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AZA's FIGHT FOR THE POOR.......CONTINUES

  OBJECTS TO SALE OF FLATS TO THE 'RICH' OF THE COMMUNITY

SALE OF FLATS ON OWNERSHIP BASIS AGAINST THE WISHES OF THE DONOR

SAYS AZA
High Court
O. O. C. J.
Writ Petition No.2879 of 2008
Dinshaw Rusi Mehta & Ors.
Versus
State of Maharshtra & Ors.

The above Writ Petition came up for admission before their Lordships the Hon'ble the Chief Justice and the Hon'ble Dr. Justice D. Y. Chandrachud on 19 th January, 2009 when Senior Counsel Mr. I. M. Chagla, duly instructed by Doijode & Associates, appeared on behalf of the Respondents, Bomi Patrawala & Parvez Mullan Firoze. The Petitioners i.e. the trustees of BPP were represented by Senior Counsel Mr. R. A. Dada.

Mr. Dada submitted that the Learned Charity Commissioner had no jurisdiction to pass the Impugned Order dated 5 th November, 2008. He further submitted that the finding that there was fraud and/or misrepresentation by the erstwhile Trustees whilst obtaining the sanction under Section 36(1) of the Bombay Public Trust Act is unfounded. Copies of the Will of the Late Behram S. Panthaky and the Indenture of Transfer dated 16 th February, 1967 were before the Learned Charity Commissioner when the said sanction was granted. The Learned Charity Commissioner was therefore aware of the condition therein of providing housing to the poor and deserving Parsees. He further submitted that the present Trustees have been elected by adopting universal adult franchise and their powers are sought to be diluted by the impugned order by directing that poor Parsees will be identified by two of the trustees and Respondent Nos.3 and 4 (who have not been elected) subject to final approval by the Learned Charity Commissioner. Further, it is ambiguous as to what course is to be adopted i.e. whether the flats are to be sold or to be given on leave and license and in either event at what rate?

Mr. Chagla submitted that Section 36(2) of the BPT Act empowered the Learned Charity Commissioner to revoke sanction granted under Section 36(1) of the BPT Act if he comes to the conclusion that the said sanction was obtained fraudulently. The Learned Charity Commissioner has given a clear finding that the fraud was committed by suppressing the aforementioned condition in the Will and in the said Indenture. The Learned Charity Commissioner has further recorded in the impugned Order that neither a copy of the Will nor the Indenture is found in the original proceedings. The proceedings regarding the Change Report were before the Deputy Commissioner and not before the Learned Charity Commissioner who was deciding the application made by the Trustees under Section 36(1) of the BPT Act. Mr. Chagla submitted that the Learned Charity Commissioner had adjusted equities by not disturbing those who were already put in possession or who have paid substantial amount. He further submitted that the criteria for deciding to whom the flats are to be sold or given on leave and license can be worked out.

The hearing now stands adjourned by two weeks.

- by our Correspondent