Bombay High Court
Dwarka Charitable Trust Through ... vs State Of Maharashtra And Ors on 22 March, 2016
Bench: R.M. Savant
wp-1102-15-(22)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1102 OF 2015
Dwarka Charitable Trust )
through its trustee )
Mr. Parag Bhimashankar Muley )
Age 40 yars occu Business )
R/at, 926, Shivajinagar F. C Road, )
Pune - 4 ) ..Petitioner
Vs.
1 State of Maharashtra )
Notice to be served through AGP ig )
High Court Bombay )
2 Joint Charity Commissioner )
Pune Region Pune )
3 Mrs Rupali Anand Gandhi )
Age __ Years Occ Business )
R/at, Chatur Apts, 55/1, Erandwane )
Law College Road, Pune -04 )
4 The Pune Municipal Corporation )
Through the Commissioner )
Pune at Pune ) ..Respondents
Mr. A. A. Deshpande for the Petitioner
Mr. S. K. Hande for the Respondent No.3
Mr. R. M. Pethe for the Respondent No.4
Ms Aparna Vhatkar AGP for the Respondent Nos.1 and 2
CORAM : R. M. SAVANT, J.
DATE : 22nd MARCH, 2016
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ORAL JUDGMENT
1 Rule with the consent of the Learned Counsel for the parties made
returnable forthwith and heard.
2 The Writ Jurisdiction of this Court is invoked against the order
dated 13-9-2014 passed by the Learned Joint Charity Commissioner, Pune
Region Pune, by which order, the Application No.13 of 2013 filed by the
Petitioner came to be rejected.
3 It is not necessary to burden this order with unnecessary details.
The Petitioner is a trust registered under the Maharashtra Public Trust Act,
1950 (for short the said Act) and bear registration No.E-519. The Petitioner
were desires to sell its property situated at Balewadi, Survey No.35,
admeasuring 6.5R. It seems that there are two plots comprising in the said
survey No.35 which the Petitioner trust wants to sell. The Petitioner wants to
sell the said properties in view of the fact that the said property bears
reservation of "garden" in the development plan of the Pune Municipal
Corporation (PMC) and in view thereof no construction can be carried out on
the said property. It is the case of the Petitioner that to fulfill the objects of the
trust, it wants to sell the said property. The Petitioner had accordingly invited
offers by publishing the notice in the local newspapers. The offer of the
Respondent No.3 at Rs.1.15 crores was the highest offer.
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4 The Learned Joint Charity Commissioner framed the following
issues and answered all the said issued against the Petitioner :
1. Has the trust legal necessity for sale of the said
property
2. Is it in the interest of trust
3. Is trust entitled for the relief.
4. What order
However, in so far as the issue Nos.1 and 2 are concerned, though
the said issues were answered in the negative, in the body of the order, there is
no finding recorded by the Learned Joint Charity Commissioner in support of
the answer to the said issues. The application in question has been principally
rejected on the ground that since the property bears the reservation of
"garden" in the development plan, the Petitioner trust cannot be permitted to
sell the property. The Learned Joint Charity Commissioner has accordingly by
the impugned order dated 13-9-2014 has rejected the said application.
4 The above Petition has been heard from time to time. On behalf of
the Respondent No.4 an affidavit has been filed by one Prashant Madhukar
Waghmare in which affidavit it is confirmed that survey No.35 of Balewadi is
reserved for G-1 garden as per Notification dated 30-8-2013 which is an
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extract of the development plan. To the said affidavit is annexed the said
Notification dated 30-8-2013. The Respondent No.3 has also filed the affidavit.
In paragraph 2 of the said affidavit it has been mentioned by the Respondent
No.3 that she is aware that the plots are served for garden purpose and that
she is willing to purchase the said plot as she want to avail the benefits of
Transferable Development Rights (TDR) arising from the said plots and that
she is ready and willing to hand over the said plots to the PMC by entering into
an agreement with the PMC. The Respondent No.3 as indicated above is the
highest bidder i.e. 1.15 crores, pursuant to the bids that were invited by the
Petitioner trust.
5 Since the application filed by the Petitioner which is referable to
Section 36 of the said Act has been rejected principally on the ground that the
property is reserved for "garden" in the development plan and therefore the
trust cannot be allowed to sell the said property, in my view, in the light of the
affidavit filed on behalf of the PMC as well as the Respondent No.3 who is the
highest bider who as indicated above has stated that she wants to purchase the
said plots to avail the benefit of TDR and that she is ready and willing to hand
over the said plots to the PMC, it would be just and proper to set aside the
impugned order and remand the matter back to the Learned Joint Charity
Commissioner for a denovo consideration of the said application. On remand,
the Learned Joint Charity Commissioner to take into consideration the affidavit
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filed on behalf of the Respondent Nos.3 and the Respondent No.4 i.e. PMC in
the above Petition. The remand is also necessitated in view of the fact that the
Learned Joint Charity Commissioner has not recorded any finding in the order
as regard the legal necessity to sell the property though in the issues framed an
answer has been given. The impugned order is accordingly quashed and set
aside and the matter is relegated back to the Learned Joint Charity
Commissioner for a denovo consideration of the application in terms of the
observations as contained above. The said exercise to be carried out by the
Learned Joint Charity Commissioner latest by 31-7-2016. The parties to appear
before the Learned Joint Charity Commissioner on 12-4-2016. Needless to state
that the all the contentions of the parties are kept open for being urged before
the Learned Joint Charity Commissioner. The Learned Joint Charity
Commissioner to decide the application on its own merits and in accordance
with law uninfluenced by the fact that on an earlier occasion the application
was rejected.
6 The Petition is allowed to the aforesaid extent. Rule is accordingly
made absolute with parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
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