Bombay High Court
Shri. Ramkrishna Vishwesharappa ... vs Kishor S/O. Ramkrushna Ganjiwale ... on 5 September, 2017
Bench: S.B. Shukre
(Judgment) 3108 FA 931-2017 1/13
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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(Judgment) 3108 FA 931-2017 2/13
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.
(Judgment) 3108 FA 931-2017 3/13
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
(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
(Judgment) 3108 FA 931-2017 5/13
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
(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
(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
(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
(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
(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.
(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
(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
(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
