SSK/909 1 WP/6984.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6984 OF 2009 Arjun Panchal Shah ....Petitioner Versus Father Sabastian Correa & Ors. ...Respondents Mr. Kevic Setalward with Mr. Dhiren Shah & Mr. S. Sinha i/b. Vimla & Co., Advocate for the petitioner. Ms. N. T. Dutia i/b. M/s. Nameet & Co., Advocate for respondent nos. 1 & 2. Mr. Amit Sale with Mr. H. Shaikh i/b. Jus Consultus, Advocates for respondent no.3 Mr. A. H. Khatri i/b. Jus Consultus, Advocate for respondent nos. 2 to 6 in Civil Application No.617 of 2011. Mr. Cardoza, AGP for the State. CORAM : RANJIT MORE, J. DATED : 17th August, 2011. P.C.: Heard Mr, Setalward, learned counsel for the petitioner, Ms. Dutia, learned counsel for respondent nos. 1 & 2, Mr.Sale, learned counsel for respondent no.3 and Ms. Cardozo, learned AGP for the State. 2. The petition arises out of the proceedings under Section 36 of the Bombay Public Trusts Act, 1950 (for short “the BPT Act”). The respondent no.2-Trust is the owner of the property bearing CTS Nos. 621, 621(1) to 621(84) admeasuring 1606 sq.meters situated at Village-Chakala, SSK/909 2 WP/6984.09 Opposite Godrey Philips India Ltd., Sahar, Andheri (East), Mumbai – 400 099 (hereinafter referred to as “the said entire land”). The petitioner admittedly is a tenant of respondent no.2 in pursuance of tenancy agreement dated 14th October, 1961 in respect of the portion of land being CTS Nos. 621/52 to 54, 621/57, 621/59 and 621/61 admeasuring 2422 sq.ft.. The petitioner claims to have constructed permanent construction on this property in pursuance of the tenancy agreement. An agreement to sale was entered into between the petitioner and respondent no.2 on 15th April, 1990 where under the tenanted property in possession of the petitioner was agreed to be sold for an amount of Rs.1,90,000/- and earnest money of Rs.1,50,000/- was paid by the petitioner to respondent no.2. The respondent no.2 thereafter preferred an application under Section 36 of the BPT Act for sanction before the Charity Commissioner on 9th March, 1992. The application appears to have been dismissed for want of prosecution by the Charity Commissioner in year 2003. The said entire land is encroached by the slum dwellers, and therefore, a resolution was passed by respondent no.2-Trust on 14th January, 2007 authorising the sole trustee to take necessary steps to sell the trust property. Offers were invited by issuing public notice in Mumbai Mirror and Maharastra Times. In pursuance of this notice, 11 offers were received. Respondent No.3’s offer for Rs.2.51 crores being highest was accepted, and thereafter, application under Section 36 of the BPT Act was made before the Joint Charity Commissioner, the SSK/909 3 WP/6984.09 respondent no.4 for sanction. By the impugned order, sanction was granted. This sanction is impugned in the present petition. The impugned sanction in favour of respondent no.3 is challenged mainly on the ground that while granting the same, respondent no.4 has not considered petitioner’s objection viz. petitioner’s earlier agreement to sale with the respondent no.2 and respondent no.2’s application in the year 1992 for permission under Section 36 of the BPT Act. 3. Mr. Setalward, in this regard, relied upon the order passed by a learned Single Judge of this Court on 18th December, 2007 in Notice of Motion No.3677 of 2007 in Suit No. 2712 of 2007. The said suit was filed by the petitioner for specific performance of agreement between himself and respondent no.2 executed on 15th April, 1990. The notice of motion was filed seeking injunction restraining respondent no.2 from disposing the property in possession of the petitioner. This notice of motion was disposed of by the order of learned Single Judge passed on 18th December, 2007 with liberty to the petitioner to urge his objection before respondent no.4- Charity Commissioner in proceedings under Section 36 of the BPT Act initiated by respondent no.2 to obtain sanction of transaction in favour of respondent no.3. Mr. Setalward, also relied upon a Division Bench order in Criminal Writ Petition No.2632 of 2008 passed on 12th February, 2009. This writ petition was directed against the order of SSK/909 4 WP/6984.09 respondent no.4 by which the petitioner’s prayer to send the withdrawal application to the handwriting expert was rejected. The Division Bench by the said order directed respondent no.4 to decide the application under Section 36 of the BPT Act filed by respondent no.2 along with petitioner’s application wherein he has stated that he has not withdrawn the earlier objections. 4. The Charity Commissioner is a Custodian of the Trust Property. While granting sanction to sell the property under Section 36 of the BPT Act, the Charity Commissioner is obliged to consider the need of the trust to sell the property, whether the transaction is in the interest of the trust, and lastly, whether the trust is being offered market rate for the trust property. There is no dispute about the need of the trust to sell the property, inasmuch as, the petitioner himself had once agreed to purchase the property which is in his possession from respondent no.2. 5. It is not the case of the petitioner that the transaction in question is not in the interest of the trust or the price which is offered by respondent no.3 to respondent no.2 is not a market price. The only limited grievance which Mr. Setalward, learned counsel for the petitioner has raised is about petitioner’s right to the land being CTS 621/52 to 54, 621/57, 621/59 and 621/61 admeasuring 2422 sq.ft.. Learned counsel for respondent nos. 1 & SSK/909 5 WP/6984.09 2 does not deny that the petitioner is in possession of this land in pursuance of the tenancy agreement dated 14th October, 1961 and the petitioner has constructed structure after he was inducted as a tenant on the said land. Mr. Sale, learned counsel for respondent no.3 also submits that respondent no.3 purchased the property belonging to respondent no. 2 subject to petitioner’s tenancy rights in the land admeasuring about 2422 sq.ft. 6. In the light of the above position, no case is made out to interfere in the impugned order in my jurisdiction under Article 227 of the Constitution of India. The petition is, therefore, dismissed subject to the observations made hereinabove. 7. In view of the disposal of the writ petition, the Civil Application No.617 of 2011 will not survive for consideration and same is disposed of accordingly. (RANJIT MORE, J.)