Anil Motiram Kalyankar And Ors vs Jogeshwar Mahadeo Mandir Trust ...
2014 Latest Caselaw 140 Bom

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                                                             901-RPF13.13




                                                                                 
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                         
                             APPELLATE SIDE

                    REVIEW PETITION NO. 13 OF 2013
                                 IN




                                                        
                     FIRST APPEAL NO. 450 OF 2013

    Anil Motiram Kalyankar & Ors.                   ..      Applicants




                                            
          Versus
                            
    Shree Jogeshwar Mahadev Mandir Trust
    through its Trustees Shri Machindra
    Shankar Rawal & Ors.                            ..      Respondents
                           
    Mr. Abhishek Pungliya, Advocate for the applicants.
    Mr. Dilip Bodake, Advocate for the respondents

                                       CORAM:- A. P. BHANGALE, J.

DATED :- 17/12/2014

ORAL JUDGMENT:

Heard submissions at the bar.

2 The grievance of the review applicants is that this

Court while deciding first appeal did not entertain it, as if it is a

second appeal, considering only substantial question of law which

arose before the Court, as according to him second appeal cannot be

decided without formulating substantial question of law. The order

without formulating and considering substantial question of law is

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contrary to law as such substantial question of law was not

considered while disposing of the first appeal.

3 The review petition is opposed on the ground that

there is not any valid ground for review in the absence of any

apparent error on the face of record. The review petition is also

opposed on the ground that the review applicants and the

respondents were

directed to go before the Jt. Charity

Commissioner, Pune Region, Pune, on 11/11/2013 at 11.00 a.m.,

after this Court directed the Jt. Charity Commissioner, Pune Region,

Pune, to apply his mind to the facts of the case before insisting upon

the proposed draft scheme, suggesting modifications.

4 The learned counsel for the review applicants made

reference to the order passed by the learned Single Judge of this

Court in Review Petition No. 13 of 2013, whereby the review

petition was admitted and posted for final hearing. The learned

counsel also relied upon the ruling in Shivprasad Shankarlal

Pardeshi (since deceased by LR's) etc. v. Leelabai Badrinarayan

Kalwar (since deceased by LR's) and others, AIR 1998

BOMBAY 131, whereby the Division Bench of this Court referred

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to Section 72(4) of the Bombay Public Trusts Act, making reference

to restrictions and limitations imposed in view of Section 100 of

Civil Procedure Code while entertaining a second appeal. The

observations were made to the effect that appeal under Section 72

(4) of the Bombay Public Trusts Act would lie to the High Court

only if the High Court is satisfied that the case involves a substantial

question of law. In other words appeal u/s 72(4) of the Bombay

Public Trusts Act is subject to limitations as are indicated u/s 100 of

Civil Procedure Code and there is no wider jurisdiction upon the

High Court while hearing such an appeal, though styled as a First

Appeal.

5 This submission is opposed by the learned counsel for

the respondent on the ground that there is a Supreme Court ruling in

James Joseph v. State of Kerala reported in (2010) 9 SCC 642.

The Apex Court while considering practice and procedure in appeal

proceedings in juxtaposition to the limitations and restrictions in

principle of Section 100 of Civil Procedure Code held that

limitations cannot be read into any appeal provision if it is not

expressly or impliedly provided for in statute concerned.

901-RPF13.13

6 While considering these rulings, it must be stated that

the appellant did not canvas of framing any substantial question of

law at the time of hearing of the first appeal, disposed of by this

Court. The arguments were fully heard with reference to the

judgment and order dated 5/4/2013 passed by the learned Principal

District Judge, Pune, in Miscellaneous Application No. 868 of 2010

as the first appeal was preferred against the dismissal of the said

miscellaneous application. This Court after recording its reasons

concluded that the Charity Commissioner is required to apply his

mind to the facts stated before him as also to apply his mind as to

whether the facts are correctly stated and duly verified. Since

Charity Commissioner concerned is required to observe principles

of natural justice and obliged to give opportunity of hearing to

trustees and the persons interested in the management and

administration of a public charitable trust. It was specifically stated

that it would not be just and proper on the part of the Charity

Commissioner just to peruse the affidavit-in-support of the

application and then to pass the orders which are essentially

required to be in the nature of judicial orders. That being so it was

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open for the parties as observed by this Court to approach the Jt.

Charity Commissioner, Pune Region, Pune and place before him all

the facts which are relevant for the purposes of just and proper

decision in the matter, in accordance with law. When facts in

dispute are required to be decided, it is necessary to offer

opportunity to rival parties to lead evidence as they may choose or

to arrive at judicial decision on facts, in accordance with law.

7 Admittedly the review applicants did not move the

higher forum to challenge the judgment and order whereby the

matter was remanded for fresh consideration by the Jt. Charity

Commissioner, Pune Region, Pune. Having considered the

submissions and record placed before me, I do not find any apparent

error in the record or error of law or facts so as to warrant

interference in the reasoned judgment and order already passed by

this Court.

8 It is made clear that it is for the Jt. Charity

Commissioner, Pune Region, Pune, to consider all submissions on

facts that may be advanced in the proceedings and shall arrive at a

decision in accordance with law, without being impressed by

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observations made herein.

9 Hence there is no merit is found in the review petition.

It is dismissed with costs.

(JUDGE)

md.saleem