1 wp227.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 227 OF 1992 1 Sayed Salam Gafoor Pirjade 2 Shaikh Babamiya Usman (petitioner abated as against petitioner No.2 on 28.10.1991) 3 Shaikh Ibrahim Abdulla 4 Shaikh Rafique Gulam Hussain All residents of Momaipara Sangamner, District Ahmednagar ...Petitioners Versus 1 Shaikh Gulab Nabee Hussein age major, 2 Hasan Abdul Choudhary, Age major 3 Abdul Karim Burhan, Age major, all R/o. Momainpura, Sangamner, District Ahmednagar ...Respondents ..... Mr. S.K. Shinde, advocate for the petitioners. Mr. M.A. Nerlikar h/f Mr. S.T. Shelke, advocate for R. Nos. 1 to 3. ..... CORAM: S. S. SHINDE, J. DATED: 29TH NOVEMBER 2010 JUDGMENT:- 1 This writ petition is filed challenging the order dated 7.4.1988 2 wp227.92 passed by learned 3rd Additional District Judge, Ahmednagar in Misc. Application No. 91 of 1986, thereby dismissing application for condonation of delay. 2 The facts, which necessitates to file this petition, are as under;- It is the case of the petitioners that they are residents of Sangamner and are beneficiaries and interested persons of Masjid known as new Momainpura Masjid registered as public Trust bearing PR.T No. B-85. The respondent Nos. 1 and 3 are trustees of new amalgamated trust. It is further case of the petitioners that in or about 1981 respondent Nos. 1 to 3 preferred an application to respondent No.4 under Section 50A (2) of the Bombay Public Trust Act (hereinafter for the sake of brevity referred to as “the said Act”) for amalgamation of new Momainpura Masjid and another Masjid. It is further case of the petitioners that on 12.8.1981, respondent No.4 i.e. Joint Charity Commissioner passed an exparte order for amalgamation of two Masjids. It is further case of the petitioners that till 17.1.1984, they were not aware of the amalgamation of two trusts. They came to know after receiving a copy of the order dated 12.8.1981 from Joint Charity 3 wp227.92 Commissioner i.e. respondent No.4. The petitioners immediately in a meeting held on 20.1.1984 of the beneficiaries of the new Momainpura Masjid, in which meeting respondent No.1 took responsibility in the presence of all beneficiaries to get the order of amalgamation set aside by preferring appropriate proceeding. It is further case of the petitioners that the petitioners preferred petition under Section 72 of the said Act. The petitioners filed an application for condonation of delay under Section 5 of the Limitation Act to condone the delay in filing the petition before the District Judge, Ahmednagar. In the said petition, they prayed that the Joint Charity Commissioner should exercise his powers under Section 37 to inspect the trust property under Section 41-B to initiate inquiry under Section 41-D to remove the trustees i.e. respondent Nos. 1 to 3 and cancel the amalgamation of the Trust. It is further case of the petitioners that they filed application for condonation of delay and brought to the notice of the court all facts that delay in filing petition is caused due to their unawareness of the fact of passing order of amalgamation by respondent No.4 and played fraud by respondents by misleading the beneficiaries. It is further case of the petitioners that they filed their petition on 11.2.1986. The application for condonation of delay was filed on 13.6.1986. It is the case of the petitioners that they have shown sufficient cause to condone the delay. However, learned district Judge by order dated 4 wp227.92 7.4.1988 dismissed the application for condonation of delay. Being aggrieved by the said order passed by the learned District Judge, Ahmednagar dated 7.4.1988, this petition is filed. 3 Heard learned counsel for the petitioners and the learned counsel for the respondents. I have perused the grounds taken in the petition. It is stated in the grounds that the respondent No.1 played fraud and misled the beneficiaries of new Momainpura Masjid stating that he will get the order of amalgamation set aside. It is further stated in ground No.3 that the application for condonation of delay need not be rejected on technical ground, if the matter is a public interest. In ground No.4, it is stated that ‘sufficient cause’ should receive the liberal construction so as to advance substantial justice to the beneficiaries of the trust. In ground No.5, it is stated that if the order of amalgamation passed by respondent No.4 is allowed to continue it would cause irreparable loss to the beneficiaries of the new Momainpura Masjid. In ground No.6 it is stated that the learned District Judge ought to have considered that new Momainpura Masjid has nothing to do with the beneficiaries of both the trusts and the independent bodies. 4 Learned counsel appearing for the respondents submitted that the 3rd Additional District Judge, Ahmednagar has taken into consideration the contents of the application, which was filed for 5 wp227.92 condonation of delay, has considered the matter and rejected the application for condonation of delay of 1704 days. Learned counsel in support of his contention has placed reliance on the reasons recorded by the Additional District Judge while dismissing the application for condonation of delay filed by the petitioners. 5 Heard counsel for respective parties. I have carefully perused the grounds taken in the writ petition and also the impugner order dated 7.4.1988. It appears that there was delay of 1704 days in filing the application under Section 72 of the said Act. It appears that the order passed by the Joint Charity Commissioner on 12.8.1981 was challenged by the petitioners herein in the year 1986. Grounds taken by the petitioners in the application for condonation of delay is that the delay occurred because initially the applicant had no knowledge about exparte order that was passed by the Joint Charity Commissioner and secondly when they obtained the certified copy of the said order they called a meeting of all beneficiaries of Momainpura Masjid on 20.1.1984 and in that meeting it was decided one scheme cannot be prepared for two different Masjids . According to the applicants i.e. the petitioners herein, the opponent No.1 was present in the said meeting and in that meeting he promised that he would get the order passed by the Joint Charity Commissioner, set aside. Therefore, the petitioners did not file application under Section 72 of the said act till 1986. Since when the petitioners realized that the opponent No.1 did not get the 6 wp227.92 order of Joint Charity Commissioner set aside, they constrained to file application under Section 72 of the said Act. It is therefore, contended that they have shown sufficient ground to condone the delay. 6 It further appears that the respondents herein filed written statement at Exh.12 before the Additional District Judge opposing the application for condonation of delay. In the said written statements, the respondents contended that the petitioners herein have no locus standi to file application under Section 72 of the said Act. The other contentions were also taken in the said written statement. 7 The learned Additonal District Judge, Ahmednagar has considered the submissions of the petitioners and also adverted to the averments in the application for condonation of delay. The court has recorded that the Joint Charity Commissioner passed order on 12.6.1981 in application No. 25 of 1981 and directed that both the trusts be amalgamated. However, the petitioners herein, who are original applicants filed application under Section 72 of the said Act on 13.6.1986 and there is delay of 1704 days in submitting the said application under Section 72 of the said Act. 8 So far as the contention of the petitioners that they were not aware about the proceeding before the Joint Charity Commissioner till 1984 is concerned, the Additonal District Judge has referred a public 7 wp227.92 notice issued in daily newspaper and held that since there was public notice issued in daily newspaper about the said amalgamation, now it is not open for the petitioners to contend that they were not aware of the order passed by the Joint Charity Commissioner on 12.6.1981. The court has also referred to the written statement filed on behalf of the respondents, in which it was stated that the said public notice was also pasted on the gate of Masjid situated in Momainpura. Therefore, the learned District Judge, negatived the contention of the petitioners that they had no knowledge till 1984 about the order passed by the Joint Charity Commissioner on 12.6.1981. 9 In para 6, the court has considered that even assuming for the sake of argument that the applicants had no knowledge about the application pending before the Joint Charity Commissioner and that they came to know about the decision for the first time on 15.1.1984, even then, it cannot be said that delay caused in submitting the application is justifiable. The court has taken a note that application was preferred under Section 72 of the said Act on 13.6.1986. Therefore, the court has considered that even if it is assumed that the petitioners came to know about the order dated 12.6.1981 passed by the Joint Charity Commissioner on 15.1.1984, however, for the first time they challenged the said order by way of application under Section 72 of the said Act only in the year 1986. The court has also observed that nothing has been placed on record by the petitioners i.e. 8 wp227.92 original applicants to show that there was meeting and opponents had in fact agreed to get the order cancelled. The court has observed that if the really there would have been such meeting and the beneficiaries would have obtained a promise from opponent No.1, then certainly they would have obtained at least something in writing from the opponents. But that has not happened. Even there is no notice given to the opponents by petitioners to take any appropriate action against opponents. 10 Therefore, the court taking in to consideration the averments in the application and evidence produced and after appreciating the rival contentions, has rejected the application for condonation of delay. The court has also observed that no prudent man could have waited for such a long period having full knowledge that the opponents are not doing anything and there is order which according to them was against their interest. Therefore, on the strength of the material which was brought on record by the parties, the court has taken reasonable and possible view. It is true that the sufficient cause should receive liberal construction, however, the parties must be able to satisfy the concerned court that the sufficient cause has been disclosed in the application. It is also true that the length of delay is not important and sufficient cause disclosed in the application matters. However, in the facts of this case, the petitioners have utterly failed to disclose the sufficient cause so as to condone the delay. 9 wp227.92 11 It is not disputed by the petitioners that there was no public notice issued in daily newspaper or said information about the amalgamation was not given at the gate of the Masjid situated at Momainpura. Even after knowledge of the order passed by the Joint Charity Commissioner, the petitioners have waited for another period of two years. Therefore, in my opinion, the Additional District Judge, Ahmednagar has taken reasonable and possible view. No interference is warranted in the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Writ petition is devoid of any merits and the same stands dismissed. Rule stands discharged. *****