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Kanbi Manji Abji and ors. Vs. Kanbi Velji Manji and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1980)21GLR44
AppellantKanbi Manji Abji and ors.
RespondentKanbi Velji Manji and ors.
Cases ReferredHiragar Dayagar and Anr. v. Ratanlal Chunilal and Ors.
Excerpt:
- - 21 till the disposal of the inquiry reopened under the order in revision is embodied in the impugned order, it merges and forms part of that order and was clearly liable to be assailed under section 72(1) of the act. this difficulty was experienced in course of time and to overcome the same, the legislature stepped in and inserted section 22a and 70a by bombay act 59 of 1954. this becomes clear from the statement of objects and reasons for the introduction of the said two provisions, which reads as under: it is, therefore, obviontive that on the charity commissioner feeling satisfied from information received or material placed at his disposal that prima facie the order or finding of the deputy or assistant charity commissioner is erroneous, he would decide to give an opportunity.....a.m. ahmadi, j.1. in this appeal under sub-section (4) of section 72 of the bombay public trusts act, 1950 (hereinafter referred to as 'the act') two questions in the main have been, raised on behalf of the appellants by their learned counsel mr. i.m. nanavati, namely, (i) the charity commissioner had exercised his discretionary jurisdiction under section 70a of the act after a lapse of reasonable time and, hence, the order passed in exercise of his revisional powers was liable to be set aside on the ground of delay and laches; and (ii) the directions initially issued under section 41a at ex. 21 merged into the final order passed by the charity commissioner under section 70a and was, therefore, liable to be assailed under section 72(1) of the act before the district court and the learned.....
Judgment:

A.M. Ahmadi, J.

1. In this appeal under Sub-section (4) of Section 72 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as 'the Act') two questions in the main have been, raised on behalf of the appellants by their learned Counsel Mr. I.M. Nanavati, namely, (i) the Charity Commissioner had exercised his discretionary jurisdiction under Section 70A of the Act after a lapse of reasonable time and, hence, the order passed in exercise of his revisional powers was liable to be set aside on the ground of delay and laches; and (ii) the directions initially issued under Section 41A at Ex. 21 merged into the final order passed by the Charity Commissioner under Section 70A and was, therefore, liable to be assailed under Section 72(1) of the Act before the District Court and the learned District Judge, who disposed of the said application, was wrong in holding that notwithstanding the fact that the impugned order formed part of the final order passed under Section 70A it was in effect and for all purposes an order under Section 41A which could not be assailed under Section 72(1) of the Act. As a limb of the same submission it was further argued that the learned District Judge ought to have set aside that part of the direction issued by the learned Charity Commissioner as he was unmistakably of the opinion that the said direction was legally untenable. These two contentions raised before me arise in the backdrop of the following facts:

2. In village Baladia, taluka Bhuj, there is a temple known as 'Abji Bapa Chhatedi and Hanumanji Temple' which came to be registered as a public trust pursuant to an inquiry held under Section 19 of the Act after the provisions of the Act were extended to the said region on 31st July 1961. The application for registration of the trust was made under Section 18 of the Act by one Kanji Harji Jesani of village Baladia on the basis of a trust deed dt. 30th March, 1960 executed by Manji Abji and Kanji Abji, the son and grand-son respectively of the late Abji Bapa, to whom the properties mentioned in the deed originally belonged. It was mentioned in the trust deed that the said properties were being used by persons belonging to the Swaminarayan sect, who were the followers of Abji Bapa for worship and such other purposes. On the basis of the information supplied to the learned Deputy Charity Commissioner in the said application made under Section 18 and the inquiry held pursuant thereto under Section 19 of the Act, the trust was registered as a public trust by an order dated 6th February, 1963 at No. K/307. Certain change reports were filed by the trustees after the registration of the trust with which we are not presently concerned.

3. Shortly after the registration of the trust on 6th February, 1963, Kanbi Velji Manji and Kanbi Lalji Manji (respondents Nos. 1 and 2 herein) and three others instituted a suit No. 20/64 oo 21st April, 1964 in the court of the learned Civil Judge, Senior Division, Bhuj. Notice under Order 1 Rule 8, C.P.C. was issued in that matter. It appears that on 1st May, 1964 Karsan Arjan and Kanji Shamji (respondents Nos. 3 and 6 herein) made an application to the Deputy Charity Commissioner that there existed a trust of Abji Bapa and the same was required to be registered as a public trust under the provisions of the Act. It appears that this application was made in ignorance of the fact that the trust had already been registered by the Deputy Charity Commissioner on 6th February, 1963. On the aforesaid two persons being informed of the registration of the trust they withdrew their application on 2nd May, 1964 i.e. on the next day and the application stood dismissed as withdrawn. However, on 16th June, 1964, Karsan Arjan (respondent No. 3 herein) and 22 others applied to be impleaded as parties to the suit in response to the public notice issued under Order 1 Rule 8 of C.P. Code. In that suit on behalf of the appellants herein, a written statement was filed on 29th July, 1964 to the effect that as the trust in question was registered as a public trust on 6th February, 1963 in view of the clear mandate of Section 80 of the Act, the Civil Court had no jurisdiction to hear the suit. It was, therefore, emphasised by Mr. Nanavati from the aforesaid facts that respondents Nos. 1 and 2 had become aware of the fact that the trust was registered when the trustees filed their written statement to the suit on 29th July, 1964 disclosing this fact. So far as Karsan Arjan, respondent No. 3 herein, is concerned, it was emphasised by Mr. Nanavati that he became aware 'of the registration of the trust when he withdrew his application on 2nd May, 1964 for registration of the trust. Now during the pendency of the suit, the aforesaid three respondents, on realising that the trust was registered, filed an application on 4th March, 1965 before the learned Charity Commissioner requesting him to exercise his discretionary jurisdiction under Section 70A and reopen the inquiry under Section 19 of the Act in regard to certain matters concerning the said trust. The said application was registered and numbered as Revision Application No. 7/65 by the office of the learned Charity Commissioner. It was pointed out in that application that some properties which belonged to the trust had been left out, the object of the trust had not been correctly stated, the mode of succession to trusteeship as stated therein was not correct and, hence, a fresh inquiry in these matters was absolutely necessary. Pending the said proceedings before the learned Charity Commissioner, an application was made on 9th June 1966 by the present respondents Nos. 1, 2 and 3 under Section 41A of the Act for certain directions. The learned Charity Commissioner considered this application and issued the necessary directions at Ex. 21 on 17th June, 1966. Thereafter the learned Charity Commissioner heard the revision application after notices to the present appellants and disposed it of by the following order passed on 3rd November, 1966:

For the above reasons I allow this revision application and do hereby set aside the findings about the trustees and mode of succession to trusteeship given by the learned Deputy Charity Commissioner, Bhuj, in inquiry No. 329/61. This inquiry is remanded to the Deputy Charity Commissioner, Bhuj for disposal in accordance with law for ascertaining the trustees, mode of succession to trusteeship, additional objects and additional properties, if any, of this trust. As regards the objects, the A learned Deputy Charity Commissioner will ascertain as to whether there are any additional objects over and above the objects registered by him in the public trusts register. The learned Deputy Charity, Commissioner will also ascertain as to whether any other property has remained to be registered as the property of this trust over and above the property registered as the property of this trust in inquiry No. 329/ 61 and various other changereports. Other findings given by the learned Deputy Charity Commissioner, Bhuj, will remain undisputed. The learned Deputy Charity Commissioner, will issue a public notice in the local newspaper and a notice may be affixed on the trust premises and also in the office of the Deputy Charity Commissioner, Bhuj, for the present inquiry. The petitioners and the opponents and other persons who might appear in the inquiry may be given an opportunity to have their say and to lead oral and written evidence in support of their respective say.' Touching the directions given by the learned Charity Commissioner in exercise of powers under Section 41A of the Act at Ex. 21 on 17th June, 1966, the impugned order of 3rd November, 1966 disposing of the application under Section 70A of the Act contained the following directions:

Directions issued by me on 17-6-66 at Ex.21 under Section 41A of the Bombay Public Trusts Act, 1950 will remain in force till the disposal of the inquiry No. 329/61.

It is the contention of the appellants that as this direction to continue the directions issued under Section 41A of the Act at Ex. 21 till the disposal of the inquiry reopened under the order in revision is embodied in the impugned order, it merges and forms part of that order and was clearly liable to be assailed under Section 72(1) of the Act.

4. Against the above order passed by the learned Charity Commissioner under Section 70A of the Act, the present appellants filed an application, being Civil Misc. Application No. 33/66, in the court of the learned District Judge, Kutch at Bhuj under Section 72(1) of the Act. The two contentions which have been raised before me in this appeal were raised before the learned District Judge and were negatived by him. The learned District Judge came to the conclusion that the learned Charity Commissioner had not committed any error in exercising his discretionary jurisdiction under Section 70A of the Act and that the order passed by him was not liable to be quashed and set aside on the ground of delay or laches. As regards the direction issued by the learned Charity Commissioner while disposing of the application under se:. 70A of the Act, the learned District Judge was of the view that such a direction ought not to have been issued under Section 41A of the Act but since a direction issued under Section 41A could not be assailed under Section 72, the applicants were not entitled to have the said direction set aside. In this view that he took on the aforesaid two principal contentions urged on behalf of the present appellants, the learned District Judge dismissed the application with costs on 31st January, 1973. It is against this order passed by the learned District Judge that the original applicants before him have preferred this appeal under Sub-section (4) of Section 72 of the Act.

5. Now in order to appreciate the two contentions urged before me by Mr. Nanavati, it is necessary to bear in mind the material provisions of the Act. Section 18 enjoins upon a trustee of a public trust to make au application for registration of such trust to which the Act applies. On receipt of the said application, the Deputy or Assistant Charity Commissioner, is charged with the duty to hold an inquiry under Section 19 of the Act. On the completion of the inquiry, the Deputy or Assistant Charity Commissioner trust record his findings on the various matters set out in Section 19 of the Act. The findings recorded have to be entered in the register kept under Section 17 and they become final and conclusive under Section 21 of the Act subject to the decision in appeal or application or by way of a change report under Section 22 of the Act. A change can be effected in the entry so made if a change has occurred and the same is reported by the trustee within the prescribed period to the Deputy or Assistant Charity Commissioner. Thus an entry made in the register kept under Section 17 on the final determination of the inquiry commenced under Section 19 becomes final and conclusive subject to any subsequent change duly recorded and cannot be questioned in any other proceedings concerning the said trust. It is pertinent to note that the Act makes no provision for issuing public notice of initiation of inquiry under Section 19 of the Act to enable all persons who are interested in the trust and who are possessed of information concerning the matters referred to in Section 19 to appear before the authority and participate in the proceedings. Some of the trustees who applied for registration of trust administered by them took advantage of this lacuna in the Act and deliberately suppressed the truth and furnished misleading information to serve their own ends as the Act did not provide for reopening of the inquiry in respect of matters which were rendered final and conclusive by Section 21 of the Act. Very often applications for registration were filed behind the back of persons actively interested in the proper, efficient and smooth management and administration of the trust and on the strength of half truths and misleading particulars as regards the names of co-trustees, mode of succession, number of properties held by the trust, etc., wrong or incomplete entries were got made fraudulently and/or dishonestly in the trust register kept under Section 17 of the Act and once these entries became final and conclusive by the thurst of Section 21 of the Act, there was no power in the Deputy or Assistant Charity Commissioner or even in the Charity Commissioner to reopen the inquiry and correct the error. This difficulty was experienced in course of time and to overcome the same, the legislature stepped in and inserted Section 22A and 70A by Bombay Act 59 of 1954. This becomes clear from the statement of Objects and Reasons for the introduction of the said two provisions, which reads as under:

It is often found that all particulars belonging to a public trust are not disclosed intentionally or otherwise in inquiry for the registration of a public trust under Section 19. Sometimes the trustees deliberately omit to mention the properties while applying under Section 18, because they claim them as their personal properties. After the public trust is registered, it may come to the notice of the Deputy or Assistant Charity Commissioner on the information supplied by a person having interest that certain properties or other particulars in respect thereof are omitted. Similar omissions may occur in regard to entries made on a claim in any of the particulars recorded under Section 22. It should be made clear that an inquiry for this purpose can be made and necessary entries can be made by the Deputy or Assistant Charity Commissioner after the inquiry. An inquiry under Section 19 or Section 23(3) deals with several points but it is considered sufficient if the inquiry is confined only to the particulars of the public trust which were not in issue in the previous inquiry and which are necessary to complete all the particulars of a trust which is registered. This new Section provided accordingly.

6. Now Section 70A does not prescribe any period of limitation. Clause (a) of Sub-section (2) Section 70A on the other hand provides that the Charity Commissioner shall not examine the record of any case during the period in which an appeal under Section 70 can lie against the finding of the Deputy or Assistant Charity Commissioner. The, period of limitation prescribed by Sub-section (2) of Section 70 for an appeal against any order to finding of the Deputy or Assistant Charity Commissioner is sixty days from the recording of such finding or order under Sections 20, 22, 22A, 28 or 54(3) of the Act. It is, therefore, obvious that even if the Charity Commissioner is inclined to exercise his discretion under Section 70A he must wait for a period of sixty days before doing so. The statute, therefore, requires the Charity Commissioner to wait till the period prescribed for filing an appeal expires. That is because the revisional jurisdiction is limited to cases mentioned in Section 70 against which an appeal also lies to the Charity Commissioner. If an appeal is filed by an aggrieved party against any dl the orders or findings recorded in Section 70, it would not be necessary for the Charity Commissioner to exercise his revisional jurisdiction under sol 70A of the Act. It is only where no appeal is filed that it would become necessary for the Charity Commissioner to act under Section 70A of the Act. Before the Charity Commissioner acts under the said provision, he mast give an opportunity to the party likely to be affected of being heard under the proviso to Sub-section (1) of Section 70A of the Act. It is, therefore, obviontive that on the Charity Commissioner feeling satisfied from information received or material placed at his disposal that prima facie the order or finding of the Deputy or Assistant Charity Commissioner is erroneous, he would decide to give an opportunity to the party likely to be affected if (sic) inquiry is reopened of being heard in the matter. It is immaterial whether he exercises the jurisdiction on information gathered by him suo motu on information supplied to him by a party, including the party which hair defaulted in filing an appeal under Section 70, because exercise of discretion under Section 70A is a privilege and not right conferred on the informant. The discretion has to be exercised judicially on objective factors to subserve the ends of justice. It, therefore, appears fairly clear on a reading of Section 70A of the Act that the Charity Commissioner is not precluded from invoking his discretionary jurisdiction on receipt of information from a party which could have appealed under Section 70 of the Act against the very same order in respect of which he requests the Charity Commissioner to take action in exercise of powers vested in him under Section 70A of the Act.

7. The contention of Mr. Nanavati, however, was that respondents Nos. 1 and 2 had become aware of the fact that the trust in question was registered latest on 29th July, 1964, on which date the trustees filed their written statement in answer to the suit filed by the said two respondents 4 and three others in the court of the learned Civil Judge, Senior Division, Bhuj. He also pointed out that so far as respondent No. 3 is concerned, he had filed an application for registration of the trust on 1st May, 19M, but had withdrawn the same on the very next day on realising that tie; trust in question was duly registered under the provisions of the Act. His submission therefore, was that the present three respondents Nos. 1, 2 and 3 were aware of the trust having been registered latest by 29th July, 1964 and yet they did not take action till 4th March, 1965, on which date they moved the Charity Commissioner by an application for invoking to; discretionary jurisdiction under Section 70A of the Act. Mr. Nanavati, therefore, submitted that the aforesaid three respondents waited for over seven months for invoking the revisional jurisdiction of the Charity Commissioner under Section 70A of the Act and yet while doing so they offer no explanation whatsoever for their inordinate delay. He, therefore, submitted that the said three respondents had not moved the Charity Commissioner within a reasonable period and in his opinion reasonable period would be two to three months and, hence, the learned Charity Commissioner was not justified in entertaining the said application and numbering it as Revision Application No.7/65 and acting thereon. According to Mr. Nanavati, an order under Section 20 is appealable under Section 70(1) of the Act and such appeal must be filed under Sub-section (2) of Section 70 within the period of sixty days from the recording of the finding or passing of the order, as the case may be. He submitted that as the Charity Commissioner enjoyed powers which were akin to his powers while disposing of an appeal under Section 70, the reasonable period for the exercise of discretionary jurisdiction under Section 71A of the Act should also be sixty days from the date it was open to the Charity Commissioner to resort to the said extraordinary powers invested in him by the statute or from the date of knowledge of the informant who applies for the exercise of that power. He also invited my attention to Article 131 in the Schedule to the Limitation Act, which prescribes the period of limitation for an application to any court for the exercise of its powers of revision under the Code of Civil Procedure or the Code of Criminal Procedure as ninety days from the date of the decree or order or sentence sought to be revised, as the case may be. It was, therefore, submitted by Mr. Nanavati on the analogy of the aforesaid two provisions that the reasonable period within which the Charity Commissioner should exercise his revisional jurisdiction should be between sixty days and ninety days at the most and, in his opinion, such a criteria would not defeat but would subserve the purpose of the Act, because, according to him, the interest of a charitable trust is interest of public at large and every member of the public may not become aware of the order and, hence, it would be reasonable to fix the period of limitation in so far as such informants are concerned as sixty or ninety days from the date of knowledge. He also stated that the trustees are rendering public service and it would not be just to cause harassment and inconvenience to the trustees at any point of time that someone opposed to the trustee or trustees chooses to invoke the revisional jurisdiction of the Charity Commissioner. In his opinion for the purpose of balancing the public interest on the one hand and the inconvenience or harassment likely to be caused to the trustees by the making of an application for invoking his revisional jurisdiction on the other, the court should so interpret Section 70A of the Act as would discourage lethargy on the part of those who think that the inquiry needs tobe reopened and thereby avoid hardship and inconvenience to the trustees who would find it difficult to collect evidence after a long lapse of time. He, further submitted that if jurisdiction is exercised after inordinate delay third party rights which may have crystalised may be reopened causing unnecessary anxiety to all concerned. In support of this contention he also invited my attention to Section 115 of the Code of Civil Procedure and Section 211 of the Bombay Land Revenue Code and submitted that the language of the laid two provisions was substantially the same as that of Section 70A of the Act, According to him in the cases of applications under Section 115, C.P.C., or Section 211 of the Bombay Land Revenue Code, courts have taken the view that the revisional jurisdiction should be exercised within a reasonable time and the same approach should guide the courts in determining what should be the reasonable time within which revisional jurisdiction under Section 70A of the Act should be exercised. In support of his contention, he strongly relied on the decision of the Supreme Court in State of Gujarat v. Patel Raghav Natha and Ors. 10 G.L.R. 992.

8. The above was a case of a petitioner from Rajkot who had at an auction sale held by the State, acquired on or about 22nd September, 1938 agricultural hands admeasuring about 12 Acres and 12 Gunthas. Subsequently some area out of the said land was acquired by the State leaving an area of 2 Acres and 10 Gunthas with the petitioner. On 20th October, 1958 the petitioner applied to the Collector for permission to convert this land to nonagricultural use under Section 65 of the Bombay Land Revenue Code. This petition for permission was first rejected by (he Collector but the Divisional Commissioner remanded the matter to the Collector. On remand the Collector after holding an inquiry granted permission to the petitioner to use the land for non-agricultural purpose by his order dated 2nd July, 1960. Pursuant to this order a Sanand was issued to the petitioner on 27th July, 1960 which was amended on 3rd November, 1960 and again on 1st December, 1960. The grant was subject to the provisions of the Code. Condition No. 5 of the Sanand which permitted use of the land exclusively for constructing residential houses was altered in November, 1960. The Municipal Committee of Rajkot objected to the grant of permission but this objection was over-ruled by the Collector. The Municipal Committee thereupon approached the Commissioner requesting him to exercise his revisional jurisdiction under Section 211 of the Code. The Commissioner after reciting the objections urged on behalf of the Municipality and after inspecting the site observed that the contentions of the Municipality as to the extent of various roads, etc., had been proved beyond doubt. He, therefore, set aside the order of tie? Collector granting permission and further observed that the weight oft evidence discloses that the land did not belong to the petitioner Raghav Natha. It is this order passed by the Commissioner in exercise of revisional jurisdiction on 12th October, 1961 under Section 211 of the Code which came to be assailed in the High Court. The High Court quashed the order of the Commissioner and the matter was carried in appeal to the Supreme Court. Dealing with the contention as regards the period within which the jurisdiction under Section 211 of the Code ought to be exercised, the Supreme Court observed as under at page 997:

It is true that there is no period of limitation prescribed under Section 211, but it; seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

It becomes immediately clear from the above observations made by the Supreme Court that the length of reasonable title would vary from case to case depending on the facts of each case. In that case it is undoubtedly true that the Supreme Court, after referring to the provisions of Section 65 of the Code and particularly the proviso which required the Collector to inform the applicant of his decision for permission within a period of three months failing which the permission was deemed to have been granted, observed that the period of three months was considered ample by the statute for the Collector to make up his mind and beyond that the legislature thought the matter so urgent that permission was deemed to have been granted. Reading sections 211 and 95 together the Supreme Court observed that the revisional powers ought to have been exercised by Commissioner within a few months of the order of the Collector and in the context of the said two provisions the delay of over a year was considered fatal. It is, therefore, obvious that the observations made by the Supreme Court in that case were mainly based on the language of the proviso to Section 65 of the Code but the ratio laid down is that the revisional power to be exercised under Section 211 of the Code must be exercised in reasonable time and the length of reasonable time must be determined on the facts of each case and the nature of the order sought to be revised. It is, therefore, not possible to accede to the contention of Mr. Nanavati based on the aforesaid decision of the Supreme Court that having regard to the provisions of Section 70 of the Act, and Article 131 in the Schedule to the Limitation Act, I should take the view that the reasonable time within which the Charity Commissioner should exercise his powers under Section 70A of the Act would be between sixty and ninety days and not thereafter. It must be remembered that unlike in cases under Section 115, C.P.C., or Section 211 of the Bombay Land Revenue Code, where rights of private parties are settled, and the judgment is in personam, a decision under Section 70 of the Act concerns the members of the public who have an interest in the public trust and having regard to the scheme of the Act and particularly Section 21 thereof, the determination of the matters referred to in Section 19 become final and conclusive not only against the parties who appeared in the inquiry under Section 19 but also against others who were not parties to the said proceedings and who have an interest in the public trust in question. The scheme of the Act clearly indicates that the Charity Commissioner is charged with the duty to supervise the management and administration of the trust, which function necessarily requires him to see that the object and purpose of the trust are carried out. The act of a person who is indifferent to a decision reached under Section 19 of the Act and who does not choose to file and appeal on findings recorded under Section 20 in pursuance of that inquiry, cannot be allowed to seal the fate of the trust in so far as matters referred to in Section 19 are concerned. Even if that party, while at one point of time indifferent to the result of the inquiry, later realises his mistake and brings to the notice of the Charity Commissioner certain revealing facts, which would make the order passed by the Deputy or Assistant Charity Commissioner patently erroneous, the Charity Commissioner would not be helpless merely because of a long time lag and he would be justified in invoking his powers under Section 70A of the Act. It is not the knowledge of the informant that matters but what matters is as to when the Charity Commissioner came to know about the order in respect of which he considered it necessary to resort to Section 70A of the Act. At any point of time when the Charity Commissioner learns about an order passed by the Deputy or Assistant Charity Commissioner he has to apply his mind as to whether the said order is proper or is so patently erroneous as cannot be allowed to stand on the record of the case. Once the Charity Commissioner learns that there is an order made by the Assistant or Deputy Charity Commissioner which is patently erroneous and cannot be supported on facts or law, he cannot be bogged down by the mere fact that considerable time has elapsed since the making of that order. If even after the Charity Commissioner learns about that order he does not take any action with a reasonable period, which will depend on the facts and circumstances of each case and the nature of the order, it may validly be argued that the Charity Commissioner was not justified in invoking the discretional jurisdiction under Section 70A of the Act after a lapse of reasonable time. I am, therefore, of the opinion that no hard and fast rule can be laid down as to what should be considered a reasonable period within which the Charity Commissioner should act under Section 70A of the Act because reasonable period would have to be determined in the context of the facts and circumstances of each case and the nature of the order sought to be revised.

9. This view that I take derives support from a decision of T.U. Mehta, J. in First Appeals Nos. 185 and 188 of 1968 decided on 15th March, 1974. In that case on behalf of the appellants it was contended that the learned Charity Commissioner had erred in reopening a closed matter after the lapse of about seven years and even though no period of limitation was prescribed under Section 70A of the Act, the action taken by the Charity Commissioner is obviously beyond reasonable period of time and, therefore, liable to be quashed. Before the learned Judge strong reliance was placed on a decision of the Division Bench of this Court in Bhagwanji Bawanji Patel v. State of Gujarat 12 G.L.R. 156 which in turn strongly relied on the observations of the Supreme Court in Raghav Natha's case (supra). As I have pointed out earlier, cases under Section 211 of the Land Revenue Code stand on a different footing from cases concerning trust properties. That apart, even in Raghav Natha's case the Supreme Court has stated that the length of reasonable time would depend on the facts of the case and the nature of the order sought to be revised. It is the same view which the Division Bench of this Court took in Bhagwanji's case on which reliance was placed on behalf of the appellants of that case. Pointing out that no public notice was given before the inquiry under Section 19 of the Act terminated and the Deputy Charity Commissioner recorded his findings under Section 20, which became final and conclusive under Section 21 of the Act, T.U. Mehta, J. observed that the ratio laid down in Bhagwanji's case on interpretation of Section 211 of the Land Revenue Code could not apply in deciding whether action is taken by the Charity Commissioner within reasonable time under Section 70A of the Act. In this connection he made the following pertinent observations:

Now, can it be said that in this case the Charity Commissioner who has taken action under Section 70A of the Act was a party to the proceedings initiated by the Deputy Charity Commissioner by an inquiry No. 731/57? This answer is obviously in the negative. There is absolutely nothing in the record of the case to show that the Charity Commissioner had any knowledge about the facts relating to the inquiry No. 741/55. In fact the Charity Commissioner could not have been a party to those proceedings because unlike the Government in revenue proceedings. Charity Commissioner is merely an appellate authority whose attention to the proceedings pending before his subordinate authorities would be drawn only if these proceedings are specifically brought to his notice. In this case it is found that the Charity Commissioner came to know about the nature of the order passed by the Deputy Charity Commissioner in inquiry No. 731/55 only after he was moved by respondent Nos. 1 and 2 of appeal No. 185 of 1963 in revision No. 28/63. It is, therefore, not possible to say that he has exercised his powers under Section 70A of the Act after unreasonably a long period.

This matter was carried before the Division Bench by way of two Letters Patent Appeals Nos. 103 and 104 of 1974. These two appeals were disposed of by a Bench consisting of the learned Chief Justice Section Obul Reddi (as he then was) and my learned brother N.H. Bhatt, J. on 9th December, 1976. Dealing with the contention that the revisional jurisdiction of the Charity Commissioner under Section 70A of the Act was exercised after a lapse of seven years, which was ex-fade unreasonable, the Division Bench after considering the two decisions of the Supreme Court in Raghav Natha's case and the decision of the Division Bench of this Court in Bhagwanji's case observed as under:

No absolute proposition as broadly canvassed by Mr. Oza has been laid down in those two authorities. We had an occasion to consider these authorities in Letters Patent Appeal No. 90 of 1974 decided yesterday, that is on 8-12-76, and we have ruled that the facts and circumstances of each case are to be considered and it is to be decided whether the exercise of revisional powers is proper or not. The subject, matter of enquiry is a public trust in which public in general is interested. No prejudice would be caused by examination of the matter afresh by the Charity Commissioner. We are therefore, unable to agree with Mr. Oza that the exercise of revisional powers by the Charity Commissioner under Section 70A of the Act on that count is such as must be disturbed.

Against this decision, the Supreme Court refused special leave on 6-6-1977 in Spl. Leave Petitions Nos. 2687 and 2688 of 1977.

It becomes obvious from the observations made in the aforesaid two cases that no hard and fast rule can be laid down as submitted by Mr. Nanavati as to what should be considered a reasonable period within which the action should be taken by the Charity Commissioner under Section 70A of the Act on his realising that the Deputy or Assistant Charity Commissioner has passed an order in respect of matters referred to in Section 70 which is patently or ex facie erroneous. I repeatedly inquired of the learned Counsel for the appellants as to what prejudice has been caused to his clients by the Charity Commissioner having ordered a fresh inquiry. Except saying that the fresh inquiry was likely to cause harassment and inconvenience to the appellants, no other prejudice on merits could be pointed out. It was said that the order continuing the directions issued under Section 41A would require the appellants to permit the devotees who are not the followers of Apji Bapa to enter the temple for Darshan till the inquiry is finally disposed of and that would prejudicially affect the rights of the appellants as well as other followers of Apji Bapa. Now that is a question which has to be considered while determining the objects of the trust. The learned Charity Commissioner in order that status-quo may be maintained and there may not be any unseemly scenes in the temple thought it wise to continue the direction till the disposal of the inquiry. It is, therefore, obvious that there is hardly any prejudice worth the name which can be pointed out by the appellants to dissuade the reopening of the inquiry by the Charity Commissioner under Section 70A of the Act.

10. On the facts as stated earlier, we find that respondents Nos. 1 and 2 were concerned about the rights of the beneficiaries so far as the trust properties were concerned and it was for that reason that they instituted a suit, being Suit No. 20/64, with three others on 21st April, 1961 in the court of the learned Civil Judge, Senior Division, Bhuj. So far as respondent No. 3 is concerned, he was equally vigilant and had filed an application for registration of the trust on 1st May, 1964 but had withdrawn it on the next day on realising that the trust was registered. Immediately thereafter in response to public notice issued in the representative suit filed by respondents Nos. 1, 2 and three others in the Civil Court, Bhuj, he along with 22 others applied on 16th June, 1964 for being impleaded as a party to the proceedings. After the trustees filed their written statement on 29th July, 1964 disclosing the fact that the trust was registered under the provisions of the Act, it appears that respondents Nos. 1, 2 and 3 obtained legal advice and applied during the pendency of the suit for reopening the inquiry on 4th March, 1965. It is clear that the suit filed in the Civil Court was subsequjntly dismissed for want of jurisdiction. It is, therefore, obvious that respondents Nos. 1, 2 and 3 were vigilant throughout and they had taken such proceedings as they were advised by their lawyers, for setting the record straight in so far as matters referred to in Section 19 of the Act are concerned. In this state of circumstances merely because they took some time in deciding on the right course it cannot be said that the delay was deliberate and so inordinate as to justify the Charity Commissioner to refuse to act under Section 70A of the Act. But as have stated earlier, the point of time at which respondents Nos. 1, 2 and 3 derived knowledge regarding the registration of the trust is not material but what is material is the point of time at which the Charity Commissioner learned of the order passed by the Deputy Charity Commissioner in inquiry under Section 19 of the Act. There is nothing on the record to show that after the Charity Commissioner learned of that order, he did not take action under Section 70A of the Act for an unreasonably long period so as to debar him from invoking his discretionary jurisdiction. For the above reasons, I do not see any substance in the first contention urged before me by Mr. Nanavati for the appellants.

11. The second contention bears on the language of Section 41A read with sections 70A and 72 of the Act. Section 41A, which was introduced by Gujarat Act 31 of 1962 lays down that subject to the provisions of the Act, the Charity Commissioner may, from time to tine, issue directions to any trustee of a public trust or any person connected therewith to ensure that such trust is properly administered and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust. Every trustee or person to whom these directions are issued, is bound to comply with them under Sub-section (2) of Section 41A of the Act. Section 72(1) says that any person aggrieved by the decision of the Charity Commissioner under Sections 40, 41, 50A, 70 or 70A or on the question whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the court to set aside the said decision. It is thus obvious on a conjoint reading of these two provisions that the direction or instruction issued by the Charity Commissioner under Section 41A of the Act cannot be questioned in an application under Section 72(1) before the District Court. That being obvious, the directions issued at Ex. 21 during the pendency of the revision application before the Charity Commissioner were indisputably not liable to be challenged or questioned before the District Court under Section 72(1) of the Act. The question then is whether these directions become liable to be assailed merely because the Charity Commissioner while disposing of the revision application under Section 70A of the Act ordered that the said directions should continue in force till the fresh inquiry was disposed of by the Deputy Charity Commissioner. Merely because these directions are ordered to be continued by the same order by which a fresh inquiry in respect of certain matters was ordered by the Charity Commissioner in exercise of his power under Section 70A of the Act, it cannot be said that the directions issued cease to be directions under Section 41A of the Act. It is not possible to accede to the contention of Mr. Nanavati that merely because the directions have been ordered to be continued by the Charity Commissioner by the same order by which he ordered a fresh inquiry into certain matters covered by Section 19 of the Act, the said directions merged in the order passed under Section 70A of the Act and, therefore, became liable to be questioned or assailed in an application under Section 72(1) of the Act. The power to issue directions is contained in Section 41A of the Act and where is no such power given to the Charity Commissioner under Section 70A of the Act. All that the Charity Commissioner has done is to state that as he was directing a fresh inquiry in regard to certain matters and as the fresh inquiry was likely to take some time before it is disposed of by the Deputy Charity Commissioner, it is essential that the status quo is maintained to avoid unseemly scenes at the temple premises. It is for that reason that he stated in the order passed under Section 70A of the Act that the duration of his directions issued under Section 41A of the Act shall be extended till the date of the disposal of the fresh inquiry by the Deputy Charity Commissioner. The directions came to be issued under Section 41A of the Act and merely because the duration of the directions was extended by the Charity Commissioner while disposing of the revision application, it cannot be said that the directions were issued under Section 70A of the Act and not under Section 41A of the Act. The directions could be issued by the Charity Commissioner only under Section 41A of the Act and merely because the life of directions was extended while disposing of the revision application it cannot be said that it ceased to be a direction under Section 41A of the Act. The learned District Judge was therefore right in holding that in an application under Section 72(1) of the Act such directions could not be assailed.

12. Mr. Nanavati, the learned advocate for the appellants, submitted, in view of the observations made by the Division Bench of this Court in Hiragar Dayagar and Anr. v. Ratanlal Chunilal and Ors. 13 G.L.R. 181, that a certificate of fitness to appeal may be issued. Without going into the question whether such a certificate is necessary, I think, having regard to the facts and circumstances of this case, no such certificate needs to be granted. I do not think that the case can be certified to be fit for appeal. Hence this request of Mr. Nanavati is rejected.

In the result, therefore, the appeal fails and is dismissed. The appellants shall pay the costs of the Charity Commissioner in one set and the costs of the respondents who have entered appearance through Mr. S.B. Vakil in a separate set.


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