JUDGMENT
Anand Byrareddy, J.
1. The facts of the case in M.F.A. No. 60 of 2001 are as follows.–
A Public Charitable Trust by the name of Shri (108) Acharya Ratna Dashabushan Digambar Jain Ashram Trust in Chikkodi Taluk (‘the Trust’ for short) was registered under the Bombay Public Trusts Act, 1950 (‘the BPT Act’ for short) as on 31-5-1968. The general body of the Trust consisted of three categories of members, namely, grand patrons, patrons and ordinary members. There was a Managing Committee consisting of nine members, of whom five were chosen from amongst the grand persons, three from among the patrons and one from among the ordinary members. The general body was required to elect the Managing Committee for a term of three years, at a time. As per the report filed with the Assistant Charity Commissioner there were twenty-two members and nine elected Trustees. The said report was approved in Enquiry No. 19 of 1968 as on 11-7-1968. Thereafter there is no indication of any meetings or elections. There were no change reports filed into the office of Assistant Charity Commissioner till the year 1988. On 23-12-1988, respondent 1 herein filed a change report which was numbered as Inquiry No. 877 of 1988. The same was accepted as on 23-12-1988. It was sought to be indicated in the above change report that after the death of the first named Secretary Shri N.T. Mukare, that there was a meeting of the general body on 5-4-1977 and that Shri N.B. Pinake was elected as Secretary and respondent 1 herein having been elected as Chairman. Since the change report was accepted after a delay of 11 years and since it was alleged that the change report was not genuine, the same was challenged by the appellant herein and three others before the Charity Commissioner, Belgaum, in Appeal No. 5 of 1989. The appeal was allowed and the change report was set aside by an order dated 27-2-1989 and it was directed that the appellant, respondent 1 along with four others who were parties before him and who were also the surviving Trustees along with the appellant and respondent 1 – to meet and co-opt a Secretary – who shall then convene a general body in the month of April 1989 and to elect a Managing Committee under the supervision of an Inspector to be deputed from the office of the Assistant Charity Commissioner. In the body of this order there are findings to the effect that there was no election of the Managing Committee or Secretary in the year 1977 and that the change report filed by respondent 1 was false.
2. Pursuant to this, one group led by the respondent 1 herein, had filed a change report on 4-5-1989, claiming that a general body meeting was held on 30-4-1989 and that nine trustees had been elected to the Managing Committee as well as the Chairman, Secretary and Treasurer. This change report was numbered as Inq. No. 316 of 1989. On the other hand, another group led by Shri B.A. Patil filed another change report on 19-4-1989 claiming that a general body meeting was held on 16-4-1989 and that he and eight others were elected as trustees and that he was elected as Secretary and others as other office-bearers. This report was numbered as Inq. No. 270 of 1989. The two reports were clubbed and common evidence was recorded. The Assistant Charity Commissioner rejected both the change reports after hearing the parties as on 12-6-1990.
3. Respondent 1 had challenged the order passed as against Inq. No. 316 of 1989 in Appeal No. 17 of 1990 by the Charity Commissioner contending that the Assistant Charity Commissioner had erred in holding that the parties had not complied with directions of the Charity Commissioner, issued in Appeal No. 5 of 1989.
4. In Appeal No. 17 of 1990, the Charity Commissioner has accepted the contention that fourteen new members were admitted to the general body as per the resolution dated 9-6-1988 and hence, the claim as to the strength of membership and of the holding of general body meeting and elections on 30-4-1989 was established and could not be doubted. The appeal was accordingly allowed by an order dated 15-3-1991. This was challenged by the appellant herein and others in M.A. No. 50 of 1991 before the Principal District Judge, Belgaum.
5. The order of the Charity Commissioner was however confirmed in the appeal as on 28-8-2000. Hence, the present appeal.
6. Mr. Chaitanya Hegde appearing for the appellants, after marshalling the facts and sequence of events, would point out the following serious discrepancy which would render the order passed by the Charity Commissioner in Appeal No. 17 of 1990 and which has been confirmed in appeal in M.A. No. 50 of 1991 – palpably erroneous for having arrived at findings completely divergent from the unimpeachable material on record and opposed to concluded findings in Appeal No. 5 of 1989. The learned Counsel would point out that the Charity Commissioner, while disposing of Appeal No. 5 of 1989 as on 27-2-1989 has considered at length the circumstances alleged by respondent 1 herein of the alleged meeting on 5-4-1977 and the conduct of the alleged affairs upto the date of filing of a change report on 23-12-1988. Significantly, there was no indication of any resolution dated 9-6-1988 where it appears to have been recorded that fourteen members were admitted on 9-6-1988. But, however, the Charity Commissioner in considering Appeal No. 17 of 1990 has accepted the documents set up by respondent 1 to contend that by virtue of such induction of new members as on 9-6-1988 the membership strength stood at 36 as against a membership strength of 22 as per respondent’s own admission before the Charity Commissioner in Appeal No. 5 of 1989 and found as a fact by the Charity Commissioner with reference to material on record. It is for the first time that a different picture, as to the membership of the Trust emerges before the Charity Commissioner in Appeal No. 17 of 1990, in the Charity Commissioner proceeding to accept Ex. D. 4, a resolution book, said to evidence the induction of 14 new members, which fact is contrary to respondent’s own say earlier. This serious error in appreciating the material on record by the Charity Commissioner and which has been mechanically perpetuated by the Court of the District Judge in M.A. No. 50 of 1991.
7. This ground, coupled with the several grounds relatable to the above circumstance which have teen raised in the memorandum of appeal, according to the learned Counsel, warrants that the appeal should be allowed.
8. Per contra, Shri C.M. Desai appearing for the respondents, would contend that the two change reports enquired into by the Assistant Commissioner in Inq. Nos. 270 of 1989 and 316 of 1989 having been rejected by a common order and an appeal having been filed only by the respondent in respect of the latter change report and no appeal having been preferred against the former – it attained finality. The respondent’s appeal having succeeded and the said order having been unsuccessfully challenged by the appeal before the Court of the Principal District Judge – the present appeal under Section 72(5) of the Bombay Public Trusts Act, 1950 is akin to a second appeal under Section 100 of the Code of Civil Procedure, 1908 (‘the Code’ for short) and would hence be maintainable only on a substantial question of law. Hence, the findings being questioned which are entirely factual, cannot afford a ground for challenge. It is submitted that even if a different opinion is possible on a re-appreciation of the material on record with relation to the findings of fact, it would not give rise to a substantial question of law. He relies upon the following cases in support of this contention, Govindrao Devabasappa Mantalker v. Apparao Devabasappa Mantalkarm, 1987 (3) Bom. C.R. and Ramchandra Goverdhan Pandit v. Charity Commissioner of Gujarat, . The first of these cases lays down that an appeal under Section 75(2) of the BPT Act is akin to an appeal under Section 100 of the Code. The second of the above cases is an authority to the effect that proceedings before the District Judge under Section 72 of the BPT Act would be in the nature of an appeal and hence leave was necessary under Clause 15 of the Letters Patent. The Counsel for the appellant however, does not dispute this position. On the other hand, he would quip that the original order of the Assistant Charity Commissioner having been challenged in appeal before the Charity Commissioner and further carried in a “Second” appeal to the Court of the District Judge – the appeal to this Court is actually a “third” appeal provided for under the statute.
9. Mr. C.M. Desai would further rely on the following judgments with regard to the power of the High Court under Section 100 of the Code namely, Manicka Popsali (deceased) by L.Rs and Ors. v. Anjalai Ammal and Anr., ; Bashir Ahmed and Ors. v. Abdul Rahman (dead) by L.Rs and Ors., AIR 2004 SC 3284; Thiagarajan and Ors. v. Sri Venugopalaswamy B. Koil and Ors., and O.T.M.O.M. Meyyappa Chettiar v. O.T.M.S.M. Kasi Viswanathari Chettiar and Anr., 1993 Supp. (4) SCC 1 : 1993 AIR SCW 2894 There is 110 dispute on the propositions spelt out in the above decisions.
10. The only area of dispute is whether in the facts and circumstances of the present case, whether it could be said that a substantial question of law arises for consideration and that therefore, the appeal could be entertained. The Counsel for the appellant places reliance on the following judgments namely Orient Distributors v. Bank of India Limited and Ors., wherein the Supreme Court has held that the propriety of the legal conclusion that could be drawn on the basis of proved facts, would, for purposes of Section 100 of the Code, be a substantial question of law. In G. Hampamma v. K.S. Kalingappa and Ors., 1989(2) Kar. L.J. 523 it is laid down that a perverse approach in utter disregard of the onus of proof and the recording of findings with no reasoning or illogical reasoning could not bind the High Court under Section 100 of the Code. In Mohd. Yunus v. Gurubux Singh,1995 Supp. (1) SCC 418 wherein the Apex Court has held that interference with concurrent findings of fact is permissible under Section 100 of the Code in the event of gross misappreciation of evidence by lower Courts going to the root of the matter. Rajiah Nadar v. Manonmani Ammal, is to the same effect as the abovs. In the case of Pankaj Bhargava and Anr. v. Mohinder Nath and Anr., the Court has held thus:
“What is a substantial question of law would certainly depend upon facts and circumstances of every case and if a question of law had been settled by the highest Court of the Country that question however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties would not be regarded as substantial question of law. In Raghunath Prasad Singh v. Deputy Commissioner of Partabgarh, AIR 1927 PC 110 : (1927)54 Ind. App. 126, the Judicial Committee observed that a question of law to be considered a “substantial question of law” need not be one of general importance and it could be a substantial question “as between the parties”. This Court had occasion to consider the views expressed on the point by the High Courts of Bombay, Nagpur and Madras in Kaikhushroo Pirojsha Ghiara v. C.P. Syndicate Limited, AIR 1949 Bom. 134 : (1948)50 Bom. L.R. 744, Dinkar Rao Dhar Rao Rajaorkar v. Rattansey Asariya Bhate, ILR 1949 Nag. 224 : AIR 1949 Nag. 300 and Rimmalapudi Subba Rao v. Noony Veeraju, (FB), respectively placing differing emphasis on what was a “substantial” question of law between the parties. It was held by this Court that while the view taken by the Bombay High Court was too narrow, the one taken by the Nagpur High Court was too broadly stated. Approving the view taken by the Madras High Court it was observed:
“… The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it is directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well-settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law”.
(emphasis supplied)
(See: Sir Chunilal V. Mehta and Sons Limited v. Century Spinning and Manufacturing Company Limited, ”
This has been followed in Mohan Singh v. Amar Singh by L.Rs, and Smt. Shrisht Dhawan v. Shaw Brothers, . In the case of Sundara Naicka Vadiyar (dead) by L.Rs v. Ramaswami Ayyar (dead) by L.Rs, the Apex Court has held that when concurrent findings of fact are arrived at while ignoring material evidence – interference in second appeal is justified.
11. In the light of the circumstances in the present case the glaring circumstance that the directions issued by the Charity Commissioner in Appeal No. 5 of 1989 not having been complied with, the authorities accepting the case of the respondent there was a broad compliance and therefore the order of the Assistant Charity Commissioner rejecting the change report of the respondent required to be set aside, is a casual approach to the issue. This was especially so when the Charity Commissioner had made serious observations on the shady conduct of the respondent in managing the affairs of the Trust for over two decades without accountability to any general body.
12. The second serious circumstance is the blatant manner in which the respondent has been enabled to establish that 14 new members were inducted into the Trust in the year 1988 – for the first time before the Charity Commissioner in Appeal No. 17 of 1990 resulting in a rewriting of findings of fact pertaining to the period upto 23-12-1988 which stood concluded by the order passed by the Charity Commissioner in Appeal No. 5 of 1989. And especially when such a re-appreciation of material was contrary to the respondent’s own declarations at earlier points of time. Therefore, in the light of several pronouncements referred to hereinabove, the circumstances of this case would certainly raise a question of law, namely, the propriety of the legal conclusions that could be drawn on the basis of facts which are demonstrably distorted and appreciated with a marked degree of perversity and arbitrariness.
13. In the result, the appeal in M.F.A. No. 60 of 2001 is allowed. The order dated 15-3-1991 passed by the Charity Commissioner, Belgaurn in Appeal No. 17 of 1990 and the order dated 28-8-2000 passed by the Principal District Judge, Belgaum in Misc. Appeal No. 50 of 1991 are set aside. The findings of fact in the order dated 27-2-1989 in Appeal No. 5 of 1989 shall prevail. This shall not however affect the rights of third parties.
14. The appeal in M.F.A. No. 242 of 2001 is filed by the general body members, donors and others challenging the dismissal of their application under Section 47 of the BPT Act along with an interlocutory application, without consideration of the main application. The impugned orders in M.F.A. No. 60 of 2001 having been set aside, the same becomes infructuous. And shall accordingly stand disposed of.
15. However, in the fitness of things, it would now be necessary to issue appropriate directions to the Charity Commissioner, Belgaum as regards the administration of the affairs of the Trust.
16. The Charity Commissioner, Belgaum is directed to issue public notice of his intention to appoint Trustees, in the absence of adequate membership in the Trust, to initiate the process of a democratic election. He shall invite and consider representations from all quarters in considering the appointment of Trustees in addition to those surviving trustees, as on date.