Second Appeal No.249 of 2009

25th September, 2009

Petitioner Counsel: Shri. N. P. PATIL JAMALPURKAR
Respondent Counsel: Shri. R. N. DHORDE

Cases Cited:
Hidayatkhan Bismillakhan Pathan Vs. Vaijnath, 2009 ALL SCR 2691 =(2009) INSC 895 [Para 7]
Virbala K. Kewalram Vs. Ramchand Lalchand, 1996(4) ALL MR 490 =1997(1) Mh.L.J. 94 [Para 7]
Mir Mohamad Haidar Mujawar Vs. Mir Jamal Haidar Mujawar, 1969 Mh.L.J. 292 [Para 7]
Mohamad Haidar Mujawar Vs. Jamal Haidar Mujawar, AIR 1969 Bombay 328 [Para 8]
Jagatnarayansingh Swarupsingh Chithere Vs. Swarupsingh Education Society, 1980 Mh.L.J. 372 [Para 10]

JUDGMENT

JUDGMENT:- This is an appeal challenging judgment and order passed by the Ad-hoc District Judge-3, Latur on 18-2-2009 in Civil Miscellaneous Application (Trust) No.191/2008 thereby confirming the judgment and order passed by the Joint Charity Commissioner, Latur in Revision Application no.31/2007 decided on 1-9-2008.

2. Appellant No.1 herein presented change report under section 22 of the Bombay Public Trusts Act, 1950 to the Deputy Charity Commissioner, Latur Region, Latur on 27-12-2006. Change report pertains to the election of the Executive Committee of the trust namely Mahatma Basweshwar Shikshan Prasarak Mandal, Kharosa, Tq. Ausa, Dist.-Latur. Appellant No.1 intimated the change occurred in the constitution of the Managing Committee of the trust in pursuance to the elections of the office bearers held on 7-8-2006. On presentation of the change report the Deputy Charity Commissioner by order dt.5-2-2007 accepted the same and directed to make consequential amendments in Schedule I. It is recorded in the order passed by the Deputy Charity Commissioner that the applicant has submitted consent letter of the incoming trustees and no objection letter from the out going trustees which are placed on record. On perusal of the original notice book and the proceeding book, the Deputy Charity Commissioner directed acceptance of change. Respondents herein whose names find place on record as out going trustees presented revision application bearing no.31/2007 to the Joint Charity Commissioner, Latur Region, Latur. It was the contention of the respondents herein that acceptance of change by the Deputy Charity Commissioner is illegal as no notices were issued to the out going trustees. It is also further contended that the change report itself was presented beyond the period prescribed under section 22 of the Bombay Public Trusts Act. Apart from this, there was no application seeking condonation of delay tendered to the Assistant Charity Commissioner by the appellants herein i.e. newly elected trustees. Thus, it is contended that it was not open for the Deputy Charity Commissioner to direct acceptance of change without issuing notice to the out going trustees.

Revision application was resisted by the appellants herein, incoming trustees, on the ground of maintainability. It is contended that the revision application cannot be entertained beyond the period prescribed for entertaining appeal under section 70 of the Bombay Public Trusts Act. According to the appellants, the out going trustees had given no objection for registering the change. As such, it was not necessary for the Deputy Charity Commissioner to issue notice calling upon the out going trustees to submit their say. The Joint Charity Commissioner who decided the revision application was pleased to allow the same and therefore the matter came to be remitted to Deputy Charity Commissioner for holding fresh enquiry. The reporting trustees were given an opportunity to tender an application seeking condonation of delay and on consideration of such application the Deputy Charity Commissioner was directed to deal with the application presented under section 22 of the Act.

3. Judgment and order passed by the Joint Charity Commissioner was subjected to challenge by presenting application under section 72 of the Bombay Public Trusts Act, 1950 by the incoming trustees. Application came to be heard and disposed of by the Ad-hoc District Judge - 3, Latur who was pleased to dismiss the same by order dt.18-2-2009.

4. At the stage of admission of the appeal, this court formulated following substantial question of law :

A.Whether the Joint Charity Commissioner, Latur committed error in entertaining revision under section 70-A in view of Bar under sub-section 2 of Section 70-A r/w. section 70(1)(b) of the Bombay Public Trusts Act, 1950 and whether the order of remand passed by the Joint Charity Commissioner is sustainable in law ?

5. It is strenuously urged by learned counsel for the appellants that the Joint Charity Commissioner has no entitlement to entertain the revision application under section 70A of the Act in view of bar contained in sub-section 2 of section 71 r/w. section 71-B of Bombay Public Trusts Act, 1950. According to learned counsel for the appellants, remedy of appeal is provided for raising challenge to the order passed by the Assistant Charity Commissioner or Deputy Charity Commissioner by preferring appeal under section 70 of the Act. Section 70(1)(b) of the Act prescribes remedy of presenting appeal raising exception to the order passed under section 22 of the Bombay Public Trust Act. The out going trustees/respondents herein therefore ought to have presented the appeal within the prescribed period of limitation as provided under sub-section 2 of section 70 of the Act. According to learned counsel for the appellant, therefore, remedy as provided under section 70-A of the Act cannot be availed of by the respondents herein. It is also further contended that even if the remedy of preferring revision is to be availed of, application for revision shall have to be presented within the time limit prescribed for presenting appeal under section 70 of the Act. According to learned counsel for the appellants, sub-section 2(a) of section 70-A of the Act indirectly places limitation on the powers of the Charity Commissioner to entertain revision application beyond he period prescribed for entertaining the appeal under section 70 of the Act. It is also urged in the alternative that the revision application is required to be presented within reasonable period and the applicants presenting revision application shall have to demonstrate as to why they did not prefer the application within time limit prescribed for entertaining the appeal as provided under section 70 of the Act. Thus, it is contended that if the revision application presented beyond 60 days is to be entertained, it shall be entertained only in cases whee the applicant explains the circumstances for causing delay in presenting the revision application and in no other circumstances the revision application can be entertained.

6. In order to appreciate the contentions raised by the appellants, it would be appropriate to refer to provisions of sections 70 and 70-A of the Bombay Public Trusts Act, 1950 which read thus :

"S.70. Appeals from findings of Deputy or Assistant Charity Commissioner :-

1. An appeal against the finding or order of the Deputy or Assistant Charity Commissioner may be filed to the Charity Commissioner in the following cases :

(a) the finding and order, if any, under Section 20;

(b) the finding under section 22;

(b1) the finding under section 22-A;

(c) the finding under Section 28;

(d) the order under sub-section (3) of Section 54(e) an order confirming or amending the record under Section 79-AA.

2. No appeal shall be maintained after the expiration of sixty days from the recording of the finding or the passing of the order, as the case may be.

3.The Charity Commissioner may, after hearing the appellant or any person appearing on his behalf, for reasons to be recorded in writing either annual, reverse, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence.

S.70-A. Charity Commissioner to call for and examine records and proceedings before Deputy or Assistant Charity Commissioner:

1. The Charity Commissioner may, in any of the cases mentioned in section 70, either suo motu or on application call for and examine the records and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annul, reverse, modify or confirm the said finding or order or may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence;

Provided that, the Charity Commissioner shall not record or pass any orders without giving the party affected thereby an opportunity of being heard.

2. Nothing in sub-section (1) shall entitle the Charity Commissioner to call for and examine the record of any case -

(a) during the period in which an appeal under section 70 can lie against any finding recorded by the Assistant or Deputy Charity Commissioner in such case, or

(b) in which an order has been passed either in an appeal made under section 70 or 71 or on an application under section 72."

On perusal of section 70-A of the Act, it is quite clear that for entertaining revision application or for exercise of suo motu powers by the Charity Commissioner no limitation is prescribed. The only limitation on exercise of the powers by the Charity Commissioner is as laid down in sub-section 2(a) and (b) of section 70-A of the Act. The Charity Commissioner is not entitled to call for and examine the record of the case during the period appeal under section 70 of the Act can lie or in the cases wherein order has been passed either in an appeal presented under section 70 or 71 or on an application under section 72 of the Act. Thus, contention of the appellants that sub-section 2(a) of section 70 of the Act indirectly provides for limitation for entertaining revision application is without any substance. Bare reading of the provisions of the Act do not permit such interpretation.

7. Learned counsel for the appellant seeks to place reliance on a judgment in the matter of Hidayatkhan Bismillakhan Pathan Vs. Vaijnath & others, (2009) INSC 895 : [2009 ALL SCR 2691] decided by the Apex court on 5th May, 2009 (Civil Appeal No.3267/2009). Learned counsel placed reliance on paragraph no.19 of the judgment for advancing his contention that section 70-A of the Bombay Public Trusts Act infact provides for period of limitation for entertaining revision application. Paragraph No.19 of the judgment of the Apex court reads thus :

"19.A suo motu jurisdiction, as envisaged under Section 70-A of the Act can be initiated for the purposes mentioned therein. It is an enabling provision. The said jurisdiction need not be exercised only because it would be lawful to do so. For the said purpose not only the parties are required to be heard but also subject to the limitations provided for in sub-section (2) thereof.

Some limitations have been provided for in regard to exercise of the jurisdiction by the Charity Commissioner (1) it must be exercised within the prescribed period of limitation; and (2) where an order has been passed either under Section 70 or 71 of the Act.

In this case an appeal was preferred before the Charity Commissioner who did not exercise its jurisdiction before it became barred by limitation the application. Even in the appellate order, the appeal was not only held to be not maintainable being barred by limitation but also no prima facie case therefor was found. The Joint Charity Commissioner arrived at a finding that the first respondent, although preferred the appeal, in fact attended all the proceedings and participated in the meetings. If no prima facie case was found in the appeal of the first respondent as his action was found to be lacking bona fide, it should not have, in our opinion, exercised its suo moto powers. It is true that the order of the learned District judge dated 16th October, 2004 had attained finality in the sense that an enquiry was directed to be held. However the purpose and object for which such an enquiry was directed to be held, in our opinion, was no longer available, keeping in view the fact that even fresh election had taken place in the year 2006."

Analysis of provisions of section 70-A of the Bombay Public Trust Act by the Apex court dies not lead to an inference that section 70-A of the Act provides for limitation for presentation of revision application. The Apex court has commented upon the limitation in exercise of the jurisdiction by the Charity Commissioner under section 70-A of the Act and not in respect of the limitation for entertaining revision application. On bare perusal of section 70-A of the Act, it does not prescribe any period of limitation for entertaining revision application. In the matter before the Apex court, after availing an opportunity of preferring appeal under section 70 of the Act, revision application was presented and same was entertained by the Charity Commissioner by exercising suo motu powers. Therefore, the Apex court has observed that when no prima facie case was found for entertaining the appeal and the action of the respondent was found to be lacking in bonafides, exercise of suo motu powers was not warranted. The judgment of the Apex court does not give an impression that the revision application is to be entertained or the suo motu powers are required to be exercised by the Charity Commissioner within the period during which remedy of appeal can be availed of as provided under section 70 of the Bombay Public Trust Act. It has been reiterated in the judgments reported in 1997(1) Mh.L.J. 94 : [1996(4) ALL MR 490] in the matter of Virbala K. Kewalram and others Vs. Ramchand Lalchand and others as well as in the matter of Mir Mohamad Haidar Mujawar Vs. Mir Jamal Haidar Mujawar reported in 1969 Mh.L.J. 292 that no period of limitation is provided for exercise of suo motu powers or in entertaining application under section 70-A of the Bombay Public Trust Act. Contention raised by the appellant that revision application cannot be entertained beyond time limit permissible for entertaining appeal under section 70-A of the Act is without any substance and as such cannot be accepted.

8. Learned counsel for the appellant has placed reliance on a judgment reported in AIR 1969 Bombay 328 in the matter of Mohamad Haidar Mujawar Vs. Jamal Haidar Mujawar and others and contended that the discretion exercisable by the revisional authority suo motu is distinct and wider than exercise of powers on an application by the party. According to him, in view of availability of remedy of appeal to party, it is necessary for the party to approach the appellate forum and at the behest of the party and for exercise of revisional jurisdiction at the instance of party there are inherent limitations in the revisional authority in exercise of jurisdiction. Reliance is placed on paragraph no. 7 of the judgment which reads thus :

"7.As to the principle enunciated by the learned Judges there can be no two opinions except that it requires a slight qualification which apparently was not pointed out to the learned Judges. The qualification is that the presumption does not apply to procedural laws. That, there is a distinction between a revisional application and an appeal cannot be denied. Right of appeal is given to a litigant, and, if given, appeal lies as a matter of law and there is no option to the Tribunal to which the appeal lies, of refusing to interfere whether it likes it or not. The powers of revision, however, are a class by themselves and are exercisable even suo motu without even an application being made by a party. There is no right in the party as such. It is merely a discretionary power to be exercised by the Court or tribunal in order to see that ends of justice are not defeated. It is not to be exercised for technical reasons merely to satisfy the whims of the litigant."

On perusal of the judgment it is difficult to accept the contention raised by the appellant that limitation is prescribed for exercise of revisional jurisdiction by the authority while exercising suo motu powers or exercise of powers at the instance of the party.

9. In 1954 by virtue of section 8 of Bombay Act No.59 of 1954, section 70-A came to be added. This section gives powers to the Charity Commissioner in cases falling within section 70 to call for and examine record and proceedings of any case decided by the Deputy or Assistant Charity Commissioner. It is in this background that in much number of cases lawyers do not even appear on enquiries while in some cases they may appear. Most of the parties appear by themselves and they have no legal advice. In these circumstances, in all probabilities the Legislature must have felt that much injustice could have occurred to a large number of persons who could not present appeal in time and it was necessary to relieve the hardship caused to them and it is probably the reason for the Legislature to add section 70-A of the Act. In short, this is a remedial provision for preventing perpetuation of injustice. This could be the object of the Legislature can be seen from the fact that though it has been called revisional power, the powers that are given to the Charity Commissioner are as wide as in case of appeal. It is true that being a revisional jurisdiction, it is to be exercised in the interests of justice and not for technical reasons.

10. It has been contended by learned counsel for the respondents that the enquiry under section 22 of the Act is of judicial character and is not merely an empty formality. Reliance is placed on judgment reported in 1980 Mh.L.J. 372 in the matter of Jagatnarayansingh Swarupsingh Chithere and others Vs. Swarupsingh Education Society and another. It is observed in paragraph no.8 of the judgment thus :

"8.Therefore, though prima facie it appears to be a mere change, the scheme of the Act contemplates qua the change under consideration an inquiry of a judicial character with an appeal therefrom to the Charity Commissioner and a further application under section 72 to the District Judge and yet another appeal therefrom to the High Court against which appellate judgment of the High Court, a still further appeal may, in a given case, lie under the Letters Patent. Such being the judicial scrutiny and the extensive gamut of the inquiry under section 22 of the Act, it is obvious that this inquiry cannot be a mere factual process or one purely formal in nature. Investigation into the legality and validity of the change is implicit. The inquiry is a judicial process partaking the character of a judicial adjudication. An elemental pre-requisite or the minimal requirement of a judicial inquiry and a judicial process is compliance with the principles of natural justice. These principles, though not embodied rules, constitute none the less an important facet and pivot of the judicial process. Inquiry behind the back of an aggrieved party is best avoided lest it stands vitiated. One affected must be noticed and heard. Basic lacuna in that respect may well render the inquiry and/or the order therein almost non est at least qua the aggrieved absent party left unheard and, therefore, unheeded."

In the instant matter, on perusal of the order passed by the Deputy Charity Commissioner, it does not appear that the Deputy Charity Commissioner has applied his mind to the record of the case. Application for change was presented to the Deputy Charity Commissioner on 28-12-2006. Certain documents on which reliance is placed by the reporting trustees were presented on 3-2-2007 and immediately on receipt of the documents, the Deputy Charity Commissioner directed that the matter be placed for final orders. Accordingly, two days thereafter, order came to be passed by the Deputy Charity Commissioner directing acceptance of change. On perusal of the minutes of the meeting dt.7-8-2006, it transpires that the election to the Managing Committee appears to have been held in the meeting conducted on the said date i.e. 7-8-2006. Application for effecting change is admittedly submitted on 28-12-2006 which is beyond prescribed period of limitation as provided under section 22 of the Act. In such circumstances, the Deputy Charity Commissioner ought to have directed issuance of notice to the out going trustees. It is seriously contended by the out going trustees that they have not signed the consent letter and have never endorsed the change. These aspects therefore are required to be investigated. It appears that the Deputy Charity Commissioner has passed the order in mechanical manner and without application of mind to the record of the case. It is to be noted that the provisions under section 22 of the Act require judicial decision before ordering that the change be recorded. Rule 7 of the Bombay Public Trusts Act provides that the inquiries under section 22 of the Act shall be held as far as possible in accordance with the procedure prescribed for trial of suits under the Presidency Small Cause Courts Act, 1882. On perusal of the order passed by the Deputy Charity Commissioner, there does not appear to be a judicial scrutiny made by the authority before passing the impugned order.

11. For the reasons stated above, I am of the opinion that the order passed by the Joint Charity Commissioner of remitting back the matter to the Deputy Charity Commissioner for reconsideration which order having been confirmed by the Ad-hoc District Judge - 3, Latur in Misc. Civil Appeal No.191/2008 does not call for any interference. The revisional court was justified in entertaining the revision application presented by the respondents, out going trustees, and passing the order of remitting back the matter to the Deputy Charity Commissioner for fresh enquiry. In the result, appeal stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.

12. Shri. N. P. Patil Jamalpurkar, learned counsel for the appellants prays for continuation of interim order for certain period. For the reasons stated in this judgment, I do not see any reason for continuation of interim orders. Request stands rejected.

13. In view of dismissal of the appeal, pending civil application, if any, stands disposed of.

Appeal dismissed.