Gujarat High Court
5 Navtanpuri Dham-Khijda Mandir Trust ... vs Anilbhai Bhagwanji Jobanputra And 3 ... on 21 April, 2008
Equivalent citations: AIR 2008 (NOC) 2181 (GUJ.)
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. Rule. The learned Counsel appearing for the respective parties, waive service of notice of Rule for their respective parties. The matter is finally heard.
2. The short facts of the case appear to be that the petitioner is a Charitable Trust, governed by the provisions of the Bombay Public Trust Act (hereinafter referred to as 'the Act'). The petitioner applied to the Charity Commissioner for permitting sale of the land admeasuring 6150.57 sq. mtrs., bearing Survey No. 15, City Survey No. 4453, City No. 341, located at Jamnagar (hereinafter referred to as 'the land/property in question'). It may be recorded that the petitioner Trust, after undergoing the procedure for passing the Resolution of the Trust, assessed that the market value of the land is about Rs. 2,06,04,400/- and moved the proposal to the Charity Commissioner under Section 36 of the Act on the ground that the Trust is required to spend for Government Tax, Municipal Tax, etc., and may also be required to incur expenses for preservation of the land and it was apprehended that there may be encroachment in future and, therefore, by disposal of the land a huge fund may be created, consequently, the interest income may be generated therefrom and, therefore, the permission was sought from the Charity Commissioner. It appears that before the Charity Commissioner three persons raised objections. One Shri Amitbhai Shah, claiming himself as the former member of the Trust and the beneficiary, resisted the application on the ground that the Trust had no power and there was also no requirement to sell the land, etc. The another person, who resisted the application is Mr.Ajay D. Swadiya, on the ground that he was interested to submit the offer, but as the opportunity was not available, including that of verification of the title deeds, the offer could not be submitted to purchase the land. The third person, Mr.Bajranglal Juharmal Agarwal resisted the application, more or less on the similar grounds as that of Shri Amitbhai Shah. The learned Charity Commissioner permitted, inter se, bidding of the property and ultimately, the highest offer was received of Rs. 9,05,00,000/-. The Charity Commissioner passed the order on 1.12.2006, whereby he rejected the objections filed and granted sanction to sell the land in question to one Giriraj Developer, who was the highest offerer for the aforesaid amount.
3. It appears that all the three objectors carried the matter in appeal against the decision of the Charity Commissioner before the Tribunal. The Tribunal ultimately passed the common judgement and order on 1.11.2007, whereby the appeals are allowed and the order of the Charity Commissioner is set aside. It is under these circumstances, the petitioner Trust as well as the highest offerer have preferred the present petitions before this Court. It may be recorded that Special Civil Applications No. 1009, 1010 and 1011 of 2008 are preferred by the petitioner Trust, whereas Special Civil Applications No. 1137, 1138 and 1139 of 2008 are preferred by the highest offerer, Giriraj Developers. However, challenge in all the three petitions are against the judgement and order of the Tribunal allowing the appeal by setting aside the order of the Charity Commissioner.
4. Heard Mr.Shelat, learned Sr. Counsel appearing with Mr.D.G. Chauhan, learned Counsel for the petitioner Trust in SCA Nos. 1009, 1010 and 1011 of 2008, Mr.Anshin H. Desai, learned Counsel for Giriraj Developers, the highest offerer, Mr.Marshall, learned Counsel for respondent No. 1, Mr.Sejpal, learned Counsel for respondent No. 1 in SCA Nos. 1009, 1011, 1137 & 1138 of 2008, Mr.Antani, learned Counsel for the appellant before the Tribunal (respondent No. 1 in SCA Nos. 1010 and 1139 of 2008), Ms.Davawala, learned Counsel for respondents No. 2 and 3 in all the petitions and Mr.Bharat Jani, learned Counsel for respondent No. 1 in SCA No. 1139 of 2008.
5. It appears from the order passed by the Tribunal that it has allowed the appeal mainly on three grounds; (1) that the Trustees had no power to sell the property in view of the declaration given earlier before the Ex-Ruler of Jamnagar; (2) that there was no necessity to sell the land, keeping in view the financial condition of the Trust; and (3) that the objectors had locus to challenge the decision of the Charity Commissioner for grant of permission under Section 36 of the Act.
6. It would be more appropriate to deal with the contentions of the learned Counsel appearing for the respective parties, keeping in view the aspects, which has weighed to the Tribunal, since the judgement of the Tribunal is under challenge in the present petitions. While examining the said challenge, it has to be borne in mind the scope of judicial review in petition under Article 227 of the Constitution, which arises from the judgement and order of the statutory Tribunal.
7. Section 36 of the Act, which is relevant for the purpose of this petition reads as under:
Section 36 Alienation of immovable property of public trust.
[(1)] [Notwithstanding anything contained in the instrument of trust-]
(a) no sale, mortgage, exchange or gift of any immovable property, and
(b) no 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 a public trust, shall be valid without the previous sanction of the Charity Commissioner.
[(2) The decision of the Charity Commissioner under Sub-section (1) shall be communicated to the trustees and shall be published in such manner as may be prescribed.
(3) Any person aggrieved by such decision may appeal to the Gujarat Revenue Tribunal within thirty days from the date of its publication.
(4) Such decision shall, subject to the provisions of Sub-section (3), be final.]
8. As such on the plain language of Section 36 of the Act, it is apparent that it is having over-riding effect upon the instrument of the Trust. The section does not speak for the circumstances under which the Charity Commissioner may grant sanction to the Trust for sale of the immovable property. Rule 24, which is also relevant for the purpose of this petition reads as under:
Rule 24. Application under Section 36 of sanction of alienations:
(1) Every application for sanction of an alienation shall contain information inter alia on the following points:
(i) whether the instrument of trust contains any directions as to alienation of immovable property;
(ii) what is the necessity for the proposed alienation;
(iii)how the proposed alienation is in the interest of the public trust; and
(iv) in the case of a proposed lease, the terms of the past leases, if any such application shall be accompanied, as far as practicable, by a valuation report of an expert.
(2) The Charity Commissioner, before according or refusing sanction, may make such inquiry as he may deem necessary.
(3) In according sanction, the Charity Commissioner may impose such conditions or give such directions as he may deem fit.
(4) The decision of the Charity Commissioner under Sub-section [1] of Section 36 shall be published in a local newspaper having circulation in the area where the property concerned is situate, and also on the notice boards of the offices of the Charity Commissioner and the Deputy or Assistant Charity Commissioner, as the case may be, of the region in which the property is situate in a manner sufficient to give information about the material particulars regarding the number of the application for sanction, the name of the public trust, the description of the property for the alienation of which sanction is accorded and the price at which it is proposed to be sold or mortgaged or the rent at which and the period for which it is proposed to be leased and the substance of such decision.]
9. Therefore, the Rule provides for the information to be supplied to the Charity and such information, inter alia, provides that whether the instrument of Trust contains any direction as to alienation of immovable property. The second is about the necessity for the proposed alienation. The third is as to how the proposed alienation would be the interest of Public Trust. The fourth clause pertains to the proposed lease, which is not subject matter of this petition and, therefore, not required to be considered at this stage. Sub-rule (2) provides for holding of inquiry by the Charity Commissioner as he may deem necessary. Sub-rule (3) provides that the power may be exercised for according sanction upon the conditions as it may deem fit by the Charity Commissioner. Sub-rule (4) provides for publication of the decision of the Charity Commissioner, which also is not the subject matter of this petition at this stage and, therefore, not required to be considered further. The aforesaid language of Rule 24 provides that while exercising the power by the Charity Commissioner, he would be required to examine the aspects as to any specific directions available pertaining to the alienation of the immovable property and the necessity for the proposed alienation and also about the satisfaction as to how the proposed alienation is in the interest of the Trust. The aforesaid information to be supplied in the application as provided by the Rules can be said as a broad criteria to be considered for the exercise of the power by the Charity Commissioner.
10. The aspects, which may assume importance at the first instance would be the necessity for the proposed alienation. If the case law is examined in order to consider the scope and ambit of the inquiry to be held by the Charity Commissioner for recording his satisfaction of the necessity of the proposed alienation, it appears that in case of 'Sridhar Suar and Anr. v. Shri Jagan Nath Temple and Ors.' the Apex Court observed that the power of the Trustees to alienate the property of religious endowments was analogues to that of a Manager for an infant. In the said decision, the Apex Court had considered the earlier view of the Privy Council in case of Hunooman Pershad v. Mt. Babooee (1856). This Court in case of 'Hamumiya Bachumiya and Ors. v. Mehdihusen Gulamhusen and Ors.' reported at 1978 GLR 661 had an occasion to consider the aspects of necessity of the Trust vis-a-vis the power of the Trustees to sell the properties of a religious Trust and it was observed at para 5, inter alia, as under:
5. The guidelines which have to be followed for sanctioning such alienation of properties of a religious trust by its trustees are also very well settled. In Shridhar v. Jagannathji Temple proceeding on the settled principle that the power of the trustees of such religious trust to alienate property of the religious endowment was analogous to that of a manager for an infant as defined by the Judicial Committee in Hanooman Prasad v. Mt. Babootee (1856) 6 Moors I.A. 393 P.C., it was held that such trustees had no power to alienate a debutter property except in case of need or for the benefit of the estate. A trustee was not entitled to sell property for the purpose of investing the price of its so as to bring income larger than that derived from the property itself. Nor could he except for legal necessity grant a permanent lease of debutter property, though he may create proper derivative tenures and estates comfortable to usage. Three main decisions of the Privy Council had been referred to pointing out that for such permanent alienation unavoidable necessity had to be made out, because otherwise the debutter estate shall be deprived of the chance which it would have, if the rent were variable, of deriving benefit from the enhancement in value in the future of the lands leased.
11. It was further observed in the very paragraph by the Apex Court as under:
5. ...The Revenue Tribunal proceeded on a thoroughly extraneous and irrelevant consideration that if this property was sold and the price invested in fixed deposit in a bank, the interest income would be much larger than derived by leasing this property to the tenant. This consideration was in terms found to be irrelevant in the aforesaid Shridhar's case by referring to the decision in Hanooman Prasad at page 1865. The trustees had rightly pointed out that in such a ground would be accepted all the trust properties would be sold away because most of them were fetching low rent and thereby the trust would be permanently deprived of the benefit of rise in prices in future of the lands situated in such fast developing city like Baroda.
12. In case of 'Hasam Ibrahim Abdul Latiff Supediwala v. Bhaichand Pranlal Dhoneja and Ors.' reported at 1999(1) GLH, 854 while considering the scope and ambit of Section 36 of the Act, this Court after considering the earlier decision of this Court in case of 'Thakorebhai Gangaram v. Ramanlal Maganlal Reshamwala' reported at 1993(1) GLH 473, inter alia, observed at para 9 as under:
9. It cannot be doubted that law does not favour divesting of immovable properties of public trust ordinarily. The State Government is paramount guarding of public charity and it is its bounden duly to see that the funds and properties of public trusts are not floundered or misapplied. It is to safeguard the properties of different trusts from being misused provision like the one of seeking permission before transfer of the property has been made. The principles governing the application for grant of permission to sell the properties of public trust have been well settled. The basic guiding factor for the Charity Commissioner in considering the application for transfer of any immovable property of the public trust is whether such transfer is in the interest of the public trust and for its benefit and protection. In order to satisfy himself before the Charity Commissioner sanctions alienation of trust property he has to apply his mind to two material questions, namely, (i) whether there is a compelling necessary to justify the alienation in question and (ii) whether the proposed alienation is fair and does in any way adversely affect the interest of the trust. The first enquiry is into the factors which have necessitated the transfer of the immovable property and the second question envisage inquiry into the fairness of proposed transaction. That is to say, whether it results in the best yield to the trust from its property.
13. If the facts of the present case are examined in light of the aforesaid statutory provisions read with the judicial pronouncement, it appears that the area of the land, which is proposed to be sold is a huge chunk of land admeasuring about 6150.57 sq. mtrs., and if the proposal of the Trust is accepted, it may generate income to the Trust of about more than Rs. 9 crore. As against the same, if the application is considered of the Trustees, the ground of necessity for generating income of the interest by disposal of the land cannot be accepted as relevant for recording the satisfaction by the Charity Commissioner and can rather be said as irrelevant in light of the above referred decision of this Court in case of 'Hamumiya Bachumiya and Ors. v. Mehdihusen Gulamhusen and Ors.' (supra), which has been taken by following the decision of the Apex Court in case of 'Sridhar Suar and Anr. v. Shri Jagan Nath Temple and Ors.' (supra). The ground contended for satisfying the Charity Commissioner on the aspects of necessity is that of expenses to be incurred for preservation of the property, the apprehension for encroachment, heavy burden of Municipal Tax, etc., as such has not been properly examined by the Charity Commissioner in detail. Even if they are considered on its face value, such cannot be read to create the necessity for disposal of the whole property of the land admeasuring more than 6000 sq. mtrs. The Trustees of a Charitable Trust are enjoined with the duty to preserve and protect the property of the Trust as if the Manager of an infant, but such power of the Trustees cannot be read as that of a pleasure doctrine or a sweet will of the Trustees to dispose of the property. The degree of obligation is coupled with their fiduciary capacity to preserve and protect the property for the larger interest of the Trust and to be made available to the beneficiaries of the Trust to the maximum possible extent. Further, even if such is tested on the reasonable prudence, the attempt on the part of the Trustees would be to see that the money be realised to the extent required for preservation of the property for enabling the Trustees to bear the expenses to be incurred for preservation, including the local taxation, if any, by continuing with the property to the possible extent. Had the proposal been on the basis that a particular amount of money was required for preservation of the property and, therefore, the disposal of the land of a particular area, it may stand on a different footing, but merely because the Trustees cursorily make the statement that there are huge expenses to be incurred for preservation of the property, including the Municipal Tax, etc., or that they apprehend encroachment, per se, cannot be accepted as a valid ground to meet with the requirement of necessity as envisaged under Section 36 read with Rule 24 read with the aforesaid judicial pronouncement. As a matter of fact, the necessity of a particular Trust is relative aspect, which may vary from Trust to Trust. In a given case, keeping in view the financial condition of the Trust, requirement of a particular amount may be described as necessity, but such may not be the requirement to meet with the necessity of another Trust. Therefore, it would be required for the Charity Commissioner to examine the financial condition of the Trust in order to satisfy the necessity for disposal of the immovable property. As such, the Charity Commissioner has not at all examined the said aspects. Further, the Tribunal has taken into consideration some of the financial fund available with the Trust and has recorded that there is no necessity. Therefore, it appears that the view taken by the Tribunal cannot be said as an error on the face of record, which may be required to be upset by this Court while exercising the power under Article 227 of the Constitution of India.
14. The learned Sr. Counsel for the petitioner Trust, Mr.Shelat did submit that the principles analogous to the Manager of an infant, as they are laid down by the Apex Court in case of 'Sridhar Suar and Anr. v. Shri Jagan Nath Temple and Ors.' (supra) as well as 'Hamumiya Bachumiya and Ors. v. Mehdihusen Gulamhusen and Ors.' (supra) would not be applicable to the facts of the present case since in his submission, such principle may apply to only religious Trusts and not to other Charitable Trusts. He also submitted that the Charity Commissioner, if satisfied that the proposed alienation is not adverse to the interest of the Trust, the Charity Commissioner has to accord sanction and, therefore, in the submission of Mr.Shelat, necessity is not an aspect over which the detailed scrutiny is required to be undertaken by the Charity Commissioner, nor is the satisfaction required to be recorded.
15. If the contention of the learned Counsel for the petitioner Trust, on its face value, is accepted, it would result into making Rule 24 as redundant inasmuch as the Rule also provides for the information to be supplied for the necessity of the proposed alienation. It may be that in a given case, the Trust may come out with a project on hand, for advancement of the objects of the Trust and the requirement of the fund based on the same, but such aspects of necessity cannot be termed as indispensable, nor can be equated with adverse to the interest of the Trust. So far as the scrutiny to the interest of the Trust is concerned, the same is one of the additional aspects to be examined by the Charity Commissioner while according sanction to the sale, but such is not the only consideration as sought to be canvassed on behalf of the petitioner Trust. Therefore, the submission of Mr.Shelat, learned Sr. Counsel for the petitioner Trust, cannot be accepted.
16. The petitioner Trust in the present petition, by filing additional affidavit, has tried to canvass that the Trust is proposing to utilize the amount for various other laudable objects in furtherance to the objects of the Trust and various details are submitted and it was also submitted on behalf of the Trust that this Court may maintain the order of the Charity Commissioner, keeping in view the details produced on behalf of the Trust. It was submitted that since such projects are on hand, including that of establishing a School, etc., the Trust requires huge money and such can be said as necessity or for the larger interest of he Trust and, in any case, not in adverse of the interest of the Trust and, therefore, the order of the Charity Commissioner may be maintained by setting aside the order of the Tribunal.
17. In my view, the requirement by law is the inquiry on such aspects to be held by the Charity Commissioner. When the documents were neither produced before the Charity Commissioner, nor was there any inquiry on such aspects, nor even before the Tribunal in the proceedings of the appeals, this Court cannot conveniently undertake such inquiry, more particularly in a petition under Article 227 of the Constitution of India and record the satisfaction as that of the Charity Commissioner on the aspects of necessity. Therefore, such an attempt on the part of the petitioner Trust cannot be countenanced.
18. In view of the aforesaid, it can be said that the Charity Commissioner, while exercising the power under Section 36 of the Act failed to consider the aspects of necessity and as the Tribunal, has considered the said aspects and has recorded that there is no necessity on the basis of the record produced before the Charity Commissioner, it would not be a case to upset the order passed by the Tribunal to that extent.
19. The aforesaid would lead to the examination of the second aspects of the power of the Trustees to sell the land and on he aspects of locus standi of the objectors to resist the application under Section 36 of the Act 0r, in any case, in appeal before the Tribunal.
20. The Tribunal in the impugned order, has mainly relied upon the declaration made by the Mahant of the Trust before the Ex-Ruler of Jamnagar on 18.2.1917. The attempt was made on behalf of the Objectors to contend that in view of the aforesaid declaration, the Tribunal has rightly recorded the findings that the Trustees had no authority to dispose of the land, whereas on behalf of the petitioner Trust, it was submitted that subsequently when the Trust was registered under the Act, the Trust Deed provided for the power to sell the land. The said Resolution of the Trustees was treated as the Constitution of the Trust and also accepted as back as in the year 1989 by the Charity Commissioner. Therefore, it cannot be said that the Trustees have no power to sell the land. The learned Counsel for the Objectors had submitted that against the acceptance of the Trust Deed, by way of objection to the change report, revisions are preferred and the matter is pending and, therefore, it cannot be said as an issue concluded. It was submitted, therefore, that the observations of the Tribunal on the said aspects be maintained.
21. The examination of the aforesaid aspects shows that the earlier declaration by Mahant in the year 1917 before the Ex-Ruler of Jamnagar would at the most be termed as of himself, since he was posted vice another Mahant. It cannot be read as for operating a complete ban on the power of the Trustees to sell the property even if it is required by way of necessity and is also required for advancing the objects of the Trust. Further, it is not in dispute that the Trust deed came to be taken on record of the Trust in the office of the Charity Commissioner as back as in the year 1989 and such Trust Deed provides for power for sale and purchase of the immovable property. Merely because a dispute is raised by preferring the revision before the higher forum after many years would not be a sufficient ground to conclude that the Trust Deed, which was so accepted by the Charity Commissioner as back as in the year 1989 and for which the entry was recorded in the PTR would automatically go away. Further, there is no injunction in the proceedings of the revision. The additional circumstances are that earlier some of the properties were sold/transferred to housing board for construction of houses and at the relevant point of time, the permission was applied and was also granted by the Charity Commissioner under Section 36 of the Act.
22. Apart from the above, it deserves to be recorded that in a matter of holding the property by the Charitable Trust, it is true that the power of the Trustees would flow from the Trust Deed itself and the desire of the settler of the Trust may hold paramount consideration. In the present case, the Trust, as appears from the existing record, is not by way of self-creation through the settler of the Trust, but it appears that it must be for a long period since many years. The said aspects can be gathered from the circumstances that during the period of Ex-Ruler of Jamnagar, the then Mahant was removed and another Mahant was also inducted. It may be that at the time when new Mahant was inducted, the Ex-Ruler with a view to bind the said Mahant got the declaration executed by the said Mahant but the fact remains that when the registration is effected under the present Act, the Trustees have resolved for constitution of the Trust and various conditions are incorporated, which includes the power for disposal of the property. Therefore, under these facts and circumstances, when such Trust Deed is already on record and keeping in view that it is a Charitable Trust, if a stalemate is read upon the power of the Trustees, it may not be possible for the Trustees to achieve the objects of the Trustees and/or for further advancing the object of the Trust. Therefore, keeping in view the facts and circumstances, it cannot be said that the Trustees of the Trust had no power to sell or alienate the property in question. The Tribunal in the impugned order has mainly been guided by the declaration made by the Mahant before the Ex-Ruler of Jamnagar and has not considered the above referred aspects of the case. The declaration by the Mahant during the period of Ex-Ruler of Jamnagar has been given undue weightage by the Tribunal as against the Trust Deed, which is on record. Therefore, in view of the aforesaid, it can be said that to that extent the Tribunal has committed error apparent on the face of record in concluding that the Trustees had no power to sell the property though the position in view of the observations and discussions made herein above is otherwise inasmuch as the Trustees of the Trust had power to sell and dispose of the property, of course, subject to the restrictions as provided under Section 36 read with the relevant Rule of the Act and Rules.
23. On the aspects of locus of the Objectors before the Tribunal, the learned Counsel for the petitioners did submit that the appeals were not maintainable and the Objectors had no locus to prefer the appeals. It was also submitted that if the power could not be exercised by the Tribunal at the instance of the appellants, who were Objectors, the Tribunal could not have also expressed the view on the other aspects. In support of the contentions of no locus with the Objectors, who were appellants before the Tribunal, the learned Counsel for the petitioner had relied upon certain decision of this Court.
24. Whereas on behalf of the objectors/appellants before the Tribunal, the learned Counsel submitted that they had locus to prefer the appeals and the Tribunal has rightly held that the appellants had locus. It is also submitted on behalf of the Objectors, who were appellants before the Tribunal that keeping in view the status of the Trust, beneficiaries were also entitled to challenge the said decision of the Charity Commissioner. Therefore, it was submitted that the finding of the Tribunal to that extent may not be upset by this Court.
25. As such, in normal circumstances, the one who was party to the proceedings before the Charity Commissioner, could carry the matter before the higher forum, if it is satisfactorily demonstrated before the higher forum that such person is aggrieved by the decision of the Charity Commissioner. It may be that after examining the facts and circumstances of the case, the higher forum may decide that there is no injury caused or the person concerned cannot be termed as aggrieved party or in view of the facts and circumstances of the case, the higher forum may decline to exercise the power at the instance of such person. But all such aspects cannot be read to create the situation that the entertainment of the appeals was totally unwarranted. The scope of appeal even otherwise in comparison to the revisional jurisdiction is wider. If the parties to the proceedings before the lower forum did object and such objections were considered and negatived by the Charity Commissioner, it could not be said that they had no right at all to prefer appeal. The Tribunal in the present case did entertain the appeal. Whether the appellants before the Tribunal could finally be said as aggrieved party or at the instance of them, the Tribunal ought to have exercised the power or not, in my view cannot be mixed up with the aspects of entertainment of the appeal at the first instance. Further the said aspects would have assumed importance at the initial stage. At the time when the Tribunal finally heard the appeals and having found that the order of the Charity Commissioner was vulnerable on the other aspects also and such aspects, in view of the observations made herein above is in part found proper by this Court, in my view, it may not be required for this Court to finally conclude on the aspects of locus as sought to be canvassed on behalf of the petitioner.
26. There is one additional reason for not to conclude on the aspects of locus so as to bar the room for raising objections by any of the beneficiaries and the same is that in view of no proper demonstration and/or satisfaction recorded by the Charity Commissioner on the aspects of necessity, the present application for permission would even otherwise come to an end. If the Trust is to submit a fresh application with the proper material on the aspects of necessity and such is considered in future, it may stand on a different considerations and the situation prevailing at that stage. Therefore, I find that if the ban is read so as to foreclose the observance of the interest of the Trust even by the beneficiaries, it may result into adversely affecting the larger interest of the Trust.
27. Hence, in view of these circumstances, it may not be necessary for this Court to finally conclude on the aspects of locus. As the Tribunal has exercised the appellate power and has found the order of the Charity Commissioner erroneous, on the other aspects, it can be said that the question of locus in the present facts and circumstances of the case would lose the efficacy. Therefore, I find that the question of locus may be kept open, but at the same time it cannot be concluded that the exercise of the power by the Tribunal at the instance of the appellants, for setting aside the order of the Charity commissioner, was not unwarranted.
28. In view of the aforesaid observations and discussions, the order of the Charity Commissioner, in any circumstances, in any case, cannot be maintained in absence of satisfaction recorded on the aspects of necessity for sale of the land in question. As a consequence thereof, the finding of the Tribunal taking the same as the basis for setting aside the order of the Charity Commissioner do not deserve to be interfered. Further, even if the finding of the Tribunal on the aspects of power with the Charity Commissioner to sell the land is read as reversed, then also the order of the Charity Commissioner for grant of permission to sell the land in absence of satisfaction recorded for necessity, cannot be maintained. However, it is clarified that the present order shall not preclude as a bar to the petitioner Trust for any fresh permission on a fresh ground and circumstances as available in law. In the result, subject to the aforesaid observations and directions, the petitions fail. Hence, dismissed. Subject to the aforesaid Rule discharged. No order as to costs.