Shri.Swami Samartha Samadhi Math ... vs Shri.Shripad Prabhakar Pujari ...
2021 Latest Caselaw 5575 Bom

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                                                     24.3.2021



IN THE HIGH COURT OF JUDICATURE AT BOMBAY

          CIVIL APPELLATE JURISDICTION

         SECOND APPEAL (ST.) NO. 3165 OF 2018
                    ALONGWITH
          CIVIL APPLICATION NO. 363 OF 2018

Shri. Swami Samarth Samadhi
Math Utsav Mandal, Akkalkot,
and Ors.                               ....Appellants

       V.s.

Shripad Pujari and Ors.                ....Respondents

                             ****

Mr. Anant Vadgaonkar, Advocate for the appellants.

Mr. A.V. Joshi, Advocate for the respondent.

                   CORAM : SANDEEP K. SHINDE, J.

RESD. ON : 18TH MARCH, 2021.

PRON. ON : 24TH MARCH, 2021.

P.C. :

1. Appellants have challenged the order dated 24th

November, 2017 passed by the learned District Court,

Solapur in Misc. Civil Application No. 77 of 2017 in Rane 2/10 SA(ST)-3165-2018 24.3.2021

exercise of powers under Section 72 of the Maharashtra

Public Trusts Act.

2. The Registry and the respondents would object

to the maintainability of the Second Appeal, in view of the

deletion of Section 72 of the Maharashtra Public Trusts

Act by Amending Act 55 of 2017.

3. Heard learned Counsel for the parties.

4. The original order was passed by the Deputy

Charity Commissioner which was challenged by the

respondents before the Joint Charity Commissioner under

Section 70 of the Maharashtra Public Trusts Act. Appeal

filed by the respondent was allowed. Feeling aggrieved,

the appellants herein have challenged the same before the

District Court under Section 72 of the said Act. The said

application under Section 72 was pending when Amending Rane 3/10 SA(ST)-3165-2018 24.3.2021

Act 55 of 2017 came into force on 10 th October, 2017. The

District Court dismissed the application on merits against

which the Second Appeal is preferred. Amending Act 55

of 2017 i.e. the Maharashtra Public Trusts (Second

Amendment) Act, 1977 came into force on 10th October,

2017. Vide Section 23 of the Amending Act, Section 72 of

the Principal Act was deleted. Section 33 of the

Amending Act reads as follows :

"33. Removal of doubts For the removal of doubts, it is hereby declared that nothing in the Maharashtra Public Trusts Act, as amended by the Maharashtra Public Trusts (Second Amendment) Act, 2017 (hereinafter referred to as "the said Amendment Act of 2017"), shall affect the applications or appeals pending before any Civil Court on the date of commencement of the said Amendment Act of 2017; and such applications or appeals shall be dealt with and disposed of by such Court in accordance with the law as its stood prior to the date of commencement of the said Amendment Act of 2017."

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                                                         24.3.2021

5. Admittedly, the application under Section 72

was pending before the District Court as on 10th

December, 2017 and therefore the District Court has

incorrectly dealt with the application in accordance with

law as it stood prior to the date of commencement of the

said Amendment Act of 2017. Section 72(4) as it stood

reads as follows :-

"72(4) An appeal shall lie to the High Court, against the decision of the Court under sub-section (2) as if such decision was a decree from which an appeal ordinarily lies."

Explanation : In this section, the expression "decision" shall include a scheme framed or modified under section 50A.

6. It appears the appellants have relied on the

judgment of the Division Bench of this Court in

Shivprasad Pardeshi vs. Lilabai1, which has decided

the following questions :

1    (1998) 1 Mh.L.J. 444
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                                                       24.3.2021

(i)Whether the Appeal filed under Section 72(4) of the Bombay Public Trusts Act, 1950 is subject to the restrictions and limitations imposed on a "Second Appeal" as prescribed under Section 100 of the Code of Civil Procedure.

(ii)Whether an Appeal under Section 72(4) of the Act is maintainable even on questions of fact, mixed question of fact and law or mere question of law ?

. The question was answered as follows :

"An appeal filed under Section 72(4) of Bombay Public Trusts Act, 1950 is a 'Second Appeal' to this 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 Trust Act or for that matter any other provisions of the said Act which widens the scope of the appeal beyond the limits prescribed by section 100 C.P.C. In our view therefore, such an appeal is maintainable only if the High Court is satisfied that the case involves a Rane 6/10 SA(ST)-3165-2018 24.3.2021

substantial question of law within the meaning of section 100 C.P.C."

Thus, it was held that the Appeal under Section 72(4) of

the Bombay Public Trusts Act, 1950 is maintainable only

if the High Court is satisfied that the case involves a

substantial question of law within the meaning of Section

100 C.P.C.

CONTRARY VIEW :

7. Be that as it may, the Full Bench of this Court

in the case of Prabhakar Sambhu Chaudhary and

anr. V/s. Laxman Baban Mali & Ors.2, on reference

held that in view of the distinctive features of Section 72 of

the Maharashtra Public Trusts Act and Section 100 of the

C.P.C., it is clear that the Legislature did not intend to

limit appellate jurisdiction provided under sub-section (4)

of section 72. Had there been any such intention, it would

have expressly or impliedly incorporated the provisions of

2 2016(3)Bom.C.R. 714 Rane 7/10 SA(ST)-3165-2018 24.3.2021

section 100 of the Code of Civil Procedure into the

relevant provisions of the Act.

8. The Full Bench has relied on the judgment of

the Hon'ble Apex court in the case of James Joseph Vs.

State of Kerala3 wherein it was held 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.

9. In para-43, the Full Bench has held as follows :

"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 section 70 and 70-A, the decisions in such appeals of Charity Commissioner have been subjected to 3 2010(9)S.C.C. 642 Rane 8/10 SA(ST)-3165-2018 24.3.2021

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 herein-before.

10. Thus, for the reasons recorded in the judgment,

the Full Bench has held :

"(1) Appeal provided under sub-section 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 Rane 9/10 SA(ST)-3165-2018 24.3.2021

questions of law within 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 sub-section (4) of section 72 of the Act of 1950 is an appeal against the decree under sub-section (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 found to formulate substantial questions of law while admitting the appeal or before the posting the appeal for hearing."

11. Thus, in consideration of the facts of the case

and in view of the judgment of the Full Bench in the case

of Prabhakar Sambhu Chaudhary (supra) the objection of

the Registry and of the respondents as to the

maintainability of the Second Appeal, is upheld. The Rane 10/10 SA(ST)-3165-2018 24.3.2021

appellant is granted leave to amend the appeal memo.

Consequential amendments shall be carried out within

two weeks from today.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.
Sawant
         Date:
         2021.03.25                           (SANDEEP K. SHINDE, J.)
         11:34:01
         +0530