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:
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 evi-
dence, whether oral or documen-
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 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
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 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 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.
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 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.." 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
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 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. A.P.J. Appeal dismissed