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PETITIONER: RAMCHANDRA GOVERDHAN PANDIT

       Vs.

RESPONDENT: CHARITY COMMISSIONER OF STATE OF GUJARAT

DATE OF JUDGMENT21/04/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1598            1987 SCR  (2)1083  1987 SCC  (3) 273        JT 1987 (2)   221  1987 SCALE  (1)1206

ACT:    Bombay Public Trusts Act, 1950--Section 72--Setting aside of order of Charity Commissioner by District  Court--Whether exercise  of appellate or revisionary  jurisdiction--Whether leave  of Single judge necessary for filing  Letters  Patent Appeal.     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.

HEADNOTE:     On suo motu enquiry conducted against the appellant with regard  to  the nature of the properties  in  question,  the Deputy Charity Commissioner 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 dismissed  by the  City  Civil Court. The First Appeal filed in  the  High Court was dismissed by a Single Judge.     In the Letters Patent Appeal on behalf of the  appellant it  was contended: that s. 72(1) speaks only of an  applica- tion  to the Court to set aside 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  jurisdic- tion  it  did not 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 Patent Appeal was not obtained by  the appellant, that though the well known word "appeal" was  not used  in s. 72, the absence of that 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. 1084     HELD:1.1  The power of the District Court in  exercising jurisdiction  under  s. 72 of the Bombay Public  Trust  Act, 1950,  is a plenary power. It is true that the  Commissioner

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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  applica- tion under s. 72. [1089D-E]     1.2  The proceedings before the District Court under  s. 72(1) are in the nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under S. 72(1). [1089E-F ]     1.3  The absence of the word "appeal" in s.  72(1)  does not make any difference. [1089C]     Hiragar  Dayagar v. Ratanlal, [1972] 13 G.L.R.  181  and [1986]  58  Bombay Law Reporter 894 approved and  AIR  1974, Bombay 40, disapproved.     2.  Consequently,  the Single judge of tile  High  Court while  deciding  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 clause 15 of the Letters Patent Appeal is directly attracted. [1089F-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:Civil Appeal No.  1594  of 1973.     From  the  Judgment  and Order dated  19.9.1972  of  the Gujarat 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. 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 hereunder: 1085     The  Deputy Charity Commissioner, Ahmedabad  Region  ap- pointed  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  Charity 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 appellant 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  certificate under clause 15 of  the  Letters Patent was not obtained by the appellant. Hence this appeal.     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.L.R.  181. This decision was rendered on 26.10.197 1.  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

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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  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  evi-               dence, whether oral or documen-               1086               tary,  before the Court, unless the Deputy  or               Assistant Charity Commissioner or the  Charity               Commissioner  has  refused to  admit  evidence               which ought to have been admitted or the Court               requires  any documents to be produced or  any               witness  to be examined to enable it  to  pro-               nounce  judgment or for any other  substantial               cause  the Court thinks it necessary 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               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               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 argued that while  Sec- tions 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  Dis- trict  Court exercised its 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 of the proceedings before  the District  Court. Now the question is as to whether it is  an appellate jurisdiction, revisional jurisdiction or  original jurisdiction  that  the District Court is  exercising  under Section 72. The Court answered that it was appellate  juris- diction.  The District Court while dealing with an  applica- tion under Section 72 was given the power to confirm, revoke

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or  modify  a decision of the Charity Commissioner  and  the Section did not impose any fetters or limits on this  power. In an application under Section 72, the entire matter was at 1087 large  before the District Court and the District Court  had complete power to review the decision of the Charity Commis- sioner 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, 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 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  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 expres-               sion  suggests,  that Section  72  provides  a               remedy  by  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 legislature as an appellate  jurisdic-               tion.  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 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 Act when an  applica-               tion  is  received by it  from  any  aggrieved               party, it is certainly not appellate jurisdic-               tion  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 hearing First Appeals Nos.               830 & 831 of 1965."     It  would  be useful at this stage to refer  to  another decision  of the Bombay High Court also rendered by a  Divi- sion  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 raised before us but in the context of a plea under the Limitation Act. 1088 However,  the following observations by Chagla, 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

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             decision  of the Charity Commissioner and  the               City Civil Court must consider that  decision,               and if satisfied that the decision is  errone-               ous  must set it aside and give the  necessary               relief  to the party aggrieved by  that  deci-               sion.  Therefore, in substance there  is  very               little   difference  between  an   application               contemplated  by Section 72(1) and a right  of               appeal  against the order of the Charity  Com-               missioner........................................... .." This  decision  was noted by the Bombay High  Court  in  the decision  reported in 1974 Bombay 40, but  the  observations therein were distinguished as follows:               "15.  We  will  at once  point  out  that  the               learned  Judges  who dealt with  the  case  of               (1956)  58  Bom. 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 of the Act as also Sections  12(2)               and 29(20) of the Limitation Act, 1908. It  is               possible that the courts might look at               1089               the particular provisions in a liberal  manner               for  the purpose 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  appro-               priate that the provisions are construed in  a               manner which are conducive to the right of the               party."     We have considered the reasoning in the three  judgments referred above. With respect, we find it difficult to  agree with  the reasoning in 1974 Bom. 40. We agree with the  rea- soning  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 this Section  that would have clinched the issue. It is  the  ab- sence  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  jurisdic- tion  under 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

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characteristics of an appeal and all the powers of an appel- late Court are available to the District Court while  decid- ing an application under Section 72. To decide this case  we must  be  guided 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  Dis- trict 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 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  at- tracted.     The  appeal  has, therefore, to fail and  is  dismissed. However, there will be no order as to costs. A.P.J.                                         Appeal   dis- missed 1090