Public Trusts Act is concerned, there is no such specification that
the appeal from appellate order of the District Court, presented to
the High Court, shall be heard only if it involves any substantial
question of law. Neither Section 72(4) makes 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. Since the provision itself does not limit
scope of the appeal nor puts any limitations on the Court dealing
with the appeal, it cannot be construed that appeal to the High
Court, as provided under Section 72(4) is subject to any
limitations as prescribed under Section 100 of the Code of Civil
Procedure.
54 In view of the reasons recorded above, our answer to
the questions formulated for consideration, in this Reference, is:
(1) Appeal provided under subsection
72(4) of the Maharashtra 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 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. Appeal to the High
Court under subsection (4) of Section 72 of the
Act of 1950 is an appeal against the decree
under subsection (2) of Section 72 [The
decision of Court under section 72(2) is a
decree for limited purposes of maintaining an
appeal to the High Court.]
(2) Consequently, there is no obligation for
the appellant to state substantial questions of
law involved in the memorandum of appeal and
High Court is also not bound to formulate
substantial questions of law while admitting the
appeal or before posting the appeal for hearing.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.700 OF 2008
Prabhakar Sambhu Chaudhary,
Versus
Laxman Baban Mali,
CORAM : R.M.BORDE,
SUNIL P. DESHMUKH &
RAVINDRA V. GHUGE, JJJ.
Pronounced on 01st April, 2016.
Citation;2016(3) ALLMR294 FB
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 Judge2, 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 Judge2, 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 (4) of
Section 72 of the Bombay Public Trusts Act, 1950 (now
Maharashtra Public Trusts Act, 2013) {hereinafter, for convenience,
referred to as `BPT Act' or `Act of 1950'} and Section 100 of the
Code of Civil Procedure, has taken a view that:
“ An appeal filed under Section 72(4) of
the Bombay Public Trusts Act, 1950, is a
'Second Appeal' to the High Court and is
subject to the restrictions and limitations
imposed on a “Second Appeal” as prescribed
under Section 100 of the Code of Civil
Procedure. There is nothing in the scheme of
Section 72 of the Bombay Public Trusts Act or
for that matter, any other provisions of the said
Act which widens scope of the appeal beyond
the limits prescribed by Section 100 of the Civil
Procedure Code. In our view, therefore, Such
an appeal is maintainable only if the High
Court is satisfied that the case involves
substantial questions of law within the meaning
of Section 100 C.P.C. ”
9 Considering the judgment of the Apex Court in the
matter of James Joseph (supra), the learned Single Judge has
formulated following questions for consideration.
(1) Whether the second appeal filed under
the provisions of Section 72(4) of the Bombay
Public Trusts Act, 1950, can be heard and
considered only if it involves a substantial
question of law?
(2) If so, whether the Memorandum of appeal
shall have to state the substantial question of
law involved in the appeal and whether the
High Court is bound to formulate the
substantial question/s of law while admitting
the appeal or before posting the appeal for
hearing.
10 It would be appropriate to refer to certain provisions of
the Maharashtra Public Trusts Act. Section 2(4) of the Act defines
“ Court ”. Court means in the Greater Bombay, the City Civil
Court and elsewhere the District Court.
11 There are various inquiries and proceedings under
Maharashtra Public Trusts Act, 1950, which give rise to an appeal
to the High Court.
(i) Section 41D of the Act of 1950 relates to suspension,
removal and dismissal of trustees. Subsection (1) of Section 41D
provides:
41D Suspension, removal and dismissal of
trustees
(1) The Charity Commissioner may, either on
application of a trustee or any person interested
in the trust, or on receipt of a report under
section 41B or suo motu may suspend, remove
or dismiss any trustee of a public trust, if he,
(a) makes persistent default in the
submission of accounts report or return;
(b) wilfully disobeys any lawful orders issued
by the Charity Commissioner under the
provisions of this Act or rules made thereunder
by the State Government;
(c) continuously neglects his duty or
commits any malfeasance or misfeasance, or
breach of trust in respect of the trust;
(d) misappropriates or deals improperly with
the properties of the trust of which he is a
trustee; or
(e) accepts any position in relation to the
trust which is inconsistent with his position as
a trustee;
(f) if convicted of an offence involving moral
turpitude.
Subsection (6) of Section 41D provides:
(6) An appeal shall lie to the High Court
against the decision of the Court under subsection
(5) as if such decision was a decree from
which an appeal ordinarily lies.
(ii) Similarly, Section 41E refers to power to act for
protection of charities. Subsection (1) of Section 41E reads, thus:
41E Power to act for protection of Charities
(1) Where it is brought to the notice of the
Charity Commissioner either by the Deputy or
Assistant Charity Commissioner through his
report or by an application by at least two
persons having interest supported by affidavit :
(a) that any trust property is in danger of
being wasted, damaged or improperly alienated
by any trustee or any other person, or
(b) that the trustee or such person threatens
or intends to remove or dispose of that
property,
the Charity Commissioner may by order grant a
temporary injunction or make such other order
for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or
disposition of such property, on such terms as
to the duration of injunction, keeping an
account, giving security, production of the
property or otherwise as he thinks fit.
Subsection (6) of Section 41E provides for:
(6) The order of the Court attaching the
property of such person or detaining such
person in civil prison shall be a decree
appealable to the High Court.
(iii) Section 47 of the Act relates to power of Charity
Commissioner to appoint, suspend, remove or discharge trustees
and to vest property to new trustees. Subsection (5) of Section 47
provides, that:
(5) The order of the Charity Commissioner
under subsection (2) shall be deemed to be the
decree of the Court and an appeal shall lie
therefrom to the High Court.
(iv) Subsection (1) of Section 72 provides, thus:
72. Application from Charity
Commissioner's decision under section 40,
41 [41C and 43(2)(a) and (c)], [50A, 70 or
70A], etc.
(1) Any person aggrieved by the decision on
the Charity Commissioner under section 40, 41
[41C and 43(2)(a) and (c)], [50A], [70 or 70A] 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.
Subsection (4) of Section 72 provides:
(4) An appeal shall lie to the High Court,
against the decision of the court under subsection
(2) as if such decision was a decree from
which an appeal ordinarily lies.
12 Section 73 of the BPT Act provides that the officers
holding inquiries shall have powers of Civil Court, which reads,
thus:
73. Officers holding inquiries to have
powers of civil court
In holding inquiries under this Act, the
officer holding the same shall have the same
powers as are vested in courts in respect of the
following matters under the Code of Civil
Procedure, 1908 in trying a suit
(a) proof of facts by affidavits,
(b) summoning and enforcing the attendance
of any person and examining him on oath,
[(c) ordering discovery and inspection, and
compelling the production of documents.]
(d) issuing of commissions.
13 Section 76 of the Act of 1950 provides that:
76. Civil Procedure Code to apply to
proceedings [before Court] under this Act.
Save in so far as they may be inconsistent
with anything contained in this Act, the
provisions of the Code of Civil Procedure, 1908,
shall apply to all proceedings before the court
under this Act.
14 It is, thus, clear that Section 76 contemplates
applicability of provisions of the Code of Civil Procedure to the
proceedings before the Court. Whereas, Section 73 entrusts some
of the powers mentioned in the aforesaid Section provided under
the Code to the officers holding inquiries under the Act.
15 So far as applicability of limitation is concerned, it is
provided under Section 75 of the Act of 1950, which reads, thus:
75 Limitation
In computing the period of appeal under this
Chapter, the provisions of sections 4, 5, 12 and
14 of the Indian Limitation Act, 1908, shall
apply to the filing of such appeals.
16 The Act of 1950 provides for procedure to be observed
while conducting inquiries as well as while conducting appeals and
also provides for limitation for entertaining an application for
Change or in respect of appeal. The applicability of provisions of
the Limitation Act and Code of Civil Procedure is to the extent
specified in the Act. The Act of 1950 is, thus, a self contained
Code.
17 There cannot be any controversy for drawing an
inference that the proceedings before District Court initiated on
tender of an application under Section 72 of the BPT Act are in the
nature of an appeal. In the matter of Ramchandra Goverdhan
Pandit Vs Charity Commissioner of State of Gujarat, reported
in 1987 AIR SC 1598, the Hon'ble Supreme Court has, set at rest
the controversy and ruled that 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.
There can be no hesitation to hold that proceedings before the
District Court under Section 72(1) are in the nature of an appeal
and the District Court exercises appellate jurisdiction while
deciding matters under Section 72(1). The Supreme Court
approved the decision of the Division Bench of Gujarat High Court
in the matter of Hiragar Dayagar Vs. Ratanlal, reported in AIR
1973 Guj 15: Guj. LR 181 as well as decision reported in (1956) 58
Bom LR 894. In the aforesaid decision of Bombay High Court,
Hon'ble Mr.Chagla, the Hon'ble the Chief Justice (as he then was),
has made following observations:
“ Now although S. 72(1) confers a right
upon a person aggrieved by the decision of the
Charity Commissioner to apply to th City Civil
Court, we must look at and consider the real
nature of the right that is conferred by this
subsection. 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 necessary relief to the
party aggrieved by that decision. Therefore, in
substance there is very little difference between
an application contemplated by S. 72(1) and a
right of appeal against the order of the Charity
Commissioner......”
18 The Supreme Court, in the matter of Ramchandra
(supra), found it difficult to approve of the view taken by the
Division Bench of this Court in the matter of Khivaraj
Chhaggiram Kavar & another Vs. Shivshankar Basappa
Lingashetty & another, reported in AIR 1974 Bom 40. In
paragraphs no.8 and 9 of the judgment in the matter of
Ramchandra (supra), the Supreme Court has observed, thus:
8 We have considered the reasoning in the
three judgments referred above. With respect,
we find it difficult to agree with the reasoning in
AIR 1974 Bom 40. We agree with the reasoning
in the other two cases. The slender thread on
which the appellants arguments rest is the
absence of the word “appeal” in S. 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 S. 72(1).
9 The power of the District Court in
exercising jurisdiction under S. 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 S. 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 S. 72(1) are in the
nature of an appeal and that District Court
exercises appellate jurisdiction while disposing
of a matter under S. 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 Cl. 15 of the Letters
patent is directly attracted.
19 By the analogy, the decision in the matter of
Ramchandra (supra), that the District Court, dealing with an
application under Section 72(4) exercises appellate powers, would
lead to an inference that an appeal to the High Court against
decision of the District Court under Section 72(4) would/may be
in the nature of an appeal against appellate decree.
20 It shall also be noted at this stage that on
consideration of various provisions of the BPT Act, it can be seen
that the Act of 1950 provides and more particularly subsection (4)
of Section 72 attaches characteristics of a decree to the decision
of the Court under subsection (2) for the purposes of facilitating
remedy of an appeal to the High Court.
21 A decision on an application under subsection (2) of
Section 72 is subject to an appeal to the High Court as if such
decision was a decree from which an appeal ordinarily lies. It is,
thus, clear that for the purposes of maintaining an appeal to the
High Court, the decision of the Court under Section 72(2) shall
have a character of decree from which an appeal ordinarily lies.
22 Similar is the language employed in subsection (5) of
Section 47, which provides that the order of a Charity
Commissioner under subsection (2) shall be deemed to be a
decree of the Court and an appeal therefrom shall lie to the High
Court. Subsection (6) of Section 41D also provides remedy of an
appeal to the High Court against the decision of the Court under
subsection (5) as if such decision was from a decree from which
an appeal ordinarily lies. Section 41D relates to suspension,
removal and dismissal of a trustee and against the order passed
by the Charity Commissioner, the aggrieved party has been
provided with remedy under subsection (5) of Section 41D to
maintain an application to the Court. The scheme of Section 41D,
so far as it relates to maintaining an application and providing
remedy of an appeal to the High Court, is similar to that of Section
72. Section 41E of the Act refers to power to act for protection of
Charities and aggrieved person has been provided with a remedy
of maintaining an appeal to the High Court against the order of
the Court attaching the property of such person or detaining such
person in Civil Prison, treating order of the Court to be a decree
appealable to the High Court under Section 41E (6) of the Act.
Subsection (5) of Section 41E provides for maintaining an appeal
to the District Court against an order of injunction or any other
order within 90 days from the date of communication of such
order. The order of Charity Commissioner, subject to the order of
the Court or in appeal is provided finality in view of subsection (7)
of Section 41E. It is, thus, an appeal to the High Court under
Section 41E (6) from appellate decree of the ' Court '.
23 In respect of the powers to act for protection of the
Charities, the Charity Commissioner is entrusted with the powers
to take action on consideration of report tendered by the Deputy or
Assistant Charity Commissioner or on an application presented by
atleast two persons having interest in the Trust, supported by
affidavits.
24 The following hierarchical structure, as regards
appeal, emerges from the provisions of Bombay Public Trusts Act.
(i) The change in the entries recorded in the Register kept
under Section 17 is required to be reported within 90 days from
the date of occurrence of such change to the Deputy or Assistant
Charity Commissioner in charge of the Public Trusts Registration
Office where the Register is kept and such report shall be made in
the prescribed form {under Section 22(1) of the Act}.
(ii) The decision rendered by the Deputy or Assistant
Charity Commissioner is appealable under Section 70 of the Act to
the Charity Commissioner.
(iii) An application is provided under Section 72(1) to the
Court within sixty days from the date of decision of the Charity
Commissioner under Sections 40, 41, 41C, 43(2)(a) and [c], 50A, 70
or 70A, etc.
(iv) An appeal to the High Court is provided under Section
72(4) against the decision of the Court under subsection (2) of
Section 72, as if such decision was a decree from which an appeal
ordinarily lies.
(a) Similarly, in the matters of suspension, removal or
dismissal of a trustee, the Charity Commissioner is empowered to
take decision on an application of a Trust or any person interested
in the Trust or a report under Section 41B or suo motu and such a
Trustee may be suspended, removed or dismissed, as provided
under Section 41D (1) of the Act.
(b) Aggrieved trustee is provided with remedy to maintain
an application within ninety days from the date of communication
of the order of suspension, removal or dismissal to the Court
under subsection (5) of Section 41D.
( c) An appeal is provided under subsection (2) to the High
Court against decision of the Court under subsection (5) of
Section 41D.
(d) The Charity Commissioner may, by an order, grant
temporary injunction or make such other order for the purpose of
staying and preventing the wasting, damaging, alienation, sale,
removal or disposition of such property, on such terms as to the
duration of injunction, keeping an account, giving securing
production of the property or otherwise as he thinks fit.
(e) After hearing the trustee or person concerned and
holding such inquiry as he thinks fit, the Charity Commissioner
may confirm, discharge or vary or set aside the order of injunction
or pass any other appropriate order.
(f) Subsection (4) of Section 41E provides that in case of
disobedience or breach of any injunction, any of its terms or any
order passed under this section, the Charity Commissioner may
apply to the Court, which may, after hearing the Charity
Commissioner and the party affected, order the property of such
person, guilty of such disobedience or breach to be attached and
may also order such person to be detained in jail for a term not
exceeding six months.
(g) Order of attaching property of a person or detaining such
person in civil prison is made appealable considering such order as
a decree to the High Court.
25 Neither Section 41D (6) nor 41E (6) nor Section 72(4)
make use of the word Second Appeal. However, appeal to the High
Court is against an appellate order passed by the Court. The word
“ appeal ” is not defined under the Act or under the Code,
including scope, however, it has been interpreted in various
judgments.
26 It is, thus, clear that the proceedings under Section
41E (5) of the Act of 1950 are that of an appeal, so far as
challenge relates to the order of injunction or any other order is
concerned. An appeal is provided under subsection (6) of Section
41E in respect of order of the Court attaching property of such
person or detaining such person in Civil Prison.
27 In the matter of Tirupati Balaji Developers (P) Ltd.
and another Vs. State of Bihar & others, reported in (2004) 5
SCC 1, it is observed thus:
9 In a unified hierarchical judicial system
which India has accepted under its
Constitution, vertically the Supreme Court is
placed over the High Courts. The very fact that
the Constitution confers an appellate power on
the Supreme Court over the High Courts,
certain consequences naturally flow and follow.
Appeal implies in its natural and ordinary
meaning the removal of a cause from any
inferior court or tribunal to a superior one for
the purpose of testing the soundness of
decision and proceedings of the inferior court
or tribunal. The superior forum shall have
jurisdiction to reverse, confirm, annul or modify
the decree or order of the forum appealed
against and in the event of a remand the lower
forum shall have to rehear the matter and
comply with such directions as may accompany
the order of remand. The appellate jurisdiction
inherently carries with it a power to issue
corrective directions binding on the forum
below and failure on the part of the latter to
carry out such directions or show disrespect to
or to question the propriety of such directions
would – it is obvious – be destructive of the
hierarchical system in administration of justice.
The seekers of justice and the society would
lose faith in both.
10 In Shankar Ramchandra Abhyankar v.
Krishnaji Dattatreya Bapat, this Court pointed
out that appeal is the right of entering the
superior court and invoking its aid and
interposition to redress the error of the court
below. There are two important postulates of
constituting the appellate jurisdiction: (i) the
existence of the relation of superior and inferior
court; and (ii) the power in the former to review
decisions of the latter. Such jurisdiction is
capable of being exercised in a variety of forms.
An appeal is a process of civil law origin and
removes a cause, entirely subjecting the facts
as well as the law, to a review and a retrial.
28 In the matter of Hari Shankar Versus Rao Girdhari
Lal Chowdhury, reported in AIR 1963 SC 698, the Supreme Court
has observed in paragraph no.7 of the judgment, as below:
“ 7 The distinction between an appeal and a
revision is a real one. A right of appeal carries
with it a right of rehearing on law as well as
fact, unless the statute conferring the right
of appeal limits the rehearing in some way
as, we find, has been done in second appeals
arising under the code of Civil Procedure. The
power to hear a revision is generally given to a
superior court so that it may satisfy itself that a
particular case has been decided according to
law. Under Section 115 of the Code of Civil
Procedure, the High Court's powers are limited
to see, whether in a case decided, there has
been an assumption of jurisdiction where none
existed, or a refusal of jurisdiction where it did,
or there has been material irregularity or
illegality in the exercise of that jurisdiction.
The right there is confined to jurisdiction and
jurisdiction alone. In other Acts, the power is
not so limited, and the High Court is enabled to
call for the record of a case to satisfy itself that
the decision therein is according to law and to
pass such orders in relation to the case, as it
thinks fit. “
29 In the matter of Shankar Ramchandra Abhyankar
Versus Krishnaji Dattatreya Bapat, reported in 1969 (2) SCC 74,
the Hon'ble Supreme Court, referred to the statement in Story on
Constitution (of Union States), Vol.2, Article 1761, as follows:
“ In the well known work of Story on
Constitution (of United States), Vol. 2, Article
1761, it is stated that the essential criterion of
appellate jurisdiction is that it revises and
corrects the proceedings in a cause already
instituted and does not create that cause. The
appellate jurisdiction may be exercised in a
variety of forms and, indeed, in any form in
which the Legislature may choose to prescribe.
According to Article 1762 the most usual modes
of exercising appellate jurisdiction, at least
those which are most known in the United
States, are by a writ of error, or by an appeal, or
by some process of removal of a suit from an
inferior tribunal. An appeal is a process of civil
law origin and removes a cause, entirely
subjecting the fact as well as the law, to a
review and a retrial. A writ of error is a process
of common law origin, and it removes nothing
for reexamination but the law. The former
mode is usually adopted in cases of equity and
admiralty jurisdiction; the latter, in suits at
common law tried by a jury. “
30 In the matter of M/s Sri Raja Lakshmi Dyeing Works
and others Vs Rangaswamy Chettiar, reported in AIR 1980 SC
1253 (1), the Hon'ble Supreme Court has observed in paragraph
no.2 of the judgment, thus:
2 'Appeal' and 'revision' are expressions of
common usage in Indian statute and the
distinction between 'appellate jurisdiction' and
'revisional jurisdiction' is wellknown though
not well defined. Ordinarily, appellate
jurisdiction involves a rehearing, as it were, on
law as well as fact and is invoked by an
aggrieved person. Such jurisdiction may,
however, be limited in some way as, for instance
has been done in the case of second appeal
under the Code of Civil Procedure, and under
some Rent Acts in some States. Ordinarily
again, revisional jurisdiction is analogous to a
power of superintendence and may sometimes
be exercised even without its being invoked by a
party. The extent of revisional jurisdiction is
defined by the statute conferring such
jurisdiction. The conferment of revisional
jurisdiction is generally for the purpose of
keeping tribunals subordinate to the revising
tribunal within the bounds of their authority to
make them act according to law, according to
the procedure established by law and according
to well defined principles of justice. Revisional
jurisdiction as ordinarily understood with
reference to our statutes is always included in
appellate jurisdiction but not vice versa. These
are general observations. The question of the
extent of appellate or revisional jurisdiction has
to be considered in each case with reference to
the language employed by the statute.
31 The judgments of the Supreme Court, referred to
above, by analogy, lead to irresistible conclusion that the superior
forum i.e. District Court, while exercising jurisdiction, has powers
to reverse, confirm, annul or modify the order of the forum
appealed against and in the event of remand, the lower forum
shall have to rehear the matter and comply with such directions,
as may accompany the order of remand. The superior forum i.e.
District Court has power to issue corrective directions binding on
lower forum. The District Court, dealing with an application
under Section 72(1), does have right of hearing on law as well as
facts. It answers the proposition that “an appeal is a process of
civil law origin and removes a cause entirely subjecting the facts
as well as the law, to a review and retrial”. There can, thus, be a
little doubt that the District Court, exercising jurisdiction under
Section 72, does exercise powers and deal with the matter as an
appellate forum. Thus, an appeal to the High Court against an
appellate order on an application presented to the District Court,
is an appeal, but has not been labelled as Second Appeal.
32 Applying the ratio of the decision delivered by the
Supreme Court in the matter of Ramchandra (supra), it shall have
to be construed that the Single Judge of the High Court, while
deciding the appeal from the order of the District Court, deals
with the matter decided by the District Judge in exercise of
appellate powers by a Court subject to superintendence of the
High Court. Though the appeal filed under Section 72(4) of the
Bombay Public Trusts Act, 1950, is an appeal against a decision
on the application, exercising appellate powers, is not subjected to
restrictions and limitations imposed on the Second Appeal, as
prescribed under Section 100 of the Code of Civil Procedure and
such a conclusion needs to be drawn in observance of the law laid
down by the Supreme Court in the matter of James Joseph Vs.
State of Kerala, reported in (2010) 9 SCC 642.
33 The question, that arose for consideration in the
appeal presented by James Joseph before the Supreme Court,
relates to scope of an appeal against appellate order under Section
12A of the Kerala Forest Act, 1961. Under the scheme of the Act,
the Forest Settlement Officer is entrusted with the adjudicatory
functions to determine whether disputed lands form part of the
proposed or reserved forest. An appeal against the order of Forest
Settlement Officer is provided to the District Judge and order of
the District Judge is appealable under Section 12A of the Act to
the High Court. The appeal to the High Court under Section 12A
of the Kerala Forest Act is termed as Second Appeal in the
judgment.
34 In aforesaid matter of James Joseph (supra), after
travelling one round up to the Supreme Court, the matter reached
High Court in terms of the order of remand passed by the
Supreme Court to determine as to whether jurisdiction exercisable
under Section 12A of the Act is akin to Section 100 of the Code of
Civil Procedure. When the matter was pending before the High
Court on remand, the appellant (who is thirtythird party
respondent in the appeal before the Supreme Court), filed an
application praying that the High Court be pleased to formulate
substantial questions of law before proceeding with hearing of the
appeal. It was contended that the appeal under Section 12A was
a Second Appeal and that the Second Appeal was available only if
the case involves any substantial question of law and was
governed by the provisions of Section 100 of the Code of Civil
Procedure. The High Court dismissed the application holding that
Section 12A of the Act did not provide for a “Second Appeal”, but
only provides “an appeal” against appellate order and, therefore,
the question of importing requirements of Section 100 of the Code
of Civil Procedure into such an appeal did not arise. The High
Court proceeded to hold that the intention of the Legislature in
enacting Section 12A of the Act, granting right of appeal against
the order passed by the District Court under Section 11 of the Act,
was not limited to substantial questions of law and, therefore,
question of formulating any substantial questions of law, before
hearing the appeal, did not arise. The aforesaid order was
challenged before the Supreme Court in an appeal by a Special
Leave.
35 Section 12A of the Kerala Forest Act, 1961, reads,
thus:
12A. Appeal to the High Court
(1) The Government or any person objecting
to any order of the District Court in an appeal
under Section 11 may, within a period of ninety
days from the date of that order, appeal against
such order to the High Court:
Provided that High Court may admit an
appeal preferred after the expiration of the
period of ninety days aforesaid if it is satisfied
that the appellant had sufficient cause for not
preferring the appeal within the said period.
(2) An appeal under subsection (1) shall be
in the prescribed form and shall be verified in
the prescribed manner and shall be
accompanied by a fee of one hundred rupees.
(3) On receipt of an appeal under subsection
(1), the High Court may, after giving the
parties a reasonable opportunity of being
heard, either in person or by a representative:
(a) confirm or cancel the order of the District
Court appealed against; or
(b) set aside such order and remand the case
to the District Court for decision after such
further enquiry as may be directed; or
(c) pass such other orders as it may think
fit.
(4) Every order passed in appeal under this
section shall be final.
36 It is observed in paragraph 10 of the judgment in
James Joseph (supra), that Section 12A does not use the words
“Second Appeal”. It provides that an appeal would lie against an
appellate order under Section 11 to the High Court. The Supreme
Court, in paragraph no.19, formulated principles with reference to
an appeal. Those are:
“ (i) An appeal is a proceeding where an higher
forum reconsiders the decision of a lower forum,
on questions of fact and questions of law, with
jurisdiction to confirm, reverse, modify the
decision or remand the matter to the lower forum
for fresh decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or
regulated by the legislature and its extent has to
be decided with reference to the language
employed by the statute conferring the appellate
jurisdiction.
(iii) The width of jurisdiction or the limitations
on jurisdiction with reference to an appeal, does
not depend on whether the appeal is a first appeal
or a second appeal, but depends upon the
limitations, if any, placed by the statute conferring
the right of appeal.
(iv) If the legislature's intention is to limit the
jurisdiction in an appeal, it may indicate such
limits in the provision providing for appeal.
Alternatively, it may expressly or impliedly
incorporate the provisions of Section 100of the
Code, into the provision for appeals.
(v) Generally statutory provisions for appeals
against original orders or decrees (that is, first
appeals) will not have any limitations and
therefore rehearing on both law and fact is
contemplated; and statutory provisions for
appeals against appellate orders (that is, second
appeal) will b restricted to questions of law. But
such restriction is not on account of any legal
principle that all second appeals should always be
with reference to questions of law, but would
depend upon the wording of the statute placing
the restrictions upon the scope of second appeal.
(vi) Where 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. If the legislature enacts a selfcontained
provision for second appeals, without
any limitation upon the scope of the second
appeal and excludes the possibility of reading the
provision of Section 100 of the Code, into such
provision, then, it will not be permissible to read
the limitations of Section 100 of the Code into the
special provision. ”
37 The Hon'ble Supreme Court, in James Joseph
(supra), has referred to earlier judgment in the matter of Chunilal
Vithaldas Vs. Mohanlal Motilal Patel, reported in AIR 1967 SC
226, wherein it has been held that Second Appeal under Section
28 of the Saurashtra Rent Control Act, 1951, can be entertained
by the High Court within the limits prescribed by Section 100 of
the Code of Civil Procedure and it is not open to the parties to
demand reappraisal of the evidence by the High Court. The Apex
Court held that the scheme of Saurastra Act did not confer any
special jurisdiction, but it only intends to provide for a Second
Appeal in terms of Section 100 of the Code of Civil Procedure. The
Apex Court held that the Saurashtra Act merely declared that a
Second Appeal will lie to the High Court against decrees or orders
passed by the Courts exercising jurisdiction under Section 27, but
thereby the essential character of a Second Appeal under the Code
was not altered and the procedure in the trial of the suit,
applications and proceedings under the Act, was the procedure
prescribed by the Code of Civil Procedure and, therefore, it had to
be held that the Legislature has intended to confer a right of
Second Appeal subject to restrictions imposed by Section 100 of
the Code. Section 28 (1) of the Saurashtra Rent Control Act, 1951,
provides:
“ 28 (1) Notwithstanding anything contained in
any law, but subject to the provisions of the
Provincial Small Cause Court Act, as adapted
and applied to the State of Saurashtra, an
appeal shall lie from a decree or order made by
a Civil Judge or a Munsif exercising jurisdiction
under Section 27 to the District Court and a
second appeal to the High Court. ”
38 It was held by the Supreme Court that the expression
“Second Appeal” in Section 28(1) of the Act means an appeal from
appellate decree and it is subjected to the limitations imposed by
Section 100 of the Code of Civil Procedure.
39 In the instant matter, as has been pointed out, subsection
(4) of Section 72 provides for an appeal to the High Court
against the decision of the Court under subsection (2), as if, such
decision was a decree from which an appeal ordinarily lies. Order,
on an application under Section 72, is a decree for limited purpose
of maintaining an appeal to the High Court. Decree is defined in
subsection (2) of Section 2 of the Code of Civil Procedure:
“ 2(2) “ decree ” means the formal expression
of an adjudication which, so far as regards the
Court expressing it, conclusively determines
the rights of the parties with regard to all or
any of the matters in controversy in the suit
and may be either preliminary or final. It shall
be deemed to include the rejection of a plaint
and the determination of any question within
section 144, but shall not include
(a) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary
when further proceedings have to be taken
before the suit can be completely disposed of.
It is final when such adjudication completely
disposes of the suit. It may be partly
preliminary and partly final;
40 The expression provided in the Section itself includes
rejection of a plaint and determination of any question within
Section 144. But it does not include any adjudication from which
an appeal lies as an appeal from order or any order of dismissal
for default.
41 In the instant matter, determination by the Court i.e.
District Court, as provided under the Act of 1950, is on
consideration of application under Section 72 of the Act and has
been accorded the status of decree for the purposes of
maintaining an appeal to the High Court under subsection (4).
The application, within contemplation of Section 72, cannot be
equated with the suit for the purposes of holding that the order
passed on an application under Section 72 in the stricto sensu is a
decree within the meaning of expression of subsection (2) of
Section 72. Appeal provided to the High Court under subsection
(4) of Section 72, though is an appeal against an order in exercise
of appellate powers, cannot be equated with the Second Appeal
subject to the restrictions imposed by Section 100 of the Code of
Civil Procedure. The principles laid down by the Supreme Court,
in paragraph no.19 of the judgment in the matter of James
Joseph (supra), squarely apply to the class of appeals provided
under subsection (4) of Section 72 of the Act.
Section 72 of the Maharashtra
Public Trusts Act, provides thus:
72. Application from
Charity Commissioner's
decision under section
Section 100 of the Code of Civil
Procedure provides thus:
100. Second appeal:
(1) Save as otherwise expressly
40, 41 [41C and 43(2)(a)
and (c)], [50A, 70 or
70A], etc.
(1) …..............................
(2) ….............................
(3) …............................
(4) An appeal shall lie
to the High Court,
against the decision of
the court under subsection
(2) as if such
decision was a decree
from which an appeal
ordinarily lies.
{emphasis supplied)
provided in the body of this
Code or by any other law for the
time being in force, an appeal
shall lie to the High Court from
every decree passed in appeal by
any Court subordinate to the
High Court, if the High Court is
satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this
section from an appellate decree
passed ex parte.
(3) In an appeal under this
section, the memorandum of
appeal shall precisely state the
substantial question of law
involved in the appeal.
(4) Where the High Court is
satisfied that a substantial
question of law is involved in
any case, it shall formulate that
question.
(5) The appeal shall be heard on
the question so formulated and
the respondent shall, at the
hearing of the appeal, be
allowed to argue that the case
does not involve such question:
Provided that nothing in this
subsection shall be deemed to
take away or abridge the power
of the Court to hear, for reasons
to be recorded, the appeal on
any other substantial question
of law, not formulated by it, if it
is satisfied that the case
involves such question.
Subsection (4) of Section 72 of
the Act of 1950 is intended to be
a selfcontained Code. Insofar
as appeals under the Act to the
High Court, deliberate deviation
from the provisions of Section
100 of the Code.
Subsections (1), (2) and (3) of
Section 100 CPC would
specifically provide that a
Second Appeal would lie where
substantial questions of law are
involved.
Where the Act wants to adopt
provisions of the Civil Procedure
Code, it expressly provides so.
For example, Section 76
refers to the applicability of the
Code to the proceedings before
the Court (i.e. District Court)
under the Act of 1950, whereas,
so far as proceedings for holding
inquiries under the Act of 1950
is concerned, vesting of powers
under the Code of Civil
Procedure in trying the suit
relates to (a) proof of facts by
affidavit; (b) summoning and
enforcing presence of any
person and examining him on
oath; (c) ordering of discovery
and inspection and compelling
production of documents; (d)
issuing of commissions;
(Section 73)
But when it comes to appeal to
High Court under subsection
72(4), the Act deliberately makes
a departure and does not
provide for any limitations on
the powers, as provided under
Section 100 of the Code.
While subsection (3) of Section
100 would require that the
memorandum of appeal shall
precisely state the substantial
questions of law involved in the
appeal.
42 In view of the distinctive features specified above, it is
clear that the Legislature did not intend to limit appellate
jurisdiction provided under subsection (4) of Section 72. Had
there been any such intention, it would have expressly or
impliedly incorporated the provisions of Section 100 of the Code of
Civil Procedure into the relevant provision of the Act.
43 Focus on the provisions of Section 72 of the BPT Act
would reveal another facet which may have to be looked at. While
appeals are provided before the Charity Commissioner against
certain orders having regard to Sections 70 and 70A, the decisions
in such appeals of Charity Commissioner have been subjected to
application and not to further appeal under its wisdom by the
Legislature. The Legislature appears to have specifically omitted
to provide for appeals to the Court keeping in view treatment to
be given to the decision of the Court which has been accorded by
Legislature the status of a decree from which appeal ordinarily
lies. The Legislature has also empowered the Court to exercise
powers of court of appeal. The decisions/orders passed in exercise
of such powers are regarded to be decree, from which appeal
ordinarily lies. Appeal ordinarily lies on facts and on law, as can
be gathered from decisions of Supreme Court referred to
hereinbefore.
44 Had the legislative intent, in this respect, been about
giving of treatment to the decisions of the court under Section 72
of decrees to be subjected to a remedy with restrictions and
limitations. it would not have been necessary to refer to in subsection
(4) of Section 72, that the decisions would be decrees, from
which appeals would ordinarily lie. Appeals lie on facts and on law
generally unless restrictions and limitations are placed by
statutory provision.
45 The legislative intent is discernible that decisions
under Section 72(2) of the BPT Act were not intended to be decrees
subjected to appeals with restrictions and limitations. In its
wisdom, the Legislature appears to have thought it appropriate
that in the proceedings, pursuant to Section 72, the Court may
exercise powers of court of appeal, however, the decisions
thereunder were not to be treated as appellate decrees amenable
to challenge in appeals with restrictions and limitations. The
empowerment of the court with the powers of appellate Court and
treatment to the proceedings and the decisions thereon appear to
have been segregated in the process and as such, it does not
appear to be casus omissus.
46 The principle laid down by the Supreme Court in the
matter of James Joseph (supra), where 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, applies on all fours to the
class of appeals provided under subsection (4) of Section 72 of
the Act of 1950.
47 The expression “First Appeal” or “Second Appeal” does
not make any difference since there are no limitations imposed on
the powers exercisable by the High Court by the Legislature. The
limitations provided under Section 100 of the Code of Civil
Procedure cannot be read and pressed into service while dealing
with an appeal to the High Court provided under Section 72(4) of
the Act of 1950.
48 There are certain enactments wherein appeal
provision incorporates provisions of Section 100 of the Code of
Civil Procedure by reference. Section 18(1) of the Telecom
Regulatory Authority of India Act, 1997, is an example:
18 Appeal to Supreme Court:
(1) Notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908) or in
any other law, an appeal shall lie against any
order, not being an interlocutory order, of the
Appellate Tribunal to the Supreme Court on one
or more of the grounds specified in Section 100
of that Code.
49 On the other hand, there are certain statutes
containing provisions in regard to the appeals to High Court which
specify limitations on the extent and scope of the appellate
jurisdiction providing therein, that the appeal shall lie only if it
involves substantial question of law or questions of law without
reference to Section 100 of the Code of Civil Procedure.
50 By way of illustration, we may refer to Section 260A
of the Income Tax Act, 1961:
260A Appeal to High Court:
(1) An appeal shall lie to the High Court from
every order passed in appeal by the Appellate
Tribunal, if the High Court is satisfied that the
case involves a substantial question of law.
(2) The Chief Commissioner or the
Commissioner or an assessee aggrieved by any
order passed by the Appellate Tribunal may file
an appeal to the High Court and such appeal
under this subsection shall be
(a) filed within one hundred and twenty days
from the date on which the order appealed
against is received by the assessee or the Chief
Commissioner or Commissioner;
(b) omitted
(c) in the form of a memorandum of appeal
precisely stating therein the substantial
question of law involved.
(3) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(4) The appeal shall be heard only on the
question so formulated, and the respondents
shall, at the hearing of the appeal, be allowed to
argue that the case does not involve such
question:
Provided that nothing in this subsection
shall be deemed to take away or abridge the
power of the court to hear, for reasons to be
recorded, the appeal on any other substantial
question of law not formulated by it, if it is
satisfied that the case involves such question.
(5) The High Court shall decide the question
of law so formulated and deliver such judgment
thereon containing the grounds on which such
decision is founded and may award such cost
as it deems fit.
(6) The High Court may determine any issue
which
(a) has not been determined by the Appellate
Tribunal; or
(b) has been wrongly determined by the
Appellate Tribunal, by reason of a decision on
such question of law as is referred to in subsection
(1).
(7) Save as otherwise provided in this Act,
the provisions of the Code of Civil Procedure,
1908 (5 of 1908), relating to appeals to the High
Court shall, as far as may be, apply in the case
of appeals under this section.”
51 Similar is the provision viz. Section 15Z of the
Securities and Exchange Board of India Act, 1992, which provides
thus:
15Z Appeal to Supreme Court: Any person
aggrieved by any decision or order of the
Securities Appellate Tribunal may file an appeal
to the Supreme Court within sixty days from
the date of communication of the decision or
order of the Securities Appellate Tribunal to
him on any question of law arising out of such
order.
52 The Employee's Compensation Act, 1923, provides for
an appeal to the High Court against the order of the
Commissioner, however, the First Appeal is required to be heard
only on substantial questions of law involved in the appeal.
Section 30 of the Employee's Compensation Act, 1923, provides
thus:
30 Appeals (1) An appeal shall lie to the High
Court from the following orders of a
Commissioner, namely
(a) an order awarding as compensation a
lump sum whether by way of redemption of a
halfmonthly payment or otherwise or
disallowing a claim in full or in part for a lump
sum;
[(aa) an order awarding interest or penalty
under section 4A;]
(b) an order refusing to allow redemption of a
halfmonthly payment;
(c) an order providing for the distribution of
compensation among the dependents of a
deceased [employee], or disallowing any claim of
a person alleging himself to be such dependent;
(d) an order allowing or disallowing any claim
for the amount of an indemnity under the
provisions of subsection (2) of section 12; or
(e) an order refusing to register a
memorandum of agreement or registering the
same or providing for the registration of the
same subject to conditions:
Provided that no appeal shall lie against
any order unless a substantial question of law
is involved in the appeal, and in the case of an
order other than an order such as is referred to
in clause (b), unless the amount in dispute in
the appeal is not less than three hundred
rupees;
Provided further that no appeal shall lie
in any case in which the parties have agreed to
abide by the decision of the Commissioner, or in
which the order of the Commissioner gives
effect to an agreement come to by the parties;
[Provided further that no appeal by an
employer under clause (a) shall lie unless the
memorandum of appeal is accompanied by a
certificate by the Commissioner to the effect
that the appellant has deposited with him the
amount payable under the order appealed
against.]
(2) The period of limitation for an appeal
under this section shall be sixty days.
(3) The provisions of section 5 of [the
Limitation Act, 1963 (36 of 1963)], shall be
applicable to appeals under this section.
53 So far as provision of Section 72(4) of the Bombay
Public Trusts Act is concerned, there is no such specification that
the appeal from appellate order of the District Court, presented to
the High Court, shall be heard only if it involves any substantial
question of law. Neither Section 72(4) makes 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. Since the provision itself does not limit
scope of the appeal nor puts any limitations on the Court dealing
with the appeal, it cannot be construed that appeal to the High
Court, as provided under Section 72(4) is subject to any
limitations as prescribed under Section 100 of the Code of Civil
Procedure.
54 In view of the reasons recorded above, our answer to
the questions formulated for consideration, in this Reference, is:
(1) Appeal provided under subsection
72(4) of the Maharashtra 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 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. Appeal to the High
Court under subsection (4) of Section 72 of the
Act of 1950 is an appeal against the decree
under subsection (2) of Section 72 [The
decision of Court under section 72(2) is a
decree for limited purposes of maintaining an
appeal to the High Court.]
(2) Consequently, there is no obligation for
the appellant to state substantial questions of
law involved in the memorandum of appeal and
High Court is also not bound to formulate
substantial questions of law while admitting the
appeal or before posting the appeal for hearing.
RAVINDRA V. GHUGE SUNIL P. DESHMUKH R.M.BORDE
JUDGE JUDGE JUDGE
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