Ramchandra
Goverdhan Pandit Vs. Charity Commissioner of State of Gujarat [1987] INSC 121
(21 April 1987)
Khalid,
V. (J) 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 application 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 jurisdiction 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 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 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]
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 appointed 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 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 evidence,
whether oral or documentary, 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 pronounce 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
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 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 jurisdiction. The District Court while
dealing with an application under Section 72 was given the power to confirm,
revoke 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 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, 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
favor 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 expression 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
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 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 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 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 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 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 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 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 appropriate
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 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 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 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 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 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.
The
appeal has, therefore, to fail and is dismissed. However, there will be no
order as to costs.
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