SSK/71 1 WP.8511.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8511 OF 2010 Shri Dhondiram Prataprao Shinde ....Petitioner Versus The Asst. Charity Commissioner & Ors. ...Respondents Mr. A. V. Anturkar i/b. Mr. Sugandh B. Deshmukh, Advocate for the petitioner. Mr. R. M. Patne, AGP for respondent no.1. Mr. S. G. Deshmukh i/b. Mr. A. J. Kandarkar for respondent nos. 2 to 4. CORAM : RANJIT MORE, J. DATED : 18th APRIL, 2011. P.C.: Heard Mr.Anturkar, learned counsel for the petitioner, Mr. Patne, learned AGP for respondent no.1 and Mr. Deshmukh, learned counsel for respondent nos. 2 to 4. 2. The petitioner by filing this petition challenges the orders passed by the respondent no.1 under which the respondent nos. 2 to 4’s applications for condonation of delay have been allowed. 3. The respondent nos. 2 to 4 are the trustees of Palus Shikshan Prasarak Mandal, Palus. They filed five change reports under Section 22 of the Bombay Public Trusts Act, 1950 (in short “the BPT Act”) for making SSK/71 2 WP.8511.10 various changes. Since there was delay ranging from three years and nine months to three months and eight days, separate applications came to be filed for condonation of delay. These applications were allowed by separate orders and, therefore, the present writ petition. 4. Mr. Anturkar, learned counsel made three submissions. Firstly, he submitted that the respondent nos. 2 to 4’s applications does not contain any reason, nor the respondent no.1 has given any reason for condonation of delay. Secondly, he submitted that the Assistant Charity Commissioner is not a Court within the meaning of Section 5 of the Limitation Act, 1963 and, therefore, he could not have condoned the delay. In this regard, he further submitted that Section 5 of the Limitation Act, 1963 talks about appeals and applications and, therefore, the said provisions are not applicable to the reports under Section 22 of the BPT Act. Lastly, he submitted that similar change reports were made by respondent nos. 2 to 4 under Section 22 of the BPT Act and, therefore, the present reports are barred by the principle similar to res-judicata. 5. Mr. Deshmukh, learned counsel for respondent nos. 2 to 4 on the contrary supported the impugned order. He submitted that apart from the fact that the applications for condonation of delay contained reasons, separate affidavits are also filed which gives reasons as to why there SSK/71 3 WP.8511.10 occurred a delay. Regarding the applicability of the provisions of Section 5 of the Limitation Act, 1963 he submitted that the Assistant Charity Commissioner has power to condone the delay as he is a Court for the purpose of deciding application under Section 22 of the Act. 6. As far as the submission of Mr.Anturkar, learned counsel that the applications does not contain any reasons is concerned, I find no merit in the same. I have gone through the applications and also the affidavit filed in support thereof. In this affidavit, the respondent nos. 2 to 4 have mentioned that the then President of the Trust – Shree Dyandev Vithoba Patil expired in the year 2006 and before his demise, he was seriously ill for a period of approximately three years. The said President was looking after day to day work of the Charity Commissioner. In my view, the reasons given by the respondent nos. 2 to 4 are sufficient to condone the delay ranging from three years and nine months to three months and eight days. Similar satisfaction is recorded by the learned Assistant Charity Commissioner while exercising his discretion. I am not inclined to interfere with the said discretion in my jurisdiction under Article 227 of the Constitution of India. 7. Regarding Mr. Anturkar’s submission that the Assistant Charity Commissioner is not Court and, therefore, has no power to condone the SSK/71 4 WP.8511.10 delay is concerned, I find no substance in the same, in view of the decision of a learned Single Judge in Doma Vithu Ramteke Versus Assistant Charity Commissioner & Anr. reported in 2002(5) Bom. C.R. 40, the learned Single Judge in this case relied upon another decision in B. J. Wahane v. Kamlesh Gangaram Kanoje reported in 1998(1) Bom.C.R. (N.B.)563 and held that merely because the change report is original proceeding that by itself would not take away the jurisdiction to condone the delay under Section 5 of the Limitation Act, 1963. It was further held that 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. It was also held that the word “application” would clearly cover an application made for effecting change under Section 22 of the BPT Act. 8. So far as the third submission of Mr.Anturkar that similar change reports filed by respondent nos. 2 to 4 were rejected is concerned, the petitioner is always at liberty to argue the said point on merits before the Assistant Charity Commissioner and oppose respondent nos. 2 to 4’s application on that point. That submission has no bearing on the issue involved in the present petition viz. condonation of delay. SSK/71 5 WP.8511.10 9. Taking overall circumstances into consideration, I am of the opinion that no case is made out for interference with the impugned order in writ jurisdiction of this Court under Article 227 of the Constitution of India. The Petition is, therefore, dismissed. (RANJIT MORE, J.)