WP 45/10 1 SSK/30 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 45 OF 2010 Shree Ganpati Devsthan Jambhulpada ....Petitioner Versus The Joint Charity Commissioner, Brihanmumai. ...Respondent Mr. Sagar Joshi, Advocate for the Petitioner. Ms. S.S.Bhende, AGP for Respondents. CORAM : R. V. MORE, J. DATED : 5th AUGUST, 2010. P.C.: Heard learned Counsel for the respective parties. 2. Rule. By consent, Rule is made returnable forthwith and taken up for final hearing, since short point is involved. 3. Brief facts giving rise to the present writ petition are as follows: The Petitioner is a Trust registered under the Bombay Public Trusts Act, 1950 and owner of land being Survey no.167, Hissa no. 3, admeasuring about 34 Ares situate at Village Jambhulpada, Taluka WP 45/10 2 SSK/30 Sudhagad, District Raigad. The Petitioner resolved to give the said land on lease to Mr.Prasad Vaidya (hereinafter called as “ the Lessee”) for a period of 99 years for the purpose of forestation. Since this transaction required permission of the Charity Commissioner, the Petitioner filed an application under section 36(1) of the B.P.T.Act. The learned Joint Charity Commissioner by his order dated 21st September, 1999 granted permission to the Petitioner to lease the said land to the Lessee subject to terms and conditions mentioned in the said order. 4. The Lessee wants to use the said land for agricultural tourism. The Petitioner-Trust had no objection. Since the Petitioner had no objection afresh application was preferred under section 36(1) of the B.P.T.Act for permission to change the user of the said land from forestation to agricultural tourism. This application was rejected by the Joint Charity Commissioner by the order impugned and therefore, the present petition. 5. The Petitioner’s application was rejected only on the ground that there was no condition in the order dated 21st September, 1999 that the land shall be used for specific purpose. Having gone through the impugned order and earlier order dated 21st September, 1999 alongwith Memorandum of Understanding, I find that the impugned order cannot be sustained. WP 45/10 3 SSK/30 6. The Charity Commissioner by the order dated 21st September, 2009 gave sanction to the Petitioner under section 36(1)(b) of the B.P.T.Act to lease out said land to the lessee on his depositing an amount of Rs.40,000/- as deposit and on payment of Rs.1200/- per year as rent thereof. The permission was subject to eight conditions. The condition no.(iii) is relevant which reads thus: “iii) All other terms of the Memorandum of Understanding dated 26th December, 1996 shall be binding on both the parties during the subsistence of the lease.” Thus under the order, the terms of Memorandum of Understanding dated 26th December, 1996 are binding on the parties. The said Memorandum of Understanding is annexed at Exhibit “A” to the petition. Clause (e) of the Memorandum of Understanding reads as follows: “e) The Lessors have agreed to grant to the Lessee and the Lessee has agreed to take on lease from the lessors the said property on a long term lease for the purpose of enabling the lessee to carry out forestation by growing trees, cultivating floriculture and vegetables of different kinds on the said land on the terms and conditions hereunder written.” WP 45/10 4 SSK/30 The conjoined reading of the order dated 21st September, 1999 of the Charity Commissioner and the Memorandum of Understanding dated 26th December, 1996 between the Petitioner’s Trustees and the Lessee makes it clear that the said land was to be used for forestation by growing trees, cultivating floriculture and vegetables of different kinds. In these facts and circumstances, the finding of the learned Joint Charity Commissioner in the impugned order that there is no condition in the order dated 21st September, 1999 regarding user of the said land for specific purpose is factually incorrect. The Lessee wants to change the user of the said land and the Petitioner has no objection to the same and therefore, the application is rightly preferred before the Joint Charity Commissioner under section 36(1) of the B.P.T.Act for prior sanction. The Joint Charity Commissioner ought to have decided this application on merits. However, the Petitioner’s application is rejected without going into the merits on the ground which in the light of the above discussion is not sustainable. In the above facts and circumstances, the writ petition is disposed by passing following order: 1. The impugned order is quashed and set-aside and the matter is remanded back to the Joint Charity Commissioner, Greater Mumbai for disposal of the Petitioner’s application afresh in the light of the observations made above. WP 45/10 5 SSK/30 2. Needless to mention that the Joint Charity Commissioner shall dispose of the matter independently on its own merits and as expeditiously as possible. Rule is made absolute accordingly. (R. V. MORE, J.)