Research › Browse › Judgment

Karnataka High Court · body

1983 DIGILAW 196 (KAR)

SADASHIVASWAMY v. BASAVARAJU

1983-08-17

G.N.SABHAHIT, R.S.MAHENDRA

body1983
SABHAHIT, J. ( 1 ) THESE appeals are directed against the common Judgment dt. 20-12-1977 passed by the p11. District Judge, Belgaum in Misc. Case Nos. 6 and 7 of 1976 on his file, allowing the applications and setting aside the order of Charity Commissioner dt. 7-11-1974 and the order of the Asst. Charity Commissioner dt. 29-4-1968, in Application 49 of 1968 on his file and directing the matter to be remitted to the Asst. Charity Commissioner, Belgaum for de novo inquiry under S. 19 of the Bombay public Trusts Act in the light of the observations made in the body of the judgment. ( 2 ) THE Asst. Charity Commissioner started suo motu inquiry with regard to Hiremath in Belgaum, and came to the conclusion that it was a private Trust. Aggrieved by the said decision the concerned parties took up the matter in revision to the charity Commissioner under S. 70 (a) and the Charity Commissioner on hearing the parties confirmed the order of the Asst. Charity Commissioner holding that the Trust in question was a private Trust. Aggrieved by the said decision, the concerned parties made two applications, namely, 6 and 7 of 1976 before the Prl. District Judge, Belgaum, under S. 72 of the Bombay Public trust Act and the learned District judge on hearing the arguments and examining the records held that the inquiry conducted by the Asst. Charity Commissioner was vitiated and in that view, as stated above, he set aside the orders of the Charity commissioner and the Asst. Commissioner and remitted the matter back to the Asst. Charity Commissioner, Belgaum for de novo inquiry under S. 19 of the Act. Aggrieved by the said judgment the present appeals are instituted before this Court. ( 3 ) THE learned Advocate appearing for the appellants strenuously urged before us that the learned district Judge was not justified in holding that there was no delay in instituting the applications under s. 72 of the Bombay Public Trusts act (hereinafter referred to as the act ). He further submitted that the applications made before the Charity commissioner also were hopelessly delayed and as such he could not entertain it as revision petitions before him. Hence, he submitted that the judgment and order passed by the learned District Judge should be set aside by allowing the appeals. He further submitted that the applications made before the Charity commissioner also were hopelessly delayed and as such he could not entertain it as revision petitions before him. Hence, he submitted that the judgment and order passed by the learned District Judge should be set aside by allowing the appeals. ( 4 ) AS against that' the learned counsel appearing for the respondents argued supporting the judg- ment and order of the learned district Judge. ( 5 ) THE points, therefore, that arise for our consideration in these appeals are : (1) Whether the learned District Judge was justified in holding that there was no delay in presenting the applications before him under S. 72 of the Act ? (2) Whether it is open to the learned Counsel for the appellants to argue that the revision petitions before the Charity Commissioner were unreasonably delayed and as such was not maintainable ? ( 6 ) THE learned Counsel for the appellants invited our attention to the wordings of Ss. 72 and 75 of the act as it then existed. S. 72 (1) reads :"any person aggrieved by the decision of Charity Commissioner under Ss. 40, 41, 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 to such trust may, within sixty days from the date of the decision, apply to the court to set aside the said decisions". S. 72 (1) (A) reads;"no party to such application shall be entitled to produce additional evidence whether oral or documentary, before the' Court unless the Deputy or Assistant Charity commissioner has refused to admit evidence which ought to have been admitted or the Court requires any document to be produced or any witness to be examined to enable It to pronounce judgment or for any other substantial cause the Court thinks it necessary to allow such additional evidence, provided that whenever additional evidence is allowed to be produced by the Court, the Court shall record the reason for its admission. (2) The Court after taking evidence if any may confirm, revoke or modify the decision or remit the amount of the surcharge and make such order as to costs as it thinks proper in the circumstances. (3 ). . . . . . . . . . . . . . . . . . (2) The Court after taking evidence if any may confirm, revoke or modify the decision or remit the amount of the surcharge and make such order as to costs as it thinks proper in the circumstances. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4) An appeal shall lie to the high Court against the decision of the Court under sub-sec. (2) as if such decision was a decree from which an appeal ordinarily lies. " ( 7 ) S. 75 of the Act reads:- limitation : - In computing the period of appeal under this Chapter, the provisions of Ss. 4, 5, 12 and 14 of Indian Limitation Act, 1908, shall apply to the filing of such appeals". Reading these two sections together the learned Counsel submitted that s. 72 does not provide for an appeal under the Chapter, as the proceeding is specifically described as an Application. Therefore, he submitted that s. 75 of the Act which enables the court, in computing the period of limitation for appeal, to apply the provisions of Ss. 4, 5, 12 and 14 of the indian Limitation Act could not be attracted while computing the period of limitation for the purpose of S. 72 ( 8 ) IT is no doubt true that the learned District Judge has examined the nature of the powers exercised by the District Court under S. 72 of the Act and has concluded that it is in the nature of an appeal though it is described as an application under s. 72 of the Act. But the point that arises for our consideration is whether the learned District Judge was justified in doing so in view, of the fact that in the same Chapter 11 under the rubric 'functions of the charity Commissioners, procedure; jurisdiction and Appeals, both the sections, namely, 72 and 75 are included. But the point that arises for our consideration is whether the learned District Judge was justified in doing so in view, of the fact that in the same Chapter 11 under the rubric 'functions of the charity Commissioners, procedure; jurisdiction and Appeals, both the sections, namely, 72 and 75 are included. ( 9 ) S. 75 specifically speaks of an appeal under the Chapter, namely chapter 11 and S. 72 does not speak of the appeal, but of an Application, ( 10 ) IT is a well settled principle of construction of statutes that when the legislature in its wisdom has used two different words in the same chapter, it is obvious that it does not 'intend to give the same meaning to to the two words. Therefore, the word 'application cannot be described as an 'appeal' for the purpose of s. 75 of the Act and S, 75 specifically speaks of application of Ss. 4, 5, 12 and 14 of the Indian Limitation Act, 1908. Therefore, the learned District judge was not justified in saying that though for the purposes of S. 75, the application contemplated under S. 72 of the Act la not an appeal, it should be construed an appeal for purposes of applying the relevant provisions of the Limitation Act. We are not persuaed to agree with him in his conclusion, Having regard to the powers conferred on the Court and the words used, namely, that a person aggrieved by the decision of the charity Commissioner shall by an application approach the District court and the District Court is empowered to confirm, revoke or modify the decision of the Charity Commissioner, we are persuaded to hold that the word application refer to a revision though no doubt the revisional power is extended by the section even to recording additional evidence in some specified circumstances. It is in this context that we have to read S. 29 of the Limitation act of 1963 in order to find out whether Ss. 4 to 24 of the Limitation act would be applicable to the facts of the present case. ( 11 ) S. 29 of the Limitation Act reads:"29 (1 ). Savings : nothing in this Act shall affect s. 25 of the Indian Contract Act, 1972. 4 to 24 of the Limitation act would be applicable to the facts of the present case. ( 11 ) S. 29 of the Limitation Act reads:"29 (1 ). Savings : nothing in this Act shall affect s. 25 of the Indian Contract Act, 1972. (2) Where any special or local law prescribe for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of S. 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application 'by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Thu3 S. 29 (2) of the Limitation Act, 1963, makes it clear that when any special law prescribes period of limitation departing from the period of limitation prescribed in the Limitation Act, that shall be considered as if that is the period of limitation prescribed under the Schedule to the limitation Act and S, 3 of the Limitation Act shall apply and further Ss. 4 to 24 of the Limitation Act would also apply unless the special law specifically excludes the application of those Sections. Therefore, it is obvious that 60 days period prescribed under S. 72 of the Act shall be treated as the period of limitation prescribed under the Schedule to the limitation Act and that unless the bombay Public Trusts Act expressly excludes the application of the provisions of Ss. 4 to 24 of Limitation Act, they would be attracted to the facts of the present cose. " ( 12 ) WE have already stated above that S. 72 of the Act partakes the nature of (revision) application. Therefore S. 29 (2) would be attracted. Further, in the whole of the Bombay public Trust Act, the provisions made in Ss. 4 to 24 of the Limitation Act are not expressely excluded from being applied to applications under the Act. That being so, it is obvious that Ss. Therefore S. 29 (2) would be attracted. Further, in the whole of the Bombay public Trust Act, the provisions made in Ss. 4 to 24 of the Limitation Act are not expressely excluded from being applied to applications under the Act. That being so, it is obvious that Ss. 4 to 24 do apply to the application contemplated under S. 72 of the act with which we are concerned and the learned District Judge, in the circumstance, was perfectly justified in excluding the Period which was taken for obtaining the certified copy of the order of the Charity Commissioner, as contemplated under S. 12 (2) of the Limitation Act, in computing the period of limitation. ( 13 ) 12 (2) of the Limitation Act reads:"in computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to to be revised or reviewed shall be excluded. "hence, there is no substance in the submission made before us that the learned District Judge was not justified in excluding the period taken for obtaining the certified copy of the order of the Charity Commissioner while preferring an application before the District Judge under S. 72 of the Act. ( 14 ) THE learned Counsel next argued that the learned District judge did not take into consideration the fact that the revision application instituted before the Chaity Commissioner under S. 70 (A) of the Act was itself inordinately delayed namely by 6 yers 9 months and as such he should not have entertained such revision petition. It may at once be noted that this point bas not been argued before the learned District judge; as can be seen from the lengthy judgment passed by him. The learned District Judge has considered all the aspects of the arguments addressed before him and there is no mention about this point. It may at once be noted that this point bas not been argued before the learned District judge; as can be seen from the lengthy judgment passed by him. The learned District Judge has considered all the aspects of the arguments addressed before him and there is no mention about this point. Therfore, it cannot be raised lor the first time before this Court, Even otherwise, the facts of the case reveal that these applicants before the Charity Commissioner were by the persons who in the previous litigation contested and stated that the Trust was a public Trust and no notices were taken to them when the present proceedings started. The present proceeding was concluded in their absence. V/hen they actually came to know about the order they hurried to file the revision. It is no doubt true that no period of limitation is prescribed for prefering a revision before the authority; even so, it should be within reasonable time. (Vide State of Gujarat v. Patel. Raghav natha, (A. I. R. 1969 SC. 1297) and shivappa Veerappa Masur v. Shriman Maharaj Niranjan Jagadguru Mallikarjuna murugarajendra Swamiji, 1978 (1) Kar. L. J. 479 ). ( 15 ) CONSIDERING the facts of the present case, we are satisfied that the persons did file the revision petition within reasonable time. Hence, we are constrained to hold that there is no substance in these appeals and they are liable to be dismissed and we dismiss the same. We make no orders as to costs in these appeals on the peculiar facts of the cases. --- *** --- .