IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5421 OF 2006 WRIT PETITION NO. 5421 OF 2006 WRIT PETITION NO. 5421 OF 2006 Mr.Chandrasen Ramji Karia & Ors. ...Petitioners V/s. Shree Cutchi Lohana Niwas Griha Trust & Ors. ...Respondents Mr.K.H. Holambe Patil for Petitioners. Mr.F.E. Devitre, Sr.Advocate with Mr.A.N. Engineer i/b. Mr.Ashok Purohit for Respondent Nos.1 to 8. Mr.Jai Chinnai, Sr.Advocate i/b. Smt.E.A. Gnsalves for Respondent No.16. CORAM : R.M.S. KHANDEPARKAR & CORAM : R.M.S. KHANDEPARKAR & CORAM : R.M.S. KHANDEPARKAR & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : SEPTEMBER 12, 2006 DATED : SEPTEMBER 12, 2006 DATED : SEPTEMBER 12, 2006 P.C. :- P.C. :- P.C. :- 1. Heard. 2. The petitioners challenge order dated 30th June, 2006 in Application No.5 of 2006 passed by the Joint Charity Commissioner. Challenge to the impugned order is on the ground that the authority misconstrued the provisions of law comprised under Section 36(2) of the Bombay Public Trust Act, 1950 ("the Act" for short). It is also sought to be contended that the decision of this Court in the case of Mahadeo Deosthan, Wadali & Ors. Mahadeo Deosthan, Wadali & Ors. Mahadeo Deosthan, Wadali & Ors. V/s. Joint Charity Commissioner, Nagpur & Ors. V/s. Joint Charity Commissioner, Nagpur & Ors. V/s. Joint Charity Commissioner, Nagpur & Ors. - 2 - reported in 1989 Maharashtra Law Journal 269 reported in 1989 Maharashtra Law Journal 269 reported in 1989 Maharashtra Law Journal 269 is contrary to the provisions of law comprised under Section 36(2) of the said Act inasmuch as that the Court did not consider the later part of the said provision which empowers the authority to take action for recovery of the possession of the property pursuant to the revocation of the decision for sanction for transfer of the property granted by the authority. It was also sought to be contended that the property worth Rs.4 to 5 crores has been sold for sum of Rs.82 lakhs. 3. Undisputedly, the proceedings before the Charity Commissioner in Application No.5 of 2006 arise pursuant to the liberty granted to the petitioners to move before the said authority under Section 36(2) of the said Act under Order dated 28th April, 2006 passed in Writ Petition No.2699 of 2006. The relevant portion of the said order reads thus :- "Apart from that the challenge is based on three grounds. Firstly, the sanction is alleged to be bad because the lease of the property deemed to be sold is over in the year 2002 and therefore after that year the trust cannot sell the - 3 - property. Secondly it is contended that the trust has no right to transfer because the lease have already come to an end. Thirdly, it is contended that the property of 4/5 crores is being sold for Rs.82 lacs. If first two submissions are factually correct then the purchaser, by reason of transfer effected on the basis of sanction under section 36(1), will be getting expired lease. In such circumstances, we find no reason to interfere with the order passed by the Charity Commissioner under section 36(1) of the BPT Act. However the petitioner shall be at liberty to make an application under Section 36(2) of the BPT Act if so advised. Petition accordingly disposed of." 4. Plain reading of the said para discloses that the petitioners were directed to approach the concerned authority only in relation to the grievance under Section 36(2) of the said Act while rejecting their contention in relation to all other issues which were sought to be raised by the petitioners. Undisputedly, such contention included the contention regarding sale of the alleged property at a lower price. Once the said contention was rejected, the said issue stands concluded and it is not open for the petitioners to reagitate the said issue again in this writ petition. The only issue which was left to be dealt with by the authority related to the powers of the authority under Section 36(2) in - 4 - relation to the revocation of the sanction granted earlier for transfer of the property. The concerned authority by relying upon the decision of this Court in Mahadeo’s case (Supra) Mahadeo’s case (Supra) Mahadeo’s case (Supra) has held that once the sanction has been given effect by the execution of the sale deed, the question of authority exercising powers for revocation does not arise. The said decision has been correctly taken as the provision of law in that regard is very clear under Section 36(2) of the Act. The contention of the petitioners that later portion of the said provision empowers the authority to take possession of the property after revocation of the decision regarding sanction, would reveal that decision of this Court in Mahadeo’s case (Supra) Mahadeo’s case (Supra) Mahadeo’s case (Supra) was contrary to the said provision is totally devoid of substance. If the sanction itself has been given effect to, the question of revocation of sanction could not arise as on the date when the sanction has already given effect to and already deed is executed, property ceases to be that of the trust and the question of exercising any power in relation to the property, which does not belong to the trust, by such an authority does not arise and for the - 5 - same reason, the power under Section 36(2) of the Act would not be available to be exercised by the authority. The authority having accordingly decided in accordance with law, no fault can be found with the order nor is there any irregularity in exercise of the jurisdiction. The jurisdiction having been exercised in accordance with law, there is no case for interference in the impugned order in writ jurisdiction. The petition, therefore, fails and is dismissed. (R.M.S. KHANDEPARKAR, J.) (R.M.S. KHANDEPARKAR, J.) (R.M.S. KHANDEPARKAR, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)