TaxTMI 
TaxTMI 
2011 (6) TMI 936
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....ted 3/8/2009, the learned Joint Charity Commissioner has rejected the objections raised by the petitioners herein in respect of the proposed sale of Transferable Development Rights (TDR) in favour of the respondent no.3 and by the second order dated 12/7/2010, the learned Joint Charity Commissioner has disposed of the application filed by the respondent no.2 - Trust by observing that for sale of TDR which is moveable property the permission of the Charity Commissioner is not required under Section 36(1)(c) of the Bombay Public Trusts Act, 1950 [for brevity sake referred to as the said Act]. 3. The factual matrix involved in the above petition can be stated thus - The petitioners herein were the participants in the sale of TDR, which w....
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.... objections of the petitioners were considered by the Joint Charity Commissioner and by the first impugned order dated 3/8/2009, the said objections of the petitioners came to be rejected inter alia on the grounds that the same were filed belatedly, the offer of the respondent no.3 was higher than that had made by the petitioners and that the petitioners had not deposited any amount to show their bona fides. 4. Thereafter, the learned Joint Charity Commissioner ventured to consider the application filed by the respondent no.2- Trust under Section 36 of the said Act. The Joint Charity Commissioner applied the analogy of the payment of compensation by way of TDR for the land acquired and held that the TDR granted in favour of the owner of ....
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....to anything attached to the earth." If, therefore, any benefit arises out of the land, then it is immovable property. Considering section 10 of the Specific Relief Act, such a benefit can be specifically enforced unless the respondents establish that compensation in money would be an adequate relief. Can FSI/TDR be said to be a benefit arising from the land. Before answering that issue we may refer to some judgments for that purpose. In Sikandar and ors. .vs. Bahadur and ors., XXVII Indian Law Reporter, 462, a Division Bench of the Allahabad High Court held that right to collect market dues upon a given piece of land is a benefit arising out of land within the meaning of section 3 of the Indian Registration Act, 1877. A le....
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....perty, all the incidents of immovable property would be attached to such an agreement to use TDR. In view of the judgments of this court (supra), in my view, the order of the Charity Commissioner that no permission under Section 36 is required as TDR is a movable property cannot be sustained and therefore, the application filed by the respondent no.2 - Trust under Section 36 of the said Act would have to be considered on the touch stone of the said Section 36 and also on the touch stone of the principles applicable to such a sale by a Trust. 7. Now, the question remains of the order dated 3/8/2009 rejecting the objection filed by the petitioners. Since the learned Joint Charity Commissioner has held that permission under Section 36 of th....