REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3267 OF 2009
(Arising out of Special Leave Petition (Civil) No. 18811 of 2007)
Hidayatkhan Bismillakhan Pathan ..... Appellant
Versus
Vaijnath and others ..... Respondents
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. Marathwada Sarvodya Shikshan Prasarak Mandal is a public Trust
registered under the Bombay Public Trust Act, 1950 (hereinafter called, for
the sake of brevity, `the Act’) as also the Societies Registration Act, 1850.
Its office is situated at Partur, District Jalna in the State of Maharashtra. It
was created inter alia for the purpose of imparting education to the children
of the rural area. The constitution of the Trust provides for 15 life members
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out of which 13 would be the ex-officio members of the Executive
Committee and the other two would be the co-opted members from amongst
the General Members elected by the majority of the life members of the
Executive Committee which is an elected body. The tenure of the elected
body is five years. Members of the Managing Committee were elected in an
election held on 30th June, 1996. However, before expiry of its term of five
years, respondent No.1 submitted his resignation on 31st December, 1999. A
change report to that effect was filed and approved by the competent
authority under the Act.
3. Fresh elections took place on or about 26th June, 2001. The term of
the said Committee expired in 2006. Again elections were held in the year
2006. However, after the elections were held in 2001, a change report had
been submitted. It was accepted by the Assistant Charity Commissioner,
Jalna on 5th August, 2002. It is stated that about 82 meetings were held
thereafter and the first respondent participated in almost all of them. He had,
thus, accepted the election of the second respondent, Babasaheb Akat, as the
President of the Trust.
Since 2001 several changes took place for which `change reports’
were filed and accepted by the Assistant Commissioner from time to time.
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4. Disputes and differences allegedly arose between the first respondent
and the second respondent in October, 2003.
Respondent No.1 filed a revision petition before the Joint Charity
Commissioner questioning the validity of the elections held in 2001. The
Joint Charity Commissioner by its judgment dated 4th June, 2004 opined that
the revision application filed by the first respondent was barred by limitation
but despite the same proceeded to initiate a purported suo moto proceeding
under Section 70-A of the Act. The revision application was allowed inter
alia observing that the notice dated 26th June, 2001 calling for the meeting
had not been issued as per the by-laws of the society and, thus, the business
conducted in that meeting on the basis of such defective notice cannot be
said to be legal and valid and in that view of the matter office-bearers had
also not been elected validly. It was concluded :-
“The matter may be contested or non contested
then also a duty is cast upon lower authority to
satisfy that change is occurred as per the by laws
of the society and call for some necessary
information documents etc for its satisfaction. But
here Ld. Lower authority passed mechanically
order without any application of mind and
therefore the impugned order of the lower
authority cannot (sic) be said to be legal and
valid.”
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The learned Joint Charity Commissioner, however, further held that
while filing the revision application, the first respondent did not act bona
fide and the same did not advance the cause of justice.
The order impugned before him, however, was set aside pointing out
the aforesaid irregularities.
We may place on record that as the first respondent had approached
the revisional authority with a `false case’, costs were imposed on him.
5. Aggrieved by and dissatisfied therewith, the second respondent filed
an application before the District Judge, Jalna. The learned District Judge
by his order dated 28th June, 2004 allowed the said application in part and
remanded the matter back to the Joint Charity Commissioner with a
direction that all the trustees and co-opted members of the Trust be given
notice and fresh enquiry under Section 70A of the Act be held and a fresh
decision be rendered.
6. An appeal was preferred thereagainst by the first respondent before
the High Court of Judicature at Bombay and by reason of an order dated 16th
October, 2004 the said appeal was dismissed.
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7. The Joint Charity Commissioner, however, instead of hearing the
matter himself remitted the same to the Assistant Charity Commissioner. A
Miscellaneous Application was preferred thereagainst and by a judgment
and order dated 7th July, 2006 the learned 4th Adhoc Additional Judge, Jalna,
upon reviewing the entire fact situation including the subsequent events, as
also relying on or on the basis of a decision of Jagatnarayan Singh
Swarupsingh Chithere and Ors. v. Swarupsingh Education Society and Anr.
1980 Mah. L.J. 372, held as under :-
” In the light of ratio of this case it is thus
futile to reject the applications and again direct the
fresh inquiry in this matter that would not only
consume the time but harass the parties.
Therefore, it is just and proper to allow the
applications the term of the Managing body is
already expired and the parties can face the fresh
election thereafter.
In view of all these facts I answer point No.1
& 2 in the affirmative and proceed to pass the
following order.
ORDER
1. The Misc. Application No. 27/2006
and Misc. Application No.42/20006
are hereby allowed with costs.
2. The impugned order passed by the learned
Jt. Charity Commissioner in Revision
Petition No.3/2004 remanding the matter of
Enquiry No.373/01 to the Learned Asstt.
Charity Commissioner, is thereby set aside.”
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8. First respondent preferred a second appeal thereagainst which, by
reason of an order dated 18th July, 2007, purported to be on a concession
made by the appellant as also of the parties who had filed caveats, was
allowed, holding :-
“The Joint Charity Commissioner appears to have
committed impropriety and judicial indiscipline by
not complying with the directions of the District
Court passing on the buck by remanding the matter
to the Assistant Charity Commissioner. That itself
is improper. He should not have directed further
remand when he was asked to consider the
additional evidence and decide the matter afresh.
Though the Joint Charity Commissioner is a
revisional authority, yet the scope of revision is not
limited like a criminal revision and supervisory
jurisdiction is available in order to rectify the
errors as well to do complete justice and decide the
questions involved. In this view of the matter, it
will not serve any useful purpose in admitting the
matter or taking any further decision by this Court
and, therefore, the learned Counsel have fairly
conceded to remand the same to the Joint Charity
Commissioner for afresh decision irrespective of
the fact that subsequent elections have been
allegedly conducted and subsequent change report
is pending for enquiry before the Assistant Charity
Commissioner.”
9. Indisputably respondent Nos. 6, 10 and 20 before the High Court,
inter alia, had not been given any notice of the said second appeal.
Respondent No.6 before the High Court has filed the present appeal by
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special leave petition. An application (I.A. No.2 of 2008) to withdraw the
special leave petition has been filed by the petitioner. On the other hand,
respondent Nos. 10 and 20 filed application (I.A. No.3 of 2008) for their
transposition to the category of the petitioners.
We allow the application of transposition.
10. Mr. P.S. Narasimha, and Mr. Uday Umesh Lalit, learned senior
counsel appearing on behalf of the transposed appellants, in support of the
appeal, would contend that having regard to the subsequent events and in
particular, the fact that elections had been held in the meantime, the
impugned judgment cannot be sustained. It was furthermore contended that
as admittedly no notice had been issued, the High Court but for the
purported concession made by the respondents appearing before it, could not
have allowed the appeal as a result whereof the parties have been relegated
to the same position where they stood in 2004.
11. Mr. Shyam Diwan, learned senior counsel appearing on behalf of
respondent No.1, on the other hand, would submit :-
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(1) Respondent No.20 being the wife of respondent No.2, should not
be allowed to be transposed to the category of the appellant and
side with her husband, who had already made a concession before
the High Court.
(2) A special leave petition against a consent order is not maintainable
and furthermore in the original special leave petitioner suppressed
various facts, no order on the application for transposition should
be passed.
(3) The Joint Commissioner having conducted an enquiry pursuant to
the order of the High Court, no interference with the order of the
High Court is unwarranted.
(4) An objection made to the change report being in the nature of a
suit, any consequence emanating therefrom, namely effect or
validity of the meetings and the transactions made should be
allowed to be taken to its logical conclusion.
12. The Act was enacted to regulate and make better provisions of
administration of public, religious and charitable trust in the State of
Bombay. In terms of the provisions thereof the Charity Commissioner, the
Joint Charity Commissioners and other statutory authorities exercise wide
jurisdiction. Indisputably a trust should be administered strictly in
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accordance with law. A change report filed in terms of Section 22 of the Act
must be considered on its own merit. Section 17 of the Act provides for
maintenance of books, indices and registers, as prescribed therein.
Whenever a change in the said books, indices and registers takes place, a
change report is to be filed under Section 22 of the Act.
13. A change report, thus, may have to be effected in regard to the
particulars of the Managing Directors of the Trust or in respect of any
property which was the subject matter of any transaction.
14. When a change report is filed under Section 22 of the Act the
Assistant Charity Commissioner would be entitled to make an enquiry in
regard thereto. An objection can be filed not only by a Member of the
Committee but also by a party who may be affected by reason thereof. For
the said purpose an enquiry is required to be conducted in terms of the
procedure prescribed under the Small Causes Courts Act, 1882. Other
procedures laid down in the Bombay Public Trusts Rules, 1951 are also
required to be followed.
15. Section 70 of the Act provides for appeal from an order passed by the
Deputy of Assistant Charity Commissioner. Section 70A of the Act confers
on the Charity Commissioner suo moto jurisdiction to call for and examine
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the record of such authority for the purpose of satisfying himself as to the
correctness or otherwise of the order recorded or passed by it. For the said
purpose the parties affected thereby are required to be given an opportunity
of hearing. Section 72 provides for an application before the District Judge
from a decision of a Charity Commissioner inter alia rendered under Section
70A of the Act. Sub-section (4) of Section 72 thereof provides for a further
appeal to the High Court.
16. The jurisdiction of the Charity Commissioner or an Appellate
Commissioner to initiate a suo moto proceeding, however, is limited.
Although the scope of the present appeal is limited, keeping in view the
nature of controversy involved herein we have heard the parties at length so
as to enable us to consider not only the validity or otherwise of the
impugned judgment passed by the High Court but also the desirability to put
an end to the entire controversy between the parties.
17. It is now a well settled principle of law that a court of law or a
superior Tribunal would not entertain an appeal or revision application
wherein no effective order can be passed. For the said purpose not only the
fact situation as was obtaining on the date of filing of the application shall be
10
taken into consideration but also the events which took place subsequent
thereto.
Although no period of limitation is prescribed for initiating a suo
motu proceeding, it is beyond any cavil that such a power should not be
exercised after a long time.
18. The election in question was held in the year 2001 validity whereof
was questioned only in 2003. The Joint Charity Commissioner in his order
dated 04.06.2004 categorically opined; (1) the appeal filed by the first
respondent was barred by limitation; (2) his action was not bona fide; and
(3) he did not have any prima facie case.
19. A suo motu jurisdiction, as envisaged under Section 70A of the Act
can be initiated for the purposes mentioned therein. It is an enabling
provision. The said jurisdiction need not be exercised only because it would
be lawful to do so. For the said purpose not only the parties are required to
be heard but also subject to the limitations provided for in sub-section (2)
thereof.
Some limitations have been provided for in regard to exercise of the
jurisdiction by the Charity Commissioner (1) it must be exercised within the
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prescribed period of limitation; and (2) where an order has been passed
either under Sections 70 or 71 of the Act.
In this case an appeal was preferred before the Charity Commissioner
who did not exercise its jurisdiction before it became barred by limitation
the application. Even in the appellate order, the appeal was not only held to
be not maintainable being barred by limitation but also no prima facie case
therefor was found. The Joint Charity Commissioner arrived at a finding
that the first respondent, although preferred the appeal, in fact attended all
the proceedings and participated in the meetings. If no prima facie case was
found in the appeal of the first respondent as his action was found to be
lacking bona fide, it should not have, in our opinion, exercised its suo moto
powers. It is true that the order of the learned District Judge dated 16th
October, 2004 had attained finality in the sense that an enquiry was directed
to be held. However the purpose and object for which such an enquiry was
directed to be held, in our opinion, was no longer available, keeping in view
the fact that even fresh election had taken place in the year 2006.
20. The tenure of the Managing Committee had come to an end by efflux
of time. Change report in respect of the registers for achieving the said
purpose was required to be filed for satisfying the requirement of law,
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although no effective order could be passed thereupon. It is one thing to say
that the change report sought to be effected in respect of the names of the
Members of the Managing Committee and/or its President lost its object but
it is another thing to say that any transaction which had been entered into
may still be subject to an enquiry.
21. In Shahabad Coop. Sugar Mills Ltd. v. Spl. Secretary to Govt. of
Haryana Co rpn., [ (2006) 12 SCC 404 ] this Court relying on a decision of
this Court in D.N. Roy and S.K. Bannerjee v. State of Bihar, [ (1970) 3
SCC 119 ], while opining that a revision application would not be
maintainable, held :-
“26. If the revision application was not
maintainable, a fortiori suo motu power could not
also be exercised. Even otherwise if suo motu
power is to be exercised, it has to be stated so. In
D.N. Roy and S.K. Bannerjee v. State of Bihar,
this Court opined:
“7. It is true that the order in question also
refers to `all other powers enabling in this
behalf’. But in its return to the writ petition the
Central Government did not plead that the
impugned order was passed in exercise of its
suo motu powers. We agree that if the exercise
of a power can be traced to an existing power
even though that power was not purported to
have been exercised, under certain
circumstances, the exercise of the power can be
upheld on the strength of an undisclosed but
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undoubted power. But in this case the difficulty
is that at no stage the Central Government
intimated to the appellant that it was exercising
its suo motu power. At all stages it purported to
act under Rules 54 and 55 of the Mineral
Concession Rules, 1960. If the Central
Government wanted to exercise its suo motu
power it should have intimated that fact as well
as the grounds on which it proposed to exercise
that power to the appellant and given him an
opportunity to show cause against the exercise
of suo motu power as well as against the
grounds on which it wanted to exercise its
power. Quite clearly the Central Government
had not given him that opportunity. The High
Court thought that as the Central Government
had not only intimated to the appellant the
grounds mentioned in the application made by
the 5th respondent but also the comments of the
State Government, the appellant had adequate
opportunity to put forward his case. This
conclusion in our judgment is untenable. At no
stage the appellant was informed that the
Central Government proposed to exercise its
suo motu power and asked him to show cause
against the exercise of such a power. Failure of
the Central Government to do so, in our
opinion, vitiates the impugned order.”
22. If in the aforementioned situation, the learned District Judge had taken
a different view having regard to the manner in which the Joint
Commissioner has exercised its suo moto jurisdiction, namely in stead and
place of making an enquiry himself remanded the matter back to the
Assistant Charity Commissioner, no illegality can be said to have committed
by him. Furthermore in view of the subsequent events which had taken
14
place, namely holding of the election in the year 2006, we are of the opinion
that he cannot be said to have committed an error in passing the said order.
Even respondent No.1 should not have been allowed to prefer an appeal.
Appeal having been dismissed by the Joint Charity Commissioner no further
appeal, at his instance, before the High Court should have been entertained.
The High Court furthermore did not apply its mind to the merit of the
matter. Evidently it had no occasion to do so as some of the counsel
appearing for the caveators conceded that the matter may be remitted back to
the Joint Commissioner for a decision afresh as he was guilty of breach of
judicial discipline. Despite the same the High Court should have complied
with the principles of natural justice. Each of the parties before it was
entitled to be heard.
23. No notice admittedly had been issued to a large number of persons
including respondent Nos. 10 & 20 who have been transposed to the
category of the appellants. There is no legal foundation that respondent
No.20, being the wife of respondent No. 2 cannot be directed to be
transposed to the category of the appellant, admittedly she was not
represented before the High Court in the second appeal. The order of the
High Court, therefore, is liable to be set aside.
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24. Although ordinarily we would have remanded the matter back to the
High Court, we clarify that that we have exercised our jurisdiction under
Article 136 read with Article 142 of the Constitution of India, keeping in
view the peculiar facts and circumstances of the case so as to do complete
justice between the parties as also in view of the fact that any further
litigation would be unnecessary since no actual relief can be granted to any
of the parties thereto in this case.
25. For the reasons aforementioned the impugned judgment is set aside.
The appeal is allowed. No Costs.
……………………….J.
( S.B. Sinha )
……………………….J.
( Cyriac Joseph )
New Delhi
May 05, 2009
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