Case Note & Summary
The petitioner, Murlidhar Deosthan Bamarda, a public trust, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 14/06/2010 passed by the Joint Charity Commissioner, Nagpur, rejecting its application under Section 36(1)(a) of the Bombay Public Trust Act, 1950. The application sought permission to sell land bearing Survey No.101 of village Bamarda, Tq.Warora, Distt.Chandrapur. The trust claimed that the land yielded no income and that the sale proceeds were needed to construct a Sabha Mandap and Deosthan, with an estimated expenditure of Rs.6.84 lakhs. Tenders were invited and the highest offer was Rs.10,00,000/-, which the sub-Registrar considered adequate. The Joint Charity Commissioner rejected the application on the ground that neither a copy of the scheme nor the trust instrument was placed on record, and that the gift deed through which the trust acquired the land was not produced, making it impossible to ascertain whether the donor imposed any condition against alienation. The High Court heard the counsel for the petitioner and the AGP for the respondent. The petitioner argued that under Section 36(1)(a), the material considerations are the necessity of the trust to sell and the market price, and that the Commissioner's approach was hypertechnical. The Court agreed, holding that the Commissioner ought to have considered the necessity and adequacy of price rather than insisting on the gift deed. The Court set aside the impugned order and directed the Commissioner to reconsider the application on merits, preferably within three months. The petition was allowed.
Headnote
A) Bombay Public Trust Act, 1950 - Section 36(1)(a) - Permission to sell trust property - Necessity and market price - The Joint Charity Commissioner rejected the application on the ground that the gift deed and trust instrument were not produced. The High Court held that the approach was hypertechnical and that the Commissioner ought to have considered the necessity of the trust to sell the land and whether the property fetched the market price. The Court allowed the petition and directed the Commissioner to reconsider the application on merits. (Paras 2-7)
Issue of Consideration
Whether the Joint Charity Commissioner was justified in rejecting the application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 for permission to sell trust land solely on the ground that the gift deed and trust instrument were not produced, without considering the necessity and adequacy of price.
Final Decision
The petition is allowed. The impugned order dated 14/06/2010 passed by the Joint Charity Commissioner, Nagpur, is quashed and set aside. The matter is remitted back to the Joint Charity Commissioner for reconsideration of the application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 on its own merits, preferably within three months from the date of the order. Rule is made absolute accordingly with no order as to costs.
Law Points
- Section 36(1)(a) Bombay Public Trust Act
- 1950
- necessity of trust
- market price
- hypertechnical approach
- gift deed not essential
- public trust property alienation
Case Details
2011 LawText (BOM) (06) 156
Writ Petition No.1210 of 2011
Mr.A.P.Thakare for petitioner, Smt.A.R.Taywade, AGP for respondent
Murlidhar Deosthan Bamarda
The Joint Charity Commissioner, Nagpur
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Nature of Litigation
Writ petition under Articles 226 and 227 of the Constitution of India challenging the order of the Joint Charity Commissioner rejecting an application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 for permission to sell trust land.
Remedy Sought
The petitioner sought quashing of the impugned order and a direction to the Joint Charity Commissioner to grant permission to sell the land.
Filing Reason
The Joint Charity Commissioner rejected the application on hypertechnical grounds without considering the necessity of the trust and the adequacy of the price offered.
Previous Decisions
The Joint Charity Commissioner, Nagpur, by order dated 14/06/2010, rejected the application under Section 36(1)(a) of the Bombay Public Trust Act, 1950.
Issues
Whether the Joint Charity Commissioner was justified in rejecting the application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 solely on the ground that the gift deed and trust instrument were not produced.
Whether the Commissioner ought to have considered the necessity of the trust to sell the land and whether the property fetched the market price.
Submissions/Arguments
The petitioner contended that in an application under Section 36(1)(a), what is material is the necessity of the trust to sell the land and that the property fetches the market price. The highest tender was Rs.10,00,000/-, which was adequate, and the expenditure for construction was Rs.6.84 lakhs, so the sale was in the interest of the trust.
The respondent (AGP) argued in support of the impugned order.
Ratio Decidendi
In an application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 for permission to sell trust property, the material considerations are the necessity of the trust to sell the land and whether the property fetches the market price. The Charity Commissioner should not adopt a hypertechnical approach by insisting on production of the gift deed or trust instrument when the necessity and adequacy of price are established.
Judgment Excerpts
The learned counsel for the petitioner contended that in an application under Section 36(1)(a) of the Act what is material is the necessity of the Trust to sell the land and that the property in question fetches the market price.
In my view, the approach of the learned Joint Charity Commissioner is hypertechnical. The learned Joint Charity Commissioner ought to have considered the necessity of the Trust to sell the land and whether the property in question fetches the market price.
Procedural History
The petitioner filed an application under Section 36(1)(a) of the Bombay Public Trust Act, 1950 before the Joint Charity Commissioner, Nagpur, seeking permission to sell trust land. The Joint Charity Commissioner rejected the application by order dated 14/06/2010. The petitioner then filed the present writ petition under Articles 226 and 227 of the Constitution of India before the Bombay High Court, Nagpur Bench.
Acts & Sections
- Bombay Public Trust Act, 1950: Section 36(1)(a)
- Constitution of India: Articles 226, 227
