Satrunjaya Darshan Construction Company Pvt. Ltd. Exhibit K is the draft lease deed between the trustees of the respondents' trust on the one hand and the proposed co-operative housing society on the other. The plaint also mentions that prior to the institution of the suit, the respondents had filed an application to the Charity Commissioner under S. 51 of the Act for permission to file the suit and by order dated 12th Sept., !988, Mr. Mulay, Asstt. Charity Commissioner, Gr. Bombay Region, Bombay, granted consent of the Charity Commissioner for filing the suit. The respondents, therefore, prayed for a decree as prayed.
4. The suit was strongly opposed by the Charity Commissioner, Maharashtra State. It was contended by the Charity Commissioner that powers to give consent under S. 51 of the Act are delegated to the Asstt Charity Commissioner and though the consent is granted by the Asstt. Chanty Commissioner to file the present suit, it does not estop the Charily Commissioner to safeguard the interest of the public trust and the said consent does not amount to sanction under S. 36 of the Act. The Chanty Commissioner accepted the position that the property at Borivli was recorded as belonging to the trust by virtue of the change report submitted by the trustees and accepted by the Charity Commissioner. Regarding several transactions which the trustees entered into with members of the Varde family and some litigation and consent decrees being passed, the Charity Commissioner stated that he had no information regarding the same. In regard to the alleged lease in favour of Vardes as also partnership with M/s. Kuher Construction Company by the trust, the Charity Commissioner submitted that he had no knowledge as he was never informed by the parties. Regarding the averments of having taken over the property at Borivli with the liability thereon of Rs. 55 lakhs, the Charity Commissioner has specifically contended that no sanction was taken from the Charity Commissioner for carrying on such transactions and the respondents as the trustees of the public trust have not acted prudently. The Charity Commissioner specifically contended that taking into consideration the nature of the development agreement, the prior sanction of the Charity Commissioner is absolutely necessary. The Charily Commissioner, therefore, ultimately submitted that the main and substantial relict's prayed for by the respondents trustees arc in respect of development and alienation of public trust property which are within the exclusive-jurisdiction of the Charity Commissioner under the provisions of S. 36 of the Act and. therefore, under S. 80 of the Act, jurisdiction of the Civil Court is ousted and hence, the suit should be dismissed.
5. The learned Judge negatived each and every objection raised by the Charity Commissioner. She held that it was competent for the Civil Court in a suit under S. 50 of the Act to grant reliefs as prayed for in the present suit. Ultimately, by the judgment, order and decree dated 17th Feb., 1989 the learned Judge granted decree in terms of prayers (a) and (b) and also declared that no separate sanction is required from the Charity Commissioner. The learned Judge also granted decree in terms of prayer (c) thereby issuing specific directions for development of the Borivli property on the terms and conditions mentioned in Exh. J i.e. the joint development agreement dated 15th June, 1988 and consequential alienation of the property on the terms and conditions mentioned in Exh. K.
6. Mr. Kadam, learned Asstt. Government Pleader appearing for the appellant, contended that on proper reading of the averments in the plaint as also the terms and conditions mentioned in Exhs. J and K, the transaction is nothing but that of lease and total alienation of the properly of the public trust. Mr. Kadam submitted that, therefore, the prior sanction of the Chanty Commissioner is mandatory under the provisions of S. 36 of the Act. Mr. Kadam submitted that under S. 50(i) of the Act, the Court can by amending the trust deed generally authorise or permit the trustees of the public trust to alienate the property in cases where under the deed of trust, trustees have either no power to alienate the trust property or where there is a prohibition for such alienation. However, after the Court authorises the trustees to alienate the trust property, still the sanction of the Charity Commissioner for a particular alienation has to be obtained under the provisions of S. 36 of the Act. Mr. Kadam also contended that if two provisions of the Act apparently collide, then they should be interpreted in such a way as to make both operative and none redundant. Mr. Kadam also pointed out how the Charity Commissioner, in fact, would be in a outer position to scrutinise each and every transaction and also call for tenders or take other action under the rules framed in that behalf. Such scrutiny and further action to be taken in that behalf is not expected of the Civil Court. Mr. Kadam finally submitted that assuming the Civil Court had jurisdiction to grant such sanction, in the facts of the case, the learned Judge of the City Civil Court has not properly appreciated the merits of the matter or the interest of the public trust and, therefore, the decree ought to be set aside. Mr. Kadam submitted that the transaction should not have been sanctioned even on the ground of the trustees having interest in the same inasmuch as admittedly, two Directors of Satrunjaya Darshan Construction Company Pvt. Ltd. are the wife and son, respectively, of one of the trustees. Mr. Kadam in that behalf submitted that on the principles analogous to the provisions of S. 52 of the Indian Trusts Act the transaction should never he allowed. Mr. Kadam. in support of his various submissions, relied upon the decisions in Chandra-bhan v. Shrawan Kumar, : AIR1980Bom48 , Charity Commr. v. R. F. Dabbo, : AIR1979Guj168 , Madappa v. Mahanthadevaru, : [1966]2SCR151 , Chapter 9 of Maxwell on the Interpretation of Statutes, Twelfth Edition, as also in I. Janakirama Ayyar v. P. M. Nilakanta Ayyar ILR (1954) Mad 537.
7. Mr. Desai, learned counsel appearing for the respondents-trustees on the other hand, initially contended that the present development agreement does not involve any sale or lease at all, though in fairness to Mr. Desai, it must be stated that ultimately he gave up this submission and clearly stated that the transaction does contemplate lease of the trust property. Mr. Desai contended that on proper reading of the provisions of S. 50 of the Act, the Civil Court has jurisdiction to sanction alienation of the trust property and once the Civil Court has sanctioned such alienation in a suit filed under the provisions of S. 50 of the Act, there is no nesd of further sanction from the Charity Commissioner. Mr. Desai submitted that this is as if there are two routes through which the trustees could have gone, one by way of an application to the Charity Commissioner for sanction under the provisions of S. 36 of the Act and the other by way of a suit under S. 50 in the Civil Court. Mr. Desai contended that under the provisions of S. 50 of the Act, the Civil Court has ample jurisdiction to grant the reliefs of the nature in the present suit. Mr. Desai submitted that the Court will have to harmoniously construe the provisions of Ss. 36 and 50 and on such construction, both the Charity Commissioner as well as the Court will have jurisdiction to sanction alienation. Mr. Desai further contended that the trustees have acted bona fide and in fact, the Charity Commissioner comes twice in the picture in the facts of this case. The trustees have approached the Chanty Commissioner under S. 51 of the Act for permission to file the present suit and in fact the Asstt. Charity Commissioner has granted the permission after suggesting some amendments in the terms of the agreement Mr. Desai submitted that even in the suit the Charity Commissioner is the main party. All the facts are disclosed to the Charity Commissioner and in view of the fact that the public trust wanted to free the property of the huge encumbrances of Rs. 55 lakhs and as the proposed agreement purported to result into a net profit of more than Rs. 3 crores to the public trust, the learned Judge of the City Civil Court was more than justified in granting the decree as prayed. Mr. Desai also submitted that during the pendency of this appeal, the respondents filed Civil Application No. 3010 of 1989 and pursuant to the order dated 18th July, 1989 passed by a Division Bench of this Court, public notice was inserted in newspapers 'Jantnabhoomi' dated 19th July, 1989 and 'The Times of India' dated 23rd July, 1989 inviting offers from public to join the respondents-trust in joint development of trust property situated at Borivli. In response to the said invitation, the trust received requests for pro forma' agreement from 17 parties which was supplied to them. However, till 7th August, 1989 the trust has not received any single ofter either from the 17 parties or from anyone else. Mr. Desai, therefore, submitted that this indicates that the development agreement with Shat-runjaya Darshan Construction Company Pvt. Ltd. as sanctioned by the lower Court was the best possible transaction. Mr. Desai further submitted that in principle, there is nothing wrong in the wife and son of one of the trustees being the Directors of the company with whom the trust wants to enter into development agreement inasmuch as adequate care is taken to see that they have no personal interest in the matter. Mr. Desai submitted that these facts are candidly revealed by the trustees before the Charity Commissioner as well as before the Court. He further submitted that in any case, in order to obviate any doubts in the matter, the respondents are ready to see that those two Directors ceased to be Directors of the construction company. Mr. Desai, therefore, pleaded that the decree passed by the Civil Court should be confirmed.
8. With the assistance of the learned counsel on both the sides, we have gone through the pleadings and various exhibits produced by the respective parties. We have also gone through the judgment of the learned Judge in the light of the rival contentions and on consideration of the entire material, we are of the opinion that the present appeal by the Charity Commissioner has to be allowed partly.
9. Now, so far as the suit related to the relief of amendment of the trust deed, undoubtedly, the subject-matter is within the jurisdiction of the Civil Court. In the lower Court, the Advocate on behalf of the respondents-trustees had conceded that the clause of the amendment empowering the trustees to transact the business will have to be deleted. Otherwise, the amendments have been sought with a view to enhancing the objects and purpose of trust to suit the modern requirement. The learned Judge of the lower Court has, therefore, observed that there is no reason as to why the said amendment should not be allowed save and except the fact that the agreement of joint development which the respondents have sought to include as part of the amendment is not to be included in the amendment but will be independent of the trust deed and cannot and will not form part of the trust deed. The Advocate for the respondents at the time of arguments before the lower Conn, tendered Schedule I which was marked as Exh. A by the learned Judge and the learned Judge granted amendment to that extent only for the purpose of implementing the objects of the trust. Thus, so far as this relief is concerned, no fault could be found with the order of the learned Judge permitting the amendment of the trust deed to the limited extent of adding certain more objects to the list of objects in the trust deed.
10. The next question is whether the Civil Court had jurisdiction to authorise the trustees to enter into a development agreement with Shatruiijaya Darshan Construction Company Pvt. Ltd. as per the agreement at Exh. J and further also to grant lease of the trust property as per agreement K.
11. So far as the development agreement Exh. J is concerned, the learned Judge felt that the provisions of the Act are silent regarding such development agreement. However, the learned Judge felt that authorising the trustees to enter into such development agreement or sanctioning the same falls under Cl. (q) of S. 50 of the Act which is as under:--
'granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid reliefs or is necessary in the interest of the trust.'
So far as the teasing of the property is concerned, the learned Judge felt that though it would be a matter squarely falling under the provisions of S.36(1)(b), still the suit being for three composite reliefs, viz., the amendment of the trust deed, the authorisation for the development agreement and the consequential lease and as the first two subjects would be within the jurisdiction of the Civil Court, the Civil Court will have jurisdiction to grant sanction for lease also and S. 80 of the Act will not come in the way of granting any such relief.
12. Now, so far as the joint development agreement dated 15th June, 1988 between the trustees of the public trust and the said Shatrunjaya Darshan Construction Company Pvt. Ltd., is concerned, the parties thereby agreed to jointly develop the property belonging to the trust situate at Borivli. Under Cl. 5 of the said agreement, the trustees shall permit the said joint venture to develop the said property and in the books of the joint venture the trustees shall be credited with the sum calculated at the rate of Rs. 226/- per square foot of the total built up area as will be available for construction on the said property and for sale without any restriction on price under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. The said clause further mentions that an approximate sum of Rs. 3,84,20,000/- will become payable to the trust as premium/consideration. Under Cl. Sit is provided that the profits of the joint venture shall be distributed in the proportion of 25 per cent to the trust and 75 per cent to the company. The said clause further mentions that the loss, if any, of the joint venture shall be borne by the company alone and the company guarantees that the trust shall get minimum of Rs. 25,00,000/- as the share of profits. Clause 9 stipulates that it shall be open to the parties to reconstitute the joint venture organisation by admitting new persons therein from time to time. Under Cl. 12 it is provided that the development of the said property shall be carried out by the company in consultation with the trustees. However, the company will provide the necessary infrastructure and/or the resources for the development of the said property. In case of any difference on any point as regards the carrying out of the development of the said property and the marketing of flats, shops and premises the opinion of the company shall prevail. Under Cl. 15, the premium money to be paid to the trust by the joint venture for the purpose of obtaining the development rights in respect of the said property shall be only in respect of that much area as shall be available for development and sale without any restriction as to price under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976. Under Cl. 16, the joint venture organisation shall sell flats and premises in the buildings to be constructed in the said properly on what is known as ownership basis, and the company shall on behalf of the joint venture execute the necessary agreements for sale of flats, shops and premises. Under Cl. 17. on the completion of the development of the said property or portions thereof from time to time the trust shall execute lease deed or lease deeds in respect of the said property or portions thereof for a term of 99 years in favour of co-operative societies that may be formed for the building or buildings to be constructed on the said property. Such lease deed or lease deeds shall be executed by the trustees on behalf of the trust. The lessee shall pay lease rent calculated at the rate of Rs. 1/- per square foot (built up) per year of the area of the flats, shops and premises comprised in the building or buildings standing on the portion or portions of the property comprised in each lease. Cl. 18 stipulates the priorities and the proportion in which the moneys realised by sale of flats, shops and other premises are to be apportioned. Exh. K is the draft of the lease deed between the trustees of the trust and the cooperative society under which the lease for a term of 99 years is contemplated. Now, on proper reading and understanding of these two documents, it is impossible to separate them. The development agreement is meaningless without the sale of flats, shops and premises and sale of shops, flats and premises is meaningless without the lease for 99 years of the trust property or the portion thereof. In fact, Cl. 17 of the development agreement pointedly makes reference to the trust being required to execute lease or lease deeds for 99 years. Thus, the development agreement and the proposed lease deeds are integral part of one transaction and either is incapable of implementation without the other. Thus, reading those two documents in their proper perspective, in substance they are one transaction contemplating lease of the trust property for 99 years and would squarely fall within the provisions of S. 36(1)(b) of the Act. It is also to be noticed that in para 22 of the plaint, the plaintiffs (respondents herein) have averred that in the facts and circumstances mentioned above, the trust is entitled to directions under S. 50(i) of the Act for development and consequential alienation of the property by way of lease in terms of the draft agreement attached at Exh. K.
13. Therefore, the question arises as to whether the City Civil Court at Bombay is having jurisdiction to sanction such development agreement and a lease deed under the provisions of S. 50 of the Act. The provisions of S. 36 of the Act read as under :--
'36(1) Notwithstanding anything contained in the insirument of trust-
(a) no sale, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building.
building to a public trust, shall be valid without the previous sanction of the Charity Commissioner. Sanction may be accorded subject to such condition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust;
(c) if the Charity Commissioner is satisfied that in the interest of any public trust any immovable property thereof should be disposed of, he may, on application, authorise any trustee to dispose of such property subject to such conditions as he may think fit to impose, regard being had to the interest or benefit or protection of the trust.
(2) The Charity Commissioner may revoke the sanction given under Cl. (a) or Cl. (b) of sub-section (1) on the ground that such sanction was obtained by fraud or misrepresentation made to him or by concealing from the Charity Commissioner, facts material for the purpose of giving sanction; and direct the trustee to take such steps within a period of one hundred and eighty days from the date of revocation (or such further period not exceeding in the aggregate one year as the Charity Commissioner may from time to time determine) as may be specified in the direction for the recovery of the property.
(3) No sanction shall be revoked under this section unless the person in whose favour such sanction has been made has been given a reasonable opportunity to show cause why the sanction should not be revoked.
(4) If, in the opinon of the Charity Commissioner, the trustee has failed to take effective steps within the period specified in sub-sec. (2), or it is not possible to recover the property with reasonable effort or expense, the Charity Commissioner may assess any advantage received by the trustee and direct him to pay compensation to the trust equivalent to the advantage so assessed.'
Earlier, the section commenced with the words 'subject to the directions in the instrument of trust.' However, by Bombay Act No. 6 of 1960, those words were deleted by subsisting the words 'notwithstanding anything contained in the instrument of trust.' To our mind, the change is clear, viz., that earlier if the trustees were empowered under the instrument of the trust to alienate the property, then the section would not have been attracted. However, after the aforesaid amendment, sanction of the Charity Commissioner as per the provisions of S. 36 would be necess.ary, notwithstanding that the instrument of trust empowered trustees to alienate trust property. S. 36 provides that no sale, exchange or gift of any immovable property and no lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building, belonging to a public trust, shall be valid without the previous' sanction of the Chanty Commissioner. It provides that sanction may be accorded subject to such condition as the Charity Commissioner may think fit to impose, regard being had to the interest, benefit or protection of the trust. Under subsection (2), the Charity Commissioner is empowered to revoke the sanction on the ground that such sanction was obtained by fraud or misrepresentation made to him or by concealing from the Charity Commissioner, facts material for the purpose of giving sanction. The Charity Commissioner is further empowered to direct the trustee to take such steps within a period of one hundred and eighty days from the date of revocation for recovery of the property and under sub-sec. (4), upon the failure of the trustee to take effective steps as directed or when it is not possible to recover the property with reasonable effort or expense, the Charity Commissioner is empowered to assess any advantage received by the trustee and direct him to pay compensation to the trust equivalent to the advantage so assessed. The section clearly provides for complete and effectual supervision and control of the Charity Commissioner over the alienation of the trust property of the nature mentioned therein. Rule 24 of the Bombay Public Trusts Rules, 1951 provides as under:--
'Applications under S. 36 for sanction of alienations.-- (1) Every application for sanction of an alienation shall contain information inter alia on the following points:--
(i) whether the instrument of trust contains any directions as to alienation of immovable property;
(ii) what is the necessity for the proposed alienation;
(iii) how the proposed alienation is in the interest of the public trust; and
(iv) in the case of a proposed lease, the terms of the past leases, if any, such application shall be accompanied, as far as practicable, by a valuation report of an expert.
(2) The Charity Commissioner, before according or refusing sanction, may make such inquiry as he may deem necessary.
(3) In according sanction, the Charity Commissioner may impose such conditions or give such directions as he may deem fit.'
Thus, the said rule expects certain information to be provided to the Charity Commissioner and also empowers to Charity Commissioner to make such inquiry as he deems necessary. It also empowers the Charity Commissioner to impose such conditions or give such direction as he may deem fit. It is an admitted position that as a matter of practice, the Charity Commissioner invites offers or tenders and upon the scrutiny, sanctions such alienation which will result into the maximum benefit to the trust.
14. Section 50 of the Act is as under:--
'In any case,--
(i) where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees,
(ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,
(iii) where the direction of the Court is deemed necessary for the administration of any public trust, or
(iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof,
the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in S. 51 may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs: --
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) the removal of any trustee or manager;
(c) the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or wilful default;
(g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(h) a direction to apply the trust property or its income cy pres on the lines of S. 56 if this relief is claimed along with any other relief mentioned in this section;
(i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the Court may deem necessary;
(j) the settlement of a scheme, or variations or alterations in a scheme already settled;
(k) an order for amalgamation of two or more trusts by framing a common scheme for the same;
(l) an order for winding up of any trust and applying the funds for other charitable purposes;
(m) an order for handing over of any trust to the trustees of some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches, etc;
(o) an order varying, altering, amending or superseding any instrument of trust;
(p) declaring or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid reliefs or is necessary in the interest of the trust;
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof;
Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled:
Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-sec. (4) of S. 1.'
The note at the margin mentions 'suit by or against or relating to public trusts or trustees or others.' Clause (i) deals with breach of a public trust, negligence, misapplication, or misconduct on the part of a trustee or trustees. Clause (ii) relates to recovery of possession or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustees, alienee, trespasser or any other person, excluding a tenant or licensee. Cl. (iii) relates to the direction of the Court where the direction of the Court is deemed necessary for the administration of any public trust. Cl. (iv) refers to any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof. The section provides that in any of these cases, the Charity Commissioner after making such inquiry as the thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii) or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in S.51 may institute a suit to obtain a decree for the reliefs mentioned thereafter. It is not disputed that the suit, if at all, can fall under sub-clause (iii) of S. 50 and reliefs can fall, if at all, under Cls. (i) and (q) of the said section.
15. Section 80 of the Act provides as under :-
'Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, and in respect of which the decision or order of such officer or authority has been made final and conclusive.'
16. In Chandrabhan v. Sha^awan Kumar : AIR1980Bom48 , a single Judge of this Court held that sanction contemplated by S. 36(1) has to be obtained from the Charity Commissioner before the transaction is completed and there is no power in the Charity Commissioner to accord sanction after the transaction is completed and validate it by ex post facto sanction. The learned Judge further held that decision of the Charity Commissioner to grant sanction or to refuse it has not been made final and conclusive by any provisions of the Act and in this situation, therefore, it could be said that S. 80 of the Act would not be applicable to the validity or otherwise of the sanction granted by the Charity Commissioner since his decision to grant the sanction has not been made final and consetusive. The learned Judge further observed that however, even if it is assumed that it is final and conclusive, the jurisdiction of the Civil Court to determine its validity would not be taken away, if the sanction has been granted without jurisdiction or power.
In Madappa v. Mahanthadevaru, : [1966]2SCR151 , the Supreme Court was concerned with the scope of S. 92 of the Code of Civil Procedure, 1908. The Supreme Court observed that the main purpose of S. 92(1) is to give protection to public trusts of a charitable or religious nature from being subjected to harassment by suits being filed against them. That is why it provides that suits under that section can only be filed either by the Advocate-General or two or more persons having in interest in the trust with the consent in writing of the Advocate-General. The object is that before the Advocate-General files a suit or gives his consent for filing a suit, he would satisfy himself that there is a prima facie case either of breach of trust or of the necessity for obtaining directions of the Court. The Supreme Court further observed that Cl. (f) of S. 92(1) was put in inter alia to give power to Court to permit lease, sale, mortgage or exchange of properly where, for example, there may be a prohibition in this regard in the trust deed, relating to public trust. There may be other situations where it may be necessary to alienate trust property which might require Court's sanction and that is why there is such a provision in Cl. (f) of S. 92(1). The Supreme Court observed that but that clause does not have the effect of circumscribing the powers of trustees to carry on ordinary administration of trust property for the benefit of the trust and if necessary to let, sell, mortgage or exchange it and so there can be no invalidity in a proivsion in the scheme which directs the trustees or managers or even one out of the two co-managers when they cannot agree to obtain directions of the Court with respect of the disposal or alination of trust property. In the facts of the case before the Supreme Court, Cls. (11) and (12) of the scheme specifically provided for application for necessary directions to the District Court. It may be noticed that S. 50 of the Act is to a large extent identical to S. 92 of the Code of Civil Procedure, 1908. In fact, in Ratilal v. State of Bombay, : [1954]1SCR1055 the Supreme Court observed that S. 50 is really a substitute for S. 92, C.P.C. and relates to suits in connection with public trust. Cl. (a) (illegible) of S. 50 is an exact reproduction of S.92, C.P.C. and Cl.(g) also reproduces substantially the provisions of S. 92 of the C.P.C. In Tribhovandas v. Ratilal, : [1968]1SCR455 , the Supreme Court held that the transactions of mortgage, exchange, gift or lease of any immovable property in Cls. (a) and (b) of S. 36 of the Act contemplated to be made by the trustees are voluntary transactions, and in the absence of any clear provision in the Act, the expression 'sale' in Cl. (a) would only mean transfer of property by the trustees for a price. S. 36 occurs in Chap V relating to 'Accounts and Audit' and is one of the provisions which imposes restrictions on the powers of the trustees. There is nothing to indicate, either in the words of the section, or in the context in which it occurs, that the sale prohibited without sanction of the Charity Commissioner includes a Court sale in execution of a decree. The Supreme Court further observed that the section imposes a fetter upon the power of the trustees; it is not intended thereby to confer upon the Charity Commissioner an overriding authority upon actions of the Civil Court in execution of decrees. On a proper reading of the judgment, it is clear to us that the said authority lays down that the sale prohibited without sanction of the Charity Commissioner does not include Court sale in execution of a decree. It is also pertinent to note that after the said judgment, by Maharashtra Act 20 of 1971, Chapter V-A, dealing with powers and duties of, and restrictions on, trustees came to be inserted. S. 36 was also amended and Ss. 36A and 36B came to be inserted.
17. In Charity Commr. v. R. F. Dabbo,.' : AIR1979Guj168 , the learned single Judge of the Gujarat High Court was concerned with the question as to whether the Civil Court had jurisdiction, power and authority to accord sanction to sale transaction under the provisions of S.56A of the Act. The learned Judge observed that S. 36 of the Act enjoins the trustees to obtain the previous sanction of the Charity Commissioner to any transaction of sale, mortgage or exchange or gift of any immovable property or a lease for a period exceeding ten years in case of agricultural land, or for a period exceeding three years in case of non-agricultural land. The decision of the Chanty Commissioner under S, 36(1) is made final subject to the decision in appeal at the instance of the aggrieved party. The net effect of S. 36 and S. 56A read with S. 80 is that the power of granting sanction to any instruction of sale, mortgage or exchange or gift of any immovable property is within the exclusive competence of the Charity Commissioner and beyond the competence of Civil Court.
18. On consideration of the provisions of S. 36 and S. 50 of the Act, we are of the opinion that S. 36 of the Act as applicable to the State Maharashtra is a complete Code by itself and though the order of the Charity Commissioner is not made expressly final, no appeal, or revision having been provided against any order passed by the Charity Commissioner under S.36 of the Act, the same is in fact final and conclusive. Therefore, by virtue of the provisions of S. 80 of the Act, once the matter falls properly within the provisions of S. 36, the Civil Court will have no jurisdiction to deal and decide the subject-matter. It is also not possible to accept the submission of Mr. Desai for the respondents-plaintiffs that power to sanction alienation in the matter of sale, exchange or gift of any immovable property or grant lease is vested in both the authorities, viz., the Charity Commissioner under S. 36 of the Act and the Civil Court under S. SO, Ct. (iii) and sub-clauses (i) and (q). In the very nature of things, the Charity Commissioner is in a better position to scrutinise specific transactions, consider all the terms and conditions, consider the interest, benefit and protection of the trust and he is also in a better position to invite tenders or offers, scrutinise the same and put necessary conditions as he may think fit to impose. He is an officer who is well conversant with problems of public trust. On the other hand, it is difficult to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the trust. The provisions of Ss. 36 and 50 of the Act will have to be understood and interpreted harmoniously in such a way as to see that none is rendered redundant and both become operative. Maxwell on the Interpretation of Statutes, Twelfth Edition, in Chap. 9 at page 187 deals with construction to avoid collision with other provisions. It is stated:--
'If two sections of the same statute 'are repugnant, the known rule is that the last must prevail.' But, on the general principal that an author must be supposed not to have intended to contradict himself, the court wil endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule, leges posteriores priores con-trarias abrogant.....'
'One way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations.'
Taking into considerations the various provisions of the Act which make the Charity Commissioner as the main protector of the public trusts and the guardian custodian of the properties of the public trusts, we feel that the Charity Commissioner under the provisions of S. 36 has the exclusive jurisdiction to deal with the matters provided therein. Ci. (iii) or Cls. (i) and (q) of S. 50 will not give jurisdiction to the Civil Court to sanction sale, exchange or gift of any immovable property or lease for a period exceeding ten years in the case of agricultural land or for a period exceeding three years in the case of non-agricultural land or a building belonging to the public trust. The said jurisdiction exclusively vests with the Charity Commissioner. So far as sub-clause (i) of S. 50 is concerned, no doubt the same refers to a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary. However, in our opinion, read in the context of other provisions of the act in general and in the context of the provisions of S. 36 of the Act in particular.it must be held that the provisions of sub-cl. (i) of S. 50 gives jurisdiction to the Civil Court only to authorise the trustees to alienate the trust property when either the instrument of trust prohibits the same and/or does not authorise the trustees. Only in such cases the Civil Court can give directions authorising the trustees to alienate the trust property on such terms and conditions as the Court may deem necessary. However, after such authorisation, if the alienation is of the nature mentioned in S. 36 of the Act, for such each specific or particular transaction the sanction of the Charity Commissioner will be necessary. In this context, it cannot be forgotten that S. 36 is a special provision whereas S. 50 is general in nature. Hence, so far as specific transactions are concerned, the special provision must prevail over the general provisions. It is well settled principle of interpretation that what is prohibited directly cannot be permitted to be achieved indirectly.
19. In the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50(iii) or sub-clause (i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh.J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S, 36 of the Act.
20. Mr. Desai submitted that the trustees had shown their bona fides by revealing all the facts to the Asstt. Charity Commissioner under S. 51 of the Act to file the present suit. Mr. Desai further submitted that in view of the fact that in response to the advertisement issued during the pendency of this appeal, not a single person came forward to give better terms then the proposed development agreement with the said Shatrunjaya Darshan Construction Co. Pvt. Ltd., goss to show beyond doubt that the said development agreement and the terms thereof are the best. On the other hand, it is contended by Mr. Kadam that the transaction was not for the benefit of the trust but is for the benefit of the trustees and their relatives. Further, there was no necessity for disposing of the trust property. We do not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the matter.
21. We are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charily Commissioner under the provisions of S. 36 of the Act.
22. In this view of the matter, the appeal will have to be partly allowed. So far as the learned Judge has granted relief in terms of prayer (a) of the plaint for an amendment or modification of the instrument of trust, as per Exh. A tendered by the Advocate for the respondents at the time of the argument is concerned, the said direction is not to be interfered with. However, the judgment and decree dated 17th February, 1989 passed by the learned Judge of the City Civil Court at Bombay in Short Cause Suit No. 7436 of 1988 in terms of prayer Cls. (b), (c) and (d) is quashed and set aside and the suit of the plaintiffs to that extent is dismissed. The appellant-Charity Commissioner shall be entitled to the costs from the respondents-trustees of this appeal as well as the suit in the lower Court. The appeal is partly allowed, accordingly.
23. Appeal partly allowed.