Bombay High Court
Doma Vithu Ramteke vs Assistant Charity Commissioner, ... on 11 April, 2002
Equivalent citations: 2002(5)BOMCR40, (2002)2BOMLR699, 2002(3)MHLJ167
Author: R.S. Mohite
Bench: R.S. Mohite
JUDGMENT R.S. Mohite, J.
1. By this writ petition, the petitioner challenges an order dated 10-3-2000 passed by the respondent No. 1 below Exhibit 24 in Change Report Inquiry No. 377/1993, condoning the delay in the filing of the said change report.
2. The petitioner, being a trustee of a registered Trust, by name Yogiraj Shriviktubaba Shikshan Sanstha, filed a change report bearing No. 332/1993, on 29-7-1993 before the respondent No. 1. The said change report pertained to the election of trustees held on 16-4-1993.
3. On 15-9-1993, the present respondent No. 2 submitted another change report bearing Change Report No. 377/1993 in respect of the earlier elections of the managing committee of the Trust purported to be held on 25-5-1986. Along with change report No. 377/1993, the respondent No. 2 filed an application for condonation of delay.
4. By his order dated 10-3-2000, the respondent No. 1, for the reasons mentioned therein, allowed the application for condonation of delay after giving the reasoned order.
5. The present writ petition was filed on 12-6-2000, impugning the order dated 10-3-2000.
6. The main point raised in the petition is that respondent No. 1 has no jurisdiction to condone the delay in filing of the change report under Section 22 as the proceedings under Section 22 is an original proceeding and limitation of 90 days is given in the section itself. It is submitted that the Section does not speak of any power to condone the delay in case of late submission of change report. Reference is made to Section 75 of the Bombay Public Trusts Act lays down that in computing the period of appeal under the Chapter, the provisions of Sections 4, 5, 12 and 14 of the Indian Limitation Act, 1963 shall apply to the filing of such appeals.
7. As regards this point, matter is no longer res-integra. In a judgment of this Court in the case of B.J. Wakane and Anr. v. Kamlesh Gangaram Kanoje, 1997 (2) Mh. L.J. 158, it was laid down in para 12 by a Single Judge of this Court (Wahane, J.) as under :--
"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 cannot 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 its 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. 1000/- as provided under Section 66 of the Bombay Public Trusts Act, 1950."
According to me, reliance on Section 75, which makes Section 5 of the Limitation Act applicable to appeals, has no relevance because the said section itself does not relate to an application. Furthermore, merely because the change report is an original proceeding, that by itself would not take away the jurisdiction to condone the delay under Section 5 of the Limitation Act, 1963 as the said section not only applies to any appeal but also to an application other than an application under the provisions of Order XXI of the Code of Civil Procedure, 1908. The word "application" would clearly cover an application made for effecting change under Section 22 of the Bombay Public Trusts Act.
8. In this view of the matter, the first point will have to be decided against the present petitioner. The petitioner has also stated that no sufficient ground was raised for condonation of delay of seven years and there was no explanation much less day-to-day explanation for the condonation of delay. He has contended that the ratio of the Apex Court in the judgment reported in Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors. , was not available to respondent No. 2.
9. In fact in the judgment of the Apex Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. Mst. Katiji and Ors., the Supreme Court in paras 3(2) and 3(3), stated as under :--
"2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner."
10. The Apex Court has time and again laid down that when the Tribunal has condoned delay, this Court would be slow in interfering in its discretionary power.
11. In the result, I am not inclined to entertain this petition and the same is rejected. Rule issued in this petition is discharged with no order as to costs and the stay granted 20-6-2001 is hereby vacated.