vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4108 OF 2009 WRIT PETITION NO.4108 OF 2009 WRIT PETITION NO.4108 OF 2009 Seth Damji Laxmichand Jain Dharma Sthanak (Trust) through its Trustees ... Petitioner V/s. The Joint Charity Commissioner Maharashtra State & Anr. ... Respondents Mr.R.Z. Moray for Petitioner Ms.Bhende, AGP, for Respondent No.1 Mr.S.H. Aney with Sanjay Jain for Respondent No.2 CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: MAY 5, 2009 MAY 5, 2009 MAY 5, 2009 P.C.: P.C.: P.C.: . The petitioner has approached this Court against the order of the Joint Charity Commissioner dated 30.3.2009. This order has been passed on an application filed by the Trust u/s 36(1)(a) of the Bombay Public Trust Act, 1950. The rust had entered into a Memorandum of Understanding to sell the trust property to Respondent No.2 for Rs.50 crores. This MoU was arrived on 6.5.2008. However, it appears now that Respondent No.2 does not wish to go ahead with the purchase of the trust property and has therefore, sought return of the amount paid by them i.e. the amount of Rs.50 crores. The trustees had preferred an application u/s 36(1)(a) of the Bombay Public Trust Act for obtaining permission from the Charity Commissioner for the sale of the trust : 2 : property. The Charity Commissioner has dismissed the application since he was of the view that the MoU could not be acted upon as Respondent No.2 had backed out of the same. It is in these circumstances that the Charity Commissioner has directed a fresh process of bidding. The Charity Commissioner has also observed that unless the purchaser is willing to go ahead with the transaction the question of him granting permission to alienate the property in favour of Respondent No.2 does not arise and the application u/s 36(1)(a) has been rejected. 2. It is contended on behalf of the petitioner that by rejection of the application, the Joint Charity Commissioner has committed an error since the powers vested in him u/s 36(1)(a) would permit him to consider whether the sale in favour of Respondent No.2 was genuine and whether the trust would benefit by it. It is also submitted that the Joint Charity Commissioner ought to have protected the trust property by directing Respondent No.2 to go ahead with the sale rather than rejecting the application u/s 36(1). It is then submitted that the Charity Commissioner could not have directed the trust to return or refund Rs.50 crores which had been paid to the trust by Respondent No.2 within a stipulated time, failing which action would be initiated against the Trust under the Bombay Public : 3 : Trust Act. 3. In my opinion, the order of the Charity Commissioner rejecting the application u/s 36(1)(a) for permission to sell the property to Respondent No.2 has rightly been passed since Respondent No.2 did not wish to go ahead with the sale. The consequences which the trust would have to face as a result could be redressed by the trust in appropriate proceedings. The petitioner trust can always apply afresh u/s 36(1)(a) in case a new purchaser is found which the Charity Commissioner will consider after following the provisions of law. 4. However, the direction of the Charity Commissioner to repay the amount of Rs.50 crores is unsustainable. Mr.Aney, learned Counsel appearing for the Respondent No.2, consents to have clause (2) of the operative part of the impugned order set aside subject to the rights of Respondent No.2 to proceed against the Trust for recovery of their monies in accordance with law. 5. Accordingly, the petition is disposed of by setting aside clause (2) of the operative part of the impugned order. 6. This order will not preclude Respondent No.2 : 4 : from recovering their money from the trust, in accordance with law.