Holding

Section 72(1) of the Bombay Public Trusts Act, 1950 confers appellate jurisdiction on the district court, making clause 15 of the Letters Patent applicable; therefore the Letters Patent appeal was not maintainable.

Summary

Ramchandra Govardhan Pandit challenged a decision of the Charity Commissioner that his properties were a public trust. After the Commissioner’s order was dismissed by the Commissioner and the City Civil Court under Section 72 of the Bombay Public Trusts Act, 1950, Pandit appealed to the Gujarat High Court, which dismissed the appeal. He then filed a Letters Patent Appeal before the High Court, which was rejected for lack of a certificate under clause 15 of the Letters Patent. The Supreme Court examined whether Section 72(1) confers appellate jurisdiction on the district court and whether clause 15 applies. It held that the district court’s power under Section 72 is a plenary appellate jurisdiction despite the absence of the word “appeal,” and therefore the Letters Patent requirement of a certificate is attracted. Consequently, the appeal was dismissed.

Issues considered

The nature of the jurisdiction conferred by Section 72(1) of the Bombay Public Trusts Act, 1950 – whether it is appellate or a special jurisdiction.
Whether the absence of the word ‘appeal’ in Section 72(1) precludes the proceeding from being an appeal.
Whether clause 15 of the Letters Patent of the Bombay High Court applies to an appeal from the district court’s order under Section 72, requiring a certificate from the single judge.
Whether a Letters Patent appeal can be entertained without such a certificate.

Legislation cited

Bombay Public Trusts Act, 1950s. 40, s. 41, s. 50-A, s. 70, s. 70-A, s. 71, s. 72
Letters Patent of Bombay High Courts. clause 15
Limitation Act, 1908s. 12(2), s. 29(2)

Subjects

public trustBombay Public Trusts ActSection 72appellate jurisdictionLetters Patent appealclause 15Charity Commissionerdistrict court

Judgment

RAMCHANDRA GOVERDHAN PANDIT A
v.
CHARITY COMMISSIONER OF STATE OF GUJARAT
i APRIL 21, 1987

[V. KHALID AND G.L. OZA, JJ.] 8

Bombay Public Trusts Act, 1950-Section " 72-Setting aside of
order of Charity Commissioner by District Court-Whether exercise of
.,.l. appellate or revisionary jurisdiction-Whether lea~e of Single judge
necessary for filing Letters Patent Appeal.
- ;. Letters Patent of Bombay High Court-Clause 15-Appeal
c
against order of Single Judge under Bombay Public Trusts Act 1950,
s. 72-Leave of Judge-Necessity for.
~ On suo motu enquiry conducted against the appellant with regard
to the nature of the properties in question, the Deputy Charity Commis· D
sioner 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 dismls-.
sed by the City Civil Court. The First Appeal filed in the High Court
was dismissed by a Single Judge.
_,_ E
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
asi.de 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 F
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 G

., known word "appeal" was not used in s. 72, the absence of tbat 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.
H
Dismissing the appeal,
1083
1084 SUPREME COURT REPORTS (1987] 2 S.C.R.

A HELD: 1.1 The power of the District Court In exercising Juris·
diction 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 bur the District Court hes powers to correet, 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 Ell'e
B available to the District Court while deciding an application under
s. 72. (1089D·El

c
1.2 The proceedings before the District Court u11der s, 72(1) a1re
in the nature of an appeal and that District court exercises appellalte
jurisdiction while disposing of a matter under s. 72(1), (IOii!il!:•ill )\\ -
1.3 The absence of the word "appeal" his. 72(i) does not 1nak1e
any difference. (I089C)

Hiragar Dayagar v. Ratanlal, (19721 13 G,L,lt. tlit ilild (1956.I
58 Bombay Law Reporter 894 approved and AIR 1974, Bombay 40,
D disapproved.

2. Consequently, the Single Judge oi'ihe High Court while decid·
ing the appeal from the order of the District Court deals with a matter
a
made by the District Judge in the exercise of appellate jurisdiction by
a Court subject to the superintendence of the High Court and hence 1-
E 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
F 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.

G 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
H hereunder:
R.G. PANDIT v. CHARITY COMMR. [KHALID, J.I 1085

The Deputy Charity Commissioner, Ahmedabad Region appoin· A
ted 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 Char· · B'
ity 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
-f 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 C
appe.Jlant 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 certifi·
cate under clause 15 of the Letters Patent was not obtained by the
appellant. Hence this appeal.
D
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.LR. 181. 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 an appeal in respect of
an order made in the exercise of appellate jurisdiction by a Court E
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.
F
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 · G
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 documen· H
I.

• 1086 SUPREME COURT REPORTS [1987] 2 S.C.R .

A tary, before the. Court, unless the Deputy or Assistant
Charity Commissioner or the Charity Commissioner has ' \
refused to admit evidence which ought to ha\e been admit·
ted or the Court requires any documents to be produced or
any witness to be examined to enable it to pronounce judg·
ment or for any other substantial cause the Court thinks
B it n,ecessary to allow such additional evidence:

Provided that whenever additional evidence is allo-
. wed to be produced by the Court, the Court shall record
the reason for its admission.

(2) The Court after taking evidence if any, may con·
firm, 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). ·
. ,' '· .'
D
( 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
E . 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
· ·' . F 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
G ; of the proceedings before the District Court. Now.the question is as to
whether it is an appellate jurisdiction, revisionaljurisdiction'oi 'origi·.
rial jurisdiction that the District Court is exercising under Section 72.
The Courtanswered that it was appellate jurisdiction. Tilepistrict ·
• --. Court while dealing witliiln application under Section 72 w~ given the.· .
·power to confirm, revoke or rillldify a decision of the Charity Commis· •
· sioner and the. Section. did not impose any fetters orlimits. on. this ..
· H power. In an application under Section 72, the entire matier was at
R.G. PANDIT v. CHARITY COMMR. (KHALID, J.l 1087

large 'before the District Court and the District Court had complete A
i 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 B
_....\ 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 c
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 D
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
E

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 aggri- F
eved 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 hear-
ing First Appeals Nos. 830 & 831 of 1965." G
' "{
' It would be useful at this stagt· 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. ff
·.· .1088 SUPREME COURT REPORTS [1987] 2 S.C.R.

A· .However. the following observations by .Chag)a, 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 Commis-
sioner to apply to the City Civil Court, we must look at and
B 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
c necessary relief to the party aggrieved by that decision.
Therefore, in substance there is very little difference be-
tween an application contemplated by Section 72( 1) and a
rJght of appeal against the order of the Charity Commis-
sioner ............................................. "

D.
· · ·· 'This decision was noted by the Bombay High Court in the decision
reported in 1974 Bombay 40, but the observations therein were disting-
.. uished as follows:

"15. We will at once point out that the learned Judges who
.E dealt with the case of ( 1956) 58 Born. 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 pro-
vided 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 mak-
ing 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 func-
tion performed by the court under Section 72, the learned
Judges have construed liberally the provisions of Section 75
cf the Act as also Sections 12(2) and 29j20) of the Limita-
H tion Act. 1908. It is possible that the courts might look at
R.G. PANDIT v. CHARITY COMMR [KHALID, J.) 1089

the particular provisions in a liberal manner for the pur- A
pose 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."
B
We have considered the reasoning in the three judgments refer-
red above. With respect, we find it difficult to agree with the reasoning
in 1974 Born. 40. We agree with the reasoning in the other two cases.
- .l 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 C
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 D
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 Commis-
sioner. 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 E

- 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 mat-
ter under Section 72(1). Consequently, the Single Judge of the High
Court while deciding the appeal from the order of the District Court F
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, G
there will be no order as to costs.

A.P.J. Appeal dismissed.

H