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1978 DIGILAW 48 (KAR)

SHIVAPPA VEERAPPA, MASUR v. SHRIMAN MAHARAJ NIRANJAN JAGADGURU

1978-02-24

BHEMIAH, K.S.PUTTASWAMY, VENKATACHALAIAH

body1978
PUTTASWAMY, J. ( 1 ) IN these two appeals, the parties are common and the questions of law that arise for determination are also common. As in the Courts below, we propose to dispose of these two appeals by a common order. ( 2 ) AN Act called "the Bombay Trusts Act of 1950" (Bombay Act, xxix of 1950) (hereinafter referred to as 'the Act,) was enacted by the erstwhile State of Bombay to regulate and make better provisions for the administration of public religious and charitable trusts in the State of Bombay. The Act was placed on the statute book on 14th August, 1950 but it came into force from 21-1-1952. Among others the Act provided for filing of applications for registration of public religious and charitable trusts in the State of Bombay. Evidently in compliance of the Act, one shri Mallikarjuna Devaru as the Trustee Manager of two Maths called hosa Math and Kal Math situated in Haveri and Thondur villages of dharwar District respectively filed an application on 28-5-52 before the asst Charity Commissioner, Belgaum, who had jurisdiction over the then revenue Districts of Belgaum, Dharwar, Karwar and Bijapur, otherwise called as Bombay-Karnataka area now merged in the new State of Karnataka under Sec. 7 of the States Reorganisation Act (hereinafter referred to as 'the Assistant commissioner'), numbered as Inquiry No. 10728 52 of the said two Maths inter alia stating as under : form of application for registration. On the said application, the Asst Commr with the assistance of assessors conducted a regular enquiry and by his order dt. 29-12-54, registered the two Maths as public trusts under the Act. In pursuance of the said registration the two Maths are being administered from the date of registration under the act. At this stage it is necessary to notice that the original applicant, respondent-1 or any other person, did not challenge the order of the Asst Commr in any legal proceeding and allowed the matter to stand for well over 17 years. Like a Rip Van Winkle on 23-12-72 respondent-1 filed a revision petition under Sec. 70a of the Act before the charity Commr Karnataka Area, Belgaum, (hereinafter referred to as 'the Commissioner') challenging the order dt. 29-12-54 of the Asst Commr which was registered as Revision Petition No. 42/72. Like a Rip Van Winkle on 23-12-72 respondent-1 filed a revision petition under Sec. 70a of the Act before the charity Commr Karnataka Area, Belgaum, (hereinafter referred to as 'the Commissioner') challenging the order dt. 29-12-54 of the Asst Commr which was registered as Revision Petition No. 42/72. ( 3 ) ON 28-5-1952, one Shri G. Mattara Gurubasappa Magavi claiming to be the manager of respondent-l filed an application under the Act be fore the Asst Commr for registration of 14 Maths detailed in the application situated in his jurisdiction which was registered as Inquiry No. 107291 52. In column No. 14 of the application it is stated that the same is filed under protest. In a memorandum accompanying the application, Gurubasappa gurushanthappa Magavi inter-alia stated as under : in the enquiry one Shri Bagavalinga Shastry was examined as a witness on behalf of the applicant in the case This witness was also the power of attorney holder of respondent-1. In his evidence recorded on 7-7-55 the witness among others, has deposed as under: i am the attorney of Shri Jagadguru Swamy of Chitradurga. The branch Maths of the principal Math are shown in the application for registration. The Swamy has appointed his representatives to all these Maths. Accordingly, they manage the Maths and the properties. The Jagadguru Swamy has the authority to appoint' the Swamis to those Maths. The income of the respective properties is taken by the respective Swamis. Notwithstanding the above on the conclusion of the enquiry, the Asst commr, by his order dt. 7-7-55 taking the view that the 14 Maths were the branch Maths of the principal Math situated in the Dist of Chitradurga which was then a part of the erstwhile Mysore area registered the principal math as a public trust under the Act in respect of the said 14 Maths and directed the issue of a certificate in the name of respondent-1. At this stage it is necessary to notice that respondent-1 or any other person did not challenge the order of the Asst Commr in any legal proceeding and allowed the matter to stand for well over 17 years and therefore the 14 maths are being administered from 7-7-55 under the Act. From the original records, it is seen that various transactions like sales of the properties belonging to the Maths have been regulated under the Act. From the original records, it is seen that various transactions like sales of the properties belonging to the Maths have been regulated under the Act. As in the previous case, on 23-12-72 respondent-1 filed a revision petition under sec. 70a of the Act before the Commr challenging the order dt. 7-7-55 of the Asst Commr which was registered as Revision Petition 43 of 1972. ( 4 ) IN the two revision petitions filed before the Commr, Respt-1 did not implead any one as a party respondent. Notice of the two reyision petitions was separately published in a Kannada Daily called 'vishwavani published from Hubli dt. 28-1-73 fixing the hearing date as 15-2-73. In response to the public notice published in Revision Petition 43/72 several persons filed their objections or representations, inter-alia contending that there were no grounds to interfere with the original order of the Asst commr. From the records, it appears no individual notices were issued to the persons that objected to the revision petition filed by respondent-1. On consolidating the two revision petitions filed by respondent-1, the commr heard the learned Counsel for respondent-1-petitioner and by a common order dt. 2-1-5-73 allowed them and cancelled the registration of the Maths that were the subject matter of registration in Enquiry Nos. 10728)52 and 10729/52. Aggrieved by the order dt. 21-5-73 of the Commr, the appellant who is admittedly a member of the religious persuasion to which the Maths belong and a disciple challenged them in two applications under Sec. 72 of the Act which is virtually in the nature of an appeal before the Dist Judge, Dharwar, which were registered as Mis. Nos. 40 and 41/73. In Mis. No. 41/73, respondent-1 filed an application on 29-ll-73 numbered as IA.-2 for reception of additional evidence. On consolidating both the applications filed by the appellant before him the learned Dist Judge by his common order dt. 16-6-73, allowing I. A.-2 has dismissed them. In these two appeals filed under Sec. 72 (4) of the Act, the appellant has challenged the correctness of the orders passed by the learned Dist Judge affirming the orders of the Commissioner before us. 16-6-73, allowing I. A.-2 has dismissed them. In these two appeals filed under Sec. 72 (4) of the Act, the appellant has challenged the correctness of the orders passed by the learned Dist Judge affirming the orders of the Commissioner before us. ( 5 ) SHRI S. G. Sundara Swamy, learned Counsel for the appellant, inter-alia contended (1) that the reception of additional evidence by 'the learned Dist Judge was contrary to Sec. 72 (1a) of the Act, (2) that even in the absence of limitation, the Commr should not have exercised the power of revision after a lapse of more than 17 years and (3) that the maths were independent and real Maths and therefore the ratio of the supreme Court decision in Charity Commr, Bombay v. Sringeri Mathair. 1969 SC 566, had no application. Shri K. A. Swamy, learned Counsel for respondent-1 while refuting the contentions of Shri S. G. Sundara Swamy and supporting the orders of the Courts below, urged that the two applications filed by the appellant before the learned Dist Judge under Sec. 72 (1) of the Act were themselves not maintainable for which reason these two appeals filed by him before this Court are also not maintainable. ( 6 ) ON an examination of the records and the arguments presented before us, in our view the following points arise for our determination in these appeals, which we propose to deal seriatim: points for determination :- (1) Whether the applications filed by the appellant before the District judge and the appeals before this' Court are maintainable? (2) Whether the reception of additional evidence by the learned Dist judge was proper and legal? (3) Whether the Charity Gommr was justified in revising the order of the Asst Charity Commr after a lapse of nearly 17 years ? and (4) Whether the Maths are independent and real Maths or are only branch Maths of the principal Math whose situs is situated in the Dist of chitradurga of- old Mysore area? re; Point No. 1:-Whether the applications filed by the appellant before the Dist Judge and the appeals before this Court are maintainable. ( 7 ) ADMITTEDLY the revision petitions of respondent-1 were filed under sec. 70a of the Act and the order of the Commr is in exercise of the powers of revision conferred on him by that sub-section which are also final in nature. ( 7 ) ADMITTEDLY the revision petitions of respondent-1 were filed under sec. 70a of the Act and the order of the Commr is in exercise of the powers of revision conferred on him by that sub-section which are also final in nature. Shri K. A. Swamy, learned Counsel for Respondent-1 does not dispute these facts. But he strenuously contended that the applications of the appellant before the learned Dist Judge against the orders of the commr under Sec70a of the Act were not maintainable, which principle according to him is firmly settled by this Court in Sayyad Sultan v. Abdul aziz Saheb (1964) 1 Myslj. 565 ( 8 ) BEFORE considering whether Sayyed Sultan's case (2) has finally settled the principle as contended by Shri K. A. Swamy, we propose to examine the language of Sec. 72 of the Act, keeping before us the following passages both of which are really to the same effect. Crawford in his statutory Construction (1940 Edn) at page 244 under the heading purpose of interpretation and construction' has observed thus : the basic principle has been announced time after time that if the statute is plain, certain and free from ambiguity, a bare reading suffices and interpretation is unnecessary. " maxwell on the Interpretation of Statutes (11th Edn) at page 2 has observed thus : if the words of the statute are in themselves precise and unambiguous no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature. The above principle enunciated by Lord Chief Justice Tindal in Sussex peerage case (1844) 11 Cl and F. 85 p. 143 followed in later 'cases by the House of Lords and the privy Council has been approved by our Supreme Court in Collector of customs v. Digvijaysinhji Spinning and Weaving Mills Ltd AIR. 1961 SC. 1549. Philip juhn plasket Thomas v. CIT AIR. 1964 SC. 587 and R. L. Arora v. State of U. P. AIR. 1964 SC. 1230 1244. 1961 SC. 1549. Philip juhn plasket Thomas v. CIT AIR. 1964 SC. 587 and R. L. Arora v. State of U. P. AIR. 1964 SC. 1230 1244. Now it is useful to read Sec. 72 of the Act which reads thus: (1) Any person aggrieved by the decision of the Charity Commissioner under Sec. 40, 41, 70 or 70a or on the questions whether a trust exists and whether such trust is a public trust or whether any property is the property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision. (1a) (New) No party to such application shall be entitled to produce additional evidence, whether oral or documentary, before the court unless the Deputy or Assistant Charity Commr or the Charity commr has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause the Court thinks it necesary to allow such additional evidence : provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission. (2) The Court after taking evidence if any, may confirm, revoke or modify the decisions or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. (3) Pending the disposal of an application under sub-sec (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order. (4) An appeal shall lie to the High Court against the decision of the Court under sub-sec (2) as if such decision was a decree from which an appeal ordinarily lies a bare reading of Section 72 suffices to hold that when the Commr has exercised his power of revision under Sec. 70a of the' Act as in these cases, more so finally, an application by any other person aggrieved by the order of the Commr is maintainable before the Dist Judge. In interpreting and giving effect to the legislative intent of Sec. 72, we should also remember that a provision conferring a remedy on a person aggrieved for very good reasons should not be construed as a penal provision and the remedy or right provided herein curtailed when the plain language of the section itself does not warrant the same. When the Legislature has conferred a right on an aggrieved peron it is not for the Courts fo unduly restrict that right and defeat the legislative intent as that would be the consequences of accepting the contention of Shri K. A. Swamy and therefore we have no hesitation in rejecting the same. In order to attract Sec. 72 of the Act by any person aggrieved all that is necessary is that there is a decision by the Commr on a revision petition presented before him under Sec. 70a of the Act which are indisputably satisfied in the case. We therefore hold that the applications presented by the appellant under Sec. 72 of the act before the learned Dist Judge were maintainable for which very reason, the appeals filed by him before us under Ser. 72 (4) of the Act are also maintainable. ( 9 ) LET us now examine whether Sayyed Sultan's case (2) has ruled to the contrary ag contended by Sri K. A. Swamy, learned Counsel for respondent-1. Shri S. G. Sundara Swamy contended that the ratio in Sayyed sultan's case (2) was clearly distinguishable and had no application to support the contention of Shri K. A. Swamy. In Sayyed Sultan's case (2), the Dist Judge dismissed the applications filed by the appellant before him against a remand order passed by the Commr on the revision petition of the respondent. In affirming the order Narayana Pai, J as he then was speaking for the Divn Bench, inter-alia held that the order was one of remand and there was no decision or a final adjudication that can be challenged before the Dist Judge under Sec. 72 of the Act. In our view, the ratio of that case is that an application under-Sec. 72 (1)of the Act does not lie and is not maintainable against a remand order of the Commissioner directing a fresh adjudication as the same does not amount to a decision under Sec. 70a of the Act which is not the case before us. In our view, the ratio of that case is that an application under-Sec. 72 (1)of the Act does not lie and is not maintainable against a remand order of the Commissioner directing a fresh adjudication as the same does not amount to a decision under Sec. 70a of the Act which is not the case before us. In the cases before us, there is a final decision of the Commr reversing the decision of the Asst Commr finally and therefore the ratio of Sayyed sultana's case (2) has no application to the appellant's case and is clearly distinguishable. ( 10 ) SHRI K. A. Swamy, learned Counsel for respondent-1 has filed a Memo on 17-2-78 bringing to our notice that a Divn Bench consisting of venkataramiah and Venkatachala, JJ, doubting the correctness of Sayyed sultan's case (2), has referred the matter to a Full Bench and therfore this case also should be referred to a Full Bench for opinion. Shri S. G. Sundara swamy, learned Counsel lor the appellant, has opposed the same. We have also perused the order of reference in MFA. Nos. 960 and 961 of 1974. As we have held that the ratio in Sayyed Sultan's case (2) has no application, it is unnecessary to refer these cases to a Full Bench for opinion. We therefore reject the prayer of Shri K. A. Swamy. Re: Point No. 2: Whether the reception of additional evidence by the learned Dist Judge was proper : ( 11 ) IN the applications filed by the appellant before the learned Dist judge, respondent-1 filed an application, 1. A.-2, for reception of certain documents, which according to him, conclusively established that the maths were branch Maths of the principal Math which has its situs at chitradurga. In that application, though respondent-1 invoked Sec. 151 of of the CPC which is an obvious mistake, he really sought the power of the Dist Judge under Section 72 (1a) of the Act. In allowing I. A.-2 and relying on the documents produced by respondent-1 and recording his finding, the learned Dist Judge in addition to not giving reasons for their admission which, of course is not fatal, did not hold that any of the circumstances existed for. reception of the additional evidence and that the additional evidence was necessary to pronounce his judgment. reception of the additional evidence and that the additional evidence was necessary to pronounce his judgment. Secondly the learned Dist Judge did not also give an opportunity to the appellant to place his own rebuttal evidence. In allowing I. A.-2, receiving additional evidence and recording his findings, the learned Dist Judge has obviously ignored Sec. 72 (la) of the Act, which is analogous to Order 41, rule 27 of the CPC and the principles enunciated by our Supreme Court in Arjan Singh v. Kartar Singh AIR. 1951 SC. 133. and Land Acquisition Officer, CIT-B v. K. Narayanaiah (1076) 2 Karlj. 189 200. in interpreting the true scope and ambit of the latter provision. In the ultimate view we propose to take in these appeals, it is unnecessary to pursue this question to its logical conclusion except to say that the order of the learned Dist Judge in so far as it relates to reception of additional evidence is plainly illegal and improper.-Re : Point No. 3: Whether the Charity Commr was justified in revising the orders of the Asst Charity Commr afer a lapse of nearly 17 years: ( 12 ) IN one case the order of the Asst Commr is dt. 29-12-54 and the other is dt. 7-7-55. It is not the case of Respt-1 that he was unaware of the orders passed by the Asst Commr after they were passed by the said autho rity or that he could not have filed an appeal u|s. 70 of the Act to the Commr against those orders for which a period of 60 days is allowed under subsec (2) of Sec. 70 of the Act and take other legal proceedings that were permissible to him under the Act and under the Constitution of India. In the revision petitions presented on 23-12-72 respondent-1 does nowhere explain or plead that there was any just and sufficient cause tor the inordinate delay in approaching the Commr under Sec. 70a of the Act. Shri S. G. Sundara Swamy, learned Counsel for the appellant did not contend that there is any period of limitation prescribed for aggrieved persons to approach the revisional authority under Sec. 70a of the Act. Shri S. G. Sundara Swamy, learned Counsel for the appellant did not contend that there is any period of limitation prescribed for aggrieved persons to approach the revisional authority under Sec. 70a of the Act. But he strenuously contended and in our opinion rightly that even in the absence of limitation, the power of revision should be exercised within a reasonable tune as ruled by the Supreme Court in State of Gujarat v. Patel Raghav Natha AIR. 1969 SC. 1297. and S. B. Gurbaksh Singh v. Union of India AIR. 1976 SC. 1115 : (1976) 2 SCC. 181 . In Patel Raghav Nath's case (9), the Supreme Court considering whether the revising authority could exercise the power of revision where no period of limitation had been prescribed under the Bombay Land Revenue Code held thus : ( 13 ) THE quesion arises whether the Commr can revise an order made under Sec. 65 at any time. It is true that there is no period of limitation prescribed under Sec. 211, but it seems to us plain that this power must be exercised \ in reasonable time and the" length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. In S. B. Gurubaksh Singh's case (10) the Supreme Court while considering the exercise of revisional power in the absence of period of limitation under the Sales Tax Act held thus : ( 14 ) APROPOS the fourth and the last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suo motu after an unduly long delay, on the facts of this case it is plain that it was not so done. Within a few months of the passing of the appellate order by the Asst Commr, the Commr proceeded to revise and revised the said order. There was no undue or unreasonable delay made by the Commr. It may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time limit has been prescribed for the assessee to move in revision. The appellate or the revisional powers in an appeal or revision filed by an assessee can be exercised in due course. No time limit has been prescribed for it. The appellate or the revisional powers in an appeal or revision filed by an assessee can be exercised in due course. No time limit has been prescribed for it. It may well be that for an exercise of the suo motu power of revision also, the revisional authority has to initiate the proceeding within a reasonable time. Any unreasonable delay in exercise may affect its validity. What is a reasonable time, however, will depend upon the facts of each case. It is seen from the above rulings of the Supreme Court that the power of revision even in the absence of a period of limitation prescribed by the relevant statute, is required to be exercised by the appropriate revising authority within a reasonable time and that any unreasonable delay in the exercise of the power of revision will affect the validity of the order of the revising authority. As to what is a reasonable time depends upon the facts and circumstances of each case. ( 15 ) WE find neither the Commr nor the learned Dist Judge have addressed themselves to this question and therefore we do not have the benefit of their views on this question. But that does not necessarily follow that the cases should be remitted to either of the authorities on that question and that question cannot be finally decided by us. We therefore now propose to examine whether on the facts and circumstances of the case, r-1 has approached the revising authority within a reasonable time and whether the revising authority has exercised his power of revision within a reasonable time. We have already pointed out that the Rev Petns were filed aftera lapse of 17 years without any explanation for the unreasonable delay. Earlier we have pointed out that the Commr and the Dist Judge have not addressed themselves on this question At the hearing of the cases also the only ground urged by Shri Swamy, learned Counsel for Respt-1 was that the Supreme Court in Sringeri Math's case (l) has held that the situs of the principal Math will determine the applicability of the Act and on the application of that principle the earlier decisions of the Asst commr reridered on 29-12-54 and 7-7-55 were erroneous and are therefore liable to be set aside. Undoubtedly the ratio of the Supreme Court in Sringeri math's case (1) under Art. 141 of the Constitution of India and even otherwise is binding on all Courts and authorities in the country and they are bound to follow the same if any matter is pending before them. But the question is whether a matter concluded more than 17 years ago which undoubtedly could have been challenged by respondent-1 as was challenged by Sringeri Math before the authorities constituted under the Act and ultimately before the High Court of Bombay can be a ground for interfering under Sec. 70a of the Act and could he set aside only on that ground, without reference to the question of delay at all. In our considered opinion that would not by itself be a circumstance to hold that respondent-1 had approached the revising authority within a reasonable time or the revising authority had exercised its power of revision which is conferred to see that ends of justice are not defeated, within a reasonable time. It is one thing to say that the principle in Sringeri Math's case (l) in interpreting the provisions of the Act is applicable in all matters that arise for determination or pending before any Court or authority, but it is another thing to say that the power of revision has to be exercised as enunciated by the Supreme Court itself within a reasonable time. One cannot be confused with the other. In our view, the Commr and the learned Dist Judge have not kept before them the above distinction and were grossly in error in setting aside the orders of the Asst commr made on 29-12-54 and 7-7-55 without comprehending the above distinction and proceeding as if the principle in Sringeri Math's case (1) applied without any further examination. Lastly it should be noticed that the High Court of Bombay decided the principle on 13-12-52 vide air 1967 Bombay, page 196 and the same was affirmed by the Supreme court on 13-8-68 vide Sringeri Math's case (l) and no explanation is forthcoming from respondent-1 for the delay in approaching the revising authority from either of those dates. We therefore hold that there was unreasonable delay in exercising the power of revision and the same has affected the validity of the orders of the Commr affirmed by the learned Dist judge and are therefore liable to be reversed. We therefore hold that there was unreasonable delay in exercising the power of revision and the same has affected the validity of the orders of the Commr affirmed by the learned Dist judge and are therefore liable to be reversed. Re : Point No. 4: Whether the Maths are independent and real Maths or are only branch Maths of the principal Math whose situs is situated in the Dist of Chitradurga of old Mysore area : ( 16 ) IN the view we have taken on Point-No. 3 it is unnecessary for us to examine and record our finding on Point No. 4. Notwithstanding the same, we briefly indicate our views on this point also. In Sringeri Math's case (l), the Supreme Court while finally deciding that the situs of the principal Math will determine the applicability of the Act, agreed with the findings of the High Court of Bombay' that the Nasik Math of Sringeri Math was not a real Math or a temple within the meaning of those terms occurring in the Act and was therefore not liable to be registered under the Act, specifically left open the issue of the position of independent real maths but connected with another math. In para 15 of its judgment vide page 569 the Supreme Court' observed : we need not here decide the position of an independent real math though connected with another Math. Shri S. G. Sundara Swamy, learned Counsel for the appellant, strenuously contended that the Maths registered by the Asst Commr under the orders dt. 29-12-54 and 7-7-55 answer the above description and therefore the ratio in Sringeri Math's case (l) had no application. On the other hand, Shri K. A. Swamy, learned Counsel for respondent-1 urged that the Maths in question are all branch Maths of Shri Brihman Math of chitradurga whose'situs is in the Dist of Chitradurga and therefore clearly falls within the ratio of Sringeri Math's case (1 ). As to which of the- two rival contentions is correct, cannot be satisfactorily decided by us without an opportunity to the parties to lead evidence in support of their respective cases. Unfortunately, the Commr and the learned Dist Judge have not addressed themselves to this question and have proceeded to hold that the Maths are branch Maths of Shri Brihman Math of Chitradurga, really without evidence and providing an opportunity to establish their respective cases. Unfortunately, the Commr and the learned Dist Judge have not addressed themselves to this question and have proceeded to hold that the Maths are branch Maths of Shri Brihman Math of Chitradurga, really without evidence and providing an opportunity to establish their respective cases. In our view that would not be a satisfactory way of disposing of the matter. In case we had held that respondent-1 had approached the revising authority within a reasonable time we would have undoubtedly remitted the matter to the Asst Commr for fresh disposal. ( 17 ) AS we have held against respondent-1 on Point No. 3, we do not propose to remit the cases for a fresh disposal to any of the authorities. In our view, justice of the case requires that the orders of the Asst Commr on the faith of which various transactions have so far taken place under the Act at this distance of time should not be interfered with and therefore should be allowed to stand. We are therefore of the opinion that the orders of the Commr in Revision Petition Nos. 42 and 43 of 1972 and the orders of the learned Dist Judge in Mis. App. Nos. 40 and 41 of 1973 are erroneous and are liable to be set aside and are hereby set aside. Appeals allowed. ( 18 ) IN the circumstances of the case, we direct the parties to bear their own costs throughout. --- *** --- .