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

J U D G M E N T

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  

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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  

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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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