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Jagatnarayansingh Swarupsingh Chithere and ors. Vs. Swarupsingh Education Society and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberAppeal No. 50 of 1978
Judge
Reported in1980MhLJ372
ActsBombay Public Trusts Act, 1950 - Sections 6, 22, 70, 72, 72(1), 73 and 76; Bombay Public Trusts Rules - Rule 7; Code of Civil Procedure (CPC) , 1908 - Sections 96; Presidency Small Causes Courts Act, 1882; Provincial Small Causes Courts Act, 1887
AppellantJagatnarayansingh Swarupsingh Chithere and ors.
RespondentSwarupsingh Education Society and anr.
Appellant AdvocateJ.N. Chadurkar, Adv.
Respondent AdvocateP.V. Heley and ;T.H. Nashikkar, Advs. for respondent No. 1 and ;S.J. Jichkar, Asstt. Govt. Pleader for respondent No. 2
DispositionAppeal dismissed
Excerpt:
.....name in dying declaration would be of no help to accused. - going through the judgments of the deputy charity commissioner and the learned district judge respectively, i do feel that this certainly was not a case fro interference by the learned district judge with the discretion well exercised by the deputy charity commissioner who had in fact not only concluded that the appeal was filed within limitation but had also added that in case it was held to be beyond time, he would condone the delay in filing the same. whether there is or is not a cause sufficient for condonation of delay, is best judged by the court initially called upon to consider the same. discretion exercised, particularly in favour of condonation, should normally not be interfered with unless well settled principles..........knowledge of the appellants herein, they appealed against the same. this appeal was allowed by the deputy charity commissioner, the order passed by the assistant charity commissioner was set aside and the matter was sent back to him for proper hearing and disposal. this appellate order was challenged by respondent no. 1 trust by an application under section 72 of the act. the learned district judge allowed the said application, set aside the appellate order of the deputy charity commissioner and dismissed the non-applicants' appeal in question. hence this appeal therefrom by the original non-applicants.3. mr. chandurkar the learned advocate for the appellants submitted that the learned district judge erred in reversing the finding and order of the deputy charity commissioner on the.....
Judgment:

S.C. Pratap, J.

1. This appeal by Jagatnarayansingh Swarupsingh and others directed against the judgment and order dated 21st September 1977 by the learned District Judge, Amravati in application preferred by the Swarupsingh Education Society, by its President and Manager Smt. Meenabai Amarsingh Chithore, under section 72 of the Bombay Public Trusts Act raises inter alia, a question of some importance to all public trusts viz. :

In inquiry under section 22 of the Bombay Public Trusts Act related only to the factum of change under consideration or also to is legality and validity ?

2. Facts and circumstances, briefly stated, are as follows :---

Respondent No. 1 Swarupsingh Education Society is a public trust. General Body Meeting thereof was held on 24th February, 1974, inter alia, to elect a new Managing Committee. A new committee was accordingly elected. On 22nd April, 1974 the society sent a change report in that behalf under section 22 of the Bombay Public Trusts Act (hereinafter the Act) to the Assistant Charity Commissioner, Akola. This was registered and accepted on the name day 22nd April, 1974 without any notice, either public or individual, and without any inquiry. When this change report and its acceptance came to the knowledge of the appellants herein, they appealed against the same. This appeal was allowed by the Deputy Charity Commissioner, the order passed by the Assistant Charity Commissioner was set aside and the matter was sent back to him for proper hearing and disposal. This appellate order was challenged by respondent No. 1 trust by an application under section 72 of the Act. The learned District Judge allowed the said application, set aside the appellate order of the Deputy Charity Commissioner and dismissed the non-applicants' appeal in question. Hence this appeal therefrom by the original non-applicants.

3. Mr. Chandurkar the learned Advocate for the appellants submitted that the learned District Judge erred in reversing the finding and order of the Deputy Charity Commissioner on the question of limitation in filling the appeal. Going through the judgments of the Deputy Charity Commissioner and the learned District Judge respectively, I do feel that this certainly was not a case fro interference by the learned District Judge with the discretion well exercised by the Deputy Charity Commissioner who had in fact not only concluded that the appeal was filed within limitation but had also added that in case it was held to be beyond time, he would condone the delay in filing the same. Whether there is or is not a cause sufficient for condonation of delay, is best judged by the Court initially called upon to consider the same. Discretion exercised, particularly in favour of condonation, should normally not be interfered with unless well settled principles stand violated. Such indeed was not the case here. On the contrary, undisputed position herein was that neither intimation of the report nor its acceptance was sent to the appellants. If, in these circumstances, they contended on affidavit by least one of them that their appeal was filed within the period of limitation after knowledge of the change report and its acceptance or that, in the alternative, delay be opened and if, in the exercise of his own judicial discretion, the Deputy Charity Commissioner thought fit to accept the said contention, this surely was not a case for interference. Discretion was well and properly exercised. The ex parte order stood set aside and the matter want back for decision on merits after notice and opportunity to all concerned. Condonation thus advanced the ends of justice.

4. Mr. Holey the learned Advocate for respondent No. 1 contended, however, that delay apart, there was yet another hurdle across the appellants, viz. as members of the new Managing Committee were not made parties to the appeal before the Deputy Charity Commissioner, the said appeal was bad due to their non-joinder. This contention, however, has very limited relevance because while remaining the matter the Deputy Charity Commissioner had already directed the Assistant Charity Commissioner to issue notices to all the parties and to then dispose of the enquiry on merits and according to law. Even otherwise nothing would have prevented the appellants from moving the Assistant Charity Commissioner for making members of the new Managing Committee parties to the appeal. Moreover, these new Members also could have applied (section 73-A) for being joined as parties. Inquiry after remand would thus have been one properly constituted with all necessary and proper parties before the authority concerned. In the circumstances, contention of Mr. Holey based on non-joinder of parties though otherwise of substance, loses significance.

5. It was next contended by Mr. Holey that inquiry under section 22 of the Act was extremely limited in its scope and purely factual in nature. All that was required to be seen was whether the change under consideration had in fact taken place and if so to accept the same. Rights of the aggrieved party were not affected by mere such acceptance. Legality and validity of the impugned change could still be challenged by a suit. Mr. Chandurkar, however, vehemently contested this position and submitted that the contemplated inquiry was a judicial inquiry elements whereof were expected and had to be complied with. Consequently, not merely the factors of the change in question but also its legality and validity had to be considered and adjudicated upon. Now, though provisions of the Act prima facie indicate that change report has to be made and accepted as and when a 'change occurs' and that it legality and validity need not be the subject matter of an inquiry under section 22, the raison d'stre of the relevant scheme of the Act and the Rules there under is indeed pea contra.

6. Under section 17 of the Act, in every Public Trust Registration Office or joint Public Trusts Registration Office, it shall be the duty of the Deputy or Assistant Charity Commissioner in charge to keep and maintain such books, indices and other registers as may be prescribed and these shall contain such particulars as may also be prescribed. Under section 22(i), any change in any of the entries recorded in the register kept under section 17 has to be reported to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Under sub-section (2) of section 22, the Deputy or Assistant Charity Commissioner may hold an inquiry in the prescribed manner for verifying the correctness of the entries in the register kept under section 17 or for ascertaining whether any change has occurred in any of the particulars recorded in the register. Under sub-section (3) of section 22, the Deputy or Assistant Charity Commissioner, as the case may be, shall record his finding with reasons therefor on the question of this satisfaction or otherwise qua an alleged change. The same sub-section (3) expressly makes the said finding appealable to the Charity Commissioner and further proves inter alia, that the amendments so made in the entries either initially or by way of an appeal shall, subject to further amendment, be final and conclusive. Section 70(1) of the Act also provides for an appeal against the finding under section 22.

7. Under section 72(1) of the Act, any person aggrieved by the decision of the Charity Commissioner, inter alia, under section 70, may apply to the Court to set aside the said decision. And under sub-section (4) of section 72 an appeal lies to the High Court against the decision of the Court in proceedings under section 72 as if such decision was a decree from which an appeal ordinarily lies. Also relevant to note is that the provisions of the Code of Civil Procedure are made applicable albeit only to some extent vide section 73 or only at certain stages vide section 76. Equally pertinent to note is that under Rule 7 of the Rules under the Act, inquiries under or for purposes of section 22,

'......shall be held, as far as possible in the Greater Bombay Region in accordance with the procedure prescribed for the trail of suits under the Presidency Small Cause Courts Act, 1882 and else where under the Provincial Small Cause Courts Act, 1887.'

8. Therefore, though prima facie it appears to be a mere change, the scheme of the Act contemplates qua the change under consideration an inquiry of a Judicial character with an appeal therefrom to the Charity Commissioner and a further application under section 72 to the District Judge and yet another appeal therefrom to the High Court against which appellate judgment of the High Court, a still further appeal may, in a given case, lie under the letters patent. Such being the Judicial scrutiny and the extensive grant of the inquiry under section 22 of the Act, it is obvious that this inquiry can not be a mere factual process or one purely formal in nature. Investigation into the legality and validity of the change is implicit. The inquiry is a judicial process pertaining the character of judicial adjudication. An elemental perquisites or the minimal requirement of a judicial inquiry and a judicial process is compliance with the principles of natural justice. These principles, though not embodies rules, constitute none the less an important facet and pivot of the judicial process. Inquiry behind the back of an aggrieved party is best avoided lest it stands vitiated. One affected must be noticed an heard. Basic lacuna in that respect may well render the inquiry and or the order therein almost non est at least qua the aggrieved absent party left unheard and, therefore, unheeded.

9. In the circumstance, the fact that a suit may lie against finding in an inquiry under section 22 cannot nullify its judicial character and trappings nor can it obviate the need to determine, either suo motu or at the instance of party aggrieved, the legality and validity of the change in question. And this is not without reason. For, apart from interpretation within the setting of the relevant scheme under the Act equally relevant to note is also the fact that any public trust is possessed of extensive movable and immovable properties. Many a public trust assumes vital public importance. In a given case, considerable status also happens to be attached to office under a public trust. Moreover, a given public trust may be in charge and control of funds running literally into lacs of rupees. Registers enjoined to be maintained under section 17 of the Act are also important registers. An enquiry under section 22 is also so envisaged by the Act itself as could in a given case already indicated supra ultimately reach even this Court by way of an appeal as of the instant nature both on facts and on law. And even this appeal may not be the last terminal in the series. For all these reasons and circumstances it is not possible to accept the contention of Mr. Holey that because a suit lies (on which I express no opinion), the grievance of the appellants should not be entertained in the present proceedings. Even assuming a suit is competent a party affected by an inquiry under section 22 and order passed therein cannot, therefore, be debarred from agitating its legality and validity under the provisions of the Act itself.

10. In this context, the observation of L.M. Pranjpe, J, in a unreported decision in Civil Revision Application No. 216 of 1965 decide on 5th April, 1961 becomes apt :

'Once an intimation of change was given it become the duty of the Assistant Charity Commissioner to hold an enquiry,...... I may mention that the enquiry with regard to the factum of change would necessarily require him to inquire into the validity of the grounds which necessitated the change.'

11. In the same context, reference may also be made to a Division Bench ruling of the Gujarat High Court in Shantilal Khimeh and others v. Mulchand Dulichand and others, (1968) III GujLR 117. Contention that enquiry under section 22 of the Act related to the fact whether a change, in fact, has occurred and could not extend to a consideration of the question regarding the validity of the change was rejected by the Division Bench vide the observations (infra) at page 121.

'Whenever, therefore, a question arises whether the body of persons who has appointed the trustees is not in fact the real body of persons who could appoint a trustee, such a dispute will have to be enquired into and the officer holding the enquiry will have to go into that dispute because if an unauthorised group of persons or outsider choose to appoint a trustee, such a person cannot be said to be a 'trustee' at all and it cannot be said in such a case that he has been appointed a 'trustee'.....The change contemplated by section 22 postulates firstly a lawful cassation of the old position and secondly thereafter a lawful creation of a new one. If the new State of affairs constituting the change cannot in law change or substitute the old order, there is no change at all in fact and such a supposed change cannot be recorded.'

Cumulative effect thus emerging is that the Deputy or the Assistant Charity Commissioner enjoined with statutory obligation of holding an inquiry under section 22 of the Act has to proceed therewith judicially. Consequently, it become his duty to inquire into not only the factum of the change under consideration but also its and validity. My answer accordingly to the question framed at the inception.

12. With all these findings in favour of the appellants, I am constrained to nevertheless dismiss the appeal in view subsequent developments, Court can not ignore relevant subsequent developments occurring during the pendency of appeal and must in the ends of justice mould its order in the light thereof. In this context, I may refer to Civil Application No. 2498 of 1979 by respondent No. 1. Factual averments therein are not contested. Undisputed position, therefore is that the term of the Managing Committee elected in February 1974 has already expired in February 1979 and a new Managing Committee has also been elected in March 1979. This new Committee has also already taken charge. Mr. Nashikkar the learned Advocate for respondent No. 1 trust, makes a statement before this Court that the old Managing Committee elected in February 1974 had neither sold nor purchased any immovable property nor had it taken any such major policy decision so as to adversely effect the interest of the public trust. The said Managing Committee had only carried on routine administration. Mr. Chandurkar the learned Advocate for the appellants has not invited my attention to any such act by the erstwhile Managing Committee which can be said to be against the interests of the trust. Moreover, there are many in-built provisions in the Act itself and the Rules thereunder operating as safety valve for protection of public trusts. Control of the Charity Commissioner is also there all throughout. In these circumstances, remand to inquiry into the theoretical legality or otherwise of the 1974 elections already superseded by the 1979 elections become academic.

13. This is not say or hold that the impugned order of the learned District Judge is necessarily good and valid. But subsequent developments have rendered it unnecessary to go into that question. Question in the abstract or questions academic are normally not decided by courts. Mr. Chandurkar submits that it was no fault of the appellants that before this appeal could reach hearing the term of the erstwhile Managing Committee expired. That may be so. But when occasion has arisen today to consider what order should be passed on this appeal, the above developments do become relevant. Moreover, I am not prepared to totally absolve the appellants of blame for this situation, inasmuch as nothing prevented them from moving this Court or perhaps even the authorities below, for an appropriate interim order against the members of the erstwhile Managing Committee. Be that as it may and today faced with the situation aforesaid, this, in my view is not a case where an order of remand can be successfully insisted upon. On the contrary, interests of justice and of the very public trust in question would be better served by drawing a curtain on this litigation which in the circumstances supra has become infructous. Keeping it nevertheless alive would be an exercise in futility.

14. In this result, this appeal fails and the same is dismissed. In the circumstances of the case, however, there will be no order as to costs.


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