IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE WRIT PETITION NO. 5347 OF 2008 WRIT PETITION NO. 5347 OF 2008 WRIT PETITION NO. 5347 OF 2008 M/s.Paradise Construction. ... Petitioner. V/s. The State of Maharashtra & others. ... Respondents. Ms.Sunita Poddar i/b. M.Y.Sayani for the petitioner. S.D.Rayrikar, AGP for respondent Nos.1 & 2. Rajiv Bafna for respondent No.3. S.U.Kamdar, senior counsel with Ramdasan K.V. for respondent No.4. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 28th August 2008. DATED: 28th August 2008. DATED: 28th August 2008. P.C.: P.C.: P.C.: ---- ---- ---- . Heard learned counsel for the petitioner and Mr.Kamdar, learned counsel appearing for the respondent No.4. 2. This petition, filed under Article 227 of the Constitution of India, is directed against the order dated 15th May, 2008 passed by the Charity Commissioner, Maharashtra State, Mumbai in Application No.J-4/52/2007 filed under section 36(1)(a) of the Bombay Public Trust Act, 1950 ("BPT Act" for short) accepting the offer given by respondent No.4. The petitioner has also, incidentally, challenged the order dated 13th December, 2007 passed below Exh.1 by the Charity Commissioner directing fresh advertisement, relying on the judgment of the learned single Judge of this Court in the case of Arunodaya Arunodaya Arunodaya Prefab v. M.D.Kambli Prefab v. M.D.Kambli Prefab v. M.D.Kambli, 1979 Mh.L.J. 104 (Bom) which stood overruled in the case of Sailesh Developers v. Sailesh Developers v. Sailesh Developers v. Joint Charity Commissioner Joint Charity Commissioner Joint Charity Commissioner, 2007 (3) Mh.L.J. 717. In this view of the matter, challenge to the order dated 13th December, 2007 does not survive. Learned counsel appearing for the petitioner also concedes that in view of the Full Bench judgment, it is not open for the petitioner to challenge the said order. Order accordingly 3. If, one turns to the impugned order dated 15th May, 2008, the Charity Commissioner has given reasons for accepting the offers given by the respondent No.4, which are reproduced hereinbelow: "14. Before I part with this aspect, it is required to mention here that on behalf of M/s.Paradise Construction, written submissions are placed on record at Exhibit 53 and objected to consider the offer of City Estate Developers Ltd. mainly on the ground that it is conditional one and as per the public notice (Exhibits 12 and 13); conditional offer was not to be accepted. I find myself unable to subscribe to this submission/objection of M/s.Paradise - 3 - Construction; for two reasons. Firstly, it is the applicant trust, who has to refuse the offer, if it is conditional one and not the offerer whose offer is second in number so far as price quoted is concerned. 15. Be the case as it may, if one reads Exhibit 50, admittedly solemnly affirmed by one of the Directors, Mr.Dharamchand J. Surana of City Estate Developers Ltd., it makes clear that it has shown readiness; to buy the property only on the terms and conditions incorporated by draft agreement with earlier offerer or as this authority would deem, fit and proper. So, to my mind, the offer given by highest bidder i.e. City Estate Developers Ltd. is not conditional, which would make it liable to be rejected. 16. By that as it may, as pointed out hereinbefore, City Estate Developers Ltd. has deposited Pay Order/D.D. of the amount equivalent to 25% of sum of earnest money, as difference amount of offer soon after open bidding. So; highest bidder cannot be said to be bidder, coming with conditional offer. I, thus, found no substance in the objection of M/s.Paradise Construction and reject it." 4. The learned counsel appearing for the petitioner while challenging the impugned order vehemently tried to contend that the offer given by respondent No.4 is a conditional offer. She also placed reliance on the affidavit of respondent No.4 dated 26th March, 2008 in support of her submission. - 4 - 5. I was taken through various offers and memorandums of understanding placed on record to which the petitioner is a party; wherein similar conditions which were put by the respondent No.4 in his offer are incorporated. The respondent No.4 filed affidavit stating that whatever terms and conditions arrived at between petitioner land respondent- Trust were acceptable to respondent No.4. The Trust did not object. The Trust did not challenge the impugned order. The respondent No.4 was held successful bidder, who has offered 1,11,00,000/-, as against the original offer given by the petitioner, which was in the sum of Rs.93,00,000/-. 6. At this juncture, it is necessary to note that the Charity Commissioner has conducted open bidding. In the open bidding, the petitioner has taken part. Now, it is, too late, for the petitioner to contend that the offer of the respondent No.4 should not have been accepted being conditional. As a matter of fact, conditional offer means an offer containing counter offer which needs to be accepted by the person giving original offer. Considered on this touchstone, the - 5 - acceptance given by respondent No.4 cannot be said to be conditional offer. Even otherwise, in view of open bid, the submission has lost its strength. 7. Having seen the impugned order, having examined the same in the facts and circumstances of the case, no fault can be found with the said order. The view taken is a reasonable and possible view. This Court not being a Court of appeal is not expected to interfere with the impugned order in its writ jurisdiction under Article 227 unless the procedure adopted and view taken by the authority below are found to be perverse. The petitioner could not demonstrate that the findings are perverse. 8. In the result, petition is dismissed in limine with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)