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3A. The said application clearly avers that the building standing on the trust property (excluding the fire temple and open lands surrounding the fire temple) were fully tenanted and required urgent structural repairs and trustees were not in a position to undertake repairs/reconstruction as trust was not receiving any net rent from the tenanted property of the trust. The application further avers that trustees had invited tenders by issuing public notice which was published in the Free Press Journal and Mumbai Samachar issues of May 20, 1999. The offers received from the different developers were stated in the said application and the terms of development agreed by the trustees with the Respondent No. 6 developer were also clearly indicated in this application. The application further asserts that the proposed development of the property is in the interest of trust since the trust is not receiving any rent from the tenanted property of the trust. The application further records that there is no specific provision in the instrument of trust to empower the trustees to alienate the trust property, therefore. Trustees were approaching the competent authority under Section 36(l)(c) with a request to authorize the trustees to alienate the property in the interest of the trust. The modalities of the development of the trust properties have been clearly stated in this application. Besides this application the trustees placed on record before the Charity Commissioner agreement entered between the trustees and the Respondent No. 6 builder. The said application was resisted by the objectors by filing objections. Initially about 33 Parsee Zorostrian worshippers of the fire temple submitted their applications-- Exh. 18. Later on only three other objectors filed objections through their Counsel at Exh. 21. The substance of the objections was that the trustees had no authority to alienate the trust property, whereas the indenture of the trust mandates that the trustees shall maintain the trust properties for ever. The objection raised was that the proposed agreement was contrary to the indenture of the trust and in any case it was not in the interest of the trust. It was also contended that if the builder was allowed to construct a residential complex in the compound of Agiyari properties as its extension-- and almost touching the sacred building, it would violate the object of the trust. According to the objectors, permission as sought would result in change of user contrary to the objects of the trust and in breach, infringement and contravention of religious function, command, tradition, custom, tenets and usages. According to the objectors the proposed development would affect the sanctity and holiness of the Agiyari building or fire temple and was obviously in contravention of the indenture of the trust. The objectors however conceded that the trust property is in dilapidated condition. Besides this the objectors contended that the trustees were acting in violation of the assurance and undertaking given to this Court in the previous proceedings. According to them the trustees could only carry on repairs to the trust property and cannot be permitted to alienate or demolish any of the trust property. The Respondent No. 1 after careful scrutiny of the relevant records and objections taken before him has allowed the application preferred by the trustees by a detailed order dated August 6, 2001. The operative order passed by the Respondent No. 1 on the said application reads thus :

5. The Petitioners before this Court claim to be Parsee Zoroastrian worshippers and devotees of fire temple of the Respondent Trust. The main contention raised is that when the indenture of trust did not authorize the trustees to alienate the trust property, in such a case the trustees could not directly approach the Charity Commissioner to obtain such authority. According to the Petitioners in such a situation the trustees were under obligation to approach the Civil Court under Section 50 of the Act and only when the Civil Court authorised them to alienate the trust property, they could approach the Charity Commissioner for sanction under Section 36 of the Act. In support of this contention reliance has been placed on the decision of the Division Bench of this Court the Charity Commissioner v. Shantidevi Kalchand Chhanganlal Foundation Trust. The next argument is that on plain language of the indenture of the trust it would appear that it created implied prohibition on the trustees to alienate or alter the trust properties in any manner. It is submitted that if the trust either expressly or impliedly prohibits alienation of the trust property in that case the Charity Commissioner has to power to authorize the trustees to deal with the trust property in any manner, unless the trustees have got the said covenant varied and/or modified by obtaining declaration from the Civil Court in that behalf as required under Section 50 of the Act. It is next contended that since the objectors have complained that proposed transaction would result in breach of public trust in such a case the Charity Commissioner has no option but to require the parties to go to the Civil Court for instituting a suit in view of the clear provisions of Section 50 of the Act irrespective of the fact whether the question raised was contentious or not. It is thus submitted that the Charity Commissioner had no jurisdiction to bestow authority on the trustees to dispose of the trust property or to accord sanction relying on the provisions of Section 36 of the Act. It is submitted that the Charity Commissioner could not usurp the powers exclusively vested in a Civil Court to determine the relief authorizing the whole or any part of any trust property let out, sale, mortgage or exchange in any manner alienate on such terms and conditions as Court may deem necessary. It is contended that if Court was to interpret Section 36 of the Act to empower the Charity Commissioner to examine such question it would result in rendering the provisions of Section 50 otiose and moreover that will have very serious consequences -- inasmuch as the order passed by the Charity Commissioner under Section 36 would be final and no appeal against such a decision would be available. In the circumstances, it is contended that this Court would instead reject the interpretation which will have such disastrous consequences giving uncontrolled power to the Charity Commissioner. It is next contended that in any case the order passed by the Charity Commissioner is manifestly erroneous and would cause serious injustice inasmuch as the agreement in question is a blanket authority given by the trust to the Respondent No. 6 without specifying the details regarding the description of the property, the nature of repair, reconstruction and that it would also enable the Respondent No. 6 builder to demolish the existing structure and relocate them at a different site. It is contended that all these aspects have been completely overlooked by the Charity Commissioner. In the circumstances, the Petitioners contend that Impugned order passed by the Charity Commissioner cannot be sustained for more than one reason, assuming that he had authority to entertain application and authorize the trustees to alienate the trust property.

12. The first and foremost question that needs to be addressed is the scope and ambit of the authority of the Charity Commissioner under Section 36 of the Act in matters where the trust deed either expressly prohibits or for that matter impliedly does not permit the trustees of the public trust to alienate the trust properly or where the trust makes no provision and is silent in this behalf. This question arises in view of the submission that, when the trust deed expressly prohibits the trustees from alienating the trust property or even where it is silent in that behalf, the only course open to the trustees is to first approach the Civil Court and obtain appropriate relief under Section 50 of the Act authorising them to alienate the trust property and only thereafter approach the Charity Commissioner under Section 36 of the Act for sanction of the proposed transaction. Reliance was placed by both the sides on a decision of the Division Bench of this Court --The Charity Commissioner, Maharashtra State, Bombay v. Smt. Shantidevi Lalchand Chhaganlal Foundation Trust, Bombay and others. We have closely examined that decision. In our view, the Objectors or Petitioners are under some misconception that this judgment holds that the civil court has the exclusive jurisdiction to authorise the trustees to alienate the trust property even in cases where the trust deed is silent and makes no provision whatsoever in that behalf. We are of the view that the observations made in the said decision are in the light of the fact situation of that case. In that case the trust deed made express provision investing power in the trustees to alienate the trust property. In spite of this position, a suit was filed before the Civil Court for reliefs under Section 50 of the Act. The suit involved three reliefs -- (I) the amendment of the Trust Deed; (11) the provision for the Development Agreement, and (iii) the consequential lease. And while decreeing the said suit, the Civil Court not only pronounced on the issue of the authority of the trustees to alienate the trust property but also went on to accord sanction in respect of the proposed transaction. In this backdrop, as is obvious from para 6 of the said decision, the Charity Commissioner preferred appeal before this Court essentially contending that, sanction accorded by the Civil Court to alienate the immovable property of the public trust in any manner is the absolute prerogative of the Charity Commissioner under Section 36 of the Act and this power cannot be usurped by the Civil Court merely because it was competent to grant relief of authorizing the trustees to alieante the trust property. This plea has been accepted in the said decision. The Division Bench has held that the amendment of the Trust Deed squarely falls within the jurisdiction of the Civil Court. As regards the relief of sanction for the Development Agreement and consequential Lease, the Court observed that it fell under Section 36(l)(a) and (b) of the Act and the Charity Commissioner alone was competent to consider the same. In that case the Court was essentially concerned with the question as to whether the Civil Court has power to accord sanction to the trustees to alienate any immovable property of the public trust. The Court has answered the same in the negative. In other words, that decision is an authority on the issue of exclusive power of the Charity Commissioner under Section 36(l)(a) and (b) to grant sanction to the trustee to alienate immediate property of the public trust. A priori, this judgment will have" to be read as a whole and same casual observations made on some other issues cannot be treated as its ratio. (1993 Supp (1) SCC 503 : (1993 AIR SCW 790) Commissioner of Wealth-tax v. Dr. Karan Singh). In the present case, however, the question is whether the Charity Com missioner has power to authorise the trustee to dispose of immovable property of the public trust in the context of Section 36(l)(c) of the Act. The power conferred in the Charity Commissioner under Section 36(l)(a) and (b) to accord sanction to any transaction of the immovable property of the public trust and to authorise the trustee to dispose of any immovable property of the public trust under Section 36(l)(c) are entirely distinct. It is in this background the observations in the said decision will have to be understood. In our view, it would be apposite to reproduce para. 18 of the said decision which in substance is the ratio of the said decision. The same reads thus ;-- , Para 18. "On consideration of the provisions of Section 36 and Section 50 of the Act, we are of the opinion that Section 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 Section 36 of the Act, the game is in fact final and conclusive. Therefore, by virtue of the provisions of Section 80 of the Act, once the matter falls properly within the provisions of Section 36, the Civil Court will have no jurisdiction to deal and decide the subject matter. It is also not possible to accept the submission of Mr. Desai for the respondent-plaintiffs that 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 Section 36 of the Act and the Civil Court under Section 50. Clause (iii) and Sub-clauses(i) and (g). 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 the trust. The provision of Sections 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 :--

(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."

15. It was experienced that having regard to this provision, in cases where the trust deed authorised the trustees to alienate the trust property no previous sanction of the Charity Commissioner was necessary. To over come this position amendment was effected to this provision by Act Bom 6 of 1960. By this amendment, the opening words of this provision that -- "subject to the directions in the instrument of trust" were substituted by inserting words -- "Notwithstanding anything contained in the instrument of trust". This position has been retained even now. The consequence of such amendment was that, even in cases where the trust authorises the trustees to alienate the immovable property of a public trust, even then in case of sale, mortgage, exchange or gift or lease for a period exceeding 10 years in the case of agricultural land or for a period exceeding 3 years in the case of non-agricultural land or a building, previous sanction of the Charity Commissioner was made mandatory. By passage of time it was felt that further drastic changes were needed to give necessary powers to the Charity Commissioner to enable him to effectively supervise the administration and management of the public trust. For this purpose, the legislature thought it appropriate to amend the relevant provisions of the Act, which included Section 36 and Section 50 of the Act. This was done by the Maharashtra Act 20 of 1971. The objects and reasons for this amendment was that it was observed that powers of the Charity Commissioner under the then existing provisions of Act 1950 were considerably limited and hence many a time it was found by the Charity Commissioner difficult to enforce the effective working of the public trusts. This is the fulcrum of the amendment of 1971. It needs to be mentioned that prior to 1971, the legal position as obtained was that the Charity Commissioner could only accord sanction to the alienation of the immovable property of the public trust and he had no power to authorise the trustees of any public trust to alienate any immovable property of the public trust. In other words, in cases where the trust deed expressly or impliedly prohibited the trustees from alienating the immovable property of the public trust or for that matter made no provision with regard to such power, it was incumbent upon the trustees to first obtain relief in this behalf from the Civil Court under Section 50 of the Act. Accordingly, the position prior to 1971 was that, authorisation for alienation of the immovable property of public trust could be granted only by the civil court, in cases where such authorisation was necessary. However, after amendment of 1971, this position has obviously undergone change. As observed earlier, the objects and reasons for amendment of 1971 was to give necessary powers to the Charity Commissioner to effectively supervise the administration and management of the public trust. By virtue of this amendment, the legislature not only introduced Clause (c) to Sub-section (1) of Section 36 but also inserted Sub-sections (2), (3) and (4) in Section 36 of the Act. Section as applicable to the State of Maharashtra after 1971 amendment, reads thus :--