Ramkrushna Alias Ramkisan Damodhar ... vs The Joint Charity Commissioner Ii And ...
2025 Latest Caselaw 1621 Bom

Bombay High Court

Ramkrushna Alias Ramkisan Damodhar ... vs The Joint Charity Commissioner Ii And ... on 16 January, 2025

2025:BHC-AUG:1895




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                       IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                                   BENCH AT AURANGABAD

                              WRIT PETITION NO.10604 OF 2024

              1.    Ramkrushna @ Ramkisan s/o Damodhar Shinde
                    Age 84 years, occ. Retired.
                    r/o Mandve, Tq. Pathardi
                    Dist. Ahmednagar.

              2.    Dr. Gulab Rangnath Najan
                    age 64 years, occ. Doctor
                    r/o Najan Hospital, Newasa Phata
                    Tq. Newasa, Dist. Ahmednagar.            .. Petitioners

              versus

              1.    The Joint Charity Commissioner II
                    Pune Region, Pune.

              2.    The Deputy Charity Commissioner
                    Ahmednagar Region Ahmednagar.

              3.    Punyashlok Ahilyadevi Seva Sangh
                    A public Trust registered under the
                    Bombay Public Trust Act, 1950 at
                    P.T.R. No. F-150-Ahmednagar and having
                    its registered office at Ahmednagar
                    Dist. Ahmednagar 414 001
                    Through its Members

              A)    Mr. Bharat Namdev Vitnor
                    age 55 years, occ. Service
                    r/o Vittnor Vasti, Manjri, Tq. Rahuri
                    Dist. Ahmednagar.

              B)    Mr. Sadashiv Abaji Argade
                    age 60 years, occ. Farmer
                    r/o at Post Dhor Jagaone
                    Tq. Shevgaon
                    Dist. Ahmednagar 414 501                       .. Respondents
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Mrs. R. S. Kulkarni, Advocate holding for Mr. D. A. Bide, Advocate for
the Petitioners.
Mr. B. S. Shinde, AGP for the State.
Mr. P. D. Bachate, Advocate for Respondent Nos. 2 and 3B.

                             WITH
                WRIT PETITION NO. 10660 OF 2024

1.    Ramkrushna @ Ramkisan s/o Damodhar Shinde
      Age 84 years, occ. Retired.
      r/o Mandve, Tq. Pathardi
      Dist. Ahmednagar.

2.    Dr. Gulab Rangnath Najan
      age 64 years, occ. Doctor
      r/o Najan Hospital, Newasa Phata
      Tq. Newasa, Dist. Ahmednagar.              .. Petitioners

versus

1.    The Joint Charity Commissioner II
      Pune Region, Pune.

2.    The Deputy Charity Commissioner
      Ahmednagar Region Ahmednagar.

3.    Punyashlok Ahilyadevi Seva Sangh
      A public Trust registered under the
      Bombay Public Trust Act, 1950 at
      P.T.R. No. F-150-Ahmednagar and having
      its registered office at Ahmednagar
      Dist. Ahmednagar 414 001
      Through its Members

A)    Mr. Bharat Namdev Vitnor
      age 55 years, occ. Service
      r/o Vittnor Vasti, Manjri, Tq. Rahuri
      Dist. Ahmednagar.

B)    Mr. Sadashiv Abaji Argade
      age 60 years, occ. Farmer
      r/o at Post Dhor Jagaone
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         Tq. Shevgaon
         Dist. Ahmednagar 414 501                        .. Respondents

Mrs. R. S. Kulkarni, Advocate holding for Mr. D. A. Bide, Advocate for
the Petitioners.
Mr. B. S. Shinde, AGP for the State.
Mr. P. D. Bachate, Advocate for Respondent Nos. 2 and 3B.

                                CORAM : R. M. JOSHI, J.
                                DATE  : 16th JANUARY, 2025.

JUDGMENT :

1. By consent of both sides, heard finally at admission

stage.

2. These Petitions take exception to the order passed by the

Joint Charity Commissioner in Revision Application Nos. 28/2020

and 29/2020 dated 18.07.2024 setting aside the order passed by the

Deputy Charity Commissioner dated 03.10.2020 passed in Change

Report Nos. 887/2010, 888/2010, 889/2010, 128/2015, 203/2016

and 69/2020.

3. It is the case of the Petitioners that they are the founder

trustees of Punyashlok Ahilyadevi Seva Sangh, Ahmednagar, a trust

registered under the Maharashtra Public Trust Act (for short 'the

Act'). Petitioners claim that the constitution of the trust reflects that

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the procedure for membership of the trust is that the person has

paid Rs. 2,000/- as membership and it is approved by 2/3 majority.

It is contended by the Petitioners that only on compliance of these

two conditions, a person can be treated as a valid member of the

trust and would be eligible to become a managing trustee. It is

further case of the Petitioners that the contesting Respondents along

with other members claim themselves to be the members of the trust

and handling affairs of the trust for last 30 years. These persons

filed change reports asserting their rights as Managing Trustees.

The Deputy Charity Commissioner, after conducting enquiry under

Section 22 of the Act, rejected the change reports with observation

that the persons elected as managing trustees were not life members

of the trust to become managing trustees thereof and those who

become members are enrolled after general body meeting. This order

passed by the Deputy Charity Commissioner came to be assailed

before the Joint Charity Commissioner in Revision under Section

70(A) of the Act. The Joint Charity Commissioner allowed the

revisions and remitted the matter for afresh enquiry.

4. Learned counsel for the Petitioners at the outset raised

objection with regard to the maintainability of the revision on the

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ground that the provisions of Section 70A is not an alternate remedy

but is an independent remedy which cannot be permitted to be

exercised after expiry of period of limitation to file appeal against the

order impugned under Section 70 of the Act, just to overcome lapsed

period of limitation for filing an appeal. It is her submission that the

powers as an appellate authority under Section 70 of the Act and

revision authority under Section 70A of the act are different.

However, the Joint Charity Commissioner here in this case has re-

appreciated the evidence on record and recorded contrary findings to

the one recorded by the Deputy Charity Commissioner which is

wholly impermissible in law. She further argued that Revisional

Authority ought to have recorded findings on issue of filing of revision

within reasonable time and only thereafter would have proceeded to

decide it. To support her submission, she placed reliance on

judgment of coordinate bench of this Court in Writ Petition No.

9456/2023 (Mr. Biswajeet Dibyalochan Mohanty vs. Niranjan

Duryodhan Mohanty and others).

5. This submission is opposed by learned counsel for the

contesting Respondents by referring to the relevant provisions.

According to him, there is no embargo created under the provisions

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of the Act for filing revision even after expiry of period of limitation for

filing appeal.

6. At the outset, this Court wishes to deal with the said

issue. Section 70 of the Act provides for an appeal against order of

Deputy or Assistant Charity Commissioner passed in a proceeding

under Section 22 of the Act. Undisputedly, the proceedings before

the Deputy Charity Commissioner were of change report under

Section 22 of the Act. Thus, the orders passed by the Deputy

Charity Commissioner is appealable before the Charity

Commissioner. Sub-section 3 empowers the Charity Commissioner

for the reasons to be recorded in writing to reverse, modify or confirm

the findings or order appealed against the order to direct the Deputy

or Assistant Charity Commissioner to make further enquiry or to

take additional evidence as he may think fit.

7. As against this, Section 70A of the act provides a power

of revision to the Charity Commissioner which can be exercised suo

motu or even by an application. This power is for the purpose of

seeking record and proceeding of the case before Deputy or Assistant

Charity Commissioner for the purpose of satisfying himself as to the

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correctness of the findings or order recorded or passed by these

authorities. No doubt, in appropriate case, such order can be

reversed, modified, confirmed etc.

8. A bare perusal of these provisions clearly indicate that

the powers under Section 70 of the Act is not restricted to satisfy

himself as to the correctness of any finding or order but

independently there can be re-appreciation of evidence and a fresh

finding can be recorded in the capacity of appellate authority. such

powers are lacked in exercise of jurisdiction under Section 70A.

Revisional authority's jurisdiction is restricted to satisfy itself as to

the correctness of any finding or order.

9. Now first question as to whether it is open for the party

to file an application under Section 70 A before the Charity

Commissioner when the period of limitation is over and without

seeking any condonation of delay for filing appeal such proceeding

can be permitted to be filed and entertained. Secondly, whether in

the instant case the Joint Charity Commissioner has exercised the

powers of revisional authority or ventured upon to practically invoked

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Section 70 without there being an appeal filed against the impugned

order by the Deputy Charity Commissioner.

10. Dealing with issue of maintainability of Revision, general

principle would be that revision would not be tenable where appeal

has been provided statutorily against any order. However, in case of

the Act, an amendment to Section 70 A has been introduced by

Amendment Act 59 of 1954. Thereafter by introduction of

Amendment Act 20 of 1971, words "either suo moto or an

application" came to be added in the section. Section 70A is

reproduced for ready reference as under :-

70A Charity Commissioner to call for an examine records and proceeding before Deputy or Assistant Charity Commissioner (1) The Charity Commissioner may in any of the cases mentioned in Section 70, [either suo motu or on application] call for and examine the record and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annul, reverse,modify or confirm the said finding or other or may direct the Deputy or Assistant Charity Commissioner to make

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further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence :

Provided that the Charity Commissioner shall not record or pass any orders without giving the party affected thereby an opportunity of being heard.

(2) Nothing in sub-section (1) shall entitle the Charity Commissioner to call for and examine the record of any case -

(a) during the period in which an appeal under Section 70 can lie against any finding recorded by the Assistant or Deputy Charity Commissioner in such case, or

(b) in which an order has been passed in an appeal made under section 70.

11. Perusal of this provision indicates that in respect of cases

mentioned in Section 70, revision would be maintainable. The only

embargo is created by sub-section (2)(a) and (b). Thus, during period

of limitation for an appeal or when order has been passed in an

appeal, for Charity Commissioner to call for and examine record of

such case. Consequently, only in these two situations Revision

would not be tenable.

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12. In considered view of this Court, having regard to the

specific provision of maintainability of an appeal or revision against

order passed in the cases covered by Section 70, save and except sub

Section (2)(a) & (b) of Section 70A, no other restriction can be

imposed on tenability of a revision. Doing so, would amount to re-

writing of the provisions of the act, which is impermissible in law. It

is therefore held that irrespective of fact that appeal period is over for

taking exception to the cases mentioned in Section 70, a revision

could be preferred and entertained, provided it is filed within a

reasonable period. It is also mandatory for the revisional authority to

record findings about its satisfaction of the same being filed in

reasonable time, before proceeding to decide the revision on merit.

13. In the instant case, revision under Section 70A came to

be filed on 23.10.2020 against order dated 13.03.2020 passed by

Deputy Charity Commissioner under Section 22 of the Act. Thus,

the revision is filed after 7 months of the passing of impugned order.

The revisional authority therefore ought to have recorded findings

whether revision is filed within reasonable time and only then could

have proceeded to pass the order on merit of revision. The order

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passed by revisional authority therefore deserves interference on this

ground alone.

14. Even otherwise on merits, the Joint Charity

Commissioner has practically treated the revision as an appeal under

Section 70. While exercising revisional powers, his jurisdiction was

limited to see whether there is non-exercise or excessive exercise of

jurisdiction. The procedural aspects could have been taken into

consideration. However, it was not open to treat it as an appeal and

reconsider the case afresh on merits. Though it is stated in the order

that applicants therein were not given full opportunity to present

their case and address concerns raised about membership and

previous change reports, these observations are contrary to the

evidence on record. In absence of any material to support such

observation, it can only be said that only with a view to support the

order of remand, such observations are made.

15. The most shocking part of the judgment impugned is

applicability of 'defacto doctrine' to the trustees who admittedly are

not eligible to be managing trustees. The Joint Charity

Commissioner has assumed that with continuous handling of the

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affairs of the trust for a long period a right has been created in favour

of the contesting Respondents to become/continue as trustee and

therefore, it is observed that the claim of continuous management by

certain individuals even if not properly documented raises a question

of defacto trusteeship. Though it is also held that the election

process is partly flauted in terms of compliance of the constitution,

what was directed to the Deputy Charity Commissioner is to consider

the trust's long term functioning and the individuals having been

managing the trust and furthering its objects.

16. Learned counsel for Respondents has made a feeble

attempt to justify this principle sought to be applied by the Joint

Charity Commissioner to the trust by placing reliance on judgment of

coordinate bench of this Court in case of Hislop Education Society vs.

Presiding Officer & others (Writ Petition No. 2174/1996).

17. Defacto principle applies to the acts of a person who is

said to have assumed the rights to do such acts. Hon'ble Supreme

Court in case of Pushpadevi M. Jatai vs. M.L. Wadhawan, (1987) 3

SCC 367, has observed that :-

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"21. ..... Where an office exists under the law, it matters not how the appointment of the incumbent is made, so far as validity of his acts are concerned. It is enough that he is clothed with the insignia of the office, and exercises its powers and functions. The official acts of such persons are recognised as valid under the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. In Gokaraju Rangaraju cae, Chinnappa Reddy, J.

explained that this doctrine was engrafted as a matter of policy and necessity to protect the interest of the public. He quoted the following passage from the judgment of Sir Ashutosh Mukherjee, J. in Pulin Behari Das. V. King Emperor at p. 574:

The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessary to protect the interest of public and the individual whee those interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large. The learned Judge also relied upon the following passage from the judgment of P. Govindan Nair, J. in P.S. Menon v. State of kerala at p. 170:

This doctrine as a matter of policy and necessity to protect the interest of the public and individuals

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involved in the official acts of persons exercising the duty of an officer without actually being one in strict point of law. But although these officers are not officers de jure they are by virtue of the particular circumstances, officers, in fact, whose acts, public policy requires should be considered valid."

(emphasis supplied)

18. It is thus clear from above observation that defacto

doctrine was introduced into the law as a matter of policy and

necessity to protect the interest of public and the individuals whose

interests were involved in the official acts of persons exercising duties

of an office without being lawful officers. The defacto principle at the

most may apply to the acts done by the contesting Respondents qua

third party or public at large. However, by no stretch of imagination

the same can be made applicable to legitimise illegality done by any

person by holding post without right in particular to the trustees who

did not even acquire the said position as per the constitution of the

trust. Thus, this Court finds serious error being committed by the

Joint Charity Commissioner to seek application of the defacto

doctrine to the present case. Needless to say that the person who

without any right has held the post even for any long period of time,

no right can be said to have been created in his favour to validate the

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said position. A direction issued to the Deputy Charity

Commissioner to consider the said principle is a serious error

committed by the Joint Charity Commissioner.

19. Another angle of this issue is that commonly a grievance

is made by people that the trusts are sought to be taken over by

unscrupulous elements by using force, coercion or illegal means. In

case, such principle as propagated by Joint Charity Commissioner is

allowed to be made applicable to the trust will lead to give license to

the dishonest/deceitful persons to take over the trust illegally and to

retain its control under the defacto doctrine. This is fear expressed

and in no manner this Court intends any of such attributions to the

contesting Respondents herein.

20. The Deputy Charity Commissioner has recorded finding

on the basis of evidence on record indicating that the contesting

Respondents were not eligible to contest the election for want of

payment of membership fees as a life member and enrollment after

general body meeting. This finding has not been found to be perverse

even by the revisional authority. As such, there was no reason or

justification to cause interference in the impugned order passed by

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the Deputy Charity Commissioner. Even otherwise, the direction

issued by the Joint Charity Commissioner while passing order of

remand directing the Deputy Charity Commissioner to consider

defacto principle cannot sustain in the eyes of law.

21. As a result of above discussion, the impugned orders are

set aside. Petitions stand allowed in above terms.

( R. M. JOSHI) Judge

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