Miscellaneous Petition No.33 of 2003

27th April, 2004

Petitioner Counsel: Mr. M. D. ABHYANKAR,Mrs. HELEKAR

Cases Cited:
Khetan Industries Pvt. Ltd. Vs. Manju Ravindraprasad Khetan, AIR 1995 SC 43 [Para 4]
Chatrabhuj Mavji Merchant Vs. Sumati Morarjee, 1992 Mah.L.J. 1075 [Para 4]

JUDGMENT

JUDGMENT :- Heard Mr. M. D. Abhyankar for the petitioners.

2. The present petition has been taken out by the Rama Madhav Devta Trust (for short "the trust") for sale of the trust property, in favour of M/s. Ameya Developers, Mumbai, by invoking Section 34 of the Indian Trusts Act 1882 (for short "Trust Act"). One Shri. Vishnu Gosavi had executed agreement , a deed of endowment on 3rd February, 1962, in respect of the property situated at survey No.84, Hissa No.2, admeasuring 1,100 sq. mts. at Village Amboli, Andheri, Mumbai, and created the trust. In the year 2000 the property was damaged, because of flood. On 9.9.2002 the Structural Engineer, Mr. H. R. Daji, has submitted his report that the structure should be dismantalled. On 1/10/2002, the trust, therefore, called upon meeting and unanimously decided to take advice from the Architect. Accordingly, one Mr. Anil Patil, was appointed. On 15/10/2002, Mr. Anil Patil, (Architect), has given estimate of Rs.12,15,005/- for repair cost. On 20/4/2003 the trust asked Architect to submit a proposal for the construction, using balance FSI on the property, as the trust did not have any fund. On 2/11/2002, the said architect Anil Patil, submitted report that the development of the property is viable. The trust therefore, considered the proposal and invited quotations from the various persons. After receipt of the quotations, the trust considered, the quotation, submitted by M/s. Ameya Developers, proper and most suitable to work out. Therefore, the trust has filed the present petition on 26th September, 2003, for grant of permission to sell or to develope the trust property in question. By order dated 15th of October, 2003, the petition was accepted and notices were issued. By order dated 23rd January, 2004, one additional valuer was appointed from the empanelled valuers of the High Court to submit valuation certificate of the fair market price in the property in question.

3. The matter was called out, valuer's report was accordingly, opened in the Court. After considering the valuation of A. T. & T. S. dated 5th March, 2004, petitioner's advocate has filed affidavit of trustee namely Arun Keshav Gosavi, dated 19th April, 2004, and submitted that the valuer has failed to take into consideration, the averments raised by the petitioner, in para 8 of the petition, in which it is clearly stated that the developer is giving sum of Rs.35 lakhs and in addition to that also providing 1100 sq.ft. area of land free of cost. The said developer is ready to construct a temple, on the said property, which the valuer has noted in valuation Exh.16 in paragraph 8. The developer is paying Rs.35 lakhs, and odd, and going to construct a temple, which will cost him around Rs.7.5 lakhs to 10 lakhs. The valuer has not given reference of 1100 sq. ft. area free of costs. The petitioner trust is getting 1100 sq. ft. approximate extra area, of valuation of Rs.33 lakhs approximately. Therefore, the amount which comes to the trust on the basis of this, the trust is getting Rs.33 lakhs plus 35 lakhs, apart from paying cash for constructing the temple of costs Rs.7.5 to 10 lakhs. So, therefore, the trust is getting practically Rs.75 lakhs. Besides this the developer is taking responsibility to negotiate with the tenants and providing them alternative accommodation as well. In view of this, the case is made out by the petitioner for sanction of sale.

4. Mr. Abhyankar, appearing on behalf of the petitioner, pointed out, that this Court has jurisdiction to pass the order, in view of the Judgment, reported in AIR 1995 SC 43 (Khetan Industries Pvt. Ltd. and others Vs. Manju Ravindraprasad Khetan), thereby this Court has declared to have jurisdiction in such matters. By interpreting section 73 of the Trust Act, referring "Principal Civil Court of original jurisdiction" for Greater Bombay, is the High Court original side, and not the City Civil Court. He also relied on the Judgment in 1992 Mah.L.J. 1075 (Chatrabhuj Mavji Merchant Vs. Sumati Morarjee and others) and submitted that, this Court has jurisdiction to pass order in this petition. Such application under the Indian Trusts Act, is maintainable in the Bombay High Court (original side). The reference to the Rule 26 r/w rules 7 and 8 of the High Court Rules (Original Side) is also made. After going through the reasons, as well as, provisions referred by the learned advocate for the petitioner. In my opinion also, the present Misc. Petition is maintainable. I see, this is a fit case, to grant the sanction of sale and develope the trust property, as prayed on merit.

5. The facts and circumstances of this case and in view of the submissions, made in the affidavit dated 19/04/2004, the present petition is allowed in terms of prayer clause (a).

6. Mr. Abhyankar, appearing for the petitioner is ready to deposit Rs.15 lakhs in the Nationalised Bank in the name of the Trust for investment in some reasonable scheme. This permission is also granted. There is no question of any cash transactions, even for construction of a temple. In view of this, petition is disposed of.

7. Mr. Abhyankar pointed out that the valuation report dated 5th March, 2004, submitted by AT & TS Associate has submitted bill of Rs.16,200/- towards cost of valuation report i.e. professional fees. This amount is also sanctioned and to be paid by the Trust, as per normal course.

8. C. C. expedited.

Parties concerned to act on a simple copy of this order, duly authenticated by the Court Stenographer/Chamber Registrar of this Court.

Order accordingly.