ORDER

B.U. Wahane, J.

1. In this First Appeal, the appellants have challenged the findings recorded by the District Judge. Bhandara on 7-9-1993, in Misc. Judicial Case No. 47/92, arising out of Application No. 30/92 decided on 17-10-1992 by the Joint Charity Commissioner, Nagpur, which arose out of the Judgment and Order dtd. 11-9-1992 passed by the Dy. Charity Commissioner, Bhandara in Change Report No. 8/92, accepting the same.

2. The Loksewa Bahu-Uddeshiya Shaikshanik Sanstha came to be registered as a Public Trust having Registration No. F-356. A Change Report (Exh. 1) was filed by the reporting trustee-the respondent-Shri Kamlesh Kanoje, before the Deputy Charity Commissioner, Nagpur. In the change report, the appellant No. 1- Shri B.J. Wahane is shown as a President and Mr. Kamlesh Gangaram Kanoje (respondent) as a Secretary. It was contended in the application that Shri B.J. Wahane resigned from the Secretaryship and his resignation was accepted in the meeting dtd. 26-2-1978 of the Managing Committee. Shri K.G. Kanoje tendered his resignation as President which was also accepted vide Resolution No. 2 passed in the Meeting held on 26-2-1978. In accordance with the resolution, the designations of Shri Wahane and Shri Kanoje were changed respectively.

3. The appellant No. 1/non-applicant-Shri B.J. Wahane recorded his objections, at Exh. 10 in the Enquiry under section 22 of the Bombay Public Trust Act, 1950. According to the appellant, the change-report is not bona fide. It is a false and fabricated document. He further submitted that there was no meeting at all on 26-2-78 consequently no resolutions passed in the meeting of the Managing Committee as stated by the Reporting Trustee in his change-report. According to the appellant No. 1, he never resigned from the post of Secretary and as such the said resolutions are false, misleading and concocted. Thus, the Change-report is illegal.

4. The Change-report under section 22 of the Bombay Public Trust Act, 1950, was filed before the Dy. Charity Commissioner, Bhandara on 23-1-1992. The objection to the acceptance of Change Report No. 8/1992, was filed on 15-2-1992. Besides denying the meeting, resolutions and resignations, the appellant No. 1 submitted that the Change-Report is liable to be dismissed on the ground of inordinate delay which itself has sufficient reasons to raise doubt about it's bona-fide.

In para 2 of the objection placed before the Dy. Charity Commissioner, Bhandara, it is stated that ;

"In 1978, a change report in respect of one "Durga Pillay" who was then inducted as new trustee was submitted and accepted."

The Objector considering this fact submitted that if there would have been further change in 1978, Shri Kanoje would have reported the same to the Dy. Charity Commissioner by filing the Change Report under section 22 of the Bombay Public Trust Act, 1950. Failure on the part of Shri Kanoje- the respondent to file the Change Report itself substantiate the contention of the appellant that no resolutions were passed in the alleged meeting dtd. 26-2-1978. In para 3, the Objector contended that no notices were issued to the Members of the Trust about the meeting which alleged to have been held on 26-2-1978.

5. Undisputedly, there is a delay of about more than 14 years in filing the Change Report under section 22 of the Bombay Public Trusts Act, 1950.

6. With the assistance of the learned Counsel of the parties, I have perused the findings recorded by the Dy. Charity Commissioner, Bhandara, Joint Charity Commissioner, Nagpur and the impugned order passed by the District Judge, Bhandara. It appears that all the Authorities and the District Judge, Bhandara have not considered at all the question of delay of about 14 years in filing the Change Report. No discussion and reasons are found in all the three impugned Judgments to condone the delay, entertaining the application for change under section 22 of the Bombay Public Trust Act.

7. Section 22(1) of the Bombay Public Trusts Act, 1950, very specifically states that; if the change occurs in any of the entries recorded in the register under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, report such change or proposed change to the Deputy or Assistant Charity Commissioner. Section 22(1) of the Bombay Public Trusts Act, 1950 read as under :

"22(1) Where any change occurs in any of the entries recorded in the register kept under section 17, the trustee shall, within 90 days from the date of the occurrence of such change, or where any change is desired in such entries in the interest of the administration of such public trust, report such change or proposed change to the Deputy or Assistant Charity Commissioner in charge of the Public Trusts Registration Office where the register is kept. Such report shall be made in the prescribed form."

8. Admittedly, alongwith the application for change under section 22 of the Bombay Public Trusts Act, 1950, no other application for condonation of delay was filed before the Deputy Charity Commissioner, Bhandara.

9. Shri Khan, the learned Counsel for the respondent vehemently submitted that the statutory provisions of 90 days preceding the Change Report is not construed as a period of limitation to file the Change Report. Section 66 of the Bombay Public Trusts Act, 1950, provides penalty to the extent of Rs. 1,000/- if there is a breach of the provisions of section 22 of the said Act. The penalty is provided in the cases where the trustees failed to submit the change report in accordance with the section 22 of the Bombay Public Trusts Act, 1950. According to Shri Khan, the learned Counsel for the respondent, the provisions of section 22(1) of the Act does not restrict the enquiry about the change. The change report be filed within 90 days is not a limitation to file the change report but it is a direction to be followed and if not, the penalty under section 66 of the Bombay Public Trusts Act, 1950, is provided.

10. Shri Khan, the learned Counsel for the respondent further submitted that though the objection to the acceptance of change report is taken, no specific objection to the effect that the application for change or the change report is not tenable in view of the limitation provided under section 22 of the Bombay Public Trusts Act, 1950, of 90 days, is taken.

It is true that no specific objection in the suggested words raised expressing that the Court has no jurisdiction to entertain the application as the same was not filed within 90 days as provided under section 22 of the Bombay Public Trusts Act, 1950, it is a settled Principle of law that the parties can raise the legal proposition at any stage particularly as regards the jurisdiction and tenability of the proceedings. Under the circumstances, I do not find any substance in the submissions of Shri Khan, the learned Counsel for the respondent on this aspect.

11. Shri Khan, the learned Counsel for the respondent, further submitted that the Enquiry is required to be conducted under section 19 of the Bombay Public Trusts Act, 1950. This section can be divided in three parts. Firstly; enquiry on the application of the trustees or it's agents, secondly; enquiry to be made regarding the functioning of the Trust including the change effected in the Executive Body of the Trust and thirdly; enquiry can be held on it's own motion. Further, it is submitted that section 19 of the Bombay Public Trusts Act, 1950, does not provide any limitation. Therefore, the application filed under section 22 of the Bombay Public Trusts Act, 1950, for recording the change, was not barred by limitation.

With due regard, I do not accept the submissions made by Shri Khan, the learned Counsel for the respondent. It is apparent that Shri Khan misconstrued the provisions of section 19 and 22 of the Bombay Public Trusts Act, 1950. The provisions of section 19 specifically provide enquiry for registration of the Trust on receipt of the application under section 18 of the Bombay Public Trusts Act. The enquiry which contemplated under the provisions of section 19 of the said Act is as regards the registration of the Public Trust. Under this section an inquiry has to be conducted for the purpose of ascertaining the conditions 1 to 8, as prescribed in section 19 itself. Section 22(1) of the Bombay Public Trusts Act, 1950, specifies the inquiry to be conducted as regards the change in the entries recorded in the register kept under section 17. From the bare reading of both the provisions it appears that for enquiry under section 22 of the Bombay Public Trusts Act, 1950, no recourse is available of section 19 of the Bombay Public Trusts Act, 1950.

12. The application for change or any change report be submitted within 90 days from the date of the occurrence of such change under section 22(1) of the Bombay Public Trusts Act, 1950, can not be construed as a direction but it is a mandate that if the application of change report is not filed within 90 days, the same will not be entertained. However, the parties i.e. trustees or it's agents are entitled to take recourse of the general law of limitation for condoning the delay and it is the discretion of the Court to consider or not to consider such an application for condonation. According to me, if the application or change report is not filed within 90 days and the reporting trustee filed an application for condonation of delay in filing the change report, the Deputy or Assistant Charity Commissioner may consider and condone the delay imposing the fine to the extent of Rs. 1000/- as provided under section 66 of the Bombay Public Trusts Act, 1950. If the limitation of 90 days is not construed, then the Trustees will be encouraged to treat the Trusts as their property and continue their position as President or Secretary for years together without registering any change as provided under the provisions of the Bombay Public Trusts Act, 1950. Thus, in view of my above observations, I do not find any merit in the submissions of Shri Khan, the learned Counsel for the respondent.

13. Perusal of the Judgment of the Deputy Charity Commissioner dtd. 11-9-1992 (at page 31-39). The Judgment of Joint Charity Commissioner, Nagpur, dtd. 17-10-92 (page 45-53) and the Judgment of the District Judge, Bhandara, dtd. 7-9-93- (page 59-66) demonstrate that though the objections were raised as regards the delay of more than 14 years in filing the change report, there is no discussion at all in the impugned Judgments in this regard. Such delay in reporting the change definitely creates doubt about the meeting, resignation tendered by the appellant No. 1 and passing impugned resolutions dtd. 26-2-1978. Similarly, Shri Kanoje- the respondent No. 1, has not explained the said delay of about 13-14 years, specifying the circumstances which prevented him from approaching the Deputy or Assistant Charity Commissioner as soon as the alleged resolutions were passed in the year 1978. No explanation has been tendered to the objection raised to the effect that a change report in respect of one Durga Pillay who was inducted in 1978 as a new trustee, was submitted in 1978 itself and accepted, why the change report as regards the meeting and resolutions dtd. 26-2-1978 was not filed within the statutory prescribed period as provided under section 22(1) of the Bombay Public Trusts Act, 1950 or within reasonable period.

14. In the Judgment dtd. 17-10-1992, passed by the Joint Charity Commissioner, Nagpur, in para 8 is referred that :

"The three years tenure of the Executive Body of the Trust is laid down in the Constitution of the Trust, when it was formed in 1977."

If there was change on 26-2-1978, according to the respondent reporting Trustee, presuming that the changed body resumed, it's tenuare comes to an end by 25-2-1981. Thereafter, again 3 years tenure would have been lapsed by the end of February, 1984. Such statutory periods of three years tenure would have been lapsed by the end of February-March 1987 and 1990, if there would have been regular elections. However, nothing has been placed on record to show that there were elections of the Trust during the specified period of 3 years. It is stated by the appellant No. 1 that no elections of the Trust were at all held. No document is produced on record to demonstrate that the Resolutions were passed by the General Body after the alleged meeting of 26-2-1978 as regards continuation of the same body, in absence of elections.

15. In view of the facts and circumstances and considering the provisions discussed above, this Court comes to the irresistable conclusion that there was neither any election after 26-2-1978 nor there was any resolution passed by the General Body of the Trust to continue the Body in accordance of alleged resolution dtd. 26-2-78. Thus, in view of the lapses discussed above, I hold that there was no meeting held or resolutions passed on 26-2-1978. No evidence was placed on record that after the alleged resignation tendered by the appellant No. 1, on 24-2-1978 notices were issued to the members of the Trust. Under the circumstances, the Body which was functioning on or before 26-2-1978 is in existance and functioning. The change report No. 8/92 submitted by the respondent No. 1 is rejected.

16. The findings being based on the legal propositions, I do not feel it necessary to probe the merit of the case.

17. In the result, the instant appeal is allowed. The impugned order dtd. 7-9-93 passed by the District Judge, Bhandara, in Misc. Judicial Case No. 47/92, arising out of Application No. 30/92 decided on 17-10-1992 by the Joint Charity Commissioner, Nagpur, which arose out of the Judgment and order dtd. 11-9-1992 passed by the Deputy Charity Commissioner, Bhandara, in Change Report No. 8/92, accepting the same are hereby quashed and set aside. No order as to costs.

18. Appeal allowed.