Allowed

M/S.B.N. Enterprises, v. the State of Maharashtra and Ors.

Bombay HC14 Jun 2013WP/2838/2013

Case brief

AI extract

What is this about?

High Court quashed Joint Charity Commissioner's order mandating republishing of redevelopment notices issued in 'Financial Express'. Court directed fresh decision considering prejudice to petitioner who deposited crores, relevant factors on petitions merits, and necessity of wider participation.

What did the court decide?

Impugned order dated 16 February 2013 quashed. Fresh decision to be taken within six weeks giving opportunity of hearing.

M/S.B.N. Enterprises, Vs the State of Maharashtra and Ors. — Bombay HC (2013) — LawSathi Research

WP2838-13.doc

Sequeira

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 2838 OF 2013

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M/s B.N.Enterprises. .. Petitioner Vs.

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The State of Maharashtra & ors. .. Respondents

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Mr.Haresh Jagtiani Senior counsel a/w Mr.Ghanshyam Upadhyay, Mr.Anil D'Souza and Mr.V.N.Pohuja i/b Raksha Ajaykumar Maroo, for petitioner.

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Ms.A.D.Vhatkar, AGP, for respondent Nos.1 & 2.

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Mr.Mayur Bhojwani i/b M/s Manilal Kher Ambalal & Co., for respondent Nos.3 to 7.

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Dr.Kumudini Mayur & Mr.Bhogilal Rambhia, proposed Interveners present.

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CORAM: N.M.JAMDAR, J. Friday 14 June 2013

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P.C.:

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Rule. Rule made returnable forthwith. Heard learned Senior counsel for the petitioner and the learned counsel for the respondent Nos.3 to 7 and the learned AGP for respondent Nos.1 and 2.

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The petitioner challenges the order passed by the Joint Charity Commissioner Mumbai, dated 16 February 2013 whereby the Joint Charity Commissioner has directed that notices be republished in the newspapers, calling for offers.

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The respondent No.3 -The Tulsidas Gopalji Charitable and

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WP2838-13.doc

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Dhakleshwar Temple Trust has a property admeasuring 1292 sq.metres situated at Warden Road Mahalaxmi Mumbai, bearing Survey no.1/7099, CTS No.792. The Trust was desirous of developing the said property as according to the trust the property is unable to fetch any income. The Trust carried on private negotiations with certain interested parties, including the petitioner, and a memorandum was entered into between the petitioner and the Trust on 19 November 2009.

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On 14 February 2010, the trust issued notices in two newspapers : “Financial Express” in English and “Pudhari” in Marathi, inviting offers from public in respect of re-development of the property. On 29 February 2010, the Trust filed an application under section 36(1)(a) of The Bombay Public Trust Act, 1950 seeking sanction for redevelopment of the property. During the pendency of the application three more parties i.e. Mr.Kaushik Rambhia, M/s.Sanghvi Realtech Pvt. Ltd. and M/s.Flower Queen Builders Pvt. Ltd. participated and submitted their offers. The Charity Commissioner directed the parties to deposit an amount of Rs.5,00,00,000/- to show their bonafides. Accordingly the petitioner deposited an amount of Rs.5 crores. Thereafter the offers of the other parties came to be rejected as two parties failed to deposit the amount of Rs.5 crores and the offer of M/s Sanghvi Realtech Pvt. Ltd. was not considered.

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Thereafter the application was adjourned from time to time and on 16 February 2013 by the impugned order the Joint Charity Commissioner came to the conclusion that since the advertisement was issued in Financial Express which has a circulation of only 36,000, there

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was need of wider participation of the interested parties and the trustees were directed to republish the notice calling for bids in the office of Joint Charity Commissioner. The order is challenged in the present petition.

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The learned Senior counsel for the petitioner submitted that the Joint Charity Commissioner has taken extremely narrow view of the matter and has mechanically passed the impugned order without considering several other factors which are germane for this decision. The learned counsel submitted that though the newspaper Financial Express has limited circulation it is meant for target audience where normally advertisements of this nature are issued. He submitted that other parties did appear in the proceedings, but failed to deposit any amount. The learned counsel further submitted that in the case of adjoining plot of the very same Trust, the same Joint Charity Commissioner had granted sanction when the offers were invited through Financial Express. The learned counsel submitted that the petitioner has deposited an amount of Rs.5 crores three years back and it will cause serious prejudice to the petitioner if the entire process is now re-opened. The learned counsel submitted that though the rights of the intending purchaser are limited, they cannot be completely ignored by the Charity Commissioner. The learned counsel for the respondent Nos.3 to 7 states that the Trust has not challenged the decision of the Charity Commissioner. However no arguments were made on behalf of the respondent Nos.3 to 7 to oppose the petition, neither any reply is filed.

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At the hearing an oral intervention was sought on behalf of Mr.Kaushik Bhogilal Rambhia, who had also participated in the process

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WP2838-13.doc

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before the Charity Commissioner. The learned counsel for the petitioner opposed the intervention by the said Mr.Kaushik submitting that the intervener will have to take steps to agitate his rights and cannot be permitted to intervene in the petition filed by the petitioner.

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Though in principle, calling for wider participation cannot be faulted as this Court and the Apex Court, has in several cases, emphasized the need for calling for best offers for disposal of the properties of public trusts. What is paramount ofcourse is the interest of the Trust. It is therefore necessary for the Charity Commissioner to consider whether the course of action adopted is in the best interest of the trust or will create hurdles and needless litigation. The petitioner has placed on record the prejudice that may be caused to the petitioner if at the fag end of the proceedings the entire process of negotiations is re-opened. The petitioner has also placed on record that in respect of the same trust in the adjoining plot the Charity Commissioner found that the publication in Financial Express was adequate compliance. Other bidders in fact had participated and the matter had finally reached for argument after three years. The petitioner had deposited Rs.5 crores three years back, and is awaiting the decision.

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The perusal of the impugned order shows that it is passed only on the ground that the advertisement was issued in Financial Express without any reference to, at what stage the proceedings were, what will be prejudice to the petitioner and whether the interest of trust will be served or not. These would be some of the relevant factors that will have to be considered by the Charity Commissioner before taking a decision or re-

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opening the negotiations process at the fag end of the proceedings. Since the Charity Commissioner has not applied his mind to the germane facts, which are placed on record by the petitioner, it will be appropriate if the Charity Commissioner considers all the relevant facts in its totality and then take decision as to whether re-publication of notice in the newspapers is necessary or not. Enumeration of the factors indicated above is not reflection on the merits of the factors but they are mentioned to illustrate that there are several other aspects of the matter.

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As far as, the intervention by Mr.Rambhia is concerned, in view of the order that is proposed to be passed, it is not necessary to consider grievance of the intervener in these proceedings. It will be open to the intervener to take such steps as are permitted in law for agitating his grievance.

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Accordingly, the impugned order passed by the Joint Charity Commissioner dated 16 February 2013 is quashed and set aside. The Joint Charity Commissioner will take a fresh decision in light of what is stated above and pass an order giving opportunity of hearing to the concerned parties. Considering the fact that the matter is pending since the year 2010 the Joint Charity Commissioner will take a decision within a period of six weeks from today.

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Writ petition stands disposed of in terms of above. No costs.

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N.M. JAMDAR, J.

M/S.B.N. Enterprises, v. the State of Maharashtra and Ors.

Case brief

What is this about?

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M/S.B.N. Enterprises, v. the State of Maharashtra and Ors.

Case brief

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