Bomi Jal Mistry and ors. Vs. Joint Charity Commissioner, Maharashtra and ors. - Court Judgment

Excerpt:
[a] bombay public trusts act, 1950 - sections 36(1)(c), 50(as amended by mah. act no. 20 of 1971) - powers of charity commissioner and civil court - adjudication on matters referred to in section 36(1)(c) - special provision giving exclusive power to the charity commissioner - no power in civil court to adjudicate on these matters - both sections operating on different fields - alienation of trust property - authorisation by the charity commissioner subject to his satisfaction that disposal of immovable property is in the interest or benefit or protection of the trust - his order is final - no provision for an appeal against the order of the charity commissioner - has no bearing on the interpretation of the statute - the decision is always subject to review by the high court.;the.....a.m. khanwilkar, j. 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 trust act 1950 (hereinafter referred to as the said act for the sake of brevity), authorizing and acceding 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.....

Judgment:

A.M. Khanwilkar, J.

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 Trust Act 1950 (hereinafter referred to as the said Act for the sake of brevity), authorizing and acceding 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 crores 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 2,500 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 Trust 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 Dadabhoy Pestonji Wadia, Bombay. The principal object of the trust is to maintain and upkeep the fire temple and sacred fire therein for even for the use of Parsee Zorastrian Community of all classes -- that is to say, for the use of all persons who sever professing the Zorastrian 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 scared 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 disposal 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 originalintention 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 instalments 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.

3A. 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(l)(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 the Respondent No. 6 builder. The said application was resisted by the objectors by filing objections. Initially about 33 Parsee Zorastrian 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

A. The application is allowed.

B. The necessary sanction for alienation under Section 36(a), (b) and (c) of Bombay Public Trusts Act, is hereby granted to the Trustees of 'Muncherji Jamshetji Wadia Fire Temple Trust P. T. R. No. C-455 (Bombay) to lease out the Trust property (excluding the Fire Temple and open land surround the Fire Temple) and Development as contemplated in the agreement entered into by the trustees with Hilla Builders Pvt. Ltd. D/- 14-11-2000 for the consideration of Rs. 3.75 crores and further Rs. 30 lakhs to be paid by the Developers to the trustees for carrying on the necessary repairs to the existing fire Temple and further constructing the extension to the Agiyari building admeasuring 3500 sq. ft. free of costs for utilizing the Agiyari and (sic) religious purpose.

C. The entire transaction shall be completed within the period of 36 months from the date of obtaining I. O. D. and commencement Certificate from the Bombay Municipal Corporation.

D. Trustees and Developers shall determine the fresh Schedule of payments on the line of the clause No. 3 mentioned in the Agreement D/- 14-11-2000.

The Trustees shall file the necessary change Report under Section 22 of the Bombay Public Trusts Act, for recording the changes.'

4. It is this order which is subject matter of challenge before this Court by way of present writ petition.

5. The Petitioners before this Court claim to be Parsee Zorastrian worshippers and devotees of fire temple of the Respondent Trust. The main contention raised is that when the indenture of trust did not authorize the trustees to alienate the trust property, in such a case the trustees could not directly approach the Charity Commissioner to obtain such authority. According to the Petitioners in such a situation the trustees were under obligation to approach the Civil Court under Section 50 of the Act and only when the Civil Court authorised them to alienate the trust property, they could approach the Charity Commissioner for sanction under Section 36 of the Act. In support of this contention reliance has been placed on the decision of the Division Bench of this Court reported in : AIR1990Bom189 the Charity Commissioner v. Shantidevi Kalchand Chhanganlal Foundation Trust. The next argument is that on plain language of the indenture of the trust it would appear that it created implied prohibition on the trustees to alienate or alter the trust properties in any manner. It is submitted that if the trust either expressly or impliedly prohibits alienation of the trust property in that case the Charity Commissioner has to power to authorize the trustees to deal with the trust property in any manner, unless the trustees have got the said covenant varied and/or modified by obtaining declaration from the Civil Court in that behalf as required under Section 50 of the Act. It is next contended that since the objectors have complained that proposed transaction would result in breach of public trust in such a case the Charity Commissioner has no option but to require the parties to go to the Civil Court for instituting a suit in view of the clear provisions of Section 50 of the Act irrespective of the fact whether the question raised was contentious or not. It is thus submitted that the Charity Commissioner had no jurisdiction to bestow authority on the trustees to dispose of the trust property or to accord sanction relying on the provisions of Section 36 of the Act. It is submitted that the Charity Commissioner could not usurp the powers exclusively vested in a Civil Court to determine the relief authorizing the whole or any part of any trust property let out, sale, mortgage or exchange in any manner alienate on such terms and conditions as Court may deem necessary. It is contended that if Court was to interpret Section 36 of the Act to empower the Charity Commissioner to examine such question it would result in rendering the provisions of Section 50 otiose and moreover that will have very serious consequences -- inasmuch as the order passed by the Charity Commissioner under Section 36 would be final and no appeal against such a decision would be available. In the circumstances, it is contended that this Court would instead reject the interpretation which will have such disastrous consequences giving uncontrolled power to the Charity Commissioner. It is next contended that in any case the order passed by the Charity Commissioner is manifestly erroneous and would cause serious injustice inasmuch as the agreement in question is a blanket authority given by the trust to the Respondent No. 6 without specifying the details regarding the description of the property, the nature of repair, reconstruction and that it would also enable the Respondent No. 6 builder to demolish the existing structure and relocate them at a different site. It is contended that all these aspects have been completely overlooked by the Charity Commissioner. In the circumstances, the Petitioners contend that Impugned order passed by the Charity Commissioner cannot be sustained for more than one reason, assuming that he had authority to entertain application and authorize the trustees to alienate the trust property.

6. On the other hand, the Counsel for the Respondent Nos. 2 to 5 has adopted the reasoning indicated by the Charity Commissioner. According to these Respondents they had made out a clear case for invoking the powers of the Charity Commissioner under Section 36 of the Act. It is contended that trust deed is silent and makes no provision with regard to the authority of the trustees to alienate the trust property, which fact was expressly recorded in the application preferred before the Charity Commissioner. According to them the trust deed does not prohibit the trustees either expressly or even impliedly from alienating the immovable property of the trust, therefore, they had invoked powers of the Charily Commissioner under Section 36 of the Act. It is submitted that Section 36 of the Act operates on a totally different plane and cannot be whittled down with reference to the general provisions of Section 50 of the Act. In substance these Respondents contend that the Charity Commissioner was well within his powers not only to authorize them to alienate the trust property but was also justified in according sanction to the proposed transaction to be entered with the Respondent No. 6. The learned Counsel for the Respondent Nos. 2 to 5 contends that the fact situation of the present case would not warrant institution of a suit for the reliefs that were pressed into service by the trustees. It is further contended that the Charity Commissioner has rightly examined all the aspects of the matter and has taken into consideration all the relevant matters for which reason the impugned order does not warrant any interference. It is contended that the scope of jurisdiction of the court to interfere with the decision of the Charity Commissioner under Section 36 is very limited. According to these Respondents, this Court cannot sit in appeal over the view taken by the Charity Commissioner and the scope of the present proceedings would be limited to rectification of errors of law and procedural errors leading to violation of principles of natural justice and nothing more, It is contended that this Court can review the decision making process of the Charity Commissioner and not of the decision itself. Reliance has been placed on the judgment of the Apex Court to support this contention to which reference will be made at the appropriate stage. In substance these Respondents contend that in view of the urgency and peculiar situation of case that the trust property is admittedly more than 140 years old and allowing it to remain in the state of disrepair and in dilapidated condition, the trustees have had no option, because of the financial constraints, but to enter into the proposed transaction which is in the interest of the trust. The learned Counsel contends that the subject transaction in no case is against the interest of the trust and/or contravention of indenture of the trust as contended. The learned Counsel contends that the documents submitted before the Charity Commissioner would clearly establish that repairs/reconstruction was to be undertaken in such a manner that sanctity and holiness of the Agiyari building or fire temple was not to be disturbed in any manner. The learned Counsel contends that all these aspects have been carefully examined by the Charity Commissioner and the view taken by him cannot be faulted.

7. The learned Counsel has relied on the legislative changes brought about to Section 36 and Section 50 of the Act to contend that in the fact situation of the present case the trustees application under Section 36 of the Act would be appropriate remedy and perhaps the only remedy available to the Trustees. It is contended that since the question that arises in the present proceedings could be dealt with by the Charity Commissioner, obviously, by virtue of bar under Section 80 of the Act, no Civil Court could adjudicate on the said issue and in that context the remedy under Section 36 would be the only remedy available to the trustees. These Respondents further contend that the agreement is specific about the description of the property, nature of repair and reconstruction or development to be undertaken by the Respondent No. 6. These Respondents, including Respondent No. 6, have given undertaking before this Court that the development would be undertaken strictly in accordance with the plans with specific details that have been placed on record at page 78 of Reply Affidavit, provided, however, the same were to be approved by the Corporation. In so far as the grievance made by the Petitioners that under the present dispensation no arrangement has been made for providing accommodation for priests of the temple, the Respondents have given undertaking that they would provide necessary accommodation and keep one additional flat available exclusively for the priests. The affidavit filed by the Respondent No. 6 clearly indicates that all the present occupants, who are tenants of the trust, would be provided accommodation free of costs and in fact all the occupants have accepted the arrangement. Accordingly, the Respondents submit that the present writ petition be dismissed also on the ground that the same has been filed only with a view to create difficulties, hurdle and obstruction in the development of the trust and more particularly in the effective administration of the trust.

8. Respondent No. 6 who is the builder has adopted the arguments of the Respondent Nos. 2 to 5 and has supported the order passed by the Charity Commissioner.

9. It is relevant to point out that Mr. Mahesh Thorat, Advocate has taken out a Chamber Summons for permitting impleadment of one Mr. Adi Govadia. The affidavit in support of the Chamber Summons asserts that he is worshipper and devotee of the fire temple of the Respondent trust and permitting priest and beneficiary and therefore an interested person. He points out that the agreement executed between the Respondent Nos. 2 to 5 on the one hand and Respondent No. 6 on the other hand does not mention any clause of urgency and therefore the argument now advanced to justify the exercise of power by the Charity Commissioner under Section 36 is only a face saving device. The affidavit also asserts that he had filed objection through his Counsel before the Charity Commissioner. In the circumstances Mr. Thorat was also permitted to address the Court. According to him, there was no record to indicate that the nature of reconstruction was so urgent and imminent that the proposed transaction was inevitable. He further submits that the agreement has been kept as vague as possible and it does not provide any condition in case the builders default in making the payment. He has also relied on one letter written by Shri R.B. Patel. who is one of the tenants of the Respondent trust taking objection to the application under Section 36. He submits that in spite of this object-ion the Charity Commissioner proceeds to record that no objection has been taken by the tenants/occupants of the trust property which, therefore, is an error apparent on the face of the record. Besides this, he submits that alternate proposal was offered to let out newly constructed premises, which proposal alone was in the interest of the trust and not the proposed transaction. According to him the Charity Commissioner has committed manifest error in adjudicating the relevant aspects of the matter. He further submits that the intervenor was willing to raise funds so that immediate repairs to the trust properties could be carried out and in such eventuality there would be no occasion to alienate the trust properties as is contemplated under the proposed transaction. These are additional submissions made on behalf of the aforesaid intervenor by Mr. Thorat, Advocate. In this judgment we have referred to the Writ Petitioners as well the intervenor as the Objectors for the sake of convenience.

10. To counter the proposal now given by the intervenor, the Counsel for the Respondent Nos. 2 to 6 contends that this is done only to delay the matter. It is rightly pointed out that the Charity Commissioner explored all the possibilities for some workable arrangement or of any other option, before according permission. Moreover, it is relevant to note that when this writ petition came up before us on 10th December 2001 we adjourned the hearing of this writ petition calling upon both the parties to amicably resolve the matter and also explore all possible solutions. On the adjourned date, however, Counsel for the parties indicated that it was not possible to amicably resolve the matter and it would be appropriate that the Court decides the matter on its own merits. At no point of time the intervenor had shown keenness to undertake to deposit adequate amount so as to carry out the repairs and reconstruction of the trust property. It is rightly brought to our notice by the Respondent Nos. 2 to 6 that it is too late in the day to entertain such request because the matter remained pending with the Charity Commissioner for so long and in any case the Respondent No. 6 has already acted upon the agreement and invested huge amount including the amount of Rs. 13 lacs already paid to the trustees for carrying out urgent repairs. It is stated that on receipt of the said amount necessary repairs have already been carried out. The learned Counsel for the Respondent Nos. 2 to 5 further contends that it is possible that the intervenor may succeed in collecting sum of Rs. 30 lacs which is necessary for carrying out immediate repairs to the fire temple, sacred house, Agiyari, but this is not a one time affair as the trust would be required to spend such amounts regularly having regard to the fact that the trust building is almost around 140 years old and is in a dilapidated condition and if there is no response in future the trust would be faced with same situation since the income derived by the trust by way of rent collected from the tenants occupying the trust properties is absolutely inadequate and cannot match with the outgoings. According to them, it is therefore, imperative for the trust to enter into the proposed transaction so that sufficient corpus is created on the basis of which the trust properties and in particular Agiyari and fire temple can be properly maintained forever. There is force in this submission. It is therefore not possible to accept the proposal now submitted by the intervenors.

11. Besides making abovesaid oral submissions, the Counsel have filed written submissions. With the assistance of the learned Counsel on both sides, we have gone through the pleadings and various documents produced by the respective parties. We have also gone through the written submissions including the impugned order passed by the Charity Commissioner. In the light of the rival contentions and on consideration of the entire material, we are of the opinion that the grievance made by the writ petitioners as well as the intervenors is devoid of merits. We shall deal with the respective contentions in this judgment.

12. The first and foremost question that needs to be addressed is the scope and ambit of the authority of the Charity Commissioner under Section 36 of the Act in matters where the trust deed either expressly prohibits or for that matter impliedly does not permit the trustees of the public trust to alienate the trust properly or where the trust makes no provision and is silent in this behalf. This question arises in view of the submission that, when the trust deed expressly prohibits the trustees from alienating the trust property or even where it is silent in that behalf, the only course open to the trustees is to first approach the Civil Court and obtain appropriate relief under Section 50 of the Act authorising them to alienate the trust property and only thereafter approach the Charity Commissioner under Section 36 of the Act for sanction of the proposed transaction. Reliance was placed by both the sides on a decision of the Division Bench of this Court reported in : AIR1990Bom189 --The Charity Commissioner, Maharashtra State, Bombay v. Smt. Shantidevi Lalchand Chhaganlal Foundation Trust, Bombay and others. We have closely examined that decision. In our view, the Objectors or Petitioners are under some misconception that this judgment holds that the civil court has the exclusive jurisdiction to authorise the trustees to alienate the trust property even in cases where the trust deed is silent and makes no provision whatsoever in that behalf. We are of the view that the observations made in the said decision are in the light of the fact situation of that case. In that case the trust deed made express provision investing power in the trustees to alienate the trust property. In spite of this position, a suit was filed before the Civil Court for reliefs under Section 50 of the Act. The suit involved three reliefs -- (I) the amendment of the Trust Deed; (11) the provision for the Development Agreement, and (iii) the consequential lease. And while decreeing the said suit, the Civil Court not only pronounced on the issue of the authority of the trustees to alienate the trust property but also went on to accord sanction in respect of the proposed transaction. In this backdrop, as is obvious from para 6 of the said decision, the Charity Commissioner preferred appeal before this Court essentially contending that, sanction accorded by the Civil Court to alienate the immovable property of the public trust in any manner is the absolute prerogative of the Charity Commissioner under Section 36 of the Act and this power cannot be usurped by the Civil Court merely because it was competent to grant relief of authorizing the trustees to alienate the trustproperty. This plea has been accepted in the said decision. The Division Bench has held that the amendment of the Trust Deed squarely falls within the jurisdiction of the Civil Court. As regards the relief of sanctionfor the Development Agreement and consequential Lease, the Court observed that it fell under Section 36(l)(a) and (b) of the Act andthe Charity Commissioner alone was competent to consider the same. In that case the Court was essentially concerned with the question as to whether the Civil Court has power to accord sanction to the trustees toalienate any immovable property of the public trust. The Court has answered the same in the negative. In other words, that decision is an authority on the issue of exclusive power of the Charity Commissioner under Section 36(l)(a) and (b) to grant sanction to the trustee to alienate immediate property of the public trust. A priori, this judgment will have' to be read as a whole and same casual observations made on some other issues cannot be treated as its ratio. AIR1993 SCW 790 Commissioner of Wealth-tax v. Dr. Karan Singh). In the present case, however, the question is whether the Charity Com missioner has power to authorise the trustee to dispose of immovable property of the public trust in the context of Section 36(l)(c) of the Act. The power conferred in the Charity Commissioner under Section 36(l)(a) and (b) to accord sanction to any transaction of theimmovable property of the public trust and to authorise the trustee to dispose of any immovable property of the public trust under Section 36(l)(c) are entirely distinct. It is in this background the observations in the said decision will have to be understood. In our view, it would be apposite to reproduce para. 18 of the said decision which in substance is the ratio of the said decision. The same reads thus ;-- ,

Para 18. 'On consideration of the provisions of Section 36 and Section 50 of the Act, we are of the opinion that Section 36 of the Act as applicable to the State of 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 Section 36 of the Act, the game is in fact final and conclusive. Therefore, by virtue of the provisions of Section 80 of the Act, once the matter falls properly within the provisions of Section 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 respondent-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 Section 36 of the Act and the Civil Court under Section 50. Clause (iii) and Sub-clauses(i) and (g). 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 provision of Sections 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 lastmust prevail..' But on the general, principal that an author must be supposed not to have intended to contradict himself, the court will endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule, leges posteriors priores contraries 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 Section 36 has the exclusive jurisdiction to deal with the matters provided therein. Clause (iii) or Clauses (i) and (q) of Section 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 Section 50 is concerned, no doubt the same refers to a direction authorizing 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 Section 36 of the Act in particular, it must be held that the provisions of Sub-clause (i) of Section 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 Section 36 of the Act, for each such specific or particular transaction the sanction of the Charity Commissioner will be necessary. In this context, it cannot be forgotten that Section 36-is a special provision whereas Section 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.'

Understood thus, we have no hesitation in observing that the abovesaid decision of the Division Bench of this Court in the matter of Charity Commissioner v. Smt. Shantadevi (supra) does not support the position taken by the Petitioners or objectors. On the other hand, in our view, the ratio of that decision is that the provision of Section 36 of the Act as applicable to the State of Maharashtra is a complete code by itself and is a special provision in contradistinction to Section 50 of the Act which is a general provision. This decision is also an answer to the grievance made by the Petitioners that it would be disastrous to interpret Section 36 in the manner contended by the Respondents for it observes that though the order of the Charity Commissioner is not made expressly final as no appeal or revision has been provided against the order of the Charity Commissioner under Section 36 of the Act, the same is in fact final and conclusive. The principle underlying this statement of law is on the premise that the Charity Commissioner alone is the final arbiter to scrutinise specific transaction as to whether it is in the interest of the trust. This Court has thus held that the Charity Commissioner, under provision of Section 36, has the exclusive jurisdiction to deal with the matters provided therein (Section 36); and the matters which fall within the jurisdiction of the Charity Commissioner under Section 36 of the Act are, as a necessary corollary, extricated from the jurisdiction of the Civil Court under Section 50 of the Act; and the Civil Court will have no jurisdiction over such matters in view of the bar of Section 80 of the Act. It is in this perspective that the Division Bench has observed that harmonious construction of Section 36 and 50 was necessary. This authority, therefore, in no way an authority on the stand taken by the objectors. No doubt at one place it is observed that in view of Section 50(i) only the Civil Court has jurisdiction to authorise the trustees to alienate the trust property when either the instrument of the trust prohibits the same and/or does not authorise the trustees, however, that observation is not the ratio of the decision on the issue of plenitude of power of the Charity Commissioner under Section 36(l)(c) of the Act inasmuch as that question was not in issue at all. In our view, this decision is an authority on the proposition that though Section 50 would empower the Civil Court to authorise the trustees to alienate the immovable property of the Public trust that, however, would not empower the Civil Court to grant sanction to the proposed transaction, for that can be granted only by the Charity Commissioner in exercise of powers under Section 36(l)(a)(b) of the Act. This is, therefore, in our view, not an authority oh the wide proposition canvassed before us that the Charity Commissioner cannot grant authorisation at all. If we were to accept sucha plea, it would make clause (c) of Sub-section (1) of Section 36 of the Act, which has been specifically inserted by Amendment of 1971,virtually otiose.

13-14. We shall now proceed to elaborate on the scope and ambit of Section 36 of the Act. We would prefer to pick up the thread from the point where the abovesaid decision of the Division Bench of this Court has left. In our view, however, it would be apposite to advert to the legislative changes or history in respect of Section 36 of the Act. This Section as originally incorporated in the Act of 1950, read thus :--

'36. Subject to the directions in the instrument of the trust:

(a) no sale, mortgage, 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,

belonging to a public trust, shall be valid without the previous sanction of the Charity Commissioner.'

15. It was experienced that having regard to this provision, in cases where the trust deed authorised the trustees to alienate the trust property no previous sanction of the Charity Commissioner was necessary. To over come this position amendment was effected to this provision by Act Bom 6 of 1960. By this amendment, the opening words of this provision that -- 'subject to the directions in the instrument of trust' were substituted by inserting words -- 'Notwithstanding anything contained in the instrument of trust'. This position has been retained even now. The consequence of such amendment was that, even in cases where the trust authorises the trustees to alienate the immovable property of a public trust, even then in case of sale, mortgage, exchange or gift or lease for a period exceeding 10 years in the case of agricultural land or for a period exceeding 3 years in the case of non-agricultural land or a building, previous sanction of the Charity Commissioner was made mandatory. By passage of time it was felt that further drastic changes were needed to give necessary powers to the Charity Commissioner to enable him to effectively supervise the administration and management of the public trust. For this purpose, the legislature thought it appropriate toamend the relevant provisions of the Act, which included Section 36 and Section 50 of the Act. This was done by the Maharashtra Act 20 of 1971. The objects and reasons for this amendment was that it was observed that powers of the Charity Commissioner under the then existing provisions of Act 1950 were considerably limited and hence many a time it was found by the Charity Commissioner difficult to enforce the effective working of the public trusts. This is the fulcrum of the amendment of 1971. It needs to be mentioned that prior to 1971, the legal position as obtained was that the Charity Commissioner could only accord sanction to the alienation of the immovable property of the public trust and he had no power to authorise the trustees of any public trust to alienate any immovable property of the public trust. In other words, in cases where the trust deed expressly or impliedly prohibited the trustees from alienating the immovable property of the public trust or for that matter made no provision with regard to such power, it was incumbent upon the trustees to first obtain relief in this behalf from the Civil Court under Section 50 of the Act. Accordingly, the position prior to 1971 was that, authorisation for alienation of the immovable property of public trust could be granted only by the civil court, in cases where such authorisation was necessary. However, after amendment of 1971, this position has obviously undergone change. As observed earlier, the objects and reasons for amendment of 1971 was to give necessary powers to the Charity Commissioner to effectively supervise the administration and management of the public trust. By virtue of this amendment, the legislature not only introduced Clause (c) to Sub-section (1) of Section 36 but also inserted Sub-sections (2), (3) and (4) in Section 36 of the Act. Section as applicable to the State of Maharashtra after 1971 amendment, reads thus :--

Section 36. Alienation of immovable property of public trust

(1) Notwithstanding anything contained in the instrument 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 belonging 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 has to the interest or benefit or protection of the-trust.(2) The Charity Commissioner may revoke the sanction given under Clause (a) or Clause (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 opinion of the Deputy Commissioner, the trustee has failed to take effective steps within the period specified in Sub-section (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.'

16. Accordingly, the view that we propose to take in respect of the scope and ambit of Section 36 of the Act, as applicable to the State of Maharashtra, is fully reinforced not only by the plain language of this provision but also by the objects and reasons of the amendment Act of 1971. The legislature was conscious about the purpose of inserting Clause (c) to Sub-section (1) of Section 36 of the Act. In this respect, reference to the statement of objects and reasons in particular note on clause 22 will be apposite. It reads that : 'Power is taken to the Charity Commissioner to authorise any trustee to dispose of immovable property subject to conditions which he may think fit to impose'. This is a complete answer to the argument advanced on behalf of the objectors that the Charity Commissioner cannot at all authorise the trustees to dispose of any immovable property of a public trust and that the Civil Court is only competent to authorise the trustees in that behalf. Section 36 being a special provision, the same would give exclusive power to the Charity Commissioner to adjudicate matters referred to therein. Once we reach at this conclusion, it necessarily follows that the civil Court will have no jurisdiction to adjudicate on matters covered by Section 36, by virtue of bar under Section 80 of the Act, though it was possible to trace the source of authority of the Civil Court regarding authorisation of the trustees to the general provision of Section 50 of the Act. No doubt the learned Counsel for the objectors placed reliance on the notes on Clauses, in particular Clause 34, which relates to amendment of Section 50 of the Act of 1950, which reads thus -- 'This clause provides for substituting new Section 50 for existing Section 50. The intention is to widen the scope of Section 50 to cover as many reliefs as possible which are connected with a public trust'; however, that would be of no avail inasmuch as Section 36 being special provision, all matters covered thereunder would be automatically extricated from the ambit of Section 50 of the Act. If we were to take the other view as contended, it would do violence to the objects and reasons for amendment of Section 36 of the Act and as a consequence to the legislative intent. In our view, merely because the note on Clause 34, which relates to Section 50 of the Act, mentions that the intention is to widen the scope of Section 50, that by itself cannot whittle down the rigours of Legislative intent to introduce amendment to Section 36 of the Act. The entire edifice of the argument of the Counsel for the objectors, questioning the authority of the Charity Commissioner for authorising the trustees to alienate an immovable property of the public trust, in our view, would fall to the ground. In our view, both Section 36(i)(c) and Section 50 of the Act operate on different fields. Inother words, on plain language of Section 36 in contradistinction to Section 50 of the Act, the position that emerges is that, for any specific transaction the Charity Commissioner is in a better position to scrutinise the efficacy thereof and to impose such conditions as he may deem fit in the fact situation of that case. We say so because the expression employed in Clause (c) is 'to dispose of such property'. Thus, where the trustees apply to the Charity Commissioner for authorisation in respect of a specific transaction, no matter the transaction would cover the substantial or whole of the immovable property of the public trust, even then the same would be governed by Clause (c) of Sub-section (1) of Section 36 of the Act subject to fulfilling other requirement of that provision. Once it is governed by that provision, it will not be open to the Civil Court to adjudicate upon that matter. Whereas, the area of enquiry open to the civil Court under Section 50 in respect of immovable as well as movable properties of the public trust for generally authorising alienation of whole or any part of the trust property. Whereas the authorisation by the civil Court under Section 50 is of general nature for the whole or any part of the trust property to be alienated in any manner on such terms and conditions as the court may deem necessary, whereas the authorisation by the Charity Commissioner under Section 36(l)(c) is only when it is found to be 'in the interest or benefit or protection of the public trust' that any immovable property thereof should be disposed of. The existence of 'interest or benefit or protection of any public trust' is the precondition and therefore this would be perceptibly distinct from general authorisation perceived by Section 50 of the Act'. The quintessence of authorisation under Section 36 of the Act is that the Charity Commissioner has to record his satisfaction that disposal of any immovable property of the public trust was and is in the interest or benefit or protection of the trust. The Legislative scheme is that the Charity Commissioner has been made the final arbiter for this purpose. This is the plain and natural meaning that can be ascribed to the language of Section 36(l)(c) of the Act. As observed earlier, this power has been invested in the Charity Commissioner by amendment of 1971 as it was experienced that certain matters which required relief to be obtained from the Court of law took long time, and as a consequence of which many times persons interested, advised to approach the Court of law to redress their grievance, do not approach the court either for want of finance or, some other reasons with the result that the defaulting trustees remain in possession of trust affairs and continue causing more damage to the trust. The legislature was conscious that the Charity Commissioners are judicial officers of the status of District Judges who are already enjoying some of the powers under the Civil Procedure Code and there was no reason why the same powers should not be given to them while administering the provisions of this Act and, supervising the trusts. Therefore, legislature introduced Clause (c) empowering the Charity Commissioner to authorise the trustees to dispose of any immovable property of the trust in the interest or benefit or protection of the trust. The plenitude of this power no doubt apparently appears to be wide. Indubitably, the power of the Charity Commissioner is plenipotentiary, but is specific and limited to the cause of interest or benefit or protection of the trust. We are not at all impressed by the argument of the objectors that Clause (c) has been inserted to cover matters which were left out from Clauses (a) and (b). This submission would virtually require us to construe expression 'authorise' in Clause (c) as only 'sanction'. This cannot be countenanced, for the legislature can be ascribed the knowledge of distinction between the two, especially when both these expressions are used in one section. Besides it would mean that all transactions in respect of immovable property of the public trust would require sanction, which is obviously negating the purport of Clauses (a) and (b). Moreover, it is seen that Section 36 opens with Non-obstante clause, for it provides that; 'Notwithstanding anything contained in the instrument of trust'. On its plain language it would mean that even if the instrument of trust prohibits the trustees either expressly or impliedly, even then the Charity Commissioner would be empowerd, nay, obliged to authorise any trustee to dispose of such property on an application made in that behalf, regard being had to the interest or benefit or protection of the trust. In any case when the instrument of trust is silent or aphonic about the authority of the trustees in that regard or that it does not expressly or impliedly prohibit the trustees, then surely in such a case the trustees can approach the Charity Commissioner under Section 36(l)(c) for giving authority to dispose of any immovable property of the public trust. The present case would, in our view, fall at least in this category of cases enabling the Charity Commissioner to exercise powers under Section 36 of the Act. We say so because the subject instrument of trust does not expressly prohibit the trustees from alienating any trust property -- nor does it impliedly do so. We have come to this conclusion on carefully reading the instrument of trust as a whole. Even for this reason we would conclude without any hesitation that by virtue of Section 36(l)(c), the Charity Commissioner had power to authorise the Respondents-trustees to dispose of the immovable property of the public trust -- in particular the one referred to in the application under Section 36 of the Act and the subject agreement entered with the Respondent No. 6.

17. The next point made by the objectors was that the abovesaid interpretation would result in disastrous consequences as decision of the Charity Commissioner becomes final and the objectors are rendered remediless. This submission, in our view, is wholly devoid of merits. No doubt the order passed by the Charity Commissioner authorising the trustees to dispose of any immovable property of the public trust is final and even one statutory appeal is not available against the said decision; however, that would have no bearing on the interpretation of the statute. Moreover, it is well settled that right of appeal inheres in no one and is a creature of statute. In any case, this grievance is wholly inappropriate since the decision of the Charity Commissioner, permitting the trustees to alienate any immovable property of the trust is not taken in arbitrary or irresponsible manner. The same is founded on an informed decision of the trustees. There would be presumption that the trustees, who are answerable for the misuse or charge of misconduct, would act in the interest of the trust. The decision to dispose of any Immovable property of the public trust is, therefore, an informed decision of the trustees. Such decision ordinarily cannot be questioned unless it is established that it is tainted and against the interest of the trust. The law would presume that the trustees have acted in good faithand in the interest of the trust. The decision of the trustees therefore, has to be respected. This Court in judgment reported in 1979 Mah LJ 104 in Arunodaya Prefab v. M.D. Kambli has observed thus :

'Under the terms of Section 36, Bombay Public Trusts Act read with Rule 24, Bombay Public Trusts Rules, the Charity Commissioner is concerned only with according or refusing sanction to particular sale which the trustee propose to make. It is proceeding which concerns only the trustees. To decide whether the sale is in the interest of the trust, he is empowered to make such inquiry as he deems necessary. It is for the trustees to decide to whom they should sell the property, subject to sanction of the Charity Commissioner to the proposed sale, if the Charity Commissioner needs to ascertain the market price of the property he may issue such directions as he deems necessary and it is obligatory to the trustees to comply with those directions. It is not open to the Charity Commissioner to consider uninvited offers from third parties except for ascertaining the market price of the property. He cannot sell or require the trustees to sell the property to such third parties. If he considered the sale proposed by the trustees adverse to the interest of the trust he could only decline sanction'.

18. Thus, in the first place, it is the discretion of the trustees to take a decision to sell or lease any immovable property of the trust. That decision, of course, is subject to the scrutiny of the Charity Commissioner. That is a matter which would be governed by the provisions of Clauses (a) and (b) of Sub-section (1) of Section 36 of the Act. In the circumstances, it is only when the trustees make application for authorising them to dispose of any immovable property of the public trust, the same would be granted only if the Charity Commissioner is satisfied that such a course would be in the interest or benefit or protection of the trust and not otherwise, Merely because no statutory appeal against that decision of Charity Commissioner is provided, that cannot be the basis for doubting the powers of the Charity Commissioner to grant such authority, if asked. In any case, the justness and correctness of the authorization granted by the Charity Commissioner is always subject to a judicial review. The objectors or any interested person can always approach the High Court in its writ jurisdiction, questioning the permission granted by the Charity Commissioner authorizing the trustees to dispose of any immovable property of the public trust. It is seen from the statement of objects and reasons of the amendment of 1971 that the legislative intent was that the matters connected with and referred to in Section 36 as amended; should not be held up indefinitely as it ultimately frustrates the interest of the trust: in the event the matters remain pending in the court. If this be the legislative intent by interpreting this provision in any other manner we would do violence to the language of the said provision which cannot be countenanced.

19. The next question is whether in the facts of the present case the Charity Commissioner was justified in not only authorizing the trustees to dispose of the immovable property of the trust but also according sanction for the proposed transaction. At the outset it needs tg be pointed out that, there is some misconception about the purport of Section 36 of the Act. In our view, Clause (c) of the Sub-section (1) pertains to the power given to the Charity Commissioner to authorize the trustees to dispose of any immovable property of the public trust. This power can be exercised by the Charity Commissioner on an application by the trustees, and on being satisfied that the disposal of any immovable property of the public trust is on account of legal necessity in that it would be in the interest or benefit or protection of the trust. Such authorisation would be necessary in cases where the trust deed either expressly or impliedly prohibits the trustees from disposing of the trust property but also in matters where the trust deed is silent in that behalf. Once the Charity Commissioner accords authority to the trustees, in exercise of power under Clause (c) of Sub-section (1) of Section 36 of the said Act, only thereafter would the trustees request the Charity Commissioner to accord sanction in respect of any particular transaction by virtue of Clauses (a) and (b) of Sub-section (1) of Section 36 of the said Act. In other words, authorizing the trustees to dispose of the immovable property of the public trust by itself is not enough, but it is only when the Charity Commissioner, on scrutinising the proposal, accords sanction to the proposed transaction in exercise of powers under Clause (a) or (b) of Sub-section (1) of Section 36 of the Act that the transaction would be legitimatised and valid in law. If the sanction in respect of a particular transaction is refused, the said transaction cannot proceed as it would be void for want of previous sanction of the Charity Commissioner.

20. In the present case, it is seen that the trustees approached the Charity Commissioner by way of application under Section 36 of the Act dated 26-6-2001. The application clearly asserts and gives the background and the state of affairs of the subject properties -- that they are old and dilapidated and are in need of urgent structural repairs. The trustees have also disclosed that there is no specific provision in the instrument of trust empowering the trustees to alienate the trust property for 'which reason it has become imperative for them to approach the Charity Commissioner under Section 36(l)(c) with a request to authorise them to alienate the property. The application gives graphic description as to the need for urgent repairs and reconstruction of the trust property (except the fire temple and open land surrounding the fire temple). The trustees have also given the details of the offers received from different developers and the fact that they have taken decision to accept the proposal given by Mira Builders, Respondent No. 6, which is in the interest and for the benefit of the trust. The application is therefore a composite application under Section 36(l)(c) for authorisation and 36(1)(b) for sanction of specific proposed transaction. In so far as the state of affairs of the trust properties, there is no dispute that the structures need urgent structural repairs, being about 140 years old property and is in a state of disrepair and dilapidated condition. The Charity Commissioner on examining the rival stand and the objections taken before him has recorded a categoric finding that, alienation of the trust property, as requested by the trustees, is a case of need or compelling and unavoidable necessity for the benefit of the estate of the trust. In other words, the Charity Commissioner, who is the final arbiter on this matter has recorded his satisfaction and has formed opinion that the proposed alienation of the immovable property of the public trust would be in the interest or benefit or protection of the trust. Having taken that view, the Charity Commissioner thought it appropriate to authorise the trustees in exercise of powers under Clause (c) of Sub-section (1) of Section 36 of the Act.

21. The counsel for the objectors made fervent efforts to persuade this Court that the satisfaction recorded by the Charity Commissioner was inappropriate. We are not at all impressed by this submission. In our view, the scope of enquiry under Article 226 and 227 of the Constitution of India is only a review of the decision making process and not of the decision itself. (1992) Sup (2) SCC 312 . Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath and Sons and : (1999)ILLJ947SC --Rae Bareli Kshetriya Gramin Bank v. Bhola Nath Singh. In our view, therefore, this Court cannot sit in appeal over the decision of the Charity Commissioner granting authority to the trustees to alienate the immovable property of the Trust. This is so because the powers of this Court are limited to rectification of errors of law and procedural errors leading to manifest injustice or violation of principles of natural justice. This Court cannot re-appreciate the evidence which pursuaded the Charity Commissioner to record his subjective satisfaction in exercise of powers available to him. It is not in dispute that averments made in the petition regarding the imminent urgency for carrying out repairs and reconstruction have gone unchallenged. Moreover, finding recorded by the Charity Commissioner in this behalf have not been specifically challenged in the present writ petition. In that sense there is no exception taken to the foundation laid by the trustees for allowing the application under Section 36(l)(c) of the Act. The grievance made by the Objectors even before this Court, in our view, are relating to matters which would impel us to sit in appeal over the said decision of the Charity Commissioner, which cannot be countenanced. In the circumstances, we are not inclined to go into each and every contention raised by the objectors before this Court for, that would be wholly unnecessary. In our view, no grievance has been made before us about any irregularity or impropriety in the decision making process. The only question that had really impressed us, for which we heard the parties at length, was the question of law that the Charity Commissioner had no power to grant authority to the trustees to alienate the immovable property of the public trust. This question we have already answered against the objectors. In that sense, in the present case the power to grant authority to the trustees has been exercised by the Charity Commissioner keeping in mind matters germane to accord such authority. We see no reason to interfere with the same.

22. The next question is regarding the power exercised by the Charity Commissioner in terms of Clauses (a) and (b) of Subsection (1) of Section 36 of the Act. Even in respect of this decision we are not impressed by the nature of grievance made before us so as to over-turn the same, for there is no grievance made about the decision making process of the Charity Commissioner or that there is any procedural error in the decision making process. The argument advanced before us, in our view, would not warrant detailed investigation -- for the same does not even remotely suggest that there is any error of law committed by the Charity Commissioner. On the other hand, as observed earlier, the law as to the scope of enquiry under Section 36 has been well stated in the reported decision of Arunodaya (supra). The Charity Commissioner can either accord or refuse sanction to the proposed sale by the trustees. In the present case, the Charity Commissioner has satisfied himself about the genuineness and authenticity of the proposal including the fairness of the offer made by the Respondent No. 6. The view taken in Arunodaya (supra) is that the proposed transaction is in the nature of moral commitment made by the trustees to the builder. The offer made in respect of the subject immovable property of the trust was no doubt fair and highest offer received by the trustees has been accepted. No better offer whatsoever was made either before the Charity Commissioner or for that matter even before this Court. In fact the parties were given ample opportunities to explore the possibility of amicable resolution of the entire controversy keeping in mind the interest as well as the benefit and protection of the trust. No other offer was made before the Charity Commissioner that can be said to be better offer so that the Charity Commissioner would have directed the trustees to consider as to whether they were willing to alienate the immovable trust property for such offer. Even before this Court, except suggesting that other modalities could be explored no serious attempt has been made to give a better offer worth considering. The argument advanced before us is that it was not necessary to alienate the immovable property as proposed by the trustees. However, as observed earlier that is a matter on which informed decision has been taken by the Charity Commissioner while authorising the trustees and that decision cannot be successfully questioned before this Court. As a consequence of which the other modalities suggested by the objectors would be wholly inapposite to the legal question that arises for our consideration. As observed earlier, the scope of jurisdiction of this Court is very limited and no material is placed before us to impress or pursuade us to invoke writ jurisdiction.

23. One of the contention raised before us by the objectors was that the Charity Commissioner cannot interfere with the religious belief inasmuch as the sanctity and holiness of the place of worship was likely to be affected. We are not impressed by this submission. It is seen that the Charity Commissioner has kept in mind that the sanctity and holiness of the place of worship is not being affected in any manner for the proposal was only in respect of immovable property (except the fire temple and land surrounding the fire temple). The grievance made that the proposed building would be touching the wall of worship place has also been examined by the Charity Commissioner. The Charity Commissioner has, therefore, directed keeping 5 open space between the two buildings. That direction would obviously take care of the grievance made by the objectors. Now the open space assured by the respondents is between 5' to 20' from the dead wall and this would negate the grievance made regarding the breach of sanctity and holiness of the place of worship.

24. The other contention on behalf of the objectors is that the Charity Commissioner has accorded sanction in respect of transaction which is not in the interest of the trust inasmuch as no description of the property has been provided in the agreement. In response to this submission it is pointed put that the Charity Commissioner has accorded sanction only in respect of the property specified in the subject agreement. It is further clarified before this Court by the trustees and builders by giving undertaking through their counsel that they would confine development in respect of the area strictly as per the plan at page 78 of the reply affidavit. They further undertake that if Municipal regulations so require, they would keep further open area and proportionately utilize the FSI strictly in accordance with the plans finally sanctioned by the Municipal authorities. According to the Respondents, the proposed building will aggregate to only about 9927 sq. ft. instead of present plinth area of 14081 sq. ft. The assurance and undertaking given on behalf of the trustees as well as the builders are accepted. In view of this position, there is no substance even in this grievance made by the objectors. In other words, area in respect of which sanction has been obtained from the Charity Commissioner in terms of the impugned order dated 6-8-2001 is specified and limited and there is no ambiguity whatsoever. Besides that, even the consideration for the said area is already stipulated in the agreement. Objectors would then contend that in any case there is no provision in the agreement as to the consequences for any default committed by the builders in payment of instalments. Counsel for the builders has assured that there would be no such occasion. In any case, such objections, in our view, cannot be the basis for interfering with the order of sanction in respect of the proposed transaction in writ jurisdiction. The presumption in law is that parties are acting in good faith and would stand by their commitment. There is nothing on record except the bare words of the objectors that, builders would not adhere to the commitment in the agreement. It would have been different matter if some cogent evidence was adduced by the objectors in support of their plea. However, in our view all these objections are, to say the least, preposterous and without any substance.

25. Yet another serious grievance made before this Court by the objectors was that application preferred by the trustees before the Charity Commissioner could not have been filed on behalf of the trustees in view of the assurance given before this Court in the previous proceedings. This aspect of the matter has been considered by the Charity Commissioner and in his view the same was devoid of any substance. We, however, to reassure ourselves about the view taken by the Charity Commissioner examined the same. What is seen is that an application was filed under Section 41E of the Bombay Public Trust Act against the trustees for injunction. In those proceedings grievance was made that the trustees inter alia were planning to change the place of the fire temple from existing place to some other place and demolish the existing fire temple and further planning to construct commercial complex thereon. In the context of that grievance the trustees assured the Joint Charity Commissioner that they would seek prior permission of the Charity Commissioner before implementing the scheme for development. In view of that undertaking given by the trustees, said application was dismissed, The applicants therein however, carried the matter in writ petition before this Court. Even before this Court statement was made on behalf of the trustees that the trust had no intentions to demolish the existing fire temple in the Agyari or shifting the fire temple to any other place. What was however pointed out is that the existing Agyari structure is in state of disrepair and the trust merely proposes to develop the property and renovate the existing structure. In that sense no undertaking was given that the trust would not develop the property at all, as is now sought to be contended. No doubt, the undertaking with regard to the existing fire temple in the Agyari and sacred fire in the Agyari was very categorical. The trustees gave clear undertaking that they have no intentions to shift the same. Even today the trustees have not changed their stand in that behalf. No doubt the said writ petition was disposed because the writ petitioners there in 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. However, that does not mean that the trustees had given perpetual undertaking or for that matter the Court had prohibited the trustees from alienating the trust property (except the fire temple and open land surrounding the fire temple). In this view of the matter the grievance made by objectors that earlier proceedings would estop the trustees from developing the property is wholly ill advised and misconceived. We see no merits in that contention.

26. As a consequence of the aforesaid submission the objectors further contend that the trustees gave undertaking to repairthe existing building. In this context reliance was also placed on the recitals of the trust deed that the trustees would maintain the houses and building on the said round for ever. Reliance was placed on the following covenant :--

'To maintain and keep up the said Fire Temple and the sacred fire therein for ever for the use of the Parsee Zorastrian Community of all classes that is to say for the use of all persons whatever professing the Zorastrian faith from hence forth for ever.

And to maintain the said houses and building on the said ground 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 officiate in and attend upon the said Fire Temple'.

On plain reading of this covenant we have no hesitation in taking the view that that it obligates the trustees to maintain and keep up the fire temple and the sacred fire therein for ever for the use of Parsee Zorastrian community of all classes that is to say for the use of all persons whatever professing Zorastrian faith from henceforth for ever. The latter part of this covenant, according to the objectors, obligates the trustees to maintain for ever even the existing houses and buildings on the said ground in connection with the fire temple for residence of such priest as may from time to time be selected or permitted by the trustees to officiate in and attend upon the fire temple. This covenant, in our view, does not either expressly or impliedly prohibit the trustees nor preclude them from developing the trust property (except the sacred fire temple and the area surrounding the fire temple). It would however obligate the trustees to maintain the fire temple and the scared fire therein for ever. Latter portion of the covenant requiring maintenance of house and building on the said ground would not mean that the house and building at the present site cannot be shifted or relocated or redeveloped. However, it would only mean that the place for residence of the priests who would officiate in and attend upon the fire temple is earmarked and preserved. It is well settled that the Trust documents should be interpreted UT RES MAGIS VALEAT QUAM PEREAT. Even if they admit of two constructions -- one of which gives a sensible effect to the whole, and the other makes a portion of it idle and insensible be discarded. In our view, it is not possible to hold that the intention of the trust was to allow the said house and building (other than the fire place) to remain in the state of disrepair. On the other hand, we would take the view that the trust deed provides to maintain houses and building in the complex for the residence of the priests in connection with the said fire temple as may from time to time be selected or permitted by the trustees. Such interpretation may carry into effect to the fullest extent the intention of the trust. In other words, the trust deed never contemplated to allow the trust property to ruin in shambles but it would be the obligation of the trustees to do all such things which would be necessary to protect the trust property. Moreover, the mere fact that the present houses and buildings (except the fire temple and land surrounding the fire temple) would be raised and re-erected or re-developed in the complex would not make any difference to the object of the trust which is established to essentially preserve the scared fire and fire temple for ever; which is not being disturbed in any manner. Relocation of the existing building (except the fire temple and land surrounding the fire temple) or re-arrangement of the site does not amount to breach of intention of the trust. What is to be ensured is to provide residence to the priests connected with the fire-temple. This is assured even before this Court. The Counsel for the builders has assured that one additional flat admeasuring 3500 sq. ft. shall be reserved and allocated as priest's quarter. Besides this affidavit filed by the builder before this Court clearly states that all existing occupants in the building have accepted alternate offer to whom accommodation will be provided free of cost in the newly constructed building and none of them will have any grievance in that behalf. In view of this arrangement we see no reason as to how the offer can be said to be unfair in any manner.

27. The learned counsel for the objectors no doubt relied upon a letter sent by one of the tenants Shri R.R. Patel, making some grievance however, that tenant is not before this Court. On the other hand, the pleadings filed before the Charity Commissioner as well as before this Court, which have gone uncontroverted, would indicate that all the tenants have accepted the alternate offer in the newly constructed building and they have no grievance whatsoever. In this view of the matter we are not inclined to take note of minor grievances made by the objectors which in any case have no consequence on the legal position regarding the justness and appropriateness of the decision taken by the Charity Commissioner for sanctioning the proposed transaction. The offer now made before this Court is obviously impertinent and has been made only with a view to protract the proceedings so as to frustrate the builder and to make him withdraw from the present transaction. We, therefore, see no reason to exercise our writ jurisdiction. In the circumstances, the grievances made on behalf of the petitioners as well as intervenor do not impress us, for they are devoid of merits.

28. For the aforesaid reasons this writ petition as well as Chamber Summons are disposed of. The order passed by the Charity Commissioner authorising the trustees under Section 36(l)(c) to alienate the subject immovable property of the trust and also granting sanction in respect of the proposed transaction in exercise of powers under Section 36(l)(b) is confirmed. However, subject to the assurance and undertaking given by the trustees and builders referred to above.

Parties to act on the copy of this order duly authenticated by Associate of the Court.

29. After the order was pronounced, the learned counsel for the petitioners prayed for stay. The statement that no new construction shall be carried out made by the respondent No. 6 has come to an end on 15th December, 2001. We make it clear that if any construction is carried out within six weeks from today, the same shall be at the risk and consequences of the Respondent No. 6.

Certified copy expedited.