IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3137 OF 2009 Utkarsh Samittee, Nashik Vibhag & Anr. ...Petitioners. Vs. The Joint Charity Commissioner, Nashik Region, Nashik & Anr. ...Respondents. Mr. V.A.Thorat, Sr. Advocate with Mr. S.S.Shah for the Petitioners. Mr. R.M.Patne, AGP for the State. CORAM :- ANOOP V. MOHTA, J. DATED :- 21ST MARCH, 2009. P.C. Heard finally, by consent. Petitioner No. 1 is a Trust which is registered and governed by the Bombay Public Trust and Petitioner No. 2 is intended successful tenderer. Petitioner No.1-Trust pursuant to the agreement with M.I.D.C. a lease deed dated 11th October 2007, are in possession of open plot in question. Petitioner No.1-Trust after following the due procedure as required under the Bombay Public Trusts Act, 1950 (for short, 'the BPT Act' ), resolved to sell/ transfer the lease rights and transfer the same to raise capital, in favour of Petitioner No. 2. Therefore, applied under Section 36 (1) (a) of the BPT Act for necessary permission as contemplated and required, before the Joint Charity Commissioner. 3. By order dated 16th January 2009, the said application was rejected, as contended firstly, by observing that no necessary prior permission was obtained from the M.I.D.C. and secondly, that such application itself not fall within the ambit of Section 36 (1) (a) the BPT Act. 4. If the said provision is not applicable to the application, then there was no reason to reject the said application on the foundation of want of consent from the M.I.D.C. Clause 5 of this deed provides the procedure and requirement of consent from the concerned Officer of the M.I.D.C. Petitioner No. 1-Trust just cannot transfer the lease rights and or transfer the said property without consent of the Officer of M.I.D.C. to raise capital and prior permission from the Joint Charity Commissioner is necessary. In view of Section 36 (1) (a) of the BPT Act, the Officer of M.I.D.C., as per the Lease Deed would not even grant such consent without prior permission from the Charity Commissioner. There is no clear permission or consent is on record which is essential when the property is in possession of the registered Trust like Petitioner No. 1. If that is so, the present application filed by Petitioner No.1 ought not to have rejected on that ground. The requirement and satisfaction of the Joint Charity Commissioner is a must before passing any order granting such permission on such application. 6. The Officer of the M.I.D.C. pursuance to the rejection of this application itself, would not entertain such application for consent. The Joint Charity Commissioner being a statutory authority, therefore, need to adjudicate this issue first and if case is made out as contemplated under the BPT Act, to pass appropriate order. 7. It is not clear in the impugned order that why such application under Section 36 (1) (a) of the BPT Act is not applicable and/or why it does not fall within the ambit of this Section. The application should have been disposed off on this ground alone, without deciding the same as done in the present case. 8. In view of above without observing anything on the merits of the Application, I am of the view that the Joint Charity Commissioner to pass the appropriate order on this application first on all counts. 9. Resultantly, the impugned order dated 16th January 2009 is quashed and set aside. The matter is remanded back. The Joint Charity Commissioner to pass appropriate order, after giving full opportunity of hearing to both the parties again and dispose of the Application on merit in accordance with law on all counts, as early as, possible preferably within a period of three months from the date of receipt of this order. 10. The Petition is accordingly allowed. No order as to costs. (ANOOP V. MOHTA, J.)