DATTATRAYA BABURAO WALAWALKAR AND OTHERS versus SIDDHIVINAYAK CONSTRUCTION PRIVATE LIMITED AND  OTHERS
[2016] 2 S.C.R. 905, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Issues
(2016] 2 S.C.R. 905 
DATTATRAYA BABURAO WALAWALKAR AND OTHERS 
A 
v. 
SIDDHIVINAYAK CONSTRUCTION PRIVATE LIMITED AND 
OTHERS 
Civil Appeal No. 2981 of2016 
MARCH 15, 2016 
[KURIAN JOSEPH AND ROHINTON FALi NARIMAN, JJ.] 
Trust & Charities: 
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Bombay Public Trust Act, 1950 - Development Control 
C 
Regulations for Greater Mumbai, 1991-Reg33(7) - Trust property 
- Sale of. by trustees - Sale-cum-development agreement -
Conditions to be fi1/filled - Trust property largely tenanted and on 
very meagre rents - Order by Charity Commissioner permitting to 
sell the trust property in favour of, 'R' Corpn-developer for a 
monetary consideration of Rs. 6 crores - Order passed by the 
D 
Commissioner set aside by the courts below - In appeal before this 
Court, the Trust directed to issue a fresh advertisement regarding 
the re-development of the properties - Initially 9 persons came 
forward, but ultimately offers received from 'R' Construction Co. 
and the developer - Held: Condition of containing a minimum of 
E 
70% irrevocable written consent of the occupiers of the old structure 
was to be fuljil/ed - Out of 105 tenancies of the trust, 65 consents 
were obtained - Another lJ consents were obtained which were 
subsequently revoked - On addition of lJ to 65 as consents once 
given are irrevocable, it would yield to around 74% of the occupiers 
of the old building - Initial offer itself was a fair offer - Developer 
F 
is willing to up the offer from Rs.8 crores to 8.25 crores and
the 
same has been accepted by the Trust - Thus, the order of the Division 
Bench of the High Court set aside. 
Disposing of the appeals, the Court 
HELD: 1.1 Having regard to the fact that 9 persons initially 
came forward but they all petered out and ultimately left only R 
Corpn. and R Constructions Pvt. Ltd. in the fray, the fact that R 
Constructions Pvt. Ltd. was the only other bidder which offered 
a sum.ofRs.7 crores about 5 years after the said offer ofR Corpn. 
of Rs.6 crores (which improved its offer to Rs.7 crorcs before 
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
the Division Bench of the High Court) shows that the offer made 
by R Corpn. appears to be a reasonable one. The sale-cum-
development agreement has been entered into under Regulation 
33(7) of the Development Control Regulations for Greater 
Mumbai, 1991, and has necessarily to fulfil one condition without 
which the sale-cum-development agreeme.nt cannot go forward 
at all-it has to contain a minimum of 70% irrevocable written 
consent of the occupiers of the old structure. Out of 105 tenancies 
of the Trust, 65 consents have been obtained, and another 11 
consents have also been obtained which, however, have 
subsequently beeu revoked. If these 11 to 65 were added as 
consents once given are irrevocable, the mathematics of the 
situation would yield a figure of roughly 74% of the occupiers of 
the old building. [Para 12] [912-H; 913-A] 
1.2 The initial offer itself was a fair offer in the facts and 
circumstances. The statement made by the counsel is recorded 
that his client was willing to up that offer from Rs.8 crores that 
had been offered by him before this Court to Rs. 8.25 crores, all 
other conditions of the report of the trustees remaining the same. 
In the facts and circumstances of these cases, it would be for the 
benefit of the Trust if the said offer is accepted by the Trustees 
and the same has been accepted. Therefore, the order of the 
Division Bench of the High Court is set aside. [Para
13] [913-B-
C] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2981 
of2016. 
WITH 
C. A. Nos. 2983, 2984, 2985 & 2986 of 2016 
From the Judgment and Order dated 18. l 0.2012 in Letters Patent 
Appeal No. 103 of2012 in Writ Petition No. 11070 of201 I passed by 
the High Court of Judicature at Rombay. 
C. U Singh, C.A. Sundaram, Sanjiv Sen, Sr. Advs., Ms. Abba R. 
Sharma, Santosh Paul, Arvind Gupta, Vishwas M. Kulkarni, Raghav 
Shekhar, Ms.Arti Singh, Mahesh Agarwal,Ankur Saigal, Rishab Parikh, 
E.C. Agrawala, Gaurav Agrawal, Shivaji M. Jadhav, Prashant G. Karande, 
Anshuman Animesh, Rajshri Ashutosh Dubey, Nishant R. 
Katneshwarkar, Sumit Goel, .Ms. Sanjana Rama Chandran, Ms. 
Akaanksha Mehra, Advs. for the appearing parties.
. DATTATRAYA BABURAO WALAWALKAR v. 
SIDDHIVINAYAK CONSTRUCTION PVT. LTD. 
The Judgment of the Court was delivered by 
R. F. NARIMAN, J. I. We have heard learned counsel for the 
parties. 
2. These appeals are· against a final judgment of the High Court of 
Judicature at Bombay dated 18th October, 20 I 2 by which the Division 
Bench of the Bombay High Court dismissed the letters patent appeal 
being LPA No. I 03of2012 in Writ Petition No. 1I070 of 201 I. 
3. We are concerned here with Trust property ad measuring 
3343.53 sq.meters in the Girgaun area of Mumbai. Under the Bombay 
Public Trust Act, 1950, the Chfirity Commissioner's sanction has first to 
be obtained before the trustproperty can be sold and for reasons given 
under the statute. The present Trustees of the Late Rao Bahadur Anant 
Shivaji Desai Topiwalla Charity had resolved to sell the aforesaid property 
inasmuch as they found that it was largely tenanted and very meager 
. rents were obtained. The protection afforded to the tenants under the 
Bombay Rent Act and the consequent rent that was being paid therefore, 
formed the necessity that was felt by the trustees to sell the aforesaid 
property. The said sale was mooted by the trustees under the 
Development Control Regulation 33(7) under which re-development of 
cessed buildings in the Island City of Bombay can be undertaken, provided 
they are constructed prior to 1940, at F.S.I. i.e. Floor Space Index at 3 
being given as incentive to rehabilitate the
existing tenants on the gross 
plot area. Appendix Ill, which has .to be read with Regulation 33(7), 
specifically stipulates in paragraph l(a), that the new building may be 
permitted to be constructed in pursuance of an irrevocable written consent 
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by not less than 70% of the occupiers of the old building. 
.. ... 
4. The said trustees, after obtaining a valuation report, which. they 
produced before the Charity Commissioner, therefore resolved to sell 
the aforesaid property to M/s,,Raunak Corporation. 
5. The Charity Commissioner, by his order dated 2nd September, 
2011, granted permission to sell the aforesaid trust property in favourof 
Raunak Corporation for a monetary consideration of Rs.6 crores along 
with developed area of 4000 sq.ft. built up to be given to the trust, free 
of cost, and a minimum of 460 sq.ft. usable carpet area to each occupier 
including flower beds etc., free ofcost, in terms of the Memorandum of 
understanding dated 23rd May, 2011. The ultimate order of the Charity 
Commissioner reads thus:-
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SUPREME COURT REPORTS 
[2016] 2 S.C.R. 
"I. Application is allowed. 
2. Sanction is hereby accorded to the trustees of ·The Late Rao 
Bahadur Anand Shivaji Desai Topiwalla Charity, Mumbai", P.T.R. 
No. N75 I /Mumbai for development cum sale of the trust property, 
viz. CTS No. 145A, IA, 145-4, 145B, C, D, E, F, G, bearing C.S. 
No. I 443 admeasuring 3999 sq. yards equivalent to 3343.57 meters. 
Or thereabout together with structures known as 'Kudaldeshkar 
Brahmin Niwas', in favour of Mis Raunak Corporation, a 
registered partnership firm at Laxmi Narayan Residency, Unnathi 
Garadens Ill, Opp. Ma Niketan, Pokhran Road, No. 2, Thane 
(West)-400 6 I 0 forthe monetary consideration ofRs.6,00,00,000/ 
- (rupees six crores only) along with developed area of 4000 sq.ft. 
Built up to be given to the trust, free of cost. and minimum 460 sq. 
ft. useable carpet area including flower bed>, niches and service 
ducts to the tenants, free ofcost, in terms of the Memorandum of 
Understanding dated 23.5.2011 and on the following additional 
terms and conditions:-
a. The deed for development cum sale of the trust property is 
to be executed within a period of six months from the date of 
this order. 
b. All expenses for stamp duty and registration charges and 
other incidental expenses shall be borne by the developer. 
c. The amount of monetary consideration of Rs.6.00 crores 
shall form part of the corpus of trust, which shall remain invested 
in any of the
Nationalized Banks/ Approved Securities in long 
term deposits and should not be withdrawn without prior 
permission of this Authority. Trustees shall be at liberty to use 
only the interest amount, which will be accrued on a sum 
invested towards accomplishment of the objects of the trust. 
d. This permission shall be subject to all the relevant laws and 
rules applicable to the development cum sale transaction and 
property all wel I. 
e. Trustees of the trust to report the change under section 22 
after completion of the development cum sale transaction to 
the concerned Assistant/Deputy Charity Commissioner, Greater 
Mumbai Region."
DATTATRAYA BABURAO WALAWALKAR v. SIDDHJVINAYAK 
909 
CONSTRUCTION PVT. LTD. [R.F.NARIMAN, J.] 
6. In a writ petition filed by Sidhivinayak Construction Private 
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Limited and others, inter alia, against the trust/trustees and the said Raunak 
Corporation, the learned single Judge of the Bombay High Court set 
aside the Charity Commissioner's order and ultimately moulded the reliefs 
by stating as under: 
"33. The need for alienation by redevelopment and ultimate sale 
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of the properties of the trust is established. I am therefore inclined 
to set aside the impugned order partly to the extent it grants 
sanction to alienate the property in favourofthe Respondent No.9 
and remand the application back. The Charity Commissioner shall 
thereafter direct the trustees to publish an advertisement in reputed 
newspapers like Times of India, Maharashtra Times, Indian 
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Express and Loksatta and invite bids from the developers for the 
redevelopment and sale of the property of the trust. The bid 
submitted by the Respondent No.9 which has been accepted by 
the Charity Commissioner should form the reserve price. Thus, 
the advertisement will indicate that any bidder who desires to bid 
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must fulfill the following minimum criteria: 
a. Monetary consideration ofRs.6 crores to the trust; 
b. Developed area of 4000 sq. ft. built up (3418 sq. ft. carpet 
area) to be given free of costs to the trust; 
c. usable carpet area of 460 sq. ft. to individual tenants including 
flower bed,
niches and service ducts. 
d. Corpus fund for the tenant society of such sum, as may be 
determined by the Charity Commissioner. 
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e. 24 Bank Guarantees of Rs.SO lakhs each as offered by 
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Respondent No.9. 
f. Additional consideration of Rs.one crore to the trust in case 
FSI is enhanced from 2.5 to 3." 
The learned Single Judge then directed that sanction for alienation 
of the trust property shall be granted in favour of the highest bidder." 
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7. A letters patent appeal filed before the Division Bench of the 
Bombay High Court led to the impugned judgment dated 1 gth October, 
2012 by which the judgment and order of the learned single Judge was 
upheld. That is how the present special leave petitions are before·this 
Court. 
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(2016] 2 S.C.R. 
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8. Leave granted. 
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9. After hearing learned counsel for the parties for some time, this 
Court by its order dated 5th February, 2016 stated as under:-
"Without prejudice to the contentions available to the parties, Shivaji 
Desai Topiwala, Charity, Bombay-Trust is directed to issue a fresh 
advertisement regarding the re-development of the properties as directed 
by the learned Single Judge at paragraph 33 of the judgment dated 29th 
March, 2012 in Writ Petition No. I lU70 of 2011 with the required 
modifications that sub para (a) will be read as "'7 crores", sub para (e) 
will be read as "24 Bank Guarantees" and sub para (f) will stand deleted. 
The advertisement shall be issued within a period of one week from 
today indicating time of two weeks. After processing the applications, 
report shall be filed within one week thereafter. 
Post on 08.03.2016." 
I 0. Pursuant to the said order of this Court, an advertisement was 
issued on 12th February, 2016 in four daily Newspapers. In response 
thereto, initially 9 persons came forward, but ultimately, on or before the 
- time stipulated in the advertisement, only two offers were received by 
the Trust- one from Ramee Construction Private Limited and the other 
from the same developer - Mis Raunak Corporation. In a report of the 
Trustees of the said Trust given to this Court, paragraph 9 set out the 
relevant merits of the aforesaid two offers/bids as
follows: 
S.No 
DESCRIPTION 
RAMEE 
MESSRS RAUNAK 
CONSTRUCTION CORPORATION 
PRIVATE UMITEI 
I. 
Monetary consideration 
Rs.7 crores 
R& 8 crores an:! one 
pay.ibleto the Trust 
2. 
Constm:ted area to be 
4,921.3 sq.ft. 
5,040 sq.ft. 
allotted to the Trust, 
free of cost 
3. 
Construe ted/Reha bili tat 
67,332.16 sq.ft. 
69,166.53 dq.ft. 
ed area to be offered to 
(Excluding parking (Parking will be 
the tenants/ occupants, 
area) 
made available to 
free of cost 
the tenants as per 
D.C. Regulations)
DATTATRAYA BABURAO WALAWALKAR v. SIDDHIVINAYAK 
911 
CONSTRUCTION PVT. LTD. [R.F.NARIMAN, J.] 
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4. 
Monthly rent per Rs.55/- per sq. foot Rentals offered at rates 
sq.foot offered to of carpet area 
ranging from Rs.17,500/-
tenants/occupants 
computed @ 460 
per 
tenement 
lo 
for 
availing 
of sq.ft. For 
Rs.25,000/- per tenement 
transit 
residential tenants 
based on the areas of the 
accommodation 
existing tenen1ents. 
during the period Rs. I 55/- per sq. 
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of redevelopment 
foot of carpet area 
Rs. I 00/- per sq.foot of 
for non-residential 
carpet area 
for 
non-
tenants 
residential tenants 
Also 
offered 
to 
pay 
higher 
rentals 
if the 
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prevailing rates at the 
relevant time are higher; 
alternatively, have also 
offered to provide transit 
accommodation. 
5. 
Frequency 
of 
I 0% annually 
1 0% every .11 months 
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increases 
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monthly 
rent 
togctl1er with the 
percentage of such 
increase 
6. 
Brokerage 
I month
1s rent 
l montll's rent 
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7. 
Transportation/ 
Rs. 15 ,000/-
Rs.20,000/-
Shifting Charges 
8. 
Corpus fund to be Rs. 7 crores and 90 
Rs. 8 crores and one 
paid 
to 
the lacs 
tenants/occupants 
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9. 
Amount of Bank Rs.12 crores 
Rs. 12 crores 
Guarantee offered 
10. 
Schedtde 
for No 
schedule Schedule depicting phase 
release 
of Bank furnished 
}Vise release of Bank 
Guarantee 
Guarantees furnished. 
Bank Guarantee to 
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be furnished within Bank Guarantee to be 
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months 
from furnished upon receipt of 
Development 
lQD 
i.e.
municipal 
Agreement 
sanctions 
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11. 
Pe1iod of validity Renewable upto 
Initially for 3 years 
of Bank 
completion 
and renewable upto 
Guarantee 
possession 
12. 
Background 
Copies of Occupation 
Copies of Occupation 
Certificates fi.1rnished in Certificates furnished 
Projects of 2 lakh respect of2 commercial in respect of 51 
sq.feet or more 
buildings in Mumbai 
residential buildings 
completed in the 
and I Hotel Building in 
in Thane, Kandivli 
last 5 (five) years Pune 
and Kalyan 
together with 
aggregating to 
copies of 
approx. 21.93 lacs 
Occupation 
sq.ft. 
certificates. 
11. We have been informed today by learned senior counsel, Mr. 
Sanjiv Sen appearing on behalf ofRarnee Constructions Private Limited, 
that his clients have been instructed to go up to Rs.8.20 crores in place 
of the Rs.7 crore offer made by it. He, however, has, on instructions, 
increased the offer of Rs. 7 crores to Rs. I 0 crores today. 
12. The reason that this Court passed its order dated 5th February, 
2016 was only to ascertain as to whether the offer of Rs.6 crores made 
by Mis Raunak Corporation was indeed a fair offer at the time it was 
made. Having regard to the fact that 9 persons initially came forward 
but they all petered out and ultimately left only Raunak Corporation and 
Ramee Constructions Private Limited in the fray, the fact that Ramee 
Constructions Private Limited was the only other bidder which offered 
a sum of Rs.7 crores about 5
years after the said offer of Raunak 
Corporation of Rs.6 crores (which improved its offer to Rs.7 crores 
before the Division Bench of the Bombay High Court) shows that the 
offer made by Raunak Corporation appears to be a reasonable one. We 
must also remember that the sale-cum-development agreement has been 
entered into under Regulation 33(7) of the Development Control 
Regulations for Greater Mumbai, 1991, and has necessarily to fulfil one 
condition without which the sale-cum-development agreement cannot 
go forward at all - it has to contain a minimum of 70% irrevocable 
written consent of the occupiers of the old structure. We have been 
informed that out of I 05 tenancies of the Trust, 65 consents have been 
obtained, and another 11 consents have also been obtained which, however, 
have subsequently been revoked. Jfwe were to add these 11 to 65, as
DATTATRAYA BABU RAO WALAWALKAR v. SIDDH!VINAYAK 
913 
CONSTRUCTION PVT. LTD. [R.F.NARIMAN, J.] 
consents once given are irrevocable, the mathematics of the situation 
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would yield a figure ofroughly 74% of the occupiers of the old building. 
13. We find that the initial offer itself was a fair offer in the facts 
and circumstances stated above. However, we record the statement 
made by Mr. C.U.Singh, learned senior counsel, that his client was willing 
to up that offer from Rs.8 crores that had been offered by him before 
this Court to 8.25 crores, all other conditions mentioned in paragraph 9 
of the report of the Trustees remaining the same. In the facts and 
circumstances of these cases, we find that it would be forthe benefit of 
the Trust ifthe said offer is accepted by the Trustees, which acceptance 
has, on instructions, been give1i 'by Shri C.A. Sundaram, learned senior 
counsel appearing on their behalf. We, therefore, deem it fit to allow the 
present appeals in the aforesaid terms and set aside the order of the 
Division Bench of the Bombay High Court. 
14. The appeals are, accordingly, disposed of as above with no 
orders as to costs. 
15. The application for impleadment is allowed. 
16. Pending applications, if any, stand disposed of. 
Nidhi Jain 
Appeals disposed of 
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