Bombay High Court
Shrikrishna G. Joshi And Ors vs Charity Commissioner And Ors on 26 March, 2025
2025:BHC-AS:13987
NEETA SAWANT WP-3700-1994---FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3700 OF 1994
1) Shrikrishna Gangadhar Joshi
2) Ravindra Shrikrishna Joshi
Both residing at Ladiwale Joshi compound,
1st floor,Parvati & Gandhar Bhuvan,
364/CD, N.C.Kelkar Road, Dadar,
Bombay- 400 020
3) Marutirao Shripad Apte
Residing at R-7/8 Suman Nagar,
Chembur, Bombay 400071 ...Petitioners
: Versus :
1) The Charity Commissioner
Having his office at Dharumaday
Aukta Bhava, 83, Dr. Annie
Besant Road, Worli,
Bombay- 18
2) Prabhudas T. Sanghavi
Residing at Sarvamangal Co-op
Housing Society, College Road, Dadar,
Bombay-400028
3) Shriram Ganghadhar Joshi
4) Surendra Shripad Joshi
5) Vikas Shriram Joshi
All Residing at 2nd and 3rd Floor,
Of Parvati & Gandhar Bhuvan,
364/CD, N.C.Kelkar Road, Dadar,
Bombay- 400 020 ...Respondents
Mr. Vaibhav Sugdare, with Mr. Ashish Ghadge, Ms.Gungan Tamhane i/by
Tamhane and Co. for the Petitioner.
Mr. Pravin Samdani Senior Advocate with Mr. Nakul Jain i/by Adv.
K.D.Shah for the Respondent No.3 to 6.
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Page No.1 of 19
26 March 2025
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NEETA SAWANT WP-3700-1994---FC
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved on : 7 March 2025.
Judgment Pronounced on : 26 March 2025.
JUDGMENT:
1) Petitioners have filed this petition challenging the judgment and order dated 13 April 1994 passed by the Charity Commissioner in Change Report Inquiry No.1010/1984. By his order dated 13 April 1994, the Charity Commissioner has rejected Change Report No. 1010/1984. The said Change Report was filed by Petitioner No.1 for deletion of names of four trustees (Respondent Nos.2 to 5) and for addition of two trustees-Shri. Marutirao Shripad Apte and Shri. Ganesh Bhoir.
2) Change Report No.1010/1984 was initially accepted by the Deputy Charity Commissioner by order dated 7 July 1984. Respondent nos.2 to 5 filed Appeal No.39/1984 before the Charity Commissioner. The Appeal was allowed by order dated 29 June 1985 and Change Report was remanded for retrial. The reporting trustee Mr. Shrikrishna G. Joshi challenged the said remand order in the City Civil Court by filing Charity Application No.12/1985. The City Civil Court dismissed the Charity Application and confirmed the order of remand by its order dated 21 April 1986. However, the City Civil Court directed that the Change Report No.1010/1984 be heard and decided by the Charity Commissioner himself and not by the Deputy Charity Commissioner (having appellate powers). The reporting trustee filed First Appeal No. 525/1986 before this Court, which came to be dismissed by order dated 13 August 1986. The Charity Commissioner accordingly heard and decided the remanded proceedings in Change Report No.1010/1984 and rejected the Change Report by judgment and order dated 13 April 1994, which is the subject matter of challenge in the present petition.
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3) Mr. Sugdare, the learned counsel appearing for the Petitioners would raise an objection to Charity Commissioner, vested with appellate powers, deciding the Change Report when in fact the statutory scheme permits only the Assistant or Deputy Charity Commissioner to conduct enquiry into the change. He would submit that the Charity Commissioner is in fact an appellate authority over the orders passed by the Assistant/Deputy Charity Commissioner. He would take me through the schemes of Sections 19, 20 and 21 of the Maharashtra Public Trusts Act, 1950 in support of his contention that the Charity Commissioner himself cannot decide the Change Report. Mr. Sugdare would contend that the Charity Commissioner directly exercising power of deciding Change Report denied an opportunity of filing of Appeal to the Petitioners. In support of his contention, he would rely upon the judgment of the Apex Court in A.R. Antulay Versus. R.S. Nayak & Another1. He has also relied upon Apex Court judgment in Manmohan Attavar Versus. Neelam Manmohan Attavar 2 which follows the judgment in A.R. Antulay. He would rely on judgment in Union of India & Another Versus. K.S. Subramanian 3 in support of his contention that there cannot be estoppel against law and that therefore mere concession given by Petitioners for decision of Change Report by the Charity Commissioner would not estop them from challenging the jurisdiction of the Charity Commissioner to decide the Change Report. In support of his contention that there cannot be estoppel against a statute, he would rely upon judgment of this Court in Shantapa Versus Anna4. Mr. Sugdare would further contend that the findings recorded by the Charity Commissioner that he has original jurisdiction to entertain and examine all aspects of the 1 1988 (2) SCC 602 2 2017 (8) SCC 550 3 1989 Supp (1) SCC 331 4 2023 SCC Online Bom 2566 ___________________________________________________________________________ Page No.3 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC matter is against the statutory scheme of the MPT Act. Lastly, Mr. Sugdare would submit that the two incoming trustees were not issued notices nor heard by the Charity Commissioner while rejecting the Change Report though the order passed by the Charity Commissioner ultimately has the effect of denial of trusteeship to them.
4) The petition is opposed by Mr. Samdani, the learned senior advocate appearing for Respondent Nos.2 to 5. He would submit that the decision on Change Report by the Charity Commissioner was something which was insisted upon by the Petitioners themselves and that therefore they cannot now turn around and contend that the Charity Commissioner could not have decided the Change Report. He would contend that the Petitioners have always acted against the interest of the trust and sought removal of Respondent Nos.2 to 5 as trustees by Change Report No.1010/1984 without even issuing them notices of conduct of meeting of the Trust. He would submit that even if there is a formal defect in exercise of jurisdiction by the Charity Commissioner, this Court would be loathe in entertaining the present petition since justice is not ultimately on the side of the petitioner. In support, he would rely upon judgment of this Court in The State of Bombay Versus. Morarji Cooverji5. He would rely upon judgment of the Apex Court in M.P. Mittal Versus. State of Haryana 6 in support of the said proposition. He would submit that power under Article 227 must be used for the sake of justice and if quashing of order results in greater harm to the Society, the Court should restrain itself from exercising power under Article 227 of the Constitution of India. In support, he would rely upon the judgment of the Apex Court in the case of State of Maharashtra & ors. Versus. Prabhu7.
51958 BLR VOL.LXI 318 6 1984 (4) SCC 371 7 1994 (2) SCC 481 ___________________________________________________________________________ Page No.4 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC
5) I have given my anxious consideration to the submissions canvassed by the learned counsel appearing for rival parties. The main objection of the Petitioners to the impugned order dated 13 April 1984 passed by the Charity Commissioner is absence of jurisdiction for him to make an enquiry into the change under the provisions of Section 22 of the MPT Act. It is suggested by the Petitioner, and in my view which is not entirely wrong, that only the Deputy or Assistant Charity Commissioner are vested with jurisdiction to conduct an enquiry into the Change Report by the reporting trustees. That the Charity Commissioner is actually an Appellate Authority over the order passed by the Deputy or Assistant Charity Commissioner against an order passed under Section 22.
6) However, what must be taken note of is the unique facts and circumstances of the present case. Change Report No.1010/1984 was initially accepted by the Deputy Charity Commissioner by order dated 7 July 1984. Respondent Nos.2 to 5 filed Appeal No.39 of 1984 before the Charity Commissioner. It appears that the said Appeal was assigned to the Deputy Charity Commissioner, who exercised appellate power and allowed the Appeal by judgment and order dated 29 June 1985. The Appellate Authority remanded Change Report No.1010 of 1984 for retrial in the light of the observations made by it. Aggrieved by the order of remand, the Petitioners filed Charity Application No.12/1985 before the City Civil Court under Section 72 of the M.P.T. Act. During the course of hearing of the Charity Application, after noticing that the City Civil Court was not inclined to interfere in the order of remand, Petitioners insisted that the remanded proceedings should not be heard by the Deputy Charity Commissioner and that the same should be heard by the Charity Commissioner himself. The submission made on behalf of the Petitioner is noted by the learned Judge of the City Civil Court in para-13 of his judgment which reads thus :
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13.However, the learned Advocate for the applicant Mr.Suresh contended that the matter should be heard by the Charity Commissioner alone and should not be sent to the Deputy Charity Commissioner. In normal course there was no reason for me to entertain this request. The Deputy Charity Commissioner is the person who is competent to hear the change report and therefore the matter was remanded back to him by the Charity Commissioner.
However, there are several litigations between these trustees interse and in Writ Petition No. 2276 of 1985 His Lordship Mr. Justice Bharucha has passed an order on 23-12-1985 stating This is clearly a fight between two groups of trustees that has been going on for very long, It is desirable that respondent No.1 should hear and dispose of all the various applications relating to this Trust expeditiously and preferably on or before 1st of April 1986". I am told that the Charity Commissioner has interpreted this order to mean that all the matters between these trustees regarding this trust should be tried by him alone and not by one of his subordinates and High court has directed him to dispose of all these matters. I am told that the Charity Commissioner has got transferred all the matters before him only. I think that the interpretation put in by the Charity Commissioner of this order is correct and all the matters will be heard by him only. In view of this position though I am confirming the remand matter the Charity Commissioner himself will deal with this matter and try the change report himself in original and he will dispose of the matter according to law.
7) Thus, the hearing of the remanded Change Report by the Charity Commissioner instead of by Assistant/Dy. Charity Commissioner was on the specific insistence of the Petitioners themselves. On account of these unique insistence on the part of the Petitioners, the learned Judge of the City Civil Court passed the following order on 21 April 1986 in Charity Application No.12/1985.
ORDER The application of the applicants is dismissed with costs. The order of remand passed in Appeal No.39 of 1984 is confirmed. However, as observed above though the matter is remanded back to the Deputy Charity Commissioner, the Charity Commissioner shall hear the Charity Application himself and dispose it of according to law as early as possible.
8) Petitioners and the two incoming trustees challenged order dated 21 April 1986 of the learned Judge of the City Civil Court by filing First Appeal No.525/1986 in this Court. The First Appeal was ___________________________________________________________________________ Page No.6 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC essentially premised on the contention that there was no provision for remand in exercise of jurisdiction by the appellate authority under Section 70 of the MPT Act. In their Appeal, the Petitioners did not question that part of the direction of the City Civil Court (which was invited by the Petitioners themselves) which directed hearing of the remanded Change Report enquiry by the Charity Commissioner and not by the Assistant/Deputy Charity Commissioner. The judgment passed by this Court on 13 August 1986 in First Appeal No. 525/1986 reads thus:
There is no merit in this appeal directed against judgment and order dated 21st April 1986 passed by the City Civil Court, Bombay in Charity Application No.12/1985.
2. Contention raised at the outset by Mr.Joshi, learned counsel for the appellants is that the appellate authority hearing Appeal No.39 of 1984 against the decision of the Deputy Charity Commissioner in proceedings viz. Change report No.1010 of 1984 erred in remanding the matter because, contended, learned counsel, section 70 of the BombayPublic Trusts Act (hereafter the Act) does not provide for remand. In support, reliance is placed upon sub section (3) of section 70 of the Act which provides.
"The Charity Commissioner may, after hearing the appellant or any person appearing on his behalf for reasons to be recorded in writing either annual, reverse, modify or confirm the finding. or the order appealed against or he may directed the Deputy or Assistant Charity Commissioner to make further enquiry or to take, such additional evidence as he may think necessary or he may himself take such additional evidence".
Submission is that as the word 'remand is absent in this provision, there is no jurisdiction to remand. It is not possible to accept this contention. Sub-section (3) of section 70 confers power to annual, reverse, modify or confirm the finding or order appealed against as also power to make further enquiry. The Power is thus very wide and comprehensive. It expressly provides for various modes of deciding appeals. The power to annual reverse, modify would be necessary implication include the power to remand. Besides, the power to direct the Deputy or Assistant Charity Commissioner to make further enquiry postulates inter alia a remand.
3. Reliance was, however, placed on sub section (2) of section 49 of the Act, which expressly confers power to remand, and the contention is that since such power has not been expressly conferred by sub.section (3) of section 70 Supra, it must be held to 'have been excluded. I am afraid, ___________________________________________________________________________ Page No.7 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC even this submission must fail. Fair and reasonable interpretation of section70(3) would include therein not only all powers expressly mentioned therein, but as a necesary concomtent the power also to remand. In this context Mr. Parikh, for the anntesting respondents, relied upon a Division Bench ruling in Thimmasamudram Tobacco Company VS Assistant Collector of Central Excise... Nellore A.I.R. 1961 Andhra Pradesh 324, wherein, while dealing with section 35 of the Central Excises and Salt Act (which also did not include expressly the power to remand), the Division Bench observed that power to remand was inherent in the appellate jurisdiction absence of such express provision does not disable the appellate authority from sending the matter back to the authority that passed the order, and that conferment of appellate jurisdiction on esbungi necessarily implies that it has as much power to remand as it has in confirm, alter, or annual the impugned order. I find myself in agreement with this ruling This ruling was relied upon by a learned Single Judge of this court (Nagpur Bench) in the case of Jawahar Vastra bhandar VS Satyapal Khatri 1986(1) Bombay Casés reporter 553, wherein, while dealing with clause (2) of the Berar Letting of Houses and Rent Control Order, 1949 (which also does not confer expressly the power to remand) it is held that although there is no express power to remand, there is certainly power to decide the appeal, which, without anything more modes of decision which, inter alia includes power to remand. The first contention, therefore, fails and is rejected
4. It is next contended by Mr.Joshi that the Deputy Charity Commissioner had heard both sides before passing the impugned order and, therefore, there was no need for remedy. Now, it is technically correct that the Deputy Charity Commissioner had heard both sides. But, the mode and manner of this hearing was highly unsatisfactory and left much to be desired, Parties were heard in the absence of one another. Thus, appellant was heard in the absence of the respondent and the respondent was heard in the absence of the appellant. Record further indicates that the appellant was heard on a day which was fixed not for argument or hearing but only for filing say, and on which day, naturally the respondent was absent. And when serious complaint was later made by the respondent, the authority proceeded to hear the respondent but that again in the absence of the appellant. Now, this was hardly the way to go about and deal with judicial or quasi judicial proceedings. Hearing implies hearing in the presence of one another and not behind the back of each other, and as seen the position is still more unfortunate. There is much to be said on the nature and manner of the record before the concerned Deputy Charity Commissioner. Adverse comments thereon by the City Civil Court are fully justified, possibility of interpolation or tampering cannot be ruled out. It is not necessary to pursue this aspect further. Suffice it to note that the impugned judgment and order of the City Civil Court is fully justified and well deserves to be upheld.
5. This appeal, therefore, fails and the same is "dismissed.
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9) Thus, Petitioners themselves insisted that if a remand was to be ordered, the remanded proceedings must be heard by the Charity Commissioner and not by the Deputy Charity Commissioner. In the First Appeal, the challenge was only to the order of remand and not to the direction for hearing of remanded proceedings by the Charity Commissioner. In my view, therefore the Petitioners are clearly estopped from taking a volte-face and questioning the jurisdiction of the Charity Commissioner in deciding the Change Report.
10) Mr,. Sugdare has relied upon judgment of the Apex Court in Union of India Versus. K.S. Subramaniam (supra) in which it is held in para-13 as under :
13. We gave our anxious consideration to this part of the submission. It is true that the parties appear to have proceeded before the High Court, that the 1965 Rules would be attracted to the case of respondent. It might be on a wrong assumption of law. The appellants cannot be estopped to contend to the contrary. They are not bound by such wrong assumption of law. Nor it could be taken advantage of by the respondent. But the submission made before us about the poverty of the respondent and the long drawn litigation seems to be appealing. It is a plus point in his favour under equity. This Court, while granting special leave has imposed a condition on the appellants that they will bear the cost of the respondent in any event. That was evidently because of the need to have the law clarified and inability of the respondent to come up to this Court. There cannot be any dispute about the poverty surrounding him.
He has instituted the suit as an indigent person. There is yet another aspect. When the respondent commenced the litigation and continued up to the High Court, the law on the question was nebulous. It was only thereafter an authoritative pronouncement was made by this Court with regard to the impact of Rules made under the proviso to Article 309 on the pleasure doctrine under Article 310(1). These facts and circumstances therefore call for a sympathetic consideration of the case of respondent. This Court will not deny any equitable relief in deserving cases. The case on hand cannot be an exception to that rule and indeed, it is eminently a fit case. We therefore accept the submission made for the Respondent and decline to disturb the decree under appeal.
11) The judgment in K.S. Subramaniam is relied upon in support of the submission that erroneous assumption on the part of the ___________________________________________________________________________ Page No.9 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC Petitioners in making a request for decision on Change Report by the Charity Commissioner would not estop them from raising the issue of jurisdiction. Reliance is also placed on my judgment in Shantappa (supra) in which I have considered the ratio of the judgment of Delhi High Court in Insecticides (India) Ltd Versus. Parijat Industries (India) Pvt. Ltd.8 and of the Apex Court in A.C. Jose Versus Sivian Pillai.9 holding that there can be no estoppel against the statute.
12) In my view, however, the issue here is slightly different. Respondent Nos.2 to 5 who had secured the order of remand had no reservation about the remanded proceedings being heard by the Deputy Charity Commissioner. It is the Petitioners who insisted that the remanded proceedings must be decided by the Charity Commissioner and by insisting so, they prevented the Deputy Charity Commissioner from exercising jurisdiction of deciding proceedings relating to Change Report. Having themselves sought prayer for decision of remanded Change Report by the Charity Commissioner, Petitioners cannot be permitted to take benefit of their own wrong by challenging the order of the Charity Commissioner on the ground that he never had jurisdiction to decide the same.
13) The next line of submissions of Mr. Sugdare is that decision of Change Report by the Charity Commissioner results in denial of remedy of Appeal for the Petitioners and in support, reliance is placed on Constitution Bench judgment in A.R. Antulay (supra) in which it is held in paras-34, 36 and 39 as under :
34. Section 7 of the 1952 Act provides that notwithstanding anything contained in the Code of Criminal Procedure, or in any other law the offences specified in sub-section (1) of Section 6 shall be triable by Special Judges only. So the law provides for a trial by a Special Judge only and this is notwithstanding anything contained in Sections 406 and 8 2018 SCC Online Del 9748 9 1984 (2) SCC 656 ___________________________________________________________________________ Page No.10 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC 407 of the Code of Criminal Procedure, 1973. Could it, therefore, be accepted that this Court exercised a power not given to it by Parliament or the Constitution and acted under a power not exercisable by it? The question that has to be asked and answered is if a case is tried by a Special Judge or a court subordinate to the High Court against whose order an appeal or a revision would lie to the High Court, is transferred by this Court to the High Court and such right of appeal or revision is taken away would not an accused be in a worse position than others? This Court in R. S. Nayak .V. A. R. Antulay did not refer either to Section 406 or Section 407 of the Code. It is only made clear that if the application had been made to the High Court under Section 407 of the Code, the High Court might have transferred the case to itself.
36. In Kiran Singh v. Chaman Paswan Venkatarama Ayyar, J. observed that the fundamental principle is well established that a decree passed by a court without jurisdiction is a nullity, and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.
39. Shri Jethmalani sought to urge before us that the order made by the court was not without jurisdiction or irregular. We are unable to agree. It appears to us that the order was quite clearly per incurlam. This Court was not called upon and did not decide the express limitation on the power conferred by Section 407 of the Code which includes offences by public servants mentioned in the 1952 Act to be overridden in the manner sought to be followed as the consequential direction of this Court. This Court, to be plain, did not have juris-diction to transfer the case to itself. That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no court, whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal. See in this connection the observations in M. L. Sethi v. R. P. Kapur in which Justice Mathew considered Anisminic and also see Halsbury's Laws of England, 4th edn., Vol. 10, page 327 at para 720 onwards and also Amnon Rubinstein Jurisdiction and Illegality (1965 edn., pages 16-50). Reference may also be made to Raja Soap Factory v. S. P. Shantharaj.
14) The judgment in A.R. Antulay is followed in Manmohan Attavar in which it is held in paras-21 and 22 as under:
21. The grievance of the appellant against this order is that the valuable rights of the appellant of an additional forum to ventilate his grievance would be lost as against any decision in appeal. A remedy of revision ___________________________________________________________________________ Page No.11 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC under Section 327 CrPC would be available or a writ petition under Article 227 of the Constitution of India. In this behalf reliance has been placed on what is claimed to be a settled legal position, more particularly, the Constitution Bench judgment of 7 Judges of this Court in A.R. Antulay v. R.S. Nayak.
22. It is also the contention of the appellant that such transfer cannot take place at the whims and fancy of the respondent. The respondent, whenever she fails to obtain a favourable order, chooses to file proceedings for transfer whether it be before the Metropolitan Magistrate or before the appellate court. It is submitted that this approach ought not to be encouraged.
15) In my view, the ratio of the judgments in A.R. Antulay and Manmohan Attavar cannot be made applicable to the facts of the present case, where decision of Change Report by Charity Commissioner is by invitum. It is Petitioners who invited the Charity Commissioner to decide the remanded proceedings. They rather insisted that the Deputy Charity Commissioner should not decide the remanded Change Report and that the Charity Commissioner alone must decide the same. They cannot now turn around and contend that decision of Change Report by Charity Commissioner results in denial of opportunity of appeal.
16) Mr. Sugdare has relied on judgment of Coordinate Bench of this Court in Nagarkar Ajit Chandrakant in which this Court has held, by relying on the Apex Court judgment in Shrisht Dhawan vs. M/s Shaw Brothers10, that no Statutory Authority or Tribunal can assume jurisdiction in respect of subject matter in which the statute does not confer on it and that error of jurisdictional fact renders the order ultra vires and bad. This Court held in paragraph 19 as under:
19. In Shrisht Dhawan (Smt.) v. Shaw Brothers, reported in (1992)1 SCC 534, it was ruled that "No statutory authority or tribunal can assume jurisdiction in respect of subject matter which the statute does not confer on it and if by deciding erroneously the fact on which jurisdiction depends the court or tribunal exercises the jurisdiction then the order is vitiated. Error of jurisdictional fact renders the order ultra vires and bad." Beside, the jurisdiction of such tribunal clearly 10 1992 (1) SCC 534 ___________________________________________________________________________ Page No.12 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC depends upon the statutory provision in the statute under what the tribunal is created is also clear from the decision of the Apex Court in Chiranjilal Shrilal Goenka (deceased) through LRs. v. Jasjit Singh and Ors., reported in (1993) 2 SCC 507 wherein it was held that "Ranganath Mishra, J. as he then was, held that jurisdiction comes solely from the law of the land and cannot be exercised otherwise. In this country, jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the legislature. Jurisdiction is the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. Oza, J. supplementing the question held that the jurisdiction to try a case could only be conferred by law enacted by the legislature. The Supreme Court could not confer jurisdiction if it does not exist in law." It further ruled that "Thus this court laid down as an authoritative proposition of law that the jurisdiction could be conferred by statute and this Court cannot confer jurisdiction or an authority on a tribunal." Similarly, in Raza Textiles Ltd. v. ITO, reported in (1973) 1 SCC 633 , it was held that a Court or Tribunal cannot confer jurisdiction on itself by deciding a jurisdictional fact wrongly.
17) In my view, the law enunciated by this Court in Nagarkar Ajit Chandrakant (supra) cannot be invoked in the present case and it is nobody's case that Charity Commissioner does not have jurisdiction under the MPT Act to decide any matter relating to management of a Trust. The main grouse of the Petitioners is about denial of one level of Appeal on account of exercise of jurisdiction directly by the Appellate Authority being the Charity Commissioner. However, denial of such right of Appeal is something which the Petitioners invited for themselves and they cannot now be permitted to turn around and point out defect of jurisdiction.
18) The conspectus of the above discussion is that Petitioners themselves insisted for decision of Change Report No.1010 of 1984 by the Charity Commissioner and they cannot now turn around and contend that the Charity Commissioner could not have decided the ___________________________________________________________________________ Page No.13 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC Change Report as jurisdiction to decide the same vested in Assistant or Deputy Charity Commissioner.
19) It must also be noted that the Petition is pending since the year 1994 i.e. for the last 31 long years. Petitioner cannot now expect that the Change Report needs to be remanded to the Deputy Charity Commissioner for being decided afresh. The Change Report aimed at removal of Respondent Nos.2 to 5 as trustees and for addition of Shri Apte (Petitioner No.3) and Shri Bhole as incoming trustees. During the pendency of the litigation, Petitioner No.1 who spearheaded the entire litigation, has passed away on 10 October 2007, Shri Bhole has not joined in filing of the present Petition. It appears that Shri Bhole had passed away during pendency of proceedings before the Charity Commissioner and the notice dispatched to him was returned with the remark that he has passed away. Only Shri Apte is Petitioner No.3 in the present Petition though he never challenged the remand order before the Charity Commissioner. Petitioner No.1 alone was the reporting trustee. The Change was sought to be reported in the year 1984 and by now 41 long years has passed. It would otherwise be imprudent to now expect that the Change Report is freshly decided by the Deputy Charity Commissioner. I am therefore not inclined to accept the ground of lack of jurisdiction of the Charity Commissioner to decide Change Report No.1010 of 1984.
20) Coming to the merits of the impugned order dated 13 April 1994, not much is argued on behalf of the Petitioners pointing out any element of perversity or gross error in the findings recorded by the Charity Commissioner. Even perusal of the grounds raised in the Petition Memo would indicate that the main attack on the impugned ___________________________________________________________________________ Page No.14 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC order is with regard to jurisdiction of the Charity Commissioner to decide the Change Report. Not many grounds are raised dealing with merits of findings recorded by the Charity Commissioner.
21) I have gone through various findings recorded by the Charity Commissioner. The Charity Commissioner has held that none of the acts of the Respondent Nos.2 to 5 constituted refusal on their part to participate in the management of the Trust. On the contrary, it is held that Petitioner No.1 used to take arbitrary actions behind the back of the other trustees. The Charity Commissioner also took note of the fact that earlier application was filed by Petitioner No.1 for removal of Respondent Nos.2 to 5 under provisions of Section 41D of the MTP Act on the ground of continuous neglect of the duty and that the said application was withdrawn thereby giving up the allegation of neglect of duty. The Respondent Nos.2 to 5 were not even issued notices in respect of meetings convened where the decision was shown to have been taken about their removal. The findings of fact recorded by the Charity Commissioner dealing with merits of the Change Report do not warrant any interference in exercise of extraordinary jurisdiction of this Court under Article 227 of the Constitution of India in absence of any demonstrable case of perversity or patent illegality.
22) It is sought to be urged that Shri Bhole and Shri Apte were not served with notices by the Charity Commissioner while deciding the Change Report. The order passed by the Charity Commissioner would in fact indicate that show-cause notices were dispatched to Shri Apte and Shri Bhole. However, Shri Bhole was reported dead and the house of Shri Apte was found closed and nobody knew about the exact address of Shri Apte. In my view, though an attempt was made to serve Shri Bhole and Shri Apte, it was not at all necessary to hear them while ___________________________________________________________________________ Page No.15 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC deciding the Change Report. Shri Bhole and Shri Apte would become trustees of the Trust only after acceptance of Change Report. Mere adoption of resolution in their name would not confer right on them to be heard in the decision of the Change Report. If they were really interested in participating in the hearing of the Change Report, they could have intervened in the proceedings. Even otherwise Petitioners who themselves are guilty of not serving Respondent Nos.2 to 5 (existing trustees) while adopting a resolution for their removal cannot be heard to say that incoming trustees ought to have been granted an opportunity while deciding the Change Report.
23) After considering the overall conspectus of the case, I do not find any reason to interfere in the order passed by the Charity Commissioner. It must be noted that what is invoked by the Petitioners is jurisdiction of this Court under Article 227 of the Constitution of India. The jurisdiction is corrective in nature and need not be exercised in every case even if any procedural infraction or error of law is noticed. High Court while exercising jurisdiction under Article 227 of the Constitution of India, if satisfied that justice is ultimately done, it need not interfere with the orders passed by Courts and Tribunals merely because there is some technical procedural violation in the passing of the orders. This principle is well recognized in several judgments.
24) In The State of Bombay Versus. Morarji Cooverji (supra), Chief Justice M. C. Chagla speaking for the Division Bench of this Court, has held as under:
This is not a case where a tenant in occupation has been thrown out. This is, on the contrary, a case where the premises requisitioned for a public purpose are occupied by a Government servant and are sought to be taken possession of by the landlord by asking the Court to throw the Government servant out and restore possession to the landlord ___________________________________________________________________________ Page No.16 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC when that landlord has never shown his need of those premises by occupying them himself. Therefore, this is clearly a case where justice is not on the side of the petitioner, it is on the side of the State, and we see no reason why we should grant any relief to the petitioner.
(emphasis added)
25) In M.P. Mittal (supra) the Apex Court has held in paragraph 5 as under:
5. Now there is no dispute that the appellant knowingly and deliberately entered into the Guarantee agreement, and is liable as Guarantor to make payment of the dividend due from Messrs. Depro Foods Limited. Nor is it disputed that the amount due, with interest, stands at 2,02,166/- in respect of the period ending with the year 1977.
It was not contended that the appellant in fact does not possess sufficient funds or cannot avail of sufficient personal property for the purpose of discharging the liability. The record also shows that before instituting coercive proceedings, the Assistant Collector provided the appellant an opportunity to pay up the amount due from him, and that the appellant made no attempt to discharge the liability. When that is so, we are of opinion that he is not entitled to relief in these proceedings. The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief. On that ground alone, the appeal must fail.
(emphasis added)
26) In State of Maharashtra Versus. Prabhu (supra) the Apex Court has held in paragraphs 4 and 5 as under:
4. Even assuming that the construction placed by the High Court and vehemently defended by the learned Counsel for respondent is correct, should the High Court have interfered with the order of Government in exercise of its equity jurisdiction. The distinction between writs issued as a matter of right such as habeas corpus and those issued in exercise of discretion such as certiorari and mandamus are well known and explained in countless decisions given by this Court and English Courts. It is not necessary to recount them. The ___________________________________________________________________________ Page No.17 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC High Courts exercise control over Government functioning and ensure obedience of rules and law by enforcing proper, fair and just performance of duty. Where the Government or any authority passes an order which is contrary to rules or law it becomes amenable to correction by the courts in exercise of writ jurisdiction. But one of the principles inherent in it is that the exercise of power should be for the sake of justice. One of the yardsticks for it is if the quashing of the order results in greater harm to the society, then the court may restrain from exercising the power.
5. On this test the order of the High Court does not appear to be well-
founded. Even assuming there was technical breach and the show- cause notice did not spell out those relevant facts which could have empowered the Government to take action, the social injury by nominating or appointing the respondent to an office of responsibility must not only have raised the eyebrows in the educational circle but is susceptible of creating unhealthy atmosphere. Reliance was placed on the letter issued by the Director of Education withdrawing his circular debarring the respondent from being entrusted with any examination work. It is not necessary to comment on it. But the letter obviously was issued without properly appreciating the effect of order passed by the High Court. Such hasty action by superior officers are destructive of discipline which is necessary to be maintained. In any case the Director might have acted under constraints for reason more than one but the High Court was not bound by it. It was in a better position to appreciate the effect of such order. Therefore, even if the order of the Government was vitiated either because it omitted to issue a proper show-cause notice or it could not have proceeded against the respondent for his past activities the High Court should have refused to interfere in exercise of its equity jurisdiction as the facts of the case did not warrant interference. What could be more harmful to society than appointing the respondent as member of the Board, a position of importance and responsibility, who was found responsible for mass copying at the examination center of which he was a supervisor. It shakes the confidence and faith of the society in the system and is prone to encouraging even the honest and sincere to deviate from their path. It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good.
(emphasis added) ___________________________________________________________________________ Page No.18 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 ::: NEETA SAWANT WP-3700-1994---FC
27) In Garment Craft Versus. Prakash Chand Goel11 the Apex Court has held in paragraph 15 as under:
15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
(emphasis added)
28) Keeping in mind the law expounded in the above quoted judgments, I am not inclined to interfere in the impugned order even if this Court was to notice any error on the part of the Charity Commissioner in directly exercising jurisdiction for deciding the Change Report.
29) I therefore do not find any valid reason to interfere in the impugned order dated 13 April 1994 passed by the Charity Commissioner. The Petition is devoid of merits, it is accordingly dismissed with no order as to costs. Rule is discharged.
NEETA SHAILESH SAWANT Digitally signed by [SANDEEP V. MARNE, J.] NEETA SHAILESH SAWANT Date: 2025.03.26 20:01:30 +0530 11 2022 (4) SCC 181 ___________________________________________________________________________ Page No.19 of 19 26 March 2025 ::: Uploaded on - 26/03/2025 ::: Downloaded on - 26/03/2025 22:33:38 :::