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2005 SCC OnLine Bom 1476 : (2006) 1 Mah LJ 809 : (2006) 2

Bom CR 63 : (2006) 108 (1) Bom LR 13

In the High Court of Bombay

Bombay Public Trusts Act, 1950, Sections 36 and 50-A
(Bombay)
(BEFORE S.U. KAMDAR, J.)

Bara Imam Masjid Trust and others … Petitioners;

Versus
Charity Commissioner, Maharashtra State and
others … Respondents.
W.P. Nos. 3965 and 4151 of 2005
Decided on December 21, 2005

(a) Judicial process — Hallmark of judicial process is openness and

transparency.
One of the objectors before the Charity Commissioner, in proceedings under
section 36 of the Bombay Public Trusts Act, 1950, in place of attending the hearing
of the matter and addressing the Court either by himself or through an advocate or
pleader is sending telegrams to the Court as well as letters making false and wild
allegations. The tendency which is displayed of sending telegrams and letters to the
Judge in private without being appearing in Court is required to be deprecated. The
hallmark of the judicial process is openness and transparency it requires that the
matter should be thrashed out in the open Court and not by sending telegrams and
letters to the Judge in Chamber and refusing to attend the matter in open Court.
This kind of tendency must be stopped and necessary action must be initiated for
making wild allegations by way of sending telegrams and letters to the Judge
privately.
(Para 6)
(b) Bombay Public Trusts Act (29 of 1950), Ss. 36 and 50-A —
Provisions of both the sections are independent and are not overlapping —
Charity Commissioner in proceedings under section 36 cannot re-examine
the validity or otherwise of the order passed under section 50-A.
Where amendment to the scheme under section 50-A of the Bombay Public
Trusts Act was granted as far back as in 1994 and by virtue of no further challenge
thereto has achieved a finality, the Charity Commissioner in a collateral proceedings
under section 36 cannot re-examine the validity or otherwise of the order passed
by other Commissioner of co-ordinate jurisdiction under section 50-A of the Act.
The finding of the Charity Commissioner in proceedings under section 36 that grant
of an amendment to the scheme in 1994 by the Assistant Charity Commissioner
was illegal is without jurisdiction and cannot be sustained.
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(Para 7)
(c) Bombay Public Trusts Act (29 of 1950), S. 36 — Sale of the Trust
property — Charity Commissioner cannot substitute the decision of the trust
and go behind it.

Page: 810

If the trust has taken the decision that they want to dispose the property and
enhance their objects by fulfilling more and other objects of the trust then in that
event it is neither in the jurisdiction of the Charity Commissioner nor of this Court
to substitute the decision of the said trust and go behind it. Essentially it is the
trustees who are supposed to determine how best they would and they can deal
with the assets of the trust and that is for the benefits of the trust. The power
conferred under section 36(1) on the Charity Commissioner is to ascertain whether
the property is sold in the interest of the trust and whether it is sold at the best
price available to the trust. The Charity Commissioner cannot go into the validity of
the decision whether the property should be rightly decided to be sold or not. The
finding of fact whether it is in the interest of the trust or not to sell the property, the
decision of the Charity Commissioner must be objective and based on material
placed before him. The Charity Commissioner has only considered that it is not for
a compelling need by holding that it seems that the trustees are interested in
disposing of the property for their own personal benefits because they are likely to
get a share of the said amount to themselves under the scheme which has been
sanctioned by the Charity Commissioner. These are not the grounds on which the
decision of the trustees to sell the property can be interfered with and/or set aside
by the Charity Commissioner in exercise of jurisdiction under section 36(1) of the
Act.
(Para 9)
In W.P. No. 3965 of 2005 :
For Petitioners: R.D. Soni
For Respondent No. 7: Ramesh Dube Patil
For Respondent No. 30: S.V. Dhakephalkar
For Respondent Nos. 13, 17, 18 and 21: A.V. Anturkar for Mrs.
Vanita V. Bakre Shastri
For Respondent No. 4: P.N. Jodhi
In W.P. No. 4151 of 2005 :
For Petitioners: Pravin Samdani with Sanjay Gawade
For Respondents No. 2 and 7: Ramesh Dube Patil instructed by M/s
Jay and Co.
For Respondent Nos. 11, 14, 20 and 21: A.V. Anturkar for Mrs.
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Vanita V. Bakre Shastri

For Respondent No. 31: S.V. Dhakephalkar
For State: M.H. Solkar, AGP
ORAL JUDGMENT
1. These two writ petitions are challenging the common order passed
by the Charity Commissioner, Pune dated 19-4-2005 refusing to grant
permission under section 36 of the Bombay Public Trusts Act, 1950 to
the petitioners for the sale of the trust property. Since both the writ
petitions are arising out of a common order, both of them are disposed
of together by this common judgment.
2. Some of the material facts in Writ Petition 3965 of 2005 are
briefly enumerated as under.
3. The petitioner trust is a public trust registered under the
provisions of the Bombay Public Trusts Act, 1950 (hereinafter referred
to as the said Act) bearing PTR No. B-189 (ANR). Petitioner Nos. 2 to 6
are trustees of the petitioner No. 1

Page: 811

trust. The trust owns land bearing survey Nos. 20, 21, 22 and 23
admeasuring 15 hectares and 29 Ares situated at Savedi, Ahmednagar.
The said land is situated in the heart of the city. After the
commencement of the trust, sometime in or about 1994, an application
was made under section 50-A(3) of the said Act for modification of the
scheme and accordingly the scheme was modified by the authorities
thereby the scope and object of the Trust was changed and several new
objects were included in the scheme of the Trust. The original object
was only to maintain the masjid and now with the amended objectives
various other secular objects, inter alia, running of educational
institutions, etc., have been introduced. It is not in dispute that large
amount of property out of the property which is held by the Trust is in
possession of one Baraskar family who are claiming to be the tenants in
possession of the said property and the dispute between the tenants
and the petitioner trustees for the purpose of possession of the said
land is in Court. There are various other litigations as against various
other tenants which are pending in various Courts. It is the case of the
petitioner that out of the said trust property the petitioner was getting
a meagre income of small amount of Rs. 100/- per annum and
accordingly on 28-1-2001 held a meeting and decided to alienate part
of the land admeasuring to 15 hectares and 29 Ares so that necessary
funds can be generated for the purpose of fulfilling and achieving the
objects of the Trust. It was decided in the said meeting that the Trust
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will purchase another suitable property from the funds recovered from
the sale thereof and carry on the activities of the trust. The petitioner
No. 1 thereafter invited bids by way of private circulation for alienation
of the said property. The petitioner also got the said land valued and
the valuer had valued the said land at Rs. 3.90 crores as the market
value of the said land. The said market value was arrived at on the
basis of various tenants in possession and the pending litigation. On 24
-11-2001 pursuant to the invitation of bids, the petitioner entered into
a contract with one Rajiv Buildwell Pvt. Ltd., for a sum of Rs. 4.81
crores who was the highest offerer in respect of the purchase of the
said land. Subsequently, the petitioner Trust entered into negotiations
and M/s Rajvi Buildwell Pvt. Ltd., increased their offer to Rs. 5 crores
which was accepted by the Trust and an agreement for sale was
entered into. Pursuant to the said acceptance of the said offer the
petitioners filed an application under section 36 of the said Act for the
purpose of sanction. On 1-12-2001 the learned Joint Charity
Commissioner directed that the petitioners should invite fresh tenders
by issuing advertisements in reputed newspapers. On 9-6-2001, as per
the directions of the Joint Charity Commissioner the petitioners issued
advertisements in various newspapers and fresh offers were invited.
Pursuant to the said advertisement, the offers received by the
petitioners were as under:—

Tenderers Amount Offered.

1. Priti Chhajed 7,80,60,000/-
2. Radiant Builders
(It was
development
agreement)
3. Ansar Baig 10,00,00,000/-
4. Happy Home 4,50,00,000/-
Developers.
5. Shivani Developers 4,51,00,000/-
6. Rajavi Buildwell 5,00,00,000/-
Pvt. Ltd.,

Page: 812

According to the petitioners, out of the said offers, the offer of Rajavi
Buildwell Pvt. Ltd., was only eligible as the condition to give a demand
draft along with the offer of 40% of the offer amount was not fulfilled
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by other two highest offerers, namely Priti Chhajed of Rs. 7,80,60,000/-

and Ansar Baig of Rs. 10,00,00,000/-. Thus, the petitioners found that
Rajavi Buildwell Pvt. Ltd., was the highest bidder at the sum of Rs. 5
crores. Thereafter on 15-1-2003, the petitioner made an application
before the 2nd respondent for issuing a notice to all the offerers to
increase the offer and fulfil the terms and conditions of the tender.
However, it is the case of the petitioners that the said application has
been rejected by the Joint Charity Commissioner on 19-4-2005.
4. Various persons filed written objections before the Charity
Commissioner in the said section 36 proceedings for sanction of sale.
The objections filed are basically three fold. The first set of objections
contend that the trust should not be permitted at all to sell the said
property because there is no need for sale of the said property. The
second objection filed is that the sale is sought to be effected by the
trustees at much undervalued price and the rejection of the two highest
offers of Rs. 7,80,60,000/- and Rs. 10,00,00,000/- were illegal and
merely on a technical ground that in place of giving a demand draft of
40% of the amount of offer, a cheque has been given by the said
bidders. The third contention was that the Charity Commissioner has no
jurisdiction to grant sanction of the sale under section 36 of the said
Act because it is the Wakf Property and, therefore, the provisions of
Bombay Public Trusts Act giving jurisdiction to the Charity
Commissioner is not available to grant sanction thereof. After
considering the objections, the Charity Commissioner has passed the
impugned order dated 19-4-2005 by which the Charity Commissioner
has rejected the application under section 36 of the said Act filed by
the petitioner for sale of the said property. While rejecting the
application, the Charity Commissioner has inter alia held that it has
jurisdiction as the property is not wakf property and covered by the
provisions of the said Act. This finding of the Charity Commissioner has
not been challenged before me by any of the parties either by filing writ
petition or filing any cross-objections nor the said issue is agitated
before me. Thus, I do not propose to go into the same. However, the
Charity Commissioner has rejected the application on three grounds
also which are pressed by the respondents in the present case before
me. Firstly, he has held that the amendment of the scheme of the trust
under section 50-A(3) in 1994 by the Assistant Charity Commissioner
was illegal and unlawful and therefore the said amendment should be
set aside and ignored and only the original scheme should be permitted
to be operated and considered for the purpose of granting the
permission under section 36 or not. The second finding given by the
Charity Commissioner is that there is no compelling need on the part of
the trustees to sell the said property and the third and the last finding
given is that the trustees are seeking to sale the property for the
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ulterior motive and at the very suppressed price. The Charity

Commissioner has thereafter given permission to the intervenors to
apply to the Charity Commissioner for the purpose of removal of
petitioners Nos. 2 to 6 trustees because they are acting contrary to the
interest of the trust. It is these findings of the Charity Commissioner
which are under challenge before me.

Page: 813

5. The second writ petition being Writ Petition No. 4151 of 2005 has
been filed by the highest offerer M/s. Rajavi Buildwell Pvt. Ltd., whose
offer of Rs. 5 crore for the purchase of the property was not accepted. It
is his contention that he being the highest offerer his offer should have
been accepted by the Charity Commissioner and other two offers of Rs.
7,80,60,000/- and Rs. 10 crores are non-eligible offers because their
offer was not in compliance with the terms and conditions of the tender
conditions which were issued by giving advertisements in the
newspapers pursuant to the directions of the Charity Commissioner.
The said writ petitioner also contends that it was not the jurisdiction of
the Charity Commissioner to go into the need or otherwise of the said
trust because that is the sole subjective decision of the trustees and
the Charity Commissioner has no jurisdiction to substitute his views in
place of the views of the trustees.
6. Both these writ petitions have been argued before me on various
occasions. Before I go into the rival contentions of the parties, I am of
the view that it is my duty to pin point a regular disturbing factor in the
present case. Respondent No. 9 in the present case is one
Janmohammad Haji Abdul Gafur. It seems that he is one of the
objectors before the Charity Commissioner. However, I have been
informed by all the parties that he never appeared before the Charity
Commissioner. This gentleman has not appeared even before this
Court. But I find that in place of attending the hearing of the matter
and addressing the Court either by himself or through an advocate or
pleader, he is sending telegrams to the Court as well as letters making
false and wild allegations. This kind of activity of a litigant before the
Court is rather disturbing because it was open for him to appear in the
matter. However, once I received the telegram, I directed the office by
my order dated 12-12-2005 to give telegraphic notice to him to appear
and state his objections but in spite of the notice he has remained
absent. The allegations made by him in the proceedings are that I am
in a hurry to dispose of the matter without even knowing the true and
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correct facts of the case. The matter has been adjourned by me from 19
-11-2005 and I am addressed by a large number of lawyers from all
sides. The matter was on my Board on 19-11-2005. Thereafter on 23-
11-2005. Thereafter on 29-11-2005. The matter was thereafter on
Board on 12-12-2005. The matter was thereafter on my Board on 15-12
-2005. On 16-12-2005 after hearing the parties once again, I have
reserved the judgment. I am of the view that the tendency which is
displayed of sending telegrams and letters to the Judge in private
without being appearing in Court is required to be deprecated. The
hallmark of the judicial process is openness and transparency it
requires that the matter should be thrashed out in the open Court and
not by sending telegrams and letters to the Judge in Chamber and
refusing to attend the matter in open Court. I am of the view that this
kind of tendency must be stopped and necessary action must be
initiated for making wild allegations by way of sending telegrams and
letters to the Judge privately.
7. Now turning to the petitions on merits of the case, the learned
counsel for the petitioners Mr. Tulzapurkar has contended that the order
passed by the Charity Commissioner on all the three reasons on the
basis of which he has refused to grant permission is unsustainable in
law. According to him, the first reason given by the Charity
Commissioner that the grant of an amendment to the scheme in 1994
by the Assistant Charity Commissioner was illegal and the said

Page: 814

amendment discarded while considering an application for sanction of

sale under section 36 cannot be sustained because of the fact that
while dealing with the application under section 36 the Charity
Commissioner has no jurisdiction to go into the question of validity or
otherwise of the order passed by the Assistant Charity Commissioner in
1994 and was not challenged further in any Court of law and has thus
attained finality. He has also drawn my attention to the provisions of
section 36 (1) and section 50-A are reproduced hereinunder:

“36. Alienation of immovable property of public trust.— [(1)]

[Notwithstanding anything contained in the instrument of trust]
(a) no sale, 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. [Sanction may be accorded subject to such
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condition as the Charity Commissioner may think fit to impose,

regard being had to the interest, benefit or protection of the
trust;
(c) if the Charity Commissioner is satisfied that in the interest of
any public trust any immovable property thereof should be
disposed of, he may, on application, authorise any trustee to
dispose of such property subject to such conditions as he may
think fit to impose, regard being had to the interest or benefit
or protection of the trust”.
“50-A. Power of Charity Commissioner to frame, amalgamate or
modify schemes.— (1) Notwithstanding anything contained in
section 50, where the Charity Commissioner has reason to believe
that, in the interest of the proper management or administration of a
public trust, a scheme should be settled for it, or where two or more
persons having interest in a public trust make an application to him
in writing in the prescribed manner that, in the interest of the proper
management or administration of a public trust, a scheme should be
settled for it, the Charity Commissioner may, if, after giving the
trustees of such trust due opportunity to be heard, he is satisfied
that it is necessary or expedient so to do, frame a scheme for the
management or administration of such public trust.
(2) Where the Charity Commissioner is of opinion that in the interest
of the proper management or administration, two or more public
trusts may be amalgamated by framing a common scheme for the
same, he may, after —
(a) publishing a note in the Official Gazette [and also if necessary
in any newspaper which in the opinion of the Charity
Commissioner is best calculated to bring to the notice of
persons likely to be interested in the trust] with a wide
circulation in the region in which the trust is registered, and
(b) giving the trustees of such trusts and all other interested
persons due opportunity to be heard, frame a common scheme
for the same.

Page: 815

(3) the Charity Commissioner may, at any time, after hearing the
trustees, modify the scheme framed by him under sub-section (1) or
subsection (2).
(4) The scheme framed under sub-section (1) or sub-section (2) or
modified under sub-section (3) shall, subject to the decision of the
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competent Court under section 72, have effect as a scheme settled

or altered, as the case may be, under a decree of a Court under
section 50]”.
In my opinion the provisions of both the sections are independent and
are not overlapping. The power of the Charity Commissioner to permit
the petitioner to amend the scheme of the trust once exercised as far
back as 1994 then in that event the person who is aggrieved by the
said amendment of scheme can only prefer an appeal against the said
order and the Charity Commissioner in a collateral proceedings under
section 36 of the said Act cannot re-examine the validity or otherwise of
the order passed by other Commissioner of co-ordinate jurisdiction
under section 50-A of the said Act. Mr. Anturkar, the learned counsel
for some of the objectioners has fairly conceded that the said reasons
cannot be supported in law. Even otherwise also I am of the opinion
that the Charity Commissioner has in impugned order exceeded his
jurisdiction by going into the validity or otherwise of amended scheme.
The said amendment to the scheme under section 50 A was granted as
far back as in 1994 and by virtue of no further challenge thereto has
achieved a finality and thus the Charity Commissioner in section 36(1)
proceedings could not have examined the legality or validity of the
order passed under the provisions of section 50-A of the said Act. In
that light of the matter, the aforesaid finding of the Charity
Commissioner is without jurisdiction and cannot be sustained.
8. Now turning to the next contention which has been keenly
contested by all the parties, namely, need of the trust to dispose of the
said property, the learned counsel have inter alia contended that the
activity of the trust has become stagnant and there is no activity of the
trust which can be carried out without sale of the said property. It has
been contended now that large portion of the property is already under
litigation with the tenant who is in possession of the said property
namely, Baraskar family and who is claiming that the said land is in his
use, occupation and possession and he is entitled to protection under
the provisions of the Bombay Tenancy and Agricultural Lands Act. It
has also been contended that trust income is only Rs. 100/- per annum
though the trust has got a huge plot of land in a very prime location. It
has been contended that the trustees have decided to liquidate the said
portion of the property and after liquidating the said substantial portion
of the property receive the amount and utilise the said amount for
buying another immovable property as well as to apply income
therefrom to various philanthropic objects of the trust so as to provide
the benefits to their community rather than keeping the property
stagnant and do not provide any succour to the Muslim community
which was the main object of the said trust. The petitioners further
contended that in any event, this is the subjective decision of the
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trustees and the Charity Commissioner while determining the need of

the sale of the property cannot substitute his own subjective
satisfaction in place of the decision of the public trust. The role of the
Charity Commissioner under section 36(1) is the role of supervisory
nature and

Page: 816

not the role of substituting itself in place of the institution who has
found it best for the purpose of achieving the objects of the Trust to sell
and/or dispose of the property. Dr. Tulzapurkar, the learned counsel for
the petitioners has taken strong objections to the findings of the
Charity Commissioner that the trustees are seeking to sell the property
for their own personal enrichment and benefit and not for the purpose
of achieving the objects of the Trust. The learned counsel for the
petitioners contended that by no stretch of imagination can it be said
that meagre income of Rs. 100/- per annum which the Trust has been
getting is sufficient to further the objects and goals of the Trust and
that therefore, the property should not be sold. It has been contended
that the trustees being in charge of the trust property are the sole and
the only persons to determine the administration and management of
the trust and so long as it is lawful and within the four corners of law,
the Charity Commissioner cannot interfere with the functioning of the
trustee and take upon itself to determine how the trust should be run
and managed by the trustees. Mr. Anturkar, the learned counsel
appearing for Respondents Nos. 13, 17, 18 and 21 and other senior
counsel have contended that the property should not be sold. It has
been contended that the only object of the trust was to maintain the
masjid and by selling the property the said object is sought to be
defeated. It has been contended that for achievement of so-called
various other objects which are introduced by modification of the
scheme the trustees are seeking refuge thereunder to sell the said
property which is the only asset of the trust and the said contention of
the trustees is not bona fide. It has been contended that the trustees
have no need to dispose of the said property and even without
disposing of the said property the said masjid can be maintained. There
are certain other institutions i.e. Wakf and other Muslim communities
have also intervened in the matter and have contended that they are
willing to fund the petitioner trust to maintain its status and retain the
land and the Trust should not be permitted to sell the said land. It has
been contended by the said objectors that the trust property is required
to be kept for the purpose of benefit of the Muslims and should not be
disposed of to third parties. It has been thus contended that the
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property should not be permitted to be sold at all by the trustees.

9. I have considered the aforesaid contentions which are laid before

me. It is clear that the property is admittedly fetching no income. There
is no serious dispute on the contention of the petitioner that the income
generated from the trust property is so meagre that it cannot be
applied to achieve any of the objects and purpose of the trust. It is also
not in dispute that no substantial objects have been achieved. All the
objectors are those people who are in possession of the land and are
not willing to disturb their possession. One of the major tenant namely
Baraskar family who is the objector contends that the property should
not be sold because he does not wish his possession to be disturbed in
accordance with law. In my opinion some of the objectors are
interested in maintaining the property for their own objects rather than
the objects of the trust. The offer of the other institutions to maintain
the trust is also not bona fide because when I put to them whether
they are willing to buy over the property so that the property can be
maintained by them for the benefit of the Muslim community, none of
the said institutions was willing to do so. In my opinion, the object of
the trust cannot be brushed aside and it cannot be brought to a
grinding halt by some objectioners by

Page: 817

contending that the property is meant for masjid and the trustees only
role is to maintain the masjid and need not fulfil the other objects of
the said trust. In my opinion, if the trust has taken the decision that
they want to dispose of the property and enhance their objects by
fulfilling more and other objects of the trust then in that event it is
neither in the jurisdiction of the Charity Commissioner nor of this Court
to substitute the decision of the said trust and go behind it. I am also
of the further opinion that essentially it is the trustees who are
supposed to determine how best they would and they can deal with the
assets of the trust and that is for the benefits of the trust. The power
conferred under section 36(1) on the Charity Commissioner is to
ascertain whether the property is sold in the interest of the trust and
whether it is sold at the best price available to the trust. The Charity
Commissioner cannot go into the validity of the decision whether the
property should be rightly decided to be sold or not. In my opinion, the
finding of fact whether it is in the interest of the trust or not to sell the
property, the decision of the Charity Commissioner must be objective
and based on material placed before him. The Charity Commissioner
has only considered that it is not for a compelling need by holding that
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it seems that the trustees are interested in disposing of the property for
their own personal benefits because they are likely to get a share of the
said amount to themselves under the scheme which has been
sanctioned by the Charity Commissioner. I am of the opinion that these
are not the grounds on which the decision of the trustees to sell the
property can be interfered with and/or set aside by the Charity
Commissioner in exercise of jurisdiction under section 36(1) of the said
Act. Thus, I am of the opinion that the said finding of the Charity
Commissioner cannot be sustained and the same is accordingly
quashed and set aside.

10. The last contention advanced before me by the learned counsel

for all the parties is the price at which the said property is sought to be
sold. All the parties have placed before me that the property being
situated in the heart of the city, it is necessary that this Court must go
into the price at which the sale is sought to be effected. It has been
contended that the amount of Rs. 5 crores has been accepted by the
trustees though there were higher offers of 7,80,60,000/ -and Rs. 10
crores which was pursuant to the advertisements issued. The learned
counsel for the petitioners in Writ Petition No. 4151 of 2005 on the
other hand has contended that he is the only eligible offerer and who
has given the demand draft of 40% amount as per the terms and
conditions of the said advertisement. It has been contended that it is
now well settled that the offers which do not fulfil the terms and
conditions of the tender document are not eligible to be considered for
the purpose of sale of the said property. However, the learned counsel
for the petitioners in the aforesaid writ petition enhanced the offer
before me to a sum of Rs. 10 crores in pursuance to my disinclination
to accept the offer of Rs. 5 crores for the said property. I first thought
that I could refer the matter back to the Charity Commissioner but on
the second thoughts and in the light of the fact that various other
outsiders have intervened to increase the price of the said offer, I
thought it fit and proper to permit the various purchasers to give their
bids in the open Court. After substantial increase amongst the bidders I
have ultimately found that the highest bid is of the respondent No. 4
for the sum of Rs. 20 crores. Pursuant to the same I passed the order
on 12-12-2005 by which I have first

Page: 818

asked the respondent No. 4 to deposit a sum of Rs. 4.80 crores by

demand draft in this Court before his offer could be considered. The
respondent No. 4 has given the said demand drafts. The matter was
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thereafter placed on 16-12-2005 with direction to the respondent No. 4

to file an affidavit in respect of the payment of the balance price and
accepting a condition that in the event of nonpayment of the balance
price the amount of Rs. 1 crore would be forfeited. On 16-12-2005, the
respondent No. 4 made an application that the demand draft of Rs.
4.80 crores which had been deposited by him on 12-12-2005 be
permitted to be substituted with a fresh demand draft of Rs. 4.80
crores. Accordingly on 16-12-2005 I permitted the respondent No. 4 to
replace the said demand draft with fresh demand draft of Rs. 4.80
crores. He has also filed an affidavit dated 16-12-2005 accepting the
various terms and conditions such as the fact that the sale is on “as is
where is” basis. Secondly that he is accepting the price of Rs. 20 crores
and the balance amount will be deposited within the time stipulated
and mentioned in his affidavit dated 16-12-2005 and on failure to do so
a sum of Rs. 1 crore is to be forfeited. In the light of the aforesaid facts,
I am of the opinion that once the enhanced offer from Rs. 5 crores to
Rs. 20 crores which is in the interest of the trust should be accepted
and no useful purpose would be served by remanding the matter back
to the Charity Commissioner. In that light of the matter, I am of the
opinion that the trust is entitled to sell the property subject to two
following conditions, namely, that the amount received from the sale of
the said property will be utilised by the petitioners only for the purpose
of administration of the trust and towards achieving the objects of the
said trust as per the scheme which is in operation and secondly that
out of the said amount, the trust will buy another immovable property
as offered by them before the Charity Commissioner as well as before
me for the purpose of installation of masjid and for carrying out other
activities of the said trust. The permission is granted accordingly to the
petitioner trust to sell the said property for Rs. 20 crores to the
respondent No. 4 subject to the aforesaid two conditions. In an event if
the respondent No. 4 commits a default the said sum of Rs. 1 crore
would be forfeited and thereafter the petitioner trust will be at liberty to
sell the said property but the same will be by way of a public auction by
giving advertisement in the newspaper and not by any private treaty. I
make both the petitions absolute accordingly. However, there shall be
no order as to costs.

Order accordingly.
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