The application under Section 72 of the Bombay Public Trust Act, 1950 is not an appeal and therefore the leave of the Single Judge is not required for filing the Letters Patent Appeal.

Headnote:
LETTERS PATENT APPEAL - JURISDICTION - BOMBAY PUBLIC TRUST ACT, 1950 - SECTION 72 - WHETHER APPLICATION UNDER SECTION 72 IS AN APPEAL - WHETHER LEAVE OF SINGLE JUDGE REQUIRED FOR FILING LETTERS PATENT APPEAL - INTERPRETATION OF CLAUSE 15 OF THE LETTERS PATENT.
Fact of the Case:

Two appeals were filed under clause (15) of the Letters Patent against the judgment of a learned Single Judge of the High Court without the leave of that judge. The issue was whether the proceedings before the District Court under Section 72 of the Bombay Public Trust Act (hereinafter referred to as the Act) were proceedings in the nature of an appeal from the order and decision of the Charity Commissioner and as such the First Appeal heard by a learned Single Judge of this Court is a decision of this Court while exercising appellate jurisdiction over a decision of the District Court given in the exercise of its appellate jurisdiction.
Finding of the Court:

The Court held that the application under Section 72 of the Act was not an appeal and therefore the leave of the Single Judge was not required for filing the Letters Patent Appeal. The Court observed that the jurisdiction exercised by the District Court under Section 72 of the Act is not appellate in its character and that the remedy provided under Section 72 is not an appeal but an application.
Issues: Whether the application under Section 72 of the Bombay Public Trust Act, 1950 is an appeal.
Ratio Decidendi: The Court interpreted the provisions of Section 72 of the Act and clause 15 of the Letters Patent and held that the application under Section 72 is not an appeal but an application. The Court observed that the Legislature has used the expression "may ................... apply" under Section 72 as against the expression "an appeal" under Sections 70 and 71 and that this distinct and different language used by the Legislature must be given its natural meaning.
Final Decision: The Court rejected the preliminary objection and held that the Letters Patent Appeals were competent and could be filed without the leave of the learned Single Judge.

JUDGMENT - 1. These appeals arise out of the original proceedings before the Deputy Charity Commissioner holding enquiry under the Bombay Public Trustee Act (hereinafter referred to as the Act) to determine whether there was a public the properties of that rust a preliminary M.V. Paranjpe learned Counsel for respondent No. 1, the these appeals under clause (15) of the Letters Patent against the judgment of learned single Judge of this Court are filed without the leave of that judge. According to him, the proceedings before the District Court under Section 72 of the Act are proceedings in the nature of an appeal from the order and decision of the Charity Commissioner and as such the First Appeal heard by a learned Single Judge of this Court is a decision of this Court while exercising appellate jurisdiction over a decision of the District Court given in the exercise of its appellate jurisdiction. This being so, the relevant provisions of the Letters Patent clause (15) will be attracted and both the present appeals filed without the leave are incompetent.

2. The facts out of which the two appeals arise may be noted very briefly, Respondent No. 2 Devidas Baliramdas Bairagi riled application No. 3477 of 1952 under protest under Section 18 of the Act for a declaration that certain properties described in that application were his private properties and not public trust. A little later in the same year 1952 under Section 18 in respect of the sent appellant filed application No. 3522 of 1952 under Section 18 in respect of the they constituted a public trust and the properties belong to that rust. Both these applications were heard by the Assistant Charity Commissioner and he arrived at the finding under Section 20 of the Act that House No. 206 constituted a public trust property and directed it to be so registered under the provisions of Section 21 of the Act. So far as House No. 13 was concerned his finding was that it was private property of respondent No. 2 who had transferred it to respondent No. 1 before the year 1952 in satisfaction of a decree obtained by respondent No. 1 against respondent No. 2. The appellant as well as respondent No. 2 went in appeal to the Charity Commissioner who heard both the appeals confirmed the finding and held that house No. 13 was the private property of respondent No. 2. He further held that house No. 206 was a public trust but the property was subject to a charge of Rs. 2,000/- in favour of respondent No. 1 in relationof an earlier transaction. Both of them filed applications under Section 72 in the District Court. appellants application was No. 76 of 1964 in which he contended that the charge in favour of respondent No. 1 against house No. 206 was not binding on the trust at all. he also filed another application No. 77 of 1964 that house No. 13 was a property of the public trust. The present respondent No. 2 filed Misc. Application No. 92 of 1964 in the District Court for a decision that house No. 206 was his private property and not a public trust. all the three applications which were transferred to the learned Asstt. Judge, Sholapur, were heard together by him. He rejected all the three application maintaining the orders passed by the Charity Commissioner. Being aggrieved, the appellant filed First Appeal No. 830 of 1965 in the High Court regarding the finding in respect of house No. 13, Both these appeals were heard together by Kantawala. J. ( as he then was) and both came to be dismissed by common judgment dated July 23, 1969. Against present two letters patent Appeals have been filed without the leave of the learned Single Judge.

3. Accordingly to Shri Paranjpe, these appeals without the leave under clause 15 of the Letters Patent are incompetent and should be rejected. We have heard the learned Counsel on both side only on preliminary point and would dispose of the preliminary objection in the first instance.

4. There is no doubt that this matter has come to the Civil Court under Section 72

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