1 SSK/21 & 22 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1826 OF 2010 Prabhakar Rao Bantwal & Anr. ....Petitioners Versus Praveen Kadle & Ors. ...Respondents. WITH WRIT PETITION NO. 1827 OF 2010 Uday Prabhakar Nileshwar ....Petitioner Versus Praveen Kadle & Ors. ....Respondents. Mr. A.A.Kumbhakoni, Counsel with Mr.T.D.Deshmukh, Advocate for the Petitioners. Mr. V.V.Tulzapurkar, Sr.Counsel with Mr. Nikhil Sakhardande and Mr. Pratik Pawar, i/b. AZB & Partners, Advocate for Respondent No.1. Ms. Gauri Jadhav, Advocate for Respondent Nos. 3, 5 & 6. CORAM : R. V. MORE, J. DATED : 7th APRIL, 2010. P.C.: Heard Mr. Kumbhakoni, learned Counsel with Mr. Deshmukh, Advocate for the Petitioners, Mr. V.V.Tulzapurkar, learned Senior Counsel with Mr. Sakhardande, Advocate for Respondent No.1 & Ms. Jadhav, Advocate for Respondent Nos. 3, 5 & 6. 2 2. Rule. By consent of the parties, rule is made returnable forthwith and taken up for hearing. 3. Since the issue involved and parties to both the above writ petitions are same, both the petitions are being disposed of, by a common order. 4. The Petitions takes exception to the orders passed by the Charity Commissioner on 9th November, 2009 and 22nd February, 2010 in the Petitioners’ application challenging the maintainability of Respondent No.1’s revision before the Charity Commissioner under section 70 A of the Bombay Public Trusts Act, 1950 (hereinafter for the sake of brevity referred as “the BPT Act”) and the application to request the Charity Commissioner to decide Respondent No.1’s delay condonation application first. The brief facts giving rise to the present petitions are as follows: Shree Trust was duly registered by Assistant Charity Commissioner, Mumbai on 2nd December, 1981. The Petitioners in Writ Petition No.1826 of 2010 thereafter, have been appointed as trustees of the said trust on 3rd January, 1989 by accepting the Change Report bearing No.ACC/II/4579 of 1989 and the Petitioner in Writ Petition No.1827 has been appointed as trustee of the said trust on 30th March, 1996 3 by accepting Change Report bearing No.ACC-IV/1222 of 1996. The 1st Respondent claims to have been appointed as a trustee of the said trust w.e.f. 3rd March, 2009. For the first time on 24th April, 2009, the 1st Respondent filed revision applications before the Charity Commissioner challenging the orders dated 3rd January, 1989 and 30th March, 1996 passed by the Assistant Charity Commissioner, Bombay in Change Report bearing Nos. ACC/II/4579 of 1989 and ACC-IV/1222 of 1996 resepctively. The Respondent No.1 alongwith proceedings by way of revision under section 70 A filed applications for condonation of delay. The Petitioners in proceedings filed by Respondent No.1 filed two applications. By first application, they challenged the maintainability of the proceedings filed by Respondent No.1 and by second application, they requested the Charity Commissioner to decide first the application for condonation of delay occurred in filing revision application. As stated above, the learned Charity Commissioner by separate orders dated 19th November, 2009 and 22nd February, 2010 directed that the Petitioners’ application challenging the maintainability shall be decided alongwith main revision and question of limitation under section 70 A of the BPT Act kept open, to be decided at the time of final argument of the main revision application. 4 5. Mr. Kumbhakoni, learned Counsel for the Petitioners objected the impugned orders and submitted that section 70 A of the BPT Act, does not prescribes the period of limitation, therefore, the revision must be filed within a period of reasonable time and this time will have to be decided by the authority before entertaining the revision on merits. He submitted that unless the delay is condoned, the authority will not get jurisdiction to decide revision application under section 70 A of the BPT Act. To substantiate his submission, he has relied upon the Apex Court Judgment in the State of Punjab & Ors. verus Bhatinda District Cooperative Milk Producers Union Ltd. reported in (2007) 11 SCC 363 and judgment of learned Single Judge of this Court in Madhao S/o. Somaji Sarode Versus Jotiba Dhyan Upasak Shikshan Sanstha Dudhala & Ors. reported in 2004 (3)Mh.LJ page 1078. Mr. Tulzapurkar, learned Senior Counsel, per contra submitted that no limitation is prescribed under the provisions of section 70 A and therefore, there is no delay occurred in filing the revision application on the part of Respondent No.1. He further submitted that the revision requires to be filed within reasonable time and reasonable time will be decided by the authority having regard to the facts of the case and nature of the order and therefore, there is no error in the impugned orders which requires interference at the hands of this Court. He relied upon the Apex Court decisions in the State of Gujarat Versus 5 Patil Raghav Natha & Ors. reported in 1969 (2) Supreme Court Cases 187 and the Gram Panchayat, Village Kanonda, Tehsil Bahadurgarh, District Rohtak Versus Director, Consolidation of Holdings, Haryana, Chandigarh & Ors. reported in 1989 Supp(2) Supreme Court Cases 465. 6. The Respondent No.1 seeks to challenge the Order dated 3rd January, 1989 and 30th March, 1989 respectively, purported to be passed under section 22 of BPT Act. The Order under section 22 can be challenged by filing an appeal under section 70 of the BPT Act. The said order can also be challenged by filing revision under section 70 A of the BPT Act. So far as the remedy of Appeal under section 70 is concerned, in view of the provisions of sub-section 2 of Section 70, it is required to be filed within a period of 60 days from the date of the order. However, section 70 A of the BPT Act, does make any provisions for the limitation period to file revision. 7. It is now a settled position of law that whenever the period of of limitation is not prescribed for filing a appeal or revision then Appellate or Revisionary Authority must exercise power within reasonable time. Reference can be made to the decisions of the Apex Court in cases of the the State of Gujarat and the Gram Panchayat, Village Kanonda, Tehsil 6 Bahadurgarh, District Rohtak (Supra). The Apex Court in the case of State of Gujarat(Supra) further held that length of reasonable time must be determined by facts of the case and the nature of the order which is being revised. The Apex Court in the Gram Panchayat, Village Kanonda, Tehsil Bahadurgarh, District Rohtak (Supra), reiterated the above position and held that what is reasonable time is always a question of fact depending upon the facts and circumstances in each case. 8. Thus, if the impugned orders in the light of the above ratio of the Apex Court is considered, then, I do not find any error in the same. The ratio of the Apex Court makes it clear that the length of reasonable time will have to be decided by going into and appreciating the facts of the case and the nature of the order under challenge. If that be so, then, decision as to reasonable time at earlier stage will result in duplication of the work in as much as the facts and circumstances of the case will have to be gone into to decide whether revision is filed within reasonable time and even at the time of deciding the revision application on merits. In these facts and circumstances, I do not find any error in the orders passed by the learned Charity Commissioner. So far as the application challenging maintainability of revision is concerned, same is directed to be decided at the time of hearing main revision. The Petitioner will not be prejudiced, therefore, I am not inclined to interfere with the impugned orders in this regard. 7 8. So far as the decision of the Apex Court in case of the State of Punjab & Ors. (Supra) relied upon by Mr.Kumbhakoni, learned Counsel, is concerned, the Apex Court reiterated the principal that wherever no period of limitation has been prescribed, the statutory authority must exercise its jurisdiction within a reasonable period and reasonableness of the period will depend upon the nature of statute, rights and liabilities thereunder and other relevant factors. Thus, this judgment does not come to the rescue of Mr. Kumbhakoni, learned Counsel, to support the contention that the application for delay must be decided first. So far as the judgment of the learned Single Judge in the case of Madhao S/o. Somaji Sarode (Supra) is concerned, same does not applies to the facts and circumstances of the present case, in as much as appeal, in that case under section 9(1) of the Maharashtra Employees of Private Schools(Conditions of Service) Regulation Act, 1978, was not filed within the period of limitation despite prescription of specific period of limitation. 9. In my view, distinction must be made in cases where the period of limitation to file appeal/revision is provided and where the particular statute is silent about it. Where the period of limitation is prescribed, the proceeding is required to be filed within that particular period and if it is not filed, then, the application for condonation of delay is required to be taken 8 out. In such cases where the proceedings are not filed within a prescribed period of limitation and same are filed alongwith application of condonation of delay, then, the application for condonation of delay must be decided first and if delay is condoned, the authority shall decide and go into the merits of the proceedings. However, in cases where limitation is not prescribed by the statute to file proceedings, the aggrieved person can file revision within reasonable time. The term “reasonableness of the period” in view of the Apex Court Judgments in the State of Gujarat and the Gram Panchayat, Village Kanonda, Tehsil Bahadurgarh, District Rohtak (Supra), will have to be decided on the basis of the facts of the case, nature of the Statute and other relevant factors. Thus, if the delay application is decided earlier, same will result in duplication of the work. Mr. Kumbhakoni, learned Counsel, in this regard submitted that distinction must be made between merits of case and the facts of the case. He submitted that the merits cannot be gone into while deciding an application for condonation of delay. In this regard, he relied upon Full Bench decision of the Gujarat High Court in the case of Municipal Corporation of Ahmedabad Vs. Voltas Limited etc., which decision is referred by the learned Single Judge in the case of Madhao s/o. Somaji Sarode (Supra). It is true that the merits of the case and the facts of the case are two different things and the merits cannot be gone into while deciding the “reasonable period”. However, as stated above, the reasonable period deserves to be decided 9 on the basis of the facts of the case, nature of the statute and other relevant factors and therefore, the application for condonation of delay can be decided alongwith final hearing of the revision. However, the authority deciding the revision shall first record finding regarding whether revision is filed within reasonable time and if the finding is in affirmative, then, proceed to decide the revision on merits. The writ petitions are accordingly disposed of, by passing the following order: 1. The Charity Commissioner shall hear the Respondent No.1’s ’ revision applications nos. 16 and 17 of 2009 together with applications at Exhibit “4” & “3” respectively, for condonation of delay and Petitioners’ applications at Exhibit “10” challenging the maintainability of the revisions. 2. The Charity Commissioner shall first record the finding regarding Exhibit “4” & “3” i.e. applications for condonation of delay and the petitioners’ applications at Exhibit “10” challenging the maintainability of revisions and in the event, the Charity Commissioner finds that the revisions are filed within a reasonable time and same are 10 maintainable, he shall proceed to decide the revision applications. 10. Mr. Kumbhakoni, learned Counsel, at this stage seeks stay of this order for a period of three weeks. Mr. Sakhardande, learned Counsel for Respondent No.1, however, makes a statement that next date of hearing before the learned Charity Commissioner is 12th April, 2010 on which date, the Respondent shall request for an adjournment of two weeks. The statement is accepted. In view of the said statement, the stay need not be granted. (R. V. MORE, J.)