Case Note & Summary
The petitioners, Sadoday Builders Private Ltd. and its director, filed a writ petition under Articles 226 and 227 of the Constitution of India challenging two orders passed by the Joint Charity Commissioner, Nagpur. The first order dated 3/8/2009 rejected the petitioners' objections to the proposed sale of Transferable Development Rights (TDR) in favor of respondent no.3. The second order dated 12/7/2010 disposed of the application filed by respondent no.2 Trust, holding that for sale of TDR, which is movable property, permission of the Charity Commissioner under Section 36(1)(c) of the Bombay Public Trusts Act, 1950 is not required. The factual background involves the respondent no.2 Trust advertising the sale of TDR to the extent of 2285.35 sq. meters on 6/5/2006. The petitioners participated but were informed that the opening of offers was postponed due to the Bishop's unavailability. Subsequently, the petitioners learned that the TDR was to be sold to respondent no.3, leading them to file objections before the Joint Charity Commissioner. The petitioners argued that TDR is immovable property and thus requires permission under Section 36(1)(c). The Joint Charity Commissioner rejected the objections and held that TDR is movable property. The High Court, after hearing the parties, upheld the orders of the Joint Charity Commissioner. The Court held that TDR is a right to develop which is not attached to land and is transferable, making it movable property. Consequently, the sale of TDR by a public trust does not require prior permission under Section 36(1)(c) of the Bombay Public Trusts Act, 1950. The writ petition was dismissed.
Headnote
A) Bombay Public Trusts Act, 1950 - Section 36(1)(c) - Transferable Development Rights (TDR) - Movable Property - Permission of Charity Commissioner - The issue was whether TDR is movable or immovable property and whether prior permission under Section 36(1)(c) is required for its sale by a public trust. The Court held that TDR is movable property and therefore the permission of the Charity Commissioner under Section 36(1)(c) is not required for its sale. The Court reasoned that TDR is a right to develop which is not attached to land and is transferable, thus falling within the definition of movable property. (Paras 2, 4-6)
Issue of Consideration
Whether Transferable Development Rights (TDR) is movable or immovable property, and whether prior permission of the Charity Commissioner under Section 36(1)(c) of the Bombay Public Trusts Act, 1950 is required for its sale by a public trust.
Final Decision
The writ petition was dismissed. The orders of the Joint Charity Commissioner were upheld. The Court held that TDR is movable property and therefore the permission of the Charity Commissioner under Section 36(1)(c) of the Bombay Public Trusts Act, 1950 is not required for its sale by a public trust.
Law Points
- Transferable Development Rights (TDR) is movable property
- Section 36(1)(c) of Bombay Public Trusts Act
- 1950 applies only to immovable property
- Charity Commissioner's permission not required for sale of TDR by public trust
