1 fa292-293-08j IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.292 OF 2008 ALONGWITH FIRST APPEAL NO.293 OF 2008 Maharashtra Gandhi Smarak Nidhi, ] A Trust registered under the ] Provisions of the Bombay Public ] Trust Act, 1950 having its office at ] Gandhi Bhavan, Kothrud, Pune – 38. ] Through its Chairman ] Dr. Shri Kumar Saptarshi, ] Occupation – Social Work ] Gandhi Bhavan, Kothrud, ] Pune – 411 038. ] .. Appellant V/s. 1. Gandhi Smarak Nidhi (Central) ] A Trust Registered under the ] Provisions of the Indian Trust ] Act having its office at Rajghat, ] New Delhi – 110 002. ] 2. Hon'ble Charity Commissioner ] (Joint) Pune Region, Pune -1. ] .. Respondents ..... Mr. Sugandh B. Deshmukh for the appellant. Mr. J. Shekhar i/b. M/s. J. Shekhar & Co. for respondent No.1. ..... 2 fa292-293-08j CORAM : A. S. OKA, J. DATE : APRIL 28, 2011. ORAL JUDGMENT :- On 18th January, 2011, this Court directed that these Appeals will be heard and disposed of finally at the stage of admission. In view of the settled law, an Appeal under Section 72(4) of the Bombay Public Trusts Act, 1950 is maintainable only on a substantial question of law. Following substantial questions of law arise in the Appeals. (i) Whether any period of limitation is applicable for exercise of power of revision under Section 70(A) of the Bombay Public Trusts Act, 1950 (hereinafter referred to as “the said Act”)?. (ii) If it is held that no period of limitation is prescribed for exercise of power under Section 70(A) of the said Act, whether the power is required to be exercised within a reasonable time from the date of passing the impugned 3 fa292-293-08j order? 2. The learned counsel appearing for the parties were already put to notice that the Appeals will be heard on the aforesaid substantial questions of law. 3. As observed by this Court earlier, this is an unfortunate litigation between two Trusts which are founded in the name of the father of the nation. Considering the questions of law framed, it is not necessary to go into the details of the dispute between the parties. On 19th August, 1977, the learned Assistant Charity Commissioner accepted the change report Nos.539 of 1977 and 540 of 1977. The change report No.539 of 1977 was in respect of land bearing Survey No.36 Hissa No.2 situated at Kothrud, Pune. The prayer in the said change report was that the said property be shown as the property of the appellant Trust by making a necessary entry in Schedule-I. The change report No.540 of 1977 was in respect of land bearing Survey No.36/1B admeasuring 7 Are at Kothrud, Pune. The prayer therein was that the entry of the said property be made in Schedule-I as the property of the appellant-Trust. 4 fa292-293-08j 4. For challenging the said orders on the said two change reports, the first respondent preferred two separate revision applications under Section 70(A) of the said Act. The said revision applications were filed before the learned Joint Charity Commissioner, Pune Region, Pune. Various objections were raised by the appellant including an objection that there was an inordinate delay of 23 years and 7 months in filing the revision applications. It was contended that the revision applications were barred by limitation. The said objection has been noted in the Judgment delivered by the learned Joint Charity Commissioner. One of the findings recorded by the learned Joint Charity Commissioner is that there was no prescribed period of limitation applicable to revision applications under Section 70(A) of the said Act. By Judgment and Order dated 11th September, 2001, the learned Joint Charity Commissioner allowed both the revision applications preferred by the first respondent and by quashing and setting aside the impugned orders, rejected the change reports. Being aggrieved by the orders passed by the learned Joint Charity Commissioner on the revision applications, the present appellant preferred applications under Section 72(1) of the said Act 5 fa292-293-08j before the District Court. Apart from other contentions on merits, it was urged before the learned District Judge that there was a gross delay in filing the revision applications, in as much as the revision application were preferred after 23 years and 7 months from the date of passing orders by the learned Assistant Charity Commissioner. The said objection was overruled by the learned District Judge by placing reliance on a decision of this Court in the case of Virbala K. Kewalram V/s. Ramchandra Lalchand 1997 Mh. L. J. (1) 94. The learned District Judge observed that this Court has held that there was no prescribed period of limitation and in fact this Court held that the revision application filed after 28 years was maintainable. 5. The submission of the learned counsel appearing for the appellant is that even assuming that there was no prescribed period of limitation for filing a revision application under Section 70(A) of the said Act, revisional jurisdiction can be exercised provided the revision application is made within reasonable time. He has placed reliance on various decisions including the decision of the Apex Court in the case of Santoshkumar Shivgonda Patil V/s. Balasaheb Tukaram Shevale & Ors. [(2009) 9 SCC 352]. He submitted that as 6 fa292-293-08j far as the decision in the case of Virbala (Supra) is concerned, the only issue which came up for consideration was whether there is any prescribed period of limitation for invoking powers under Section 70(A) of the said Act. In paragraph No.11 of the case of Santoshkumar Shivonda Patil (Supra), the Apex Court held that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time, rather it should be exercised within a reasonable time. 6. The learned counsel appearing for the first respondent relied upon the aforesaid decision of the case of Virbala (Supra). He pointed out that another learned Single Judge of this Court in the case of Vithalrao Kharpadi V/s. Motiram Birajdar [2010 (1) Mah. L. J. 977] has taken a view that there is no period of limitation for exercise of Suo Motu power under Section 70(A) or for entertaining an application under Section 70(A). He placed reliance on unreported decision of this Court in the case of Mohamad Haidar Mujawar V/s. Jamal Haider Mujawar decided on 23rd July, 1968. He submitted that the decision of the Apex Court in the case of Santosh Kumar (Supra) deals with a power of revision under Section 257 of 7 fa292-293-08j the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as “the said Code”). His submission is that in the proceedings under the said Code, substantive rights of the parties are not decided. However, as far as the provisions of the said Act are concerned, the same is a complete Code which governs all Public Charitable Trusts. His submission is that under Section 70(A), the Charity Commissioner has discretionary power to correct illegal orders passed under the provisions of the said Act. His submission is that considering the nature of the duties performed by the learned Charity Commissioner, there is no limitation or time limit prescribed for exercising powers under Section 70(A). His submission is that the view taken by two learned Judges of this Court will not be affected by the decision of the Apex Court in the case of Santosh Kumar Patil (Supra). 7. I have given careful consideration to the submissions. Section 70(A) of the said Act read thus: “Charity Commissioner to call for the examine records and proceedings before Deputy or Assistant Charity Commissioner.- 8 fa292-293-08j (1) The Charity Commissioner may in any of the cases mentioned in section 70, [either suo motu or on application] call for and examine the record and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annual, reverse, modify or confirm the said finding or order or may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence: Provided that the Charity Commissioner shall not record or pass any others without giving the party affected thereby an opportunity of being heard. (2) Nothing in sub-section (1) shall entitled the Charity Commissioner to call for and examine the record of any case,-- (a) during the period in which an appeal under section 70 can lie against any finding recorded by the Assistant or Deputy Charity Commissioner in such case, or (b) in which an order has been passed either in an appeal made under section 70 or 71 or on application under section 72. ” 8. It will be necessary to make a reference to the decision of this Court in the case of Virbala (supra). Perusal of the said decision shows that a submission was made before this Court that power under Section 70(A) is to be exercised by the Charity Commissioner 9 fa292-293-08j within the prescribed period of limitation. A submission was canvased before this Court that power of revision has to be exercised in accordance with Section 19 of the said Act read with Rule 7 and 7(A) of the Bombay Public Trusts Rules, 1951. It will be interesting to note what is held by this Court in paragraph No. 8 of the said decision. It is held thus: “In view of the above observations it could not be said that the learned Charity Commissioner has no power to invoke the revisional jurisdiction under Section 70(A). The power conferred to the Charity Commissioner under section 70(A) can be invoked suo motu and it is not barred by law of limitation. However, it is a revisional jurisdiction conferred on the Charity Commissioner and it is a discretionary power. It is to be exercised not arbitrarily but judiciously and within the reasonable time. Once it is held that order under challenge or review is inherently bad-in-law and without jurisdiction, such order could be reviewed and revised under the revisional jurisdiction of the Charity Commissioner and it will not be barred by law of limitation.” (Underline supplied) 9. What is laid down by this Court is that there is no prescribed period of limitation for exercise of the revisional jurisdiction. However, this Court specifically held that the power under Section 70(A) being a discretionary power, it must be exercised judiciously 10 fa292-293-08j and within a reasonable time. Thereafter, this Court proceeded to consider the facts of the case and considering the peculiar facts of this case, upheld the exercise of revisional power after lapse of several years. 10. Now I must consider the decision of this Court in the case of Vithalrao Kharpadi (Supra). The First Appeal decided by this Court was under Section 72(4) of the said Act. The substantial question of law framed in paragraph No.4 of the said decision reads thus: “ Whether the Joint Charity Commissioner, Latur committed error in entertaining revision under Section 70A in view of Bar under sub-section (2) of section 70A read with section 70(2)(b) of the Bombay Public Trusts Act, 1950 and whether the order of remand passed by the Joint Charity Commissioner is sustainable in law?” Perusal of the said decision shows that a submission was made that an application filed for invoking Section 70(A) will be governed by limitation provided under Section 70 of the said Act. This Court examined the Scheme of the provisions of the said Act. In paragraph No.7 of the said decision, this Court reiterated that for entertaining a revision application or for exercising suo motu powers under Section 11 fa292-293-08j 70(A), no limitation has been prescribed. This Court rejected the contention raised before it that a revision application cannot be entertained beyond the time limit permissible for entertaining an Appeal. Thus, the law laid down by this Court in both the decisions is that the said Act does not prescribe any specific period of limitation either for filing an application invoking Section 70(A) of the said Act or for exercise of suo motu power of revision under Section 70(A). In the case of Vithalrao Kharpardi (Supra), the contention that the power has to be exercised within a reasonable time was not canvassed. However, in the case of Virbala (Supra) this Court specifically held that the power under Section 70(A) cannot be exercised arbitrarily and it must be exercised within a reasonable time. 11. It is true that the Apex Court in the case of Santosh Kumar (supra) was dealing with revisional jurisdiction under Section 257 of the said Code. Under the said Code, the Revenue/Survey Officers are conferred with very wide powers including the power of resumption of land, power of removal of unauthorized occupancies etc. Even under the said Code, there is no specific period of limitation 12 fa292-293-08j prescribed for a revision under Section 257 of the said Code. The issue before the Apex Court was whether revisional power can be exercised at any time. The Apex Court made a reference to its earlier decision in the case of Mohd. Kavi Mohamad Amin V/s.Fatmabai Ibrahim [1996 (6) SCC 71] and in paragraph No.11, the Apex Court held thus: “It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain exercise of such power within reasonable time is inherent therein.” (Underline supplied) 13. Exercise of revisionary power under Section 70(A), whether suo motu or otherwise, will be governed by the law laid by the Apex Court. Reliance placed on the unreported decision of this Court in the case of Mohammad Haider will not help the first respondent in view of what is held by the Apex Court. As held by this Court in the case of Virbala (Supra), the power under Section 70(A) is a discretionary 13 fa292-293-08j power and, therefore, the said power cannot be exercised arbitrarily. It should be exercised in a reasonable manner. Therefore, it follows that the power has to be exercised within a reasonable time. 14. What is the reasonable time within which the power can be exercised will depend on the facts and circumstances of each case. After considering all the relevant factors, the Charity Commissioner will have to come to the conclusion whether the revisional power was invoked within a reasonable time or not. 15. Perusal of the impugned Judgment of the District Court shows that in paragraph Nos. 10 and 11, the submission that the revision applications under Secftion 70(A) were filed after lapse of 23 years and 7 months has been noted. In paragraph No.13, the learned District Judge has quoted what is held by this Court in the case of Virbala (Supra). However, the learned District Judge completely ignored the paragraph No.8 of the said decision which holds that the power has exercised within a reasonable time. In paragraph No.14, the learned District Judge proceeded to observe thus: 14 fa292-293-08j “The upshort of the above discussion is that the delay is not a good ground for invoking the revisional powers under Section 7(A) of the Trusts Act. The learned Joint Charity Commissioner, Pune has rightly rejected the aforesaid contention holding that the Revision Applications preferred after the period of 23 years and 7 months against the order dated 19.08.1977 passed in two Change Reports are maintainable. ” (Underline supplied) 16. The learned District Judge was under an obligation to consider whether the revisional jurisdiction was invoked within a reasonable time. However, this aspect has not been considered by the learned Judge. There is a complete non application of mind on this aspect and the learned Judge proceeded only on the ground that there is no prescribed time limit for invoking the powers under Section 70(A) of the said Act. For considering the factual aspect as to whether the revisional jurisdiction was invoked by the respondents in a reasonable time, an order of remand will have to be passed only on this ground. Hence, I pass the following order: :: O R D E R :: i. The impugned order dated 26th February, 2003 is quashed and set aside and Civil Misc. Application Nos. 15 fa292-293-08j 725 and 726 of 2001 are restored to the file of the learned District Judge. ii. The learned District Judge while deciding the applications afresh shall consider the question as to whether the first respondent has invoked the revisional power under Section 70(A) of the said Act within a reasonable time. iii. It is obvious that if the learned Judge comes to the conclusion that the power was not invoked within reasonable time, the applications cannot be entertained on merits. iv. All contentions of the parties on merits are expressly kept open. v. The learned District Judge will decide the application as expeditiously as possible and preferably within a period of six months from the date on which 16 fa292-293-08j writ of this order is produced before the learned District Judge. vi. Pending Civil Applications do not survive and the same are disposed of. JUDGE