1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.10820 of 2009 Shri Santaji Utsahi Mandal, Yeola & ors. .. .. Petitioners v/s. The Joint Charity Commissioner & ors. .. Respondents Mr.P.B. Shah for Petitioners. Mr.S.N. Bhosle, AGP for Res.Nos.1 to 3. ---- CORAM : SMT.ROSHAN DALVI, J. DATED : 23rd February, 2010 P.C. : 1.Rule, returnable forthwith. 2.The Petitioners are trustees of Petitioner No.1-Trust in respect of a small immovable property. The immovable property is stated to be yielding no income. The rent is stated to be Rs.3.25 P.M. The Petitioners have not been able to show the meagre rent received by them. However, the tax receipts show taxes of Rs.60 Per Annum which exceeds the rent. The property has been settled upon the Trust since 1962 for construction of a temple which has never come to be constructed. The property is in possession of a tenant. Several eviction proceedings by the original landlady, which 2 settled the property upon the Trust as well as the trustees, resulted in no possession being secured by the Trust upon the eviction of the tenants. 3.The trustees decided to sell the property to the tenant himself. The trustees have issued a public notice in respect of the same. 4.An agreement for sale, which was to be considered by the Respondents under Section 36 of the Bombay Public Trusts Act, 1950 (the BPT Act), is dated 21.9.1998 for the property to be sold for Rs.1,01,000/-, out of which Rs.75,000/- have been paid by the tenant to the Trust. Since the public notice has been given but no offer has been received and since upon the facts of the case of the Petitioner no offers are likely to be received, the offer would be required to be accepted. 5.The learned AGP on behalf of the Charity Commissioner contends that the temple was to be constructed on the property which is sought to be sold. It is seen that since 1962 when the property was settled upon the Trust, the temple has not been constructed. The learned Charity Commissioner has observed that the real estate has substantial value and, therefore, on the premise that the sale price is not sufficient, the sale has been refused. However, it must be appreciated that 3 the property, which is fully tenanted and in the possession of a single tenant, would have value to the tenant but would generate no market value. Consequently, the rejection by the Charity Commissioner of the Application to grant permission to sell the property suffers from a gross error in appreciating the market value of a property which has no market value. Hence the order of the learned Charity Commissioner is grossly erroneous being without considering a property of no market value. The impugned order is, therefore, set aside. The learned Charity Commissioner shall specifically take into consideration the property generating no income and having no market value which is required to be sold, and consider granting permission for the sale under such circumstances. 6.The Application is, therefore, remanded to the learned Charity Commissioner for his decision to be given within 4 weeks. 7.In the circumstances aforesaid, the Writ Petition is allowed. Rule is made absolute accordingly. 8.There shall be no order as to costs. (SMT.ROSHAN DALVI, J.)