Gujarat High Court
Janakbhai Jashubhai Patel vs Parshuramdasji Guru Kapileshvardasji on 24 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/2313/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2313 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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JANAKBHAI JASHUBHAI PATEL
Versus
PARSHURAMDASJI GURU KAPILESHVARDASJI
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Appearance:
ALAUKIK A SHRIVASTAVSA(9541) for the PETITIONER(s) No. 1,2,3,4,5
RONITH JOY(9560) for the PETITIONER(s) No. 1,2,3,4,5
MR. RAKESH PATEL, AGP for the RESPONDENT(s) No. 3,4
HL PATEL ADVOCATES(2034) for the RESPONDENT(s) No. 1
MR DEVARSHI C SHAH(5545) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 24/09/2018
ORAL JUDGMENT
1. This first appeal under section 72(4) of the Bombay Public Trusts Act, 1950 ( for short "the Act, 1950") is at the Page 1 of 32 C/FA/2313/2018 JUDGMENT instance of the original opponents on the file of the 10th Addl. District & Sessions Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in the proceedings arising from the Civil Misc. Application No.19 of 2018 and is directed against the judgment and order dated 30th April, 2018 passed by the 10th Addl. District Judge, Ahmedabad (Rural) at Mirzapur.
2. The facts, in brief, giving rise to this appeal, are as under;
3. The appellants herein preferred an application under section 50(A) before the Charity Commissioner, State of Gujarat, which came to be registered as the Scheme Application No.24 of 2012. The said application came to be allowed vide order dated 16th January, 2016. The order reads thus;
"The applicants have made an application to frame scheme for well organized organization and management of Ramji Mandir, Kanbha, Trust Registration No. A/1140/Ahmedabad. The applicants have stated in the application that Deputy Charity Commissioner has registered this trust vide inquiry application no. 612/52 on 29/05/1953. There is no trustee or manager for appointing succeeding trustee of this trust. The person, engaged by Sevaks of Mandir for worshipping, has to do all the administration. The expenses for the temple and priest have to be met therefrom. There is no exact method of appointing succeeding trustee in this temple. There is no constitution for Shri Ramji Mandir, Kanbha. No scheme for this temple has been framed. The applicants are the residents of Kanbha village and they have faith in Ramji Mandir and participate in festivals. They donate for celebrating festivals. They participate in the Arti and Prasad. The ancestors of the applicants are followers and devotees of this temple since establishment of the temple. They are interested persons. The applicants have a legal right to make application for the scheme.Page 2 of 32
C/FA/2313/2018 JUDGMENT (2) The applicants have further submitted that Patidar Ratilal Chhababhai was appointed as
administrator on 20/11/1956. Ratilal Chhababhai expired on 19/11/90. Thereafter, priest Kapileshwardasji had been worshipping in the temple. He expired on 24/11/2007. The disputes have arisen for appointment of succeeding trustee of the trust. In this connection, revision application no. 15/2011 and Miscellaneous Application No. 32/12 were filed. The name of priest Parsottamdasji was entered as first manager of Shri Ramji Mandir in the P.T.R. of the trust. No trustee has been appointed since 19/11/90. The dispute has arisen in respect of appointment of the trustee. The person, engaged by Sevaks of Mandir for worshipping, has to do all the administration. The expenses for the temple and priest have to be met therefrom. Accordingly, procedure of appointing succeeding trustee is complicated. No explanation has been given as to who should be considered as Sevaks of the Mandir. As priest Maharaj Parsottamdas Raghuvirdasji of Ramji Mandir proceeded on pilgrimage, he handed over worshipping and arti of the temple to resident of the village Bhagat Dahyabhai Mathurbhai Thakor. He has not returned since then. Thus, no person has been legally appointed as trustee or administrator and manager of this temple. Therefore, there is a need to appoint legal trustees for movable and immovable properties of the trust and to frame constitution of the trust. Therefore, they have requested to frame scheme and appoint first trustees.
(3) The applicants have produced draft of proposed scheme, photocopy of PTR, copy of Schedule-
10, consent letters of Jashubhai Patel, Sumanbhai Patel, Hiteshbhai Patel, Hargovanbhai Prajapati, Sandip Rameshbhai Rathod and affidavits. Affidavit of completion, death certificate of Ratilal Chhababhai Patel, order passed in Revision Appeal No.15/11 dated 16-05- 2012, copy of CMA No.32/12 against the order in Revision Application No.15/11 have been produced for the applicant.
(4) After removal of objections, public notice was published in the Divya Bhaskar vide the letter of this office dated 16-12-2013 to make written representation before Charity Commissioner's office, Gujarat State, Page 3 of 32 C/FA/2313/2018 JUDGMENT Ahmedabad within 30 days of publication of the advertisement along with necessary evidence and affidavit in two copies. But, it is submitted in application at Ex-13 for the applicant that the organization is unable to bear expense of Rs.40,500/- for the publication of draft. In order to publish public notice, estimated expense of Rs. 35,100/- for Ahmedabad edition of Gujarat Samachar, Rs. 27,540/- for the Sandesh and Rs. 10,000/- for the Jan Satta would incur. Thereafter, applicant has made representation for publishing public notice in various daily newspapers. Finally, draft of the said public notice was published in the Sandesh daily newspaper on 08-11-2015. Applicant has produced a copy of the said newspaper.
(5) This office has not received any objections pursuant to the public notice. During submission of applicant's application and trial before me, learned advocate Khushbu Rathod has submitted that there is no manager who can carry out procedure to appoint successor trustee. Volunteers appointed to perform pooja in the temple carries out all administration. Expense of the temple and priest is to be managed from the same. It means there is no system in place in this temple to appoint successor trustee. Shri Ramji Mandir, Kanbha does not have constitution. Scheme of the temple has not been framed. Therefore, scheme is required to be planned for organized administration of the trust.
(6) Considering the documentary evidences produced in this case and the contentions made by Ld. advocate Ms. Khushbu, it appears that, there is no specific method of appointing succeeding Trustee of this temple. Shree Ramji temple, Kanbha has no constitution. If there is no constitution, inconvenience is caused in the administration of the Trust. Looking to the produced P.T.R., it appears that, there is no one like Trustee or Manager. The person whom the bearers of the temple appoint to perform pooja, has to do all the administration and the cost of the temple and the priest has to be borne from it. No clarification has been made in the P.T.R. as to how many minimum and maximum Trustees should be appointed and their tenure etc,. Revision application was filed against the order passed below Registration Application No.612/52 of this Trust which was rejected vide order dated: 16/05/2012 and against which Civil Page 4 of 32 C/FA/2313/2018 JUDGMENT Miscellaneous Application No.32/12 was filed in the court of Hon'ble District Judge of Ahmedabad which is pending. At present there is only one Trustee Mr. Ratilal Chhababhai on P.T.R. who has died. Therefore, there are no trustees at present. No person is legally appointed as the Trustee or Administrator and Manager of this temple. Therefore, appointment of legal trustee in respect of movable and immovable properties of this Trust and framing of constitution of the trust, is necessary. No clarification has been made as to, 'Who manage the administration of the Trust ?, How he manages it ?, and regarding submission of the accounts. Therefore, it is necessary in the interest of the trust and its beneficiaries to formulate a scheme for the well organized management and administration of the Trust. Hence, following order is passed.
::O R D E R ::
The application of the applicants is allowed.
For the well organized management and administration of Shree Ramji Mandir, Kanbha Trust registered vide No.A/1140/Ahmedabad, a scheme is formulated as per the appendix attached herewith.
Following trustees are appointed at the first instance in this case.
(1) Mr. Janakbhai Jasubhai Patel Residing at: Kanbha, Ta-Daskroi, Dist:
Ahmedabad.
(2) Mr. Prafulbhai Sumanbhai Patel Residing at: Kanbha, Ta-Daskroi, Dist:
Ahmedabad.
(3) Mr. Hitesh Jitendrabhai Patel Residing at: Kanbha, Ta-Daskroi, Dist: Ahmedabad.
(4) Mr. Hargovanbhai Dhulabhai Prajapati Residing at: Kanbha, Ta-Daskroi, Dist: Ahmedabad.
(5) Mr. Sandip Rameshbhai Rathod Residing at: Kanbha, Ta-Daskroi, Dist: Ahmedabad.
(6) Sodha Parmar Dipaksinh Ramaji Residing at: Kanbha, Ta-Daskroi, Dist:Page 5 of 32
C/FA/2313/2018 JUDGMENT
Ahmedabad.
It is further ordered that, the scheme shall be implemented within two months from the date of the order, and accordingly the commutation report shall be prepared and the incidental work according to the scheme shall be carried out.
No order as to cost.
This order be intimated to the parties and their authorized representatives. The certified copy of this order to be forwarded to the office of Registration of Public Trusts, Ahmedabad."
4. Being dissatisfied with the order passed by the Charity Commissioner in exercise of his powers under section 50(A) of the Act, the respondent herein preferred the Civil Misc. Application No.19 of 2018 in the court of the 10th Addl. District & Sessions Judge, Ahmedabad (Rural) under section 72 of the Act. The application filed by the respondent herein in the District Court under section 72 of the Act was in the nature of a first appeal. The application filed by the respondent came to be allowed vide order dated 30th April, 2018. The relevant findings recorded by the court below while allowing the application filed by the respondent herein reads as under;
"(7) On perusal of the record as well as during the arguments it came to be an admitted fact that the applicant is managing the temple and trust properties as well as he is administering the trust since long. Even after the passage of the impugned order the situation has not changed and the applicant is still in possession and management of the temple and the trust properties.
Although the Ld. Counsel for the opponents has strongly contended that the applicant has been unable to produce the books of accounts in any form but he did not dispute the fact of the applicant is in possession and management of the said trust as on date.
Page 6 of 32C/FA/2313/2018 JUDGMENT
8. That so far as the "Wills" executed by Shri Kapileshwardasji Maharaj are concerned both the parties to the present application have submitted different "Wills" from their possession. The applicant has filed copy of the "Will" dt. 28.05.2004 and the opponents have filed copy of the "will" dt. 10.11.2004. After comparing both the "Wills" from original their true copies were taken on record and marked as exh.14 & 15 respectively The applicant is contending that "Will" dt. 10L11.2004 submitted by the opponents is a forged will and was never executed by Shri Kapileshwar Maharaj, on the other hand it is the say of the opponents that Shri Kapileshwar Maharaj executed his last "Will" on 10.11.2004 and it is clearly mentioned therein that both the will executed earlier by him stands cancelled. I have gone through both the "Wills" under dispute in between the parties and one thing is sure that the contents, the entrustment made by it, the analogy as well as the intention of the maker is totally different in both the Wills in question. In the "Will" dt. 28.05.2004 it is mentioned that Shri Kapileshwar Maharaj had appointed the present applicant as his disciple but in "Will" dt. 10.11.2004 it is mentioned that the present applicant is nothing more than that a paid employee appointed to do sewa pooja in the temple. It is also an admitted that that none of the party to this application could obtain the probate on any of these wills as on date. Ans for all these reasons this Court cannot at this stage to on to decide or hold as to which "Will" is genuine and was lastly executed by its executant; it is but for sure that out of these last two "Wills" only one is genuine. Accordingly, this point is left for determination by the competent civil court having exclusive original jurisdiction over the matter.
9. Under the present civil miscellaneous application the sole point for consideration is that whether the impugned order dt. 16.01.2016 passed by the Ld. Charity Commissioner in Scheme Application No.24/2012 should or should not be set aside owing to the consideration that the present applicant was neither made a party nor he was given any opportunity to present his case in the proceedings of the said scheme application. It is an admitted fact that the applicant was not a party to the said proceedings, though he tried to get himself impleaded in the said proceedings but failed. Although it Page 7 of 32 C/FA/2313/2018 JUDGMENT cannot be said that he was totally ignorant of the pendency of the said proceedings before the Charity Commissioner but still it also cannot be concluded that he was not having any right of being heard before the impugned order is passed. After the discussion in the preceding paragraphs, it is clear that the present applicant is in possession and management of the trust properties since long and even after the passing of the impugned order the situation has not changed. Taking into consideration the two "Wills" submitted by both the parties, this fact is also confirmed that the opponents were well aware of the fact that the applicant is also an interested party but despite that they did not implead him in the said scheme application and obtained the impugned order. In such circumstances. There is no hesitation in holding that the impugned order has been passed after hearing the opponents only and after consideration of their pleadings and evidence whereas the applicant was the necessary party in the said proceedings. Hence, the proceedings as well as the order passed in the Scheme Application No.24/2012 are held to be violative of the principles of natural justice.
10. In the light of the entire discussion herein above this Court is of the opinion that the applicant being a necessary party to the Scheme Application No.24/2012 was deprived of the right of hearing and hence the impugned order dt. 16.01.2016 deserves to be set aside in the interest of justice. Hence, the final order:-
ORDER
1. This Civil Miscellaneous Application No.19/2018 is allowed. The order dt. 16.01.2016 passed by the Ld. Charity Commissioner in Scheme Application No.24/2012 is set aside.
2. The Ld. Charity Commissioner is directed to implead the present applicant, Parshuramdasji Guru Kapileshwardasji, in the Scheme Application No.24/2012 and after giving him an opportunity of filing written statement and/or other documents relied upon by the present applicant, and also after hearing both the parties on merit shall pass an order in accordance with law."Page 8 of 32
C/FA/2313/2018 JUDGMENT
5. Being dissatisfied with the order passed by the court below, the appellants are here before this Court with this appeal under section 72(4) of the Act.
6. Mr. Ronith Joy, the learned counsel appearing for the appellants vehemently submitted that the court below committed a serious error in passing the impugned order.
According to Mr. Joy, there was no good reason for the court below to remit the matter to the Charity Commissioner so as to give an opportunity of hearing to the respondent herein. According to Mr. Joy, the respondent herein is a self proclaimed Pujari cum manager cum trustee of the Ramji Mandir, situated at village Kanbha, District: Ahmedabad. Mr. Joy would submit that before adjudicating the application under section 50(A) of the Act, the Charity Commissioner had issued a public notice, inviting objections and also suggestions from the people at large. If the respondent had anything to say as regards the application filed by the appellant herein under section 50(A) of the Act, then he could have filed his objections in writing. It is submitted that the insistence on the part of the respondent of being impleaded in the original proceedings before the Charity Commissioner is not tenable in law. The whole object in issuing the public notice is to give an opportunity to one and all to express their opinion as regards the framing of the scheme for the management of the trust. In such circumstances, referred to above, the learned counsel prays that there being merit in this appeal, the same be allowed and the impugned order passed by the court below be quashed and the oder passed by the Charity Commissioner be affirmed.
7. On the other hand, this appeal has been vehemently Page 9 of 32 C/FA/2313/2018 JUDGMENT opposed by the learned counsel appearing for the respondent. The learned counsel appearing for the respondent vehemently submitted that no error, not to speak of any error of law, could be said to have been committed by the court below in remanding the matter to the Charity Commissioner so as to give an opportunity of hearing to his client in accordance with law. The learned counsel would submit that this appeal under section 72(4) of the Act is in the nature of a second appeal and, therefore, the same is maintainable only on a substantial question of law. In support of such submission canvassed by the learned counsel, reliance is placed on a decision of this Court in the case of Shri R. Tanikaselvam vs. Shri K Shanmugam, First Appeal No.3268 of 2018, decided on 20 th August, 2018. The learned counsel would submit that his client has been managing the affairs of the temple since a long period of time. His application bearing Change Report No.318 of 2010 is also pending as on date before the Charity Commissioner. In such circumstances, the respondent has a direct interest in the litigation and, therefore, according to the learned counsel, he should have been heard before passing the order of framing of appropriate scheme. The learned counsel appearing for the respondent submitted that an application was also filed by his client before the Charity Commissioner for being impleaded as a party respondent in the proceedings but the Charity Commissioner overlooked the same. In such circumstances, referred to above, the learned counsel prays that there being no merit in this appeal, the same be dismissed.
8. Mr. Joy, in rejoinder to the submissions of the learned counsel appearing for the respondent, pointed out that the Page 10 of 32 C/FA/2313/2018 JUDGMENT decision of this Court in the case of Shri R Tanikaselvam (supra), referred to above, is per incurium. He pointed out that this Court relied upon a Division Bench decision of the Bombay High Court in the case of Shivprasad Shankarlal Pardeshi vs. Leelabai Badrinarayan Kalwar, reported in AIR 1998 Bom 131, wherein the Division Bench has taken the view that an appeal under section 72(4) of the Act before the High Court will be subject to the same limitation as are prescribed under section 100 of the CPC since there is nothing in section 72(4) of the Act, 1950, which confers wider jurisdiction upon the High Court while hearing such an appeal,. According to Mr. Joy, the Division Bench decision of the Bombay High Court in the case of Shivprasad (supra) has been overruled by the Full Bench in the case of Prabhakar Sambhu Chaudhary vs. Laxman Baban Mali & Ors., 2016 (3) Mh.L.J., 202 . The Full Bench has taken the view that an appeal before the High Court under section 72(4) of the Act is against decree under sub-section (2) of section 72 of the Act. An appeal under section 72(4) of the Act is not subject to restrictions and limitations imposed under the provisions of section 100 of the CPC. The scope of appeal extends to reconsideration of the decision of the lower forum on the 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.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in passing the impugned order.
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10. On the question of law as regards the scope of this appeal under section 72(4) of the Act, the submission of Mr. Joy, the learned counsel appearing for the appellants, deserve acceptance. Mr. Joy is right in his submission that the decision of this Court in the case of Shri R. Tanikaselvam (supra) could be said to be per incurium because in the said decision, the Full Bench decision of the Bombay High Court has not been taken into consideration. The relevant observations in the Full Bench decision, are as under;
"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 sub- section (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 Page 12 of 32 C/FA/2313/2018 JUDGMENT 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 Page 13 of 32 C/FA/2313/2018 JUDGMENT 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 re-examination 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 well-known 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 Page 14 of 32 C/FA/2313/2018 JUDGMENT 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 re- hear 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 Page 15 of 32 C/FA/2313/2018 JUDGMENT 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 thirty-third 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 Page 16 of 32 C/FA/2313/2018 JUDGMENT 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:
12-A. 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 sub-section (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 sub- section (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 Page 17 of 32 C/FA/2313/2018 JUDGMENT 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 self- contained provision for second appeals, without any Page 18 of 32 C/FA/2313/2018 JUDGMENT 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 re-appraisal 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, sub-
Page 19 of 32C/FA/2313/2018 JUDGMENT section (4) of Section 72 provides for an appeal 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. 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 sub- section (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 sub-section (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 sub-section (2) of Section 72. Appeal provided to the High Court under sub-section (4) of Section 72, though is an appeal Page 20 of 32 C/FA/2313/2018 JUDGMENT 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 sub-section (4) of Section 72 of the Act.
Section 72 of the Section 100 of the Code of Maharashtra Public Civil Procedure provides that:j Trusts Act, provides thus:
72. Application from Charity 100. Second appeal:-
Commissioner's decision (1) Save as otherwise under section 40, 41, 41C and expressly provided in the 43(2)(a) and (c)], 50A, 70 or body of this Code or by any 70A], etc. other law for the time being in force, an appeal shall lie to the (1) ................................. 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) ................................ (2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) ............................... (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) An appeal shall lie to the (4) Where the High Court is High Court, against the satisfied that a substantial decision of the court under question of law is involved in sub-section (2) as if such any case, it shall formulate decision was a decree from that question.
which an appeal ordinarily lies. {emphasis supplied) (5) The appeal shall be heard Page 21 of 32 C/FA/2313/2018 JUDGMENT 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 sub-section 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.
Sub-sections (1), (2) and (3) of Section 100 CPC would specifically provide that a Second Appeal would lie where substantial questions of law are involved Sub-section (4) of Section 72 of the Act of 1950 is intended to be a self-contained Code.
Insofar s as appeals under the Act to the High Court, deliberate deviation from the provisions of Section. 100 of the Code. 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, Page 22 of 32 C/FA/2313/2018 JUDGMENT 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 sub- While sub-section (3) of section 72(4), the Act Section 100 would require that deliberately makes a the memorandum of appeal departure and does not shall precisely state the provide for any limitations on substantial questions of law the powers, as provided under involved in the appeal. Section 100 of the Code.
42 In view of the distinctive features specified above, 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 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 Page 23 of 32 C/FA/2313/2018 JUDGMENT 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 sub- section (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 sub-section (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.
Page 24 of 32C/FA/2313/2018 JUDGMENT 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 260-A of the Income Tax Act, 1961:
260-A 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 sub-section 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) omitted 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 Page 25 of 32 C/FA/2313/2018 JUDGMENT 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 sub-section 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 sub- section (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 15-Z of the Securities and Exchange Board of India Act, 1992, which provides thus:
15-Z 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 Page 26 of 32 C/FA/2313/2018 JUDGMENT 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 half-monthly 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 4-
A;]
(b) an order refusing to allow redemption of a half-monthly 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 sub- section (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.Page 27 of 32
C/FA/2313/2018 JUDGMENT (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 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 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 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 bound to formulate substantial Page 28 of 32 C/FA/2313/2018 JUDGMENT questions of law while admitting the appeal or before posting the appeal for hearing. "
11. Thus, having regard to the principles discernible from the Full Bench decision of the Bombay High Court, it could be said that the present appeal under section 72(4) of the Act may be in the form of a second appeal, but no restrictions can be imposed like section 100 of the CPC and a second appeal under section 100 of the CPC can be entertained only on a substantial question of law. The same would not be the position with regard to an appeal under section 72(4) of the Act before the High Court. I also take notice of the fact that in the decision of this Court in the case of Shri R. Tanikaselvam (supra), there is a reference of a Division Bench decision of this very Court in the case of Parvez Rustamji Bharda v.
Navrojji Sorabji Tamboly and others, AIR 2001 Gujarat
160. This decision has been referred to, to indicate that in an appeal before this Court under section 72(4) of the Act, the Court would exercise jurisdiction as a second appellate court and not as a first appellate court and, therefore, a letters patent appeal would not be maintainable. While deciding the matter in Shri R. Tanikaselvam (supra) this Court derived support from the Division Bench decision of this Court in Parvez Rustamji Bharda (supra) to fortify the view taken by the Division Bench of the Bombay High Court. However, since the Division Bench decision of the Bombay High Court is no longer a good law, the Division Bench decision of this Court pales into insignificance. Even, otherwise, the Division Bench decision of this Court is in a different context, i.e., with regard to right to file an intra court appeal to a Division Bench.
Page 29 of 32C/FA/2313/2018 JUDGMENT 12. Bearing the above in mind, the question before me is
whether the court below was justified in disturbing the order of the Charity Commissioner. The order of the Charity Commissioner is plain and clear. The Charity Commissioner, in its order, has observed that a public notice was issued and the objections were invited. No objections were received and having regard to the materials on record, the Charity Commissioner proceeded to pass an order for the purpose of framing of the scheme in the interest of the Trust.
13. The provisions of Section 50A of the Act, 1950, came into force in the State of Gujarat from 1st July 1961. In order to approve the working of the public trusts, the Charity Commissioner has been empowered by the Legislature to frame a scheme. The power is given to the Charity Commissioner to frame a scheme, when a suit being filed. Before this provision was made in the Act, 1950, if a scheme was required to be framed, and there were and are many religious trusts which run without any constitution, rules, regulations or scheme, a suit had to be filed. It took years before a scheme to be framed and nobody would be prepared to file such suits, with the result that a number of trusts were run at random, arbitrarily by the Mahants', Pujaris' etc. who invariably are the sole trustees. Now scheme could be framed speedily and at a much lesser cost. There is no doubt that the functions to be discharged by the Charity Commissioner in a proceeding under Section 50A of the Act are of a quasijudicial character. The powers under this scheme are to be exercised by the concerned officer on subjective satisfaction. This is a power conferred under an Act under special contingency when it is necessary or expedient to frame a scheme in the interest Page 30 of 32 C/FA/2313/2018 JUDGMENT of a public trust. The term 'necessary' means 'what is indispensable, needful, essential'. The term 'expedient' has no doubt a wide ambit and gives a large scope to the exercise of power.
14. Prima facie, it appears that the respondent wants to manage the show single handedly. He is disturbed because once the scheme is framed, then he would not be in a position to enjoy the offerings of the temple. A person acting as a Poojari cannot put forward a claim of being a sole trustee of the temple. He cannot assert that he has a right to manage the affairs of the temple and nobody else should interfere in the affairs. All the relevant aspects of the matter have been duly considered by the Charity Commissioner and, ultimately, the Charity Commissioner thought fit to pass an order of framing of the scheme and also appointed the appellants as the trustees of the trust. In my view, the order passed by the Charity Commissioner is in the interest of the trust. The interest of the trust and the management of the trust is more important rather than to protect the individual interest of a person claiming to be the Poojari. In my view, there was no good reason for the court below to remit the matter to the Charity Commissioner for the purpose of giving an opportunity of hearing to the respondent herein. Once again, at the cost of repetition, I state that he could have filed his objections pursuant to the public notice issued by the Charity Commissioner. However, having failed to do so, he cannot now complain that he was not heard by the Charity Commissioner.
15. In the overall view of the matter, I have reached to the conclusion that the appeal deserves to be allowed and the Page 31 of 32 C/FA/2313/2018 JUDGMENT same is hereby allowed. The impugned order passed by the court below is hereby quashed and set aside. The order passed by the Charity Commissioner is hereby affirmed.
(J.B.PARDIWALA, J) Vahid Page 32 of 32