IMPORTANT POINT
If offered price of fair and requirements of regulation 33(7) of DCR, 1991 are fulfilled, there should not be any impediment in redeveloping the property.

JUDGMENT :

R.F. Nariman, J.

1. 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, 2012 by which the Division Bench of the Bombay High Court dismissed the letters patent appeal being LPA No. 103 of 2012 in Writ Petition No. 11070 of 2011.

3. We are concerned here with Trust property admeasuring 3343.53 sq.meters in the Girgaun area of Mumbai. Under the Bombay Public Trust Act, 1950, the Charity Commissioner’s sanction has first to be obtained before the trust property 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 III, which has to be read with Regulation 33(7), specifically stipulates in paragraph 1(a), that the new building may be permitted to be constructed in pursuance of an irrevocable written consent 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 favour of Raunak Corporation for a monetory 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 of cost, in terms of the Memorandum of understanding dated 23rd May, 2011. The ultimate order of the Charity Commissioner reads thus :-

“1. 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. A/751/Mumbai for development cum sale of the trust property, viz. CTS No. 145A, 1A, 145-4, 145B, C, D, E, F, G, bearing C.S. No. 1443 admeasuring 3999 sq. yards equivalent to 3343.57 meters. Or thereabout together with structures known as 'Kudaldeshkar Brahmin Niwas', in favour of M/s Raunak Corporation, a registered partnership firm at Laxmi Narayan Residency, Unnathi Garadens III, Opp. Ma Niketan, Pokhran Road, No. 2, Thane (West) – 400 610 for the monetary consideration of Rs.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 beds, niches and service ducts to the tenants, free of cost, 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