PARSI ZOROASTRIAN ANJUMAN, MHOW versus THE SUB DIVISIONAL OFFICER/THE REGISTRAR OF PUBLIC TRUSTS & ANR. on 28 January 2022

1. Leave granted. This appeal by special leave is directed againstthe judgment of a Division Bench of the Madhya Pradesh High Court atIndore, dismissing an appeal[1]. The judgment confirmed an order of thelearned Single Judge, who in turn, had affirmed the rejection of theapplication filed by the appellant, Parsi Zoroastrian Anjuman, Mhow(hereafter referred to as “the trust”), seeking sanction for the disposalof its trust property.

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2. The appellant was registered as a public trust on 29.01.1973under the provisions of the Madhya Pradesh Public Trusts Act, 1951(hereafter “the Act”). The trust’s membership was made up exclusivelyof members of the Parsi community at Mhow. On 15.05.2011, at thebehest of the trust and on its application, a revisited final scheme inrelation to the trust was approved by the District Judge, Mhow[2]. Therevisited scheme contained the following clause:

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“The Managing Committee members, after getting from amajority of the General Body Members and a specific 1 Dated 29.09.2018 in W.A. 1325/2018.

2 Order dated 15.05.2011 in Case No.3/2010

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Aconcurrence of the FPZAI members, shall be entitled toliquidate the assets and immovable properties of the Anjumanwhich have taken vacant and utilize the proceeds of the objectsof the Trust, including the upkeep of the consecrated holyfire from the Mhow Agiari and the maintenance of a priest tolook after it as also for the benefit of the Parsi and IraniBZoroastrian community, always giving preferences to thoseconnected with Mhow and after ensuring that event he lastZoroastrian left in Mhow is duly cared for, if poor or needy.”

3. In a meeting held on 14.12.2014, the members of the trust’sManaging Committee unanimously agreed that five of its immovableCproperties should be sold. This decision was consented to by the individualmembers of the Managing Committee which included representativesof the Parsi Zoroastrian Anjuman community, i.e., the apex body of theParsi community in the country. As a follow-up, the proposal was placedbefore a general meeting of all members of the trust on 19.01.2015 inDwhich a majority of members supported the Managing Committee’sdecision to sell the five items of property. The trust had circulated whatwas termed as a “Vision Document” which listed the existing income,expenditure, and the likely projection in the event the properties weresold and the proposed use for which the funds received from suchtransaction were to be utilized.E

4. As was required of it, the trust applied under Section 14 of theAct to the Registrar of Public Trusts for previous sanction for the sale ofthe five said properties. The application languished before the Registrar,for a while. Resultantly, the trust approached the M.P. High Court byfiling a writ petition[3]. This petition was disposed of by an order[4] requiringFthe Registrar to take a decision preferably within 45 days. The trustapproached the Registrar on 17.07.2017 with a request to dispose of itspending application; it filed relevant documents and a more detailedapplication in which it was contended inter alia that:

“7(c) The sale proceeds generated through the proposed saleGwill be invested only in scheme approved and permissible forcharitable trusts. Such investment will generate sufficientincome for achieving the objectives of the applicant Trust by 3 W.P. 2903/2017.H4 Dated 10.07.2017.

assisting those members who are in need of medical,educational and other financial assistance.”

5. The trust contends that the copy of the Vision Document (whichwas circulated to its members and formed the basis of majority opinionconfirming the sale) was also filed with the Registrar. The Registrarnotified Ms. Pervin Rumi Jehangir, the second respondent (hereafterreferred to as “Ms. Jehangir”), asking her to respond to the trust’sapplication seeking previous sanction - apparently in view of her previousobjection to the proposal. Accordingly, detailed objections were filed byMs. Jehangir which was provided to the trust. The trust in turn filed itswritten submissions. It was pointed out that the details of the status ofthe properties proposed to be sold were given - most of them were in adilapidated condition or required extensive repairs. The trust also pointedout that the properties would be sold after due and proper valuation andwould be under the supervision of the Court. It was furthermore urgedby the trust that the tenants occupying the premises were paying nominalrent and that its expenditure had increased to 26 lakhs per annum. Itsincome was not adequate to meet the continuously mounting expenditure.

6. The Registrar, by her order dated 10.11.2017, rejected the trust’sapplication for previous sanction under Section 14(1), and noticed thatthe trust had previously sold other properties. The Registrar reasoned asfollows:

“……if property is continued to be sold for meeting expensesof the Trust, then the entire property would be exhaustive inthat condition. No such plan has been submitted on behalf ofthe Trust from the Trust property remains secured and expensesof the Trust are also met. Information has also been given bythe Trust that Trust expenses are about Rs.26 lacs per annum.In my opinion, it is necessary and proper to take expertopinion as to what measures can be taken to limit the expensesof the Trust and augment income of the Trust. For this purpose,services of some chartered accountant may also be taken.Trust property has become dilapidated. In this regard, no solidevidence has been produced either. For maintenance andsecurity of the property also, it is necessary to take appropriatemeasures.

Trust properties are located at extremely important places ofMhow Town which have lot of value. It is necessary to takemeasures for safety of the property while properly running AB

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Aactivities of the Trust. In my opinion, there would be adverseeffect from permission to sell the property on interest of theTrust, Therefore, the application for sale of property by theTrust is rejected after consideration……..”

7. The trust approached the Indore Bench of the M.P. High CourtBalleging that the rejection of its application for previous sanction wasunjustified. It contended that the sale was mooted to augment its incomeand that it was preceded by a proper Vision Document which outlinedthe income likely to be garnered by the sale and the expenditure to beborne by the trust. The trust highlighted that the Vision Document clearlyshowed that the interest accruing from the investment (made with theCexpected proceeds of the sale) would be used for the purpose of charityand the expenses of the trust. A copy of the Vision Document was alsofiled along with the writ petition.

8. Ms. Jehangir was arrayed as the second respondent; sheresisted the trust’s petition. The learned Single Judge of the High Court,Dby his order[5] noticed the judgment of this Court reported as Cyrus RustomPatel v. Charity Commissioner[6] and upheld the Registrar’s orderrejecting the application under Section 14. The learned Single Judgereasoned that the record disclosed that the property sought to be soldwere all old and that they had been donated by the members of the ParsiEcommunity. The learned Single Judge observed that:

“in all fairness, the Trust should have made all possibleendeavor to repair the buildings which are Trust propertiesand to ensure that the rich cultural heritage of the Parsiswhich is still alive in the township of Mhow, is not destroyedFby selling it to builders and to other persons at throwawayprice and therefore, this Court is of the considered opinionthat the Registrar, Public Trust was certainly justified inrejecting the application filed by the Trust. No case forinterference is made out in the matter. The present Writ Petitionis dismissed.”G

The trust appealed, unavailingly, to the Division Bench.

5 Dated 18.07.2018 in W.P. 23231/2017.H6 (2018) 14 SCC 761.

Contentions of parties

9. It was argued on behalf of the trust by Mr. A.K. Chitale, learnedsenior counsel, that the High Court failed to consider that the power ofthe Registrar to accept or reject the application was limited. Learnedcounsel highlighted that unlike Section 36 of the Bombay Public TrustsAct, which conferred intrusive and pervasive supervisory powers uponthe Registrar in regard to applications seeking approval for transfer oralienation of immovable property of public trusts, Section 14 of the Act,in the present instance, conferred extremely limited powers.

10. Mr. Chitale, submitted that Section 14(1) subordinates andconditions the grant or withholding of approval to “the directions in theinterest of Trust” or any direction given under “this or any other lawby any Court”. Necessarily, this meant that the grant or withholding ofapproval had to relate to stipulations in the Trust Deed or instrumentscreating it or had to be embodied in any enacted law, and in accordancewith directions by a Court. In the absence of any restrictive condition orexternal limiting factors located in a statute, the Registrar could not havevalidly withheld the sanction. Elaborating further on this, it was submittedthat although Section 14(2) confers a slightly larger power of withholdingsanction for any transaction, it is not unguided and should be based on anassessment of the materials (placed before the Registrar) that thetransfer is prejudicial to its interest.

11. Learned senior counsel emphasised that unlike Section 14, theBombay Trusts Act, by Section 36 grants independent powers to theCharity Commissioner to impose conditions which were thoughtappropriate “regard being had to the interest, benefit or protectionof the Trust”. Learned senior counsel submitted that the materials placedon record showed that firstly in the past too, properties had been sold toaugment the trust’s income generating capacity. Secondly, of the 15immovable properties owned by the trust, only 5 were proposed to besold. The trust’s application was clearly based upon a carefully thought-out plan whereby the likely consideration expected to be received wasproposed to be invested in securities. This would have resulted in incomeof 83 lakhs – considerably more than the existing annual income levelof 20 lakhs (as was the case when the application was made). TheVision Document showed how this larger income was to be used forincreased spending on charity, education, aid to senior citizens,maintenance of the trust’s buildings and increasing the salaries of its A

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Aemployees as also the increased expenditure towards fulfilling religiousobligations created in the trust deed. Furthermore, the proposal by thetrust and the resolution of the general meeting clearly was to have theproperties duly valued and sell them to the highest bidder by invitingsealed tenders. It was argued that this process was transparent andcould not have given rise to any apprehension that the sale was not forBthe benefit, let alone that it was prejudicial to the trust’s interests.

12. It was contended that the second respondent’s objection withrespect to the proposed sale being at the behest of a few members ofthe Managing Committee was baseless. Learned counsel sought tohighlight that the second respondent’s father was the President of theCtrust and during his tenure, sale of immovable properties had been carriedout on previous occasions. Therefore, it could not be said that the trusthad taken an unusual or novel step, and it could not be accused of fritteringaway its properties.

13. Mr. Huzefa Ahmadi, learned senior counsel appearing for theDsecond respondent urged this court not to interfere with the findingsrecorded by the High Court. It was urged firstly that the Division Benchaffirmed the learned Single Judge’s reasoning which is unexceptionable.Mr. Ahmadi urged that this court rarely interferes with concurrent findingsin the exercise of its discretionary jurisdiction under Article 136. HeEhighlighted that though leave was granted, nevertheless, the Court’sresidual discretion in confirming the concurring opinion has beenrecognized on previous occasions.

14. Mr. Ahmadi next urged that the Registrar’s determination thatthe trust’s application for transfer of five immovable properties wasFprejudicial to its interest was based upon an independent and objectiveconsideration of the materials placed before her. It was highlighted thatalthough Section 14 does not expressly outline the requirements which atrust has to fulfil while seeking sanction, Rule 9 of the M.P. Trust Rules,1962 contemplates three relevant considerations that were to be takeninto account - namely whether the trust deed contains a stipulation withGrespect to alienation of immovable property; the necessity for the proposedalienation; and whether the proposed alienation is in the interest of thetrust.

15. It was further highlighted that by virtue of Rule 9(2), theRegistrar is empowered to make necessary enquiry and by Rule 9(3),Hthe Registrar may impose conditions “as he may deem fit”, if (s)he is of the opinion that grant of sanction to the proposed alienation withoutimposing such conditions, will be prejudicial to the interest of the publictrust. In the present instance, learned senior counsel stated that theRegistrar was not satisfied with the proposal as it contained vague orlittle details with regard to how the property was to be sold, its likelyvaluation, and details of how the investments would be made of theconsideration received through such sale. Furthermore, the Registrarwas of the opinion that the trust could take other measures to augmentits income and ensure that its properties were maintained properly withouttransferring any of them.

16. Mr. Ahmadi further submitted that even though the wordingof Section 14 does not facially confer the kind of power which is givento the Bombay Charity Commissioner under the Bombay Public TrustsAct, nevertheless, Rule 9(3) clothes the Registrar with sufficient discretionto act in the best interest of a trust and make sure that no decisionprejudicial to its interest is taken.

17. Learned senior counsel relied upon the decision of this Courtin Cyrus (supra). He also cited other judgments Chenchu Rami Reddy& Anr. v. Govt. of Andhra Pradesh & Ors.[7]; Bhaskar Laxman Jadhav& Ors. v. Karamveer Kakasaheb Wagh[8]; and Mehrwan Homi Irani& Anr. v. Charity Commissioner Bombay and Ors.[9] to highlight thatthe best interests of a public trust are always paramount and are at theforefront of the concern of statutory authorities and courts. He highlightedthat this is even more so when a proposal for long term alienation suchas long-term lease or sale of trust property is involved. All these relevantconsiderations were kept in mind by the Registrar in her rejection order.It was submitted that as a consequence, the impugned order does notcall for any interference by this court.

Provisions

18. “Public trust” is defined by Section 2 (4) of the M.P. PublicTrusts Act as follows:

“public trust” means an express or constructive trust for apublic, religious or charitable purposes and includes a temple,a math, a mosque, a church, a wakf or any other religious or 7 (1986) 3 SCC 391.

8 (2013) 11 SCC 531.

9 (2001) 5 SCC 305.

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Acharitable endowment and a society formed for a religiousor charitable purpose;

19. By Section 4, every public trust has to apply for registration,when it comes into existence. Section 14, which is relevant for the presentpurpose, reads as follows:

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“14. Previous sanction of Registrar, in cases of sale, etc., ofproperty belonging to a public trust. (1) Subject to the directionsin the instrument of trust or any direction given under this orany other law by any Court,- (a) no sale, mortgage, exchange of gift of any immovableCproperty; and (b) no lease for a period exceeding seven years in the case ofagricultural land or for a period exceeding three years in thecase of non-agricultural land or building; belonging to apublic trust, shall be valid without the previous sanction ofDthe Registrar.

(2) The Registrar shall not refuse his sanction in respect ofany transaction specified in sub-section (1) unless suchtransaction will, in his opinion, be prejudicial to the interestsof the public trust.”

ERule 9 of the M.P Trust Rules, 1962 reads as follows:

“–9. Applications under Section 14 for sanction of alienations.

(1) Every application for sanction of an alienation shallcontain information inter alia on the following points,-F(i) whether the instrument of trust contains any directions asto alienation of immovable property;

(ii) what is the necessity for the proposed alienation;

(iii) how the proposed alienation is in the interest of the publictrust; and G

(iv) in the case of a proposed lease, the terms of the pastleases, if any.

Such application shall be accompanied by a valuation reportof an expert.

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(2) The Registrar, before according or refusing sanction, maymake such inquiry as he may deem necessary’

(3) In according sanction, the Registrar may impose suchconditions, as he may deem fit, if he is of the opinion that thegrant of sanction to the proposed alienation without imposingsuch conditions will be prejudicial to the interests of the publictrust.”

Analysis and conclusions

20. As can be seen by Section 14 (1), previous sanction of theRegistrar of public trusts is a precondition, for the (a) “sale, mortgage,exchange of gift of any immovable property” or (b) “lease for aperiod exceeding seven years in the case of agricultural land orfor a period exceeding three years in the case of non-agriculturalland or building.” If Section 14 (1) had stopped there, the embargo onalienation of the types enumerated in the provision (sale, gift, exchange,mortgage etc., or long-term lease(s) of agricultural or non-agriculturalproperties) i.e., obtaining previous sanction, could well have meant thatthe Registrar’s role was conceivably intrusive. However, the provisionsof Section 14 (1) and the power conferred on the Registrar under it, arecontrolled by Section 14 (2) which states that the Registrar “shall notrefuse his sanction” unless in his opinion the alienation, or transfer isprejudicial to the interests of the public trust. The clear reference inSection 14 (2) is to the power exercisable under Section 14 (1). Thecontrolling expression in Section 14 (1) significantly, is that previoussanction in respect of the two situations (i.e., alluded in clauses (a) and(b)) is “subject to the directions in the instrument of trust or anydirection given under this or any other law by any Court.” Thiscontrolling or, rather opening words, clearly indicate that the grant orrefusal of sanction by the Registrar have to be based on either “thedirections in the instrument of trust”, or “any direction given underthis (i.e., M.P. Public Trusts Act) or any other law by any court”.The discretion thus, is relatable to directions in the trust document, orany provision of the Act, or any other law as ordered (or directed) byany court. Therefore, the Registrar, is not empowered to read into it herown notions of what is beneficial and what is prejudicial to the trust. Therefusal has to be specific to the requirement of law, wherever such lawclearly stipulates so, or any specific provision of the trust document.

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A21. On behalf of the second respondent, considerable emphasiswas placed on Rule 9, especially Rule 9 (3), to say that the Registrar can– in addition to the stipulations which condition grant of previous sanction– also: “impose such conditions, as he may deem fit, if he is of theopinion that the grant of sanction to the proposed alienation withoutimposing such conditions will be prejudicial to the interests of theBpublic trust”. If one recollects that the power to impose conditions isabsent in the main provision of the parent enactment, i.e., Section 14 (1)or (2), clearly, sub-rule (3) goes beyond enacted law. A plain look atRules 9 (1) and (2) would show that the conditions mentioned in thoserules, are in conformity with the framework of Section 14. However, ifCRule 9 (3) were to be read independently, it can be construed as conferringadditional power to impose conditions. Such a reading would lead toRule 9 (3) being rendered ultra vires. However, a proper and harmoniousreading of Rule 9 (3) would be that the Registrar, in a given case mayimpose conditions, if the instrument of public trust, or any law, relating topublic trusts, results in a court direction to such effect. In the absence ofDthese objective factors, the Registrar, in this court’s opinion, cannotunilaterally impose conditions which in her, or his opinion would inure tothe interest of the public trust.

22. It is now necessary to discuss the case-law cited on behalf ofthe parties. In Chenchu Rami Reddy (supra) Section 74 (1) (c) of theEAndhra Pradesh Charitable and Hindu Religious Endowments Act, 1966obliged that public trust property had to be put to auction by theCommissioner (of trusts). In that case, the property of the trust wassought to be sold by private negotiation, despite an offer of three timesmore consideration, by another party. The Commissioner had approvedFsuch private sale. This court set aside the sale, holding inter alia, that:

“property of such institutions or endowments must bejealously protected. It must be protected, for, a large segmentof the community has beneficial interest in it (that is the raisond’etre of the Act itself). The authorities exercising the powersunder the Act must not only be most alert and vigilant in suchGmatters but also show awareness of the ways of the presentday world as also the ugly realities of the world of today.They cannot afford to take things at their face value or makea less than the closest-and-best-attention approach to guardagainst all pitfalls. The approving authority must be awareHthat in such matters the trustees, or persons authorised to sell by private negotiations, can, in a given case, enter into asecret or invisible under-hand deal or understanding withthe purchasers at the cost of the concerned institution. Thosewho are willing to purchase by private negotiations can alsobid at a public auction. Why would they feel shy or be deterredfrom bidding at a public auction? Why then permit sale byprivate negotiations which will not be visible to the public-eye and may even give rise to public suspicion unless thereare special reasons to justify doing so? And care must betaken to fix a reserve price after ascertaining the market valuefor the sake of safeguarding the interest of the endowment.With these words of caution we close the matter.”

23. Section 36 of the Bombay Public Trust Act, 1950, inter alia,stipulates that:

“(c) if the Charity Commissioner is satisfied that in the interestof any public trust any immovable property thereof should bedisposed of, he may, on application, authorise any trustee todispose of such property subject to such conditions as hemay think fit to impose, regard being had to the interest orbenefit or protection of the trust.”

In the decision in Mehrwan Homi Irani (supra), the nature ofthis power, of imposing conditions having regard to the interest or benefitor protection of the public trust, was emphasized:

“In the best interests of the Trust and its objects, we feel itappropriate that Respondents 2 to 4 should explore the furtherpossibility of having agreements with better terms. The objectsof the Trust should be accomplished in the best of its interests.Leasing out of a major portion of the land for other purposesmay not be in the best interests of the Trust. The CharityCommissioner while granting permission under Section 36 ofthe Bombay Public Trusts Act could have explored thesepossibilities. Therefore, we are constrained to remit the matterto the Charity Commissioner to take a fresh decision in thematter. There could be fresh advertisements inviting freshproposals and the proposal of the 5th respondent could alsobe considered. The Charity Commissioner may himselfformulate and impose just and proper conditions so that itmay serve the best interests of the Trust. We direct that theCharity Commissioner shall take a decision at the earliest.”

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A24. In Bhaskar Laxman Jadhav (supra) approval to sell trustproperty was sought, in 1994. The trustees prevaricated; on differentoccasions, extension to carry out the sale was sought. Ultimately, in2006, the property was sought to be sold. However, the approvalapplication was rejected. This was impugned before the High Court,which in its order, required the Commissioner to re-examine the matterBafresh, and also take into consideration altered circumstances, i.e., thepassage of time had led to a considerable increase in the value of theproperty. This court endorsed the view of the High Court.

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25. In Cyrus Rustom Patel (supra), again, the applicability ofSection 36 of the Bombay Public Trust Act was in issue. This court setCaside a sale, after observing that the Commissioner neither ascertainedthe value of the property, nor made any attempt to secure the best pricefor it. Further, the Commissioner did not attempt to explore if otherconditions could be imposed on the proposed developer or purchaser. Itwas observed that:D“23. The power to grant sanction has to be exercised by theCharity Commissioner, taking into consideration three classicrequirements i.e. “the interest, benefit, and protection” of theTrust. The expression that sanction may be accorded subjectto such conditions as Charity Commissioner may think fitEunder Section 31 (1) (b) and Section 36 (1)(c). The CharityCommissioner has to be objectively satisfied that propertyshould be disposed of in the interest of public trust; in doingso, he has right to impose such conditions as he may think fit,taking into account aforesaid triple classic requirements. It isalso open to the Charity Commissioner, in exercise of powerFof Section 36 (2) of the Act, to revoke the sanction, givenunder clauses (a) and (b) of Section 36 of the Act, on theground that the sanction had been obtained by fraud ormisrepresentation or those material facts have beensuppressed while obtaining sanction. The intendment of theGrevocation provision is also to sub-serve the interest, benefit,and protection of the Trust and its property.

24. In the instant case, the Joint Charity Commissioner wasrequired to consider the interest and benefit of the Trust. Weare compelled to observe that Joint Charity Commissioner hasHtotally abdicated its duty, and failed to act as per the mandate of Section 36. The observations made by Joint CharityCommissioner in its Order clearly reflect that CharityCommissioner has failed to exercise the duties enjoined uponto protect trust under Section 36 of the Act. It has notconsidered the interest, benefit, and protection of the trust atall. The order is wholly perverse. Joint Commissionerabdicated its responsibilities, in as much as it observed that itwas the outlook of the Trust as to whom it wanted to sell theproperty, and as certain development was to be made; as suchmarket value of the property was not a relevant consideration.There is the sale made in the form of Joint Venture developmentcum sell agreement and lease was for 999 years. Right fromthe beginning, it was to be a joint venture agreement coupledwith a sale option, as apparent from the minutes of the meetingof the trust. The trustees had been acting in collusion withdeveloper even before resolution had been passed.Negotiations were going on with M/s. Astral Enterprises-developer.”

26. It is apparent that these decisions of the court were in thecontext of Section 36 of the Bombay Public Trust Act, which confersdecidedly wider powers on the Commissioner (including imposition of“such conditions as he may think fit to impose, regard being had tothe interest or benefit or protection of the trust”) than the kind ofpowers conferred on the Registrar, under Section 14 of the M.P. PublicTrusts Act. Under the latter enactment, the Registrar’s power to grantor withhold sanction is guided by the stipulations in the trust instrument,or under a law, as directed by a court. There is, consequently, a markeddifference in the nature of the powers under the two enactments. TheBombay law confers a wider supervisory role; however, such a widepower is not available to the Registrar, under the M.P Public Trusts Act.

27. Public control of charities (whether social or religious) hasbeen recognized in our country for over a century. In the context ofreligious endowments, such public control is essential, for the simplereason that in its absence, there is likelihood of diversion of monies andproperties accumulated through public donation and gifts. The role ofthe designated state official (commissioner, or registrar, etc.) is to ensurethat accounts are properly maintained; monies are expended inaccordance with the aims and objects of the endowments; the proper ABC

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Arituals are conducted, etc. Such regulation does not mean that the stateis allowed to appropriate monies which rightly belong to the endowment.In the case of public charities and trusts, slightly different considerationsprevail. The aim of public control is to ensure that the trust is administeredefficiently and smoothly. The state interest is that far, and no more; itcannot mean that the state can dictate what decisions can or cannotBbe taken. In the specific context of alienation of properties, dependingon the nature of the oversight, the state’s interest is to ensure that valuableassets of public trusts are not frittered away. It is for this reason, thatprovisions like Section 36 clearly enunciate a principle that theCommissioner can impose such conditions as may be appropriate.CHowever, the statute in the present case (the M.P. Public Trusts Act)does not contain such a power to impose conditions; the onlyconsiderations that weigh with the officer (Registrar) are the stipulationsin law, or in the instrument of public interest. Other than theseconsiderations, the principle of autonomy and democratic decision-makingcannot be undermined. Any organization which is self-governed, cannotDbe subjected to overarching state control. As long as its decisions arewell informed, and grounded on relevant considerations, the interests ofthe trust are those defined by its members. Any measure of public controlenacted through express stipulations in law, should not be expanded tosuch an extent that the right to freedom of association, under Article 19E(1) (c), is reduced to an empty husk, bereft of meaningful exercise ofchoice.

28. In the facts of the present case, the record shows that thedecision to sell the properties was a consequence of a two layeredprocess, where all members participated and decided to dispose of theFproperty. The decision was based on a realistic assessment of the trust’sexisting and future liabilities, the obligations towards charity, aid to seniorcitizens, education, medical aid, and religious ceremonies, imposed bythe trust instrument. Furthermore, the proposed spending from the returnsearned through the investment made from the consideration arising fromsale, were also outlined and clearly disclosed. Most crucially, theGproperties were valued, and proposed to be sold by public tender.Disregarding all this disclosed transparency, the Registrar, on the basisof her subjective notion of what constituted best interests of the trust,could not have rejected the application, as she did. The High Court, inthis court’s opinion fell into error, in endorsing that rejection.H

29. Before parting, this court is of the opinion that the trust mayproceed to implement its decision, but subject to fresh valuation of eachof the properties, which is proposed to be sold. This valuation should bedisclosed to the Registrar, who can facilitate the implementation of thedecision to sell to the highest bidder, through public tender.

30. The impugned judgment and the decision of the Registrar arehereby set aside. The appeal succeeds, in terms indicated in the precedingparagraph, and is allowed. There shall be no order on costs.

Devika Gujral

Appeal allowed.

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