1 wp6021 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6021 OF 2010 Panchayati Akhada Shri Naranjani Goswami Naga Sanyasi, Tribakeshwar, Dist.Nashik ...Petitioner vs. Joint Charity Commissioner, Nasik ...Respondent Mr.Venkatesh Shastry for the petitioner Mr.R.M.Patne, A.G.P for the respondent no.1 CORAM:A.S.OKA,J. DATE :DECEMBER 23,2010 P.C.: 1 Heard the learned counsel for the petitioner and the learned A.G.P for the respondent no.1. There is already an order passed directing that the petition will be decided finally at the stage of admission. 2 The petitioner trust made an application under section 36(1) (a) of the Bombay Public Trusts Act, 1950(hereinafter referred to as the said Act) seeking permission for sale of the trust property bearing Gat no. 191-E admeasuring having total area of 12 hectares and 56 Ares at village Amboli, Taluka Trimbakeshwar, District Nashik. By the impugned order the learned Joint Charity Commissioner has rejected the application. 3 The application has been rejected on the following main grounds: a) The application is not preferred by 2 wp6021 the trustees of the petitioner trust, but the same is filed by the constituted attorney of the trustees and the trustees are necessary parties to the application as the trust property vests in the trustees. b) The details and particulars as required by Rule 24 of the Rules framed under the said Act have not been furnished. c) The property sought to be sold was received by the trust under a gift deed. However, documentary evidence is not filed on record to show that the gift was unconditional. d)The petitioner has not substantiated the compelling necessity for the proposed alienation. 4 The learned counsel for the petitioner submitted that though in the application made under section 36 (1) (a) there is a statement that the property has been received by the trust by a gift, the said statement is a factually incorrect statement and the petitioner will be in a position to satisfy the learned Joint Charity Commissioner about the same. The learned counsel submitted that other grounds on which the application has been rejected are completely erroneous. 5 I have considered the submissions. It is true that the application is not filed by the trustees of the petitioner trust. The Joint Charity Commissioner could 3 wp6021 have always called upon the petitioner to file an affidavit of all the trustees in support of the application. The fact that the application was signed by the constituted attorney of the trustees is by itself no ground to reject the application. 6 The learned Joint Charity Commissioner has observed that the order dated 23rd October 2009 has not been complied with. By the said order, the learned Joint Charity Commissioner had directed the Petitioner to file a single application under section 36(1)(a) read with Rule 24. The learned Joint Charity Commissioner has observed that the particulars which are required to be furnished as per rule 24 have been filed separately. According to the learned Joint Charity Commissioner, requirement which is to be complied with was that the particulars as per Rule 24 of the Rules ought to have been incorporated in the main application under section 36(1)(a). The said objection is hyper-technical objection. The learned Joint Charity Commissioner ought to have been examined whether all particulars as required by Rule 24 were filed on record. If all the particulars are really filed on record, the same could have been treated as substantial compliance. 7 As far as observation regarding gift deed is concerned, the learned counsel for the petitioner submitted that the statement made by the petitioner that the property sought to be sold has been gifted to the petitioner is an erroneous statement and the petitioner will be in position to substantiate before the Joint Charity Commissioner that the property is not received by the trust by way of a gift. An opportunity deserves to be granted to the Petitioner to establish that the property in question is not acquired by way a gift. As far as the 4 wp6021 finding recorded in paragraph 13 is concerned, it must be stated here that in the application made by the petitioner it is stated that the petitioner-trust is holding agricultural land and therefore, tractor and implements of agriculture were required to be purchased. There is a resolution passed by the trustees on 15th October 2008 stating that the house property of trust was required to be repaired. It was resolved that even the well on the trust property will have to be repaired. The estimate of expenditure is Rs.4,00,000/- and estimate for purchase of tractor and implements of agriculture is about Rs.9,00,000/-. It is pointed out that out of the larger area of 12 hectares held by the petitioner, only an area of 2 hectares and 56 ares is proposed to be sold on which there is an encumbrance of tenants. Considering the averments made in the application and documents produced on record, the finding in paragraph 13 of the impugned order that there is no necessity of alienation is erroneous and the same deserves to be set aside. The necessity of alienation has been established. 8 In the circumstances, impugned order will have to be set aside and the matter will have to be remitted to the learned Joint Charity Commissioner. 9 Hence, I pass the following order : i) Impugned order dated 11th May 2010 is quashed and set aside and the application no.18 of 2009 is restored to the file of the learned Joint Charity Commissioner. ii)It will be open for the petitioner to file an affidavit of the trustees in support of the application, additional affidavits and additional documents. 5 wp6021 iii) After allowing the petitioner to file the affidavits and documents, the application shall be decided afresh in the light of the observations made in this order. iv)The application shall be decided as expeditiously as possible and preferably within a period of six months from today. v) Petition is disposed of on above terms. JUDGE