2009 Supreme(SC) 915

Supreme Court of India
THE HONOURABLE MR. JUSTICE S.B. SINHA & THE HONOURABLE MR. JUSTICE CYRIAC JOSEPH
Hidayatkhan Bismillakhan Pathan
Versus
Vaijnath & Others
CIVIL APPEAL NO. 3267 OF 2009 (Arising out of Special Leave Petition (Civil) No. 18811 of 2007)
Decided on : 05-05-2009

IMPORTANT POINT
When an application is barred by limitation, action of petitioner is not bona fide and he did not have prima facie case, the application should be entertained.

Headnote:(a) Administration of Justice – Transposition – Respondent no. 6, 10 and 20 before High Court in second appeal not served notice – SLP filed by respondent no. 6 – Seeking to withdraw – Respondent no. 10 and 20 praying for their transposition to the category of the petitioners – Transposition allowed. (Para 9)

       (b) Bombay Public Trust Act, 1950 – Section 22 – Change report – Must be considered on its own merit – Objection can be filed by a party affected by the report – Charity Commissioner entitled to make enquiries into change report filed u/s 22 – Jurisdiction of Charity Commissioner or an Appellate Commissioner to initiate suo motu proceeding is limited. (Para 14, 16)

       (c) Administration of Justice – Order – Appeal or revision – Not possible to pass an effective order – Application should not be entertained – Facts obtaining on the date of application as also subsequent events should be taken into consideration. (Para 17)

       1980 Mah. L.J. 372 – Referred

       (d) Bombay Public Trust Act, 1950 – Section 70A – Limitation – Suo motu proceeding – No limitation – But the power should not be exercised after a long time. (Para 17, 19)

       (e) Bombay Public Trust Act, 1950 – Section 70A – Challenge to election 2001 – Joint Charity Commissioner holding the application to be barred by limitation, action of respondent no. 1 not bona fide and respondent no. 1 did not have prima facie case – Still he proceeded suo motu – Parties need to be heard and limitation as per sub-section (2) has to be adhered to – Suo motu power should not have been exercised – More so when elections were held in 2006 and no effective order could be passed. (Para 19, 20)

       (2006) 12 SCC 404; (1970) 3 SCC 119 – Relied upon

       (f) Bombay Public Trust Act, 1950 – Section 72 – Appeal dismissed by Joint Charity Commissioner – Further appeal should not have been entertained by High Court – That too, without even noticing many respondents. (Para 22)

       Facts of the case:

       The constitution of the Marathwada Sarvodya Shikshan Prasarak Mandal, a public Trust registered under the Bombay Public Trust Act, 1950 as also the Societies Registration Act, 1850 provides for 15 life members 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.

       Fresh elections took place on or about 26th June, 2001. After the elections were held in 2001, a change report had been submitted which was accepted by the Assistant Charity Commissioner, Jalna. Thereafter about 82 meetings were held thereafter and the first respondent participated in almost all of them.

       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 revision application was allowed 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.

       The order impugned before him, however, was set aside pointing out the aforesaid irregularities. However, as the first respondent had approached the revisional authority with a `false case’, costs were imposed on him.

       The second respondent filed an application before the District Judge, Jalna which was allowed the said application in part and remanded the matter back to the Joint Charity Commissioner.

       An appeal preferred thereagainst by the first respondent before the High Court was dismissed.

       Second appeal filed by first respondent was allowed.

       Finding of the Court:

       Impugned judgment cannot be sustained.

       Result:

       Appeal allowed.