2024 INSC 339 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal Nos. .…….. - ……... of 2024

(@ Special Leave Petition (C) Nos. 15621-15622 of 2021)

Shri Mallikarjun Devasthan, Shelgi … Appellant

Versus

Subhash Mallikarjun Birajdar and others … Respondents

J U D G M E N T

SANJAY KUMAR, J

1. Leave granted.

2. Acceptance of Change Reports in relation to the Vahiwatdar

(Administrator) and Trustees of Shri Mallikarjun Devasthan, Shelgi, a Public

Trust, is in issue. A learned Judge of the High Court of Judicature at

Bombay invalidated such acceptance and remanded the matters to the

Deputy Charity Commissioner, Solapur Region, Solapur, for consideration

afresh. Hence, these appeals.

3. Though, no interim orders were passed by this Court, we are

informed that the orders of remand have not been acted upon owing to the

pendency of these cases. Further, in terms of the High Court’s directions,

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the Vahiwatdar and the Trustees, whose names were already entered in

the records, are continuing to administer the Trust as on date.

4. Facts, to the extent relevant, played out thus: By application

dated 26.05.1952, Mallikarjun Mahalingappa Patil applied for registration of

Shri Mallikarjun Devasthan, Shelgi, as a Public Trust, under Section 18 of

the Bombay Public Trusts Act, 1950, now known as Maharashtra Public

Trusts Act, 1950 (for brevity, ‘the Act of 1950’). The object of this Trust was

the upkeep and maintenance of Shri Mallikarjun Temple at Shelgi, North

Solapur Taluka. Shri Mallikarjun Devasthan, Shelgi, was accordingly

registered as a Public Trust. The mode of succession of managership and

trusteeship, as provided in the application, was that Mallikarjun

Mahalingappa Patil was to be the Vahiwatdar of the Trust and the eldest

male member of his family was to succeed him. Further, the Vahiwatdar

was also empowered to co-opt others, if and when necessary. Mallikarjun

Mahalingappa Patil passed away in the year 1992 and his eldest son,

Ashok Mallikarjun Patil, became the Vahiwatdar of the Trust. Thereafter,

Ashok Mallikarjun Patil died on 16.02.1997 and his brother, Jagdishchandra

Mallikarjun Patil, took over. Jagdishchandra was the third son of Mallikarjun

Mahalingappa Pati, but his elder brother, Satish Patil, the second son of

Mallikarjun Mahalingappa Pati, had no interest in taking over as the

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Vahiwatdar of the Trust. Thus, Jagdishchandra assumed the role of

Vahiwatdar though he was not the eldest male member in the family.

5. It would be apposite at this stage to note the statutory scheme

obtaining under the Act of 1950. Section 17 thereof mandates that, in every

Public Trusts Registration Office or Joint Public Trusts Registration Office,

the Deputy or Assistant Charity Commissioner concerned should keep and

maintain such books, indices and other registers, as may be prescribed,

which shall contain such particulars as may also be prescribed. Section 18

of the Act of 1950 provides for registration of Public Trusts upon application

and prescribes the procedure therefor. Section 19 empowers the Deputy or

Assistant Charity Commissioner concerned to make an inquiry upon receipt

of an application for registration of a Public Trust under Section 18. Section

20 of the Act of 1950 states that, upon completion of such inquiry, the

Deputy or Assistant Charity Commissioner shall record his finding with

reasons therefor and make an order for the payment of the registration fee,

if he is satisfied. Section 21(1) requires the Deputy or Assistant Charity

Commissioner to then make necessary entries in the register maintained

under Section 17. Section 21(2) provides that the entries so made shall,

subject to the provisions of the Act of 1950 and subject to any change

recorded as per the provisions thereof, be final and conclusive.

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6. Section 22(1) of the Act of 1950, as it stood prior to 2017,

stated that where any change occurs in any of the entries recorded in the

register maintained under Section 17, the Trustee shall, within 90 days from

the date of occurrence of such change, report the same to the Deputy or

Assistant Charity Commissioner in charge of the Registration Office where

the register is kept. Section 22(2) empowers the Deputy or Assistant

Charity Commissioner to hold an inquiry for the purpose of verifying the

correctness of the entries or for ascertaining whether any change has

occurred in any of the particulars, recorded in the register kept under

Section 17. The first proviso to Section 22(2) states that, in case of change

in the names and addresses of the Trustees and Managers etc., the Deputy

or Assistant Charity Commissioner may provisionally accept the change

and issue a notice inviting objections to such change within thirty days from

the date of publication of such notice. The second proviso states that if no

objections are received within that time, the order provisionally accepting

the change shall become final and entry thereof shall be taken in the

register kept under Section 17. The third proviso states that if objections

are received within thirty days, the Deputy or Assistant Charity

Commissioner may hold an inquiry in the prescribed manner and record a

finding within three months from the date of filing objections.

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7. Section 22(3) of the Act of 1950 speaks of how the Deputy or

Assistant Charity Commissioner is to record a finding after completing the

aforestated inquiry, which may include a decision to remove the name of

the Trust from the register by reason of the change. Further, it provides that

the finding recorded shall be appealable to the Charity Commissioner. It

then states that the Deputy or Assistant Charity Commissioner shall amend

or delete the entries in the register in accordance with his finding, and if

appeals or applications were made against such finding, in accordance with

the final decision of the competent authority, and the amendment in the

entries so made, subject to any further amendment on occurrence of a

change or any cancellation of entries, shall be final and conclusive. Section

41D provides for the suspension, removal or dismissal of Trustees by the

Charity Commissioner, if any of the grounds mentioned therein is satisfied.

Such power can be exercised either on application of a Trustee or any

person interested in the Trust and one of the grounds for such action being

taken against the Trustee is continuous neglect of his duty or a breach of

trust in respect of the Trust.

8. Section 70 provides for appeals to the Charity Commissioner

against the findings or orders of the Deputy or Assistant Charity

Commissioner in the cases enumerated under Section 70(1)(a) to 70(1)(e).

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Section 70(1)(b) relates to findings under Section 22. Further, Section

70A(1) of the Act of 1950 empowers the Charity Commissioner to call for

and examine, either suo motu or on an application, the record and

proceedings of any of the cases before any Deputy or Assistant Charity

Commissioner, mentioned in Section 70 thereof, for the purpose of

satisfying himself as to the correctness of any finding or order recorded or

passed by the Deputy or Assistant Charity Commissioner. Notably, the Act

of 1950 was amended in the year 2017, whereby a proviso was added in

Section 22(1). This proviso states that the Deputy or Assistant Charity

Commissioner may extend the period of 90 days for reporting the change,

on being satisfied that there was a sufficient cause for not reporting the

change within the stipulated period, subject to payment of costs by the

reporting Trustee to the Public Trust Administration Fund.

9. Given the above statutory milieu, it was incumbent upon

Jagdishchandra to submit a Change Report within the stipulated 90 days

but he did so, long thereafter, on 21.10.2015. He also filed a delay

condonation application therewith, stating that he did not file the Change

Report earlier by mistake as he was not aware about it. His report was

taken on file as Change Report No. 899 of 2015. Judgment dated

15.03.2016 was passed therein by the Deputy Charity Commissioner,

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Solapur. Thereby, the Change Report was held to be legal and valid, taking

note of the fact that no one had taken an objection thereto. In

consequence, Schedule 1, pertaining to the Trust, was directed to be

amended after expiry of the appeal period. However, no appeal was filed

against this judgment within such period.

10. Thereafter, Jagdishchandra appointed four other persons, viz.,

Kedar Patil, Shailesh Patil, Vishwajit Virajkumar Nandimath and Balasaheb

Yelshetty as Trustees, by co-opting them on 28.03.2017. He filed Change

Report No. 1177 of 2017 to record their names in the register maintained

under Section 17 of the Act of 1950.

11. While so, five persons, viz., Subhash Mallikarjun Birajdar,

Abhijeet Prakash Birajdar, Kalyani Mallappa Birajdar, Sachin Shivanand

Birajdar and Kedar Shivanna Birajdar, claiming to be the devotees of Shri

Mallikarjun Temple at Shelgi filed an application under Section 70A of the

Act of 1950 before the Joint Charity Commissioner, Pune, against the

judgment dated 15.03.2016 passed by the Deputy Charity Commissioner,

Solapur, accepting Change Report No. 899 of 2015. The same was taken

on file as Revision Application No. 61 of 2017. Therein, these five devotees

questioned the eligibility of Jagdishchandra to be the Vahiwatdar of the

subject Trust, alleging that he had ‘unlawfully, without having any kind of

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relation, by cheating and misleading villagers, society as well as the

Hon’ble Court, filed the Change Report No. 899 of 2015 and obtained

approval’. They further alleged that the Deputy Charity Commissioner had

not made a proper inquiry on the Change Report. According to them, after

the death of Ashok Mallikarjun Patil, the functioning of the Trust was being

handled by the villagers and they had been looking after the worship and

other programs and Jagdishchandra was just overseeing the Temple. They,

however, did not make the delay on his part a ground of challenge.

12. However, Jagdishchandra filed an application in the revision

pointing out that he had filed a delay condonation application in relation to

the filing of Change Report No. 899 of 2015 and that pendency of the same

may adversely affect his legal rights. He prayed that a finding be called for

from the Deputy Charity Commissioner, Solapur, about the said application

pending the revision. By order dated 29.01.2019, the Joint Charity

Commissioner, Pune, held that the Change Report had been accepted,

which meant that the delay stood condoned, and it was not necessary to

call for a finding on the delay condonation application.

13. Thereafter, the Joint Charity Commissioner, Pune, dismissed

Revision Application No. 61 of 2017 filed by the five devotees, vide

judgment dated 09.07.2019. Therein, the Joint Charity Commissioner

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observed that Jagdishchandra was the son of Mallikarjun Mahalingappa

Patil, at whose behest the Public Trust had been registered. He noted that

Jagdishchandra was the third son and that the other four sons, including

Satish, who was older than Jagdishchandra, had filed affidavits stating that

they consented to his appointment as Trustee. The Joint Charity

Commissioner also noted that the revision applicants were not members of

the family of Mallikarjun Mahalingappa Patil and that their other revision,

being Revision Application No. 60 of 2017, challenging the order dated

17.06.1954 passed in Inquiry Application No. 25 of 1952, pertaining to the

registration of the subject Trust, had already been dismissed on

10.10.2017.

14. In the meanwhile, as regards Change Report No. 1177 of 2017

pertaining to the co-option of four Trustees by Jagdishchandra, the

Assistant Charity Commissioner, Solapur, delivered judgment dated

18.04.2018. Therein, while noting that some of the devotees of the Temple

had filed objections to the said report, he ultimately held that the Change

Report was legal and acceptable. The opponents to the Change Report

had contended that Jagdishchandra was not the eldest son of Mallikarjun

Mahalingappa Patil, but the Assistant Charity Commissioner noted that

Ashok Mallikarjun Patil, the eldest son, had died issueless and the second

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son, Satish, claimed no interest in the Trust. Further, the Assistant Charity

Commissioner took note of the fact that the revision filed against the

registration of the subject Trust had been dismissed by the Joint Charity

Commissioner, Pune. The Assistant Charity Commissioner, accordingly,

concluded that the Change Report was acceptable, subject to the decision

in the revision filed against the judgment in relation to Change Report No.

899 of 2015 pending before the Joint Charity Commissioner, Pune.

15. Aggrieved by this judgment, two of the devotees, Shivshankar

Revansidha Birajdar and Prakash Sangappa Birajdar, filed Appeal No. 79

of 2018 before the Joint Charity Commissioner, Pune, under Section 70 of

the Act of 1950. The said appeal was dismissed by the Joint Charity

Commissioner, Pune, vide judgment dated 09.07.2019. Therein, the Joint

Charity Commissioner held that as Revision Application No. 61 of 2017

pertaining to Change Report No. 899 of 2015 was dismissed by a separate

judgment on that day, Jagdishchandra stood confirmed as the Vahiwatdar

of the subject Trust and, therefore, he had a right to co-opt Trustees.

16. Assailing the dismissal of their Revision Application No. 61 of

2017, vide judgment dated 09.07.2019, confirming the judgment dated

15.03.2016 passed by the learned Deputy Charity Commissioner, Solapur,

in respect of Change Report No. 899 of 2015, the five devotees filed W.P.

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No. 8570 of 2019 before the High Court of Judicature at Bombay. Therein,

for the very first time, they raised the ground of delay of more than 17 years

on the part of Jagdishchandra in filing a Change Report after the death of

Ashok Mallikarjun Patil on 16.02.1997.

17. Challenging the dismissal of their Appeal No. 79 of 2018, vide

judgment dated 09.07.2019 passed by the Joint Charity Commissioner,

Pune, confirming the judgment dated 18.04.2018 passed by the Assistant

Charity Commissioner, Solapur, in respect of Change Report No. 1177 of

2017, the two devotees filed W.P. No. 8571 of 2019 before the High Court

of Judicature at Bombay.

18. By common judgment dated 27.08.2019, a learned Judge of the

High Court of Judicature at Bombay allowed both the writ petitions. The

point that weighed with the learned Judge was that there was no separate

order passed by the Deputy Charity Commissioner, Solapur, condoning the

delay of over 17 years in the filing of the first Change Report. This,

according to the learned Judge, was contrary to Section 22 of the Act of

1950. He accordingly held that acceptance of Jagdishchandra as the

Vahiwatdar under Change Report No. 899 of 2015 could not be sustained

and, in consequence, his Change Report No. 1177 of 2017 could also not

be sustained. It is on this sole ground that the learned Judge restored the

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proceedings in relation to both the Change Reports to the file and directed

the Deputy Charity Commissioner, Solapur, to decide them afresh. The

learned Judge further directed that the position existing as on that date

should be maintained, i.e., Jagdischandra and his nominated Trustees, who

were administering the Trust, were permitted to continue to administer the

Trust in accordance with law.

19. Before we proceed to consider the matter on merits, we may

again note the fact that the Act of 1950 was amended in 2017, whereby a

proviso was added in Section 22(1), providing for condonation of delay in

the filing of a Change Report, if sufficient cause is shown therefor. It may be

noted that no such proviso was in existence at the time Change Report No.

899 of 2015 was submitted by Jagdishchandra. Despite the same, he had

filed a delay condonation application therewith praying for condonation of

the delay on his part in filing the report. It is well settled that it is not

mandatory that a written application be filed seeking condonation of delay

and relief can be granted in that regard even upon an oral request,

provided sufficient cause is shown for such delay [See Bhagmal and

others vs. Kunwar Lal and others

1

and Sesh Nath Singh and another

vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. and another

2

].

1

(2010) 12 SCC 159

2

(2021) 7 SCC 313

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20. The proviso added in Section 22(1) in the year 2017 is merely

clarificatory in nature as is evident from the fact that it was ‘added’ in

Section 22(1) and it did not bring about any substantive change. Even in

the absence thereof, the wording of Section 22(1) of the Act of 1950, as it

stood earlier, did not negate the applicability of Section 29(2) of the

Limitation Act, 1963, and in consequence, Section 5 of the Limitation Act,

1963, could be invoked for condonation of the delay in the submission of a

Change Report. Significantly, the High Court did not call for the original file

to verify whether the Deputy Charity Commissioner, Solapur, had passed a

separate order on the delay condonation application, condoning the delay

in exercise of such power. In any event, the Joint Charity Commissioner,

Pune, proceeded on the understanding that the delay had already been

condoned. He passed an order to that effect on 29.01.2019 and that order

was never challenged by the applicants in Revision Application No.61 of

2017, viz., the Birajdar family. Once that order attained finality, it is not open

to them to ignore the same and reopen the issue of delay before the High

Court. All the more so, when the issue of delay was never raised by them in

Revision Application No. 61 of 2017 and was raised for the very first time

only in the writ petition filed against the judgment passed therein.

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21. Further, what is of greater import is as to what would be the

consequence of a Change Report being submitted belatedly. In the event a

new Vahiwatdar takes over a Trust and, be it for whatever reason, he fails

to submit a Change Report within the stipulated period of 90 days, what

would be the fallout thereof? The provisions of the Act of 1950 do not

contemplate automatic invalidation of his assumption of office as the

Vahiwatdar of the Trust in such a situation. Once a Trust is registered as a

Public Trust under Section 18 of the Act of 1950, it becomes the statutory

duty of the authorities concerned to maintain proper records in relation to

such Trust, including the particulars of its Administrators and Trustees. The

Change Report in that regard has to be filed before the authorities

concerned to facilitate timely updating of records after hearing all the

parties concerned, as the statute provides for objections being raised

against a Change Report. Delay or failure in doing so would mean that the

records would not stand updated promptly. Objectors to the changes in the

Trust, if any, can always take recourse to the remedies provided under the

Act of 1950, complaining of the failure or delay in the filing of a Change

Report and the adverse consequences of such changes, if any.

22. Notably, as per the statutory scheme, failure to file Change

Reports would invite penal consequences under Section 66 of the Act of

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1950, which provides that whoever contravenes Section 22 and fails to

report a change would be liable to pay a fine of ₹10,000/-. Continued

failure to do so may invite more adverse consequences, as provided in the

Act of 1950, but such consequences would flow from the orders passed by

the authorities concerned under the relevant provisions and would not stem

from such failure automatically. Therefore, when failure to file a Change

Report would not be fatal in itself, the delay in filing a Change Report

cannot automatically impact the assumption of office by a Vahiwatdar of a

Trust. The very fact that a proviso was added in Section 22(1) of the Act of

1950, enabling the authority concerned to condone the delay in the filing of

the Change Report, if sufficient cause is made out, clearly indicates that

such delay is curable and the delay in filing a Change Report would not, by

itself, entail non-acceptance or nullification of the changes in the Trust

which are sought to be informed to the authorities with delay. In Esha

Bhattacharjee vs. Managing Committee of Raghunathpur Nafar

Academy and others

3

, this Court observed that there should be a liberal,

pragmatic, justice-oriented, non-pedantic approach while dealing with an

application for condonation of delay as Courts are not supposed to legalize

injustice but are obliged to remove injustice.

3

(2013) 12 SCC 649

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23. That apart, it appears that the devotees, all bearing the same

family name ‘Birajdar’, who are raising objections seem to have a

grievance with the very registration of the subject Trust, but their revision in

that regard stood dismissed and appears to have attained finality. After

such dismissal, in the capacity of being devotees of the Temple, they can

have no legitimate grievance with regard to the succession to the post of

Vahiwatdar of the subject Trust. More so, when the eldest male member in

the founder’s family has no issue with it.

24. Though it has been contended before us on behalf of the

devotees that the Trust is not taking proper care of the Temple, we are of

the opinion that such an issue cannot be a ground for them to challenge the

Change Reports relating to the Vahiwatdar and the Trustees of the subject

Trust. Separate machinery is provided in the Act of 1950 to address such

issues and it is for them to take recourse to such statutory remedies, if so

advised. Their repeated attempts to attack the Change Reports relating to

assumption of office by the new administration of the Trust only indicates

their inimical attitude thereto and to the family of the founder, Mallikarjun

Mahalingappa Patil. All in all, much ado about nothing!

25. Viewed thus, we are of the opinion that the learned Judge of the

High Court of Judicature at Bombay adopted a rather hypertechnical

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approach by attaching so much importance to the delay in the submission

of the first Change Report. Much did not turn upon the same as it was a

curable defect. In any event, it had no impact on the change that had been

brought about in the subject Trust but which was informed to the authorities

belatedly.

26. The common judgment dated 27.08.2019 passed by the High

Court of Judicature at Bombay in Writ Petition Nos. 8570 and 8571 of 2019,

therefore, cannot be sustained and is accordingly set aside.

In consequence, acceptance of Change Report Nos. 899 of

2015 and 1177 of 2017 is confirmed.

Both the civil appeals are allowed.

Pending applications, if any, shall stand closed.

Parties shall bear their own costs.

………………………..,J

(A.S. BOPANNA)

………………………..,J

(SANJAY KUMAR)

April 25, 2024;

New Delhi.

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