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Judgment
R.M. Savant, J.—Rule, with the consent of the parties, made returnable forthwith and heard.
The above writ petition filed under Articles 226 and 227 of Constitution of India takes exception to the two orders passed by the learned Joint Charity Commissioner, Nagpur. By the first order dated 3/8/2009, the learned Joint Charity Commissioner has rejected the objections raised by the Petitioners herein in respect of the proposed sale of Transferable Development Rights (TDR) in favour of the Respondent No. 3 and by the second order dated 12/7/2010, the learned Joint Charity Commissioner has disposed of the application filed by the Respondent No. 2 - Trust by observing that for sale of TDR which is moveable property the permission of the Charity Commissioner is not required u/s 36(1)(c) of the Bombay Public Trusts Act, 1950 [for brevity sake referred to as the said Act].
The factual matrix involved in the above petition can be stated thus
The Petitioners herein were the participants in the sale of TDR, which was advertised by the Respondent No. 2 - Trust. The said TDR was to the extent of 2285.35 sq. meters and the advertisement for the same was issued on 6/5/2006. The offers which were to be received pursuant to the said advertisement were to be opened on 15/5/2006. It is the case of the Petitioners that when they visited the office of the Respondent - Trust on the day of opening, they were informed that on account of the Bishop not being available, the opening of the offer was postponed. It is further the case of the Petitioners that thereafter they acquired knowledge that the sale of the said TDR would be effected in favour of some party which resulted in the Petitioners'' addressing letters to the Respondent No. 2 - Trust, which are annexed to the above petition. It is the case of the Petitioners that no response was received to the said letters addressed by the Petitioners. It is the case of the Petitioners that they also made a complaint to the Joint Charity Commissioner vide letter dated 16/6/2007. The Petitioners ultimately were constrained to file their objections on 26/9/2008 as regards the proposed sale of TDR in favour of Respondent No. 3 herein. The gist of the objections filed by the Petitioners were to the effect that the Petitioners were ready to offer a higher amount per square meter than offered by the Respondent No. 3 herein. The objection was also as regards the fact that the whole process was sought to be carried out behind the back of the Petitioners. The said objections of the Petitioners were considered by the Joint Charity Commissioner and by the first impugned order dated 3/8/2009, the said objections of the Petitioners came to be rejected inter alia on the grounds that the same were filed belatedly, the offer of the Respondent No. 3 was higher than that had made by the Petitioners and that the Petitioners had not deposited any amount to show their bona fides.
Thereafter, the learned Joint Charity Commissioner ventured to consider the application filed by the Respondent No. 2Trust u/s 36 of the said Act. The Joint Charity Commissioner applied the analogy of the payment of compensation by way of TDR for the land acquired and held that the TDR granted in favour of the owner of the land becomes a movable property. The learned Jt. Charity Commissioner, therefore, concluded that since the TDR is a moveable property, no permission of the Charity Commissioner is required u/s 36(1)(c) of the said Act. The learned Joint Charity Commissioner further observed that since the procedure was followed prior to the sale of the TDR in favour of Respondent No. 3, by the order dated 12/7/2010 the application filed by the Respondent No. 2 - Trust came to be disposed of. As indicated above, it is the said two orders which are subject matter of the above petition.
The principal issue which arose before the learned Joint Charity Commissioner as to whether the TDR could be termed as a movable property, is concluded and is no more res integra in view of the judgment of the Division Bench of this Court reported in Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid and Others, Para No. 15 of the said judgment is material and is reproduced hereunder.
The question is whether on account of the term in the clause which permits acquisition of slum TDR the Appellants insofar as the additional F.S.I. is concerned, are not entitled for an injunction to that extent. An immovable property under the General Clauses Act, 1897 u/s 3(26) has been defined as under: (
26). "immovable property" shall include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth."
If, therefore, any benefit arises out of the land, then it is immovable property. Considering Section 10 of the Specific Relief Act, such a benefit can be specifically enforced unless the Respondents establish that compensation in money would be an adequate relief.
Can FSI/TDR be said to be a benefit arising from the land. Before answering that issue we may refer to some judgments for that purpose. In Sikandar and Ors. v. Bahadur and Ors., 27 ILR 462, a Division Bench of the Allahabad High Court held that right to collect market dues upon a given piece of land is a benefit arising out of land within the meaning of Section 3 of the Indian Registration Act, 1877. A lease, therefore, of such right for a period of more than one year must be made by registered instrument. A Division Bench of the Oudh High Court in AIR 1940 409 (Oudh) also held, that bazaar dues, constitute a benefit arising out of the land and therefore a lease of bazaar dues is a lease of immovable property. A similar view has been taken by another Division Bench of the Allahabad High Court in Smt. Dropadi Devi Vs. Ram Das and Others, on a consideration of Section 3(26) of General Clauses Act. From these judgments what appears is that a benefit arising from the land is immovable property. FSI/TDR being a benefit arising from the land, consequently must be held to be immovable property and an Agreement for use of TDR consequently can be specifically enforced, unless it is established that compensation in money would be an adequate relief."
The Division Bench has held that since TDR is a benefit arising from the land, the same would be immoveable property and therefore, an agreement for use of TDR can be specifically enforced. The said dictum of the Division Bench is later on followed by a learned single Judge of this Court in 2009 (4) Mh.L.J. 533 in the matter of Jitendra Bhimshi Shah v. Mulji Narpar Dedhia HUF and Pranay Investment and Ors. The learned judge relying upon the judgment of the Division Bench in Chheda Housing Development Corporation (supra) has held that the TDR being an immovable property, all the incidents of immovable property would be attached to such an agreement to use TDR. In view of the judgments of this Court (supra), in my view, the order of the Charity Commissioner that no permission u/s 36 is required as TDR is a movable property cannot be sustained and therefore, the application filed by the Respondent No. 2 -under Section 36 of the said Act would have to be considered on the touch stone of the said Section 36 and also on the touch stone of the principles applicable to such a sale by a Trust.
Now, the question remains of the order dated 3/8/2009 rejecting the objection filed by the Petitioners. Since the learned Joint Charity Commissioner has held that permission u/s 36 of the said Act was not required for the sale of the TDR and, now, in view of the position in law as enunciated by the judgments of this Court (supra) that such a permission would be necessary, in my view, it would be necessary to reconsider the objections filed by the Petitioners in the context of the said application u/s 36 of the said Act filed by the Petitioners. If permission u/s 36 was not required for sale of the property, the consideration of the objections by the learned Joint Charity Commissioner and their ultimate rejection cannot operate against the Petitioners herein as the objections could have only been considered in the context of an application which was necessary u/s 36 of the said Act. In my view, therefore, the order dated 3/8/2009 is also required to be set aside and the objections of the Petitioners would have to be considered de novo, in the context of the fact that the permission is now required and that the said applications would have to be considered by the Joint Charity Commissioner on the touchstone of Section 36 of the said Act Hence, both the impugned orders dated 3/8/2009 and 12/7/2010 would have to be set aside and are accordingly set aside and the following directions are issued.
i) The application for sale of TDR filed by the Respondent No. 2 - Trust stands revived in view of what has been stated herein above and the said application would have to be considered by the Joint Charity Commissioner in the context of Section 36 of the said Act on its own merits and in accordance with the law. Since now an application u/s 36 of the said Act is required, the objections of the Petitioners would also be considered in the said context and would be considered on their own merits and in accordance with law, uninfluenced by the fact that by the earlier impugned order dated 3/8/2009 the objections were rejected, and also uninfluenced by the instant order.
ii) The parties to appear before the Joint Charity Commissioner on 18/7/2011 at 2.30 p.m. The Concerned Charity Commissioner to hear and decide the application within a period of two months from 18/7/2011.
Rule is accordingly made absolute with parties to bear their own costs.
The record to be transmitted forthwith.
Steno copy of this order be furnished to the parties to act upon.