Smt. Ragini W/O Ramesh Gupta And ... vs Deorao Bhuraji Wasule And Ors
2021 Latest Caselaw 12851 Bom

  228LPA 607.2010.2009                                1



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

                 LETTERS PATENT APPEAL NO. 607 OF 2010
                   IN WRIT PETITION NO. 6184 OF 2004

  1. Smt. Ragini w/o Ramesh Gupta,
     aged about 62 years, Occ. Nil,
     R/o C/o Shri Ramesh Gupta,
     Ex. MLC, Narkhed, Tahsil Narkhed,
     District Nagpur.

  2. Shri Ramesh s/o Balmukund Gupta (dead),
     thr. Lrs.

  2(I)     Dr. Sujata Gupta (maiden name as well as
           after marriage name),
           R/o C/o Gupta Nursing Home,
           Mansa Road, Neemuch, Madhya Pradesh.

  2(II) Sonali Gupta (maiden name) after marriage
        Mrs. Sonali Piparsania,
        R/o 4th Floor, Shivalik Residency,
        Lawyers Colony, Khandari Agra.

  2(III) Abhijit Ramesh Gupta,
         R/o Narkhed, Tah. Narkhed,
         District Nagpur.

  2(IV) Vaishali Gupta (maiden name) after marriage
        Mrs. Ayushi Deshmukh,
        R/o Civil Lines, GPO Square, Nagpur.
                                                            ...APPELLANTS
                    Versus

  1. Shri Deorao Bhuraji Wasule,
     aged about 68 years, Occ. Agriculturist,
     R/o Division No.1, Narkhed, Tahsil Narkhed,
     District Nagpur.

  2. Shri Vishwanath s/o Ramaji Waghe,
     aged about 78 years, Occ. Teacher and Agriculturist,
     R/o Narkhed, Tahsil Narkhed,
     District Nagpur.


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   228LPA 607.2010.2009                                   2



  3. Nagar Parishad, Narkhed,
     through its Chief Officer, Narkhed,
     District Nagpur.

  4. Joint Charity Commissioner,
     Public Trust Office, Civil Lines,
     Nagpur.

  5. State of Maharashtra,
     through Secretary, Law Department,
     Mantralaya, Mumbai-32.
                                                             ...RESPONDENTS

  Shri Rohit Joshi, Advocate for the appellants.
  Shri A. Shelat, Advocate for respondent Nos.1 and 2.
  Shri S.M. Nafde, Advocate for respondent No.3.
  Mrs. S.S. Jachak, A.G.P. for respondent No.5.

                               .....

                                     CORAM : A.S. CHANDURKAR &
                                             PUSHPA V. GANEDIWALA, JJ.

SEPTEMBER 08, 2021.

ORAL JUDGMENT : (PER : PUSHPA V. GANEDIWALA, J.)

The challenge in the instant Appeal is to the

judgment and order dated 11/10/2010 passed by the learned

Single Judge of this Court in Writ Petition No. 6184/2004,

whereby the learned Single Judge has set-aside the order dated

22/08/1983 passed by the Deputy Charity Commissioner,

Nagpur Region, Nagpur in Change Report Inquiry No.

612/1983 in the matter of public trust. Appellant No.1 is the

original applicant in the said proceedings which was filed

under Section 22A of the Bombay Public Trusts Act, 1950 ("the

Act"), whereby the Deputy Charity Commissioner has held that

the property in question, shown as property of public trust by

name Gupta Dharamshala, deserves to be deleted from the

Register of public trust, maintained by the office of the Joint

Charity Commissioner, and has further observed that as there is

no property of trust, the trust comes to an end. The entries of

the trust made in the public trust register were also directed to

be deleted.

The facts, necessary to decide the present Appeal,

may be stated as under :

2. On 05/12/1961, Smt. Gauribai Dulau w/o Yadav

Prasad Gupta had made an application under Section 18 of the

Act for registering the property mentioned at Exh.1 in the

proceeding No.1368/61 as public trust property under the

provisions of the Act, and after the inquiry made under Section

19 of the Act, the trust was ordered to be registered as a public

trust with the said property in that proceedings.

3. Appellant No.1 Ragini Gupta made an application

under Section 22A of the Act bearing Change Report Inquiry

No. 612/1983 contesting that the property, registered as a

public trust (Gupta Dharm-Shala, Narkhed P.T.R.No. E-47 (N),

belongs to her absolutely on the strength of the Will executed

by one Gauri Dulau in her favour on 10/03/1970, and that the

property has been wrongly registered as public trust property,

and that in view of the Will, which is in her favour, the

property which has already been registered as public trust

property should be deleted from the register of the public trust.

4. There were no opponents before the Deputy Charity

Commissioner in the aforesaid change report proceedings. The

question for consideration of the Deputy Charity Commissioner

was "whether the property belongs to the trust and whether

the trust was properly constituted?". The learned Deputy

Charity Commissioner had recorded negative finding on these

questions for the reasons that when the trust was registered in

1961, there were as many as seven persons as trustees, and out

of them, only three trustees were alive, and in their statements,

which were recorded before the Deputy Charity Commissioner,

they have categorically stated that they were not in possession

of the trust property at all and they have never acted as

trustees and that the property in question was never utilized as

Dharamshala. The Deputy Charity Commissioner noted that the

trust in question never came into existence though executed,

there was no actual conveyance or assignment or delivery in

favour of the trustees, and as such, the trustees were never in

possession of the property in dispute, as they never acted as

trustees. That they never used the property for the benefit of

the travelers as Dharamshala. That no accounts were submitted

to prove that the income of the trust have been received by

them and they have utilized the same for the benefit of trust in

question. It is further observed that contrary to this, there is an

evidence that there are tenants in the property, and rent is

being received by the Gupta family. The Deputy Charity

Commissioner concluded that the property, which has already

been registered as property belonging to the public trust, in

fact, does not belong to the public trust in question, as the trust

has not come into existence legally. It is further observed that

the property, shown as public trust property by name Gupta

Dharamshala, deserves to be deleted from the register of public

trust, and the trust comes to an end. The entries of the trust,

made in the public trust register, were also directed to be

deleted.

5. The aforesaid judgment of the Deputy Charity

Commissioner was challenged initially before the Division

Bench of this Court, and the petition was entertained as a

Public Interest Litigation. However, thereafter, this Court found

that the litigation was liable to be tried under the Bombay

Public Trusts Act, and hence, vide order dated 07/07/2010, the

matter was directed to be placed before the learned Single

Judge of this Court.

6. The learned Single Judge of this Court meticulously

considered the issues involved in the petition, vide order dated

11/10/2010, quashed and set-aside the order dated

22/08/1983 passed by the learned Deputy Charity

Commissioner in Change Report Inquiry No. 612/1983. The

learned Single Judge relied on the exposition of law

expounded by the Hon'ble Full Bench of this Court in the case

of Ketki Pestonji Jamadar and another Vs. Khodadad Merwan

Irani and others, AIR 1973 BOMBAY 130, and held that the

entire consideration of controversy by Deputy Charity

Commissioner runs counter to scheme of Section 22-A of the

Act as explained by the Full Bench, and his application of mind

as also approach, therefore, is unsustainable. It is further held

that the Trust had already come into existence on 05/12/1961

and that it was registered only under the Bombay Public Trust

Act. For ready reference, para 14 of the said judgment is

reproduced below :

"14. The Trust had already come into existence on 05.12.1961. It was registered only under the Bombay Public Trust Act. In view of this position, Gauri Dullayabai as also Shamabai ceased to have any title to the property dedicated to charitable purpose. Shamabai the other party to document settling trust expired shortly thereafter i.e. on 28.10.1962. Thus, when two persons had created a public trust and it was accordingly registered, one fails to understand how because of Will executed by only one of them, the property has been held to devolve upon present respondent No.1. It is apparent that in view of the limited scope of enquiry available under Section 22A of the Act and also the finding that Deputy Charity Commissioner has

exercised jurisdiction not available to him in the matter, this issue cannot be answered conclusively in present matter. However, this fact again has material bearing if the alleged claim of Respondent No. 1 is to enquired into."

The learned Single Judge has further held that once

it is found that the order of Deputy Charity Commissioner of

Trust is without jurisdiction, the other questions like locus and

status of present petitioners and the delay or latches on their

part in approaching this Court need not be looked into. This

judgment of the learned Single Judge is impugned in this

Appeal.

7. Shri Rohit Joshi, learned counsel for the appellants,

has based his arguments mainly on the point of delay and

latches and locus standi of respondent No.1 herein/ original

petitioner No.1, to file the Writ Petition before the Single Bench

of this Court. He submitted that after twenty years of the order

passed by the Deputy Charity Commissioner, the Writ Petition

came to be filed. According to the learned counsel, the

petitioner does not fit in the definition of Section 2(10) of the

Act - "person having interest". That the learned Single Judge

has failed to adjudicate on this issue. The learned counsel

urged to quash and set-aside the impugned judgment, as it

could not have sustained in the eyes of law. The learned

counsel also raised preliminary objection about tenability of the

Writ Petition. He points out that the order passed in 1983 was

questioned after 21 years. That the Writ Petition was initially

entertained as Public Interest Litigation, and after the order

dated 07/07/2010, treating it as an individual grievance, there

were no amendment/s made in it. That respondent Nos.1 and

2/ original petitioners, do not have any status and locus to

challenge the impugned order, as they have not shown

themselves as interested persons. The learned counsel further

urged that there is no allegation of any deceit or fraud in the

matter, and hence, in such Writ Petition, this Court should not

have interfered after expiry of more than 21 years.

8. Per contra, Shri A. Shelat, learned counsel for

respondent Nos.1 and 2/ original petitioners, on the ground of

locus standi, drew attention of this Court to the pleadings of

the petitioners in the Writ Petition, and submitted as under :

i. That petitioner No.1 is residing in Narkhed Town

since his birth. His forefathers were also residing in this town.

He is interested and concerned in the welfare of this town. If

there is cheap accommodation available for residence of

persons coming to Narkhed, the business of the town can

increase. Petitioner No.2 is also residing in Narkhed town since

the time of his forefathers. He is also interested in welfare of

his own town.

ii. The property of the public trust was being claimed

as personal property on the basis of an alleged Will dated

10/03/1970, while the trust was registered in 1961. It is stated

that the Deputy Charity Commissioner should have seen that if

the trustees, nominated in the instrument of trust, are not

functioning, there are adequate provisions in the Act for taking

action against them, particularly Section 41D of the Act. It is

further submitted that the Act is enacted to regulate and make

better provisions for the administration of public trust. The

charity organization are conferred considerable power of

supervision over the public trusts and the trustees. The

authorities, created under the Act, are expected to carry out the

objects of the Act.

iii. That the Deputy Charity Commissioner acted to

defeat the purpose and object of the Act by causing the trust

property to vanish, specially without giving the residents a fair

opportunity of hearing. The order passed by the Deputy Charity

Commissioner shows the ignorance of the nature and character

of trust property. A trustee does not enjoy any proprietary right

in the property. A trustee is holding the property in trust for

beneficiary. In case of a trust property, the settler or the owner,

who creates trust, divest himself of the legal ownership vested

in him and vest it in another who is a trustee or he may

transfer it to more than one trustee including himself. Thereby

he ceases to be the beneficial owner thereof.

iv. That in case of declaration of trust, whereby the

owner declares himself as a trustee to hold the property on

trust, there is no actual divesting of the estate vested in him

but there is a change in the nature of ownership namely he

divests himself of the beneficial ownership and remains only as

a legal owner for the benefit of somebody else. He submitted

that the order passed by the Deputy Charity Commissioner is

without jurisdiction. Section 18 casts a duty on the trustee of a

public trust to make an application for registration of public

trust. Section 19 of the Act obliges the Deputy Charity

Commissioner to make an inquiry - whether a trust exists and

whether it is public trust ? He is also required to inquire

whether the property is of such trust ? Section 20 of the Act

requires the Deputy Charity Commissioner to record his

reasons. Under Section 21 of the Act, entries in accordance

with the findings are required to be made in the register, which

are final and conclusive. Section 22A of the Act confers a

power to make further inquiry in respect of particulars, which

were not the subject matter of the inquiry under Section 19 of

the Act. This power does not include the power to delete

entries which was the subject matter of the earlier inquiry and

which has attained finality and which has become conclusive.

The order of the Deputy Charity Commissioner is, therefore,

wholly without jurisdiction.

v. It is further urged that the instrument of the trust

and the registration of the public trust and public trust

properties, divests the settler from the legal ownership of the

property, incapable of being bequeathed, even assuming the

existence of a Will.

vi. With regard to the subsequent events, the learned

counsel submitted that after the purported release of the public

property to the private property, a fire occurred which

destroyed the tenanted property. The debris and material on

the plot is cleared, and open plot was seen. However, the

petitioners saw the commencement of construction activity on

this open plot about fifteen days back, and after inquiry, it was

revealed to them that the property of the public trust is

fraudulently converted as private property. They gathered the

relevant documents in order to preserve the property of the

public trust and to prevent any third-party interest, they

approached this Court.

9. We have considered the rival submissions put forth

on behalf of both the sides.

10. At the outset, a perusal of the trust deed, executed

by Gauri Dullayabai and Shamabai shows a dedication in

presenti for Dharamshala. The execution or contents of this

document dated 16/04/1961 are not in dispute between the

parties. The registration of Gupta Dharamshala as desired

therein vide public trust registration No.P-47(A) on

05/12/1961 is also not in dispute. The death of Shamabai on

28/10/1962 and death of Gauri Dullayabai on 10/05/1971 is

also not being questioned by anybody. The trust had already

come into existence on 05/12/1961. In view of this position, as

rightly held by the learned Judge that Gauri Dullayabai as also

Shamabai ceased to have any title to the property dedicated to

charitable purpose. The appellant No. 1 claims her title to the

property on the strength of the Will which was executed much

later than the creation of Trust in the year 1961. The

application came to be filed under Section 22A of the BPT, Act.

The learned counsel Shri. Shelat questioned the jurisdiction of

the authority to grant any relief to the appellants under the

said provision.

11. At this juncture, it would be relevant to refer to

Section 22A of the Act, which reads thus :

"22A. Further inquiry by Deputy or Assistant Charity Commissioner

If at any time after the entries are made in the register under sections 21, 22 or 28 it appears to the Deputy or Assistant Charity Commissioner that any particular relating to any public trust, which was not the subject- matter of the inquiry under section 19, or sub-section (3) of section 22 or section 28, as the case may be, has remained to be enquired into, the Deputy or Assistant Charity Commissioner, as the case may be, may make, further inquiry in the prescribed manner, record his findings and make entries in the register in accordance with the decision arrived at or if appeals or applications are made as provided by this Act, in accordance with the decision of the competent authority provided by this Act. The provisions of sections 19, 20, 21 and 22 shall, so far as may be, apply to the inquiry, the recording of finding and the making of entries in the register under this section."

12. The bare text of section 22A would indicate that

sections 19, 20, 21 and 22 are applicable to section 22A of the

Act. These are allied provisions, found place in Chapter 4 of the

Act, relating to the Registration of Public Trusts, comprising of

Sections 14 to 31. We propose to discuss very briefly, the

relevant provisions from this chapter.

Section 16 provides that the State Government may

appoint a Deputy Charity Commissioner or Assistant Charity

Commissioner to be in charge of one or more Public Trusts

Registration Offices or Joint Public Trusts Registration Offices.

Section 18 deals with registration of Public Trusts

and the application for registration of Public Trusts is to be

made to the Deputy or Assistant Charity Commissioner of the

region or sub-region within the limits of which the trustee has

an office for the administration of the trust.

Section 19 deals with Inquiry for Registration. It

provides that on the receipt of an application under section 18,

or upon an application made by any person having interest in a

public trust or on his own motion, the Deputy or Assistant

Charity Commissioner shall make an inquiry in the prescribed

manner for the purpose of ascertaining - (i) whether a trust

exists and whether such trust is a public trust, (ii) whether any

property is the property of such trust, (iii) whether the whole

or any substantial portion of the subject - matter of the trust is

situate within his jurisdiction, (iv) the names and addresses of

the trustees and manager of such trust, (v) the mode of

succession to the office of the trustee of such trust, (vi) the

origin, nature and object of such trust, (vii) the amount of

gross average annual income and expenditure of such trust,

and (viii) any other particulars as may be prescribed under

sub-section (5) of section 18.

Section 20 deals with findings of Deputy or

Assistant Charity Commissioners. It provides that on

completion of the inquiry provided for under section 19, the

Deputy or Assistant Charity Commissioner shall record his

findings with the reasons therefor as to the matters mentioned

in the said section.

Section 21 deals with entries in register of which

Section 21(1) provides that the Deputy or Assistant Charity

Commissioner shall make entries in the register kept under

section 17 in accordance with the findings recorded by him

under section 20 or if appeals or applications are made as

provided by this Act, in accordance with the final decision of

the competent authority provided by this Act, and Section

21(2) provides that the entries so made shall, subject to the

provisions of this Act and subject to any change recorded under

the following provisions, be final and conclusive.

Section 22 deals with change occurs in any of the

entries recorded in the register kept under Section 17 of the

Act.

13. Having noted down the provisions relating to the

registration of the trust, a holistic reading of these provisions,

it is clear that Section 22A of the Act deals with further inquiry

by the Deputy or Assistant Charity Commissioner, if at any

time, after the entries are made in the register, it appears to the

said authority that any particular relating to any public trust,

has remained to be enquired into, the authority may make

further inquiry in the prescribed manner, and record his finding

in accordance with the decision arrived at.

14. In this context, the Full Bench of this Court in the

case of Ketki Pestonji Jamadar (supra), in para 11, has held

that the provisions of Sections 19, 20, 21 and 22 are made

applicable to the inquiries held under Section 22-A. In para 12

of the said judgment, it is observed that remedies available to

persons aggrieved by orders passed under the Act i.e. Section

70 provides, to the extent material, that an appeal may be filed

to the Charity Commissioner against the finding or order of the

Deputy or Assistant Charity Commissioner under Sections 20

and 22-A. That the Full Bench, in para 20, opined that the

purpose of the Act, the procedure prescribed in inquiries under

Section 19, the absence of any remedy under the Act to those

who were not parties to the inquiry under Section 19 but

whose anterior or superior title would be concluded by the

decision in that inquiry and the general scheme of the Act, all

tend to show that questions of title to the trust property are

outside the scope of the inquiry under Section 19.

That in para 22, the Full Bench has further held

that the procedure prescribed by the Act for the conduct of

inquiries under Section 19 is wholly unsuited to a proper and

effective adjudication of disputed titles to the trust property.

Under Section 19 the Deputy or Assistant Charity

Commissioner has to conduct an inquiry "in the prescribed

manner".

That in para 24, it is further noted by the Full

Bench that Section 2(10) shows that the Deputy or Assistant

Charity Commissioner is expected and required to decide

questions raised at the instance of persons who are interested

in the trust. It is no part of their function under Section 19 to

decide claims which are adverse to the trust and which are

made in assertion of titles which are hostile to the trust.

It is further held by the Full Bench, in para 25, that

neither the Act nor the Rules contemplate that persons who

claim adversely to the trust or who disputes the right or title of

the author of the trust to the trust property must be heard in

the inquiry under Section 19.

The Full Bench, in para 28, has further held that

the pre-condition of Section 22A is that a particular relating to

a public trust must have remained to be inquired into. This

must mean that any particular which could have been inquired

into by the Deputy or Assistant Charity Commissioner has

remained to be inquired into. That takes one back to Section 19

which speaks of a trustee's application under Section 18, or an

application by a "person having interest in the public trust".

The Full Bench, in the same para, lastly observed that if the Act

and the Rules thus contemplate in terms that the inquiry must

be limited to the contentions of persons interested in the trust,

there is no place in that inquiry for a person who wants to set

up a title which is hostile to the trust. Such a claim is not a

"particular relating to" the public trust, nor can it be said that it

"has remained to be inquired into".

In para 29, the Full Bench has observed that

Section 18(5) and Rule 6 prescribe the "particulars" which the

application under Section 18(1) must contain. These provisions

show that what has to be disclosed in the application is matters

in which the trust is interested, matters which are necessary to

know for the purpose of registration of the trust, so that its

affairs can properly be regulated and administered. Section

18(5) provides that the application shall by way of particulars

set out the name of the trust, the names and addresses of the

trustees, the mode of succession to the office of the trustee, the

list of property belonging to the trust, etc. Rule 6 provides that

in addition to these particulars, the application shall also

contain particulars regarding documents creating the trust,

objects of the trust, sources of its income, incumbrances on the

trust property and particulars as to title deeds pertaining to the

trust property. All these are matters pertaining to the trust

property in which the trust and the trustees are interested.

Facts pertaining to the history of title to the trust property do

not find a place in these provisions, because they do not

constitute particulars in the sense in which that word is used in

Section 18(5) and Rule 6.

The use of the expression "any other particulars" in

Section 19(viii) does not throw much light on this question,

because what is mentioned in the preceding clauses of Section

19 is partly what is to be ascertained in the inquiry and every

one of the preceding seven clauses cannot necessarily be

deemed to be a "particular".

15. After noticing the aforesaid observations of the Full

Bench of this Court, it can very well be concluded that a

person, who desires a declaration which is adverse to the

interest of the public trust, cannot approach the authority

under Section 22A of the Act. The authorities under the Trust

Act are under obligation to protect the interest of the trust. The

further inquiry as contemplated under section 22A as explained

by the Hon'ble Full Bench ought to have been in accordance

with the prescribed manner under section 19 of the Act.

16. In the instant case, the trust was already registered

on 05/12/1961. The appellants claimed title on the basis of

Will, which was executed on 10/03/1970 by one Gouri

Daulabai, which was certainly a subsequent event. As rightly

observed by the learned Judge in the impugned judgment that

such subsequent event cannot form a subject matter of inquiry

under Section 22A of the Act at all, and the appellants, who

wanted a finding adverse to the public trust could not have

taken recourse to Section 22A of the Act, and in any case, the

material was not a legal and valid material under the said

provisions. The learned Judge has rightly noted that the entire

consideration of controversy by the Deputy Charity

Commissioner runs counter to the scheme of Section 22A of the

Act as explained by the Full Bench and the application of mind

and also the approach of the Deputy Charity Commissioner

therefore is unsustainable. We are in complete agreement with

the observation of the learned Judge that the instrument of the

trust and the registration of the public trust and public trust

properties, divests the settler from the legal ownership of the

property, incapable of being bequeathed, even assuming the

existence of a Will.

17. The learned judge considered ratio laid down in the

case of Ignatius Louis Vs. The C.B.E. and Trustees Co. Ltd.,

1986 (1) Bom. C.R. 377, wherein the Single Bench of this

Court, while relying on the case of Central Bank Executor &

Trustee Co. Ltd. Vs. Hormusji Nusserwanji Madraswalla and

others, AIR 1969 Bom 101, has held that once a trust is created

in respect of the a property, it was not possible for the settler to

bequeath the same property which was the subject matter of

the Trust to another party under any Will. The Will, therefore,

in so far as it bequeaths the said property to the plaintiff will

not confer any benefit on the plaintiff since the Settlor had no

power to bequeath the said property by Will.

18. Having regard to the aforesaid discussion relating

to scope of consideration for the charity authorities under

section 22A of the Act, the basic contention of the learned

counsel for the appellants with regard to locus and status of

respondent Nos.1 and 2/ original petitioners, and the delay or

latches on their part in approaching this Court, need not be

looked into. We have reached the conclusion that the order of

de-registration of trust, passed by the Deputy Charity

Commissioner, is without jurisdiction and contrary to the object

and purpose of the Act. If we allow the Appeal, on the issue of

delay and latches, the consequent result of our decision would

be restoring the order passed by the Deputy Charity

Commissioner on an application under Section 22A of the Act,

which is already held to be without jurisdiction and not in

accordance with the provisions of the Act. It is well settled

principle of law that the issue of inherent lack of jurisdiction

can be raised at any stage of the proceedings even without

pleadings of the parties. As orders which are passed for want

of subject matter jurisdiction, are illegal, void ab initio and

non-est in the eyes of law. (See : Zuari Cement Limited Vs.

Regional Director, Employees' State Insurance Corporation,

Hyderabad And Others, (2015) 7 SCC 690).

19. In this context, the Hon'ble Supreme Court in the

case of Gadde Venkateswara Rao Vs. Government of Andhra

Pradesh and others, AIR 1966 SC 828, while confirming the

order of the High Court of Andhra Pradesh observed that if the

High Court had quashed the said order, it would have restored

an illegal order - it would have given the Health Centre to a

village contrary to the valid resolutions passed by the

Panchayat Samithi. This judgment is further relied on by the

Hon'ble Supreme Court in the case of M.C. Mehta Vs. Union of

India And Others Re: Inder Mohan Bensiwal Re: Bharat

Petroleum Corporation Ltd., (1999) 6 SCC 237, wherein it is

held that it is not always necessary for the Court to strike down

an order merely because the order has been passed against the

petitioner in breach of natural justice. The Court can under

Article 32 or Article 226 refuse to exercise its discretion of

striking down the order if as striking down will result

restoration of another order passed earlier in favour of the

petitioner and against the opposite party, in violation of the

principles of natural justice or is otherwise not in accordance

with law. Both of these judgments have been further followed

in the case of Raj Kumar Soni And Another Vs. State of U.P. And

Another, (2007) 10 SCC 635.

20. The judgment of the Hon'ble Supreme Court

delivered in the case of Vidya Devi Vs. State Of Himachal

Pradesh And Others, (2020) 2 SCC 569, relied on by Shri

Shelat, learned counsel, in para 12.12, it has been held that

delay and latches cannot be raised in a case of a continuing

cause of action, or if the circumstances shock the judicial

conscience of the Court. Condonation of delay is a matter of

judicial discretion, which must be exercised judiciously and

reasonably in the facts and circumstances of a case. It will

depend upon the breach of fundamental rights, and the remedy

claimed, and when and how the delay arose. There is no period

of limitation prescribed for the courts to exercise their

constitutional jurisdiction to do substantial justice. That in para

12.13, relying on the case of P. S. Sadasivaswamy Vs. State of

Tamil Nadu, (1975) 1 SCC 152, the Hon'ble Surpeme Court has

held that in a case where the demand for justice is so

compelling, a constitutional court would exercise its

jurisdiction with a view to promote justice, and not defeat it.

21. The Hon'ble Supreme Court in the case of Hasham

Abbas Sayyad Vs. Usman Abbas Sayyad And Other, (2007) 2

SCC 355, in para 22, has held that the principles of estoppel,

waiver and acquiescence or even res judicata which are

procedural in nature would have no application in a case

where an order has been passed by the tribunal/court which

has no authority in that behalf. It has been further held that

any order passed by a court without jurisdiction would be

coram non judice, being a nullity, the same ordinarily should

not be given effect to. In para 23, the Hon'ble Supreme Court

has relied on its judgment delivered in the case of Harshad

Chiman Lal Modi Vs. DLF Universal Ltd., (2005) 7 SCC 791,

wherein the Hon'ble Supreme Court has held that where a

court has no jurisdiction over the subject-matter of the suit by

reason of any limitation imposed by statute, charter or

commission, it cannot take up the cause or matter. An order

passed by a court having no jurisdiction is a nullity.

22. With regard to the submissions of Shri Joshi that

the learned Single Judge has not delved upon "person having

interest", in our considered view, undisputedly, the respondent

Nos.1 and 2 herein are the resident of Narkhed. The trust was

created for the purpose of Dharamshala to be used by the

outsiders, who comes to the town for business purposes. The

respondent Nos.1 and 2, being residents of Narkhed, certainly

have interest in the existence of the Dharamshala for their

town, which is directly or indirectly beneficial to the residents

of the town. In this way, the argument of the learned counsel

about locus of the respondent Nos.1 and 2 in filing Writ

Petition is without any substance. As already stated, once we

have reached the conclusion that the authority has not

jurisdiction to grant any relief to the appellants prejudicial to

the interest of the trust, the question of locus is secondary and

need not be looked into.

23. The judgment relied on by Shri Joshi, learned

counsel, delivered by the Hon'ble Supreme Court in the case of

Dattaraj Nathuji Thaware Vs. State of Maharashtra And Others,

(2005) 1 SCC 590, would not lend any assistance to him, as in

the said judgment, the Hon'ble Supreme Court has discussed at

length about the Public Interest Litigation; its meaning, nature,

scope and maintainability. In the instant case, as stated earlier,

even though the original petition was filed as Public Interest

Litigation, this Court had directed the same to be considered

under the Act, and the same was heard by the learned Single

Judge of this Court.

24. In the above conspectus, in our view, any

interference with the impugned order of the learned Single

Judge of this Court would result in restoration of order of the

Deputy Charity Commissioner passed earlier in favour of the

appellants, which is not otherwise in accordance with law.

25. The Appeal thus being bereft of any merit deserves

to be dismissed and the same is accordingly dismissed with

costs.

                    JUDGE                               JUDGE
                                    ******


  Sumit