1 wp-6984.10 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6984 OF 2010 Shri Bhabhutmal Hirachandji Shah. .. Petitioner Vs The State of Maharashtra & Others. .. Respondents -- Shri Saurabh M. Railkar for the Petitioner. Shri R.M. Patne, AGP for Respondent Nos.1 to 3. -- CORAM : A.S.OKA, J. DATE : 29TH OCTOBER, 2010 P.C: . On 13th September, 2010, notice for final disposal of the writ petition was issued. This Writ Petition was finally heard on 13th October, 2010 after perusal of the record. The Writ Petition takes an exception to the order passed by the learned Joint Charity Commissioner, Kolhapur, on an application under Section 36(1)(a) of the Bombay Public Trusts Act, 1950 ( hereinafter referred to as the said Act ). By the impugned order, the application made by the Petitioner seeking permission to alienate the trust property has been rejected. 2. While rejecting the application, the learned Joint Charity Commissioner held that there was no compelling necessity to alienate the trust property. Another reason given by the learned Joint Charity 2 wp-6984.10 Commissioner is that the trustees had published a public notice in Ratnagiri Times inviting offers/tenders which is not shown to be a news paper having wide circulation. The learned Joint Charity Commissioner observed that sufficient time was not given under the notice for submitting tenders. The third finding recorded by the learned Joint Charity Commissioner is that the prayer for sale of the property at the price of Rs.5,51,000/- to the proposed purchaser cannot be considered as adequate and proper in as much as the trust property is situated in a prime locality. He observed that the price was meager. The learned Joint Charity Commissioner observed that the property may fetch higher price. Lastly, it is held that the name of one Parasnath Gandhi appears in the Public Trust Register as a Trustee and there is no explanation as to why the proceedings of the meeting dated 13th April, 2009 in which a decision was taken to sell the trust property do not bear the signatures of the said Parasnath Gandhi. The learned Joint Charity Commissioner has made the following observations in Paragraph 9 of the impugned order:- “9. .....The applicants have produced extract of P.T.R. as I have pointed out earlier at Exhibit 2. This extract of P.T.R. shows that the names Bharatkumar Shah, Sohan R. Shah and Rameshkumar B. Shah came to be recorded as per the decision dated 17th May 2008 in change report No.104/2008. The entry made in the said P.T.R. Is not signed by the concerned Assistant Charity Commissioner. Similarly, this P.T.R. shows that the name of Kamlesh R. Shah is entered as per decision of Assistant Charity Commissioner in change report No.174/2008 dated 17th May 2008. This entry is also not signed by the concerned Assistant Charity Commissioner. Without the signature of the concerned Assistant Charity Commissioner these 3 wp-6984.10 entries cannot be considered as authenticated. The applicant has not produced certified copies of change report No.104/2008 and 174/2008 to justify his contentions that names of so called trustees namely Bharat B. Shah, Ramesh Shah, Sohan Shah and Kamlesh Shah were recorded as per the decisions of Assistant Charity Commissioner in change report No. 104/2008 and 174/2008.” 3. The learned counsel appearing for the Petitioner submitted that the observations made by the learned Joint Charity Commissioner are factually erroneous. He submitted that the detailed reasons have been recorded in the resolution passed by the Trustees recording as to why the Trustees came to the conclusion that the trust property is required to be sold. He invited attention of the Court to the relevant clauses in the Trust Deed which was placed on record of the learned Joint Charity Commissioner. He has invited attention of the Court to various other documents placed on record including the affidavits and the report of the Inspector. He submitted that the learned Joint Charity Commissioner has adopted hyper-technical and erroneous approach while dealing with the application. The learned AGP submitted that after perusal of the record, appropriate order may be passed. 4. I have perused the record of the application made by the Petitioner. It is pointed out that the building of the Trust is very old and does not fetch any income. It is pointed out that the rent received from the tenants is ridiculously low and the income received from the property was 4 wp-6984.10 Rs.2,358/- per year. It is stated that from this meager income, the building is required to be maintained. The resolutions passed by the Board of Directors have been placed on record. The Audit Report is also placed on record. Perusal of the Resolution passed by the Trustees and the averments made in the application show that the income received from the Trust property is almost negligible. In fact, the report of the Inspector also records the present condition of the building apart from the noting that the property is in the prime locality. Clause 13 of the Trust Deed authorizes the Board of Trustees to sell or transfer the Trust property. Considering the documents placed on record, there was no reason to hold that there was no necessity of selling the Trust property. 5. The learned Joint Charity Commissioner has made a reference to the extract of the public trust register which records the names of the Trustees. The relevant part of the finding of the learned Joint Charity Commissioner has already reproduced hereinabove. In fact, the learned Joint Charity Commissioner has recorded that the extract was produced at Exhibit-2. The learned Joint Charity Commissioner has expressed some doubt as regards the correctness of the extract on the ground that the entry does not bear signature of the Assistant Charity Commissioner. A certified copy of the extract was produced on record. If there was any doubt about the genuineness of the extract, the learned Joint Charity Commissioner could have always called for the concerned record and verified the correctness of the extract. Non-production of the certified copy of the order 5 wp-6984.10 passed on the change report is again no ground to come to the conclusion that the persons claiming as the Trustees of the Trust are not the trustees. It was always open for the learned Joint Charity Commissioner to call for the record and then to clear the doubt, if any, in this behalf. Even if assuming that one of the Trustees has not signed the resolution, the same does not become invalid or illegal. 6. The entire approach of the learned Joint Charity Commissioner is erroneous. There is a report dated 26th May 2010 submitted by the District Information Officer, Ratnagiri placed on record of this Petition. It records that Daily Ratnagiri Times was a government approved news paper of Class “A”. There was no reason to come to the conclusion that there was no necessity of the sale of the Trust property. The learned Joint Charity Commissioner observed that the transaction proposed by the Trust does not appear to be fair. If the learned Joint Charity Commissioner was not satisfied with the price offered, he could have issued notice to all the bidders giving them an opportunity to submit fresh bids offering enhancement of the amount. If he was not satisfied with the revised offers, he could have always directed the Trustees to publish a fresh notice inviting fresh offers. The learned Joint Charity Commissioner can always ensure that the Trust property gets the best deal in the interests of the Trust and its beneficiaries. 6 wp-6984.10 7. Therefore, the only option which is open for this Court to send back the matter to the learned Joint Charity Commissioner. It must be noted here that the necessity of the alienation of the Trust property has been established and that point will no longer remain open for adjudication. The learned Joint Charity Commissioner will issue notice to all the parties who had offered bids on the basis of the public notice issued by the Trustees. The learned Joint Charity Commissioner will send notices to all the bidders calling upon them to submit fresh bids in a sealed envelope. The learned Joint Charity Commissioner will have to also issue notices to all the persons who have raised the objections to the Application by causing appearance in the proceedings. After fresh bids are received, if the learned Joint Charity Commissioner is satisfied that any of the bids deserves acceptance being the best bid available in the interests of the Trust, the learned Joint Charity Commissioner can pass an order to that effect. If he is not satisfied with the price offered, it will be open for the learned Joint Charity Commissioner to take such further steps as are necessary including issuing a direction to publish a fresh public notice inviting bids. 8. The Petitioner has placed on record of the learned Joint Charity Commissioner a certified copy of the extract of the Public Trust Register showing the names of the Trustees. The certified copy has been issued by the Superintendent of the Public Registration Trust Office at Ratnagiri. If the learned Joint Charity Commissioner has any doubt about 7 wp-6984.10 the genuineness of the certified copy, then it is for him to call for the record for necessary verification. He cannot insist on the Trustees producing a certified copy of the order passed on the change report to which a reference has been made in the Public Trust Register. It is also clarified that failure of one of the Trustees to sign resolution is by itself no ground for discarding the resolution passed by the Board of Trustees. 9. Hence, the Petition partly succeeds and I pass the following order :- (a) The impugned order is quashed and set aside. (b) Misc. Application No. 31 of 2008 is remanded to the learned Joint Charity Commissioner, Kolhapur Region, Kolhapur, for a fresh decision. ( c) The learned Joint Charity Commissioner will issue notice to all the persons who had offered bids on the basis of the public notice published by the Trustees in Ratnagiri Times and shall call upon the bidders to submit their fresh bids in sealed envelopes. (d) After the bids are received, the learned Joint Charity Commissioner will proceed further in the light of the 8 wp-6984.10 observations made in this judgment and order. (e) It is made clear that before passing final order, the learned Joint Charity Commissioner will issue notices to all the concerned parties who had caused appearance in the proceedings raising various objections and will grant an opportunity of being heard to the said parties. (f) The application made by the Petitioner shall be decided afresh in the light of what is observed this judgment and order. (g) The learned counsel appearing for the Petitioner pointed out that at present the office of the learned Joint Charity Commissioner is vacant and the charge is given to the learned Joint Charity Commissioner at Pune. If that be so, the Officer holding charge will have to act accordingly. (h) An endeavour shall be made to conclude the inquiry and pass an order expeditiously as possible and preferably before the end of April, 2011. 9 wp-6984.10 (i) Record and proceedings be sent back forthwith. (j) The concerned learned Joint Charity Commissioner to act upon an authenticated copy of this order. ( A.S. Oka, J )