Dadasaheb Dattajirao Nimbalkar ... vs Ushadevi Rajaram Nimbalkar
2002 Latest Caselaw 4 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the Advocates for the parties. Perused the records. Since the common question of law arises in these matters the same were heard together and are being disposed of by this common Judgment.

2. These Appeals were admitted on llth October, 1988 as First Appeals. However, in view of the decision of this Court in the matter of Shivprasad Shankarlal Pardeshi v. Leelabai Badrinarayan Kalwar , it is necessary to ascertain whether there arises any substantial question of law in these matters. Upon hearing the learned Advocates for the parties, it is apparent that the following substantial question of law arises for consideration in this Appeal:--

"Whether the Court in exercise of provisions under Section 72 of the Bombay Public Trusts Act, 1950, (hereinafter called to as, 'the said Act') can interfere with the decision of the Joint Charity Commissioner refusing to exercise the jurisdiction on the ground that the delay in approaching the authority had not been explained satisfactorily, when in fact there was sufficient cause shown?

3. The facts in brief relevant for the decision are that on 31st March, 1979 Major Dadasaheb Dattaji Nimbalkar established a public trust, namely, Major Dadasaheb Nimbalkar Educational Charitable Trust. Said Dadasaheb was the managing trustee along with his wife Radhabai and son Rajaram as the trustees. Said Rajaram expired on 8th November 1981. On 12th November 1982, Dadasaheb submitted the change report No. 1889 of 1982 under Section 22 of the Act for the deletion of the names of Rajaram as well as Radhabai. It was the contention of Dadasaheb that Radhabai had resigned on 14-1-1982. He also requested for inclusion of names of Urmiladevi Bhojraj Nimbalkar and Suryakumar Dnyandev Khade as the trustees in place of Rajaram and Radhabai. The change report was accepted by the Assistant Charity Commissioner by his order dated 29th November, 1982. The Review preferred by Radhabai as well as by Ushadevi widow of Rajaram being Revision Application No. 23 of 1984 was dismissed by the Joint Charity Commissioner on 15-5-1986, which was sought to be challenged before the District Judge, Kolhapur in Misc. Civil Application No. 133 of 1985,

4. On 2nd March 1984 Bhojraj Nimbalkar lodged a change report No. 281 of 1984 under Section 22 of the said Act with the Assistant Charity Commissioner, Kolhapur to the effect that Shahajirao S. Nimbalkar had tendered his resignation of trusteeship on 18th February 1984 and the same was accepted and directed to enter the name of Mahipatrao as the trustees. The same was challenged by Radhabai and Urmiladevi by Revision Application No. 24 of 1984, before the Joint Charity Commissioner, Pune which came to be dismissed by the order dated 15-5-1985 the same was challenged before the the District Court, Kolhapur in Misc. Application No. 134 of 1985.

5. On 30th April, 1984 Suryakant Khade submitted a change report No. 256 of 1984 to the effect that Dadasaheb had become old and, therefore, Bhojraj Nimbalkar be appointed a co-managing trustee with effect from 8th February 1984 and his name came to be entered in the Register and the said report was accepted by the Deputy Charity Commissioner and the name of Bhojraj was recorded as co-managing trustee by an order dated 27th September, 1984. The same are challenged by Ushadevi before the Joint Charity Commissioner, and the said joint Charity Commissioner by an order dated 15th May, 1985 rejected the same. Against the same Civil Misc. Application No. 132 of 1985 was filed before the District Court, Kolhapur. All the three Applications, namely, Nos. 132, 133

and 134 of 1985 were allowed by the District Court, Kolhapur by the impugned common Judgment and order on 28th June, 1988. Hence, the present Appeals.

6. Upon hearing the learned Advocate for the parties, and perusal of records, it is seen that the Joint Charity Commissioner purportedly in exercise of powers under Section 70-A of the said Act, had rejected the said applications filed by the respondents mainly on the ground that there was no sufficient cause shown for delay in approaching the authority with the grievance against the change reports. It was observed that the authority under Section 70-A of the said Act should be approached without delay and as there was inordinate delay in preferring the said applications, there was no justification for interference in the orders passed accepting the change reports. It is also observed that the change reports were not objected to during the life time of Dadasaheb. As against this, the lower Court in the impugned Judgment has observed that the authorities, without application of mind to the matter in issue rejected the applications filed by the respondents purely on technical grounds. It had also been observed that the point as to whether there was justification for stranger to be appointed as the trustee in place of the family member was not at all considered by the authorities as well as the records were not properly analysed inasmuch as that the contention that so-called resignation by Radhabai does not appear to be under her signature was totally overlooked by the authorities.

7. Section 70-A of the said Act empowers the Charity Commissioner either suo motu or on application to call for and examine the record and proceedings of any 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 such finding or order or 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; provided that the charity Commissioner shall not record or pass any order without giving the party affected thereby an opportunity of being heard. Undisputedly, there is no limitation period prescribed under the said provision for invoking the powers thereunder. Undoubtedly, in the absence of limitation period being provided for invoking such powers, the authorities have to exercise such powers within the reasonable time from the date the cause of action arises for the parties to make grievance about any finding or order. What should be the reasonable period of time would certainly depend upon facts and circumstances in each case.

8. Bare perusal of the impugned Judgment discloses that the lower Court has referred to various facts which were totally overlooked by the authorities while deciding the matter under Section 70-A of the said Act. Section 70-A discloses that the authorities thereunder even can direct further enquiry or take additional evidence to arrive at the correct finding in the matter. Apparently, therefore, the duty is cast upon the Charity Commissioner to apply his mind to all the materials on record and to make independent assessment of such materials and to find out whether the finding arrived at by the lower authority is borne out from the record or not. Exercise of the power under Section 70-A is not in the nature of mere countersigning order passed by the authority below. The order under Section 70-A should apparently disclose that the findings which are arrived

at are borne out from the records as well as that there is proper application of mind by the authorities to all the materials placed on record.

9. As already observed above, perusal of the order passed by the authority below discloses that while rejecting the application on the ground of inordinate delay, there was no attempt on the part of the authority to find out as to whether the delay was justified in the facts and circumstances of the case or not. Also it does not disclose the application of mind to the facts placed on record. While exercising the powers under Section 70-A of the said Act, the correctness of the findings of the lower authority are to be tested by independent analysis of all the materials on record and not by mere observations that those findings are correct or borne out from the record. In that regard, it is expected from the authorities below to apply their mind to each of the points referred to by the lower Court in the impugned order. Only after considering all the objections raised by the applicant, the authorities can arrive at the finding regarding the cause for delay in approaching the authority has been sufficiently disclosed or not or even though there is delay, whether the facts justify interference by the authorities under Section 70-A in the order of lower authority or not. Viewed from of this angle, it cannot be said that the lower Court erred in interfering with the orders passed by the authorities below and remanding the matter for reconsideration. Hence, there is no case for interference in the impugned Judgment and order and the point sought to be raised as the question of law in the matter is to be answered in the negative. The appeals, therefore, are liable to be dismissed.

10. It was sought to be contended as regards the Judgment in Civil Application No. 132 of 1985 that the same pertains to the order passed in Appeal under Section 70(1) and not under Section 70-A. There is specific period of limitation provided under Sub-section (2) of Section 70 for filing of the Appeal against said order of lower authority and the Appeal filed in the case in hand was beyond the period of limitation prescribed under the said provisions. There is no doubt that for the purpose of Appeal, there is a time limit prescribed under subsection (2) of Section 70. However, the subject matter of the said Appeal was restricted to change report No. 256 of 1984 by one Khade. It is pertinent to note that the grievance raised in the two earlier applications, was basically relating to entitlement of a stranger to be the trustee when the family member were very much available to be the trustees and the alleged resignation of Radhabai is itself being in doubt, fate of the change report No. 256 would necessarily depend upon the order in relation to the change report No. 1088 of 1982. In other words, the decision in Review Application No. 23 of 1984 is to be in relation to the basic issue raised by the parties and the fate of the order passed consequently in relation to any change report filed thereafter would depend upon the decision of the authority in the said review application. Viewed from this angle, therefore, even interference in C.A. No. 132 of 1985 by the first Appellate Court along with other matters referred to above cannot be found fault with.

11. In the result, the Appeals fail and are dismissed with no order as to costs.