Chayya Narayanbua Gosavi vs Sudhir Ramnath Chormale
2025 Latest Caselaw 1261 Bom

Bombay High Court

Chayya Narayanbua Gosavi vs Sudhir Ramnath Chormale on 7 January, 2025

2025:BHC-AUG:612
                                                                      912-WP-12746-2024.odt




                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                              WRIT PETITION NO. 12746 OF 2024

          Shri. Chayya Narayanbua Gosavi,
          Age: 61 Yrs., occu. Retd.
          R/o C/o Adv. Shrikant Gosavi,
          Nath Galli, Paithan, Tq. Paithan,
          District Chhatrapati Sambhajinagar                          ...Petitioner

                   VERSUS

          Shri. Sudhir Ramnath Chormale
          Age: 33 Yrs., occu. Agril.
          R/o Post Changatpuri, Tq. Paithan
          District Chhatrapati Sambhajinagar                          ...Respondent

                                     ***
          • Mr. S. S. Thombre, Advocate for the Petitioner
          • Mr. A. A. Nimbalkar, Advocate for the Respondent
                                     ***

                                                   CORAM : R.M. JOSHI, J
                                                   DATE : JANUARY 07, 2025

          JUDGMENT :

1. This Petition takes exception to order dated

15.07.2024 passed by the Joint Charity Commissioner

(for short 'JCC') in Revision Petition No. 99/2021

whereby the order passed by the Assistant Charity

Commissioner (for short 'ACC') dated 21.12.2012

granting certificate of registration of the trust in

respect of immovable property i.e., inam property Gut

No. 1 Changatpuri, Tal. Paithan, Dist. Chhatrapati

Sambhajinagar admeasuring 5A 2R (subject property).

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2.          The    facts    which         led       to    the    filing      of     this

Petition can be narrated, in brief, as under:

The Petitioner is the son of Inamdar in

respect of subject property. Initially, the subject

property stood in the name of Inamdar. The said inam

was created for the purpose of maintenance of the Shri

Vithal Rukhmini Mandir Tirth Khamb, Paithan. On

abolition of inams, at later point of time revenue

record was changed. The said land was shown in the name

of the Temple and in the other rights column name of

Inamdar came to be included. Respondent had filed

application under Section 19 of the Maharashtra Public

Trusts Act, 1950 (for short 'the Act') for the purpose

of registration of a temple situated at village

Changatpuri as a public trust in the name of Shri

Vithal Rukhmini Mandir Tirth Khamb, Changatpuri. In the

said application the subject property was shown to be

the property of the trust. Pursuant to the said

application, ACC by order dated 21.12.2012 granted

registration as sought. After getting knowledge of this

order, Petitioner filed Revision Application before the

JCC under Section 70-A of the Act taking exception to

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the same. This application was filed on 21.09.2021.

3. It is the case of the Petitioner before the

JCC that he is the inamdar, owner and possessor of the

said inam land and without hearing him or his

predecessor, the impugned order came to be passed by

the ACC. It is stated in the application that this

order was not within his knowledge and as such,

immediately after getting knowledge thereof, he filed

application for obtaining certified copy and the

revision was preferred.

4. This application was contested by the

Respondent. The learned JCC by passing impugned order

dated 15.07.2024 has dismissed the revision on two

counts i.e., the revision being not filed within a

reasonable period and that the issue of title of the

property cannot be gone into in this proceedings.

5. Learned Counsel for the Petitioner submits

that there is ample documentary evidence on record to

indicate that subject property is inam land and revenue

record clearly shows that initially the property stood

in the name of Inamdar and later on it was shown in the

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name of Temple and name of the Inamdar was recorded in

the other rights column. He drew attention of the Court

to the mutation entries and revenue record which is

part of the paper book of this Petition. It is his

submission that the application filed by the Respondent

for the registration of the trust is in respect of

temple which is constructed in the year 2002 and hence,

question of the subject land being inam for maintenance

of said temple does not arise. It is argued that

existence of some different temple than the one in

respect of which registration of the trust is sought

can be seen from revenue record. He drew attention of

the Court to the information received from the

Grampanchayat with regard to registration of any temple

and it is informed to Petitioner that no such temple is

registered in the name of Shri Vithal Rukhmini Mandir

Tirth Khamb at Changatpuri. He also drew attention of

the Court to writing allegedly given by the private

individual who claims that Shri Vithal Rukhmini Mandir

Tirth Khamb Temple is constructed in the year 2002 by

him in his personal property. It is his further

submission that the order passed by the ACC is not

sustainable in law as no notice was issued to the

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person interested in the subject property. It is his

submission that under Section 19 of the Act it was

incumbent on the part of the ACC firstly to issue

notice to the person interested and even if notice is

issued by way of publication, it has to be done in a

widely circulated newspaper. It is his submission that

the newspaper in which the notice was published i.e.,

Dainik Shashan Samrat is not a widely circulated

newspaper. It is his submission that for the purpose of

accepting such notice even ACC has not recorded the

findings that the publication of notice is done in the

widely circulated newspaper. With these amongst other

submissions, he seeks interference in the impugned

order.

6. Learned Counsel for the Respondent objected to

the entertainment of the Petition on the ground that

there was no application for condonation of delay filed

by the Petitioner before the JCC nor any plausible

explanation was provided for the delay caused in filing

of the revision. In support of his submissions, he

placed reliance on the judgment of this Court in case

of Shri Goswami Rameshpuri s/o. Guru Maheshpuri (dead)

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vs. Madhukarrao s/o. Shankarrao Khode and Others,

Second Appeal No. 149/2006 decided on 14.03.2022 at

Nagpur Bench, wherein this Court has held that the law

of limitation is matter of public policy which lays

down that stale claims cannot be agitated and even if

there is no time limit prescribed, proceedings cannot

be entertained if not filed in reasonable time. It is

his further submission that the Revision Application

clearly indicates that the Petitioner was seeking to

object to the order passed by the ACC on the ground

that he is owner of the subject property. This claim,

according to him, is not permissible to be decided in

exercise of powers by the authorities under the Act. To

support his submissions, he placed reliance on the

judgment of this Court in case of Nana Laxman Tapkire

and Another vs. Vijay Arjun Bhagat and Others, 2024(1)

ALL MR 581. Finally, he placed reliance on the judgment

of the Division Bench of this Court in case of

Ramnarayan s/o Manilal Sahu and Others vs. The State of

Maharashtra and Others, 2005(2) Mh.L.J. 95, in order to

support his submissions that the issue of title can be

decided by the Civil Court and not by the authorities

under the Act. He has also drawn attention of the Court

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to paragraph 9 of the impugned order wherein it is held

that the Petitioner has failed to lead any evidence to

indicate that he is inamdar, pujari or owner of the

land or his nexus with heir of Narayan Dattatraya Bua.

7. There cannot be any dispute about proposition

of law that wherever there is no period of limitation

prescribed for initiating any proceedings it is

contemplated that within a reasonable time such

proceedings are initiated. The reasonability of the

time however will vary from case to case and depending

upon peculiarity of facts involved therein. There

cannot be any straight jacket formula to accept in this

regard. As far as present case is concerned, it is

specific case of the Petitioner that he is resident of

Paithan whereas land in question is situated at about

30 to 40 kms away from the place at Changatpuri. He has

further come out with a specific case that no notice

was issued to him or his predecessor and as such, he

was not aware of the order passed by the ACC and after

getting knowledge thereof, he filed Petition under

Section 70-A of the Act before JCC. Since this issue of

limitation requires decision in the light of facts of

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the case, the same would be answered in later part of

judgment on taking into account material evidence on

record available before Authorities below.

8. Application of registration of Trust has been

filed by Respondent under Section 18 of the Act. It is

stated in the application that Trust is to be formed of

Shri Vithal Rukhmini Mandir Changatpuri, Tq. Paithan,

Dist. Aurangabad. It is further claimed therein that

for Trust inam land (subject property) is available. It

is also claimed that in this land the temple is

situated. Applicant No. 1 therein claimed that he

resides near to the temple and manages the same. Draft

scheme of Trust, consent letters of Trustees, 7/12

extract of subject land, map, village extract 8A,

resolution dated 22.07.2012 passed by Grampanchayat

were annexed with the application.

9. ACC issued notice, which was affixed on the

office of Charity Commissioner, property &

Grampanchayat office. It was published in 'Daily

Shashan Samrat'. On the basis of these notices, order

came to be passed granting registration of trust for

the subject property. This Court is required to

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consider as to whether ACC has passed order of granting

registration of Trust in accordance with the provisions

of the Act. It would be relevant at this stage to

consider the provisions of Section 19 of the Act, which

reads thus:

Section 19 - Inquiry for registration

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 within thirty days 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

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income and expenditure of such trust, and

(viii) any other particulars as may be prescribed under sub-section (5) of section

18.

The above provision, therefore, contemplates

an inquiry to be done by ACC in the prescribed manner

for ascertaining amongst other things, as to whether

any property is the property of such Trust. It is

necessary to see whether ACC conducted any inquiry to

determine the same. The manner in which inquiry is to

be made is provided in Rule 7, which reads thus:

7. Manner of inquiries

Except as otherwise provided in the Act and these rules, inquiries under or for purposes of sections 19, 22, 22A, 28, 29, 36, 39, 41D, 41E(3), 43(2)(a), 47, 50A, 51, 54(3) and 79AA(2) or any other inquiry which the Charity Commissioner may direct to be held for the purposes of the Act, shall be held, as far as possible, in the Greater Bombay Region in accordance with the procedure prescribed for the trial of suits under the Presidency Small Cause Court Act, 1882, and elsewhere under the Provincial Small Cause Court Act, 1887, In any inquiry a party may appear in person or Umesh PAGE 10 OF 21 912-WP-12746-2024.odt

by his recognised agent or by a pleader duly appointed to act on his behalf:

Provided that any such appearance shall, if the Deputy or Assistant Charity Commissioner so directs, be made by the party in person.

As per this rule, unless otherwise provided

inquiry under Section 19, shall be held, as far as

possible in accordance with the procedure prescribed

for the trial of suits under Provincial Small Cause

Court Act, 1887, as applicable to the present case.

10. Rule 7A mandates public notice before making

inquiries. It would be necessary to reproduce the said

rule, which reads thus:

7A. Public notice before making certain inquiries.

(1)When an application or otherwise, any inquiry is to be made for purposes of sections 19, 22, 22A, 28 or 29 as to whether a public trust exists or whether any property belongs to a public trust, the Deputy or Assistant Charity Commissioner shall, subject to the provisions of this rule, give public notice of such inquiry as provided in sub-rule (3) by calling upon all persons concerned to submit their

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objections, if any, to him.

(2)(a) When any such inquiry is initiated on application, the Deputy or Assistant Charity Commissioner shall, by order in writing,-

(i) call upon the applicant to pay the estimated cost of giving such public notice within a specified time, regard being had to the mode of issuing such public notice; or

(ii) when publication of such notice by an advertisement in one or more local newspapers is ordered in addition to other modes of publication, allow the applicant to publish at his own cost the public notice prepared by the Deputy or Assistant Charity Commissioner in the newspapers approved by the said officer within a specified time.

(b) Notwithstanding anything contained in clause (a) the Deputy or Assistant Charity Commissioner may by order in writing exempt the applicant from payment of the whole or part of the cost of issuing such public notice, if he is satisfied that the applicant is not in a position to bear such cost, regard being had to the capacity of the trust to pay the financial position of the applicant or the nature of his interest in the matter.

(c) When the applicant fails to pay the estimated costs of giving such public notice within the specified time without reasonable excuse, or where the applicant is so exempted from depositing Umesh PAGE 12 OF 21 912-WP-12746-2024.odt

or meeting the cost of issuing such public notice or when the inquiry is made by the Deputy or Assistant Charity Commissioner on his own motion, the Deputy or Assistant Charity Commissioner shall direct the cost to be initially met from the Public Trusts Administration Fund and then while making the final order shall pass appropriate orders as to its reimbursement or otherwise from the property of the trust or any party to the proceedings as he may deem fit.

(d) Failure on the part of the applicant to deposit or pay estimated or actual cost of giving such public notice within the specified time, or to publish it as an advertisement in the newspapers at his own cost within the specified time, as required by this sub-rule, shall amount to a contravention of the provision of this rule for the purposes of section 67.

(3)The Deputy or Assistant Charity Commissioner shall give or cause to be given public notice of such inquiry -

(a) either by advertisement in one or more local newspapers having wide circulation in the region or by beat of drums or any other method considered by him to be adequate in the circumstances of any case, regard being had to the value of the property involved and the capacity of the trust to bear the cost of advertisement in a newspaper, and

(b) by affixing a copy of such notice

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on the 'Notice Board' of his office, or by publication of such notice on the Official Website of the Charity Commissioner, and also on some conspicuous part of the property involved, if any, and

(c) by issuing a notice to the person in occupation or possession of such property.

(4) No objection submitted under sub-rule (1) shall ordinarily be considered, unless it is submitted within thirty days from the date of publication of the notice which is the last in point of time.

Sub Rule 1 mandates calling upon all persons

concerned to submit their objection, if any. Meaning

thereby, issuance of notice to the concerned persons is

mandatory. Over and above such notice, a publication of

notice is also necessary. Sub Rule 2(a) shows that ACC

shall by order cause publication of notice in one or

more local newspapers in addition to other mode of

publication. Sub Rule (3) requires such publication of

notice in widely circulated newspapers.

11. At this stage, it would be relevant to take

note of the order passed by the ACC which was impugned

before the JCC in the Revision. The said order

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indicates that the said authority has practically

accepted the contentions of the Respondent on the basis

of an affidavit. There was no other evidence to

indicate that the Respondent was any way concern with

the subject property. Apart from this, before the ACC

there was ample evidence in the form of the revenue

record which indicated the existence of the rights of

the Narayanbua in the other rights column in respect of

subject property. If it is so, it was absolutely

necessary for the ACC to issue notices to him. Now it

is sought to be argued on behalf of Respondent by

referring to the order of the JCC that since the said

Narayanbua died in the year 2000, question of issuance

of notice to him did not arise. Such finding cannot

sustain being not in consonance with the provisions of

law. When there was evidence before the ACC to indicate

that there is a interested person in the subject

property, in view of Section 19 of the Act, it was

mandatory to issue notice to such person. Admittedly,

neither notice is issued to Narayanbua nor to his heir.

Thus, there is non compliance of Rule 7A which is

mandatory in nature.

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12.           Apart    from    this,       it      is   necessary      that     the

publication of notice is required in newspaper having

wide circulation. There is no finding recorded by the

ACC of publication of such notice as service in widely

circulated newspaper. As such, there was no compliance

of relevant rules before proceeding with inquiry and

ACC has erroneously proceeded further for entertaining

the application filed under Section 19 of the Act and

granting registration of the trust.

13. Now, it is necessary to see as to whether ACC

has conducted an inquiry as required by Section 19(ii)

of the Act in the matter of any property is property of

Trust. A combine reading of Section 19 and the Rules 7

and 7A framed under the Act, makes it clear that the

purpose of issuance of notice to person concerned is to

enable ACC to decide whether any property is property

of Trust. This does not contemplate decision of title

of any property, if in dispute, but it certainly

enables the Authority to satisfy itself that the

property claimed of the Trust is in fact its property.

Similarly, the purpose of notice to the concerned and

publication of notice in widely circulated newspaper,

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is aimed at ensuring that the property of third party

is not shown as trust property.

14. Record indicates that though there was

evidence on record in the inquiry before ACC to

indicate that the land is inam land and name of inamdar

is recorded in other rights column. Once such evidence

is forthcoming, it was wholly impermissible for the ACC

not to issue notice to inamdar. Similarly, non

publication of notice in widely circulated newspaper

has led to keep the concerned person having interest in

the property in dark. Most shockingly, ACC by

completely overlooking revenue record has proceeded to

accept the case of Respondent, solely on the basis of

affidavit. Thus, there is non compliance of requisite

procedure which is mandatory before passing order of

registration.

15. Above facts clearly indicate that there could

not have been any knowledge to the Petitioner about the

proceedings pending before the ACC and hence, question

of he having noticed the impugned order does not

arise. While deciding condonation of delay, the facts

of the case would become absolutely relevant. Thus,

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there was no chance for the Petitioner to know about

the mischief done by Respondent showing subject

property as Trust property. If delay is not condoned in

the case like this, the same would lead to miscarriage

of justice. In any case, this was an attempt on part of

Respondent to take over illegally the subject property

and as such, it is a fit case to entertain Petition

even belatedly.

16. As far as the contention of the learned

Counsel for the Respondent of Petitioner not placing

evidence on record to show that the inamdar, pujari or

any owner or Narayan Bua is concerned, admittedly no

objection was raised with regard to status of

Petitioner before the JCC. Suffice it to say that as of

today there is no dispute made by Respondent about

status as it could be seen from reply filed before this

Court. It is also argued on behalf of Respondent that

claim of title cannot be decided in the proceedings

under the Act.

17. The Division Bench of this Court in case of

Ramnarayan Sahu (supra) has held that it would be the

decision of the Civil Court which will prevail over any

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findings by the other authorities in respect of title

of the property. There cannot be dispute in respect of

the said position of law.

18. The question arises whether the issue of

decision of title is involved in this case. Learned JCC

has fell into error when it is held that issue of title

is involved. Learned JCC completely ignored that the

intention of the Petitioner in making statement in his

revision application is to assert that the Respondent

has no right whatsoever in the subject property. The

memo of the revision application shows that no point of

time any declaration was sought by the Petitioner in

respect of his title over the subject property. In fact

JCC ought to have considered the fact that order

impugned before him, is passed by ACC in utter

disregard of the provision of Section 19 of the Act and

relevant rules. Learned ACC has failed to discharge his

bounden duty to inquire as to whether property is of

trust. The findings of JCC, therefore, are perverse and

hence, not sustainable.

19. This Court finds substance in the contention

of the learned Counsel for the Petitioner that by

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taking advantage of the absence of the Petitioner or

his predecessor, the Respondent in collusion with

others, had file application before ACC. According to

him, the whole ideas was to grab land belonging to

third party and it was a concerted effort. In view of

the documents placed on record, there is no reason not

to agree with the said submissions. It is pertinent to

note that there is a resolution passed by the

Grampanchayat on 22.07.2012 to the effect that revenue

entry in favour of Narayanbua is not legal and valid.

Such resolution is utterly illegal and seems to have

been aimed at helping Respondent, when Grampanchayat

had no authority to decide correctness of revenue

entry.

20. Upshot of above discussion is that herein this

case ACC has passed order in utmost casual manner,

without considering repercussions thereof. If orders

are allowed to be passed in such manner, it would lead

to causing of prejudice, irreparable loss and injustice

to the owners of properties or person having interest

therein. There is also fear that unattended properties

can be usurped by disgruntled persons with aid of the

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provisions of the Trust Act. Learned Charity

Commissioner, State of Maharashtra, is hereby requested

to issue appropriate directions to all ACC and Dy.CC's

to scrupulously follow the procedure of inquiry as

contemplated by law and rules under the Act before

accepting any property to be trust property.

21. Registry to forward copy of this order to

learned Charity Commissioner for compliance of above

directions.

22. Petition, therefore, stands allowed. Orders

impugned passed by JCC as well as ACC are set aside.

23. Learned Counsel for Respondent prays that

above observations be restricted to this judgment

itself, as it would come in way of Respondent to form

any trust.

24. The observations, therefore, are specifically

kept restricted to this order and the same would not

affect Respondent's right to form a trust, as per law.

                                                          (R.M. JOSHI, J.)



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