Bombay High Court
Shri. Andeo Vithoba Dongre And Another vs The Deputy Charity Commissioner Nagpur ... on 10 February, 2017
Author: Prasanna B. Varale
Bench: Prasanna B. Varale
1 jg.wp6078.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6078 OF 2015
(1) Shri Andeo Vithoba Dongre
Aged about - 70 years, Occu - Retired,
R/o - Plot No. 456-A, New
Nandanvan Layout, Nagpur-9.
(2) Mrs. Birjula Pandurang Meshram
Aged about - 68 years, Occu - Retired,
R/o - Plot No. 255, Kukde Layout,
Rameshwari, Nagpur-68. ..... Petitioners
// Versus //
(1) The Deputy Charity Commissioner,
Nagpur having Office Near
G.P.O., Civil Lines, Nagpur.
(2) Mr. Sanket S/o Anil Dongre
Aged about - 25 yrs.,
R/o - 110, Kunjilal Peth,
Rameshwari Road, Nagpur. ..... Respondents
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Shri Mahesh Masodkar and Mrs. Mukta Ranade, Advocates for the
petitioners
Shri A. M. Balpande, AGP for the respondent no. 1
Shri S. D. Abhyankar, Advocate for the respondent no. 2
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CORAM : PRASANNA B. VARALE, J.
DATE : 10/02/2017.
ORAL JUDGMENT
Heard Shri Masodkar, learned counsel for the petitioners, Shri Abhyankar, learned counsel for the respondent no. 2 and Shri Balpande, learned Assistant Government Pleader for the respondent ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 2 jg.wp6078.15.odt no. 1.
2. Rule. Rule made returnable forthwith.
3. By the present petition, the petitioners are challenging the order passed by the learned Deputy Charity Commissioner, Nagpur dated 17-4-2015 thereby allowing the applications seeking condonation of delay. It would be necessary to refer to the facts in brief which are peculiar in nature so as to consider the petition. One Navyuvak Education Society, Nagpur is a registered trust under the provisions of the Societies Registration Act, 1860 as well as the Bombay Public Trusts Act, 1950. At the time of formation of the trust and subsequent to formation also, there were 9 donor members of the trust forming the executive committee. On 11-12-2013, at the instance of the respondent no. 2 and five other applicants, an application came to be filed before the learned Joint Charity Commissioner, Nagpur under Section 47 of the Maharashtra Public Trusts Act for appointment as trustees. It was submitted in the application that the applicants are the well wishers of the trust and are regularly participating in the welfare activities of the trust, namely, the activities of schools and other developmental activities of the students. It was submitted that the applicants contributed to the trust either by the cash contribution or by parting away such of ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 3 jg.wp6078.15.odt properties in favour of the trust. It was submitted that the trust is running six schools at different places in Nagpur, Bhandara and Gondia Districts. The trust was established in the year 1962. One Shri Sukhdeo Dongre and Shri Balkrushna Wasnik were the office bearers of the executive committee of the trust and other members were the founder members. It was submitted that Shri Sukhdeo Dongre was looking after the affairs of the trust and was taking a keen interest in the management of the trust. It was further submitted in the application that since inception of the trust, the various activities were being conducted by the founder members who were the recorded trustees. It was submitted that subsequently during passage of the time, due to death of other trustees, there were only three surviving trustees and they were in their advanced age, as such, the applicants who were actively participating in the activities of the schools and being young age persons, efficient enough to look after the affairs of the institutes run by the trust and thus be permitted/appointed as trustees of Navyuvak Education Society.
On 24-4-2014, the respondent no. 2 approached the authority for effecting the change and accordingly six change reports were filed in the format. On the very date i.e. on 24-4-2014, an application was filed seeking condonation of delay in a printed format. The application was opposed by the petitioners. It was submitted in the reply that the ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 4 jg.wp6078.15.odt applicant was not having any authority nor any right or power to submit the change report. It was submitted in the reply that the change sought to be effected occurred in the year 1981 and after span of 30 years, the proceeding was initiated without giving any reason whatsoever for causing such an inordinate delay. The respondent no. 2 to this reply filed additional submissions on 26-3-2015. The additional submissions were also opposed. It was submitted that though the fact of death of Shri Sukhdeo Dongre is admitted, the other contentions raised by the applicant are denied in toto. It is also submitted that the applicant by playing certain mischief wanted to enter in the trust and participate in the affairs of the trust. Learned Deputy Charity Commissioner decided all these applications by a common order. Learned Deputy Charity Commissioner, Nagpur relying on the additional submissions and on the ground that the non-applicants who were the members of the society failed to take active part in the affairs of the society and on the ground that the reasons shown by the applicant were genuine reasons and further observing that as the judicial enquiry of the change report is the requirement and by allowing the applications, no prejudice would be caused to the non-applicants, allowed the applications subject to payment of costs of Rs. 500/- in each applications.
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4. Shri Masodkar, learned counsel for the petitioners vehemently submitted that learned Deputy Charity Commissioner erred in appreciating the material in its proper perspective. Shri Masodkar, learned counsel submitted that firstly, the application was filed at the instance of six applicants seeking participation in the trust as trustees on 11-12-2013 itself was a belated attempt, secondly, the respondent no. 2 who solely approached the authority for change report failed to submit any reason or ground for condonation of delay which was an inordinate delay, leaving aside any justifiable reason or cause being shown by the respondent no. 2. Shri Masodkar, learned counsel for the petitioners submitted that the first application seeking condonation of delay was opposed by filing reply and the respondent no. 2 then filed the additional submissions. He submitted that though the President Shri Dongre expired during the pendency but the other reported trustees were on record who could have approached the authority after the death of Shri Dongre. He further submitted that the ground raised in the application was of ignorance of law and learned Deputy Charity Commissioner ought not to have considered the application on this ground itself as the party cannot raise the ground or excuse of ignorance of law. He further submitted that learned Deputy Charity Commissioner also erred in passing the common order and deciding the applications in ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 6 jg.wp6078.15.odt one go. He submitted that the delay was ranging from 1½ years to 30 years and more and as such, it was for the learned Deputy Charity Commissioner to consider the applications on their merits considering the length of delay and grounds raised. Shri Masodkar, learned counsel further submitted that the learned Deputy Charity Commissioner also failed to consider the ground raised by the petitioners in opposing the delay on the ground of mischief played by the applicant. He submitted that the opposition by the petitioners on the ground of mischief played by the respondent no. 2 was supported with the material, namely, the petitioners having been approached to the police authorities against the respondent no. 2 and the other persons by lodging report/complaint.
Thus, it was the submission of Shri Masodkar, learned counsel that the order passed by the learned Deputy Charity Commissioner is unsustainable. Shri Masodkar, learned counsel for the petitioners in support of his submissions relied on the following judgments.
(1) 2002(3) Bom. C. R. 590 in the case of Dadasaheb Dattajirao Nimbalkar and ors. Vs. Ushadevi Rajaram Nimbalkar and anr;
(2) AIR 2010 SC 3043 in the case of Balwant Singh (Dead) Vs. Jagdish Singh and ors;
(3) 2004(4) Mh.L.J. 982 in the case of Marutirao Vishwanath Bagal and ors. Vs. Dinkar Kashinath More and ors ;::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 :::
7 jg.wp6078.15.odt (4) 2016(1) Mh.L.J. 184 in the case of Rajendra Namdeorao Akre Vs. Rajkumar Bhalerao Balbudhe and anr and (5) 1998(1) Bom. C.R. 563 in the case of B. J. Wahane and anr. Vs. Kamlesh Gangaram Kanoje.
5. Per contra, Shri Abhyankar, learned counsel for the respondent no. 2 vehemently submitted that firstly, the petitioners themselves had no locus to oppose the application either the application seeking condonation of delay or the proceedings sought to be initiated in respect of change report. He further submitted that the petitioners are strangers to the trust. He then submitted that till death of Shri Sukhdeo Dongre, the President of the trust, Shri Dongre was handling the affairs of the society vigilantly and properly. He then submitted that other three surviving trustees were in their advanced age and has not being conversant with the legal provisions, the respondent no. 2 approached the authority. He then submitted that as no personal interest of the respondent no. 2 is involved, the respondent no. 2 is taking up the cause of the trust and after getting knowledge of all the relevant factors, he had approached the authorities. Shri Abhyankar, learned counsel then submitted that though the petitioners themselves could have approached the authorities, they failed to approach the authority within reasonable period and they cannot now oppose the respondent no. 2 who ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 8 jg.wp6078.15.odt approached the authority belatedly. Shri Abhyankar, learned counsel then submitted that the learned Deputy Charity Commissioner committed no error in observing that the judicial enquiry of the change report is requirement of law and rejection of the application would have been resulted in non-enquiry and the same is not the object of the Act.
He then submitted that the learned Deputy Charity Commissioner was also justified in observing that no prejudice is going to be caused to the petitioners as in the process of enquiry, the authority would be required to hear the objections, if so raised and in that case, the petitioners would be certainly entitled to raise objection in the process of enquiry and the authority by conducting enquiry may arrive at a proper conclusion.
Shri Abhyankar, learned counsel then submitted that the learned Deputy Charity Commissioner was also justified in observing that for a fair trial and for observing the principles of natural justice, the delay is required to be condoned. He further submitted that the equities of the parties are balanced by the learned Deputy Charity Commissioner by allowing the applications subject to payment of costs. Shri Abhyankar, learned counsel in support of his submissions relied on the judgment of this Court reported in 2002(4) Mh.L.J. 872 in the case of Madanrao s/o Nansaheb Chavan Vs. State of Maharashtra and ors. and unreported judgment of this Court in Writ Petition No. 5450/2012 dated ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 9 jg.wp6078.15.odt 31-1-2013 in the case of Kadir Ajim Sheikh Vs. Ashok Harichandraji Satpure and ors.
6. On hearing both the learned counsel appearing for the petitioners as well as the respondent no. 2 at length and on going through the material placed on record, I am of the opinion that though the submissions of Shri Abhyankar, learned counsel for the respondent no. 2 looks attractive at first blush, considering the peculiar circumstances, the submissions of Shri Abhyankar, learned counsel for the respondent no. 2 cannot be accepted. Though there was some merit in the submissions of Shri Abhyankar that the petitioners could not have opposed the applications as they themselves were Schedule-1 trustees till the respondent no. 2 approached the authority. The petitioners neither took any efforts nor took steps to approach the authority for a considerable long period and now they are opposing the applications.
Thus, even though Shri Abhyankar, learned counsel for the respondent no. 2 raises some doubt on the locus of the petitioners and approach of the petitioners to challenge the order, this Court is required to consider the order passed by the learned Deputy Charity Commissioner on the backdrop of proceedings initiated at the instance of the respondent no. 2, namely, seeking to file change report and the condonation of delay sought for. As stated above, firstly, the respondent no. 2 along with ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 10 jg.wp6078.15.odt other five applicants filed an application for appointment of the applicants as trustees on 11-12-2013. Then on 24-4-2014, the authority was approached only at the instance of the respondent no. 2. On the very day, a printed format application is filed before the authority.
Firstly, this Court is having some reservation on the approach of the respondent no. 2 by filing a printed format seeking condonation of delay.
Learned Deputy Charity Commissioner in his order referred to the said application in printed format. Perusal of the copy of the said printed format shows that it refers to the name of the applicant, the name of the trust for which the application is filed and then in paragraph no. 2 of the printed format, there is a reference which reads thus : (loosely translated) That the applicant ought to have filed the proceedings within three months but for the reasons, namely, preoccupation/inadequate information/ill health, the delay is caused, the delay is bonafide.
One can understand that if an attempt is made so as to facilitate the party to approach the forum for filing an application seeking condonation of delay referring to the various grounds, but ultimately, the party has to approach the forum with a proper application giving reasons or grounds seeking condonation of delay. Such a printed format ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 11 jg.wp6078.15.odt application is frustrating the said object. Apart from the fact that it only refers in wholesome the grounds. It is expected of a party to approach the forum by raising proper grounds and other details seeking condonation of delay and in turn, the Court/forum is expected to consider the grounds raised by the applicant i.e. to say to consider the application on its merits. By filing such printed format application, neither there cannot be the proper explanation of the reasons nor in turn, the proper adjudication or consideration of the application by the forum or the Court. Be that as it may, the respondent no. 2 then filed the additional submissions in all the applications so this was the additional submission. The copy of additional submission in Case No. 986/2014 is placed on record and it seems that the respondent no. 2 filed either the identical additional submissions or the replica of the submissions which is placed on record in all other applications. It is interesting to note on the backdrop of this fact that the change report was in five cases sought for wherein delay was ranging from 1½ years to 30 years and more. Thus, if in each case, the length of delay was different, then it was expected of the respondent no. 2 to raise the specific ground in support of such respective delay in each application.
The only ground raised in all the applications was of death of Shri Dongre who was the only person looking after the affairs of the ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 12 jg.wp6078.15.odt trust vigilantly till his death and subsequently, as other trustees could not approach the authority, the respondent no. 2, looking to the interest of the trust, approached the authority. Thus in one stroke, all the applications were sought to be filed by the respondent no. 2 wherein the delay was ranging from 1½ years to 30 years and more for filing various change reports. It is interesting to note that the learned Deputy Charity Commissioner himself observed that there was no specific reason given for delay. Learned Deputy Charity Commissioner on one hand observed that though the President Shri Sukhdeo Dongre expired, there was no material to suggest that other persons in the trust were not having knowledge of death of Shri Sukhdeo Dongre for a considerable period and there was any reason available with such persons prohibiting them to approach the authority within reasonable period and on the other hand, the learned Deputy Charity Commissioner observed that the respondent no. 2 i.e. the applicant who has 24 years of age must have no personal knowledge of the delay. Learned Deputy Charity Commissioner further observed that for the delay, the non-applicants were also responsible. Learned Deputy Charity Commissioner thus by only observing this fact that the respondent no. 2 who is of 24 years of age had approached the authority even though it was the collective responsibility of the other trustees and then by observing that the delay ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 13 jg.wp6078.15.odt was not intentional one, a genuine reason is shown by the applicant, allowed the application.
7. At the cost of repetition, this Court found that the learned Deputy Charity Commissioner failed to consider that firstly, the application was in a printed format, secondly, the additional submissions were stereotyped in spite of the fact that the delay was ranging from 1½ years to 30 years and more and except the reason that Shri Dongre expired on 31-8-2013 and elections were conducted on 22-2-2015, no other reasons were raised seeking condonation of delay. It is now the settled position reflected from the judgments of this Court as well as the judgment of the Apex Court that while considering the aspect of condonation of delay, the Courts may not adopt hyper technical approach. At the same time, the Court is expected to consider the application on the grounds raised i.e. the party showing a bonafide, justifiable cause and satisfy the Court for condonation of delay. Thus, the relevant consideration certainly would be satisfaction of the Court or the forum on being justifiable cause shown or bonafide reason shown and this aspect will have to be considered considering the length of delay. It is also settled position that merely the length of the delay would not be decisive factor but as stated above, the reasons assigned justifiable or bonafide cause will have to be considered. In the present ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 14 jg.wp6078.15.odt matter, I am of the opinion that the applicant i.e. the respondent no. 2 failed to satisfy both the aspects, namely, justifiable cause or the bonafide reason being shown and inordinate delay caused in approaching the forum.
8. Shri Abhyankar, learned counsel though made an attempt to place reliance on the judgment of this Court in the case of Madanrao s/o Nansaheb Chavan Vs. State of Maharashtra and ors. (cited supra) submitting that the learned Deputy Charity Commissioner committed no error in condoning the delay. Though there cannot be any dispute on the proposition of law reflected in the judgment of this Court in the matter of Madanrao s/o Nansaheb Chavan Vs. State of Maharashtra and ors. In the matter of Madanrao s/o Nansaheb Chavan Vs. State of Maharashtra and ors., a ground was raised in challenge to the order allowing the application seeking condonation of delay that the applicant failed to explain day to day delay caused in filing the application. This Court observed that there is no law which requires that application for condonation of delay must accompany the change report and it is not necessary to explain each day's delay. On the backdrop of these facts, this Court also observed that the Assistant Charity Commissioner by giving proper reasons condoned the delay. In the present matter, as stated above, there was no explanation given in any of the stereotyped ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 15 jg.wp6078.15.odt applications seeking condonation of delay for length, delay caused differently in each matter and only one reason was assigned for seeking condonation of delay. Thus, in my opinion, as the facts are altogether different and peculiar, the judgment on which the learned counsel for the respondent no.2 placed reliance is of no help to the respondent no. 2.
9. Shri Abhyankar, learned counsel for the respondent no. 2 also placed reliance on the unreported judgment of this Court in Writ Petition No. 5450/2012. In the said judgment, there is reference of some circular issued by the State of Maharashtra dealing with the proceedings under Section 22 on the backdrop of withdrawing the change report inquiry proceeding without converting the said inquiry proceedings into a suo motu inquiry. Shri Abhyankar, learned counsel also made an attempt to submit before this Court that in view of provisions of Section 22 of the Maharashtra Public Trusts Act, the authority concerned can conduct enquiry suo motu in respect of the change report and allowing the application seeking condonation of delay would cause no prejudice to the petitioners as in the enquiry, the petitioners can raise objection. If the submissions of Shri Abhyankar, learned counsel are to be accepted, then Section 22(1) provision referring to the stipulation of period for approaching the forum either would be redundant or would be an empty formality. If the provision of ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 ::: 16 jg.wp6078.15.odt the Act provides a time stipulation for approaching the forum, the party expected to approach the forum within stipulated period and in case the party approaches belatedly, the party can certainly seek condonation of delay caused with raising the ground but to say that even though there is a stipulation of period, the party can approach the forum as and when the party wishes or can approach the forum after say 20 years, 30 years or 40 years as per the convenience of the party, then such liberty would frustrate the provision itself and as such, the submissions cannot be accepted. On this backdrop, it would be useful to refer to the judgment relied on by Shri Masodkar, learned counsel for the petitioners in the matter of B. J. Wahane and anr. Vs. Kamlesh Gangaram Kanoje (cited supra). This Court observed that :
12. The application for change or any change report be submitted within 90 days from the date of the occurrence of such change under section 22(1) of the Bombay Public Trusts Act, 1950, can not be construed as a direction but it is a mandate that if the application of change report is not filed within 90 days, the same will not be entertained. However, the parties i.e. trustees or it's agents are entitled to take recourse of the general law of limitation for condoning the delay and it is the discretion of the Court to consider or not to consider such an application for condonation. According to me, if the application or change report is not filed within 90 days and the reporting trustee filed an application for condonation of delay in filing the change report, the Deputy or Assistant Charity Commissioner may consider and condone the delay imposing the fine to the extent of Rs. 1,000/- as provided under section 66 of the Bombay Public Trusts Act, 1950. If the limitation of 90 days is not construed, then the ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:44 :::
17 jg.wp6078.15.odt Trustees will be encouraged to treat the Trusts as their property and continue their position as President or Secretary for years together without registering any change as provided under the provisions of the Bombay Public Trusts Act, 1950. Thus, in view of my above observations, I do not find any merit in the submissions of Shri Khan, the learned counsel for the respondent.
13. Perusal of the Judgment of the Deputy Charity Commissioner dtd. 11-9-1992 (at page 31-39). The Judgment of Joint Charity Commissioner, Nagpur, dtd. 17-10-92 (page 45-53) and the Judgment of the District Judge, Bhandara dtd. 7-9-93 (page 59-66) demonstrate that though the objections were raised as regards the delay of more than 14 years in filing the change report, there is no discussion at all in the impugned Judgments in this regard. Such delay in reporting the change definitely creates doubt about the meeting, resignation tendered by the appellant No. 1 and passing impugned resolutions dtd. 26-2-1978. Similarly, Shri Kanoje- the respondent No. 1, has not explained the said delay of about 13-14 years, specifying the circumstances which prevented him from approaching the Deputy or Assistant Charity Commissioner as soon as the alleged resolution were passed in the year 1978. No explanation has been tendered to the objection raised to the effect that a change report in respect of one Durga Pillay who was inducted in 1978 as a new trustee, was submitted in 1978 itself and accepted, why the change report as regards the meeting and resolutions dtd. 26-2-1978 was not filed within the statutory prescribed period as provided under section 22(1) of the Bombay Public Trusts Act, 1950 or within reasonable period.
10. Shri Abhyankar, learned counsel for the respondent no. 2 also placed reliance on the judgment of this Court in Doma Vithu Ramteke Vs. Assistant Charity Commissioner, Chandrapur reported in 2002(3) Mh.L.J. 167. The issue in the judgment relied on in the matter ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:45 ::: 18 jg.wp6078.15.odt of Doma Vithu Ramteke Vs. Assistant Charity Commissioner, Chandrapur altogether a different issue. In the judgment relied on by Shri Abhyankar, this Court rejected the contention that the Deputy Charity Commissioner ought not to have allowed the application seeking condonation of delay on the ground that there was no specific provision in the Act and this Court observed thus merely because the change report under the Bombay Public Trusts Act is an original proceeding, that by itself would not take away the jurisdiction to condone the delay under section 5 of the Limitation Act. The word "application" would clearly cover an application made for effecting change under Section 22 of the Bombay Public Trusts Act. The Apex Court has time and again laid down that when the Tribunal has condoned delay, High Court would be slow in interfering in its discretionary power. It was also the submission before this Court that there was no day to day explanation for seeking condonation of delay. By relying on the judgment of the Apex Court in the case of Collector, Land Acquisition, Anantnag and anr. Vs. Mst.
Katiji and ors. AIR 1987 SC 1353, this Court found that outright refusal of the condonation of delay by adopting a hyper technical approach would result in a meritorious matter being thrown out at the very threshold. As stated above, in the present matter, the delay is inordinate delay and in the opinion of this Court, the cause shown for seeking ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:45 ::: 19 jg.wp6078.15.odt condonation of delay was wholly unmeritorious and unjustifiable. In view of these facts, I am of the opinion that the judgment relied on by Shri Abhyankar, learned counsel for the respondent no. 2 is also of no help to him.
11. Considering all the above aspects, I am of the opinion that the order passed by the learned Deputy Charity Commissioner, Nagpur impugned in the present petition is clearly unsustainable. In the result, the petition is allowed. The order impugned in the petition is quashed and set aside.
12. Shri Abhyankar, learned counsel for the respondent no. 2 prays for stay to the judgment and order of this Court on the ground that the respondent no. 2 is intending to challenge this order before the Hon'ble Apex Court. Though Shri Masodkar, learned counsel for the petitioners opposes the prayer for stay, considering the issue involved, order is stayed for six weeks only.
JUDGE wasnik ::: Uploaded on - 14/02/2017 ::: Downloaded on - 15/02/2017 00:35:45 :::