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V. KHALID AND G.L. OZA, JJ.
Civil Appeal No. 1594 of 1973,
D/- 21-4-1987.
Ramchandra Goverdhan Pandit, Appellant
Versus
Charity Commissioner of State of Gujarat, Respondent.
Bombay Public Trust Act, 1950 – Section 72, 40, 41, 50-A, 70, 70-A, 72(l), 75 - Limitation Act, 1908 – Section 12(2), 29(2) - Property - Trust - Public Trust - Deputy Charity Commissioner, appointed started suo motu enquiry under Act against appellant with regard to nature of properties involved in appeal - Deputy Charity Commissioner held by his order that properties were of a public trust - Aggrieved by this order, appellant filed an appeal before Charity Commissioner - Whether a trust exists and whether such trust is a public trust or whether any property is property of such trust may, within sixty days from date of decision, apply to Court to set aside said decision - Whether oral or documentary, before Court, unless Deputy or Assistant Charity Commissioner or Charity Commissioner has refused to admit evidence which ought to have been admitted or Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment - Whether it is an appellate jurisdiction, revisional jurisdiction or original jurisdiction that District Court is exercising under S. 72 – Held, Power of District Court in exercising jurisdiction under S. 72 is a plenary power - It is true that Commissioner is not subordinate to District Court but District Court has powers to correct, modify, review or set aside order passed by Commissioner - All characteristics of an appeal and all powers of an appellate Court are available to District Court while deciding an application under S. 72 - To decide this case court must be guided not only by nomenclature used by section for proceedings but by essence and content of proceedings - That being so, court have no hesitation to hold that proceedings before District Court under S. 72(1) are in nature of an appeal and that District Court exercises appellate jurisdiction while disposing of a matter under S. 72(l) - Consequently, single Judge of High Court while deciding appeal from order of District Court deals with a matter made by District Judge in exercise of an appellate jurisdiction by a Court subject to superintendence of High Court and hence Cl. 15 of Letters Patent is directly attracted - Appeal Dismissed.
The facts of the case involve an appellant who challenged a decision made by the Deputy Charity Commissioner that certain properties were of a public trust. The Deputy Charity Commissioner initiated a suo motu enquiry under the relevant public trust legislation, and after examining the properties, concluded that they belonged to a public trust. The appellant then filed an appeal against this order before the Charity Commissioner, which was dismissed. Subsequently, the appellant sought relief through a civil application under Section 72 of the relevant Act before the District Court, which was also dismissed. The appellant further appealed to the High Court, which dismissed the appeal on the grounds that it was not maintainable due to procedural requirements under the Letters Patent.
The core legal issue pertains to the nature of proceedings under Section 72 of the Act. The question was whether these proceedings are in the nature of an appeal, revisional jurisdiction, or an original jurisdiction. The court analyzed the scope, content, and characteristics of Section 72 proceedings, emphasizing that they involve a comprehensive review of the decision made by the Charity Commissioner. The court concluded that these proceedings are in essence appellate in nature, as they confer powers akin to those of an appellate court, including the authority to confirm, revoke, or modify the original decision, and to review both factual and legal aspects.
Consequently, the court held that the jurisdiction exercised by the District Court under Section 72 is plenary and akin to appellate jurisdiction, which allows it to correct, modify, or set aside the decision of the Charity Commissioner. This understanding aligns with the broader principle that the essence and content of the proceedings, rather than their nomenclature, determine their true character. As a result, the proceedings before the District Court under Section 72 are considered to be in the nature of an appeal, and the High Court's exercise of jurisdiction while hearing the appeal from the District Court is also of an appellate nature. This led to the conclusion that the appeal was not maintainable under the procedural requirements of the Letters Patent, resulting in the dismissal of the appeal.
Judgement
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 S. 72 of the Act. This application was dismissed on 6-8-1983. 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 19-9-72 holding that the appeal was not maintainable since the requisite certificate tinder Cl. 15 of the Letters Patent was not obtained by the appellant. Hence this appeal.
2. 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 Guj LR 181 : (AIR 1973 Guj 15). 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 on 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 Cl. 15 of the Letters Patent Appeal. It is this question that we have to consider in the case.
3. For this purpose we will first read S. 72 which is as follows :
"72(l) Any person aggrieved by the decision of the Charity Commissioner under Ss. 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 which Court any proper in the circumstances. (Emphasis supplied).
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4. The argument put forward before the Gujarat High Court in this case which was repeated before us also is that S. 72(l) 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 Ss. 70 and 71 use the word appeal, a deliberate departure is made in S. 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 S.
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