1 wp759-93.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.759 OF 1993 Kalpana Properties Pvt.Ltd. & Anr. .. Petitioners Versus K.M.Desai and Ors. .. Respondents Mr.Ajit Kapadia with Mr.Aditya Chitale i/b. Purohit & Purohit for petitioners Mr.P.M.Rustomkhan for respondent Nos. 8 and 9 Mr.F.Colabawalla i/b. Mulla & Mulla for respondent No.5 Mr.Atman Mehta i/b. H.Mehta & Co. for applicant Mrs.S.M.Dandekar, AGP for State. CORAM : S.C.DHARMADHIKARI, J. 26th September 2011. P.C.: 1] By this petition under Article 226 of the Constitution of India, the petitioners are challenging an order passed by the Charity Commissioner, Maharashtra State in Application No.J-4/91/91 by which the Charity Commissioner has refused to grant sanction in favour of first petitioner and accorded permission to sell the four buildings to the Cooperative Housing Society of tenants (proposed), on the terms and conditions stipulated in the order dated 28th January 1993 and 9th February 1993. 2 wp759-93.doc 2] The petitioners have challenged this order on the ground that the said order does not ensure the sale of the Trust property in the interest of the Trust and for the benefit of the Trust. It is contended that the Charity Commissioner had no power to accord sanction to the sale of the property in favour of any third party/entity. All that he could have done was to accord sanction to the proposal of the Trustees to sell the property to the first petitioner or refuse to accord such sanction. Here, while allegedly protecting the benefits and interest of the Trust, the Charity Commissioner has accorded sanction for sale of the property to the tenants of the Trust and their proposed cooperative society. 3] This petition is pending in this Court from 1993. From the time its pending in this Court, it is evident that the property could not be sold and particularly because while admitting this petition, this Court granted interim reliefs in terms of prayer clause (c). Prayer clause (c) of this petition reads as under:- 3 wp759-93.doc (c) Pending the hearing and final disposal of the petition, this Court be pleased to issue an order and injunction restraining the respondents from taking any steps pursuant to the impugned orders dated 28th January and 9th February 1993 in Application No.J-4/91/91.” 4] From a reading of this prayer clause and the considering the fact that for more than 17 years in the light of the said order the Trust property could not be sold, no useful purpose purpose will be served while going into the rival contentions and particularly in the light of the law laid down by this Court in the case of Sailesh Developers Vs. Joint Charity Commissioner reported in 2007 (3) Mh.L.J. 717. 5] The contentions raised are based on the earlier views of this Court, which view has been termed as not laying down correct law, in this case, the trust property is not being sold either to tenants or to any other entity. The Trust has not taken any steps for the past more than 17 years to effect the sale or seek 4 wp759-93.doc any fresh sanction from the Charity Commissioner nor the order of this Court prevented the trust from doing so. 6] In the light of the above, this petition is disposed of only on the ground that because of the interim order and the period of more than 17 years having lapsed from the date of passing of the same, the challenge raised is rendered infructuous. If the Trust is desirous of selling this property nothing prevents it from seeking sanction to such sale and whenever such an application is made, the Joint/ Charity Commissioner shall consider all pleas and contentions including those raised in the petition. If the petitioners are still desirous of pursuing their agreement, this order will not prevent them from raising appropriate pleas as and when the Trust approaches the Charity Commissioner or from instituting such proceedings as are permissible in law to seek enforcement of this agreement in its favour. All contentions in this behalf are kept open. Petition disposed of. 7] Learned Advocate appearing for Trust states that the Trust will return the monies that are deposited both by the tenants' 5 wp759-93.doc proposed cooperative housing society so also by the petitioners. He states that the same will be refunded within eight weeks from today. (S.C.DHARMADHIKARI, J)