2006(2) ALL MR 121
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.S. MOHITE, J.

Shri. Motilal Girdharilal Sharma & Ors.Vs.Shri. Dattatray Bandu Jagtap & Ors.

Writ Petition No.3075 of 1991

29th November, 2005

Petitioner Counsel: Smt. KIRAN BHAGALIA,Shri. P. T. DIGHE
Respondent Counsel: Shri. A. A. KUMBHAKONI,Shri. SANJIV A. SAWANT,Shri. H. Y. KODE,Shri. N. P. DESHPANDE,Smt. V. MHAISPURKAR

Bombay Public Trusts Act (1950) , S.36(2) - Grant of permission under S.36(2) - Revocation of sanction on ground of fraud - Execution of sale deed - Subsequent revocation of permission is permissible only before execution of the sale deed and there could be no revocation of sanction after the trust was divested and interest was created in the property in favour of persons other than the trustees.

Section 36(2) of the BPT Act for revoking the sanction could not have been exercised by the Joint Charity Commissioner after the execution of the sale deed and its registration. [Para 7]

The authorities and Courts have powers to recall their orders if they find that their orders have been obtained by fraud, mis-representation or concealment of material facts. In relation to the BPT Act, however, the scheme of the enactment indicates that if Charity Commissioner finds that if the order of sanction issued under Section 36(1) of the Act has been obtained by fraud, mis-representation or by concealing material facts from him, he can proceed to revoke the sanction under Section 36(1), before the alienation is complete and when the property in question remains the property of the trust in question. If however, the alienation is complete and third party rights are created then the remedies open to him is either to file a suit for recovery of the possession of such property from the hands of the alienees. Once he concludes that his order of sanction under Section 36(1) was obtained by fraud or mis-representation or concealment of material facts, the law does not require him to waste time in taking proceedings for revoking his order of sanction. Such fraud, mis-representation or concealment of material facts while obtaining sanction obviously amount to misconduct on the part of the trust or trustees and it is open to the Charity Commissioner to immediately file proceedings for the restoration of such property by approaching the Court of competent jurisdiction. In the alternative it is also open for the Charity Commissioner to grant permission to persons having interest in the public trust if they intend to file any suit of the nature contemplated by section 50 of the said Act and apply to the Charity Commissioner for grant of permission under Section 51 of the BPT Act. The remedies provided under Sections 50, 51 and 52-A are not dependent upon the revocation of sanction accorded by the Charity Commissioner under Section 36(1) of the said Act as these are independent remedies. AIR 1991 Bombay 220, 1994 BLR 714 and 1969 Mh.L.J. 269 - Referred to. [Para 14]

Cases Cited:
Shri Mahadeo Deosthan Vs. Jt. Charity Commissioner, 1969 Mh.L.J. 269 [Para 3,4,5]
Fatmabai Vs. State of Maharashtra, AIR 1991 Bombay 220 [Para 3,5]
Dr. Sam Sarosh Bhacca Vs. P. V. Kakade, Jt. Charity Commissioner, 1994 BLR 714 [Para 3,6,14]
Hamda Ammal Vs. Avadiappa Pathar, (1991)1 SCC 715 [Para 8]
Gurbax Singh Vs. Kartar Singh, 2002(2) ALL MR 272 (S.C.)=(2002)2 SCC 611 [Para 8]
Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., AIR 1996 SC 2592 [Para 11]
Gowrishankar Vs. Joshi Amba Shankar Family Trust, 1996 AIR SCW 2684 [Para 12]
S. P. Chengaiyaraya Naidu Vs. Jagannath, (1994)1 SCC 1 [Para 12]
United India Insurance Co. Ltd. Vs. Rajendra Singh, AIR 2000 SC 1165 [Para 13]


JUDGMENT

JUDGMENT:- By this petition, the petitioners seek to quash and set aside a Judgment and order passed by the Joint Charity Commissioner, Pune region, Pune on 10-5-1991 on an application being Application No.41/1990 filed by respondent Nos.1 & 2 under Section 36(2) of the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the said Act"). The petition further challenges another order dated 10-5-1991, passed by the Joint Charity Commissioner, Pune region, Pune on an application being Application No.11/90 filed under Section 41(E) of the said Act, by which, for the reasons mentioned in the Judgment and order passed on Application No.41/1991, the petitioner Nos.1 to 3 were permanently restrained from dealing with the property in question.

2. A brief relevant facts of the case were as under :-

(a) On 10-5-1956 one Mr. Wamanrao Laxmanrao Dahanukar gifted four plots of land bearing CTS Nos.563, 564, 568 and 569 situated in Dahanukar colony at Village-Kothrud, Dist.-Pune to "Bharat Dalit Sevasangh" which was the public trust registered under the provisions of the said Act. The gift was made by registered gift deed which was conditional in nature and the said deed contained a clause of reversion if the condition of the gift was not complied with.

(b) In the year 1981, respondent No.6-Trust decided to sell the lands gifted to them and applied to the Charity Commissioner for permission to sell the lands to one Mr. Gupta. In 1983 Mr. Wamanrao Laxmanrao Dahanukar expired and his heirs raised an objection to the proposed sale of lands to Mr. Gupta and claimed reversion of the lands for breach of a condition in the gift deed. This proposed sale in favour of Mr. Gupta could not be completed for such and other diverse reasons. By early 1985, respondent No.6-Trust was in debts. On 3-3-1985 in the meeting of the trustees of respondent No.6 it was resolved to sell the land in question and the proposed sale was to be effected after advertisement. The Chairman of the trust Mr. Keshav Rajbhog was authorised to do all necessary acts to effect the sale.

(c) On 10-4-1985 the Chairman of respondent No.6-Trust Mr. Keshav Rajbhoj entered into an agreement for sale with the petitioner-society and agreed to sell the said land at the rate of Rs.30/- per square foot. This transaction was to be completed after obtaining the sanction of the Charity Commissioner under Section 36(1)A of the said Act. An amount of Rs.40,000/- was also taken by cheque on behalf of respondent No.6-Trust and the fact of the taking such an amount by cheque was also mentioned in the agreement for sale.

(d) After entering into such an agreement for sale, on 20-4-1985 an advertisement was given by the respondent No.6-Trust in "Bombay Sakal" inviting offers for purchase of the said land. In response to this advertisement, respondent No.6-Trust received three quotations of which the quotation of the petitioners at the rate of Rs.30/- per square feet was the highest.

(e) These offers were considered by respondent No.6-Trust in the meeting of the trustees held on 28-4-1985 and the trustees unanimously resolved that the quotation of the petitioners should be accepted. The minutes of this meeting also recorded that petitioner Nos.1, 2 & 3 had agreed to obtain the no objection certificate from Mr. Dahanukar.

(f) According to the petitioners due to efforts made by them, they could secure an affidavit dated 15-5-1985 affirmed by a Constituted attorney of 4 members of the Dahanukar family withdrawing their objections for sale of the lands as communicated to the Charity Commissioner by their earlier letter dated 4-1-1993. On the same day i.e. on 15-5-1985, the said Constituted attorney representing 4 members of the Dahanukar family addressed a separate letter to the Charity Commissioner re-stating that the said members of Dahanukar family were withdrawing their objections to the sale raised in the letter dated 4-1-1983 and further stating that they had no objection to the sale of the said lands.

(g) On 11-6-1985, the President of respondent No.6-trust filed an application dated 7-6-1985 in the office of the Charity Commissioner at Pune seeking a sanction to the proposed sale of the lands to the petitioners. The letter mentioned that respondent No.6-Trust had resolved to sell the lands in order to repay the loan due to Bank of Maharashtra and to execute certain planned projects. The society had resolved to give an advertisement in newspaper and to disclose condition No.8 in the gift deed to the persons who make offers and such persons would also be asked to obtain a no objection certificate from the Dahanukars. That in pursuance of the advertisement, three quotations had been received and the quotation given by the petitioners was found to be the highest. It was disclosed that the sale price was to be Rs.8,48,490/- of which Rs.2.5 lakhs was to be utilised for repayment of the bank loan and the rest of the amount was to be utilised for construction at Hingane. It appears that the application did not disclose that an agreement for sale had already been executed by the President of respondent No.6-Trust with then proposed petitioner No.4-Society. The application also did not disclose that an amount of Rs.40,000/- has been accepted by then proposed petitioner No.4-Society. A reading of the application also indicates that there is no mention of the affidavit dated 15-5-1985 affirmed by the Constituted attorney on behalf of 4 members of Dahanukars family or of the letter dated 15-5-1985 signed by the Constituted attorney on behalf of the said members of Dahanukars family, addressed to the Charity Commissioner at Pune.

(h) On 25-6-1985, the Joint Charity Commissioner, Pune region, Pune was pleased to pass an order according sanction to respondent No.6-Trust to sell the land for an amount of Rs.8,48,500/- to Popular Star Society on the terms and conditions mentioned in the said order. The terms and conditions so mentioned were that the purchaser would pay the entire consideration by cheque in the name of the trust and would bear the entire expenses of registration and other incidental expenses if any. Another condition imposed in the order is that the amount of sale proceeds should be held as Trust Corpus and kept intact forever in the form of investments in long term fixed deposits with any Scheduled Bank or Co-operative bank approved by the State Government under Section 36 of the Bombay Public Trusts Act, 1950, and only the interest thereon shall be spent on the objects of the trust and the trust corpus would not be spent or utilised on the objects of the trust without the prior permission of the Joint Charity Commissioner, Pune region, Pune. It was also directed that the execution of the sale should be completed within 6 months from the date of the order or within such further time that may be granted by the Joint Charity Commissioner if deemed fit.

(i) That on 16-7-1985 the four heirs of the deceased Wamanrao Dahanukar executed a release deed. This release deed recorded that the executants had received an amount of Rs.50,000/- and had agreed to waive condition No.8 in the gift deed which laid down a restriction on the sale of the land. According to the petitioners this release deed was executed by the heirs of deceased Dahanukar on their request and on their efforts and endorsement on this release deed indicated that the payments had been made to heirs of Mr. Dahanukar on behalf of respondent No.6-Trust.

(j) On 5-10-1985 respondent No.6-Trust applied for exemption under Section 20 of the Urban Land Ceiling Act for transfer of the land to petitioner No.4.

(k) As the necessary permission for completion of the sale transaction under ULC Act has not been received, on an application made by respondent No.6-Trust, on 30-12-1985 the Joint Charity Commissioner, Pune region, Pune, granted a modification to the order of sanction and directed that the sale deed should be executed and completed by 30-6-1986.

(l) On 26-6-1986 the Joint Charity Commissioner, Pune region, Pune passed another order modifying his earlier orders directing the sale should be executed and complied within 6 months of the receipt of requisite permission of competent authority under Bombay (?) Land Ceiling Act and the Pune Municipal Corporation Act. By a further resolution in the meeting of the Respondent No.6-Trust held on 16-10-1987 it was observed that it had become difficult for the trust to pursue the applications seeking permissions for completion of the sale and it was thus resolved that a power of attorney would be given to petitioner Nos.1 and 3 for pursuing the said applications and accordingly, on 16-10-1987 such an irrevocable power of attorney came to be executed by and on behalf of respondent No.6-Trust.

(m) On 27-10-1988 the State Government accorded exemption under Section 20 of the ULC Act for transfer of the said land to the petitioners in terms of the said order. On 21-11-1988 the Pune Municipal Corporation approved the plan for construction on the said land and issued a commencement certificate.

(n) On 1-9-1989, petitioner No.4 through its Secretary-petitioner No.3 preferred an application to the Joint Charity Commissioner Pune. The application was styled as one under Section 41-A of the BPT Act. It was mentioned in this application that the respondent No.6 had executed an agreement of sale in favour of petitioner No.4 and that petitioner No.4 had paid Rs.40,000/- as earnest money. That petitioner No.4 had also paid Rs.50,000/- to Indumati Dahanukar and Avinash Dahanukar for removing their objection raised in their letters dated 4-1-1983 and 10-6-1983 relating to the sale of the said land. That petitioner No.4 had also paid an amount of Rs.29,547.93/- for stay of the auction of the land contemplated by the Tahshildar Karyalaya. It was prayed in this application that respondent No.6-Trust should be directed to complete the transaction by accepting the remaining amount and should be directed to deposit such amount in bank. The say of respondent No.6 on this application is not in this compilation. The Charity Commissioner by his order dated 8-12-1989 directed the parties to complete the sale transaction within 3 months subject to prevailing relevant legal provisions applicable to the property and the transaction. The Joint Charity Commissioner further directed Respondent No.6-Trust to give credit of Rs.1,19,547.93/- to the petitioner stating that the said amount was already received and that the transaction should be completed by payment of the remaining amount.

(o) In pursuance of the order passed by the Joint Charity Commissioner on 14-1-1990 the trustees of respondent No.6-Trust resolved to execute a registered conveyance and accordingly, the sale deed of the land was executed on 15-2-1990 in favour of the petitioner No.4-Society.

(p) On 28-2-1990, the sale deed dated 15-2-1990 was lodged for registration before the Sub-Registrar Haveli No.2.

(q) On 20-5-1990 the petitioners published a notice of the intended purchase in "Daily Sakal". An objection to the sale was published in "Dainik Prabhat" on behalf of the trust and its trustees. This objection was issued through an Advocate Eknath Kamble. It appears that objection was merely technical in nature which can be seen from a further letter dated 2-7-1990 addressed by the President of respondent No.6 to respondent No.1 stating that the sale had indeed been effected in favour of "Popular Star Society" and not to "Popular Housing Society Ltd." or "Popular Star Association".

(r) On 22-8-1990 respondent Nos.1 & 2 filed an application being Application No.3/90 under Section 36(2) of the BPT Act seeking revocation of the sanction order dated 25-6-1985 passed in Application No.100/85. Another Application No.11/90 purporting to be under Section 41-E of the said Act was also filed by respondent Nos.1 & 2 and the same sought an injunction against the completion of the registration of the sale deed and an order restraining the operation of an irrevocable power of attorney executed by the President of respondent No.6-Trust. A third application came to be filed under Section 41-A of the said Act and the same is still not yet disposed of.

(s) During the pendency of the aforesaid applications, on 28-8-1990 the sale deed dated 15-2-1990 came to be registered.

(t) On 10-5-1991 the Joint Charity Commissioner, Pune region, Pune was pleased to allow application No.41/90. He revoked the sanction to the sale of lands granted in application No.100/85 and directed the trustees to take necessary further legal steps for recovery of the property and return of the amount as contemplated under Section 36(2) and (4) of Bombay Public Trusts Act, 1950. It is an admitted position that the said order was passed on the footing that the sale deed dated 15-2-1990 had not been registered. A plain reading of the order indicates that the order was passed without the knowledge that the sale deed dated 15-2-1990 had been registered on 28-8-1990. On the facts of the case, the Additional Charity Commissioner concluded that the permission to sell the land has been obtained by fraud, mis-representation and concealment of facts. On the same date i.e. on 10-5-1991, the Joint Charity Commissioner also disposed of Criminal Application No.11/90 and directed that for the reasons mentioned in the Judgment and order passed in Application No.41/90, the petitioners were permanently restrained from dealing with the property in question in any manner.

(u) Aggrieved by the aforesaid 2 orders, the petitioners filed this petition in this Court.

3. On behalf of the petitioners the first objection that was raised was that the Joint Charity Commissioner, Pune region, Pune could not have exercised powers under Section 36(2) of the BPT Act as the sale deed dated 15-2-1990 had already been registered on 28-8-1990 i.e. prior to the order dated 10-5-1991 revoking the sanction granted on 25-6-1985. It was contended that the legal question as to whether revocation of sanction granted under Section 36(1) was permissible after execution of the sale deed pursuant to grant of sanction was no longer res-integra and was decided by several judgments. Reliance was placed on a Division Bench Judgment of this Court in the case of Shri Mahadeo Deosthan Vs. Jt. Charity Commissioner, reported in 1969 Mh.L.J. 269. It was further pointed out that the ratio laid down by the Division Bench of this Court was followed by a Single Judge in the case of Fatmabai Vs. State of Maharashtra reported in AIR 1991 Bombay 220 and yet again by another Division Bench of this Court in the case of Dr. Sam Sarosh Bhacca & Ors. Vs. P. V. Kakade, Jt. Charity Commissioner & Ors. reported in 1994 BLR 714.

4. In the case of Mahadeo Deosthan (supra) sanction to sell the property to the public trust was granted on 11-5-1984 and in pursuance of the said sanction, a conveyance had been executed on 11-4-1994. A trustee of the trust subsequently filed an application under Section 36(2) of the Act for revoking the sanction already granted and in pursuance of which a sale deed had also been executed on 26-7-1989. Upholding the contention of the trust that the sanction could not be revoked after the sale deed was executed, in paragraph 10 of the Judgment, the Division Bench observed as under :-

"That the sanction should not have spent itself, at the time of its revocation, is evident from the provision made in Section 36(3) which provides that no sanction shall be revoked unless the person, in whose favour such sanction has been made, has been given a reasonable opportunity to show cause why the sanction should not be revoked. This person is necessarily a person who obtained sanction and in whose favour the trust property vests. It is he who has to be granted a reasonable opportunity before revoking the sanction and taking appropriate action. The power of revocation has to be exercised before the sanction has been acted upon by that person. The reason is not far to seek. In the first place, if pursuant to the sanction, a sale deed is executed, the property would be divested of the character as a trust property and interest would be created in the purchaser who may not get an opportunity to show why the sanction should not be revoked. A property may change hands several times and if a sanction granted in respect of a trust property could be revoked at any time even after successive sale deeds and even after it changes its character as the trust property, a chaotic condition is likely to be created. A sanction, therefore, has to be granted to alienate the trust property and has to be revoked only for the trust property i.e. while the property retains the character as the trust property and not after the public trust is divested of that property and interest in the said property is created in persons other than trustees. Rule of natural justice otherwise would be followed only in its breach. Once the interest of third party is created, the purpose of the sanction is fulfilled and the Joint Charity Commissioner, thereafter, cannot himself declare the sale deed as void or not in a position to set aside the sale deed. Revoking of sanction granted long back therefore, would be of no avail, after its divestation. The power of revocation therefore, in the interest of harmony, has to be exercised only when the sanction remains alive and does not get itself merged in the sale deed. We, therefore, find that the power granted to the Joint Charity Commissioner to revoke a sanction granted under section 36(1) of the Act, after the sanction merges itself into a sale deed and the property loses the character as that of a trust property. Such a power of revocation has to be exercised only qua the property of the trust and not after the sale deed, for the simple reason that when a sale deed is executed, the trust is then divested of that property and interest of third parties intervene. The property no longer then remains a trust property and the Joint Charity Commissioner loses jurisdiction over that property. The petition has, therefore, to be allowed on this ground itself."

5. In the case of Fatmabai Vs. State of Maharashtra (supra) a sanction for sale of the trust property was given by the Charity Commissioner on 17-3-1982. In pursuance thereof a sale deed was executed on 15-6-1982. The application for revocation was made thereafter in June, 1983 and the conveyance was registered during the pendency of this application on 6-7-1983. The sequence of events of this case was similar to the case which is before me. A single Judge relied upon the ratio laid down in the case of Mahadeo Devasthan (supra) and concluded that the sanction granted under Section 36(1) could not be revoked after execution of the sale deed was effected.

6. In the case of Dr. Bhacca (supra) a sanction for sale of the property was given by the Charity Commissioner. The sale was thereafter effected on 12-4-1988. It is not clear from the Judgment as to when the application for revocation came to be filed or when the sale conveyance was registered. The Division Bench in the said case also concluded that subsequent revocation was permissible only before execution of the sale deed and there could be no revocation of sanction after the trust was divested and interest was created in the property in favour of persons other than the trustees.

7. From the aforesaid three judgments it is abundantly clear that the permission under Section 36(2) of the BPT Act for revoking the sanction could not have been exercised by the Joint Charity Commissioner after the execution of the sale deed and its registration on 28-8-1990. The order of the Charity Commissioner in exercise of powers under Section 36(2) on 10-5-1991 must therefore, be held to be an order without jurisdiction.

8. At this juncture, I must refer to the arguments made by the Advocate for the petitioners that the date of registration of the document was also not relevant as the powers under Section 36(2) could not have been exercised in this case after 15-2-1990 i.e. the date of actual execution of the sale deed. In this regard the Advocate for the petitioners brought to my notice the provisions of Section 47 of the Registration Act, 1908 which provides that "A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration". Advocate for the petitioners also brought to my notice 2 judgments of the Apex Court, the first in the case of Hamda Ammal Vs. Avadiappa Pathar & Ors. reported in (1991)1 SCC 715, in which the Apex Court while interpreting section 47 of the Registration Act held that a document after its registration, relates back to date of its execution. Another judgment of the Apex Court in the case of Gurbax Singh Vs. Kartar Singh & Ors., reported in (2002)2 SCC 611 : [2002(2) ALL MR 272 (S.C.)] was also relied upon as in the said case the Apex Court held that the effect of a document would depend on the date of execution and not the date of registration. In the present case even the registration of document was prior to the exercise of powers under Section 36(2) and I do not think it necessary to go into this aspect of the matter.

9. By way of reply to the contentions raised by the Advocate for the petitioners, the Advocate for the respondents argued that the Joint Charity Commissioner had never been informed by the petitioners that the sale deed has been registered. This fact has been concealed by the petitioners and therefore, no fault can be found in the order of revocation passed by the Joint Charity Commissioner. It appears that even while filing this petition, the petitioners made an averment that the said sale deed had not been registered. It does appear that the petitioners were not aware about the registration because the disclosure of such registration would have benefited the petitioners. Be that as it may, instead of remanding the matter back to the Charity Commissioner on such technical ground, I allowed the amendment directing that a copy of the original sale deed should be placed on record and amendment was accordingly carried out. Inspection of the original sale deed was also given to the Advocate for respondent Nos.1 and 2. A reply came to be filed to the amendment in which there is no specific denial of the fact that the sale deed was registered on 28-8-1990. the objection raised on behalf of respondent Nos.1 and 2 is only on peripheral areas which are not germane to decide the issue that has been raised by the petitioners. Since I have heard both sides on the issue involved, after giving full opportunity, it would not be proper to remand the matter back on technical ground. Suffice it to say that no blame should be placed on the shoulders of the Joint Charity Commissioner for deciding the matter on the point under debate as he was kept oblivious of the fact that the sale deed has already been registered.

10. The other point argued by the Advocate on behalf of the respondent Nos.1 & 2 was that once the practice of fraud was established, all authorities constitutional, statutory or administrative had inherent powers to recall their orders. That fraud and justice could never dwell together. That any order obtained by fraud was to be treated as a nullity by every Court and such an order would be non est in the eyes of law.

11. In support of such contentions, Advocate for respondent Nos.1 & 2 relied upon the Judgment of the Apex Court in the case of Indian Bank Vs. M/s. Satyam Fibres (India) Pvt. Ltd., reported in AIR 1996 SC 2592 in which it was contended before the Apex Court that a Judgment has been obtained by practising fraud and on the basis of forged deed. The Apex Court held that this fact could not have been legally ignored by the Commissioner and authorities be they constitutional, statutory or administrative, possessed a power to recall their Judgments or orders if they were obtained by fraud as fraud and justice never dwell together.

12. Reliance was then placed by the Advocate for respondent Nos.1 and 2 on the Judgment of the Apex Court in the case of Gowrishankar Vs. Joshi Amba Shankar Family Trust reported in 1996 AIR SCW 2684. In this case a permission to sell the property was obtained by the trustees by playing a fraud upon the Court because a higher offer made by the tenants to purchase the trust property was not disclosed to the Court and on the contrary it was pleaded by the trustees that in spite of efforts made by them they could not get a higher offer than the one made by the purchaser. In such circumstances, the Apex Court held that the sale was liable to be set aside on the ground that the trustees had played a fraud on the Court. While deciding the case the Apex Court placed reliance upon the observation made by the Apex Court in the case of S. P. Chengaiyaraya Naidu Vs. Jagannath, reported in (1994)1 SCC 1, wherein it was observed that it was a settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in law and had to be treated as a nullity by every Court, whether superior or inferior and it could be challenged in any Court even in collateral proceedings.

13. The Advocate for respondent Nos.1 & 2 finally relied upon a Judgment of the Apex Court in the case of United India Insurance Co. Ltd. Vs. Rajendra Singh, reported in AIR 2000 SC 1165, in which the Apex Court held that no Court or tribunal would be regarded as powerless to recall its own order if it was convinced that the order was wangled through fraud or mis-representation of such a dimension as would affect the very basis of the claim.

14. There is no doubt that authorities and Courts have powers to recall their orders if they find that their orders have been obtained by fraud, mis-representation or concealment of material facts. In relation to the BPT Act, however, the scheme of the enactment indicates that if Charity Commissioner finds that if the order of sanction issued under Section 36(1) of the Act has been obtained by fraud, mis-representation or by concealing material facts from him, he can proceed to revoke the sanction under Section 36(1), before the alienation is complete and when the property in question remains the property of the trust in question. If however, the alienation is complete and third party rights are created then the remedies open to him is either to file a suit for recovery of the possession of such property from the hands of the alienees. Once he concludes that his order of sanction under Section 36(1) was obtained by fraud or mis-representation or concealment of material facts, the law does not require him to waste time in taking proceedings for revoking his order of sanction. Such fraud, mis-representation or concealment of material facts while obtaining sanction obviously amount to misconduct on the part of the trust or trustees and it is open to the Charity Commissioner to immediately file proceedings for the restoration of such property by approaching the Court of competent jurisdiction. In the alternative it is also open for the Charity Commissioner to grant permission to persons having interest in the public trust if they intend to file any suit of the nature contemplated by section 50 of the said Act and apply to the Charity Commissioner for grant of permission under Section 51 of the BPT Act. In this connection the observation of the Division Bench of this Court in the case of Dr. Bhacca (supra) to the effect that the remedies provided under Sections 50, 51 and 52-A are not dependent upon the revocation of sanction accorded by the Charity Commissioner under Section 36(1) of the said Act as these are independent remedies, is pertinent.

15. In so far as the order passed under Section 41-E of the BPT Act on 10-5-1991 in application No.11/90, it is clear that the remedy under Section 41-E of the BPT Act is a power to act for protection of the trust and this power can also be exercised only in relation to a trust property. This order was also passed by the Charity Commissioner without knowledge of the material fact that the alienation has been completed by registration of the sale deed on 28-8-1990 i.e. prior to the passing of his order. In cases where trust property has been alienated, such relief can only be granted either by way of ad interim, interim or final orders by the Court in any suit which may be filed under Sections 50 & 51 of the BPT Act. In this context, it is important to note that under Section 52-A there is no limitation in the filing of a suit against an assignee for valuable consideration for immovable property of the public trust.

16. All the aforesaid discussion indicates that the Charity Commissioner has adequate powers under Sections 50 & 51 of the BPT Act to undo any damage to the interests of a public trust by mis-using the provisions of the Act. In the present case however, he has exercised his powers under sections 36(2) and 41-E after the trust had alienated its property.

17. The Advocate for respondent Nos.1 & 2 brought to my notice that the order under Section 41-E was appealable. No doubt an appeal ought to have been filed in the year 1991 against the order passed under Section 41-E but as the said order has been passed on the basis of the Judgment and order passed in an application under Section 36(2), at this stage i.e. after a lapse of 14 years and specially when this petition was pending in this Court in the meanwhile I am not inclined to relegate the petitioners to a position of filing an appeal particularly when I have held that the provisions of section 41-E cannot be used to protect a property which has already been alienated and which no longer remains a "trust property".

18. As regards the allegation of fraud, mis-representation and concealment of material facts, I make no observation as the observation of the Charity Commissioner in that regard have been made in proceedings under Section 36(2) and adopted in proceedings under Section 41-E both of which I have held to be without jurisdiction. I however, make it clear that this Judgment and order will not preclude any one from taking competent proceedings in accordance with law.

19. In the circumstances, rule is made absolute in terms of prayer clause (a). In the circumstances of the case, there shall be no order as to costs.

20. On the application made by Advocate for respondent Nos.1 and 2, the ad interim relief which has already been granted by this Court on 29-8-1991 and which has been in operation for a period of about 14 years, is continued for further period of 2 weeks.

Petition allowed.