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Chandrakant Harmandas and ors. Vs. the Charity Commissioner of Gujarat - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR649
AppellantChandrakant Harmandas and ors.
RespondentThe Charity Commissioner of Gujarat
Cases ReferredShantilal v. Fulchand
Excerpt:
- - in other words as regards applications section 29 of the indian limitation act will continue to apply and consequently section 4 of the indian limitation act as well. now plausible though this argument may seem we do not think it is well founded and a close examination of the two decisions will reveal that it ignores the true basis of those decisions......appeal. an application was made to the district court kaira at nadiad under section 72 of the bombay public trusts act 1950 for setting aside a decision given by the charity commissioner in two appeals nos. 118 of 1954 and 126 of 1954 holding that certain properties belonged to a public trust. one of the contentions raised before the learned extra assistant judge nadiad who heard the application was that the application was barred by limitation inasmuch as the decision of the charity commissioner was given on 29th october 1954 while the application was made on 11th january 1955 more than sixty days from the date of the decision of the charity commissioner. section 72 of the act requires that an application to set aside the decision of the charity commissioner must be made within.....
Judgment:

P.N. Bhagwati, J.

1. A short question relating to the applicability of Section 12 of the Limitation Act arises in this Letters Patent Appeal. An application was made to the District Court Kaira at Nadiad under Section 72 of the Bombay Public Trusts Act 1950 for setting aside a decision given by the Charity Commissioner in two appeals Nos. 118 of 1954 and 126 of 1954 holding that certain properties belonged to a public trust. One of the contentions raised before the learned Extra Assistant Judge Nadiad who heard the application was that the application was barred by limitation inasmuch as the decision of the Charity Commissioner was given on 29th October 1954 while the application was made on 11th January 1955 more than sixty days from the date of the decision of the Charity Commissioner. Section 72 of the Act requires that an application to set aside the decision of the Charity Commissioner must be made within sixty days from the date of the decision. The application was obviously made after the expiration of sixty days from the date of the decision of the Charity Commissioner and was therefore prima facie barred by limitation. But it was contended on behalf of the applicants that after the decision was given by the Charity Commissioner on 29th October 1954 they had applied for a certified copy of the decision on 2nd December 1954 and a certified copy of the decision was received by them on 29th December 1954 and that the time taken up in obtaining the certified copy of the decision was liable to be excluded in computing the period of limitation prescribed by Section 72 of the Act. It was indisputable that if the time requisite for obtaining the certified copy of the decision was excluded the application would be within time. The learned Extra Assistant Judge following the decision of the Bombay High Court in D.R. Pradhan v. Bombay State Federation of Gaushala and Panjarapoles 58 Bom. L.R. 894 accepted the contention urged on behalf of the applicants and held that the period between 2nd December 1954 and 29th December 1954 which was spent in obtaining the certified copy of the decision was liable to be excluded in computing the period of limitation under Section 12(2) of the Limitation Act and that the application was therefore within time. On the merits also the learned Extra Assistant Judge upheld the contentions of the applicants and allowed the application setting aside the decision of the Charity Commissioner. The Charity Commissioner thereupon preferred an appeal in this Court. The appeal was heard by Raju J. who found himself unable to agree with the view taken by the Division Bench of the Bombay High Court in D.R. Pradhans Case and held that Section 12(2) of the Limitation Act did not apply to an application under Section 72 of the Bombay Public Trusts Act 1950 and that the applicants were therefore not entitled to exclusion of the time taken up in obtaining the certified copy of the decision of the Charity Commissioner. The learned Judge accordingly allowed the appeal and set aside the order passed by the learned Extra Assistant Judge. Hence the present appeal under Clause 15 of the Letters Patent.

2. Now we may point out at the outset that the very point which is before us for decision in this appeal came up for decision before the Bombay High Court in D.R. Pradhans Case and in that case the Division Bench of the Bombay High Court consisting of Chagla C.J. as he then was and Dixit 3. took the view that Section 72 of the Bombay Public Trusts Act 1950 provided for an application made to the Court under that section a period of limitation different from the period prescribed therefor in the First Schedule to the Limitation Act and Section 29(2) of the Limitation Act was therefore attracted and it made the provisions of Section 12(2) of the Limitation Act applicable to such an application and the time taken for obtaining a certified copy of the order of the Charity Commissioner was therefore liable to be excluded under Section 12(2) in computing the period of limitation prescribed by Section 72 for such an application. This decision being a decision given by a Division Bench of the Bombay High Court prior to the bifurcation of the State of Bombay is binding upon us in view of the decision of the Special Full Bench of this Court in State of Gujarat v. Gordhandas (1962) 3 G.L.R. 269. Having regard to the binding authority of this decision it would be obligatory on us to hold that in computing the period of limitation for an application under Section 72 the time taken up in obtaining a certified copy of the order of the Charity Commissioner must be excluded under Section 12(2) of the Limitation Act and if that be so the applicants must obviously succeed in this Letters Patent Appeal. But contended Mr. A.D. Desai learned Assistant Government Pleader appearing on behalf of the Charity Commissioner this decision should not be followed by us and that in any event we should refer the matter to a larger Bench for a proper determination of the point involved in this case. And the argument which he advanced in support of this submission was a two-fold one.

3. The first argument which he urged was that there was a conflict between this decision of the Bombay High Court and a subsequent decision given by this Court in Shantilal v. Fulchand : (1962)3GLR117 and that we should either follow the decision of this Court in preference to the decision of the Bombay High Court or at any rate refer the matter to a larger Bench. This argument involves an examination of the decision of this Court above referred to. In this case an application was made to the District Judge Broach under Section 72 of the Bombay Public Trusts Act 1950 against the decision of the Charity Commissioner and the question was whether it was within time. Now admittedly the application was beyond time unless the provisions of either Section 4 or Section 12(2) of the Limitation Act could be invoked on behalf of the applicants. If either of these two sections applied the application would be within time. The learned Judges who decided this case therefore posed before them the question whether Section 4 or Section 12(2) of the Limitation Act applied to an application under Section 72 of the Bombay Public Trusts Act 1950 The learned Judges took the view that Section 4 of the Limitation Act applied to an application under Section 72 and they therefore did not consider it necessary to examine the second part of the question as regards the applicability of Section 12(2) of the Limitation Act which was the question before the Bombay High Court. The learned Judges relied on Section 29(2) of the Limitation Act and observed that the provisions of that section made it abundantly clear that the provisions contained in Section 4 shall apply to the extent to which they are not expressly excluded by any special or local law. The learned Judges then proceeded to examine whether there was any express exclusion of Section 4 in any provision contained in the Bombay Public Trusts Act 1950 The only provision of the Bombay public Trusts Act 1950 which was relied on on behalf of the Charity Commissioner as excluding the applicability of Section 4 to an application under Section 72 was Section 75. The learned Judges however observed that all that Section 75 provided was that in computing the period of appeal under Chapter XI the provisions inter alia of Section 4 shall apply to the filing of such appeals and that it did not exclude the applicability of Section 4 to applications under Section 72. The learned Judges took the view that there was nothing in Section 75 which dealt with computation of the period of limitation for an application under Section 72 and which expressly excluded the provisions of Section 29(2) and in this connection they made the following observations which were strongly relied on by Mr. A.D. Desai on behalf of the Charity Commissioner namely:

Section 75 deals with appeals which are provided under the Act and with regard to appeals the provisions of certain sections have been made applicable. There is a specific reference in Section 75 of the Bombay Public Trusts Act to appeals and applying Section 75 to appeals the effect would be that the sections of the Indian Limitation Act mentioned in Section 75 will apply to appeals. But that does not necessarily mean that Section 4 of the Indian Limitation Act will not apply to applications as the application of Section 29 or Section 4 of the Indian Limitation Act has not been specifically excluded. In spite of the provisions of Section 75 of the Bombay Public Trusts Act therefore which as we have already stated would apply only to appeals Section 29 of the Indian Limitation Act will yet hold the field in respect of those matters which are not appeals. In other words as regards applications Section 29 of the Indian Limitation Act will continue to apply and consequently Section 4 of the Indian Limitation Act as well...

The argument of Mr. A.D. Desai based on these observations was that according to this decision an application under Section 72 was not an appeal and was therefore not covered by Section 75 and that the decision of the Bombay High Court in D.R. Pradhans Case in so far as it took the view that an application under Section 72 was in the nature of an appeal and therefore covered by Section 12(2) of the Limitation Act was consequently in conflict with this decision of our Court. Now plausible though this argument may seem we do not think it is well founded and a close examination of the two decisions will reveal that it ignores the true basis of those decisions. It is undoubtedly true that according to the decision of this Court an application under Section 72 could not be said to be an appeal covered by Section 75 and rightly so since the Legislature enacting the Bombay Public Trusts Act 1950 has used the expression appeal in Sections 70 and 71 but while dealing with the proceeding under Section 72 the Legislature has not used the expression appeal but has characterized that proceeding as an application. Since the Legislature has used two different expressions namely application and appeal at two different places in the same statute the expression appeal in Section 75 cannot possibly include an application under Section 12. An application under Section 72 cannot be regarded as an appeal under Chapter XI for there are specific provisions in that Chapter providing for appeals and this Court therefore rightly held that such an application would not be covered by Section 75. But that is very much different from the question whether such an application can be said to be an appeal within the meaning of the Limitation Act. It may be that the Legislature enacting the Bombay Public Trusts Act 1950 having used different expressions in the statute an application under Section 72 cannot be said to be an appeal within the meaning of Section 75 but that is no reason for saying that an application under Section 72 cannot be regarded as an appeal within the meaning of the Limitation Act. It was in relation to the provisions of the Limitation Act that the Division Bench of the Bombay High Court held in D.R. Pradhans case that an application under Section 72 was in the nature of an appeal and Section 12(2) of the Limitation Act consequently applied to such an application by reason of Section 29(2) of the Limitation Act. We do not therefore see any conflict between the decision of the Bombay High Court and the decision of this Court which would require us to make a choice between the two decisions or to refer the matter to a larger Bench.

4. Mr. A.D. Desai then contended that in any event the decision of the Bombay High Court in D.R. Pradhans Case was wrong and that we should therefore refer the matter to a larger Bench. We cannot agree with this contention. We have carefully gone through the decision of the Bombay High Court and after giving our most anxious consideration we do not think it is possible to say that that decision is erroneous. We are in entire agreement with the line of reasoning adopted in that decision. Mr. A.D. Desai tried to attack the reasoning of that decision by saying that there were at least three considerations which did not seem to have been taken into account by the learned Judges who decided that case. The learned Judges it was contended overlooked the fact that the Legislature itself had made a distinction between an application and an appeal and that though the Legislature had used the expression appeal in relation to proceedings under Sections 70 and 71 the Legislature had deliberately chosen to use the expression application while referring to the proceeding under Section 72 and that an application under Section 72 could not therefore be regarded as an appeal even within the meaning of the Limitation Act. Now it is no doubt true that the Legislature has characterized the proceeding under Section 72 as an application and not an appeal but that is in our opinion not determinative of the question. How the Legislature has designated the proceeding in the Bombay Public Trusts Act 1950 is immaterial. The real question is whether the proceeding howsoever described in the Bombay Public Trusts Act 1950 is an appeal within the meaning of the Limitation Act and for that what we have to look at and consider is the real nature of the right conferred by Section 72 As observed by Chagla C.J. in D.R. Pradhans Case this right is in substance if not in form in the nature of an appeal. We need not reiterate here the reasons given by Chagla C.J. in support of this view beyond stating that we are wholly in agreement with them. It may be pointed out that the Court in an application under Section 72 is given the power to confirm revoke or modify the decision of the Charity Commissioner and there are no limitations or fetters upon this power. The entire matter which was before the Charity Commissioner is at large before the Court and the Court has full and complete power to review the decision of the Charity Commissioner either on law or on fact in such manner as it thinks proper. If this is not an appellate power it is difficult to see what else it can be. It was contended on behalf of the Charity Commissioner that the power of the Court under Section 72 was not an appellate power inasmuch as the Charity Commissioner was not subordinate to the Court. The argument was that appelLate power pre-supposed the existence of the relation of superior and inferior Courts and since the Charity Commissioner was admittedly not subordinate to the Court the power of the Court under Section 72 could not be said to be an appellate power. This argument is in our opinion wholly devoid of merit.

5. It is undoubtedly true that the Charity Commissioner is not subordinate to the District Court in the sense that the District Court has no power of superintendence over the Charity Commissioner but in the matter inter alia of his decisions under Section 70 the Charity Commissioner is inferior to the District Court in that the District Court has power to revoke or modify his decisions. What is of the essence of an appeal is that a superior Tribunal should have the power to review the decisions of the inferior Tribunal and that power the District Court certainly has under Section 72. As we have already pointed out the District Court can confirm revoke or modify the decisions of the Charity Commissioner in an application under Section 72. It was then contended that an appellate Court always has the power to remand a case to the inferior Court while the District Court did not have such power under Section 72 and the District Court could not therefore be regarded as a Court hearing an appeal from the decision of the Charity Commissioner. But this argument overlooks the provisions of Section 76 of the Bombay Public Trusts Act 1950 by which it is provided that save in so far as they might be inconsistent with anything contained in the Act the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under the Act. Section 151 of the Code of Civil Procedure would therefore apply to an application under Section 72 and the District Court hearing such application would have inherent power under that Section to make an order of remand if the District Court thinks it necessary to do so in an appropriate case. Mr. A D. Desai then relied on amendment made in Section 75 of the Bombay Public Trusts Act 1950 by Gujarat Act 31 of 1962 by which it is provided that in computing the period of an application under Section 72 the provisions of Sections 4 5 12 and 14 of the Limitation Act shall apply to the filing of such application. This amendment it was contended was in the nature of legislative interpretation in that it showed that according to the Legislature but for the amendment the provisions of Section 12 of the Limitation Act did not apply to an application under Section 72 despite Section 29(2) and that is why the Legislature made the amendment with a view to making the provisions inter alia of Section 12 applicable to an application under Section 72. But this argument cannot avail the Charity Commissioner. It is not infrequent that the Legislature makes an amendment in a statue ex majoti cautela with a view to set at rest some doubt which might exist as regards the interpretation of the statute. It would not therefore be right to place any undue reliance on the amendment made in Section 75 for the purpose of determining the applicability of Section 12(2) of the Limitation Act to an application under section|72 prior to the amendment Under the circumstances we find it impossible to take the view that the decision of the Bombay High Court in D.R. Pradhans caye was erroneous and there is accordingly no reason why we should refer the matter to a larger Bench.

6. We therefore following the decision of the Bombay High Court in D.R. Pradhans case allow this appeal set aside the order passed by Raju J. and direct that the appeal be heard on merits. The Charity Commissioner will pay the costs of the applicants.


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