2005:BHC-AS:17960 -: 1 :-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5797 OF 2005
M/s.Pudhari Publications Pvt.Ltd. ..Petitioner.
Versus
Sri Kikabhai Premchand Trust
Settlement No.VI and Ors. ..Respondents.
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Mr.Tejas Deshpande for the Petitioner.
Mr.V.V.Tulzapurkar with Mr.Ramesh Soni with Ms.Iyer i/
by Doijode Associates for the Respondents Nos.1 to 7.
Mr. V.A.Thorat with Mr. Ameet Harian with Ms.
Khatri i/by Hariani & Co. for the Respondent No.8.
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CORAM : S. A. BOBDE, J.
DATED : 30TH SEPTEMBER, 2005.
ORAL ORDER .:-
.:
1. Rule, returnable forthwith. Mr. Soni,
Advocate waives service of rule for respondents Nos.
1 to 7. Mr. Hariani, Advocate waives service of rule
for the respondent No.8.
2. Heard by consent.
3. The petitioner, who is a builder, has
challenged the order dated 31st May, 2005, granting
permission to the respondent No.1 -Sir Kikabhai
Premchand Trust Settlement No.VI; hereinafter
referred to as ‘the Trust’ to alienate its property
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for a consideration of Rs.35,70,00,000/- (Rupees
Thirty Five Crores Seventy lakh only) to the
Respondent No.8 -M/s. Premsagar Hotels Pvt.Ltd.. The
said property admeasures 5,39,595 sq.ft. and is
situated at Yerawada, Tal. Haveli, Dist. Pune, falls
within the limits of Pune Municipal Corporation. The
respondent No.1 Trust obtained offers from about six
parties for sale of its property. These offers were
not invited in pursuance of any advertisement in the
newspapers due to past experience of the respondent
Trust, which is set out in its affidavit in paragraph
6. In short, the reason is that on an earlier
occasion when it attempted to dispose of the property
in question, the compound walls were broken by
encroachers and the temporary dwellings were put up
inside of the property.
4. The respondent Trust received offers as
follows :-
Name of the offerer Date of Amount of the
the offer offer Per Square
feet (Rs.)
----------------- --------- ----------------
1. Ramesh Builders 31.12.03 581/-
2. Premsagar Hotel 02.01.04 661/-
Private Ltd.
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3. Kumar Builder 05.01.04 650/-
4. Goel Ganga Group 06.01.04 650/-
5. Sadhu Vaswani Mission 20.01.04 425/-
6. DNV Group 16.04.04 463/-
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5. The Trust decided to sell its property to the
highest offerer i.e. Respondent No.8. It entered
into a memorandum of understanding on 28th September,
2004 under which the respondent No.8 paid earnest
amount of Rs.1,80,00,000/- and agreed to pay the
balance of Rs. 33,90,00,000/- within 90 days of
receiving permission from the Charity Commissioner.
The Trust thereafter applied for permission to the
Charity Commissioner on 5th October, 2004.
6. Interestingly, the petitioner company having
learnt of the permission having been sought from the
Charity Commissioner, did only one thing. It wrote a
letter on 25th April, 2005 to the Charity Commissioner
that it has come to know about the permission sought
by the Trust. The Director of the petitioner company
then added a sentence to the following effect in the
said letter :-
"I am willing to give the highest offer which
will benefit the Trust."
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Admittedly, thereafter the petitioner did not bother
to participate in the proceeding or quantify its offer
before the Charity Commissioner.
7. The Charity Commissioner being under no duty,
legal or otherwise, to ask the petitioner to quantify
its offer, proceeded to consider the permission of the
Trust and passed the impugned order, granting the
permission to sell the property in question to the
respondent No.8. This order is impugned by the
petitioner in this petition.
8. In pursuance of the order of the Charity
Commissioner, the Trust has executed a conveyance in
favour of the respondent No.8 on 08.06.2005 upon
payment of the consideration of Rs.35,70,00,000/-.
The respondent also submitted the steps that have been
taken upon acquisition of the property, such as
demolition of the two buildings and shanties erected
on the said premises. They have also commenced
excavation of the said property. Thus the permission
has been acted upon.
9. The first question that arises for
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consideration is the locus -standi of the petitioner,
who is a builder and who admittedly did not make any
specific offer before the Charity Commissioner except
to state that he is willing to make a higher offer.
The question of locus of such a person has been
considered on two occasions by this court. In
Arunodaya Prefab vs. M.D. Kambli & Ors. reported in
1979 Mh. L.J. 104, a learned single Judge of this
Court, Bharucha J., as he then was, dealt with a case
where the petitioner had made an uninvited offer to
the Charity Commissioner. The petitioner had sent an
offer to the Charity Commissioner for purchase of the
property in question. His offer not having been
accepted and the Charity Commissioner having accorded
permission to the Trust, the petitioner challenged the
permission by way of a writ petition. This court held
that the Charity Commissioner owed no legal duty to
petitioner who had acquired no right merely on sending
an offer. The court also held that the Charity
Commissioner was not obliged to associate the
petitioner with any enquiry which he was required to
institute or to consider the offers made by the
petitioner.
10. The court also rejected the contention on
behalf of the petitioner that since the Trust was a
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public charitable trust, it was a matter of public
interest since it affected a large number of people.
The court observed that it only affected the
restricted class of its beneficiaries and it was not a
case where public interest in its wide sense is
concerned, i.e. where the public rights of a large,
almost unrestricted body of individuals are similarly
affected. The court concluded that no prejudice can
be said to have been caused to the petitioner by the
impugned order in respect of which they can
legitimately seek a writ, since no public interest was
involved. A similar view was taken by another single
Judge of this court, Desai J., in the case of Girdhar
C. Nichani vs. Rev. E.H. Lewellen , reported in
1991 Mh. L.J. 891, where a builder, such as the
petitioner in this case, had challenged the permission
granted by the Charity Commissioner to the public
Trust. This court held that the proceedings under
section 36 of the Act are not a lis between the
parties to adjudicate a contested claim and the
petitioner, though he had made an offer to the trust,
was neither a necessary or nor a proper party to the
proceedings under section 36 and was not entitled to
invoke Article 227 of the Constitution to canvass his
grievance against the sanction accorded under
sub-section 1 of section 36 of the Act.
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11. Mr. Deshpande, the learned counsel for the
petitioner, who argued the case with ability,
submitted that the petitioner must be held to have
locus since in fact the petitioner has been denied
even an opportunity to make a bid, since the
respondent has failed to invite offers by way of a
public notice, which is contrary to the law laid down
by the Supreme Court. The learned counsel relied on
the decision of the Supreme Court in Chenuchu Rami
Reddy vs. Govt. of Andra Pradesh reported in (1986)
3 Supreme Court Cases 391, where the court observed
that the property of religious and charitable
endowments or institutions must be jealously protected
since a large segment of the community has beneficial
interest in it. This decision in my view has no
application in the present case since in that case the
Government had permitted a religious endowment in
exercise of powers under proviso to clause (c) of
sub-section (1) of Section 74 of Andhra Pradesh
Charitable and Hindu Religious Institutions and
Endowments Act, 1966 to sell certain lands belonging
to the math by private negotiations. The Supreme
Court held that the order was not in accordance with
law in view of proviso to section 74(1)(c), which
required :-
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(1) That the government must be satisfied that
it is in the interest of the institution or
endowment to permit the sale of these lands
otherwise than by public auction.
(2) That reasons for reaching this
satisfaction must be recorded in the order.
3. The aforesaid two pre-conditions are
clearly spelled out by the relevant provision
(proviso to Section 74(1)(c) which may be
quoted in extenso:
(c) Every sale of any such immovable property
sanctioned by the Commissioner under clause
(b) shall be effected by public auction in the
prescribed manner subject to the confirmation
by the Commissioner within a period prescribed
Provided that the government may, in the
interest of the institution or endowment and
for reasons to be recorded therefore in
writing, permit the sale of such immovable
property, otherwise than by public auction.
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12. In this view of the matter, I am of view that
the petitioner has no locus standi to challenge the
permission and in any case having perused the order, I
am satisfied that there does not appear anything
extraordinary or suspicious in the order granting
permission of the fact that the sale was not made to
the persons who have stalled the offers and the price
has been sanctioned by the Charity Commissioner on the
basis of the valuation report of the Government
valuer, who has given description of the property,
stating that the property is in the form of plot
alongwith old bungalows. He has ascertained the
market value of the property at Rs.27,47,40,000/- as
on 21.12.2004. In these circumstances, the Charity
Commissioner has sanctioned the sale at the highest
offer of respondent No.8 of Rs. 35,70,00,000/- at the
rate of Rs. 661/- per square feet. This rate has
been found to be more than the sale instances obtained
from the office of Sub-Registrar, Pune in respect of
the property situated in the vicinity.
13. In this view of the matter, the petition is
dismissed.
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DT.30.09.05 (S.A.BOBDE,J)
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