wp3142-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3142 OF 2011 Tuljabhavani Housing Development Pvt.Ltd. .. Petitioner Versus The Charity Commissioner & Ors. .. Respondents Mr.A.A.Kumbhakoni with Samir Vaidya for petitioner Mr.A.V.Anturkar with Dinesh Shah, M.L.Kukreja i/b. Lilani Shah & Co. for respondent No.5 Mr.Yadunath Chaudhari for respondent No.7 Mr.Aniruddha Tripathi for respondent No.6 Mr.Y.S.Jahagirdar, Senior Advocate with S.A.Sawant & Ketan Joshi for respondent No.4 Mr.S.N.Bhosale, AGP for respondent Nos. 1 and 2 CORAM : S.C.DHARMADHIKARI, J. DATE : 4th July 2011. P.C.: 1] Heard Counsel. This petition under Articles 226 and 227 of Constitution of India impugns an order dated 29th March 2011 of the Joint Charity Commissioner in Miscellaneous Application No.1 of 2010. The Joint Charity Commissioner was pleased to dismiss this application. It was moved by two Trustees of Hazi Ismail Hazi Habib Trust. The prayers in the said miscellaneous application No.1 of 2010 on which the order wp3142-11.doc 2 has been made proceeds on the basis that the property of the said Trust which has been more particularly described in the main application has been put up for sale. The Charity Commissioner was approached seeking sanction under section 36(1)(a) of the Bombay Public Trusts Act, 1950. This application was numbered as J-4/38 of 2003. Various parties contested and bidders were allowed to bid. There were bids of three persons. The details of the bids are mentioned in para 4 of this application and it was stated that the Joint Charity Commissioner passed an order on 12th September 2007 and granted sanction for sale of the trust property in favour of one M/s.Tuljabhavani Developers who are the petitioners. However, the successful entity was unable to comply with the order due to unavoidable circumstances and, therefore, the second highest bidder M/s.Mighty Engineers came with an offer and therefore, sanction was granted in their favour on 26th May 2008 with specific condition that the order is valid for six months and remaining consideration amount should be deposited with the Trust and if the said party fails to do that, the amount deposited shall be forfeited. The said M/s.Mighty Engineers moved an application for extension of time which was granted till 15th February 2009. It is stated that M/s.Tuljabhavaji Developers which was one of the bidder and who unfortunately could not comply with the order and deposit the required amount, have approached the Trustees and they wp3142-11.doc 3 are willing to give full consideration in the amount of Rs.15.05 Crores as a single and one time payment. Therefore, the necessary permission be granted to the said Tuljabhavani to deposit the consideration amount. The application was signed by Mr.Shiyab and Rashid. It was on this application which was contested by the other parties that the impugned order has been made. The Charity Commissioner has made a reference to an application that was made seeking his sanction and has observed that both M/s.Tuljabhavani and Mighty Engineers failed to conclude the transaction within the stipulated period. The learned Joint Charity Commissioner was of the opinion that if the main matter is disposed of by him, it would not be possible for him to consider the relief sought in the miscellaneous application. There was a reply filed by the other bidders who have opposed the reliefs sought. The Joint Charity Commissioner noted that one of the Trustees Ismail Nakhuda, who is not party to this miscellaneous application contested and strongly opposed the reliefs prayed therein. Finding that such reliefs cannot be granted either directly or indirectly that the Charity Commissioner has dismissed the same. 2] It is this order which has been challenged in this petition. Mr.Kumbhakoni, learned Counsel appearing for petitioners firstly submitted that this Court earlier had made an wp3142-11.doc 4 order which presented difficulties inasmuch as, this Court directed that proceedings cannot go endlessly and the attempt to fetch fair market price should not result in main application being kept pending. The bidding process had to gain finality. He submits that, therefore, price as on that date was considered and as a result thereof the permission was granted. However, there was an attempt made to match the bid submitted by M/s.Mighty Engineers and my attention is invited to Annexure P to this petition by Mr.Kumbhakoni to contend that when the application was allowed and the property was directed to be sold to Mighty Engineers and since Mighty Engineers were unable to comply with the terms and conditions of the sanction, then, in terms of this Court's order the application of the remaining trustees should have been considered and an opportunity as sought for by the petitioners should have been granted. Ultimately, the trust property would have been disposed of as the sanction order has already determined the price. For all these reasons, he submits that the reasoning given by the learned Joint Charity Commissioner while rejecting the application is only because he understood the order and directions of this Court in a particular manner and that was the understanding given to all parties. For all these reasons, he submits that it is in the interest of the trust to allow this application. wp3142-11.doc 5 3] After hearing Mr.Kumbhakoni, Mr.Anturkar, Mr.Jahagirdar, learned Senior Counsel and Mr.Choudhary, all of whom are appearing for interested parties, I see no reason to interfere with the order of Charity Commissioner. The order proceeds on the basis that both bidders have failed to comply with the terms and conditions of the order of sanction granted by the charity Commissioner. Once they have not been able to comply with the terms and conditions and were unable to bring in the monies that they were required to bring in and pay to the Trustees, then, they cannot put up trustees to file such application and seek instant relief. To my mind the Joint Charity Commissioner was right in rejecting the application inasmuch as once the main matter has been disposed of, there was hardly any way he could have considered the request of the trustees as made in the miscellaneous application. The order of sanction had already been passed and that application was finally disposed of. There is no justification to now show me the order passed by this Court because that order was passed prior to the disposal of the miscellaneous application No.38 of 2003. Once the miscellaneous application was disposed of on 26th May 2008, then, there is no support which can be derived from the earlier order and directions. If the sale, pursuant to this order of sanction, cannot be concluded as both entities have failed to comply with the terms and conditions of the order of sanction, then, the only course open is to approach wp3142-11.doc 6 the Charity Commissioner. If the Trustees so desire they can approach him seeking his sanction for sale of the very property which was the subject matter of the earlier proceedings. That is the only remedy which they can avail of. They cannot file miscellaneous application which purports to safeguard interest of not the trust but one of the bidders. That was not the manner provided by law. To approach the Charity Commissioner in concluded proceedings is a request which is totally misplaced and untenable and rightly it has been rejected. 4] The grievance of the occupants and/or old tenants of the building is that the building is in a dilapidated condition and the trust has received notices from the local authorities that in such dangerous circumstances people should not be allowed to occupy the building and the same should be pulled down. However, the only way to protect the interest and benefit of the trust, is to dispose off the immovable property. If the trustees still hold that opinion and if they still feel that the property be disposed of in the interest and benefit of the trust, then, neither rejection of the application made by them vide impugned order nor any of the observations therein and the orders of this Court passed earlier or today prohibit them from making a request in that behalf. Once they comply with the requisite procedure, they can still make an application and invoke jurisdiction of the wp3142-11.doc 7 Charity Commissioner under section 36(1)(a). Needless to state that if such an application is made, the Charity Commissioner will dispose of the same in accordance with law, after hearing all parties. 5] Needless to further add that all bidders who had bid at the earlier occasions are free to place their bids before the Charity Commissioner but the Charity Commissioner must abide by the law laid down by Full Bench of this Court in the case reported in 2007 Bom.C.R.7 (Sailesh Developers Vs. Joint Charity Commissioner) . Merely because the applicant trustees made an application on behalf of Tuljabhavani does not mean that this Court or the Joint Charity Commissioner has rendered any finding on their locus and conduct and each of the contentions with regard to the conduct of either M/s.Tuljabhavani or Mighty Engineers can be raised before the Charity Commissioner as and when the said entities place their bids at the fresh bidding for sale of the trust property before the Charity Commissioner. All contentions of parties in that behalf are kept open. Subject to above, the petition is dismissed. No costs. (S.C.DHARMADHIKARI, J)