Ghanshyamdas Sanghidas ... vs Hamzabhai M.R.S. Chimthanwala
2017 Latest Caselaw 3506 Bom

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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH : NAGPUR.

                                                 SECOND APPEAL NO.64 OF 1999


               APPELLANT:                                             Ghanshyamdas   Sanghidas   Panpaliya,
                                                                      Aged   about   55   years,   R/o   Panpaliya
               Ori. Reporting 
                                                                      Sadan, Dhantoli, Nagpur.
               Trustee
                                                                                                               
                                                           -VERSUS-

               RESPONDENT:                            Hamzabhai   N.R.S.  Chimthanwala,  aged
                                                      about 56 years, Occ: Business,
               Ori. Non-
                                                      R/o   Quaemi   Bagh,   Near   Itwari   Rly.
               Applicant.
                                                      Station, Nagpur.
                                                                                                                       

              Shri   M.   G.   Bhangde,   Senior   Advocate   with   Shri   S.   N.   Tapadia,
              Advocate for the appellant.
              Shri H. R. Gadhia, Advocate for respondent no.1.


                                                   CORAM: A.S. CHANDURKAR, J.

DATED: 22 nd JUNE, 2017.

ORAL JUDGMENT :

1. This appeal filed under Section 72(4) of the

Maharashtra Public Trust Act 1950 (for short the said Act) takes

exception to the judgment dated 18-12-1998 in Misc. Civil

Application No.575/1995 by which said application preferred by

the respondent came to be allowed and Change Report Enquiry

Proceedings No.6/1984 came to be rejected.

              2.                        The   appellant   is   the   reporting   trustee   of    Sat   Chikitsa




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Prasarak Mandal, Nagpur. According to him, on 23-12-1983 in the

meeting of the aforesaid trust the respondent was removed from

the post of Secretary. Change Report No.6 of 1984 came to be

filed. An objection was raised by the respondent. The reporting

trustee as well as the objector, however, remained absent and

hence, on 20-5-1985, the learned Dy. Charity Commissioner

proceeded to accept the change and allowed the Change Report.

The learned Dy. Charity Commissioner proceeded to accept the

change and allowed the Change Report. On 22-4-1994 the

respondent challenged the aforesaid order by filing revision

application under Section 70A of the said Act. The learned Joint

Charity Commissioner dismissed the revision application on 19-8-

1995. In proceedings filed under Section 72 of the said Act, the

learned 4th Additional District Judge accepted the challenge and

rejected the Change Report.

3. Shri M. G. Bhangde, learned Senior Counsel for the

appellant submitted that the learned District Judge was not

justified in passing the impugned order inasmuch as the learned

Joint Charity Commissioner had rightly refused to exercise

revisional power as the revision application was filed after nine

years. This was not within reasonable period and the reasons

assigned by the respondent were not in consonance with the

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record. He submitted that the respondent in fact had filed

proceedings under Section 41A of the said Act on 11-3-1987. In

the reply filed by the appellant to those proceedings it was

specifically pleaded that the respondent had been removed from

the post of Secretary in the meeting dated 24-12-1983. It was

submitted that in the facts of the present case it could not be said

that the remedy of invoking the revisional jurisdiction was within

reasonable period. Moreover, three subsequent elections were also

held and without considering all these aspects the learned

Additional District Judge reversed the orders passed by the learned

Joint Charity Commissioner. For said purpose the reliance was

placed on the decision in Keshavrao Attmaramji and others Vs.

State of Maharashtra and others 2016(5) Mh.L.J. 387.

4. Shri H. R. Gadia, learned Counsel for the respondent

supported the impugned order. According to him, the Dy. Charity

Commissioner was not justified in allowing the Change Report in

absence of any evidence being led by the reporting trustee. He

submitted that the Change Report should have in fact been

dismissed. The procedure prescribed for deciding the Change

Report by recording evidence was also not followed. He submitted

that only after getting knowledge about the change report

proceedings in the year 1994 as stated in para 3 of the revision

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application, the revisional jurisdiction was invoked. He then

submitted that the appellant was in fact removed from his post

before the meeting dated 4-12-1983 and hence, the business

transacted in said meeting could not have been accepted. He

placed reliance upon the decisions in E-Square Leisure Pvt. Ltd.

Pune vs. K. K. Dani Consultants and Engineers Pvt. Ltd. Pune

2013(3) Mh.L.J. 24 and Maharashtra Gandhi Smarak Nidhi, Pune

vs. Gandhi Smarak Nidhi (Central), New Delhi and another 2011(4)

Mh.L.J. 295 and submitted that considering the manner in which

the Change Report was accepted, the impugned order was liable to

be maintained.

5. In reply, it was submitted by the learned Senior

Counsel that the respondent had in fact taken a false plea with

regard to knowledge of his removal. He submitted that this fact

having been brought on record in other proceedings between the

said parties in the year 1987, the respondent had full knowledge of

the same. He referred to the decision in Pundlik Jalam Patil

(Dead) By Lrs vs. Executive Engineer, Jalgaon Medium Project and

another 2008(17) SCC 448 and submitted that the reasons

assigned by the learned Joint Charity Commissioner for not

invoking the revisional jurisdiction ought to be maintained. He

also referred to Civil Application No.4276/2008 to highlight

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certain subsequent events indicating removal of the respondent as

member of said trust.

6. I have heard the learned Counsel for the parties at

length and I have perused the records of the case. I have also

given due consideration to the respective submissions.

7. In the Change Report Proceedings filed by the

appellant the learned Dy. Charity Commissioner on 20-5-1985

accepted the change and allowed the Change Report. A remedy to

challenge this order was available under Section 70 of the said Act

within the period of limitation prescribed therein. The other

remedy available was under provisions of Section 70A of the said

Act. Though there is no period of limitation prescribed for

invoking the revisional jurisdiction of the Joint Charity

Commissioner under Section 70A of the said Act, such revisional

jurisdiction has to be exercised by the authorities within

reasonable time. In Maharashtra Gandhi Smarak Nidhi Pune

(supra) while considering the scope of exercise of revisionary

powers under Section 70A of the said Act, learned Single Judge

after referring to the law as laid down by the Hon'ble Supreme

Court held that even if no specific period of limitation was

prescribed in the aforesaid provision, revisional power has to be

exercised within a reasonable time and not arbitrarily. Since in

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the present case, the learned Joint Charity Commissioner had

specifically refused to exercise revisional jurisdiction on the ground

that same had not been filed within reasonable time and this order

was interfered by the learned District Judge, it would be necessary

to examine whether the refusal to exercise revisional jurisdiction

was justified or whether the order passed by the District Judge was

liable to be maintained.

8. On perusal of the records of the case, it can be seen

that though the respondent had contested the Change Report

proceedings, the Dy. Charity Commissioner accepted the Change

Report in absence of either of the parties on 20-5-1985. The

respondent along with another interested person on 11-3-1987

filed proceedings under Section 41A of the said Act. These

proceedings were filed against the appellant and one another

person. In the reply filed on behalf of the appellant on 13-3-1987,

it was specifically pleaded in para 10 thereof that the respondent

had been removed from the post of Secretary and that Change

Report No.6 of 1984 in that regard had been accepted by the Dy.

Charity Commissioner on 20-5-1985. Thus, within two years of

acceptance of the Change Report, the appellant in proceedings

initiated by the respondent came up with a clear stand that the

respondent had been removed from the post of Secretary and that

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the Change Report filed by the appellant had been accepted.

Despite this reply being filed on 13-3-1987, the respondent waited

till 22-4-1994 for invoking the revisional jurisdiction under Section

70A of the said Act. Thus, revisional jurisdiction was invoked after

more than seven years from information about those proceedings

being given to the respondent.

9. In the facts of the present case, when the parties

litigating against each other and in the proceedings initiated by the

respondent himself, it was disclosed by the appellant that the

Change Report pertaining to the respondent had been accepted on

20-5-1985, there was no reason whatsoever for the respondent to

wait for further period of more than seven years for invoking the

revisional jurisdiction. I, therefore, find that the learned Joint

Charity Commissioner was legally justified in coming to the

conclusion that the respondent had not invoked the revisional

jurisdiction within reasonable time.

10. The learned District Judge gave much importance to

the aspect that the Change Report ought not to have been accepted

in absence of evidence, but ignored the more than reasonable

period taken by the respondent to invoke the revisional

jurisdiction. Merely by observing that the revision application

could not have been dismissed for technical reasons, he

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entertained the matter on merits. This conclusion is arrived at

without considering the reasons as to why the learned Joint

Charity Commissioner refused to exercise revisional jurisdiction.

11. Though it is true that the Change Report was accepted

in the absence of the reporting trustee as well as the objector, that

by itself would not be sufficient to hold that the revision

application filed after almost nine years ought to have been

entertained. The respondent despite the knowledge having slept

over his legal rights cannot be permitted now to contend that the

revision application ought to have been decided on merits.

12. Though subsequent events are sought to be brought on

record to indicate holding of further elections, this fact has been

referred to even by the learned District Judge in para 14 of the

impugned order. However, in absence of the revisional jurisdiction

being invoked within reasonable period and the order passed by

the learned Joint Charity Commissioner being liable to be

maintained, it is not necessary to go into the subsequent events.

The exercise of power by the learned District Judge was itself

unwarranted in the facts of the case. As the learned District

Judge committed an error by setting aside the Change Report

despite the fact that the revisional jurisdiction invoked after more

than nine years, said order is liable to be set aside.

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13. In the result, the following order is passed:

ORDER

(1) The order dated 18-12-1988 in M.C.A. No.578/1995 is

quashed and set aside. The order passed by the learned Joint

Charity Commissioner dated 19-8-1995 stands restored. The

proceedings in Change Report No.6/1984 stands accepted.

(2) The second appeal is accordingly allowed with no

order as to costs.

JUDGE

/MULEY/