Bombay High Court
Balaji Son Of Bhikaji Kapale And Anr. vs Punjaji Son Of Balaji Tayade And Ors. on 2 August, 2001
Equivalent citations: 2002(1)BOMCR155, 2002 A I H C 603, (2001) 4 MAH LJ 821, (2002) 1 MAHLR 352, (2001) 4 ALLMR 773 (BOM), (2002) 1 BOM CR 155
Author: A.B. Naik
Bench: A.B. Naik
JUDGMENT A.B. Naik, J.
1. Rule. Rule taken up for final hearing with the consent of the parties.
2. A short, but important question is raised in this petition filed by the petitioners is "Whether the Asstt. Charity Commissioner has jurisdiction to entertain an application to set aside ex-parte order passed by him in the enquiry under section 22 of the Bombay Public Trusts Act?"
3. In order to appreciate the above said question, it is necessary to refer the facts which emerge from the record. The Trust, by name "Jijamata Shikshan Sanstha, Sindhkhedraja, having No. PTR F-38(BLD) (hereinafter referred to as "Trust") is registered under the provisions of the Bombay Public Trusts Act (hereinafter referred to as "the Act"). According to the Rules & Regulations of the Trust, the Trust is managed by the Managing Committee, and the members of the Managing Committee are to be elected by the members of the Trust as per the provisions of Rules and Regulations. It is revealed from record that there are two groups in the Trust claiming to be in-charge of the management of the Trust. As no elections were held for a considerable time, there was an occasion for the Asstt. Charity Commissioner to pass an order under section 41-A of the Act. The said order under section 41 was passed on 7th September, 1999, whereby the Asstt. Charity Commissioner has issued the following directions:---
"1. Issue directions to the non applicant to call and convene the general meeting of the trust for election of the managing committee and the office bearers of the managing committee should be elected as per Rules and Regulations of the Trust.
2. Issue directions to the non applicant to submit change report after the elections of the managing committee as early possible.
3. Issue directions to the non applicant to maintain the account of the trust properly and to submit the audit report of the trust since year 1995-96 towards."
The said directions gave rise to the present dispute. It is the case of the petitioners that according to the directions issued by the Asstt. Charity Commissioner, they have convened a General Body Meeting on 30th September, 2000, whereby the General Body elected the Managing Committee members. It is alleged in the petition that other group, i.e., the present respondents, also convened a General Body Meeting and held the elections in the General Body Meeting which was held on 29th September, 2000. Pursuant to elections which were held on 30th September, 2000, the group headed by the petitioner filed a Change Report under section 22 of the Act, which was numbered as Change Report No. 640 of 2000. Another group on the basis of elections held on 29th September, 2000, filed a change report under section 22, which was numbered a Change Report No. 641 of 2000. It is the contention of the petitioners that in the Change Report filed by the respondents herein, being Change Report No. 641 of 2000, the petitioner No. 1 filed a caveat; but no notice was given either to the petitioner or his Advocate who has lodged a Caveat in Enquiry No. 641 of 2000 filed by another group. The Asstt. Charity Commissioner thereupon proceeded to hear the Change Report No. 641 of 2000 by issuing notice to the concerned. The present petitioner No. 1 was the respondent in Change Report No. 641 of 2000. The Asstt. Charity Commissioner, Buldana, after issuance of notices to the parties, conducted an enquiry and found that though notices were sent to the petitioner No. 1, who was respondent, he did not remain present and accordingly by the order, dated 25th April, 2001, the Asstt. Charity Commissioner accepted change report submitted by the present respondents.
4. According to the petitioner No. 1 that he was not aware about the progress of the Enquiry Application No. 641 of 2000. It is contended by the petitioner No. 1 that Enquiry Application No. 640 of 2000 filed by the present petitioner No. 1 is not yet decided.
5. As stated above, the Asstt. Charity Commissioner, Buldana, by order, dated 25th April, 2001, accepted the Change Report and disposed of Enquiry No. 641 of 2000. When this fact of disposal of the Application No. 641 of 2000 came to the knowledge of the petitioner No. 1, the petitioner No. 1 on 23rd May, 2001 filed an application for setting aside ex parte order, dated 25th April, 2001. In the said application, the petitioner No. 1 contended that though it is stated in the order of the Asstt. Charity Commissioner, that the notice of Enquiry No. 640 of 2000 is served on the petitioner, as a matter of fact, such notice was never served on him, either personally or to his Advocate. As a matter of fact, no notice is given and served on him. The document produced on record by the adversaries of the petitioners before the Asstt. Charity Commissioner does not bear his signature. The acknowledgements, which are filed on record before the Asstt. Charity Commissioner, are the forged documents. It is contended before the Asstt. Charity Commissioner that as notices were not served to the petitioner No. 1 at all; but the adversaries of the petitioner No. 1 have created evidence to show that notice of enquiry was sent to the petitioner No. 1. The petitioner No. 1 also contended that he has filed a caveat in the matter, but no notice was given at any time before passing of the order. Therefore, he prayed that ex parte order accepting the Change Report be set aside and the enquiry be conducted de nova by giving an opportunity to petitioner No. 1 to contest the Change Report No. 641 of 2000.
6. On the application filed by the petitioner No. 1 for setting aside ex parte order, dated 25th April, 2001, the respondent No. 1 filed his reply on 4th June, 2001, whereby he denied the contentions raised by the petitioner No. 1. He contended that the petitioner No. 1 was served with the notices and he was aware of the proceedings, that the documents showing the service of notices placed on the record are not forged documents and those are genuine documents. It is further contended that the application, which is filed, is not tenable. It is contended that in spite of the notice of hearing of Enquiry Case No. 641 of 2000, the petitioner No. 1 purposely remained absent. It is contended that from the record it is clear that the petitioner No. 1 was served with notices and as such it is not necessary to set aside the ex parte order. The respondent No. 1 has specifically contended in the reply regarding tenability of the application and it is contended that:---
"18. The Bombay Public Trust Act, nowhere provides for setting aside the order in such a manner. There is no provisions in Bombay Public Trust Act for setting aside the order as sought. The application is not maintainable. It is not bona fide. It is after thought and has been filed with an ulterior motive to create hurdles in the smooth working of the Trust."
Therefore, the respondent prayed that the application be rejected as not tenable. One more aspect is required to be considered here at this stage only. It was faintly suggested by the respondent that though the order is passed ex parte, the petitioner, who was the respondent in the proceedings, should have exhausted the remedies by resorting to the remedies that are available to an aggrieved party under section 72, sections 70, 70-A or section 72 of the Act.
7. The learned Asstt. Charity Commissioner, Buldana, heard the parties to the application for setting aside ex parte order. The petitioner No. 1 before the Asstt. Charity Commissioner contended that though there was no specific provision made under the Act and Rules for setting aside ex parte orders as such, but considering the specific provisions that are incorporated under the Act, the provisions of the Code of Civil Procedure Code will be applicable to the enquiry held by Asstt. Charity Commissioner in the proceedings initiated under section 22. It was specifically contended that by necessary implication and proper interpretation of section 68 of the Act and Rule 7 of the Bombay Public Trusts Rules (hereinafter referred to as "the Trust Rules"), provisions of Civil Procedure Code are made applicable and as such the provisions contained in the Trust Rule 7, and Rule 13 of Order-IX, Civil Procedure Code, are applicable and in view of these provisions, the application, which was filed, was maintainable. This submission did not find favour with the Asstt. Charity Commissioner. The learned Asstt. Charity Commissioner rejected the above said contentions, holding that the provisions relied on by the petitioners are not applicable and he also took a view that the petitioner No. 1 can challenge the orders by resorting to the remedies under section 72 or section 70-A of the Act to get the things settled and accordingly, further he held that after passing of the order, dated 25th April, 2000, he become a functus officio and, as such the application is not tenable. The same came to be rejected on 11th June, 2001. The said Order is challenged in the present writ petition.
8. I heard Shri Khapre, learned Counsel for petitioners, Shri Gordey, learned Counsel for respondents 1 and 2 and Shri Patel, Asstt. Government Pleader for respondents 3 and 4 at length. Shri Khapre, learned Counsel for petitioners, contended that the Asstt. Charity Commissioner has committed an error in rejecting the application for setting aside ex-parte order. Shri Khapre contended that rejection of the application by the Asstt. Charity Commissioner is contrary to the provisions contained in the statute. The application came to be rejected on the misconceived notions adopted by the Asstt. Charity Commissioner in holding that there is no provision under the Bombay Public Trusts Act to that effect. Shri Khapre, learned Counsel for petitioners, in order to substantiate the above contentions, relied on the provisions of the Act and the Trust Rules. Shri Khapre contended that section 84 of the Act empowers the State Government to make Rules for the purpose of carrying out into effect all the provisions of the Act. Section 84(1)(h) provides for framing Rules for holding an enquiry under section 22. In pursuance of the rule-making power under section 84, the Rules called "Bombay Public Trusts Rules" are framed and the relevant Rule for the purpose of the present writ petition is Rule 7. Rule 7 provides the manner in which the enquiry is to be conducted. The said Rule makes a provision for a procedure to be adopted for conducting an enquiry under section 22. In the Trust Rule 7, it is stated that "except as otherwise provided in the Act and these Rules", enquiries under section 22 shall be held as far as possible in accordance with the procedure prescribed for a trial of the suit under the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as "Act, 1887"). This Rule further provides that in any enquiry, a party may appear in person or by his recognised agent or by a pleader duly appointed to act on his behalf. Shri Khapre, relying on this provision, contended that the provisions of Act, 1887 are brought in the statute, (i.e., Rules) by incorporation. He contended that Chapter-IV of the Act, 1887 provides for practice and procedure. Section 17 of Act, 1887 makes a provision for application of Civil Procedure Code for all the suits cognizable by the Court under 1887 Act. Section 17 of 1887 Act runs as under:---
"17(1). The procedure prescribed in the Code of Civil Procedure, 1908, shall, save in so far as is otherwise provided by that Code or by this Act, be the procedure followed in a Court of Small Causes in all suits cognizable by it and in all proceedings arising out of such suits:
Provided that an applicant for an order to set aside a decree passed ex parte or for a review of judgment shall, at the time of presenting his application, either deposit in the Court the amount due from him under the decree or in pursuance of the judgment, or give such security for the performance of the decree or compliance with the judgment as the Court may, on a previous application made by him in this behalf, have directed.
(2) Where a person has become liable as surety under the proviso to sub-section (1) the security may be realised in manner provided by section 145 of the Code of Civil Procedure, 1908."
Shri Khapre contended that though section 17 has used the word "Court", the same word "Court" cannot be construed as a Court defined under the Act. Shri Khapre, learned Counsel for petitioners, contended that by virtue of Rule 7 of the Trust Rules, the Act, 1887 is bodily incorporated under the Trust Rules. Once a particular statute is incorporated by reference, all the provisions are bodily lifted and brought into another and the procedure that is provided by virtue of section 17 of the Act, 1887 for a suit is automatically made applicable to the enquiries under section 22 of the Act. The learned Counsel contended that once the Code of Civil Procedure, 1908 is made applicable to the enquiries under section 22, the provisions of Rule 13 of Order-IX automatically get attracted and a party against whom an ex parte order is made or judgment is delivered is entitled to file an application for setting aside the ex parte order or judgment. Therefore, the learned Counsel contended that the view of the learned Asstt. Charity Commissioner that there is no provision for making an application for setting aside the judgment or order made ex parte is erroneous and the Asstt. Charity Commissioner has committed an error apparent on the face of record in not considering the provisions of Rule 7 of the Trusts Rules read with section 17 of the Act, 1887. Therefore, he contended that as there is a provision for setting aside the ex parte order, the learned Asstt. Charity Commissioner should have exercised his jurisdiction and should have heard the matter on merit by dealing with the contentions and counter-contentions raised by the parties to the application.
9. Shri Khapre further contended that serious allegations are made pointing out therein that a fraud is played on the Asstt. Charity Commissioner by producing the forged acknowledgment receipt showing that the notice of Enquiry No. 641 of 2000 was served on the petitioner No. 1. He contended that the Asstt. Charity Commissioner has every right and authority to enquire into the allegations of fraud. As the Asstt. Charity Commissioner has not considered this aspect as all, he submitted that the order suffers from several infirmities. He contended that the Asstt. Charity Commissioner has jurisdiction to hear an application and enquire into it he is invested with the jurisdiction by virtue of the provisions of the Trust Rules, the Asstt. Charity Commissioner failed in his jurisdiction not to decide the application on merits. Shri Khapre contended that the statutory Rules framed under section 84 of the Act take in its sweep the provisions of 1887 Act and the procedure for trial of the suit in the nature of Small Causes will have to be made applicable as it is. By virtue of provisions of section 17 of the 1887 Act, Civil Procedure Code is made applicable without any reservation. Therefore, he contended that the application, which was filed, was an application as contemplated under Order-IX, Rule 13, Civil Procedure Code. Shri Khapre, learned Counsel for petitioners, contended that the Asstt. Charity Commissioner has proceeded on a wrong assumption that application under Order-IX, Rule 13, Civil Procedure Code, is to be made for setting aside a decree, and construed the ex parte order as not a decree. He submitted that though under Rule 13 of Order-IX the word "decree" has been used, the same has to be read in the context in which an application is made for setting aside the order passed by the Asstt. Charity Commissioner under section 22. He submitted that in Enquiry Application No. 641/00, the present petitioner was the respondent and the Asstt. Charity Commissioner, on the assumption that notices were served on the petitioner No. 1 has decided the matter on merits by accepting the Change Report. Therefore, he submitted that though the word "decree" is used under Rule 13 of Order-IX, it should also be construed as judgment and order in a proper perspective and in proper circumstances. Therefore, he contended that the entire approach of the learned Asstt. Charity Commissioner is not judicious, but according to him, is against the well recognised principles of law and Civil Jurisprudence.
10. Alternatively, Shri Khapre contended that by applying the provisions of General Clause Act, it will have to be considered that authority, which decides the matter ex parte, has an implied authority for setting aside the said ex parte order unless the statute prohibits to exercise such power. He contended that even after the order was passed by the Asstt. Charity Commissioner, the Asstt. Charity Commissioner still retains seisin and the learned Asstt. Charity Commissioner is wrong in observing that after passing of the order, dated 25th April, 2001, he has become a functus officio, is incorrect in view of Order-L, Civil Procedure Code, which provides for application of the provisions of the 1887 Act. According to Order-L, the provisions specified in the said Order shall not extend to courts constituted under the Act, 1887. The provisions, which shall not be applicable, are mentioned in the said Order; but there is no reference to Order-IX in Order-L. Therefore, he contended that the provisions of Order-IX are applicable to the courts constituted under the Act, 1887. Under Order-L, the provisions are specifically made in respect of courts constituted under the 1887 Act; but even though the Asstt. Charity Commissioner is not a Court constituted under the provisions of the Act, 1887, still by virtue of Rule 7 of the Trusts Rules, read with section 17 of the Act, 1887 entire Civil Procedure Code is made applicable. And the view taken by the Asstt. Charity Commissioner that there is no provision in the Act to make applicable for setting aside ex parte order is ex facie illegal. Therefore, he contended that the order cannot sustain. Shri Khapre, in order to substantiate his above-said contentions regarding the legislation by incorporation, relied on the judgment of the Apex Court Rajasthan State Road Transport Corporation, Jaipur v. Poonam Pahwa (Smt.) and others. The questions before the Apex Court was whether the procedure contemplated under Rule 1 of Order-XXI, Civil Procedure Code, will be applicable to the Awards passed under section 100-C and section 111-A of the Motor Vehicles Act, 1939. The Apex Court held that the procedural law is made applicable by the principle of legislation by reference. The Apex Court, therefore, observed:---
"Therefore, there is no difficulty to apply the underlying principles under Order 21, Rule 1 Civil Procedure Code in executing the award of compensation passed by the Motor Accidents Claims Tribunal and the Tribunal must be held to be competent to invoke the beneficial provisions of Order 21, Rule 1 Civil Procedure Code."
Shri Khapre also invited my attention to the judgment Satnam Verma v. Union of India, and the judgment reported in 1976 U.C.R. 282 : 1976 Maharashtra Law Journal 806, Samastha Lad Vanjari Samaj v. Waaman Kisan Sanap and others. The facts before the Apex Court in Satnam Verma's case were, that an ex-parte award was made under the provisions of Industrial Disputes Act, 1947 and published in the Official Gazette and an application for setting aside the ex parte award came to be filed before the Labour Court, and the Labour Court, before whom the application for setting aside ex parte award was made, rejected the application for setting aside ex parte award on the ground that once an award is published in the Official Gazette, even if it be an ex parte one, the Labour Court has no jurisdiction to entertain an application for setting aside such award. This order of the Labour Court was challenged before the High Court of Punjab & Haryana. The High Court has rejected the writ petition in limine and that Order was a subject matter of challenge before the Apex Court. The Apex Court in that case has held that:---
"7. In the case of Grindlays Bank Ltd., the specific contention canvassed was whether where an ex parte award is made and published in the Official Gazette, the Industrial Tribunal has the jurisdiction to entertain the application for setting it aside, if sufficient cause is shown for absence of appearance on the date on which an ex parte award was made and it was answered in the affirmative. This Court referred to Rule 22 and Rule 24(b) of the Industrial Disputes (Central) Rules, 1957 and held that the Industrial Tribunal had the power to pass an order setting aside the ex-parte Order. In reaching this conclusion, the Court observed that if the Tribunal has the power to proceed ex-parte as provided by Rule 22, it should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The Court then proceeded to examine the scheme of the relevant Rules and observed that Rule 22 unequivocally confers jurisdiction on the Tribunal to proceed ex parte. The Tribunal can proceed ex parte if no sufficient cause for absence of a party is shown. This power was interpreted to comprehend that if sufficient cause was shown which prevented a party from appearing, then in the terms of Rule 22, the Tribunal will have had no jurisdiction to proceed ex-parte and consequently, it must necessarily have power to set aside the ex parte award. The Court in terms observed that the power to proceed ex parte is subject to the fulfilment of the condition laid down in Rule 22 and therefore, it carried with it the power to enquire whether or not there was sufficient cause for the absence of a party at the hearing. The Court then referred to Rule 24(b) and held that where the Tribunal or other body makes an ex parte award, the provisions of Order-IX, Rule-13 of the Code of Civil Procedure are clearly attracted and it logically follows that the Tribunal was competent to entertain an application to set aside an ex parte award. The Court then proceeded to examine the contention that once an award is published in the Official Gazette, be it an ex parte one, does the Tribunal become functus officio and therefore, will have no jurisdiction to set aside the ex parte award and that as contended before us the appropriate Government alone could set it aside and rejected it holding that no finality is attached to an ex parte award because it is always subject to its being set aside on sufficient cause being shown. The Court held that the Tribunal had the power to deal with an application properly made before it for setting aside the ex parte award and pass suitable orders. We have extensively referred to this decision because it effectively answers all the limbs of the contention canvassed before us and which unfortunately, found favour with the Labour Court and the High Court."
11. From the above said observation of the Apex Court, it is clear that the Asstt. Charity Commissioner has passed an ex parte order under his jurisdiction vested in him by virtue of section 22 of the Act read with Rule 7 of the Trust Rules. Once it is found that the Asstt. Charity Commissioner has the jurisdiction and authority to proceed ex parte, it should be also considered to be endowed with such ancillary or incidental powers as are necessary to discharge its function effectively for the purpose of doing justice between parties. By the principle of harmonious construction of section 22 of the Act, read with Rule 7 of the Trust Rules incorporating the provisions of 1887 Act, it has to hold that the said provisions unequivocally confer the jurisdiction on the Asstt. Charity Commissioner to set aside the ex-parte Orders made by him in the enquiries that are being held under the provisions of the Act. In view of my conclusion above, I feel it not necessary to refer the judgment of this Court relied on by Mr. Khapre, the learned Counsel for petitioners.
12. On the other hand, Shri Gordey, learned Counsel for respondents 1 and 2, contended that the view taken by the Asstt. Charity Commissioner on the facts of this case is correct. He contended that there is no specific provision for making the procedure as contemplated in the Civil Procedure Code applicable to the matters before the Asstt. Charity Commissioner. He contended that the Civil Procedure Code applies only to the courts. He contended that section 73 of the Act enumerates the powers of the Officers holding enquiries under the Act they have the powers of the Civil Court relating to the items stated in the section. He further contended that as the application filed by the petitioner No. 1 before the Asstt. Charity Commissioner was not tenable and the Asstt. Charity Commissioner was right in holding that the petitioner No. 1 has an alternate remedy for challenging the order passed under section 22 by filing an appeal under section 70 of the Act. Shri Gordey, learned Counsel for respondents, contended that section 70 provides for an appeal to the Charity Commissioner, but it also specifies the scope of the jurisdiction of the Charity Commissioner. He contended that instead of filing the application for setting aside the ex parte order, the petitioners should have filed an appeal before the Charity Commissioner under sub-section (3) of section 70 of the Act. He contended that the Charity Commissioner has vested powers in deciding the appeal, which are enumerated in sub-section (3). He contended that the statute has given wide appellate powers to the Charity Commissioner, who has jurisdiction to either annul, reverse, modify or confirm the finding or order of the Charity Commissioner, further he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional evidence as the Charity Commissioner may think necessary or the Charity Commissioner may himself take such additional evidence. Therefore, he contended that had the petitioners filed an appeal before the Charity Commissioner under sub-section (3) of section 70, the Charity Commissioner would have considered these aspects, including whether the notice is properly served on the petitioner or on the document of service, whether the signatures of the petitioners are forged or not. Therefore, the Asstt. Charity Commissioner was right in rejecting the application as not tenable. He further submitted that apart from the provisions under section 70, section 70-A provides for a Revision to the Charity Commissioner. Even if the petitioners have not filed an appeal, they should have filed a Revision Application under section 70A of the said Act. Shri Gordey further contended that the order passed by the Asstt. Charity Commissioner and on appeal under section 70 by the Charity Commissioner, the party aggrieved has further remedy to file an application as contemplated under section 72(3) to the Civil Court and further an appeal under section 72(4) against the order of Civil Court to the High Court. He, therefore, contends that on the combined reading of sections 70 and 72, the Asstt. Charity Commissioner was right in observing that petitioner No. 1 should have filed an appeal. This contention is not sound and cannot be accepted.
13. If this contention of the learned Counsel is accepted, it will lead to multiple proceedings. There will be delay in completing the enquiry. The view, which I have taken above, will always minimize the delay. If the ex parte order is set aside, the Asstt. Charity Commissioner has to decide the matter on merit, if he rejects the application, the aggrieved party has further right of challenging the order by resorting to the provisions of sections 70, 70-A or section 72 of the Act. If the contention of the learned Counsel is accepted, it will have to be held that an appeal, application will also lie against the ex parte orders, and in that event, the Appellate Authority has to undertake the job of the original authority, to find out the fact that caused for passing ex parte order. Then the Appellate Authority has to exercise its jurisdiction as contemplated under section 70(3) of the Act. In the facts and circumstances of this case, it will not be proper to hold that the appeal or application can be filed either under sections 70, 70-A or section 72 of the Act. Hence the contention of the learned Counsel Shri Gordey has to be rejected.
14. Shri Gordey submitted that section 76 provides for the application of Civil Procedure Code. Relying on section 76, the learned Counsel contended that the Code of Civil Procedure Code is made applicable only to all the proceedings before the Court under the Act. He further contended that the word "Court" is defined under sub-section (4) of section 2. The word "Court" means in the Greater Bombay, the City Civil Court and elsewhere, the District Court. Therefore, he contended that when a specific provision is made under the statute, the Rules, which were framed under section 84 of the Act, cannot override the specific provision contained under the provisions of the Act. Shri Gordey contended that, that Rule 7 starts with the phrase "except as otherwise provided in the Act". Considering this, Shri Gordey, the learned Counsel for respondents 1 and 2, contended that what was provided under the Act is the application of Civil Procedure Code under section 76 and the powers of the Civil Court to be made applicable to the enquiries under this Act. According to learned Counsel, by virtue of section 73, the Officers holding enquiries under the Act are vested with the powers of the Civil Court in respect of (1) proof of facts by affidavits, (2) summoning and enforcing the attendance of any person and examining him on oath, (3) ordering discovery and inspection, and compelling the production of documents, and (4) issuing of commissions. He, therefore, submitted that a combined reading of sections 73 and 76 along with the provisions of Rule 7 would make it clear that the procedure contemplated under Civil Procedure Code is made applicable to the specified subjects in section 73. Shri Gordey, learned Counsel for respondents 1 and 2, further submitted that on a proper analysis of that Rule 7, it is clear that the Rule-making authorities have used two specific phrases in that Rule 7, which, according to him, are important to interpret Rule 7 in order to consider the object of the said Rule. He specifically emphasized on the following two sentences used in Rule 7:-
1) "Except as otherwise provided in the Act", and
2) "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 Courts Act and elsewhere under the Provincial Small Cause Courts Act, 1887."
Therefore, he submitted that these two phrases in the Rule make it very clear that Act, 1887 which is made applicable by incorporation, cannot be held to be applicable to the enquiries under section 22 of the Act. He contended that though section 17 of the 1887 Act provides for application of Civil Procedure Code to the suits to be tried under the provisions of the 1887 Act, he contended that section 17 also used the phrase "in so far as is otherwise provided by that Code or by this Act". Therefore, the provisions of Order-IX, Rule 13, Civil Procedure Code, cannot be held to be applicable to the proceedings initiated and enquired under the Act. He further contended that the petitioner No. 1 has not made out any case for setting aside ex parte order. He contended that the Assistant Charity Commissioner was right in rejecting the application, holding that after the order, he has become functus officio and he has no jurisdiction to entertain an application. He further contended that Rule 7 and section 17 have to be read in the context with the provisions of section 73 of the Act. Therefore, he contended that the Asstt. Charity Commissioner was right in rejecting the said application. This contention sounds to be attractive, but on the interpretation of the Act, Trust Rules and 1887 Act, this contention cannot be accepted. The contentions also will have to be tested on the law laid down by the Apex Court in Satnam Verma's case which I had quoted above. As the contentions of the learned Counsel run contrary to the law laid down by the Apex Court, it will be difficult for me to accept the said contentions.
15. Shri Patel, learned Asstt., Government Pleader, appearing for the Asstt. Charity Commissioner adopted the submissions made by Shri Gordey, learned Counsel for respondents 1 and 2.
16. Having given my anxious consideration to the submissions made by the learned Counsels for the parties, it has to be considered in the light of the facts of the present case. It is accepted by both the sides that two separate Change Reports were submitted one by the group headed by the petitioner No. 1 and the other one by the respondent Nos. 1 and 2. It is also a fact that the petitioner No. 1 has filed a caveat and engaged an Advocate. It is also a fact that after filing the caveat, no notice was given to the Advocate, but the notice was sent to the petitioner No. 1 by Registered Post, which, according to the petitioner No. 1 was not served on him, but some of the adversaries of have forged his signature and produced the acknowledgment before the Asstt. Charity Commissioner. Therefore, what was contended before the Asstt. Charity Commissioner was that a fraud was played on the authority and the respondents have obtained a favourable order, i.e., Change Report in their favour. If such a case of serious allegations of fraud comes before the Asstt. Charity Commissioner, can the Asstt. Charity Commissioner not consider the seriousness of the matter? In my opinion, considering the provisions of the Rule 7 and section 17 of the 1887 Act, the provisions of Rule 13 of Order-IX, Code of Civil Procedure, are necessarily to be made applicable. To drive a person to file an appeal and further proceedings, as contended by Mr. Gordey, learned Counsel for respondents 1 and 2, will be hazardous and against the specific provisions made in the statute. One has to look into the statute as a whole and the enquiry, that is being conducted by the Asstt. Charity Commissioner under section 22, is in the nature of a judicial enquiry. The Asstt. Charity Commissioner in his jurisdiction under section 22 has to consider not only the effect of change, but he has to find out whether the change is legally effected. In the case at hand, there were serious allegations and counter-allegations by the parties regarding holding of a General Body meeting and holding of elections of the Managing Committee. Therefore, in my view, the Asstt. Charity Commissioner has jurisdiction to exercise his powers to enquire into the legality of the change. Without considering whether the change is legally made, the Asstt. Charity Commissioner has proceeded to decide the application under section 22, holding that the petitioner No. 1 was properly served. When the petitioner No. 1 has challenged this fact, it was necessary for the Asstt. Charity Commissioner to decide the application on its merits. Therefore, in my view, the provisions of the Civil Procedure Code, by virtue of section 17 of the 1887 Act, as incorporated in that Trust Rule 7, are made applicable and in view of the application of the provisions of Civil Procedure Code, the Asstt. Charity Commissioner has jurisdiction and authority to entertain the application for setting aside ex parte order by invoking the jurisdiction under Order-IX, Rule 13, Civil Procedure Code. In the present case, the Asstt. Charity Commissioner has failed to do that. Therefore, in my opinion, Shri Khapre, the learned Counsel for petitioners, is right in his submission that the Asstt. Charity Commissioner has jurisdiction to entertain the application and should have exercised his jurisdiction for making an enquiry into the contentions raised by the petitioner No. 1 in the application. Therefore, I am of the view of that the Order, dated 15th June, 2001, below Exh. 1 in Misc. Application No. 269 of 2001 in Enquiry No. 641 of 2000 cannot sustain. The same is required to be set aside and accordingly it is set aside.
17. Shri Gordey, learned Counsel for petitioners, has in the alternative, made a submission that as the order passed in Enquiry Case No. 641 of 2000 is under section 22 of the Bombay Public Trusts Act, the petitioners have an alternative remedy to file an appeal by invoking the provisions of section 70 of the Act. Therefore, he contended that there is efficacious remedy available to the petitioners and the petitioners should be directed to file an appeal against the order, dated 25th April, 2001. It is difficult to accept this contention, because the application for setting aside ex parte order is filed before the Asstt. Charity Commissioner by the petitioner No. 1 and the Asstt. Charity Commissioner has erroneously rejected the application, holding that there is no provision under the Act to set aside the ex parte order. What is challenged in this petition is the order passed on the application filed by the petitioner No. 1 for setting aside the ex parte order. In view of this aspect, it is not necessary for me to direct the petitioners to file an appeal under section 70 of the Act. Therefore, the contention of Shri Gordey, learned Counsel for respondents 1 and 2, is rejected.
18. The learned Counsel Shri Gordey, contended that considering the provisions of sections 76 and 73 of the Act, it is clear that the scope of inquiry and the procedure that is adopted, is provided under the statute itself. He contended that considering these two provisions and considering the provisions of Rule 7 of the Bombay Public Trusts Act, Rules framed by the Rule-making authority is really beyond the scope of the Rule-making power. This contention has to be considered in detail. It is true that section 73 of the Act, which describes the powers of the Officers, holding the enquiry under the Act. Section 73 further makes it clear that while holding the enquiry, the Officers shall have the powers of the Civil Court in the matters enumerated in this section. As far as provisions of section 76 are concerned, those provisions, admittedly, apply to the proceedings before the Court, i.e. Court, as defined under section 2(4) of the Act. On close scrutiny of these two sections, it is clear that these two sections relate to the powers of the Officers and application of Civil Procedure Code before the Court. Section 73, therefore, cannot be construed to mean that the authorities, holding enquiry under the Act, shall have only those powers enumerated under section 73. Further this contention of the learned Counsel has to be considered with the legislation as provided in section 84, i.e. Rule-making powers. Under section 84, series of subjects are mentioned, for which, the Rule-making authority can frame Rule. As stated hereinabove, section 84(1)(h) authorises the State Government to make Rules for the manner of holding the enquiry under section 22. Therefore, it is clear that so far as enquiry under section 22 is concerned, Act itself confers powers to make Rules and it was left open to the Rule making authority to frame Rules in the manner, in which the enquiry under section 22 is to be conducted and the Rule making authority, in the fitness of things, have brought that while making enquiry under section 22 and other sections of the Act, the procedure of enquiry, that is to be followed, as provided in the Act. In view of these statutory provisions made under the Act, itself, which provide two sets of procedures that are required to be followed at the time of initial enquiry and when the proceedings comes before the Court, on an application that are provided under the provisions of Act. In view of this clear distinction made in the Act itself, it is not possible for me to accept the contention of Shri Gordey, the learned Counsel for respondents that Rules, which are framed, are contrary to the provisions of sections 73 and 76 of the Act. I am of the firm view that the Rules of the Trust Rules particularly, Rule 7 cannot be termed to run contrary to the provisions of statute, as there is no inconsistency and there is no specific provision made in the Act, regarding manner, in which, the enquiry is to be conducted. Therefore, in my opinion, the Assistant Charity Commissioner, was not right when he observed that there is no procedure provided under the Act for setting aside the ex parte order. Combined effect of all the statutory provisions, referred to above, I am of the view that there is provision made under the Rules for filing an application for setting aside the ex parte order, and as such, the Assistant Charity Commissioner has not considered these aspects properly and by reading the order it is clear to me that the learned Asstt. Charity Commissioner has not even taken into consideration the provisions and effect of Rule 7 of the Trust Rules. In this view of the matter, the order passed by the Assistant Charity Commissioner, cannot sustain and same has to be quashed and set aside.
19. As the order passed by the Assistant Charity Commissioner on the application for setting aside ex parte order is now being set aside, since there is no enquiry conducted by the Asstt. Charity Commissioner into the allegations of the petitioner No. 1 regarding service of the summonses of the enquiry, it is necessary to remand the matter to the Asstt. Charity Commissioner, Sub-region, Buldana, to decide the application filed by the present petitioner No. 1 for setting aside ex parte order on its own merits by giving proper opportunity to the parties concerned. As the order of setting aside ex parte judgment in Application No. 641 of 2000 is being set aside and the matter is being remanded for enquiry on the application filed by the petitioners, the operation of the Order, dated 25th April, 2001, passed by the Asstt. Charity Commissioner in Enquiry Application No. 641 of 2000 is required to be stayed and accordingly the effect of that order is stayed till the Asstt. Charity Commissioner decides Misc. Application No. 269 of 2001 filed by the petitioner No. 1. Parties are at liberty to file application for interim relief during pendency of the Misc. Application No. 269 of 2001, if occasion arises.
20. The Asstt. Charity Commissioner, Buldana, now will have to decide Misc. Application No. 269 of 2001 by giving opportunities to both the parties to prove their respective cases. The Asstt. Charity Commissioner shall decide Misc. Application No. 269 of 2001 within three months from the date of receipt of a writ of this Court.
The order dated 15th June, 2001, passed on Misc. Application No. 269 of 2001, is set aside.
Rule is made absolute. No order as to costs.