Gujarat High Court
Swami Niranmuktdasji vs Bhuj Kshatriya Mochi Gyati Trust on 9 May, 2019
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/8864/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8864 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SWAMI NIRANMUKTDASJI & 10 other(s)
Versus
BHUJ KSHATRIYA MOCHI GYATI TRUST & 1 other(s)
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Appearance:
MR MEHUL S SHAH, SENIOR ADVOCATE assisted by JENIL M
SHAH(7840) for the Petitioner(s) No. 1,10,11,2,3,4,5,6,7,8,9
MR DHAWAN JAYSWAL, AGP (1) for the Respondent(s) No. 2
MR TUSHAR L SHETH(3920) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 09/05/2019
ORAL JUDGMENT
1. This petition under Article 226 of the Constitution of India is filed with following prayer:-
"8. (a) A writ of certiorari or any other appropriate writ, order or direction may kindly Page 1 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT be issued quashing and setting aside the judgement and order dated 9.03.2017 passed by the Joint Charity Commissioner, Saurashtra and Kutch Division, Rajkot below application Exh.21 in Appeal No.6 of 2017 and allow the application, Exh.21, as prayed for."
2. By the impugned order, the Joint Charity Commissioner has rejected application Exh.21 in Appeal No.6 of 2017, thereby rejecting preliminary objections of the petitioners. The preliminary objections raised were with regard to delay and therefore, non-maintainability of the revision application and non-joinder of the parties as appellants.
3. The brief facts are as under:-
3.1 The petitioner No.3, being trustee of Siddheshwar Mahadev Mandir Trust-Mochirai Sukhpur of Bhuj Taluka, filed change report on 18.10.2013 being Change Report No.302 of 2013 before the Deputy Charity Commissioner, Bhuj-Kutch for including properties situated at Block No.5, property No.153 in Sukhpur village of Taluka Bhuj-Kutch.
3.2 The Deputy Charity Commissioner, after making thorough inquiries, vide order dated 27.12.2013, entered the properties in question in the PTR records of the Trust on the basis of the revenue records of the Page 2 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT properties in question. Subsequently, on 27.01.2017, after gross delay of 1122 days, respondent No.1-Trust through its Managing Trustee, filed an appeal under Section 70 of the Bombay Public Trusts Act, 1950 and the said appeal was preferred without seeking any relief for condonation of delay in the main memorandum of appeal or any separate application for condonation of delay.
3.3 The petitioner filed application Exh.21 on 25.02.2017 for preliminary objections qua the maintainability of the appeal as there was no prayer seeking relief for condonation of delay and also the present appeal was filed without joining other trustees of respondent No.1 Trust as parties before the Joint Charity Commissioner, which is against the settled position of law under the Bombay Public Trusts Act, 1950.
3.4 The respondent No.1 filed reply Exh.27 on 28.02.2017 and objected to application Exh.21 mainly on the ground that respondent No.1 was not aware of the order and hence, the appeal before the Joint Charity Commissioner is within limitation. The Joint Charity Commissioner by order dated 09.03.2017 rejected the application Exh.21 filed by the petitioners and exceeded its jurisdiction by condoning delay in the present appeal without there being any prayer for the same sought by respondent No.1.Page 3 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019
C/SCA/8864/2017 JUDGMENT 4. Learned Senior Advocate for the petitioners
submitted that the change report of 2013 pertaining to properties of the Trust was in favour of the petitioner and the petitioners being trustees were vitally interested in the properties of the Trust. In this regard, against change report of 2013, respondent No.1 had filed an appeal under Section 70 of the Bombay Public Trusts Act, 1950 ("the Act" for short), which according to the petitioners was delayed by 1122 days. When the petitioners came to know about filing of such an appeal, application Exh.21 was filed by the petitioners contending that appeal under Section 70 beyond period of limitation is not maintainable and therefore, such appeal cannot be proceeded on merits at all. In application Exh.21, it was also contended that the provisions of law necessitate joining of all the trustees as appellants in the appeal whereas the appeal is preferred only by one trustee of another trust which is staking its claim in the properties of the Trust. It is submitted that responsibility and duties of trustee cannot be delegated and therefore, appeal cannot be brought by the Trust by authorised person, but has to be filed by all the trustees.
4.1 Learned Senior Advocate for the petitioners submitted that despite such objections, not only the Page 4 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT Charity Commissioner rejected the application Exh.21, but also proceeded to condone delay of 1122 days in preferring the appeal. It is submitted that no grounds for condoning the delay were made out neither separate application was filed for condonation of delay. It is submitted that as provisions of Civil Procedure Code are applicable to the Act, therefore appeal ought to have been accompanied by a separate application for condonation of delay.
4.2 Learned Senior Advocate took this Court to the prayer clause of appeal and submitted that even in the prayer clause, there is no prayer for condonation of delay and the only reference that is made to delay is in para-4 of appeal. It is submitted that it was obligatory upon the Joint Charity Commissioner to satisfy itself on the ground of delay and when there was nothing on record to justify such delay, over and above there were valid objections by the petitioners against condonation of delay, the Charity Commissioner has committed a grave error in brushing aside the objections and treating the delay to be condoned automatically.
4.3 Learned Senior Advocate for the petitioners submitted that the Joint Charity Commissioner has also disregarded a valid objection of the petitioner that appeal is not maintainable at the behest of one of the Page 5 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT trustees. He referred to and relied upon judgment of the Full Bench of this Court in the case of Atmaram Ranchhodbhai Vs. Gulamhusein Gulam Mohiyaddin & Anr., reported in 1972 (13) GLR, 828, to contend that the appeal that is required to be filed by the Trust has to be by all its trustees.
5. As against this, learned Advocate for the respondent No.1 submitted that it is not correct to submit that delay was not an issue when the appeal came to be filed and it is recorded in the order below application Exh.21 that in the appeal, notice came to be issued subject to hearing on delay and therefore, the Joint Charity Commissioner has applied its mind while rejecting application Exh.21 and condoning the delay as a separate issue. Insofar as objection of non-joinder of all the trustees as appellants, it is submitted that the issue is such which can be decided at the final hearing stage of the appeal and therefore, no separate order was required to be passed below application Exh.21. 5.1 It is submitted that in para-4 in the appeal memo, specific mention of delay in preferring the appeal was made. Over and above that, even ground was also mentioned for such delay and therefore, simply as there is no error, it will not preclude the Joint Charity Commissioner from considering the issue of delay and Page 6 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT condoning it.
5.2 Learned Advocate for the respondent submitted that the petitioners have not come with clean hands as they have not disclosed before the Joint Charity Commissioner nor before this Court that the same dispute was subject matter of previous change report which came to be rejected. An appeal against such rejection was preferred by one trustee of the Trust and such appeal also came to be rejected. Non-disclosure of this should be treated seriously.
5.3 It is further submitted that petition should not be entertained even on the ground that the change report, which is the subject matter of appeal preferred by the respondent-Trust is a mischievous change report. It is submitted that in the previous change report though the Trust had made the present respondent-Trust as a party and not succeeded, thereafter, subsequent change report was filed without joining the respondent as party respondent, which speaks volumes about the mischievous attitude of the petitioners and therefore, the Court should not exercise its special jurisdiction in favour of the petitioners.
5.4 It is submitted that there is no delay of 1122 days as is submitted as the date of knowledge is relevant Page 7 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT to be considered for delay. It is submitted that as the change report, which is the subject matter of appeal was surreptitiously made behind the back of the respondent, the respondent was never aware of such change report and only when effect was being given to the change report by carrying out some construction activity that the respondent gained knowledge of the change report and therefore, the date on which the respondent gained knowledge is to be treated as the date relevant and is such date is considered, there is no delay which can be considered as unreasonable and cannot be condoned. 5.5 It is lastly submitted that though the petition is titled as petition under Article 226 of the Constitution of India, the petition is in fact under Article 227 of the Constitution of India and therefore, scope of jurisdiction under Article 227 being limited, the Court may not interfere in the present petition. It is submitted that the petitioner has failed to point out any jurisdictional error to invoke Article 227 and therefore, in the facts, when Article 227 is to be exercised sparingly, facts of this case do not justify invoking of the same.
5.6 He relied upon decision of the Supreme Court in the case of Bhagmal & Ors. Vs. Kunwar Lal & Ors., reported in 2010(3) GLH, 246. He drew attention of the Page 8 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT Court to para-7, which reads as under:-
"7. In our opinion, the High Court was not justified in taking a hypertechnical view. We have seen all the orders. It is quite clear from the Trial Court's order that the Trial Court entertained the application on merits. The Trial Court undoubtedly has referred to the reply of the respondents to the effect that the application for setting aside the ex-parte decree was beyond the limitation. However, the view taken by the Trial Court was based more on the merits. In fact, it went on to record the finding that there was no compromise and the theory of compromise and delay on account of that was not acceptable. The Trial Court has more or the less based its findings regarding delay on the basis of the order sheets. That was not right as the order sheets nowhere bore the signatures of the parties. They were mechanically written mentioning "parties as before". Therefore, the Trial Court did not throw the application under Order IX Rule 13 merely on the basis of the fact that no application for condonation of delay was made. It went on to consider the delay aspect as well as the merits and even allowed the parties to lead evidence. It is to be seen here that the question of delay was completely interlinked with the merits of the matter. The appellants/defendants had clearly pleaded that they did not earlier come to the Court on account of the fact that they did not know about the order passed by the Court proceeding Page 9 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT ex-parte and also the ex-parte decree which was passed. It was further clearly pleaded that they came to know about the decree when they were served with the execution notice. This was nothing, but a justification made by the appellants/defendants for making the Order IX Rule 13 application at the time when it was actually made. This was also a valid explanation of the delay. The question of filing Order IX Rule 13 application was, in our opinion, rightly considered by the appellate Court on merits and the appellate Court was absolutely right in coming to the conclusion that appellants/defendants were fully justified in filing the application under Order IX Rule 13 CPC at the time when they actually filed it and the delay in filing the application was also fully explained on account of the fact that they never knew about the decree and the orders starting the ex-parte proceedings against them. If this was so, the Court had actually considered the reasons for the delay also. Under such circumstances, the High Court should not have taken the hyper-technical view that no separate application was filed under Section 5. The application under Order IX Rule 13 CPC itself had all the 10 ingredients of the application for condonation of delay in making that application. Procedure is after all handmaid of justice. Here was a party which bona fide believed the assurance given in the compromise panchnama that the respondent No. 1/plaintiff would get his suit withdrawn or dismissed. The said compromise panchnama was Page 10 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT made before the elders of the village. Writing was also effected, displaying that compromise. The witnesses were also examined. Under such circumstances, the non-attendance of the appellants/defendants, which was proved in the further proceedings, was quite justifiable. The appellants/defendants, when ultimately came to know about the decree, had moved the application within 30 days. In our opinion, that was sufficient."
5.7 Learned Advocate for the respondent thereafter relied upon decision of Division Bench of this Court in the case of Babubhai Bhagwanji Mehta Vs. State of Gujarat Special Secretary, reported in 2004 (1) GLR, 532, in support of his contention that delay to be considered only from the date of knowledge of the impugned order and there is no delay in filing the appeal considering the date of knowledge.
6. The Court has taken into consideration the rival submissions and documents on record.
7. The subject matter is is an immovable property situated at Block No.5, bearing property No.153, consisting of Hanumanji Temple, Siddheshwar Mahadev Temple, 'Chhataradi', 'Chabutaro', 'a Well', 'Dharmshala' and restrooms, where the parties to this petition are staking their respective claims to be shown as property in their respective PTRs. The main issue raised in the Page 11 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT petition is the decision against the petitioner in application Exh.21 filed by the petitioner raising objection on the ground of limitation. It is the case that though there was delay of 1122 days in preferring the main appeal against the order dated 27.12.2013 passed by the Deputy Charity Commissioner in Change Report No.302 of 2013, there is no separate application nor any grounds, sufficient to condone the delay, were enumerated before the Joint Charity Commissioner and merely by holding that it is a technical objection, application Exh.21 appears to have been dismissed. The order impugned in the appeal is dated 27.12.2013. Appeal No.6 of 2017 appears to have been filed on 27.01.2017. A perusal of the appeal memo at Annexure-B indicates that no reference is made to any delay condonation and only in para-4, delay is sought to be explained. In the opinion of this Court, explanation given in para-4 for delay factually does not appear to be sufficient to condone such delay. Firstly, the reason for delay is attributed to date of knowledge of the impugned order, which was on 19.10.2016. Thereafter, the respondents had made efforts to receive copies of the impugned order and were successful in getting it on 24.10.2016. Thereafter, they were in touch with their lawyer and all the papers were sent to him, but for some reason, was not attending the office and substantial period had lapsed in the meantime. Page 12 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019
C/SCA/8864/2017 JUDGMENT Though it is pleaded that the respondents were ready and willing to provide for the details in this regard, no such details have come on record.
8. The appeal preferred is under Section 70 of the Gujarat Public Trusts Act. Section 70(2) provides for 60 days from the date of passing of the order and no appeal is held to be maintainable after expiration of 60 days. To brush aside the aspect of delay in the impugned order, the Joint Charity Commissioner has adopted two reasonings, one being separate application is not required as Civil Procedure Code is not applicable and that there is no provision to apply Limitation Act to Section 70 of the Gujarat Public Trusts Act. The Court has thereafter proceeded to record Section 75, which pertains to limitation. However, has misconstrued to hold that there is no provision like Section 75 which will apply to Section 70. It is pertinent to point out that Section 75, which provides for computing period of appeal, provides for computing the period for Applications /Appeals under Chapter-11. Section 70 falls within Chapter-11 and therefore, by virtue of Section 75, the provisions of Sections 4, 5, 12 and 14 of the Indian Limitation Act shall apply to filing of appeals and applications. This would include Appeal preferred by the private respondent.
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C/SCA/8864/2017 JUDGMENT
9. As the Court is inclined to examine the issue of delay as dealt with by the Joint Charity Commissioner in the impugned order, the Court is not entering into the merits and any other contention raised by either side any further. The Court is of the view that the delay that has occasioned is an important and an independent aspect and not merely a hyper technical objection. With the passage of time, several changes take place at the ground, including changes in the right, title and interest in the property, which need to be addressed by giving an opportunity to bring everything on record for being considered judiciously. A cursory address to issue of delay and thereafter brushing aside the same on the ground of hyper-technical objection, in the facts of this case, is not justified approach.
10. Before this Court, though the respondents have tried to justify the delay, but the same needs to be addressed in detail. Therefore, the judgments cited by learned Advocate for the respondent with regard to calculating delay from the date of knowledge is also a question of fact, which the Joint Charity Commissioner ought to have addressed by giving clear-cut finding that the Joint Charity Commissioner, on the basis of evidence on record, accepts the contention that a particular date of knowledge of the impugned order is accepted and delay Page 14 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019 C/SCA/8864/2017 JUDGMENT to be calculated from such date. No such finding is available on record.
11. For the forgoing reasons, the petition is partly allowed. The impugned order dated 09.03.2017 is quashed and set aside. The matter is relegated back to the Joint Charity Commissioner for its fresh consideration of application Exh.21 in Appeal No.6 of 2017 by keeping in mind the observations made hereinabove. Rule is made absolute to the aforesaid extent. No order as to costs.
Sd/-
(A.Y. KOGJE, J) SHITOLE Page 15 of 15 Downloaded on : Mon Jul 01 01:32:01 IST 2019