1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7373 OF 2008 Ambika Enterprises .. Petitioner Vs. Chinchwad Devasthan Trust & Ors. .. Respondents Mr. Shreepad Murthy a/w Mr. A. Joshi i/b Mr. V. N. Tayade for the Petitioner. Mr. J. Shekhar i/b M/s. J. Shekhar & Co. for Respondent No.2 Mr. S. V. Pitre for Respondent No.1. Mr. C. R. Sonawane AGP for Respondent No.3 CORAM : MRS. R. S. DALVI, J. DATE : 4th February, 2010. P.C. Rule, made returnable forthwith. 1. The order that is impugned in this writ petition is the order of the Charity Commissioner under Section 36 of the Bombay Public Trusts Act, 1950 passed on 08.10.2008. The learned Charity Commissioner has considered the relevant provisions for the sale of the suit property in the interest of the trust. The Charity Commissioner has 2 accepted the offer of respondent No.2 and rejected the offer of the petitioner on the ground that the petitioner is in a habit of moving applications at late stage after the procedure established under the law is followed by the trust in many matter. Hence, his bonafides were suspect. 2. The trust property has several encumbrances. One is reservation for grazing land which is removed by respondent No.2 even prior to acquiring any right, title and interest in the trust and while he was a stranger to the trust. There are at least 1000 hutments for which notice under the Maharashtra Slums Areas Act has been issued upon the trust. I am told that high tension wires run through the property. The trust has no income. 3. All these factors apply as much to the petitioner as to respondent No.2. 4. It is settled position that the Court must endeavour to obtain the very best offer for the trust and its beneficiaries. 3 5. If the petitioner is a mere busybody who only deposits money to raise the value of the property without getting the property for himself, the petitioner may not be allowed to withdraw the amount already deposited. That, however, is not the reason for the trustees to oppose getting that amount absolutely which would be for the benefit of the trust rather than litigating to the detriment of the trust. 6. The offer of respondent No.2 which has been accepted by the learned Charity Commissioner is Rs.1.26 crores. Even if that represents the true market value of the property, the petitioner has deposited Rs.5 crores. Respondent No.1 trust does not accept the higher amount. There are no reciprocal obligations upon respondent No.1 trust which would be required to be discharged for which a lesser figure would be required to be accepted by the trust. Hence, the amount that the trust would get would be an absolute amount taken absolutely. 7. The Court has to only consider the two offers quantitatively. The offer of the petitioner is at least four 4 times higher than the offer of respondent No.2. The trust would be as much rid of the encroachment created by more than 1000 hutments. The trust is not called upon to perform any other obligation to the petitioner. Mr. Murthy on behalf of he petitioner confirms this fact. 8. Under these circumstances the only conclusion that can be arrived at is that the highest offer be accepted by the trust. 9. The Advocate on behalf of the trust states that still higher offers may be received by the trust. If that is so and if the trust itself is desirous of obtaining still higher offers, the trust may be given an opportunity to obtain them. Upon such a statement itself it is seen that the offer of respondent No.2 is distinctly below the market value and cannot be accepted. 10. Under these circumstances the order dated 08.10.2008 of the learned Charity Commissioner is set aside. 5 11. A further bid in respect of trust property is once again allowed. Since the petitioner has deposited the amount his offer of Rs.5 crores would be required to be taken into consideration. The petitioner shall not be entitled to take back or apply for return of Rs.5 crores deposited by him. 12. The trustees shall advertise the intent to sell the trust property in any newspaper including Mumbai newspaper within four weeks from today. The advertisement shall state that an offer of Rs. 5 crores is received and the amount is already deposited. The advertisement shall also state that the higher offerers shall have to deposit Rs.5 Crores along with their offers. The Charity Commissioner shall consider further offers if any, received. If no further offers are received within 4 weeks of the advertisement the trustees shall withdraw Rs.5 crores deposited by the petitioner in this petition and convey the trust property to him. 13. If higher offers are received the learned Charity 6 Commissioner shall first direct deposit of Rs. 5 crores by such higher offerers. He shall allow the offerer to bid only upon such deposits. In that case the petitioner as well as respondent No.2 shall be entitled to raise their offer also above Rs.5 crores. Resp. No.2 shall also deposit Rs. 5 crores before he is allowed to bid. The learned Charity Commissioner shall accept the highest offer subject to the conditions if any, that he deems fit as per Section 36 of the Bombay Public Trust Act, 1950. The offerer shall pay such higher amount to the trust, which would be higher than Rs. 5 crores, within a reasonable period allowed by the learned Charity Commissioner. In that case the petitioner shall be entitled to withdraw the amount deposited by him in this Court. 14. In view of this arrangement, the judgments relied upon by respondent No.2 do not come into play. 15. Writ petition is allowed accordingly and rule is made absolute accordingly. (R. S. DALVI, J.)