Chandka 1 NM-IN-SUIT-427-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. OF 2011 IN SUIT (L) NO. 427 OF 2011 Relcon Realty Pvt. Limited ..Plaintiff versus Reverend Father John Rumao & Ors. ..Defendants Mr. A. A. Joshi i/b. L. J. Law for Plaintiff. Mr. S. A. P. Thomas for Defendant No. 1. Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. J. G. Aradwad-Reddy for Defendant No. 3. CORAM : DR. D. Y. CHANDRACHUD, J. 07 March 2011. P.C. : Leave under Rule 146 of the High Court (O.S.) Rules 1980 is granted to the Plaintiff to take out Notice of Motion in terms of the draft Notice of Motion handed in. With the consent of all the learned counsel and at their request the Notice of Motion is taken up for hearing and final disposal at this stage. 2. The property which forms a subject matter of the suit belongs to the Church of St. Francis Xavier which is a Public Trust registered under the Chandka 2 NM-IN-SUIT-427-11 Bombay Public Trusts Act 1950. It is common ground that a building has been constructed on the suit property which is in the occupation of 52 flat owners. The Co-operative Society, admittedly is a lessee of the Trust. According to the Plaintiff it had submitted an offer to the Trust for the purchase of its reversionary interest. Admittedly, no written agreement has been entered into between the Plaintiff and the Trust. A notice inviting offers was issued which is published in the newspapers on 1 February 2011. On 1 March 2011 the Trust has accepted the offer of the Third Defendant. 3. The relief that has been sought in the Motion is for (i) the appointment of a Receiver; and (ii) an injunction restraining the First Defendant from alienating the property. The Motion is completely misconceived. The Trust is duty bound to make an application before the Charity Commissioner under Section 36 of the Bombay Public Trusts Act 1950 for alienation of its right, title and interest in the property. In view of the Judgment of the Full Bench in Sailesh Developers & Ors. vs. Joint Charity Commissioner Maharashtra & Ors.1, the power vesting in the Charity Commissioner under Section 36 is not confined merely to grant or refuse sanction to a particular sale transaction in respect of which sanction is sought. The Full Bench has held that a party who comes forward and submits his offer directly before the Charity Commissioner and complies 1 2007(3) Bom. C.R. 7 Chandka 3 NM-IN-SUIT-427-11 with other requirements as may be laid down in a pending application under Section 36 has the locus to challenge the final order which may be passed in that proceeding. 4. Confronted with this position in law, the learned counsel on behalf of the Plaintiff fairly submits that the Plaintiff would have sufficient recourse before the Charity Commissioner in the event that an application under Section 36 is made. In that view of the matter the reliefs which have been sought in the Motion for the appointment of a Receiver and for the grant of an injunction cannot be granted. The Plaintiff would have sufficient remedies in the event that an application under Section 36 of the Bombay Public Trusts Act 1950 is made before the Charity Commissioner. 5. On a request made to the Court by learned counsel for the Plaintiff, the learned counsel appearing on behalf of the First Defendant states that without prejudice to the contentions of the First Defendant and without accepting any entitlement on the part of the Plaintiff, the First Defendant shall furnish to the Plaintiff notice of at least 72 hours before the Charity Commissioner is moved under Section 36. The Motion is accordingly dismissed. (Dr. D. Y. Chandrachud, J.)