skt/- 1 28.wp.2860.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2860 OF 2010 Ashoknagar Owner’s Welfare Society ... Petitioner Vs. Jahangir A. Wadia & O rs. ... Respondents ...... Mrs.Gauri K. Jadhav for the petitioner. Mr.Ahmed Sayed and Ms.Asmita Poojari i/by M/s. Consulta Legal for respondent nos. 1 to 4; Mr.D.P.Madon, Senior Counsel with Mr.Sujeet Suvarna & Mr.Bhushan Panse i/by D.S.K. Legal for respondent no.5; Mr.S.N.Bhosale, AGP for respondent no.6. ...... CORAM : R.C.CHAVAN, J. DATE : 3rd MAY, 2010. P.C. 1 This petition by the Society of the Owners structures on the plot of land which has been permitted to be sold by the Charity Commissioner, is directed against the order passed by the learned Joint Charity Commissioner, Mumbai on 7th December 2009 in Application no. J-4/62/09 before him. 2 The land in question belongs to J.H.Wadia Trust. Since the skt/- 2 28.wp.2860.10.sxw Trust found that the State was likely to acquire the land because it was the Slum it decided to sell the property. Therefore, it invited offers from prospective purchasers by publishing advertisements in Free Press Journal and Navshakti on 20th February 2008. Some Developers submitted their offers. The petitioner had not submitted any offer to the Trust. The Trust decided to consider the offer of M/s.Skylink Developers who is respondent no.5 in this petition. The Trust then applied to the Charity Commissioner under Section 36 of the Bombay Public Trust Act for permission to sell the property. 3 The petitioner claims to have sent an application to the Charity Commissioner on 15th May 2009, which was received by the Clerk of the office of the Charity Commissioner on the same day. This application requested the Charity Commissioner to invite the petitioner for hearing and disposal of the application. Thereafter, on 13th August 2009, an application for intervention also seems to have been filed before the Charity Commissioner. 4 The Charity Commissioner seems to have been generous and skt/- 3 28.wp.2860.10.sxw he did invite the petitioner by sending a letter to them, which was received back unclaimed according to the rozamana of the proceeding maintained by the office of the Charity Commissioner. Thereafter, the Charity Commissioner proceeded to decide the application and upheld the proposal of the Trust to transfer the property for a sum of Rs. 3 crores in favour of respondent no.5- M/s.Skylink Developers. Aggrieved thereby, the petitioner is before this Court. 5 The learned counsel for the petitioner submitted that it was incumbent upon the Charity Commissioner in view of Judgment of the Full Bench of this Court in ‘Shailesh Developers & Ors. Vs/ Joint Charity Commissioner, Maharashtra & Ors. reported in 2007(3) Bom.C.R.7” to consider the petitioner’s offer as well. The learned counsel drew my attention to observations at para 28 and 30 of the judgment which reads as under : “28. While exercising powers under section 36 of the said Act of 1950, the Charity Commissioner has to safeguard the interests of the trust as well as the interests of beneficiaries. The learned Single Judge in the case of Arunodaya Prefab (supra) has skt/- 4 28.wp.2860.10.sxw held thus : “It may not be open for the Charity Commissioner to consider the offers of third parties except only to the extent that they might disclose to him what might be the market value of the land only for the limited purposes of ascertaining the market value of the land.” The said view was rightly criticised before us by pointing out that if Charity Commissioner was to invite offers only for the purpose of ascertaining the market value of the property, no genuine buyer or purchaser will come forward and offer a genuine competitive price. It was submitted that no genuine buyer would be interested in coming forward with the offer if his offer is to be considered only for a limited purpose of finding out as to what was the market value on the relevant date. If the offers are invited only for this purpose, there is every possibility that the offers will not be bona fide and genuine.” “30. The second question referred to the Full Bench for decision is regarding locus standi of a person who appears before the Charity Commissioner and and offers his bid to challenge the order passed by the Charity Commissioner. The trustees and persons having an interest in the Trust can always challenge the order. We have already held that the proceeding under section 36 of the said Act before the learned Charity Commissioner is a judicial proceeding. The Apex Court has held that a trust property is on part with a public property so far as its sale or transfer is concerned. It is, therefore, very difficult to say that such a person who appears before the Charity skt/- 5 28.wp.2860.10.sxw Commissioner and offers his bid has no locus standi to challenge the final order passed by the Charity Commissioner. Such a person will certainly have locus standi to file the petition under Articles 226 and 227 of the Constitution of India for challenging the final order passed under section 36 of the said Act. Howe4ver, the scope of challenge will be naturally limited. Such a person will be in a position of a bidder challenging the auction or tender process of sale of a public property. The challenge by such a person to the order will be limited to the decision making process of the Charity Commissioner. Int he case of A.R.Khan Construcwell the Division Bench has rightly held that after the decision in the case of Aurnodaya prefab, the concept of locus standi has been expanded.” 6 It is not clear as to how these observations of the FullBench would entitle the petitioner to participate in a process without even complying with the requirements of the process initiated by the Trust. The Trust had published an advertisement inviting offers prescribing that the offerers were supposed to tender pay order along with their offers and signed terms and conditions. 7 As may be seen from para 13 of the judgment of the Charity Commissioners, the Charity Commissioner observed that the pay order and signed terms and conditions were not produced by skt/- 6 28.wp.2860.10.sxw Shrinath Developers. Thus, the offer did not fulfill the conditions. This is the reason as to why he had not considered the offer of Shrinath Developers, who had not tendered pay order and signed terms and conditions. The petitioner cannot espouse the cause of respondent-Shrinath Developers. If Shrinath Developers are aggrieved, they can fight for themselves. As far as the petitioners are as concerned, they had merely requested by their intervention application to award the tender to them if their offer matches the bid of M/s.Skylink Developers, without specifying as to what was their bid. 8 The Charity Commissioner was required to protect the interest of the Trust and he has discharged his duty properly by passing the impugned order. 9 It is not that the petitioners offer to pay a sum substantially higher than what was offered by respondent no.5. Had it been so, it could have been said that the Charity Commissioner did not take care of the interest of Trust. skt/- 7 28.wp.2860.10.sxw 10 In view of this, the petition is thoroughly misconceived and stands dismissed. [ R.C.CHAVAN, J. ]