WP642_12.sxw v. Baun Foundation and Trust & Ors.

Mr. S. U. Kamdar, Senior Advocate a/w. Ms Pooja Patil a/w. Mr. Varun Mamniya, Advocates i/b. India Law Alliance for the Petitioner. Mr. D. D. Madan, Senior Advocate a/w. Ms Snehali Karkera, Advocate i/b. Dhru and Company for Respondent Nos.1 and 2. Mr. Karl Shroff a/w. Ms Snehali Karkera, Advocates i/b. Dhru & Co. for Respondent Nos.3 and 5 to 7. Mr. Snehal Shah, Advocate i/b. Narayanan and Narayanan for Respondent No.8. Mr. Zal Andhyarujina a/w. Mr. Amit Vyas, Mr. Mayur Shetty, Advocates i/b. Rajani Associates for Respondent No.4. Ms P. S. Cardozo, AGP for Respondent Nos.9 and 10. P.C. : CORAM : R. G. KETKAR, J. DATE : 27TH JUNE, 2012 Heard Mr. Kamdar, learned Senior Counsel for the petitioner, Mr. Madan, learned Senior Counsel for respondent Nos.1 and 2, Mr. Shroff, learned Counsel for respondent Nos.3 and 5 to 7, Mr. Shah, learned Counsel for respondent No.8, Mr. Andhyarujina for respondent No.4 and Ms Cardozo, AGP for respondent Nos.9 and 10 at length.

By this Petition, under Article 227 of the Constitution of India, the petitioner has challenged (a) the order dated 09.12.2011 passed by respondent No.1 - Charity Commissioner, Maharashtra State, Mumbai, below Exhibit-1 in Miscellaneous Application No.56 of 2011 and prayed for (b) cancellation of the deed of surrender dated 12.12.2011 executed WP642_12.sxw between respondent No.1 Trust and respondent No.8 Company. By order dated 09.12.2011, the learned Charity Commissioner has allowed the application made by the first respondent seeking permission for cancelling the lease deed executed on 19.01.2009 between the first respondent and respondent No.8 herein i.e. Multi Specialty Health Care Private Limited in respect of the Trust property being all that piece and parcel of land admeasuring 1743.03 square meters or thereabouts along with the structures standing thereon, bearing consolidated C.T.S. No.557, which includes 3 old plots bearing C.T.S. Nos.557, 558 and 3/551 of Malabar Hill Division situate, lying and being at August Kranti Marg, Mumbai-36. Earlier the permission was granted under Section 36(1)(b) of the Bombay Public Trusts Act, 1950 (for short 'Act') on 06.11.2008 for leasing the said property of respondent No.1 to the respondent No.8.

Mr. Kamdar makes a statement that he is not pressing prayer clause (b) in the present petition and states that he will adopt appropriate remedy for challenging the cancellation of deed of surrender dated 12.12.2011 and he confines his challenge to prayer clause (a) of the petition. The statement made by Mr. Kamdar is recorded.

In respect of prayer clause (a), Mr. Kamdar has raised various contentions. However, since the respondents are consenting for setting aside the impugned order dated 09.12.2011, the contentions raised by him need not be considered. In view of this, by consent of the parties, the impugned judgment and order dated 09.12.2011 passed by the Charity Commissioner, below exhibit-1 in Miscellaneous Application No.56 of 2011 is quashed and set aside and the said application made is dismissed.

Mr. Madan states that the liberty may be reserved to respondent No.1 to make fresh application under the Act, if so advised. He further states that if such application is made, the first respondent will give notice to the petitioner herein. The statements made by Mr. Madan are also recorded. WP642_12.sxw

It is made clear that the petitioner would be at liberty to challenge the cancellation of deed of surrender dated 12.12.2011 in accordance with law and subject to such objections that are available to the first respondent. It is also made clear that the first respondent will be at liberty to make fresh application under the Act before the Charity Commissioner after giving notice to the petitioner herein. All contentions of the parties are expressly kept open.