1 wp7400.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.7400 OF 2010 Dhananjay Jayant Salokhe ...Petitioner vs. Joint Charity Commissioner, Kolhapur Region & Ors. ...Respondents Mr.S.S.Patwardhan for the petitioner Ms S.S.Bhende, A.G.P for the respondent no.1 Mr.S.A.Sawant for respondent nos.2 and 3 CORAM :A.S.OKA,J. DATE : SEPTEMBER 28, 2010 P.C. 1 Heard the learned counsel for the petitioner. The challenge in this writ petition is to the order dated 23 rd August 2010 passed by the learned Joint Charity Commissioner on an application under section 36 (1) (a) of the Bombay Public Trusts Act,1950 (hereinafter referred to as the said Act). The said application was made for grant of permission for sale of the property of 3 rd respondent-trust. The application was filed in the year 20036seeking permission to sell the trust property to the petitioner. By the impugned order, the learned Joint Charity Commissioner directed publication of a notice inviting offers for the sale of the trust property. 2 The learned counsel for the petitioner pointed out that the petitioner had submitted offer way back in the year 2003 to purchase the trust property at the price of Rs.8 lacs. He pointed out that in the year 2006, the 2 nd 2 wp7400.sxw and 3 rd respondents made an application seeking permission to alienate the property at price of Rs.8 lacs. He submitted that as the proceedings of the application remained pending, on 29 th January 2009, the petitioner enhanced his offer to Rs.31,23,650/-. He pointed out that by the impugned order the Joint Charity Commissioner has directed publication of public notice inviting fresh offers for sale of the trust property. He submitted that only because the application made by the trustees remained pending for a long time, the Joint Charity Commissioner cannot invite offers in the year 2010. He submitted that there is no finding recorded by the Joint Charity Commissioner that the price of Rs. 31,23,650/- offered by the petitioner in January 2009 was inadequate or was lesser than the market value. He submitted that in view of the decision of Full Bench of this Court in case of Sailesh Developers and another Vs. Joint Charity Commissioner, Maharashtra [2007 (3) Mh.L.J. 717), the Joint Charity Commissioner could have invited fresh offers only after recording a finding that the price offered by the petitioner was inadequate or was less than the market value. He submitted that the petitioner cannot be allowed to suffer only because the application made by the trustees under section 36 of the said Act remained pending for a long time. 2 I have carefully considered the submissions. It must be noted here that the original offer submitted by the petitioner was of Rs.8 lacs as on 27 th October 2003. The trustees made an application under section 36 of the said Act for grant of sale permission in June 2006. The offer given by the petitioner on 29 th January 2009 records that a sum of Rs.31,23,650/- is being offered as per the valuation made by the Joint Charity Commissioner. There is nothing on record to show that the said offer given 3 wp7400.sxw by the petitioner was accepted by the learned Joint Charity Commissioner. The application made by the trustees was on the basis of the tenders invited in the year 2003. To ensure that the trust gets the best price, by the impugned order, the learned Joint Charity Commissioner has directed that fresh offers be invited by issuing a public notice. The learned counsel for the 2 nd and 3 rd respondents has placed on record a public notice published in the newspaper on 31 st August 2010 under which the offers have been called for. 3 In case of Sailesh Developers and another (supra) the Full Bench of this Court has observed thus : 28...The Charity Commissioner has jurisdiction to ensure that the property is sold or transferred in such a manner that the maximum benefits are available to the beneficiaries of the Trust. Under Clause (b) of section 36 of the said Act, the Charity Commissioner has jurisdiction to decide whether it is in the interest of the trust that the property of the trust be sold or transferred. Once the learned Charity Commissioner is satisfied that the property is required to be transferred or sold in the interest of the Trust, the learned Charity Commissioner cannot remain silent spectator when he finds that the transaction proposed by the Trustees is not in the interest of the Trust or its beneficiaries. Once the necessity of sale or transfer is established, the Charity Commissioner can certainly ensure that best available offer is accepted, so that the transaction is for the benefit of the trust. If the trustees were to be the final authority to judge what is in the interest of the Trust, the legislature would not have enacted provision requiring prior sanction. While deciding which is the best offer, the learned Charity Commissioner is bound to take into consideration various factors which cannot be exhaustively listed. However, the paramount consideration is the interest, benefit and protection of the trust. It is obvious from the scheme of section 36 that legislature never intended that trustees could sell or transfer 4 wp7400.sxw the trust property vesting in them as if it was their personal property. It is the duty of Charity Commissioner to ensure that the property should be alienated in such a manner that maximum benefits are accrued to the trust. The Charity Commissioner while considering an application under section 36(1) of the said Act of 1950, in a given case can opt for public auction or can invite bids... 4 The only object of passing the impugned order is that the trust property should fetch the best possible price. It is true that the application has remained pending for more than three years. However, the Joint Charity Commissioner being the custodian of the trust property has to perform his duty to ensure that best possible price is received by the trust. It must be observed that even the petitioner can offer a fresh bid on or before 1 st October 2010. It is not possible to interfere with the discreationary order passed by the learned Joint Commissioner. Writ Petition is rejected. 5 The Joint Charity Commissioner will conclude the proceedings expeditiously and will ensure that the final order is passed on or before 31 st December 2010. JUDGE