( 1 ) sa544.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 544 OF 2010 WITH CIVIL APPLICATION NO. 11896 OF 2010 Angad s/o. Daridev Chavan & Ors. .. Appellants Versus Ankush Bhairav Bedke & Ors. .. Respondents Mr. V.D. Salunke, for the appellants; Mr. A.S. Deshpande, for respondent Nos. 1 to 3. CORAM : A.V. NIRGUDE, J. DATED : 18.10.2011 P.C. :- 1. This Second Appeal is challenging the concurrent findings of the Courts below that the respondents/trustees are entitled to contest the Change Report filed by appellant No.1/trustee. 2. The facts leading to this litigation in short can be stated as under :- 3. There is a public trust at village Jawala-Khurd, Tal. Kallam, Dist. Osmanabad, of which the appellants and respondent Nos.1 to 3 are trustees. Sometime prior to 1993, one Uttam Chavan was one of the trustees and was also a Chairman of the trust. He died in 1993. So, appellant No.1 in September, 2008, made a report to the Assistant Charity Commissioner, seeking change in the names of the trustees. He informed to the Assistant Charity Commissioner that in place of deceased Chairman, ( 2 ) sa544.10 the trustees had elected one Gangaram Gambhire, who was already a trustee as the Chairman of the trust and he said that one Bhagwat Chavan is taken as a new trustee. He said that this change has taken place by a resolution passed in a meeting. The change was reported on 24th September, 2008 and on 29th September, 2008 the change was accepted. The entries were directed to be taken in P.T.R. 4. It seems that the other trustees of the trust, namely, respondent Nos. 1 to 3 learnt about this order and raised objection to the same by filing a revision under Section 70-A of the Bombay Public Trusts Act, 1950, before the Joint Charity Commissioner. The learned Joint Charity Commissioner allowed the revision and remanded the case back to the Assistant Charity Commissioner. He directed the Assistant Charity Commissioner to hear and decide whether the delay caused in submitting the change report is condonable etc. The appellants then challenged this judgment and order before the District Judge, Osmanabad, under Section 72 of the Act. But, this application too was rejected. So this second appeal is filed. 5. The learned Counsel appearing for the petitioner contended that both the Courts below erred in assuming that the respondents had challenged the order passed by the Assistant Charity Commissioner, condoning the delay ( 3 ) sa544.10 also. The learned Counsel also challenged the legality of the order passed by the Joint Charity Commissioner directing notices to be issued to all the trustees. 6. Having heard the submissions I find that there is practically no substantial question of law arising in this appeal. One must peruse Section 22 of the Act, which provides the procedure etc. for reporting of change in the public trust. Said section reads as under :- 22. Change (1) Where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report shall be made in the prescribed form. (1A) Where the change to be reported under sub- section (1) relates to any immovable property, the trustee shall, along with the report, furnish a memorandum in the prescribed form containing the particulars (including the name and description of the public trust) relating to any change in the immovable property of such public trust, for forwarding it to the Sub-Registrar referred to in sub-section (7) of section 18. Such memorandum shall be signed and verified in the prescribed manner by the trustee or his agent specially authorized by him in this behalf. (2) For the purpose of verifying the correctness of the entries in the register kept under section 17 or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Deputy or Assistant Charity Commissioner may hold an inquiry in the prescribed manner. (3) If the Deputy or Assistant Charity Commissioner, as the case may be, after receiving a ( 4 ) sa544.10 report under sub-section (1) and holding an inquiry, if necessary under sub-section (2), or merely after holding an inquiry under the said sub-section (2), is satisfied that change has occurred in any of the entries recorded in the register kept under section 17 in regard to a particular public trust, or that the trust should be removed from the register by reason of the change, resulting in both the office of the administration of the trust and the whole of the trust property ceasing to be situated in the State, he shall record a finding with the reasons therefor to that effect; and if he is not so satisfied, he shall record a finding with reasons therefor accordingly. Any such finding shall be appealable to the Charity Commissioner. The Deputy or Assistant Charity Commissioner shall amend or delete the entries in the said register in accordance with the finding which requires an amendment or deletion of entries and if appeals or applications were made against such finding, in accordance with the final decision of the competent authority provided by this Act. The amendments in the entries so made subject to any further amendment or occurrence of a change or any cancellation of entries, shall be final and conclusive. (4) Whenever an entry is amended or the trust is removed from the register under sub-section (3), the Deputy or Assistant Charity Commissioner, as the case may be, shall forward the memorandum furnished to him under sub-section (1A), after certifying the amended entry or the removal of the trust from the register to the Sub-Register referred to in sub-section (7) of section 18, for the purpose of filing in Book No. I under section 89 of the Indian Registration Act, 1908, in its application to the State of Maharashtra.” 7. As per sub-section (2) the Assistant or Deputy Charity Commissioner is ascertain after holding enquiry whether any change has occurred in any of the entries in the register. While ascertaining such change the Assistant Charity Commissioner has to examine as to whether after following necessary legal procedure the reporting trustee has caused the change. In this case, ( 5 ) sa544.10 when the report was made, there were several difficulties for the reporting trustee. The first and the foremost was death of Uttam Chavan had occurred way back in 1993 and yet change was not reported within ninety days. The Assistant Charity Commissioner should have, therefore, asked the reporting trustee as to why the change is reported belatedly in 2008. The Assistant Charity Commissioner, then ought to have ascertained as to whether a resolution of the Board of Trustees was passed lawfully etc. In order to ascertain this, the Assistant Charity Commissioner ought to have called for original minute book of the trust. Besides he could have also asked the reporting trustees to keep other trustees present before him. But, it seems, without ascertaining the correctness of the method through which the change was effected, the learned Assistant Charity Commissioner, within two days disposed of the change report. In other words there was practically no enquiry held. As expected, other faction of the trustees immediately raised objection to the order allowing the change. They probably pointed out before the revisional authority that there was enormous delay in reporting of the change etc. In view of these circumstances I do not any error in the impugned order. Since they were interested in opposing the application for change, order remanding the case back the case to the Assistant Charity Commissioner ( 6 ) sa544.10 with direction to examine all the contested questions, is not incorrect. The only error committed by the Joint Charity Commissioner is that he directed notices to all the trustees of the trust. This was unnecessary because all the trustees of both the factions by then were before him. 8. The learned Counsel appearing for the appellant placed reliance on the judgment of the Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy, 1998 (7) SCC 123. He was trying to suggest that if the Assistant Charity Commissioner has condoned the delay, there was no reason for the revisional authority to disturb such finding. In support of his statement, he placed reliance on para 9 of the judgment. It reads as under :- (9) It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior ( 7 ) sa544.10 court to come to its own finding even untrammeled by the conclusion of the lower court. 9. The ratio laid down in this paragraph is noway concerned to the case of the appellants. The Supreme Court in this paragraph very clearly stated that when the delay is condoned, the Authority is required to examine the truthfulness of the explanations. It is held that if the explanation is found to be satisfactory, the delay of whatever length can be condoned. Now in this case the learned Assistant Charity Commissioner apparently condoned the delay but in the impugned judgment which he passed allowing the change, there is no reference to condonation of delay. It seems that through a separate order the Assistant Charity Commissioner had condoned the delay. The learned Counsel appearing for the appellant asserted that since such separate order was not challenged before the Joint Charity Commissioner, he ought not to have interfered in such order. I am afraid this is not acceptable submission. Section 70-A of the Act gives ample power to the revisional authority to examine the correctness in any order passed by the Assistant Charity Commissioner either suo moto or otherwise. The objection about delay was raised before the revisional authority mainly because the previous Chairman had died long before the change report. So the appeal fails. ( 8 ) sa544.10 10. In view of disposal of the Second Appeal, Civil Application for stay does not survive and stands disposed of. [A.V. NIRGUDE, J.] snk/2011/OCT11/sa544.10ok