Bombay High Court
2 Shaikh Babamiya Usman vs 3 Abdul Karim Burhan on 29 November, 2010
Bench: S. S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 227 OF 1992
1 Sayed Salam Gafoor Pirjade
2 Shaikh Babamiya Usman
(petitioner abated as against
petitioner No.2 on 28.10.1991)
3 Shaikh Ibrahim Abdulla
4
Shaikh Rafique Gulam Hussain
All residents of Momaipara
Sangamner, District Ahmednagar ...Petitioners
Versus
1 Shaikh Gulab Nabee Hussein
age major,
2 Hasan Abdul Choudhary,
Age major
3 Abdul Karim Burhan,
Age major,
all R/o. Momainpura,
Sangamner, District Ahmednagar ...Respondents
.....
Mr. S.K. Shinde, advocate for the petitioners.
Mr. M.A. Nerlikar h/f Mr. S.T. Shelke, advocate for R. Nos. 1 to 3.
.....
CORAM: S. S. SHINDE, J.
DATED: 29TH NOVEMBER 2010
JUDGMENT:-
1 This writ petition is filed challenging the order dated 7.4.1988
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passed by learned 3rd Additional District Judge, Ahmednagar in Misc.
Application No. 91 of 1986, thereby dismissing application for
condonation of delay.
2 The facts, which necessitates to file this petition, are as under;-
It is the case of the petitioners that they are residents of
Sangamner and are beneficiaries and interested persons of Masjid
known as new Momainpura Masjid registered as public Trust bearing
PR.T No. B-85. The respondent Nos. 1 and 3 are trustees of new
amalgamated trust.
It is further case of the petitioners that in or about 1981
respondent Nos. 1 to 3 preferred an application to respondent No.4
under Section 50A (2) of the Bombay Public Trust Act (hereinafter for
the sake of brevity referred to as "the said Act") for amalgamation of
new Momainpura Masjid and another Masjid. It is further case of the
petitioners that on 12.8.1981, respondent No.4 i.e. Joint Charity
Commissioner passed an exparte order for amalgamation of two
Masjids.
It is further case of the petitioners that till 17.1.1984, they were
not aware of the amalgamation of two trusts. They came to know after
receiving a copy of the order dated 12.8.1981 from Joint Charity
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Commissioner i.e. respondent No.4. The petitioners immediately in a
meeting held on 20.1.1984 of the beneficiaries of the new Momainpura
Masjid, in which meeting respondent No.1 took responsibility in the
presence of all beneficiaries to get the order of amalgamation set
aside by preferring appropriate proceeding. It is further case of the
petitioners that the petitioners preferred petition under Section 72 of
the said Act. The petitioners filed an application for condonation of
delay under Section 5 of the Limitation Act to condone the delay in
filing the petition before the District Judge, Ahmednagar. In the said
petition, they prayed that the Joint Charity Commissioner should
exercise his powers under Section 37 to inspect the trust property
under Section 41-B to initiate inquiry under Section 41-D to remove the
trustees i.e. respondent Nos. 1 to 3 and cancel the amalgamation of
the Trust.
It is further case of the petitioners that they filed application for
condonation of delay and brought to the notice of the court all facts
that delay in filing petition is caused due to their unawareness of the
fact of passing order of amalgamation by respondent No.4 and played
fraud by respondents by misleading the beneficiaries. It is further case
of the petitioners that they filed their petition on 11.2.1986. The
application for condonation of delay was filed on 13.6.1986. It is the
case of the petitioners that they have shown sufficient cause to
condone the delay. However, learned district Judge by order dated
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7.4.1988 dismissed the application for condonation of delay. Being
aggrieved by the said order passed by the learned District Judge,
Ahmednagar dated 7.4.1988, this petition is filed.
3 Heard learned counsel for the petitioners and the learned
counsel for the respondents. I have perused the grounds taken in the
petition. It is stated in the grounds that the respondent No.1 played
fraud and misled the beneficiaries of new Momainpura Masjid stating
that he will get the order of amalgamation set aside. It is further stated
in ground No.3 that the application for condonation of delay need not
be rejected on technical ground, if the matter is a public interest. In
ground No.4, it is stated that 'sufficient cause' should receive the
liberal construction so as to advance substantial justice to the
beneficiaries of the trust. In ground No.5, it is stated that if the order of
amalgamation passed by respondent No.4 is allowed to continue it
would cause irreparable loss to the beneficiaries of the new
Momainpura Masjid. In ground No.6 it is stated that the learned
District Judge ought to have considered that new Momainpura Masjid
has nothing to do with the beneficiaries of both the trusts and the
independent bodies.
4 Learned counsel appearing for the respondents submitted that
the 3rd Additional District Judge, Ahmednagar has taken into
consideration the contents of the application, which was filed for
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condonation of delay, has considered the matter and rejected the
application for condonation of delay of 1704 days. Learned counsel in
support of his contention has placed reliance on the reasons recorded
by the Additional District Judge while dismissing the application for
condonation of delay filed by the petitioners.
5 Heard counsel for respective parties. I have carefully perused
the grounds taken in the writ petition and also the impugner order
dated 7.4.1988. It appears that there was delay of 1704 days in filing
the application under Section 72 of the said Act. It appears that the
order passed by the Joint Charity Commissioner on 12.8.1981 was
challenged by the petitioners herein in the year 1986. Grounds taken
by the petitioners in the application for condonation of delay is that the
delay occurred because initially the applicant had no knowledge about
exparte order that was passed by the Joint Charity Commissioner and
secondly when they obtained the certified copy of the said order they
called a meeting of all beneficiaries of Momainpura Masjid on
20.1.1984 and in that meeting it was decided one scheme cannot be
prepared for two different Masjids . According to the applicants i.e. the
petitioners herein, the opponent No.1 was present in the said meeting
and in that meeting he promised that he would get the order passed by
the Joint Charity Commissioner, set aside. Therefore, the petitioners
did not file application under Section 72 of the said act till 1986. Since
when the petitioners realized that the opponent No.1 did not get the
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order of Joint Charity Commissioner set aside, they constrained to file
application under Section 72 of the said Act. It is therefore, contended
that they have shown sufficient ground to condone the delay.
6 It further appears that the respondents herein filed written
statement at Exh.12 before the Additional District Judge opposing the
application for condonation of delay. In the said written statements, the
respondents contended that the petitioners herein have no locus
standi to file application under Section 72 of the said Act. The other
contentions were also taken in the said written statement.
7 The learned Additonal District Judge, Ahmednagar has
considered the submissions of the petitioners and also adverted to the
averments in the application for condonation of delay. The court has
recorded that the Joint Charity Commissioner passed order on
12.6.1981 in application No. 25 of 1981 and directed that both the
trusts be amalgamated. However, the petitioners herein, who are
original applicants filed application under Section 72 of the said Act on
13.6.1986 and there is delay of 1704 days in submitting the said
application under Section 72 of the said Act.
8 So far as the contention of the petitioners that they were not
aware about the proceeding before the Joint Charity Commissioner till
1984 is concerned, the Additonal District Judge has referred a public
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notice issued in daily newspaper and held that since there was public
notice issued in daily newspaper about the said amalgamation, now it
is not open for the petitioners to contend that they were not aware of
the order passed by the Joint Charity Commissioner on 12.6.1981.
The court has also referred to the written statement filed on behalf of
the respondents, in which it was stated that the said public notice was
also pasted on the gate of Masjid situated in Momainpura. Therefore,
the learned District Judge, negatived the contention of the petitioners
that they had no knowledge till 1984 about the order passed by the
Joint Charity Commissioner on 12.6.1981.
9 In para 6, the court has considered that even assuming for the
sake of argument that the applicants had no knowledge about the
application pending before the Joint Charity Commissioner and that
they came to know about the decision for the first time on 15.1.1984,
even then, it cannot be said that delay caused in submitting the
application is justifiable. The court has taken a note that application
was preferred under Section 72 of the said Act on 13.6.1986.
Therefore, the court has considered that even if it is assumed that the
petitioners came to know about the order dated 12.6.1981 passed by
the Joint Charity Commissioner on 15.1.1984, however, for the first
time they challenged the said order by way of application under
Section 72 of the said Act only in the year 1986. The court has also
observed that nothing has been placed on record by the petitioners i.e.
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original applicants to show that there was meeting and opponents had
in fact agreed to get the order cancelled. The court has observed that
if the really there would have been such meeting and the beneficiaries
would have obtained a promise from opponent No.1, then certainly
they would have obtained at least something in writing from the
opponents. But that has not happened. Even there is no notice given
to the opponents by petitioners to take any appropriate action against
opponents.
10 Therefore, the court taking in to consideration the averments in
the application and evidence produced and after appreciating the rival
contentions, has rejected the application for condonation of delay. The
court has also observed that no prudent man could have waited for
such a long period having full knowledge that the opponents are not
doing anything and there is order which according to them was against
their interest. Therefore, on the strength of the material which was
brought on record by the parties, the court has taken reasonable and
possible view. It is true that the sufficient cause should receive liberal
construction, however, the parties must be able to satisfy the
concerned court that the sufficient cause has been disclosed in the
application. It is also true that the length of delay is not important and
sufficient cause disclosed in the application matters. However, in the
facts of this case, the petitioners have utterly failed to disclose the
sufficient cause so as to condone the delay.
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11 It is not disputed by the petitioners that there was no public
notice issued in daily newspaper or said information about the
amalgamation was not given at the gate of the Masjid situated at
Momainpura. Even after knowledge of the order passed by the Joint
Charity Commissioner, the petitioners have waited for another period
of two years. Therefore, in my opinion, the Additional District Judge,
Ahmednagar has taken reasonable and possible view. No interference
is warranted in the extra ordinary jurisdiction of this Court under Article
227 of the Constitution of India. Writ petition is devoid of any merits
and the same stands dismissed. Rule stands discharged.
*****
