{"id":237925,"date":"2008-09-15T00:00:00","date_gmt":"2008-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anna-dhuraji-patil-vs-the-state-of-maharashtra-on-15-september-2008"},"modified":"2016-03-21T12:00:21","modified_gmt":"2016-03-21T06:30:21","slug":"anna-dhuraji-patil-vs-the-state-of-maharashtra-on-15-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anna-dhuraji-patil-vs-the-state-of-maharashtra-on-15-september-2008","title":{"rendered":"Anna Dhuraji Patil vs The State Of Maharashtra on 15 September, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
Anna Dhuraji Patil vs The State Of Maharashtra on 15 September, 2008<\/div>\n
Bench: D.G. Karnik<\/div>\n
                           1\n\n\n\n\n              IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n                         BENCH AT AURANGABAD\n\n\n\n\n                                                                   \n                      WRIT PETITION NO. 3523 OF 1990\n\n\n\n\n                                           \n     Anna Dhuraji Patil,\n     age 45 years, occ.\n     agriculture, resident\n     of Malewadi, taluka\n     and district Jalna.       -       -               Petitioner\n\n\n\n\n                                          \n             versus\n\n     1.       The State of Maharashtra.\n\n     2.       Gomtidevi Mandir Trust\n\n\n\n\n                               \n              through its trustee\n              Mr. Ambadas s\/o. Chandidas\n                  \n              Pujari, major, r\/o.\n              Somthana, taluka and\n              district Jalna.\n                 \n     3.       The Joint Charity Commissioner,\n              Maharashtra, Adalat Road,\n              Aurangabad.     -       -       Respondents\n\n\n     Shri A. M. Nagarkar, Advocate holding for\n      \n\n\n     Shri K. M. Nagarkar, Advocate for the petitioner.\n   \n\n\n\n     Shri Padmakar Deshmukh, Advocate for the\n     Respondent No.2.\n\n     Shri K. S. Patil, Asstt. Govt. Pleader for the\n     respondents Nos.1 and 3.\n\n\n\n\n\n                          CORAM:   D. G. KARNIK, J.\n<\/pre>\n
                          Date :   15th September 2008<\/p>\n
     ORAL JUDGMENT :\n<\/p>\n
     1.      Heard.\n<\/p>\n
     2.      By   this   writ petition under Article 227                  of<\/p>\n
     the   Constitution of India, the petitioner challenges<\/p>\n
     the   judgment and order dated 28-3-1990 passed by the<\/p>\n
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\n                                     2<\/span><\/p>\n
     Joint        Charity        Commissioner        conditionally           granting<\/p>\n
     application           for     extension of time fixed               under       his<\/p>\n
     previous          order under section 36 of the Bombay Public<\/p>\n
     Trusts Act, 1950 (for short the Act).\n<\/p>\n
     3.           The          respondent     no.1     is      the       State         of<\/p>\n
     Maharashtra           and respondent no.3 is the Joint Charity<\/p>\n
     Commissioner who are formal parties.                       Respondent No.2<\/p>\n
     who     is     the contesting party is a                 Trust      registered<\/p>\n
     under the Act and is represented by its trustee.\n<\/p>\n
     4.           On<\/p>\n
                          30-9-1980, the respondent no.2 Trust made<\/p>\n
     an application under Section 36(1) (a) of the Act for<\/p>\n
     permission           to     sell    three properties of             the      Trust<\/p>\n
     namely, survey No.119 admeasuring 4 acres 14 gunthas,<\/p>\n
     survey        no.120        admeasuring     6 acres 30           gunthas        and<\/p>\n
     survey        no.121 admeasuring 22 acres 9 gunthas situate<\/p>\n
     at    Somthana, taluka Badnapur, district Jalna.                             By an<\/p>\n
     order        dated        15-2-1982,     the     Charity        Commissioner,<\/p>\n
     Maharashtra           State granted permission for sale of the<\/p>\n
     three        properties subject to certain conditions.                            We<\/p>\n
     are      not       concerned        in    this     petition         with        the<\/p>\n
     permission           for     sale   of survey          No.119     and      survey<\/p>\n
     No.120        and the present petition relates only to                          the<\/p>\n
     permission           for sale of survey No.121.                By the        order<\/p>\n
     dated        15-2-1982        the   Charity       Commissioner           granted<\/p>\n
     permission to the Trust to sell 12 acres 9 gunthas of<\/p>\n
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\n                                    3<\/span><\/p>\n
     land out of survey no.121 to Anna Dhuraji Patil – the<\/p>\n
     petitioner herein, at the rate of Rs.7,000\/- per acre<\/p>\n
     and     further         granted permission to sell 10 acres                    of<\/p>\n
     land     out of survey no.121 to Ganesh Tulshiram                         Patil<\/p>\n
     and     Vishnu Tulshiram Patil at the rate of                      Rs.7100\/-\n<\/p>\n
     per     acre.       The Charity Commissioner further directed<\/p>\n
     that     the       sale    deed should be executed             within        six<\/p>\n
     months or within such further time as may be extended<\/p>\n
     by him, if deemed fit.\n<\/p>\n
     5.           The    petitioner did not pay the consideration<\/p>\n
     of<\/p>\n
            Rs.85,575\/- (calculated at the rate of                      Rs.7000\/-\n<\/p>\n
     per     acre for 12 acres 9 gunthas) for purcahse of the<\/p>\n
     part     of survey No.121, within six months.                        However,<\/p>\n
     he      made       an     application    to    the      Joint         Charity<\/p>\n
     Commissioner,           Aurangabad      to    whom the powers of the<\/p>\n
     Charity Commissioner were delegated, for extension of<\/p>\n
     time     for       completion     of the      sale.       Learned         Joint<\/p>\n
     Charity        Commissioner was of the opinion that in view<\/p>\n
     of     the     long       period of about six         years      which       had<\/p>\n
     elapsed        between initial permission for sale                    granted<\/p>\n
     under        section 36 of the Act and the application                       for<\/p>\n
     extension          of time, the prices of the land would have<\/p>\n
     gone     up substantially.           He, therefore, thought                 that<\/p>\n
     it     would       not be appropriate to grant              extension          of<\/p>\n
     time     without inviting fresh bids.                Accordingly,            the<\/p>\n
     Joint        Charity Commissioner invited parties to                      offer<\/p>\n
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\n                                     4<\/span><\/p>\n
     fresh        bids.      It     is, however, not      clear        from      the<\/p>\n
     petition whether the fresh bids were invited from the<\/p>\n
     public        or whether the present petitioner, and Ganesh<\/p>\n
     Tulshiram          Patil      and Vishnu Tulshiram Patil who                had<\/p>\n
     agreed        to purchase parts of survey No.121 were alone<\/p>\n
     permitted to bid.             In the fresh bid, Ganesh Tulshiram<\/p>\n
     Patil        offered price of Rs.15,000\/- per acre but only<\/p>\n
     for     10 acres of land of S.           No.    121..         The     present<\/p>\n
     petitioner           also offered to purchase 10 acres of land<\/p>\n
     out     of     S.No.         121 at the rate of      Rs.15,500\/-            per<\/p>\n
     acre.         By     an order dated 28-1-1987,           learned         Joint<\/p>\n
     Charity<\/p>\n
                    Commissioner granted permission to the Trust<\/p>\n
     to    sell         to Vishnu Tukaram Patil 5 acres of land                    on<\/p>\n
     the     western        side     of survey No.121 at the             rate      of<\/p>\n
     Rs.15,500\/-          per acre.      He also granted permission to<\/p>\n
     the     Trust to sell to the petitioner 5 acres of                         land<\/p>\n
     of    S.No.121 adjacent to and lying to the east of the<\/p>\n
     property        to be sold to Vishnu Patil, at the rate                       of<\/p>\n
     Rs.15,500\/- per acre.              The Joint Charity Commissioner<\/p>\n
     further        directed that execution and registration                       of<\/p>\n
     the     sale       deed shall be completed within seven                    days<\/p>\n
     after 28-2-1987.\n<\/p>\n
     6.           Feeling       aggrieved   by   order        of     the      Joint<\/p>\n
     Charity Commissioner increasing the price to be paid,<\/p>\n
     and     reducing        the     area of the land to be            sold      the<\/p>\n
     petitioner           herein filed a writ petition bearing Writ<\/p>\n
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\n                                      5<\/span><\/p>\n
     Petition No.         385 of 1987 in this Court.                     In the said<\/p>\n
     writ    petition, settlement was arrived at between the<\/p>\n
     parties       and    in     view of the settlement,                   the     Court<\/p>\n
     passed the following order –\n<\/p>\n
               .                              ORDER :\n\n               .           In        view      of      the     settlement\n\n\n\n\n                                                        \n               between          the           petitioner         and        the\n\n               respondent            no.3,      the     impugned         order\n\n               passed      by        the respondent no.4 is                 set\n\n\n\n\n                                             \n               aside      with           a    direction to       the       said\n\n               respondent\n                          ig         to      look     into    the        matter\n\n               afresh.\n                        \n               .           In this background the petition\n\n               is allowed.\n\n               .           The           impugned     order set          aside\n      \n\n\n               and       the     matter          remanded      for        fresh\n   \n\n\n\n               orders      after             looking into the          matter\n\n               before      the respondent no.4 who                     should\n\n\n\n\n\n<\/pre>\n
               dispose of the matter within the period<\/p>\n
               of three months.\n<\/p>\n
               .           In        these circumstances of                 the\n\n               case      the parties are directed to                      bear\n\n\n\n\n\n               their respective costs.\n\n\n\n     After     remand,         the       matter was heard           by     the     Joint\n\n     Charity       Commissioner,             Aurangabad, who by his                fresh\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 13:51:40 :::<\/span>\n                                      6<\/span>\n\n\n\n<\/pre>\n
     order dated 28-3-1990 again granted permission to the<\/p>\n
     respondent         no.2    Trust to sell to            Vishnu        Tulshiram<\/p>\n
     Patil 5 acres of land from western boundary of survey<\/p>\n
     no.121        at the rate of Rs.15,500\/- per acre.                      He also<\/p>\n
     granted       permission            to   the   Trust to       sell      to     the<\/p>\n
     petitioner         5 acres of land adjacent to and lying                         to<\/p>\n
     the eastern side of the land to be sold to Vishnu, at<\/p>\n
     the     rate of Rs.15,500\/- per acre.                  That order of the<\/p>\n
     Joint         Charity      Commissioner         dated       28-3-1990            is<\/p>\n
     impugned in this writ petition.\n<\/p>\n
     7.           Learned
\n                         ig    Counsel for the petitioner submitted<\/p>\n
     that the Joint Charity Commissioner lost sight of the<\/p>\n
     fact that initially the Charity Commissioner, Bombay,<\/p>\n
     by     his order dated 15-2-1982 had granted                       permission<\/p>\n
     to     the     Trust      to    sell the petitioner             12     acres       9<\/p>\n
     gunthas       of    land at the rate of Rs.7000\/- per                        acre.\n<\/p>\n
     The      application            made      to     the      Joint         Charity<\/p>\n
     Commissioner,           Aurangabad bearing Application No.9 of<\/p>\n
     1986     was not for a fresh permission to sell the land<\/p>\n
     but     was     only      for       extension     of    time         fixed     for<\/p>\n
     completion         of     the sale.        The original         order        fixed<\/p>\n
     time     of     six months for completion of sale.                      As     the<\/p>\n
     sale     could      not be completed within six months,                        the<\/p>\n
     petitioner had only prayed for the extension of time.\n<\/p>\n
     The Joint Charity Commissioner, therefore, could have<\/p>\n
     only     extended the time or rejected the request.                              He<\/p>\n
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\n                                       7<\/span><\/p>\n
     could       not     have        modified the           conditions            initially<\/p>\n
     imposed       nor could he have increased price or reduced<\/p>\n
     the area to be purchased.\n<\/p>\n
     8.          Per          contra,            learned      Counsel             for        the<\/p>\n
     respondent no.2 submitted that in granting permission<\/p>\n
     for      sale       of     the         trust       property,          the        Charity<\/p>\n
     Commissioner             must look to the interest of the                          trust<\/p>\n
     and      protect           the         interest             of        the        ultimate<\/p>\n
     beneficiaries              of        the      Trust.         Ordinarily,              while<\/p>\n
     granting permission under section 36 of the Act, time<\/p>\n
     limit is fixed for completion of the sale in order to<\/p>\n
     protect           the      interest           of      the        Trust       and        the<\/p>\n
     beneficiaries            of      the        Trust.    It is always               in     the<\/p>\n
     interest of the Trust to get the entire consideration<\/p>\n
     strictly          within        the        time      fixed       by    the       Charity<\/p>\n
     Commissioner.            If the time for completion of the sale<\/p>\n
     is to be extended for any reason or event even beyond<\/p>\n
     the     control of the parties, the Charity Commissioner<\/p>\n
     can     and ought to consider whether the prices of                                     the<\/p>\n
     property          have gone up in the meanwhile.                         In order to<\/p>\n
     compensate the trust for the loss likely to be caused<\/p>\n
     by    the     delay,          the          Charity     Commissioner,                  while<\/p>\n
     extending          the     time        either award interest                 for        the<\/p>\n
     delayed       payment           or     increase       the price             or     in    an<\/p>\n
     appropriate          case can even refuse to extend time                                for<\/p>\n
     sale.        What        order should be passed by                     the       Charity<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 13:51:40 :::<\/span>
\n                                        8<\/span><\/p>\n
     Commissioner              would        depend      on        the       facts         and<\/p>\n
     circumstances of each case.                   In the present case, the<\/p>\n
     price of the property had gone up substantially.                                     The<\/p>\n
     very    fact that the petitioner himself made an                                   offer<\/p>\n
     to     purchase property at Rs.15,500\/- per acre instead<\/p>\n
     of     Rs.7000\/- per acre initially fixed itself was the<\/p>\n
     proof     that       the prices had gone up.                    Therefore,           the<\/p>\n
     Joint     Charity          Commissioner           has not         committed          any<\/p>\n
     error     in      extending the time for completion of                              sale<\/p>\n
     subject to the payment of enhanced price.\n<\/p>\n
     9.<\/p>\n
                  In Shailesh Developers and another vs.                               Joint<\/p>\n
     Charity Commissioner, Maharashtra and others reported<\/p>\n
     in     2007(3) Mh.L.J.            717, a Full Bench of this                       Court<\/p>\n
     has    reviewed the law relating to the permission                                   for<\/p>\n
     sale    of     the        trust       property to          be     granted         under<\/p>\n
     section      36      of     the       Act.   In    para         nos.28        of     the<\/p>\n
     decision, the Full Bench has observed –\n<\/p>\n
               .       While exercising power either<\/p>\n
               under clause (b) or clause (c), the
\n               Charity    Commissioner     can    impose
\n               conditions    having regard     to    the
\n               interest, benefit or protection of the
\n               trust.    Before passing an order of
\n               sanction or authorisation, the Charity
\n               Commissioner has to be satisfied that<\/p>\n
               the trust property is required to be
\n               alienated.      Once     the     Charity
\n               Commissioner is satisfied      that the
\n               alienation of the trust property is
\n               necessary in the interest of the trust
\n               or for the benefit of the trust or for
\n               the protection of the trust, it is very
\n               difficult to accept the submission that<\/p>\n
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\n                    9<\/span><\/p>\n
      the power of the Charity Commissioner
\n      is restricted either to grant sanction
\n      to   a particular        proposal of     the
\n      trustees or to reject it. It is the
\n      duty of the Charity Commissioner to<\/p>\n
      ensure    that    the      transaction    of
\n      alienation is beneficial to the trust
\n      and its beneficiaries.         He has     to<\/p>\n
      ensure that the property is alienated
\n      to a purchaser or buyer whose offer is
\n      the best in all respects. It is not
\n      necessary    in every       case that the
\n      Charity Commissioner has to ensure that<\/p>\n
      the property is sold by the trustees to
\n      the person offering highest price or
\n      consideration.     What is the best offer
\n      in the interest of the trust will again
\n      depend on facts and circumstances of
\n      each case.      In a given case, while<\/p>\n
      alienating the trust         property, the
\n      trustees may provide that as a part of<\/p>\n
      consideration     for     alienation,
\n      purchaser should construct a building
\n      on a part of the trust property for the
\n                                               the<\/p>\n
      use by the trustees for the objects of<\/p>\n
      the trust. In such a case, it may be
\n      necessary to ascertain the reputation
\n      and capacity of the purchaser apart
\n      from the consideration offered.         When
\n      the Charity Commissioner is satisfied
\n      that    trust property       needs to     be<\/p>\n
      alienated and when he finds that the
\n      offer received by the trustees may not<\/p>\n
      be the best offer, he can always direct
\n      that bids be invited          by a public
\n      notice.     When a       better offer     is
\n      received in public bidding or auction,
\n      it is very difficult to say that the<\/p>\n
      power of the Charity Commissioner is
\n      restricted and he cannot enjoin the
\n      trustees to sell or transfer the trust
\n      property to a third party who has given
\n      an offer which is the best in the
\n      interest of the trust. The Trustees
\n      approach the Charity Commissioner only<\/p>\n
      when they are satisfied that there is a
\n      necessity    to alienate        the    trust
\n      property.      The trustees      hold    the
\n      property    for the       benefit of     the
\n      beneficiaries and therefore once they
\n      express    desire     to     alienate    the
\n      property, it is obvious that Charity
\n      Commissioner      can       always    impose<\/p>\n
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\n                    10<\/span><\/p>\n
      condition while granting sanction that
\n      the   property    shall     be    sold    or
\n      transferred to a person who has come
\n      with an offer which is the best offer
\n      in the interests of the trust.           The<\/p>\n
      section gives a power to the Charity
\n      Commissioner to impose conditions and
\n      the said conditions will include a<\/p>\n
      requirement of selling or transferring
\n      or alienating the trust property to a
\n      purchaser who has offered the best deal
\n      having regard to       the interest and
\n      benefit of the beneficiaries and the<\/p>\n
      protection of the trust. The power to
\n      impose conditions cannot be a limited
\n      power when the law requires the Charity
\n      Commissioner to exercise the said power
\n      having regard to the interest, benefit
\n      and protection of the trust. Once the<\/p>\n
      Charity    Commissioner      accepts     the
\n      necessity of alienating         the    trust<\/p>\n
      property, the trustees cannot insist
\n      that the property should be sold only
\n      to a person of their choice though the
\n      offer given by the person may not be<\/p>\n
      the best offer. The property may be
\n      vesting in the trustees but the vesting
\n      is    for    the     benefit      of     the
\n      beneficiaries.          The          Charity
\n      Commissioner has jurisdiction to ensure
\n      that    the   property      is    sold    or<\/p>\n
      transferred in such a manner that the
\n      maximum benefits are available to the<\/p>\n
      beneficiaries of the       Trust.      Under
\n      Clause (b) of section 36 of the said
\n      Act, the Charity       Commissioner      has
\n      jurisdiction to decide whether it is in
\n      the interest of the trust that the<\/p>\n
      property of the trust          be sold or
\n      transferred.    Once the learned Charity
\n      Commissioner is satisfied         that the
\n      property is required to be transferred
\n      or sold in the interest of the Trust
\n      the learned Charity Commissioner cannot
\n      remain silent spectator when he finds<\/p>\n
      that the transaction proposed by the
\n      Trustees is not in the interest of the
\n      Trust or its beneficiaries. Once the
\n      necessity    of sale or transfer          is
\n      established, the Charity Commissioner
\n      can   certainly    ensure       that    best
\n      available offer is accepted, so that
\n      the transaction is for the benefit of<\/p>\n
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\n                         11<\/span><\/p>\n
            the trust. If the trustees were to be
\n            the final authority to judge what is in
\n            the    interest   of    the Trust,    the
\n            legislature would not       have enacted
\n            provision requiring      prior sanction.\n<\/p>\n
            While deciding which is the best offer,
\n            the learned Charity Commissioner is
\n            bound    to take     into   consideration<\/p>\n
            various    factors which      cannot   be
\n            exhaustively    listed.     However, the
\n            paramount     consideration     is    the
\n            interest, benefit and protection of the
\n            trust.    It is obvious from the scheme<\/p>\n
            of section 36 that legislature never
\n            intended that trustees could sell or
\n            transfer the trust property vesting in
\n            them as if it        was their personal
\n            property.    It is the      duty of the
\n            Charity Commissioner to ensure that the<\/p>\n
            property should be alienated in such a
\n            manner    that maximum     benefits   are<\/p>\n
            accrued to the trust.\n<\/p>\n
            Commissioner    while\n                                         The Charity\n                                     considering\n<\/pre>\n
            application under section 36(1) of the
\n                                                   an<\/p>\n
            said Act of 1950, in a given case can<\/p>\n
            opt for public auction or can invite
\n            bids.”\n<\/p>\n
     In relation to the locus of a person to challenge<\/p>\n
     the order passed by the Charity Commissioner, the<\/p>\n
     Full Bench in para 29 of its decision has observed :\n<\/p>\n
            .      ” The second question referred
\n            to the Full Bench for decision is<\/p>\n
            regarding locus standi of a person
\n            who appears before      the   Charity
\n            Commissioner and offers his bid to
\n            challenge the order passed by the
\n            Charity Commissioner. The trustees
\n            and persons having an interest in
\n            the Trust can always challenge the<\/p>\n
            order.    We have already held that
\n            the proceeding under section 36 of
\n            the said Act before the learned
\n            Charity Commissioner is a judicial
\n            proceeding. The Apex Court has held
\n            that a trust property is on par with
\n            a public property so far as its sale
\n            or transfer is concerned. It is,<\/p>\n
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\n                                        12<\/span><\/p>\n
                  therefore, very difficult to say
\n                  that such a     person who appears
\n                  before the Charity Commissioner and
\n                  offers his bid has no locus standi
\n                  to challenge the final order passed<\/p>\n
                  by the Charity Commissioner. Such a
\n                  person will certainly have locus
\n                  standi to file the petition under<\/p>\n
                  Articles   226   and   227 of    the
\n                  Constitution    of      India    for
\n                  challenging the final order passed
\n                  under section 36 of the said Act. “<\/p>\n
\n\n\n\n\n                                                          \n     As     held by the Full Bench, while granting permission\n\n     for      sale        of     the        trust    property,         the       Charity\n\n     Commissioner           must keep in mind the best interest                           of\n\n\n\n\n                                             \n     the     Trust as also the interest of the                         beneficiaries\n\n     of     the     trust\n                           ig   because the trustees though                     are     the\n\n     legal        owners,       they        hold    the    trust       property         for\n                         \n     benefit        of the beneficiaries.                 They cannot sell              the\n\n     property        for       their        rhyme and permission              for      sale\n\n     cannot        be granted unless the Charity Commissioner is\n      \n\n\n     satisfied        that there is necessity to sell the                            trust\n   \n\n\n\n     property.        Once the Charity Commissioner is satisfied\n\n     that     alienation of the property is necessary in                                the\n\n\n\n\n\n<\/pre>\n
     interest of the trust or for the benefit of the trust<\/p>\n
     or     for     the        protection of the           trust,        the     Charity<\/p>\n
     Commissioner           can     grant permission             for      alienation.\n<\/p>\n
     While        granting        permission        to      sell,        the     Charity<\/p>\n
     Commissioner           must keep in mind interest of the trust<\/p>\n
     and the beneficiaries.                  When more than one person are<\/p>\n
     interested        in       purchasing the property, the                     Charity<\/p>\n
     Commissioner           may be required to choose one of                         them.\n<\/p>\n
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\n                                       13<\/span><\/p>\n
     The     Charity          Commissioner while so doing, must                         also<\/p>\n
     take     into          account        the interest of          the      trust          and<\/p>\n
     beneficiaries.             Charity Commissioner is entitled, may<\/p>\n
     be     required,          to     impose conditions             while        granting<\/p>\n
     permission for sale, so as to protect the interest of<\/p>\n
     the      trust           and    the      beneficiaries.              One     of        the<\/p>\n
     conditions             which     is    usually     imposed,           and      in       my<\/p>\n
     opinion        which          ought    to be imposed, is put                 a      time<\/p>\n
     limit     for completion of sale of the property and                                   in<\/p>\n
     any     event          for payment of the consideration.                       It      is<\/p>\n
     matter        of       common        knowledge    that the           price        of     a<\/p>\n
     property goes up with the passage of time.                                It would,<\/p>\n
     therefore,             be inappropriate to grant permission                         for<\/p>\n
     sale     of        the     trust property         without          putting          time<\/p>\n
     restriction             for     completion of the sale and                   in     any<\/p>\n
     event     for          the payment of the consideration.                       It      is<\/p>\n
     true     that          generally       time      for      performance             of     a<\/p>\n
     contract        for sale of immovable property is not be an<\/p>\n
     essence        of the contract.               However, that would not be<\/p>\n
     true     if        a     condition       is    imposed       by      the     Charity<\/p>\n
     Commissioner              for     completion       of        sale       within           a<\/p>\n
     specified          time.        Even in case of a private                   contract<\/p>\n
     it     is open for the parties to agree and provide that<\/p>\n
     time     for        performance of any contract                    (including           a<\/p>\n
     contract        for sale of an immovable property) shall be<\/p>\n
     the     essence.              If so, unless the contrary is                    proved<\/p>\n
     the     time       fixed        by     the    Charity       Commissioner               for<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 13:51:40 :::<\/span>
\n                                        14<\/span><\/p>\n
     completion           of sale (and payment of consideration) at<\/p>\n
     the     time        of     grant       of permission     for      sale        under<\/p>\n
     section 36 of the Act must be strictly adhered to and<\/p>\n
     would        be     the     essence       of the   contract.             This       is<\/p>\n
     necessary           to     protect the interest of the trust                       and<\/p>\n
     the     beneficiaries             or else, the purchaser can                 delay<\/p>\n
     the     purchase           without payment of full             consideration<\/p>\n
     and     insist           the trustees to complete the sale                    at     a<\/p>\n
     later        date        at the old price, after the              price         have<\/p>\n
     gone     up substantially.                The reason for the delay                 by<\/p>\n
     purchaser           in purchasing the property may not                     always<\/p>\n
     be     material.\n<\/p>\n
                           ig    For, it would be easy for               a     shrewed<\/p>\n
     purchaser to invent some reason and thereby delay the<\/p>\n
     transaction              and payment of full consideration                   after<\/p>\n
     initial           payment        of small earnest money.            Though         no<\/p>\n
     general           rule     can     be laid down about the               delay       in<\/p>\n
     purchase,           the Charity Commissioner would be wise                         in<\/p>\n
     being        extremely        cautious and slow in extending                    the<\/p>\n
     time     for        completion of sale fixed in his                   order         of<\/p>\n
     permission           of     sale passed under section 36                 of        the<\/p>\n
     Act.         If the delay is substantial, and the prices of<\/p>\n
     the     property           has     gone    up in   the     meanwhile,              the<\/p>\n
     Charity           Commissioner would be justified and                    perhaps<\/p>\n
     required to refuse to extend the time initially fixed<\/p>\n
     by     him        or increase the price.           He would not            commit<\/p>\n
     any     error        if he chooses to invite fresh bids as                          he<\/p>\n
     has     done        in     the     present    case.      If      any      of       the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 13:51:40 :::<\/span>
\n                                     15<\/span><\/p>\n
     conditions         imposed          by     Charity        Commissioner             is<\/p>\n
     breached,        then        the    sale    made     in     breach         of    the<\/p>\n
     condition        shall not be binding on the trust and                           the<\/p>\n
     beneficiaries.\n<\/p>\n
     10.       Looked        at from this angle, in my view, Joint<\/p>\n
     Charity     Commissioner             committed no error              in      taking<\/p>\n
     into     consideration             long lapse of time             between        the<\/p>\n
     initial     permission and the date of application                              made<\/p>\n
     for extension of time or even date on which the order<\/p>\n
     on     that application is passed.                 In view of the               long<\/p>\n
     lapse<\/p>\n
               of time, in the present case the Joint Charity<\/p>\n
     Commissioner        was        justified in inviting fresh                    bids.\n<\/p>\n
     As     stated earlier, the very fact that the fresh bids<\/p>\n
     raised     price        more than 100 per            cent       unequivocally<\/p>\n
     shows     that     the price had gone up in the                      meanwhile.\n<\/p>\n
     No      error     was        committed      by     the      Joint          Charity<\/p>\n
     Commissioner            in     refusing     to       extend          the        time<\/p>\n
     unconditionally          and        also   in restricting              the      area<\/p>\n
     agreed to be sold and increasing the price.                               The area<\/p>\n
     was     reduced     on        account      of      the     fact      that        the<\/p>\n
     petitioner        and other co-bidder themselves had stated<\/p>\n
     that     they were interested in purchasing the property<\/p>\n
     situate     on     the western side only not interested                            in<\/p>\n
     the area of the eastern side.\n<\/p>\n
     11.       For      the        reasons mentioned above,                 the      writ<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 13:51:40 :::<\/span>
\n                             16<\/span><\/p>\n
     petition      is dismissed.     Rule is discharged.           In     the<\/p>\n
     facts   and     circumstances     of the case,        the     parties<\/p>\n
     shall bear their own costs.\n<\/p>\n
                                   (   D. G. KARNIK, J. )<\/p>\n
     pnk-wp352390<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:51:40 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Anna Dhuraji Patil vs The State Of Maharashtra on 15 September, 2008 Bench: D.G. Karnik 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3523 OF 1990 Anna Dhuraji Patil, age 45 years, occ. agriculture, resident of Malewadi, taluka and district Jalna. – – Petitioner versus […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-237925","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAnna Dhuraji Patil vs The State Of Maharashtra on 15 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anna-dhuraji-patil-vs-the-state-of-maharashtra-on-15-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anna Dhuraji Patil vs The State Of Maharashtra on 15 September, 2008 - 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