Case: Charity Commissioner, Maharashtra State Vs. S.L.C.Foundation Trust

to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the trust. The provisions of Ss. 36 and 50 of the Act will have to be understood and interpreted harmoniously in such a way as to see that none is rendered redundant and both become operative. Maxwell on the Interpretation of Statutes, Twelfth Edition, in Chap. 9 at page 187 deals with construction to avoid collision with other provisions. It is stated :-"if two sections of the same statute "are repugnant, the known rule is that the last must prevail. " But, on the general principal that an author must be supposed not to have intended to contradict himself, the court will endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule, leges posteriores prioress 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 S. 36 has the exclusive jurisdiction to deal with the matters provided therein. Cl. (iii) or Cls. (i) and (q) of S. 50 will not give jurisdiction to the Civil Court to sanction sale, exchange or gift of any immovable property or lease for a period exceeding ten years in the case of agricultural land or for a. period exceeding three years in the case of non-agricultural land or a building belonging to the public trust. The said jurisdiction exclusively vests with the Charity Commissioner. So far as sub-clause (i) of S. 50 is concerned, no doubt the same refers to a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary. However, in our opinion, read in the context of other provisions of the act in general and in the context of the provisions of S. 36 of the Act in particular, it must be held that the provisions of sub-cl. (i) of S. 50 gives jurisdiction to the Civil Court only to authorise the trustees to alienate the trust property when either the instrument of trust prohibits the same and/or does not authorise the trustees. Only in such cases the Civil Court can give directions authorising the trustees to alienate the trust property on such terms and conditions as the Court may deem necessary. However, after such authorisation, if the alienation is of the nature mentioned in S. 36 of the Act, for such each specific or particular transaction the sanction of the Charity Commissioner will be necessary. In this context, it cannot be forgotten that S. 36 is a special provision whereas S. 50 is general in nature. Hence, so far as specific transactions are concerned, the special provision must prevail over the general provisions. It is well settled principle of interpretation that what is prohibited directly cannot be permitted to be achieved indirectly. ( 19 ) IN the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50 (iii) or sub-clause (i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh. J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S. 36 of the Act. ( 20 ) MR. Desai submitted that the trustees had shown their bona fides by revealing all the facts to the Asstt. Charity Commissioner under S. 51 of the Act to file the present suit. Mr. Desai further submitted that in view of the fact that in response to the advertisement issued during the pendency of this appeal, not a single person came forward to give better terms than the proposed development agreement with the said Shatrunjaya Darshan Construction Co. Pvt. Ltd. , goes to show beyond doubt that the said development agreement and the terms thereof are the best. On the other hand, it is contended by Mr. Kadam that the transaction was not for the benefit of the trust but is for the benefit of the trustees and their relatives. Further, there was no necessity for disposing of the trust property. We do not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the matter. ( 21 ) WE are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charity Commissioner under the provisions of S. 36 of the Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]( 8 ) WITH the assistance of the learned counsel on both the sides, we have gone through the pleadings and various exhibits produced by the respective parties. We have also gone through the judgment of the learned Judge in the light of the rival contentions and on consideration of the entire material, we are of the opinion that the present appeal by the Charity Commissioner has to be allowed9 ) NOW, so far as the suit related to the relief of amendment of the trust deed, undoubtedly, theis within the jurisdiction of the Civil Court. In the lower Court, the Advocate on behalf of thehad conceded that the clause of the amendment empowering the trustees to transact the business will have to be deleted. Otherwise, the amendments have been sought with a view to enhancing the objects and purpose of trust to suit the modern requirement. The learned Judge of the lower Court has, therefore, observed that there is no reason as to why the said amendment should not be allowed save and except the fact that the agreement of joint development which the respondents have sought to include as part of the amendment is not to be included in the amendment but will be independent of the trust deed and cannot and will not form part of the trust deed. The Advocate for the respondents at the time of arguments before the lower Court tendered Schedule I which was marked as Exh. A by the learned Judge and the learned Judge granted amendment to that extent only for the purpose of implementing the objects of the trust. Thus, so far as this relief is concerned, no fault could be found with the order of the learned Judge permitting the amendment of the trust deed to the limited extent of adding certain more objects to the list of objects in the truston proper reading and understanding of these two documents, it is impossible to separate them. The development agreement is meaningless without the sale of flats, shops and premises and sale of shops, flats and premises is meaningless without the lease for 99 years of the trust property or the portion thereof. In fact, Cl. 17 of the development agreement pointedly makes reference to the trust being required to execute lease or lease deeds for 99 years. Thus, the development agreement and the proposed lease deeds are integral part of one transaction and either is incapable of implementation without the other. Thus, reading those two documents in their proper perspective, in substance they are one transaction contemplating lease of the trust property for 99 years and would squarely fall within the provisions of S. 36 (1) (b) of the Act. It is also to be noticed that in para 22 of the plaint, the plaintiffs (respondents herein) have averred that in the facts and circumstances mentioned above, the trust is entitled to directions under S. 50 (i) of the Act for development and consequential alienation of the property by way of lease in terms of the draft agreement attached at Exh., the said rule expects certain information to be provided to the Charity Commissioner and also empowers to Charity Commissioner to make such inquiry as he deems necessary. It also empowers the Charity Commissioner to impose such conditions or give such direction as he may deem fit. It is an admitted position that as a matter of practice, the Charity Commissioner invites offers or tenders and upon the scrutiny, sanctions such alienation which will result into the maximum benefit to theis not disputed that the suit, if at all, can fall under(iii) of S. 50 and reliefs can fall, if at all, under Cls. (i) and (q) of the saida proper reading of the judgment, it is clear to us that the said authority lays down that the sale prohibited without sanction of the Charity Commissioner does not include Court sale in execution of a decree. It is also pertinent to note that after the said judgment, by Maharashtra Act 20 of 1971, Chapterdealing with powers and duties of, and restrictions on, trustees came to be inserted. S. 36 was also amended and Ss. 36a and 36b came to be18 ) ON consideration of the provisions of S. 36 and S. 50 of the Act, we are of the opinion that S. 36 of the Act as applicable to the State 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 S. 36 of the Act, the same is in fact final and conclusive. Therefore, by virtue of the provisions of S. 80 of the Act, once the matter falls properly within the provisions of S. 36, the Civil Court will have no jurisdiction to deal and decide theIt is also not possible to accept the submission of Mr. Desai for thethat power to sanction alienation in the matter of sale, exchange or gift of any immovable property or grant lease is vested in both the authorities, viz. , the Charity Commissioner under S. 36 of the Act and the Civil Court under S. 50, Cl. (iii) and(i) and (q ). In the very nature of things, the Charity Commissioner is in a better position to scrutinise specific transactions, consider all the terms and conditions, consider the interest, benefit and protection of the trust and he is also in a better position to invite tenders or offers, scrutinise the same and put necessary conditions as he may think fit to impose. He is an officer who is well conversant with problems of public trust. On the other hand, it is difficult to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the19 ) IN the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50 (iii) or(i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh. J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S. 36 of thedo not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the21 ) WE are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charity Commissioner under the provisions of S. 36 of the Act.