Delhi High Court
The Vishwa Nath & Santosh Bakshi ... vs . on 4 July, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th July, 2019
+ CS(OS) 119/2019
THE VISHWA NATH & SANTOSH BAKSHI CHARITABLE
EDUCATIONAL TRUST (REGD.) & ANR. ..... Plaintiffs
Through: Mr. Amitabh Chaturvedi & Mr.
Sangeeth Mohan, Advs.
Versus
..... Defendant
Through: Mr. Gautam Narayan & Ms.
Dacchita Shahi & Ms. Shivani
Vij, Advs. for GNCTD.
Mr. Akshay Makhija, Adv.,
Amicus Curiae.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The Vishwa Nath and Santosh Bakshi Charitable Educational
Trust (Regd.) and its Trustee Sharad Malik have instituted this
proceeding (as a suit) under Section 7(1) of the Charitable & Religious
Trusts Act, 1920 (CRT Act) read with principles of Section 34 of the
Indian Trusts Act, 1882, pleading that (i) plot no.6/22, Shanti Niketan,
New Delhi ad-measuring 393 sq. yds. was allotted by Delhi
Development Authority (DDA) in equal shares to Vishwa Nath Bakshi
and his wife Santosh Bakshi who were members of Government
Servants Co-operative House Building Society which had developed
the colony of Shanti Niketan and a perpetual sub lease dated 26 th
October, 1968 was executed by DDA in their favour; the said Vishwa
Nath Bakshi and Santosh Bakshi constructed a double storeyed house
on the said plot of land; no children were born to Vishwa Nath Bakshi
CS(OS) No.119/2019 Page 1 of 23
and Santosh Bakshi; (ii) Vishwa Nath Bakshi died intestate on 29th
May, 1996 and his 50% undivided share in the aforesaid property was
mutated in the name of Santosh Bakshi, being his sole heir; (iii)
Santosh Bakshi executed a registered Will dated 18th November, 2010
bequeathing the property for charitable educational purposes; Santosh
Bakshi also executed a registered Trust Deed dated 3 rd January, 2012
setting up the plaintiff no.1 Vishwa Nath and Santosh Bakshi
Charitable Educational Trust (Regd.) for charitable educational
purposes, with plaintiff no.2 Sharad Malik, being the son of her
brother, and willed that the property aforesaid should devolve upon
the said Trust; (iv) plaintiff no.2 Sharad Malik is presently serving as
Professor and Chairman of the Department of Electrical Engineering
at Princeton University, USA; (v) after the death of Santosh Bakshi on
22nd December, 2012, probate was granted of her Will dated 18 th
November, 2010; (vi) the property aforesaid has also been mutated in
the records of DDA in the name of plaintiff no.1 Vishwa Nath and
Santosh Bakshi Charitable Educational Trust (Regd.), which has also
got the leasehold rights in the land underneath the property converted
into freehold and a Conveyance Deed of freehold rights in the land
underneath the property has been executed in favour of plaintiff no.1
Vishwa Nath and Santosh Bakshi Charitable Educational Trust
(Regd.) which is the sole and absolute owner in possession of the
property; (vii) registered Will dated 18th November, 2010 of Santosh
Bakshi vests power in plaintiff no. 2 Sharad Malik, as executor of the
Will and Trustee of plaintiff no.1 Vishwa Nath and Santosh Bakshi
Charitable Educational Trust (Regd.), to sell the property, to hold the
CS(OS) No.119/2019 Page 2 of 23
proceeds of sale and to, in consultation with Baldev Gogia, Ajay
Yadav and Sudhir Shah, use the proceeds from the sale of the property
for the spread of knowledge in education, by disbursing the received
monies to appropriate charities / educational institutions / individual/s,
as he may deem fit and proper; (viii) in order to effect sale of the
property at market value, valuation report from two independent
government approved valuers, determining the market value of the
property at Rs.24,86,87,000/- and Rs.24,50,00,000/- have been
obtained; (ix) the property is proposed to be sold at Rs.24,68,43,500/-,
being the average of the market value of Rs.24,86,87,000/- and
Rs.24,50,00,000/-; (x) feedback from the market is also suggestive of
the value of the property ranging between Rs.23 crores to Rs.24.5
crores; (xi) however the circle rate of the property is
Rs.25,95,89,786/-; (xii) though permission of the Court for sale is not
required but in view of the fact that a large segment of public and
community has beneficial interest in the sale proceeds of the property,
which are to be applied towards spread of knowledge and education, it
is deemed appropriate to seek the opinion, advice or direction of this
Court in the question relating to sale of the property and which is a
question affecting the management and administration of the trust
property, within the meaning of Section 7(1) of the CRT Act read with
principles of Section 34 of the Indian Trusts Act, 1882; and, (xiii)
though consent / no objection of Harsh Gogia, Baldev Gogia, Madhuri
Yadav, Ajay Yadav, Payal Malik and Sudhir Shah is not required but
they have affirmed affidavits consenting to the proposed sale and
which affidavits are filed before this Court.
CS(OS) No.119/2019 Page 3 of 23
Appropriate order / decree granting permission to sell the
property on „as is where is basis‟ at the base sale price of Rs.24.69
crores and opinion / advice as to the other modalities of sale of the
property, are sought.
2. The matter came up first before this Court on 27th February,
2019 when inter alia the following order was passed:
"4. The proceeding, though initially titled as a petition, has been
given the number as of a suit, perhaps owing to the Roster drawn up of
this Court not prescribing any specific roster relating to such
proceedings.
5. The counsel for the petitioners draws attention to the dicta of
this Court in Dr. Man Singh AIR 1974 Del 228 and appeal to the
Division Bench whereagainst was subject matter of Dr. Man Singh
AIR 1978 Del 274. However, a reading of the said judgments also does
not clarify whether a proceeding under Section 7 of the Charitable and
Religious Trusts Act is to be treated as a suit or as a petition.
7. The Registry has listed the proceeding subject to objection as to
maintainability and court fees.
8. The said objection is kept open.
9. Else, I am of the opinion that in any proceeding of this nature,
even though ex parte, notice is required to be issued to the State.
Section 5 of the Charitable and Religious Trusts Act in relation to a
petition under Section 3 thereof empowers the Court to issue notice of
the petition to such person/s as may be deemed appropriate. It is felt
that considering the nature of the direction sought with respect to a
Charitable Trust situated at Delhi and having immovable property at
CS(OS) No.119/2019 Page 4 of 23
Delhi, the Standing Counsel (Civil) of the Government of NCT of Delhi
(GNCTD) should be called.
10. Issue notice to the Standing Counsel (Civil) of GNCTD by all
modes including dasti, returnable on 15th March, 2019.
11. It is also deemed appropriate to appoint an Amicus to assist the
Court.
12. Mr. Akshay Makhija, Advocate is appointed as the Amicus to
assist the Court.
14. The Amicus Curiae and the Standing Counsel (Civil) of
GNCTD to, on the next date of hearing, come prepared to address,
including on the following aspects: (i) maintainability of the petition;
(ii) jurisdiction in which the petition is to be entertained; (iii) the
valuation of such a proceeding and court fees thereon; (iv) whether
modality of sale of an immovable property falls within the meaning of
the words „opinion‟, „advice‟ or „direction‟ in Section 7 aforesaid; (v) if
the above question is answered in affirmative, whether the sale is to be
under supervision of the Court and / or through the Court Auctioneer or
can be in other modes expedient; and, (v) whether citation in the
newspapers of the petition is to be issued."
3. Mr. Amitabh Chaturvedi counsel for the plaintiffs, Mr. Gautam
Narayan counsel for Government of NCT of Delhi (GNCTD) and Mr.
Akshay Makhija, Amicus Curiae have been heard.
4. The CRT Act has been enacted to provide more effectual
control over the administration of Charitable and Religious Trusts.
Section 3 thereof entitles any person having an interest in any trust
created or existing for a public purpose of a charitable or religious
CS(OS) No.119/2019 Page 5 of 23
nature, to apply by petition to the Court, within the local limits of
whose jurisdiction any substantial part of the subject matter of the
trust is situated, to obtain an order directing the trustee to furnish
particulars as to the nature and objects of the trust and / or as to the
value, condition, management and application of the subject matter of
the trust and of the income belonging thereto and directing that the
accounts of the trust be examined and audited. Section 4 thereof
provides for the contents and verification, Section 5 provides for the
procedure and Section 6 provides for the consequences of failure of
the trustee to comply with the order under Section 5, in relation to a
petition under Section 3. Thereafter Section 7, invoking Sub-Section
(1) whereof this petition has been filed, is as under:
"7. Powers of trustee to apply for directions. -- (1) Save as
hereinafter provided in this Act, any trustee of an express or
constructive trust created or existing for public purpose of a
charitable or religious nature may apply by petition to the court,
within the local limits of whose jurisdiction any substantial part
of the subject-matter of the trust is situate, for the opinion,
advise or direction of the court on any question affecting the
management or administration of the trust property, and the
court shall give its opinion, advice or direction, as the case may
be, thereon:
Provided that the court shall not be bound to give such
opinion, advice or direction on any question which it considers
to be a question not proper for summary disposal.
(2) The court on a petition under sub-section (1), may
either give its opinion, advice or direction thereon forthwith, or
fix a date for the hearing of the petition, and may direct a copy
CS(OS) No.119/2019 Page 6 of 23
thereof, together with notice of the date so fixed, to be served on
such of the persons interested in the trust, or to be published for
information in such manner, as it thinks fit.
(3) On any date fixed under sub-section (2) or any
subsequent date to which the hearing may be adjourned, the
Court, before giving any opinion, advice or direction, shall
afford a reasonable opportunity of being heard to all persons
appearing in connection with the petition.
(4) A trustee stating in good faith the facts of any matter
relating to the trust in a petition under sub-section (1), and
acting upon the opinion, advice or direction of the Court given
thereon, shall be deemed, as far as his own responsibility is
concerned, to have discharged his duty as such trustee in the
matter in respect of which the petition was made."
5. The Indian Trusts Act has been enacted to define and amend the
law relating to Private Trusts and Trustees (as distinct from public
trust as the subject Trust is stated to be) but Section 34 thereof,
principles whereof are also invoked in filing of this petition, provides
as under:
"34. Right to apply to court for opinion in management of
trust-property. - Any trustee may, without instituting a suit,
apply by petition to a principal Civil Court of original
jurisdiction for its opinion, advice or direction on any present
questions respecting the management or administration of the
trust-property other than questions of detail, difficulty or
importance, not proper in the opinion of the Court for summary
disposal.
CS(OS) No.119/2019 Page 7 of 23
A copy of such petition shall be served upon, and the
hearing thereof may be attended by, such of the persons
interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition
and acting upon the opinion, advice or direction given by the
Court shall be deemed, so far as regards his own responsibility,
to have discharged his duty as such trustee in the subject-matter
of the application.
The costs of every application under this section shall be
in the discretion of the Court to which it is made."
6. The counsel for the plaintiffs has argued, that (i) though Section
7 of the CRT Act does not lay down any guidelines for sale of trust
property but reference can be made to Section 36 of the Bombay
Public Trusts Act, 1950 read with Rule 24 of the Bombay Public
Trusts Rules, 1951, dealing with the alienation of immovable property
of public trust, and which provide for sale by previous sanction of the
Charity Commissioner appointed thereunder and which sanction may
be granted subject to such terms as the Charity Commissioner may
impose; (ii) reliance is placed on Sailesh Developers Vs. Joint
Charity Commissioner, Maharashtra 2007 SCC OnLine Bom 124
(FB) and Arunodaya Prefab Vs. M.D. Kambli 1978 SCC OnLine
Bom 91 dealing with the said provisions of the Bombay Public Trusts
Act and Rules, and also on Mahammad Hussain Dabahayatsab
Mulla Vs. The Charity Commissioner, Belgaum 1996 SCC OnLine
Kar 299; (iii) the plaintiffs have been able to obtain the best offer of
Rs.25.60 crores in the market and seek permission to sell at the said
price; (iv) the Trust can be administrated, only by sale of the Trust
CS(OS) No.119/2019 Page 8 of 23
property, as envisaged in the Will aforesaid also; (v) since the best
offer obtained for the property, of Rs.25.60 crores, is lower than the
circle rate of Rs.25.96 crores, it is deemed appropriate to seek
permission of the Court, to avoid fingers being pointed out owing to
sale below the circle rate, though the Supreme Court in Cyrus Rustom
Patel Vs. Charity Commissioner, Maharashtra 2017 SCC OnLine
SC 1273 and in Ambadevi Sanstha Vs. Joint Charity Commissioner
2018 SCC OnLine SC 1933 has held that sale of Trust property can
always be made by private negotiations; (vi) the plaintiff no.2 Sharad
Malik, as executor of the Will of Santosh Bakshi, also is entitled to
sell the property in the absence of any restriction in this regard in the
Will; and, (vii) however the plaintiff no.2 Sharad Malik is willing to
abide by such conditions as may be imposed by this Court.
7. The counsel for GNCTD has submitted, that (a) proviso to
Section 7 (1) of the CRT Act specifically states that Court is not
bound to give its opinion, advice or direction on any question which is
not proper for summary disposal; (b) Section 34 of the Indian Trusts
Act is a pari materia provision with respect to private trust; (c) the
Courts are thus empowered to render opinion or issue directions with
regard to trust property, in a petition preferred by the trustee, if
questions are capable of being summarily decided; (d) Section 92(f) of
the Code of Civil Procedure, 1908 (CPC) also provides for issuance of
direction by the Court for administration of any trusts; however the
scope of Section 92 is wider; (e) the High Court of Calcutta in Nilima
Ghosh Vs. Prakriti Bhusan Mitter 1981 SCC OnLine Cal 93 (DB)
has held that the Indian Trusts Act creates a special forum for seeking
CS(OS) No.119/2019 Page 9 of 23
opinion of the Court regarding administration and management of the
trust; (f) the High Court of Calcutta, in Sukhlal Chandanmull
Karnani Trust Vs. Shew Kumar Karnani 1973 SCC OnLine Cal 70
also held that opinion regarding appointment of trustees does not
require evidence to be led by way of a suit under Section 92 of the
CPC and rendered its opinion under Section 7 of the CRT Act; (g) this
Court in Dr. Man Singh supra held the petition under Sections 34 and
37 of the Indian Trusts Act, seeking direction to sell the immovable
property of the trust, to be maintainable under Section 7 of the CRT
Act; (h) in Re: Birla Jankalyan Trust 1970 SCC OnLine Cal 70, it
has been held that the word „directions‟ does not mean adjudication
and determination of substantive rights, but means directions to help
the executors in the difficulties in respect of practical management or
administration, where no disputed question of title or difficult question
of construction of Will or complicated questions of law are involved;
(i) the High Court of Punjab, in Budh Singh Dhahan Vs. Malkiat
Singh 2009 SCC OnLine P&H 1034, in exercise of powers under
Section 7 of the CRT Act issued a direction to the President of the
Trust to call a meeting of the General House of the Trust; (j) this
petition under Section 7 of the CRT Act is thus maintainable; (k) the
intention of Santosh Bakshi, settlor of the Trust, is reflected through
the Trust Deed and which must be interpreted to carry out such
intention; the intention clearly was to sell the property on her demise
and utilize the sale proceeds for educational purposes, for which the
trust was created; (l) a permission to sell the property of the trust falls
within the ambit of administration and management of trust property;
CS(OS) No.119/2019 Page 10 of 23
the High Court of Madras also in exercise of power under Section 7 of
the CRT Act, in Sathyanarayana Charitable Trust Vs. C.H. Mahesh
Kumar Reddy 2012 SCC OnLine Mad 3115 (DB), allowed the sale of
the trust property for the reason that the value of the property was
deteriorating and the trustee was authorized to sell the property; (m)
the High Court of Madras, in N.S. Ramaraj Vs. Rajapalayam
Poonachamiyar Madam Nanthavanam 2014 SCC OnLine Mad
7133, held that under Section 34 of the Indian Trusts Act, sale of trust
property can be directed, if necessary for implementation and
continuation of the object of the trust and if the condition of the
property was so bad that continued preservation thereof was a
challenge; (n) in accordance with Section 5(2) of the Delhi High Court
(Amendment) Act, 2015, the petition must be entertained in the High
Court of Delhi under its Ordinary Original Civil Jurisdiction; (o)
subject proceedings are to be valued as a „petition‟ and the court fees
payable is as on a „petition‟, under the Court Fees Act, 1870; and, (p)
the Court may consider a court auction for sale of the property.
8. Mr. Akshay Makhija, Amicus Curiae has contended, that (i)
Section 7 of the CRT Act is akin to Section 34 of the Indian Trusts
Act and Section 92 of the CPC; (ii) however a trustee of a public trust
is not required to mandatorily obtain an order from the Civil Court to
deal with the property of the trust; (iii) the powers of administration,
are normally set out in the trust deed and if the trust deed confers the
powers of sale, then an order of the Civil Court is not necessary; (iv)
the petition is maintainable under Section 7 of the CRT Act and can
also be registered as a suit under Section 90 read with Order XXXVI
CS(OS) No.119/2019 Page 11 of 23
of the CPC; (v) in terms of Dr. Man Singh supra, Section 7 of the
CRT Act is a more appropriate provision than Section 34 of the Indian
Trusts Act and Section 92 of the CPC, in the circumstances of this
case; (vi) the High Court of Madras, in Rajagopal Vs. Balachandran
2001 SCC OnLine Mad 656 held that Courts have a general, parens
patriae jurisdiction over trusts of charitable and religious nature and
any such application should be dealt with by the Courts, not as a
purely adversarial litigation; (vii) in Nilima Ghosh supra it was held
that a question relating to management and administration of trust
property should be referred to the Principal Civil Court of Original
jurisdiction; (viii) this Court, on its original side, is akin to a Court of
Original Principal Jurisdiction, subject to pecuniary jurisdiction; (ix)
thus the petition is entertainable by this Court; (x) the valuation of the
present proceedings for the purposes of jurisdiction would be in
accordance with the valuation of the property, for sale whereof
directions are sought but the relief claimed being akin to a declaratory
relief without any secondary relief, court fees has to be as per Clause
17(iii) of Schedule II to the Court Fees Act; (xi) in Chenchu Rami
Reddy Vs. Government of Andhra Pradesh (1986) 3 SCC 391, it has
been held that such properties should be sold by public auction and
not by private negotiation; (xii) the petition is silent about how the
sale proceeds are intended to be used; the plaintiffs should be directed
to submit a plan of action as to utilization of such sale proceeds and be
ordered to be bound thereby; and (xiii) Section 7(2) contemplates
issuance of citation in the newspaper; opportunity by citation should
CS(OS) No.119/2019 Page 12 of 23
be given to all who may be interested in putting forth their views qua
the sale, for which permission is sought.
9. I have considered the contentions of the counsel for the
plaintiffs, counsel for GNCTD and learned Amicus Curiae.
10. The first question is, whether the proceeding under Section 7(1)
of the CRT Act is a suit.
11. The empowering provision of law i.e. Section 7 of the CRT Act
empowers the trustee of a trust for a public purpose of a charitable or
religious nature to "apply by petition to the Court", making it clear
that the same does not envisage a „suit‟, as distinct from a „petition‟.
The legislature, while drafting the CPC and enacting Section 92
therein relating to public charities, expressly provided for the
proceeding therein to be by way of a „suit‟. However, while drafting
Section 7, the word „petition‟ was used. Therefrom, it appears that the
legislature, for a proceeding under Section 92 of the CPC, deemed a
proceeding by way of a suit to be an appropriate remedy but while
enacting Section 7 of the CRT Act deemed a proceeding by way of a
petition to be appropriate. It is not as if the said distinction is without
any reason. While a proceeding under Section 92 of the CPC was
envisaged to be contentious, requiring an adjudication as a suit, a
proceeding under Section 7 of the CRT Act, merely for the opinion,
advice or direction of the Court, was not envisaged to be contentious
by nature. Thus, a petition, which does not necessarily entail the
procedure as provided for adversarial claim as in a suit, was deemed to
be apposite.
CS(OS) No.119/2019 Page 13 of 23
12. The High Court of Calcutta also in Re: Birla Jankalyan
Trust supra has held that the proceedings, as under Section 7 of the
CRT Act, are to help the trustees in the difficulties in respect of
practical management or administration of the trust, where no disputed
question of title or difficult question of construction of Will or
complicated questions of law are involved. To the same effect is
Budh Singh Dhahan supra laying down that in such a proceeding, no
evidence or detailed arguments are required and summary procedure
has to be adopted. In Rameshwardas Birla Vs. Advocate General of
West Bengal MANU/WB/0381/1956, it was held that the jurisdiction
under Section 7 of the CRT Act is exercisable only for the proper
management of the Trust; when there is no dispute which normally
calls for adjudication by way of a suit, Section 7 of the CRT Act is the
more appropriate provision in law. The High Court of Bombay also, in
Naraindas Menghraj Nagpal Vs. Lalchand Menghraj Nagpal 1979
SCC OnLine Bom 32 held that a petition under Section 34 of the
Indian Trusts Act cannot be invoked to resolve controversies of fact or
law; Section 34 is intended to invoke by a summary procedure, the
advisory capacity of the Court, where there is no dispute between the
parties; Section 34 and cannot be resorted to, where the Court must
adjudicate upon disputed questions of law or fact; under Section 34,
the Court will not advise trustees on disputed questions of law or fact
but only on undisputed matters of management or administration;
reliance was placed on the earlier dicta of the same Court in Re: Lakshmibai ILR
1888 12 Bom 638. The High Court of Jammu & Kashmir also, in
Krishen Kumar Khosa Vs. Krishen Lal AIR 1979 J&K 13
CS(OS) No.119/2019 Page 14 of 23
held that a petition under Section 34 of the Trusts Act cannot be
treated as a civil suit.
13. The position is made further clear by the proviso to Section 7(1)
of the CRT Act to the effect that the Court is not even bound to give
such opinion, advice or direction as sought.
14. Thus, I hold the proceeding under Section 7 of the CRT Act, to
be by way of a petition, and to have a nomenclature of a petition and
not as a suit.
15. I find that the Roster drawn up of this Court does not make any
provision for a petition per se or for a petition under Section 7(2) of
the CRT Act. It is perhaps for the said reason that the plaintiff has had
to file this proceeding, giving the nomenclature of a suit, to be
registered by the Registry of this Court.
16. The next question to be considered is, whether a petition under
Section 7(2) of the CRT Act, lies before this Court having Ordinary
Original Civil Jurisdiction in suits, valuation whereof for the purpose
of jurisdiction is above Rs.2 crores, or the petition lies only before the
District Judge.
17. Section 7(1) only provides for a petition thereunder to be before
"the Court, within the local limits of whose jurisdiction any substantial
part of the subject matter of the trust is situate". However Section 2
of the CRT Act is as under:-
"2. Interpretation. - In this Act, unless there is
anything repugnant in the subject or context, "the court"
means the court of the district Judge or any other court
empowered in that behalf by the State Government and
CS(OS) No.119/2019 Page 15 of 23
includes the High Court in the exercise of its ordinary
original civil jurisdiction."
18. I have recently in Ritu Garg Vs. State MANU/DE/2744/2019,
in the context of a petition under Section 8(2) of the Hindu Minority
and Guardianship Act, 1956, on the basis of the language used therein
as well as in the Guardians & Wards Act, 1890, following James
Francis Dillon Vs. Holy Cross Social Service Centre 1985 SCC
OnLine Del 28 held that the Ordinary Original Civil Jurisdiction of the
High Court under Section 5(2) of the Delhi High Court Act, 1966 is
only in respect of suits and not in respect of proceedings under other
statutes required to be filed in the Principal Civil Court of Original
Jurisdiction. It was held that the High Court having original
jurisdiction is the Principal Civil Court of Original jurisdiction only
for suits and not for such proceedings under other statutes, prescribed
to lie before the Principal Civil Court of Original Jurisdiction or the
District Judge. Following the same, which would apply to present case
also, this Court would not have jurisdiction to entertain this petition.
19. However, notwithstanding the same and only for the reason that
there does not appear to be any precedent in this respect, I refrain from
rejecting this petition. It is deemed appropriate that this Court, having
heard the counsels, answers the queries raised.
20. The next question to be considered is, the court fees to be
payable on a petition under Section 7 of the CRT Act.
21. The Court Fees Act, 1870 does not make any specific provision
for a petition or for a proceeding under Section 7(2) of the CRT Act.
Article 1 in Schedule II thereof though provides for court fees payable
CS(OS) No.119/2019 Page 16 of 23
on applications or petitions to be made to different authorities or Court
but none of the entries thereunder also provides for an application or
petition under Section 7 of the CRT Act. Without the legislature
laying any fee on such a petition, it has but to be held that no fee/court
fee is payable on a petition under Section 7 of the CRT Act.
22. I will next consider the procedure to be adopted by a Court, in a
petition under Section 7(2) of the CRT Act.
23. One of the questions which arises under this head, is the persons
required to be impleaded as respondents to such a petition. The
plaintiffs herein have not impleaded anyone as respondent and have
sought ex parte opinion, advice and directions from this Court. It is
the case in the plaint that the plaintiff no.2 is the sole trustee; since in
terms of the Trust Deed sale has to be in consultation with Harsh
Gogia, Baldev Gogia, Madhuri Yadav, Ajay Yadav, Payal Malik and
Sudhir Shah, the plaintiffs along with the plaint have filed affidavits of
no objection of the said persons.
24. In my view, the State within whose jurisdiction the subject
matter of the trust is situate, is necessarily required to be impleaded as
a respondent in such a petition. This is so because the Court has a
very limited execution machinery of its own and for any investigation
to be done, requires the assistance of the State. Considering the nature
of the advice, opinion and/or direction sought in this petition also, the
Court requires the State to carry out the valuation and has no means of
its own to value the property. The State, even otherwise has a
considerable interest in a public charity of a religious or charitable
CS(OS) No.119/2019 Page 17 of 23
nature and exercises control and supervision over the citizens / persons
who are beneficiaries of the public charity and is an essential party.
25. Besides the State, depending upon the facts pertaining to each
public charity, respondents may be impleaded or directed by the Court
to be impleaded. If there are more than one trustee and the petition
has been presented by only one of the trustees, the other trustees may
be required to be impleaded as respondents. Similarly, if the Court is
of the view that for rendering the opinion, advice and/or direction
sought, it is essential to hear any person other than the applicant /
petitioner and / or that such other person may be interested in or
concerned with the management or administration of the trust, such
person should be impleaded and / or may be directed to be impleaded
as the respondent. The Court, in the matter of rendering such opinion,
advice or direction, is acting for the better management and
administration of the trust property and ought to exercise all caution,
by hearing all persons who may have an interest, for the sake of best
management and administration of the trust property.
26. As far as other procedural aspects of such a petition /
proceeding under Section 7 are concerned, the CRT Act gives
complete freedom to the Court to modulate the procedure. The Court
thus has freedom to devise the procedure as may be the requirement
considering the nature of the opinion, advice or direction sought and
no hard and fast rule can be laid down. In this judgment, the Court is
to only grant the permission sought to sell the property on „as is where
is basis‟ at a price slightly below the prevailing market value of the
property as per the circle rate; this will require determination by the
CS(OS) No.119/2019 Page 18 of 23
Court of the prevalent market price and for which purpose, the Court,
besides seeking the opinion of the concerned State authority, would
also be required to ensure that the sale is conducted in a manner best
suited to fetch the best price available and ensure that the price
received is applied in the manner provided in the Trust Deed. This
purpose can be subserved by seeking valuation of the property in
modes as may be found expedient and by directing wide publication of
the sale, to fetch the best price, and ensuring that the price received is
utilized for the purpose of the Trust.
27. That brings me to the question, whether there is any need for the
Court to render advice, opinion or direction as sought and if so, what
should that advice, opinion or direction.
28. Considering that the plaintiff no.2 is the sole trustee of the trust
and is based outside India and unable to personally conduct the sale
and has to necessarily rely on others appointed as attorneys, to ensure
that neither plaintiff no.2 nor any of his attorneys do anything which
will lead to the property of the plaintiff no.1 Trust fetching a price
lower than the prevalent market value and further considering that the
market value at which the sale is sought to be made and which is
stated to be the best price the property is fetching today is lower than
the circle rate price, a case for grant of opinion, advice and direction is
made out.
29. In the facts of the case, when the plaintiffs themselves have
along with the plaint filed valuation reports showing the valuation of
the property as per circle rates to be more than the value which the
property is fetching in the market, need to have the property valued
CS(OS) No.119/2019 Page 19 of 23
from the concerned Sub-Divisional Magistrate (SDM) in which the
said jurisdiction vests is not felt in the present case. The same would
lead to delays and wastage of property. It is stated in the plaint that
after the death of Santosh Bakshi, attempts at divesting the plaintiff
no.1 Trust of the property were made and which till now have been
thwarted. It is felt that any further delay may lead to more such
attempts and some of which may succeed.
30. At the same time, the market price pleaded by the plaintiffs
cannot be believed. This Court is required to do its own exercise for
determining the best market price the property can fetch.
31. In the facts of the present case, it is deemed appropriate to
entrust the task of overseeing the sale of the property at the best price
to Mr. Akshay Makhija, Advocate/Learned Amicus Curiae, who has
graciously consented to the same.
32. In consultation with the appearing counsels, a draft Public
Notice to be issued, inviting bids for sale, has been finalized. It is
deemed appropriate that the same be prominently published (as may
be deemed appropriate by Mr. Akshay Makhija, Advocate) with the
following text in 'Times of India' and „Navbharat Times'
newspapers and on the Notice Board of this Court and of all the
District Courts:-
"PUBLIC NOTICE OF SALE
Property No. 6/22, Shanti Niketan, New Delhi.
Whereas Shri Sharad Malik being the sole Trustee of the
Vishwa Nath and Santosh Bakshi Charitable Educational Trust
CS(OS) No.119/2019 Page 20 of 23
(Regd.) (Trust), owner of above Property, comprising of
freehold land ad-measuring 393 sq. yds. with a double storeyed
house thereon, has applied to the High Court of Delhi by
CS(OS) No.119/2019 for sale of the said property for a price of
Rs.24.69 crores as against the Circle Rate Price of
Rs.25,95,89,786/- and the High Court of Delhi has deemed it
appropriate to invite offers for sale with the intent to have the
property sold at the best price available and appointed Mr.
Akshay Makhija, Advocate to oversee the sale with the said
intent.
Offers are invited for purchase of the property on the following
terms:-
(i) Inspection of the property and photocopies of the
title documents can be made between ________ to
_________ from 11.00 am in the morning to 7 pm
in the evening.
(ii) Offers for purchase price in sealed envelope may
be submitted with Mr. Amitabh Chaturvedi,
Advocate for the Trust at ___________ between
___________ and _________ from 11 am in the
morning to 7 pm in the evening.
(iii) The said offers will be opened by Mr. Akshay
Makhija, Advocate on __________ at
___________(time) in his Chamber at
____________________ and all intending
purchasers are required to be present at that time.
CS(OS) No.119/2019 Page 21 of 23
(iv) The three highest offers of purchase price above
Rs.24.69 crores will be selected and the purchaser
bidding the highest would be required to deposit
with Mr. Amitabh Chaturvedi, Advocate for the
Trust 10% of the bid price, by Bank Draft in the
name of Vishwa Nath and Santosh Bakshi
Charitable Educational Trust (Regd.), by 7.00 pm
of the next day. On the highest purchaser not
complying with the said requirement, successive
similar opportunities shall be given to the next two
purchasers.
(v) The said 10% of the amount would be deposited in
the bank account of Trust.
(vi) The balance sale price would be payable within 60
days thereof, against delivery of vacant peaceful
physical possession of the property and extension
of sale deed at the cost of purchaser, failing which
the amount paid of 10% shall stand irrevocable
forfeited to the Trust and the Trust would be
entitled to sell the property at the negotiated price
of Rs.24.69 crores or above as may be fetched.
Amitabh Chaturvedi,
Advocate for the Trust"
CS(OS) No.119/2019 Page 22 of 23
33. The plaintiff no.2 Sharad Malik is also directed to within six
weeks, file before this Court his own affidavit disclosing the exact
manner in which the sale price so received and/or the forfeited
amounts are intended to be used for the purpose of the Trust and
would remain bound by the same. A copy of the said affidavit be also
supplied to Mr. Akshay Makhija, Advocate who, if finds any lacuna
therein, would be entitled to apply to this Court.
34. Though Mr. Akshay Makhija, Advocate till now, at the request
of the Court, has acted pro bono and for which this Court expresses its
gratitude to him but for the responsibilities entrusted to him for future,
out of the sale price fetched, an amount of Rs.5,00,000/- be paid to
him as honorarium.
35. With the aforesaid the proceedings are disposed of.
36. It will however be open to the plaintiffs and/or to Mr. Akshay
Makhija, Advocate to, if need arises, apply for further
directions/clarifications.
RAJIV SAHAI ENDLAW, J.
JULY 04, 2019 „gsr‟/pp..
(Corrected and released on 14th September, 2019).
CS(OS) No.119/2019 Page 23 of 23