RAMCHANDRA GOVERDHAN PANDIT A v.

CHARITY COMMISSIONER OF STATE OF GUJARAT i

APRIL 21, 1987

[V. KHALID AND G.L. OZA, JJ.] 8

" Bombay Public Trusts Act, 1950-Section 72-Setting aside of

.,.l. order of Charity Commissioner by District Court-Whether exercise of appellate or revisionary jurisdiction-Whether leae of Single judge necessary for filing Letters Patent Appeal.

- ;. c Letters Patent of Bombay High Court-Clause 15-Appeal against order of Single Judge under Bombay Public Trusts Act 1950, s. 72-Leave of Judge-Necessity for.

~ On suo motu enquiry conducted against the appellant with regard to the nature of the properties in question, the Deputy Charity Commis D

sioner held that the properties were of a public trust. The appellant's appeal before the Charity Commissioner was dismissed. An application filed under s. 72 of the Bombay Public Trust Act, 1950 was also dismls-. sed by the City Civil Court. The First Appeal filed in the High Court was dismissed by a Single Judge.

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In the Letters Patent Appeal on behalf of the appellant it was -

contended: that s. 72(1) speaks only of an application to the Court to set asi.de the decision of the Charity Commissioner, and it does not speak of an appeal; that while s. 70 and 71 use the word "appeal" and that the ' proceedings under s. 72 were not in the nature of an appeal and that, .....

therefore. when the District Court exercised its jurisdiction it did not F exercise an appellate jurisdiction but a special jurisdiction under the

. ....., section •

The High Court dismissed the appeal holding that it was not maintainable since the requisite certificate under clause 15 of Letters G Patent Appeal was not obtained by the appellant, that though the well known word "appeal" was not used in s. 72, the absence of tbat word ., cannot be regarded as determinative of the nature of the proceedings, and that the jurisdiction that the District Court is exercising under s. 72 was appellate jurisdiction.

Dismissing the appeal, H

HELD: 1.1 The power of the District Court In exercising Juris diction under s. 72 of the Bombay Public Trust Act, 1950, is a plenary power. It is true that the Commissioner is not subordinate to the District Court bur the District Court hes powers to correet, modify, review or set aside the order passed by the Commissioner, All the characteristics of an appeal and all the powers of an appellate Court Ell'e available to the District Court while deciding an application under s. 72. (1089DEl

1.2 The proceedings before the District Court u11der s, 72(1) a1re in the nature of an appeal and that District court exercises appellalte jurisdiction while disposing of a matter under s. 72(1), (IOii!il!:•ill

1.3 The absence of the word "appeal" his. 72(i) does not 1nak1e any difference. (I089C)

Hiragar Dayagar v. Ratanlal, (19721 13 G, L, lt. tlit ilild (1956.I 58 Bombay Law Reporter 894 approved and AIR 1974, Bombay 40, D disapproved.

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2. Consequently, the Single Judge oi'ihe High Court while decid ing the appeal from the order of the District Court deals with a matter made by the District Judge in the exercise of a appellate jurisdiction by a Court subject to the superintendence of the High Court and hence 1- E clause 15 of the Letters Patent Appeal is directly attracted, (1089FG]

CIVIL APPELLATE JURISDICTION:Civil Appeal No. 1594 of 1973.

From the Judgment and Order dated 19.9.1972 of the Gujarat F High Court in L.P.A. No. 72 of 1971.

M.V. Goswami for the Appellant.

M.N. Shroff, P.C. Kapur and T. Sridharan for the Respondent.

G The Judgment of the Court was delivered by

KHALID, J. This appeal is by special leave granted by this Court on 30.10.1973 against the judgment and order of the High Court of Gujarat dated 19.9.1972 passed in Letters Patent Appeal No. 72 of

1971. The facts necessary in brief for disposal of the appeal are as H hereunder:

The Deputy Charity Commissioner, Ahmedabad Region appoin A ted under the Bombay Public Trust Act 1950 (for short 'the Act') started suo motu enquiry . under the Act against the appellant as Enquiry No. 578 of 1958 with regard to the nature-of the properties involved in the appeal. The Deputy Charity Commissioner held by his order dated 20.10.1960 that the properties were of a public trust.

Aggrieved by this order, the appellant filed an appeal before the Char B' ity Commissioner. The Charity Commissioner dismissed the appeal on

15.5.1961. Thereupon the appellant moved the City Civil Court. by filing an application under Section 72 of the Act. This application was dismissed on 6.8.1963. The First Appeal No. 448 of 1963, was then filed in the High Court of Gujarat against this order of the City Civil Court. This appeal was dismissed by the High Court on 30.9.1970. The C appe.Jlant then filed Letters Patent Appeal before the High Court. It . was admitted on 25.2.1971. However, it was dismissed on 19.9.1972 holding that the appeal was not maintainable since the requisite certifi cate under clause 15 of the Letters Patent was not obtained by the appellant. Hence this appeal.

D The Division Bench dismissed the appeal relying upon an earlier judgment rendered by another Division Bench of that Court reported in Hiragar Dayagar v. Ratanlal, [1972] 13 G.LR. 181. This decision was rendered on 26. 10. 1971. The ratio of the decision is that the single Judge who disposed of the appeal was hearing an appeal in respect of an order made in the exercise of appellate jurisdiction by a Court E subject to the superintendence of the High Court and that, therefore it was necessary for the appellant to obtain a certificate from the single Judge that the case was a fit one for appeal to the Division Bench under clause 15 of the Letters Patent Appeal. It is this question that we have to consider in the case.

For this purpose we will first read Section 72 which is as follows:

"72(1) Any person aggrieved by the decision of the Charity Commissioner under Sections 40, 41, 50-A, 70 or

70-A or on the questions whether a trust exists and whether ' such trust is a public trust or whether any property is the G property of such trust may, within sixty days from the date of the decision, apply to the Court to set aside the said decision.

(1-A) No party to such application shall be entitled to produce additional evidence, whether oral or documen H

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tary, before the. Court, unless the Deputy or Assistant Charity Commissioner or the Charity Commissioner has '\ refused to admit evidence which ought to ha\e been admit ted or the Court requires any documents to be produced or any witness to be examined to enable it to pronounce judg ment or for any other substantial cause the Court thinks it n, ecessary to allow such additional evidence:

Provided that whenever additional evidence is allo- . wed to be produced by the Court, the Court shall record the reason for its admission.

(2) The Court after taking evidence if any, may con firm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. " .. / (emphasis supplied). . ,' ' .'

xx xx '/· The argument put forward before the Gujarat High Court in this case which was repeated before us also is that Section 72(1) speaks only of an application to the Court to set aside the decision of the Charity Commissioner, and it does not speak of an appeal. It was E . argued that while Sections 70 & 71 use the word appeal, a deliberate departure is made in Section 72 by using the word "apply" instead of the word "appeal". On this reasoning, a case is.attempted to be built up that the proceedings under Section 72 were not in the nature of an .> .. appeal and that, therefore, when the District Court exercised its

 ' . F jurisdiction it did not exercise an appellate jurisdiction but a special ' • jurisdiction under the Section. This contention was repelled by the

• 'Gujarat High Court. It was held that though the well known word

. "appeal" was not used in Section 72, the absence of that word cannot be regarded as determinative of the nature of the. proceedings. The : question considered was as to what was the scope, ambit and.content G ; of the proceedings before the District Court. Now.the question is as to whether it is an appellate jurisdiction, revisionaljurisdiction'oi 'origi. rial jurisdiction that the District Court is exercising under Section 72.

The Courtanswered that it was appellate jurisdiction. Tilepistrict • --. Court while dealing witliiln application under Section 72 w~ given the.· . power to confirm, revoke or rillldify a decision of the Charity Commis • sioner and the. Section. did not impose any fetters or limits. on. this .. H power. In an application under Section 72, the entire matier was at

large 'before the District Court and the District Court had complete A power to review the decision of the Charity Commissioner either on law or on fact in such manner as it thought proper. •

A contrary view was taken by the Bombay High Court dealing with the identical Section in the decision reported in AIR 1974, B Bombay 40. The Bombay High Court relying upon the phraseology

_....\ used in Section 72 held that the proceedings under Section 72 was not in the nature of an appeal. The question was answered in favour of the

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contention raised by the appellant before us as follows:

"16. If it could not be held in the present case that the court under Section 72 was itself exercising the appellate c jurisdiction, undoubtedly the present appeals filed without the leave of the learned Single Judge are incompetent.

Such appeals lie only with his leave and not.otherwise. If otherwise it could be held, as the natural meaning of the expression suggests, that Section 72 provides a remedy by D way of an application only, and though the inquiry held by the District Court seems to have some semblance of an appellate jurisdiction, it is not a jurisdiction created by the

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legislature as an appellate jurisdiction. It is only where the jurisdiction is appellate and a decision in exercise of such jurisdiction is given, and the High Court has also exercised - the appellate jurisdiction, that the bar contemplated by E Clause 15 of the Letters Patent of obtaining leave of the Court seems to come in. -~

18. We are therefore satisfied that whatever the type of function that the Court performs under Section 72 of the F Act when an application is received by it from any aggrieved party, it is certainly not appellate jurisdiction as is contemplated by clause 15 of the Letters Patent. If that is, so, the decree or the order of the District Court was not in the exercise of the appellate jurisdiction, even though the High Court exercised the appellate jurisdiction, while hear- G ' "{

ing First Appeals Nos. 830 & 831 of 1965."

' It would be useful at this stagt to refer to another decision of the Bombay High Court also rendered by a Division Bench reported in ( 1956) 58 Bombay Law Reporter 894. There also Section 72 of the Act fell for consideration not in the context of a plea similar to the one ff raised before us but in the context of a plea under the Limitation Act.

A .However. the following observations by .Chag)a, C.J. can be usefully extracted in support'Of our conclusion:-

"Now, although Section 72(1} confers a right upon a person aggrieved by the decision of the Charity Commissioner to apply to the City Civil Court, we must look at and consider the real nature of the right that is conferred by this sub-section. In substance, if not in form, the right is in the nature of an appeal. The application is intended to set aside the decision of the Charity Commissioner and the City Civil Court must consider that decision, and if satisfied that the decision is erroneous must set it aside and give the necessary relief to the party aggrieved by that decision.

Therefore, in substance there is very little difference between an application contemplated by Section 72( 1) and a rJght of appeal against the order of the Charity Commissioner ............................................. "

 · 'This decision was noted by the Bombay High Court in the decision reported in 1974 Bombay 40, but the observations therein were disting- .. uished as follows:

"15. We will at once point out that the learned Judges who dealt with the case of ( 1956) 58 Born. LR 894 had a very different proposition before them. Primarily they were concerned with the obstacle of limitation which was being created in the way of a party by resorting to the technical provisions of Chapter 11 and more particularly Section 75 of the Act. It is in that context when the days for obtaining copies were to be excluded that they read the remedy provided under Section 72 of the Act in a liberal way for the purpose of bringing it under the provisions of Sections 12(2) and 29(2) of the Limitation Act of 1908. While making this. liberal construction, the language used by the learned Judges is worth noting. They point out that the application to the Court was in the nature of an appeal but they have nowhere called it as an appeal so provided by the Legislature. While considering the nature and type of function performed by the court under Section 72, the learned Judges have construed liberally the provisions of Section 75 cf the Act as also Sections 12(2) and 29j20) of the Limitation Act. 1908. It is possible that the courts might look at

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the particular provisions in a liberal manner for the pur- A pose of technical provisions like Limitation Act. However, when it comes to the construction of provisions which awards a positive right to a party it would be appropriate that the provisions are construed in a manner which are conducive to the right of the party." B

We have considered the reasoning in the three judgments referred above. With respect, we find it difficult to agree with the reasoning in 1974 Born. 40. We agree with the reasoning in the other two cases.

The slender thread on which the appellants' arguments rests is the absence of the word "appeal" in Section 72(1). That alone cannot decide the issue. If the well known word "appeal" had been used in C this Section that would have clinched the issue. It is the absence of this word that has necessitated a closer scrutiny of the nature extent and content of the power under Section 72(1).

The power of the District Court in exercising jurisdiction under D Section 72 is a plenary power. It is true that the Commissioner is not subordinate to the District Court but the District Court has .powers to correct, modify, review or set aside the order passed by the Commissioner. All the characteristics of an appeal and all the powers of an appellate Court are available to the District Court while deciding an application under Section 72. To decide this case we must be guided E not only by the nomenclature used by the Section for the proceedings. but by the essence and content of the proceedings. That being so, we have no hesitation to hold that the proceedings before the District Court under Section 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under Section 72(1). Consequently, the Single Judge of the High Court while deciding the appeal from the order of the District Court F deals with a matter made by the District Judge in the exercise of an appellate jurisdiction by a Court subject to the superintendence of the High Court and hence clause 15 of the Letters Patent is directly attracted.

G The appeal has, therefore, to fail and is dismissed. However, there will be no order as to costs.

A.P.J.

Appeal dismissed.