Holding

The Supreme Court held that the Charity Commissioner’s suo‑moto jurisdiction under s.70A is limited and cannot be exercised when the matter is barred by limitation or when no effective order can be passed, and therefore set aside the High Court’s judgment and allowed the appeal.

Summary

The case concerned the Marathwada Sarvodya Shikshan Prasarak Mandal, a public trust, where disputes arose over the validity of elections held in 2001. The first respondent challenged the election, but the Joint Charity Commissioner dismissed the limitation defence and initiated suo‑moto proceedings under s.70A, which were later set aside by the District Judge and appealed. The High Court dismissed the appeal and remanded the matter, leading to further appeals. The Supreme Court examined whether the Charity Commissioner’s suo‑moto power could be exercised after a long lapse and when no effective order could be passed, and whether the parties were afforded due notice and hearing. It held that the suo‑moto jurisdiction is limited, cannot be invoked when barred by limitation or when the issue is moot due to subsequent elections, and that the High Court erred in entertaining the appeal. Consequently, the Court set aside the High Court judgment and allowed the appeal.

Issues considered

The scope and limitation of the Charity Commissioner’s suo‑moto jurisdiction under s.70A of the Bombay Public Trust Act, 1950
Whether a suo‑moto proceeding can be initiated when the matter is barred by limitation or when no effective order can be passed
The requirement of notice and hearing under natural justice in suo‑moto enquiries
The propriety of transposing respondents to the category of appellants in the appeal
The effect of subsequent elections on the continuance of the dispute

Legislation cited

Bombay Public Trust Act, 1950s. 17, s. 22, s. 70, s. 70A, s. 71, s. 72

Subjects

Bombay Public Trust Actsuo moto jurisdictionCharity Commissionersection 70Alimitation periodnatural justicepublic trust administrationelection validityappeal jurisdiction

Judgment

[2009] 7 S.C.R. 995

1\-
~ HIDAYATKHAN BISMILLAKHAN PATHAN A
V.
VAIJNATH AND ORS.
Civil Appeal No. 3267 of 2009

MAY 05, 2009
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]
Bombay Public Trust Act, 1950 - s. 70A -Administration
i of public trust - Elections - Challenge to - Jurisdiction of
~-
Charity Commissioner/Appel/ate Commissioner to initiate suo
moto proceedings under s. 70-A - Held: Is limited - A Court of c
law or a superior Tribunal would not entertain an appeal or
revision application wherein r;io 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 taken
into consideration but also the events. which took place D
... subsequent thereto - Although no period of limitation is
.... prescribed for initiating suo motu proceedings, such power
should not be exercised after a long time - Suo motu
jurisdiction, as envisaged under s. 70A, need not be exercised
only because it would be lawful to do so - For the said purpose E
not only the parties are required to be heard but also subject
to the limitations provided for in sub-section (2) thereof -
Bombay Public Trust Rules, 1951.
Jagatnarayan Singh Swarupsingh Chithere and Ors. v.
Swarupsingh Education Society and Anr., 1980 Mah. L.J. 372; F
Shahabad Coop. Sugar Mills Ltd. v. Sp/. Secretary to Govt. of
Haryana Corpn., (2006) 12 SCC 404 and D.N. Roy and S.K.
Bannerjee v. State of Bihar (1970) 3 SCC 119 - referred to.
Case Law Reference
IG
1980 Mah. L.J. 372 referred to. Para 7
"~
(2006) 12 sec 404 referred to Para 21
(1970) a sec 119 referred to Para 21
995 H
996 SUPREME COURT REPORTS [2009] 7 S.C.R

A CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3267 -fo

of 2009

From the Judgment and Order dated 18.07.2007 of the
~
--
'.-::

High Court of Judicature at Bombay, Bench at Aurangabad in
Second Appeal No. 769 of 2006
B
Himanshu Gupta, Khwairakpam Nobin Singh, for the
Appellant(s).

Shyam Divan, Uday Umesh Lalit, P.S. Narsimha, Rahul
•
Joshi, Shivaji M. Jadhav, Rakesh K. Sharma, Sunil Kumar 4
c ,
Verma, Arundhati, Nishant Katneshwarkar, with them for the
Respondent(s).

The Judgment of the Court was delivered by
S.B. SINHA, J.
D
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
E 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 out of which 13 would be the ex-officio members of
~
F 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

...
G
its term of five years, respondent No.1 submitted his resignation
st
on 31 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.
H The term of the said Committee expired in 2006. Again elections
HIDAYATKHAN BISMILLAKHAN PATHAN V. 997
VAIJNATH AND ORS. [S.B. SINHA, J.]
.,.
~ were held in the year 2006. However, after the elections were A
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 B
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
1 from time to time.
c
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 D
.. 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 apP.lication was
allowedinter alia observing that the notice_ dated 26th June, 2001 E
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:- F
"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 G
_;.
/ 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."
The learned Joint Charity Commissioner, however, further
H
998 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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.
B
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 there~ith, the second
c respondent filed an application before the District Judge, Jalna. "
1
The learned District Judge by his order dated 28 h 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
D 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
E was dismissed.

7. The Joint Charity Commissioner, however, instead of
hearing the matter himself remitted the same to ~heAssistant
Charity Commissioner. A Miscellaneous Application was
preferred thereagainst and by a judgment and order dated 7th
, ~

F
July, 2006 the learned 4th AdhocAdditional 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,
G
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.
H Therefore, it is just and proper to allow the applications
HIDAYATKHAN BISMILLAKHAN PATHAN V. · 999
VAIJNATH AND ORS_. [S.B. SINHA, J.]
••~ the term of the Managing body is already expired and the A
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 B
1. The Misc. Application No. 27/2006 and Misc.·
Application No.42/20006 are hereby allowed with
costs.
j
2. The impugned order passed by the learned Jt. Charity c
_. 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."

8. First respondent preferred a se~ond appeal thereagainst D
~
which, by reason of an order dated 18 July, 2007, purported to
,I
be on a concession made by the appeilant as also of the parties
who had filed caveats, was allowed, holding :-
"The Joint Charity Commissioner appears to have
E
committed impropriety and judicial indiscipline by not
complying with the directions offhe District Court passing
t
on the buck by remanding the matter to the Assistant
l( 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 F
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 G
> -Ii.,. 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 H

'-
1000 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B second appeal. Respondent No.6 before the High Court has
filed the present appeal by 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 ~
c transp'osition to the category of the petitioners.
We allow the application of transposition. ).,

10. Mr. P.S. Narasimha, and Mr. Uday Umesh Lalit, learned
senior counse( appearing on behalf of the transposed
D 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
E 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
t
1
on behalf of respondent No.1, on the other hand, would submit:-
F
(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
G 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
H be passed.
HIDAYATKHAN BISMILLAKHAN PATHAN V 1001
VAIJNATH AND ORS. [S.B. SINHA, J.]

"~ (3) The Joint Commissioner having conducted an A
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 B
therefrom, namely effect or validity of the meetings
and the transactions made should be allowed to be
I taken to its logical conclusion.
)
12. The Act was enacted to regulate and make better c
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 accordance with law. A
D
~
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 b~oks, indices and
registers takes place, a change report is to be filed under
Section 22 of the Act. E

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. F
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 G
*-. 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.
H
1002 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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 the record of such
authority for the purpose of satisfying himself as to the
B 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 '1--
c 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
D 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 enctto the entire controversy between the parties.
E 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 taken into consideration ...
F 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.
G 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
H have any prima facie case.
HIDAYATKHAN BISMILLAKHAN PATHAN V. 1003
VAIJNATH AND ORS. [S.B. SINHA, J.]

".. 19. A suo motu jurisdiction, as envisaged under Section
70A of the Act can be initiated for the purposes mentioned
A

- 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) B
thereof.
Some limitations have been provided for in regard to
I exercise of the jurisdiction by the Charity Commissioner (1) it
J must be exercised within the prescribed period of limitation;
and (2) where an order has been passed either under Sections c
70 or 71 of the Act.

In this case an appeal was preferred before the Charity
Commissioner who did not exercise its jurisdiction before the
application became barred by limitation. Even in the appellate
D
~
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 E
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 F
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
G
an end by efflux of time. Change report in respect of the registers
-t, for achieving the said purpose was required to be filed for
satisfying the requirement of law, 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
H
1004 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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. Sp/. Secretary
to Govt. of Haryana Corpn., [ (2006) 12 SCC 404 ] this Court
B 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 \..
c 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
D 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
E not purported to have been exercised, under certain
circumstances, the exercise of the power can be upheld
on the strength of an undisclosed but undoubted power.
But in this case the difficulty is that at no stage the Central
Government intimated to the appellant that it was
F 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
G
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
H
HIDAYATKHAN BISMILLAKHAN PATHAN V. 1005
VAIJNATH AND ORS. [S.B. SINHA, J.]

"'·t appellant the grounds mentioned in the application made A
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 8
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."

J 22. If in the aforementioned situation, the learned District
Judge had taken a different view having regard to the manner c
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 D
. taken 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.
E

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 forthe caveators conceded that F
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. G
~-.. 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
H
1006 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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.
24. Although ordinarily we would have remanded the matter
B 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
c 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.

B.B.B. Appeal allowed.
•
~