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2011 (6) TMI 936 - HC - Indian Laws
Writ petition under Articles 226 and 227 - rejected the proposed sale of Transferable Development Rights (TDR) - sale of TDR which is moveable property - permission of the Charity Commissioner is not required u/s 036(1)(c) of the Bombay Public Trusts Act, 1950 - HELD THAT:- 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 the matter of Jitendra Bhimshi Shah ..vs.. Mulji Narpar Dedhia HUF and Pranay Investment and ors [2009 (3) TMI 1072 - BOMBAY HIGH COURT]. The learned judge relying upon the judgment of the Division Bench in Chheda Housing Development Corporation [2007 (2) TMI 664 - BOMBAY HIGH COURT] 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, in my view, the order of the Charity Commissioner that no permission under Section 36 is required as TDR is a movable property cannot be sustained and therefore, the application filed by the respondent no.2 - Trust u/s 036 of the said Act would have to be considered on the touch stone of the said Section 036 and also on the touch stone of the principles applicable to such a sale by a Trust.
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 touch-stone of Section 036 of the Act. Hence, both the impugned orders dated 3/8/2009 and 12/7/2010 would have to be set aside and the directions are issued.
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