TMI Blog2011 (6) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust by observing that for sale of TDR which is moveable property the permission of the Charity Commissioner is not required under Section 36(1)(c) of the Bombay Public Trusts Act, 1950 [for brevity sake referred to as the said Act]. 3. 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited any amount to show their bona fides. 4. Thereafter, the learned Joint Charity Commissioner ventured to consider the application filed by the respondent no.2- Trust under Section 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 under Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re answering that issue we may refer to some judgments for that purpose. In Sikandar and ors. .vs. Bahadur and ors., XXVII Indian Law Reporter, 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 Ram Jiawan and anr. .vs. Hanuman Prasad and ors., AIR 1940 Oudh 409 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 7. 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 under Section 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 under Section 36 of the said Act filed by the petitioners. If permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
