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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
R.M. BORDE, SUNIL P. DESHMUKH & RAVINDRA V. GHUGE, JJ.
Prabhakar Sambhu Chaudhary - Appellant
Versus
Laxman Baban Mali & Ors. – Respondent
SA No.700, 793 of 2008
Decided on : 1-4-2016
Bombay Public Trusts Act, 1950 - Section 72(4) - Appeal to High Court - Scope and extent - Restrictions and limitations imposed under Section 100 of the Code of Civil Procedure, 1908 - Applicability - Held, appeal under Section 72(4) of the Act is not subjected to the restrictions and limitations imposed under the provisions of Section 100 of the Code of Civil Procedure and the scope of appeal extends to reconsideration of decision of the lower forum on questions of fact and questions of law with a jurisdiction to reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions.
Fact of the Case:
The instant case involved a dispute over the management of a public trust. Two groups, the Chaudhary group and the Mali group, each claimed to be the duly elected office bearers of the Managing Committee of the trust. The Assistant Charity Commissioner accepted the Change Report submitted by the Chaudhary group, while the Charity Commissioner rejected the Change Report submitted by the Mali group. The Mali group filed an appeal before the District Judge, who allowed the appeal and set aside the order of the Assistant Charity Commissioner. The Chaudhary group then filed an appeal before the High Court under Section 72(4) of the Bombay Public Trusts Act, 1950.
Finding of the Court:
The High Court held that the appeal under Section 72(4) of the Bombay Public Trusts Act, 1950, is not subjected to the restrictions and limitations imposed under the provisions of Section 100 of the Code of Civil Procedure, 1908. The scope of appeal extends to reconsideration of decision of the lower forum on questions of fact and questions of law with a jurisdiction to reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. The High Court further held that there is no obligation for the appellant to state substantial questions of law involved in the memorandum of appeal and the High Court is also not bound to formulate substantial questions of law while admitting the appeal or before posting the appeal for hearing.
Issues: Whether the appeal under Section 72(4) of the Bombay Public Trusts Act, 1950, is subjected to the restrictions and limitations imposed under the provisions of Section 100 of the Code of Civil Procedure, 1908.
Ratio Decidendi: The High Court relied on the judgment of the Supreme Court in James Joseph Vs. State of Kerala, (2010) 9 SCC 642, wherein it was held that if the statute does not place any limitations or restrictions in regard to the scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts. The High Court also noted that Section 72(4) of the Bombay Public Trusts Act, 1950, does not make any reference to Section 100 of the Code of Civil Procedure, nor specifically puts any restriction or limitation on the powers of the High Court in entertaining the appeal.
Final Decision: The High Court held that the appeal under Section 72(4) of the Bombay Public Trusts Act, 1950, is not subjected to the restrictions and limitations imposed under the provisions of Section 100 of the Code of Civil Procedure, 1908. The scope of appeal extends to reconsideration of decision of the lower forum on questions of fact and questions of law with a jurisdiction to reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. The High Court further held that there is no obligation for the appellant to state substantial questions of law involved in the memorandum of appeal and the High Court is also not bound to formulate substantial questions of law while admitting the appeal or before posting the appeal for hearing.
The facts of the case involve a dispute over the management of a public trust, where two groups—the Chaudhary group and the Mali group—each claimed to be the duly elected office bearers of the Managing Committee. The Assistant Charity Commissioner initially accepted the Change Report presented by the Chaudhary group, while the Charity Commissioner rejected the Change Report submitted by the Mali group. The Mali group appealed this decision to the District Judge, who reversed the lower authority's order and set aside the Assistant Charity Commissioner's decision. Subsequently, the Chaudhary group filed an appeal before the High Court under Section 72(4) of the Bombay Public Trusts Act, 1950, challenging the order of the District Judge.
The core legal issue concerns the scope and extent of the appeal under Section 72(4) of the Act. The question is whether such an appeal is subject to the restrictions and limitations imposed under Section 100 of the Civil Procedure Code, which generally restricts second appeals to questions of law involving substantial questions. The legal reasoning clarifies that the appeal under Section 72(4) is not a "second appeal" in the traditional sense and is not subjected to the limitations of Section 100 of the CPC. Instead, it is a broader, re-hearing type appeal that allows the High Court to reconsider both questions of law and fact, with the authority to reverse, modify, or remand the decision to the lower forum for a fresh decision (!) (!) .
The legal principle established is that the scope of such an appeal extends beyond mere questions of law, providing a comprehensive review of the lower court's decision. The appeal is not confined by the restrictions typically associated with second appeals, and there is no obligation for the appellant to specify substantial questions of law in the memorandum of appeal. The High Court is also not bound to formulate such questions before hearing the appeal, thus affording a broader scope of judicial review (!) .
In summary, the facts revolve around a management dispute of a public trust, and the legal ratio concludes that appeals under Section 72(4) are not limited by the restrictions of Section 100 of the CPC. They encompass a full rehearing on both questions of law and fact, with the jurisdiction to reverse, modify, or remand, and do not require the appellant to specifically state substantial questions of law in the appeal documentation.
(Per R.M.Borde, J.):
1. Heard Shri R.N. Dhorde, Senior Counsel i/by Shri V.R.Dhorde, advocate for the Appellant in Second Appeal No.700 of 2008 and for Respondent No.1 in Second Appeal No.793 of 2008 with and i/by Shri P.S.Dighe, advocate; Shri P.M.Shah, Senior Counsel i/by Shri S.P.Brahme, advocate for Respondents No.1 to 3 in Second Appeal No.700 of 2008 and for the Appellant in Second Appeal No.793 of 2008 with and i/by Shri N.B.Suryawanshi, advocate; and Shri A.B.Girase, Government Pleader for Respondent No.5 in both the appeals.
2. These Second Appeals have been presented objecting to the judgment and order dated 29.04.2008, passed by Ad hoc District Judge-2, Shahada in Trust Applications No.1 of 2007 and 2 of 2007.
3. Although there is a chequered history of the litigation, it would suffice to note that after elections to the Managing Committee were held, Change Report No.207 of 2003 was presented by Choudhary group i.e. appellant in Second Appeal No.700 of 2008, whereas, Change Report No.208 of 2003 was Presented by Mali Group i.e. Respondents in Second Appeal No.700 of 2008 and appellant in Second Appeal No.793 of 2008, respectively claiming themselves to be duly elected office bearers of the Managing Committee. Change Report No.207 of 2003 came to be accepted by the Assistant Charity Commissioner and Change Report No.208 of 2003 came to be rejected by an order dated 12.04.2006. Appeal No.73 of 2006 was filed by Mali Group, challenging acceptance of Change Report No.207 of 2003 and rejection of Change Report No.208 of 2003. The said appeal came to be allowed vide order dated 06.01.2007 and order passed in respect of acceptance of Change Report No.207 of 2003 is set aside. On the other hand, order in respect of rejection of Change Report No.208 of 2003 came to be confirmed.
4. Trust Application No.1 of 2007 came to be presented by Chaudhary group, challenging order dated 06.01.2007 in Appeal No.73 of 2006. So also, Trust Application No.2 of 2007 came to be presented by Mali group, challenging order dated 06.01.2007, in respect of Change Report No.208 of 2003. Both the Applications have been rejected by Ad hoc District Judge, Shahada, by order dated 29.04.2008, which gave rise to presentation of Second Appeal No.700 of 2008 (in respect of Change Report No.207 of 2003 by Chaudhary group); and Second Appeal No.793 of 2008 (in respect of Change Report No.208 of 2003, presented by Mali group).
5. Both the appeals were placed before the learned Single Judge for consideration on 30.01.2012. It was urged by learned Counsel appearing for respective parties, that in view of subsection (4) of Section 72 of the Bombay Public Trusts Act, 1950, there is no warrant to frame a substantial question of law and the High Court is bound to entertain all objections to the correctness of the judgment, including those relating to questions of facts.
6. It was contended that appeal provided under subsection (4) of Section 72 of the Act cannot be subjected to any restrictions or limitations as are prescribed under Section 100 of the Code of Civil Procedure; and further, it is not within contemplation to draw an inference that the appeals are tenable only if the Court is satisfied that it involves substantial questions of law.
7. Relying upon the judgment in the matter of James Joseph Vs. State of Kerala, reported in 2010 (9) SCC 642, it was urged that if the statute does not place any limitations or restrictions in regard to scope and width of the appeal, it shall be construed that the appeal provides a right of rehearing on law as well as facts.
8. A different view is expressed by Division Bench of this Court in the matter of Shivprasad Shankarlal Pardeshi Vs. Leelabai Badrinarayan Kalwar, reported in 1998 (1) Mh.L.J. 444. The Division Bench, while considering the scope of an enquiry in the appeal provided to the High Court under subsection
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