S. D. SHAH, J. ( 1 ) THERE is public trust duly registered under the provisions of the Bombay Public Trust Act 1949 and it is named as Shri Surat District Limbachia Valand Hitechchhu Mandal Surat. The said Trust owns and is possessed of properties bearing Nodh Nos. 3926 3927 3928 in Ward No. 7 at Surat. Respondent No. 2 the trustee of the said trust issued an advertisement dated 8. 7. 1978 inviting offers in sealed cover to dispose of said properties. It appears that the wife of the present petitioner submitted her offer to purchase said properties for Rs. 65 0 which offer was subsequently raised to Rs. 1 5 999 The said offer submitted by the wife of the petitioner was notified by public advertisement dated 1. 12. 78. In the said advertisement it was stated that the trust has also moved the Charity Commissioner for his prior sanction for sale of said properties and that if any one had objection to the said transaction he was invited to submit objections within 8 days persons interested to bid higher offer were also invited to submit their tenders with higher offers. (II) The respondent No. 1 herein approached the advocate of the respondent-trust and submitted offer of Rs. 1 29 999 and bank draft for Rs. 32 500 as deposit. On 9. 12. 78 the petitioner submitted tender for Rs. 1 33 999 and bank draft for the deposit of 1/4th of the purchase price. It is admitted position that though the tenders were submitted by the parties in sealed covers the bank drafts were handed over separately to the advocate of the Respondent No. 2-trust. (iii) Before the Joint Charity Commissioner two objections were raised to the acceptance of tender of the petitioner namely (i) the tender submitted by the petitioner on 9/12/1978 was beyond time limit and (ii) that acceptance of open bank draft towards 25% of the purchase price was irregular and the entire proceedings thereafter were vitiated. (iv) On the said objections raised by the respondent No. 1 to the offer made by the petitioner the Jt. Charity Commissioner was pleased to pass order dtd. 6/02/1980. By the said order the Jt. Charity Commissioner accepted the offer of the petitioner for the amount of Rs. 1 33 999 in exercise of powers conferred upon him by Section 36 (1) of the said Act. Charity Commissioner was pleased to pass order dtd. 6/02/1980. By the said order the Jt. Charity Commissioner accepted the offer of the petitioner for the amount of Rs. 1 33 999 in exercise of powers conferred upon him by Section 36 (1) of the said Act. (v) Being aggrieved of the said order of the Jt. Charity Commissioner passed in exercise of powers conferred upon him by Section 36 (1) of the said Act present respondent No. 1 preferred appeal u/sec. 36 (3) of the said Act to the Gujarat Revenue Tribunal and the Tribunal by its judgment and order dated 6/08/1980 allowed the appeal and set aside the order of the Jt. Charity Commissioner dated 6. 2. 80. (vi) As regards the first objection that the petitioner had submitted the tender after due date the Revenue Tribunal did not accept the same. The Tribunal came to conclusion that the Jt. Charity Commissioner has rightly held that the submission of tender by the present petitioner on 9. 12 was within time. The advertisement was published in daily newspaper Pratap of 1. 2. 78 and according to advertisement sealed tenders were to be submitted within 8 days. Eighth day would be over on 9. 12. 78 and therefore submission of tender by the present petitioner on 9/12/1978 was regarded as within time both by the Jt. Charity Commissioner as well as by the Revenue Tribunal. So far as this finding is concerned same is not under challenge before me inasmuch as the respondent No. 1 has not challenged the same finding by filing separate petition or by making any submission in that behalf. ( 2 ) THE main submission raised by Mr. A. S. Vakil for Mr. S. B. Vakil on behalf of petition relates to the second objection. It is the case of the respondent No. 1 that the amount of deposit of 25% of the purchase price was tendered by him as well by the petitioner by open bank draft. The said tender of draft being of 25% of the purchase price it was very easy for the other side or other tenderers to know the exact quotation of price and therefore it was possible for the other tenderers to adjust their offer accordingly. This submission has found favour with the Revenue Tribunal. The said tender of draft being of 25% of the purchase price it was very easy for the other side or other tenderers to know the exact quotation of price and therefore it was possible for the other tenderers to adjust their offer accordingly. This submission has found favour with the Revenue Tribunal. The Tribunal has found that both the present petitioner as well as the respondent No. 1 had submitted their amount of 25% deposit by open bank drafts and the said bank drafts were not placed in sealed cover alongwith the quotation of price. Therefore according to the Tribunal there was breach of specific condition mentioned in the advertisement and therefore the tender submitted by the respondent No. 1 as well as by the petitioner was not legally submitted or they were inconsistent with the conditions stipulated in the advertisement. It was therefore found by the Tribunal that the Jt. Charity Commissioner was not justified in giving his consent to the acceptance of higher lender of the present petitioner. The Tribunal therefore allowed the appeal and set aside the order passed by the Joint Charity Commissioner. ( 3 ) IN my opinion the question is required to be examined from the point of view of powers which the Charity Commissioner has u/sec. 36 of the said Act. In this case there is no dispute about the fact that there is power in the trustees to sell exchange or dispose of any of the immovable properties of the trust. In view of the Section 36 of the Act as and when the trustees of the said trust intend to sell or dispose of any of the immovable properties of the trust it is necessary to apply to the Charity Commissioner for his previous sanction. Since in the present case the trustees wanted to sell away the property they had to approach the Charity Commissioner for thepurpose of his previous sanction. When the application is made to the Charity Commissioner it is for the Charity Commissioner to decide as to whether such an application should be granted or not. The language of the sub-Section (1) of Section 36 is clear and the Legislature has in no uncertain terms provided that no sale of any immovable property belonging to a public trust will be valid without the previous sanction of the Charity Commissioner. The language of the sub-Section (1) of Section 36 is clear and the Legislature has in no uncertain terms provided that no sale of any immovable property belonging to a public trust will be valid without the previous sanction of the Charity Commissioner. While exercising these powers under Section 36 the Charity Commissioner has first to consider as to whether the proposed alienation of trust properties is in the interest of the trust. In order to answer that question the Charily Commissioner is required to find out the need on the part of the public trust to dispose of or to alienate the property. Once the need is established the Charity Commissioner would have also to consider various other factors. The wording of Section 36 clearly indicates that a very important duty is cast upon the Charity Commissioner. The provision indicates that in case in which the trust deed confers upon the trustees the power to alienate trusts property whenever necessary sanction of the Charity Commissioner would be necessary. It is very obvious that before Charity Commissioner sanctions alienation of trust property he has to apply his mind to following material questions namely (i) whether there is a compelling necessity to justify the alienation in question ? (ii) whether the proposed alienation is fair and just ? (iii) whether the proposed alienation in any way adversely the interest of the trust ? ( 4 ) KEEPING the aforesaid three considerations in mind the Charity Commissioner is required to examine the matter and after allowing the parties with ample opportunity to lead evidence and to satisfy as to how the need to alienate the property of the trust is arisen and whether it would act in the interest of trust or not he would proceed to grant or refuse the sanction. Number of factors such as financial position of the trust location of the property the use of particular property to the trust market position income which the property is fetching or would continue to fetch compared to the income which the property would bring to the trust if the property is disposed of the liabilities of trust income of the trust and last but not the least the price at which the property is being sold are required to be taken into account. This is not the exhaustive list of factors to be taken into account. This is not the exhaustive list of factors to be taken into account. Over and above these factors many other relevant and geunine factors may need consideration of the Charity Commissioner. However after taking all these relevant factors into consideration and after hearing both the parties if the Charily Commissioner sanctions the alienation of the property question is as to whether such opinion should be upset in appeal on grounds which do not materially affect the satisfaction reached by the Charity Commissioner in whom power to grant sanction is vested. In my opinion the primary power to grant sanction is vested by the Legislature advisedly in Charily Commissioner. Charily Commissioner should exercise such power justly and fairly and after taking into consideration the relevant factors as stated hereinabove and once such relevant factors are taken into account and once such sanction is granted by the Charity Commissioner in my opinion it would be unjust to upset such sanction in appeal on grounds which do no materially affect the satisfaction reached by the Charity Commissioner. The appellate authority which exercising powers u/section 36 (3) could not take upon itself the task of substituting its decision to that of the Charity Commissioner when the Legislature has thought it fit to invest the power in the Charily Commissioner. ( 5 ) IN the present case so far as the first objection was concerned namely about the late receipt of tender of the petitioner the same is found to be within time by the Jt. Charity Commissioner as well as by the appellate authority. Sanction granted by the Charity Commissioner could not have been invalidated on the ground. ( 6 ) THE second ground in my opinion does not assume any importance in as much the respondent No. 1 who filed the objection on the ground that the deposit of 25% of sale price by the petitioner by open bank draft was irregular or illegal is himself guilty of submitting bank draft which was not in sealed cover. When the open bank draft is submitted by the respondent No. 1 and the petitioner has also submitted open bank draft which is for higher amount and the bid of the petitioner is accepted it is not open to the respondent No. 1 to challenge the entire transaction on the ground that irregularity was committed in accepting 25% of sale price. It is not the case of the respondent No. 2 that his open bank draft was submitted by him in the presence of petitioner and that the petitioner having seen the bank draft tendered by the respondent No. I submitted the draft for higher amount. Fact remains that the price offered by the petitioner was higher than the price offered by the respondent No. 1 and that being the higher price offered by the petitioner was accepted. It may also be noted that after acceptance of the lender regular sale deed was executed on 12/03/1980 and the said sale deed is registered with the Sub-Registrar Surat under No. 1637. The requisite sanction of the competent authority under the Urban Land (Ceiling and Regulation) Act 1976 for the sale of the said property by the trustees to the present petitioner was also obtained on 14. 3 It is thus clear that pursuant to the sanction granted by the Jt. Charily Commissioner the transaction is finalised. Secondly the respondent No. 1 challenged the said transaction solely on the ground that the 25% of cash price was tendered by the petitioner by open bank draft but he himself tendered the same by open bank draft. Both the parties i. e. petitioner and the respondent No. 1 tendered the bank draft openly and the fact in the facts and circumstances of the case would not vitiate the entire transaction when 25 of purchase price offered by the petitioner was higher than the price offered by the respondent No. 1. I am therefore of the opinion that the Revenue Tribunal was not justified in selling aside the order of the Jt. Charity Commissioner granting sanction to the transaction of sale. The order of the Jt. Charily Commissioner dated 6. 2. 80 was just and proper and the same is required to be restored and the order passed by the Tribunal in appeal is required to be quashed and set aside. ( 7 ) MR. B. J. Shelat Ld. Advocate for respondent No. 1 has submitted that this court while exercising its jurisdiction under Article 227 should not interfere with the findings of fact reached by the appellate authority and in this connection he invites my attention to the Supreme Courts decision in the case of Mohd. Yunus v. Mohd. Mustaquim reported in AIR 1984 SC 38 . Advocate for respondent No. 1 has submitted that this court while exercising its jurisdiction under Article 227 should not interfere with the findings of fact reached by the appellate authority and in this connection he invites my attention to the Supreme Courts decision in the case of Mohd. Yunus v. Mohd. Mustaquim reported in AIR 1984 SC 38 . He further submits that the Revenue Tribunal has taken into consideration all the relevant factors and he found that the interest of the trust would be better served by setting aside the transaction I do not think I can accept this submission firstly because I find that the view taken by the Tribunal is on which is not legally permissible because the Tribunal ought to have kept in mind the fact that the power to grant sanction is reposed in Charity Commissioner and the Charity Commissioner has taken into consideration all the relevant factors Once relevant factors for granting sanction are taken into consideration to invalidate such grant or sanction on objection which has not materially prejudiced the person making objection is nothing but to allow a technicality to prevail against the subsistence of transaction. When the respondent No. 1 himself has tendered open bank draft for 25% of purchase price and when the petitioner has also tendered open bank draft for 25% or purchase price it cannot be said that in quoting their purchase price they were influenced by the lender of the bank draft by the other party In fact it is not the grievance made out by the respondent No. 1 both before the Charity Commissioner as well as before the Revenue Tribunal Since the tendering of open bank draft by the petitioner has not in any way prejudiced the respondent No. 1 the Tribunal was no justified in setting aside the said transaction of sale which has already become final I therefore do not accept the said submission of Mr. Shelat. ( 8 ) IN the result petition suceeds Judgment and Order of the Gujarat Revenue Tribunal dated 6/08/1980 is hereby quashed and set aside and the judgment and order of the Charity Commissioner granting sanction to the transaction of sale on 6. 2 is hereby restored. Rule is made absolute to the aforesaid extent with no order as to costs. (RPV) Petition allowed .