Pratap S/O Dattatray Taware vs Kamla Shankar Joshi And Ors
2022 Latest Caselaw 9567 Bom

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                                                                     234.22RA

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                       REVIEW APPLICATION NO. 234 OF 2022
                                       IN
                          FIRST APPEAL NO. 1349 OF 2022
                                      WITH
                      (CIVIL APPLICATION NO. 12249 OF 2022)

          Pratap S/o Dattatrya Taware
          Age : 62 years, Occ : Pensioner and
          Founder President of Dalitmitra Sau
          Nirmalatai Janseva Foundation,
          Pachora, Tq. Pachora, Dist. Jalgaon,
          R/o Deshmukh Wadi, Pachora,
          Tq. Pachora, Dist. Jalgaon.
          .                                           ..APPLICANT

                   VERSUS

          1.       Smt. Kamla Shankar Joshi
                   Age : 75 years, Occ : Household,
                   R/o Vivekanand Nagar, Bhadgaon Road,
                   Pachora, Tq. Pachora, Dist Jalgaon.

          2.       Pravin S/o Madhukar Salunke
                   Age : 50 years, Occ : Agri.,
                   R/o 35, Sanghvi Colony, Bhadgaon Road,
                   Pachora, Tq. Pachora, Dist. Jalgaon.

          3.    Anil Purushottam Joshi
                Age : 52 years, Occ : Agri.,
                R/o Deshmukhwadi, Pachora,
                Tq. Pachora, Dist. Jalgaon.
                       .                           ..RESPONDENTS
                                   ...
          Mr.Sachin S. Deshmukh h/f Mr. Majit S. Shaikh, Advocate
          for the applicants
          Mr. C.T. Jadhav, Advocate for respondent nos.1 and 3
          Mr. Rajendra S. Deshmukh, Senior Advocate a/w




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                                                                         234.22RA

          Mr.Devang R. Deshmukh i/b Mr. Ajay D. Pawar, Advocate
          for respondent no.2.
          Mr. Mahesh S. Deshmukh, advocate for intervenor in C.A.
          No.12249/2022.
                                   ...
                               CORAM : S.G.DIGE, J.

                                      RESERVED ON : 05.09.2022
                                      PRONOUNCED ON : 21.09.2022

          JUDGMENT :

This review application is taken out mainly on

two grounds namely; the directions given by this Court in

the order dated 20th July, 2022 passed in First Appeal

No.1349/2022 regarding (i) learned Assistant Charity

Commissioner, Jalgaon is directed to hold the elections of

the said Trust as per approved members on record i.e. as

per accepted change report for the period 1997-2002 and

(ii) all pending Change Reports are disposed of.

2. It is contention of the learned counsel for the

applicant that when the challenge in the First Appeal was

confined to the order under section 47 of the Maharashtra

Public Trust Act (for short "M.P.T. Act"), therefore, the

impugned clauses (c), (d) and (f) of the order deserve

234.22RA

reconsideration. The learned counsel submits that this Court

has granted reliefs, which were not asked for nor even the

prayer was made in that regard. The learned counsel further

submits that by clause (f) of the impugned order, the

directions are given to dispose of the change reports. The

authority to dispose of the change report under section 22

of the M.P.T. Act is vested with the Assistant Charity

Commissioner or the Deputy Charity Commissioner. Hence,

the order deserves to be reconsidered. When the change

reports are pending the elections of the said trust cannot be

held. Hence requested to allow the review application.

3. The learned counsel for the review applicant

relied on the judgments in the cases of Trojan & Co. Vs.

Nagappa Chettiar reported in AIR 1953 SC 235, Krishna

Priya Ganguly Vs. University of Luckhnow reported in

(1984) 1 SCC 307, Omprakash Vs. Ramkumar reported in

(1991) 1 SCC 441, Bharat Amrutlal Kothori Vs. Dosukhan

Samadhan Khan Sindhi reported in (2010) 1 SCC 234,

Union of India Vs Abhimanyu Tiwari reported in (2016) 12

234.22RA

SCC 514 and Anil Kumar Singh Vs. Vijay Pal Singh reported

in (2018) 12 SCC 584.

4. It is the contention of the learned counsel for

respondent no.2 that the review application is not

maintainable since it does not reflect mistake on the face of

record. The power of review can be exercised for correcting

a mistake but not for substituting a view. Such powers can

be exercised within the limit of the statute dealing with

exercise of powers. The review cannot be treated like an

appeal in disguise. Both the parties were consented for

disposal of the change reports since those change reports

were not presented in the stipulated time framed as per the

order passed by the Joint Charity Commissioner, Nashik

Division, Nashik (for short, "Jt. C.C.) dated 22 nd June, 2021.

The Jt. C.C. in clause (4) of the operative part of the order

has directed that the trustees shall submit the change

reports and audit reports within fifteen (15) days from the

regularization of trust". Neither from the side of the present

applicant nor from the side of the present respondents, the

234.22RA

change reports were submitted within time given by the Jt.

C.C.. Therefore, the change reports have lost their identity

in the eyes of law, being time barred. It was necessary to

hold the elections to fill up the vacuum created after

disposal of both the change reports. Therefore, there is no

point to entertain the present review application. The

learned counsel relied on the judgments in the cases of

State of Haryana Vs. Mohinder Singh and others (decided

on 12.11.2002) in the Civil Appeal no.5841/42 of 2000

(reported at MANU/SC/1391/2002), Sasi (D) through L.Rs.

Vs. Aravindakshan Nair and Ors (03.03.2017- SC) reported

in 2017(4) SCC 692 and Perry Kansagra Vs. Smriti Madan

Kansagra in Civil Appeal No.1694 of 2019 and S.L.P. (Civil)

No.9267 of 2018.

5. It is the contention of the learned counsel for

the respondent nos.1 and 3 that the trust was deregistered.

The said deregistration was challenged by Narendra

Shankar Joshi. Thereafter, the said trust was restored. The

direction was given by the Jt. C.C. to file the change reports

234.22RA

within 15 days from the date of order, but the change

reports were not submitted within prescribed time, hence in

the interest of the trust, the elections were necessary. Two

change reports were filed before the Assistant Charity

Commissioner, no accounts were submitted in trust office

from the year 1997 to 2021. The learned counsel further

submits that the setting aside the pending change reports

was necessary as by both the change reports the parties

were claiming that they are the legal trustees and allowing

one change report would lead to new litigation. Hence,

there is no merit in the review application.

6. It is the contention of the learned counsel for

intervenor that the intervenor is a member of the trust. The

intervenor had filed change report before the Assistant

Charity Commissioner, Jalgaon, which is disposed of by

order of this Court. The intervenor has accepted the order

passed by this Court. The reliefs granted by this Court are

ancillary reliefs. As per the provisions of the Civil Procedure

Code, this Court has inherent power to prevent abuse of

law. Hence the order passed by this Court is legal and valid.

234.22RA

7. I have heard all the learned counsel.

8. The review applicant preferred appeal against

the order passed by the Jt. C.C. dated 14th March, 2022

before this Court. By the said order, the Jt. C.C. had

appointed the respondents herein as trustees of Dalitmitra

Sau Nirmalatai Janseva Foundation, Pachora, Tq. Pachora,

Dist. Jalgaon (for short, "the said trust") for a period of two

years. The said order was impugned by the review applicant

by filing appeal. Considering the submissions of all the

parties, this Court has passed the order. The operative part

of the order reads as under :-

ORDER

"(a) Appeal is partly allowed.

(b) The order dated 14th March, 2022 passed by the

learned Joint Charity Commissioner is hereby quashed and

set aside.

(c) Learned Assistant Charity Commissioner, Jalgaon is

directed to hold the election of the said Trust as per

234.22RA

approved members on record i.e. as per accepted Change

report for the period 1997-2002.

(d) Learned Assistant Charity Commissioner shall verify

the record. Election shall be conducted within one month

after receipt of this order. Till then the present thirteen (13)

members shall administer the Trust.

(e) All the Civil Applications are disposed of.

(f) All pending Change reports are disposed of."

9. It is the contention of the learned counsel for

the review applicant that the directions given by this Court

regarding holding the elections of the said trust and

disposing of the pending change reports are beyond the

scope of appellate jurisdiction of this Court. The said

prayers were not sought in the appeal. In my view, t his

Court had dictated the order in open court. This Court had

asked all the learned counsel present in the Court including

the learned counsel of revision applicant about disposal of

pending change reports in the welfare of the trust, all the

learned counsel had consented for it, hence the said order was

234.22RA

passed. If revision applicant is not agree to dispose of the

change reports then the said change reports need to be

decided on its own merit. This Court has no power in

appellate jurisdiction to dispose of those change reports. If

change reports are not disposed of then it is not necessary to

give directions to hold elections. Accordingly, I pass the

following order :-

ORDER

(i) The Revision application is allowed.

(ii) The directions given by this Court regarding holding the

elections and disposing of the pending change reports are

withdrawn.

(iii) The civil application stands disposed of accordingly.

[S.G.DIGE] JUDGE

After pronouncement of judgment, all the learned

counsel including Shri S.S. Deshmukh, learned counsel for the

applicants, Mr.A.D. Pawar, learned counsel for respondent

no.2, Mr.Mahesh S. Deshmukh, learned counsel for the

intervenor and Mr.C.T. Jadhav, learned counsel for

234.22RA

respondent nos.1 and 3 submitted that this Court has allowed

the First Appeal and directed to decide the change reports but

question would arise, who would administer trust till the

decision of the change reports. This Court has clarified in the

order dated 20th July, 2022 that till the election, present 13

members, who are held valid, as per change reports of 1997 to

2002, would administer the trust. The said persons would

administer the trust till the decision of both change reports.

. The learned Assistant Charity Commissioner is

requested to dispose of both pending change reports as early

as possible and preferably within three months from the date

of receipt of this order.

[S.G.DIGE] JUDGE

SGA/-