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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
FIRST APPEAL NO. 931/2017
1] Shri Ramkrishna Vishwesharappa Ganjiwale,
aged about 80 years, Occu: Agriculturist,
R/o. Peth, Ahmedpur, Tah. Ashti,
District - Wardha.
2] Krishna Udaybhanji Ingle,
aged about 85 years, Occu: Agriculturist,
R/o. Malipura, Post & Tah. Ashti,
District - Wardha. APPELLANTS
.....VERSUS.....
1] Kishor S/o Ramkrushna Ganjiwale,
aged about 52 years, Occu: Service,
R/o. Peth, Ahmedpur, Ashti, Tah. Ashti,
District - Wardha.
2] Dr. Arvind S/o Govindrao Malpe,
aged about 66 years, Occu: Social Work,
R/o. Shahid Malpe Ward, Ashti (Sahid),
District - Wardha.
3] Wasudeo Vithobaji Bijwe,
aged about 77 years, Occu: Cultivator,
R/o. Ashti (Sahid), Distt. Wardha.
4] Smt. Sushila Kashinath Barado,
aged about 71 years, Occu: Household,
R/o. Ashti (Sahid), Distt. Wardha.
5] Datta Pandurang Sawwalakhe,
aged about 67 years, Occu: Cultivator,
R/o. Telipura, Ashti, Distt. Wardha. RESPONDE NTS
Shri V.K. Paliwal, counsel for appellants.
Shri Prashant Gode, counsel for respondent no.2.
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CORAM: S.B. SHUKRE, J.
DATE : AUGUST 31, 2017.
ORAL JUDGMENT :
Heard. ADMIT.
2] Heard finally by consent.
3] The appellants have challenged the legality
and correctness of the order dated 06/08/2016, rejecting their Revision Application filed under Section 70-A of the Maharashtra Public Trust Act (for short, "Trust Act"), on the ground that it was barred by limitation. This order was passed on 08/06/2010 in Revision Application No. 12/2008.
4] Shri Paliwal, learned counsel for the appellants submits that Section 70-A of Trust Act does not prescribe any limitation period and that in any case, the revision application was filed within a reasonable period of time, that is of about two years, from the date of knowledge of election and taking place of change in the Managing Committee.
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5] According to Shri Gode, learned counsel for
the respondent no.2, the contesting respondent; the other respondents have not appeared before this Court; submits that revision application was hopelessly barred by limitation, as it was filed about more than two years after the change report was accepted on 27/11/2006 by the learned Assistant Charity Commissioner. He has placed his reliance upon the case of Hidayatkhan Bismillakhan Pathan -Vs- Vaijnath and others, (2009) 7 Supreme Court Cases 506.
6] In view of above, the only point which arises for my determination is :
"Whether the impugned order is legal and correct in the facts and circumstances of the case?" 7] There is no dispute about the proposition that Section 70-A of the Trust Act does not prescribe any limitation period for filing of the revision application by the aggrieved party. There is also no dispute about the other proposition of law that even when no limitation period is prescribed statutorily, the remedy provided under a statute is required to be availed of within a ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 4/13 reasonable period of time. Now what could be the reasonable period of time, would depend upon the facts and circumstances of each case. It may, in a given case, be of not more than one or two years and in another case, it could be of even three years. So, what is required to be examined by the Court, while deciding the objection raised regarding bar of limitation, is whether the delay occurred in a particular case is unreasonable or otherwise.
8] In the case of Hidayatkhan Pathan (supra), the delay in filing of the application under Section 70-A of the Trust Act was of about two years and it was found, in the facts and circumstances of that case, to be unreasonable and improperly explained and therefore, it was observed that the revisional jurisidiction under Section 70-A of the Trust Act ought not to have been exercised by the learned Charity Commissioner, only because it was lawful for him to do so. Observations made in para no.22 of the judgment in the said case by the Hon'ble Supreme Court are relevant in this regard.
9] In the instant case, the change report was
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accepted by the learned Assistant Charity Commissioner on 27/11/2006 and the revision application was filed on 05/05/2008. The learned Joint Charity Commissioner found that such period of about 1 ½ years after the acceptance of the change report on 27/11/2006 was unreasonably long for which no explanation whatsoever was given by the appellants and as such, the learned Joint Charity Commissioner further found that the revision application filed under Section 70-A of the Trust Act was barred by limitation. However, on perusing the revision application itself, I find that these observations of learned Joint Charity Commissioner are not based upon the record of the case. In para no.12 of the revision application, the appellants have specifically averred about knowledge that they acquired about the taking place of the change and taking of a decision by them to challenge the order of the learned Assistant Charity Commissioner. They have contended that on 19/02/2008, they wrote to the President and Secretary of the Trust that they never received any notice of the General Body Meeting though they were founder life members of the Trust and that they had never resigned ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 6/13 from their membership of the Trust. They have also contended that they came to know that there was a meeting in which elections to the Managing Committee were held and change report was filed thereafter in Inquiry No. 104/2006 (SIC 2006). They have also stated that because they felt aggrieved by the decision taken in the Inquiry No. 104/2006, they filed the revision application before the learned Joint Charity Commissioner.
10] The averments so specifically made by the appellants are a clear pointer to the fact that in the opinion of the appellants, there was in fact no delay occurred in invoking the revisional jurisdiction of the learned Joint Charity Commissioner as they had preferred the revision application under Section 70-A of the Trust Act within a period of about 3 months from the date of knowledge. It is significant to note here that it has been the contention of the appellants all along that they were completely kept in the dark about holding of the election to the Managing Committee after the directions were issued in the Second Appeal by this ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 7/13 Court on 27/06/2005, Ramkrushna-Appa Vishweshwar-Appa and others -Vs- Krushna Udaybhanji Ingale and others, 2006(2) Bom.C.R. 294 and that they learnt about holding of the elections in pursuance of the directions given by this Court only in February-2008 and then in May-2008, they filed an application under Section 70-A of the Trust Act. So, it was incumbent upon the learned Joint Charity Commissioner to decide first as to whether or not there was any unreasonable delay occurred in preferring the revision application, as held in the case of Hidayatkhan Pathan (supra) and if it was so, whether or not there was any sufficient cause shown for the same by the appellants. The learned Joint Charity Commissioner did not embark upon any such inquiry in the matter and the result, to my mind, is of passing of an erroneous and illegal order, which is impugned in the present appeal. The question raised in the previous para is answered accordingly.
11] Now the next question would be "whether there was any unreasonable delay occurred in filing of ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 8/13 the revision application by the appellants?".
The determination of this question is necessary, because Section 70-A of the Trust Act does not prescribe any particular period of limitation and the law settled by the Hon'ble Supreme Court affirms the conclusion. Even then the law would always expect a party to invoke the revisional jurisdiction within a reasonable period of time. The settled law would also guide us to hold that what is a reasonable period and what is not, is a question of fact to be answered on the facts and circumstances of each case. Ordinarily time of about three months taken for filing of a revision application would not fall within the meaning of expression 'unreasonable delay' unless it is shown to be so by the party raising the objection. In the present case, it has not been shown by the contesting respondent no.2 that this time of about three months could be termed as unreasonable delay in the facts and circumstances of the case. Therefore, I find that although time of about three months was taken to file the revision application by the appellants, the time so taken could not be said to be ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 9/13 unreasonable thereby requiring the appellants to give a justification and explanation to the Court to consider the same on the anvil of the principles applicable to exercise of jurisdiction available under Section 5 of the Limitation Act to condone the delay.
12] In this view of the matter, I am of the opinion that the revision application of the appellants under Section 70-A of the Trust Act was filed within a reasonable period of time, and therefore, there was no need for them to demonstrate any sufficient cause for condoning the delay.
13] The learned counsel for the respondent no.2 submits that after 2005 elections at least 2 more elections were held and they resulted in effecting change to the Managing Committee twice. He submits that the first change after the election of 10/07/2005 took place on 05/12/2012 and the second change took place on 12/08/2015. He submits that the challenge in the present appeal relates to a change which took place as a result of election held on 10/07/2005 and it's acceptance made by the learned Assistant Charity ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 10/13 Commissioner on 26/07/2006, and therefore, now the question has been rendered academic and this Court cannot give any effective judgment. As such, learned counsel for the respondent no.2 further submits, this appeal be dismissed. In support, he invites my attention to the observations of the Hon'ble Supreme Court made in para no.25 of the case of Hidayatkhan Pathan (supra). Shri Paliwal, learned counsel for the appellant, however, does not agree. He submits that the purpose and objection of the challenge made to the change report accepted in the year 2006 are still alive as all the subsequent changes are likely to be affected if challenge to the first change report is accepted. He submits that it is the case of the appellants that the subsequent Managing Committees were illegally constituted, and therefore, have no authority to hold the elections. 14] In para no.25 of the case of Hidayatkhan Pathan (supra), the Hon'ble Supreme Court has observed thus, "It is true that the order of the learned District Judge dated 16/10/2004 had attained finality in the sense that an enquiry was directed to be held. ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 :::
(Judgment) 3108 FA 931-2017 11/13 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".
It would be clear from the above observations that a question involved in an appeal would be rendered academic if the purpose and object of the challenge no longer survive or are no longer available to the party raising the challenge. In the present case, if one considers the contention of the learned counsel for the appellant, one would find that the purpose and object for achieving of which the revision application has been sought to be filed, are still available to appellants, for, it is their case that if the challenge so raised by them is accepted, all future elections would have to be quashed and set aside and fresh election would have to be held by ensuring compliance with the provisions of law and the directions issued by this Court in the case of Ramkrushna -Vs- Krushna (supra) in the future. Such being the case of the appellants, I am of the view that, the question involved in the present case could not be ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 12/13 considered to be of purely academic nature and therefore by following the law in the case of Hidayatkhan Pathan (supra), I find that the effective judgment can be rendered at least to the extent of holding of fresh elections by following the law, in the facts and circumstances of the instant case. 15] In the result, I find that the impugned order is illegal and incorrect and it deserves to be quashed and set aside. The second question is answered accordingly.
16] Appeal is allowed.
17] The impugned order is quashed and set aside.
Consequently, the order of the learned District Judge confirming the order of the Joint Charity Commissioner is also quashed and set aside.
18] It is held that revision application is not barred by limitation.
19] The learned Joint Charity Commissioner is directed to decide the revision application in accordance ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 ::: (Judgment) 3108 FA 931-2017 13/13 with law as expeditiously as possible, preferably within three months from the date of appearance of the parties. 20] The parties to appear before the learned Joint Charity Commissioner on 18/09/2017.
JUDGE Yenurkar ::: Uploaded on - 13/09/2017 ::: Downloaded on - 14/09/2017 00:59:57 :::