Tuesday 24 May 2016

Whether it is necessary to frame substantial question of law while hearing appeal as per S 72(4) of Bombay public trust Act?


So far as provision of Section 72(4) of the Bombay
Public Trusts Act is concerned, there is no such specification that
the appeal from appellate order of the District Court, presented to
the High Court, shall be heard only if it  involves any substantial
question of law.  Neither Section 72(4) makes  reference to Section
100   of   the   Code   of   Civil   Procedure,   nor   specifically   puts   any
restriction   or   limitation   on   the   powers   of   the   High   Court   in
entertaining the appeal.  Since the provision itself does not limit
scope of the appeal nor puts any limitations on the Court dealing
with the appeal, it cannot be construed that appeal to the High
Court,   as   provided   under   Section   72(4)   is   subject   to   any
limitations as prescribed under Section 100 of the Code of Civil
Procedure.
54 In view of the reasons recorded above, our answer to
the questions formulated for consideration, in this Reference, is:
(1) Appeal provided under sub­section

72(4)   of   the   Maharashtra   Public   Trusts   Act,
1950, is not subjected to the restrictions and
limitations   imposed   under   the   provisions   of
Section 100 of the Code of Civil Procedure and
the scope of appeal extends to reconsideration
of decision of the lower forum on questions of
fact and questions of law with a jurisdiction to
reverse,   modify   the   decision   or   remand   the
matter to the lower forum for fresh decision in
terms   of   its   directions.     Appeal   to   the   High
Court under sub­section (4) of Section 72 of the
Act  of   1950  is  an  appeal  against   the   decree
under   sub­section   (2)   of   Section   72   [The
decision   of   Court   under   section   72(2)   is   a
decree for limited purposes of maintaining an
appeal to the High Court.]
(2) Consequently, there is no obligation for
the appellant to state substantial questions of
law involved in the memorandum of appeal and
High   Court   is   also   not   bound   to   formulate
substantial questions of law while admitting the
appeal or before posting the appeal for hearing.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
 SECOND APPEAL NO.700 OF 2008  
Prabhakar Sambhu Chaudhary,

Versus
Laxman Baban Mali,
   
CORAM : R.M.BORDE,
                 SUNIL P. DESHMUKH & 
                RAVINDRA V. GHUGE, JJJ.

Pronounced on  01st  April, 2016.
Citation;2016(3) ALLMR294 FB

1 Heard   Shri   R.N.Dhorde,   Senior   Counsel   i/by     Shri
V.R.Dhorde,  advocate   for  the Appellant in Second Appeal No.700
of 2008 and for Respondent No.1 in Second Appeal No.793 of 2008
with  and  i/by  Shri  P.S.Dighe,   advocate;  Shri  P.M.Shah,  Senior
Counsel i/by Shri S.P.Brahme, advocate for Respondents No.1 to 3
in Second Appeal No.700 of 2008 and for the Appellant in Second
Appeal   No.793   of   2008   with   and   i/by   Shri   N.B.Suryawanshi,
advocate; and Shri A.B.Girase, Government Pleader for Respondent
No.5 in both the appeals. 
2 These Second Appeals have been presented objecting
to the judgment and order dated 29.04.2008, passed by Ad hoc
District Judge­2, Shahada in Trust Applications No.1 of 2007 and
2 of 2007.
3 Although there is a chequered history of the litigation,
it   would   suffice   to   note   that   after   elections   to   the   Managing
Committee   were   held,   Change   Report   No.207   of   2003   was
presented by Choudhary group i.e. appellant in Second Appeal
No.700   of   2008,   whereas,   Change   Report   No.208   of   2003   was
presented by Mali group i.e. Respondents in Second Appeal No.700
of   2008   and   appellant   in   Second   Appeal   No.793   of   2008,
respectively claiming themselves to be duly elected office bearers of
the Managing Committee.  Change Report No.207 of 2003 came to
be accepted by the Assistant Charity Commissioner and Change
Report No.208 of 2003 came to be rejected by an order dated
12.04.2006.     Appeal   No.73   of   2006   was   filed   by   Mali   group,
challenging   acceptance   of   Change   Report   No.207   of   2003   and
rejection of Change Report No.208 of 2003.  The said appeal came

to be allowed vide order dated 06.01.2007 and order passed in
respect  of acceptance  of Change Report  No.207  of 2003 is set
aside.  On the other hand, order in respect of rejection of Change
Report No.208 of 2003 came to be confirmed.
4 Trust Application No.1 of 2007 came to be presented by
Chaudhary group, challenging order dated 06.01.2007 in Appeal
No.73 of 2006.  So also, Trust Application No.2 of 2007 came to be
presented by Mali group, challenging order dated 06.01.2007, in
respect of Change Report No.208 of 2003.  Both the Applications
have been rejected by Ad hoc District Judge­2, Shahada, by order
dated   29.04.2008,   which   gave   rise   to   presentation   of   Second
Appeal No.700 of 2008 (in respect of Change Report No.207 of
2003 by Chaudhary group); and Second Appeal No.793 of 2008 (in
respect   of   Change   Report   No.208   of   2003,   presented   by   Mali
group). 
5 Both the appeals were placed before the learned Single
Judge for consideration on 30.01.2012.   It was urged by learned
Counsel   appearing   for   respective   parties,   that   in   view   of   subsection
(4) of Section 72 of the Bombay Public Trusts Act, 1950,
there is no warrant to frame a substantial question of law and the
High Court is bound to entertain all objections to the correctness
of the judgment, including those relating to questions of facts.
6 It   was   contended   that   appeal   provided   under   subsection
(4) of Section 72 of the Act cannot be subjected to any
restrictions or limitations as are prescribed under Section 100 of
the   Code   of   Civil   Procedure;   and   further,   it   is   not   within

contemplation to draw an inference that the appeals are tenable
only if the Court is satisfied that it involves substantial questions
of law.
7 Relying upon the judgment in the matter of  James
Joseph Vs. State of Kerala, reported in 2010 (9) SCC 642, it was
urged   that   if   the   statute   does   not   place   any   limitations   or
restrictions in regard to scope and width of the appeal, it shall be
construed that the appeal provides a right of rehearing on law as
well as facts.  
8 A different view is expressed by  Division Bench of this
Court   in   the   matter   of  Shivprasad   Shankarlal   Pardeshi   Vs.
Leelabai Badrinarayan Kalwar, reported in 1998 (1) Mh.L.J. 444.
The Division Bench, while considering the scope of an  enquiry in
the appeal provided to the High Court under sub­section (4) of
Section   72   of   the   Bombay   Public   Trusts   Act,   1950   (now
Maharashtra Public Trusts Act,  2013) {hereinafter, for convenience,
referred to as `BPT Act' or `Act of 1950'} and Section 100 of the
Code of Civil Procedure, has taken a view that:
“  An appeal filed under Section 72(4) of
the   Bombay   Public   Trusts   Act,   1950,   is   a
'Second   Appeal'   to   the   High   Court   and   is
subject   to   the   restrictions   and   limitations
imposed   on   a   “Second   Appeal”   as  prescribed
under   Section   100   of   the   Code   of   Civil
Procedure.   There is nothing in the scheme of
Section 72 of the Bombay Public Trusts Act or
for that matter, any other provisions of the said
Act which widens scope of the appeal beyond
the limits prescribed by Section 100 of the Civil
Procedure Code.  In our view, therefore,  Such

an   appeal   is   maintainable   only   if   the   High
Court   is   satisfied   that   the   case   involves
substantial questions of law within the meaning
of Section 100 C.P.C. ”
9 Considering the judgment of the Apex Court in the
matter of  James  Joseph (supra),   the learned Single Judge has
formulated following questions for consideration.
(1) Whether  the  second  appeal  filed   under
the provisions of Section 72(4) of the Bombay
Public   Trusts   Act,   1950,   can   be   heard   and
considered   only   if   it   involves   a   substantial
question of law?
(2) If so, whether the Memorandum of appeal
shall have to state the substantial question of
law   involved   in   the   appeal   and   whether   the
High   Court   is   bound   to   formulate   the
substantial question/s of law while admitting
the   appeal   or   before   posting   the   appeal   for
hearing.
10 It would be appropriate to refer to certain provisions of
the Maharashtra Public Trusts Act.  Section 2(4) of the Act defines
“ Court ”.   Court means in the Greater Bombay, the City Civil
Court and elsewhere the District Court.  
11 There   are   various   inquiries   and   proceedings   under
Maharashtra Public Trusts Act, 1950, which give rise to an appeal
to the High Court.  

(i) Section 41D of the Act of 1950 relates to suspension,
removal and dismissal of trustees.  Sub­section (1) of Section 41D
provides:
41D    Suspension,  removal  and  dismissal  of
trustees
(1) The Charity Commissioner may, either on
application of a trustee or any person interested
in the trust, or on receipt of a report under
section 41B or suo motu may suspend, remove
or dismiss any trustee of a public trust, if he, ­
(a) makes   persistent   default   in   the
submission of accounts report or return;
(b) wilfully disobeys any lawful orders issued
by   the   Charity   Commissioner   under   the
provisions of this Act or rules made thereunder
by the State Government;
(c) continuously   neglects   his   duty   or
commits any mal­feasance or misfeasance, or
breach of trust in respect of the trust;
(d) misappropriates or deals improperly with
the  properties  of  the trust   of  which he  is  a
trustee; or
(e) accepts   any   position   in   relation   to   the
trust which is inconsistent with his position as
a trustee;
(f) if convicted of an offence involving moral
turpitude.
Sub­section (6) of Section 41D provides:
(6) An   appeal   shall   lie   to   the   High   Court

against the decision of the Court under subsection
(5) as if such decision was a decree from
which an appeal ordinarily lies.
(ii) Similarly,   Section   41E   refers   to   power   to   act   for
protection of charities.  Sub­section (1) of Section 41E reads, thus:
41E Power to act for protection of Charities
(1) Where it is brought to the notice of the
Charity Commissioner either by the Deputy or
Assistant   Charity   Commissioner   through   his
report   or   by   an   application   by   at   least   two
persons having interest supported by affidavit :
(a) that any trust property is in danger of
being wasted, damaged or improperly alienated
by any trustee or any other person, or 
(b) that the trustee or such person threatens
or   intends   to   remove   or   dispose   of   that
property,
the Charity Commissioner may by order grant a
temporary injunction or make such other order
for the purpose of staying and preventing the
wasting, damaging, alienation, sale, removal or
disposition of such property, on such terms as
to   the   duration   of   injunction,   keeping   an
account,   giving   security,   production   of   the
property or otherwise as he thinks fit.
Sub­section (6) of Section 41E provides for:
(6) The   order   of   the   Court   attaching   the
property   of   such   person   or   detaining   such
person   in   civil   prison   shall   be   a   decree
appealable to the High Court.

(iii) Section   47   of   the   Act   relates   to power   of   Charity
Commissioner to appoint, suspend, remove or discharge trustees
and to vest property to new trustees.  Sub­section (5) of Section 47
provides, that:
(5) The order of the Charity Commissioner
under sub­section (2) shall be deemed to be the
decree   of   the   Court   and   an   appeal   shall   lie
therefrom to the High Court.
(iv) Sub­section (1) of Section 72 provides, thus:
72. Application   from   Charity
Commissioner's   decision   under   section   40,
41   [41C   and   43(2)(a)   and   (c)],   [50A,   70   or
70A], etc.
(1) Any person aggrieved by the decision on
the Charity Commissioner under section 40, 41
[41C and 43(2)(a) and (c)], [50A], [70 or 70A] or
on the questions [whether a trust exists and
whether such trust is a public trust] or whether
any property is the property of such trust [ * *
* ] may, within sixty days from the date of the
decision, apply to the court to set aside the said
decision.
Sub­section (4) of Section 72 provides:
(4) An   appeal   shall   lie   to   the   High   Court,
against   the  decision   of   the   court   under   subsection
(2) as if such decision was a decree from
which an appeal ordinarily lies.
12 Section 73 of the BPT Act provides that the officers
holding inquiries shall have powers of Civil Court, which reads,
thus:

73. Officers   holding   inquiries   to   have
powers of civil court
In holding inquiries under this Act, the
officer holding the same shall have the same
powers as are vested in courts in respect of the
following   matters   under   the   Code   of   Civil
Procedure, 1908 in trying a suit ­
(a) proof of facts by affidavits,
(b) summoning and enforcing the attendance
of any person and examining him on oath,
[(c)  ordering   discovery   and   inspection,   and
compelling the production of documents.]
(d) issuing of commissions.
13              Section 76 of the Act of 1950 provides that:
76. Civil   Procedure   Code   to   apply   to
proceedings [before Court] under this Act.
Save in so far as they may be inconsistent
with   anything   contained   in   this   Act,   the
provisions of the Code of Civil Procedure, 1908,
shall apply to all proceedings before the court
under this Act.
14 It   is,   thus,   clear   that   Section   76   contemplates
applicability of provisions of the Code of Civil Procedure to the
proceedings before the Court.  Whereas, Section 73 entrusts some
of the powers mentioned in the aforesaid Section provided under
the Code to the officers holding inquiries under the Act.  
15 So far as applicability of limitation is concerned, it is

provided under Section 75 of the Act of 1950, which reads, thus:
75 Limitation ­
In computing the period of appeal under this
Chapter, the provisions of sections 4, 5, 12 and
14   of   the   Indian   Limitation   Act,   1908,   shall
apply to the filing of such appeals.
16 The Act of 1950 provides for procedure to be observed
while conducting inquiries as well as while conducting appeals and
also   provides   for   limitation   for   entertaining   an   application   for
Change or in respect of appeal.  The applicability of provisions of
the Limitation Act and Code of Civil Procedure is to the extent
specified in the Act.   The Act of 1950 is, thus, a self contained
Code.
17 There   cannot   be   any   controversy   for   drawing   an
inference that the proceedings before District Court initiated on
tender of an application under Section 72 of the BPT  Act are in the
nature of an appeal.   In the matter of  Ramchandra  Goverdhan
Pandit Vs Charity Commissioner of State of Gujarat, reported
in 1987 AIR SC 1598, the Hon'ble Supreme Court has, set at rest
the controversy and ruled that all the characteristics of an appeal
and   all   the   powers   of   an   appellate   Court   are   available   to   the
District   Court   while   deciding   an  application   under   Section   72.
There can be no hesitation to hold that proceedings before the
District Court under Section 72(1) are in the nature of an appeal
and   the   District   Court   exercises   appellate   jurisdiction   while
deciding   matters   under   Section   72(1).     The   Supreme   Court
approved the decision of the Division Bench of Gujarat High Court

in the matter of  Hiragar  Dayagar  Vs.  Ratanlal, reported in AIR
1973 Guj 15: Guj. LR 181  as well as decision reported in (1956) 58
Bom LR 894.   In the aforesaid decision of Bombay High Court,
Hon'ble Mr.Chagla, the Hon'ble the Chief Justice (as he then was),
has made following observations:  
“  Now although S. 72(1) confers a right
upon a person aggrieved  by the decision of the
Charity Commissioner to apply to th City Civil
Court, we must look at and consider the real
nature of the right that  is conferred by this
sub­section.   In substance, if not in form the
right   is   in   the   nature   of   an   appeal.     The
application is intended to set aside the decision
of the Charity Commissioner and the City Civil
Court   must   consider   that   decision,   and   if
satisfied that the decision is erroneous must set
it   aside   and   give   the   necessary   relief   to  the
party aggrieved by that decision.  Therefore, in
substance there is very little difference between
an application contemplated by S. 72(1) and a
right of appeal against the order of the Charity
Commissioner......”
18 The   Supreme   Court,  in  the   matter  of  Ramchandra
(supra),   found it difficult to approve of the     view taken by the
Division   Bench   of   this   Court   in   the   matter   of  Khivaraj
Chhaggiram   Kavar   &   another   Vs.   Shivshankar   Basappa
Lingashetty   &   another,  reported   in   AIR   1974   Bom   40.     In
paragraphs   no.8   and   9   of   the   judgment   in   the   matter   of
Ramchandra (supra), the Supreme Court has observed, thus:
8 We have considered the reasoning in the
three judgments referred above.   With respect,
we find it difficult to agree with the reasoning in
AIR 1974 Bom 40.  We agree with the reasoning
in the other two cases.  The slender thread on

which   the   appellants   arguments   rest   is   the
absence of the word “appeal” in S. 72(1).  That
alone   cannot   decide   the   issue.     If   the   well
known   word   “appeal”   had   been   used   in   this
section that would have clinched the issue.  It is
the absence of this word that has necessitated a
closer   scrutiny   of   the   nature,   extent   and
content of the power under S. 72(1).
9 The   power   of   the   District   Court   in
exercising jurisdiction under S. 72 is a plenary
power.  It is true that the Commissioner is not
subordinate   to   the   District   Court   but   the
District  Court  has  powers  to correct, modify,
review   or   set   aside   the   order   passed   by   the
Commissioner.     All   the   characteristics   of   an
appeal and all the powers of an appellate court
are   available   to   the   District   Court   while
deciding an application under S. 72.  To decide
this case we must be guided not only by the
nomenclature   used   by   the   section   for   the
proceedings but by the essence and content of
the proceedings.   That being so, we have no
hesitation to hold that the proceedings before
the   District   Court   under   S.   72(1)   are  in   the
nature   of   an   appeal   and   that   District   Court
exercises appellate jurisdiction while disposing
of a matter under S. 72(1).  Consequently, the
single Judge of the High Court while deciding
the appeal from the order of the District Court
deals with a matter made by the District Judge
in the exercise of an appellate jurisdiction by a
Court   subject   to   the   superintendence   of   the
High   Court   and   hence   Cl.   15   of   the   Letters
patent is directly attracted.  
19 By   the   analogy,   the   decision   in   the   matter   of
Ramchandra (supra),  that   the   District   Court,   dealing   with   an
application under Section 72(4) exercises appellate powers,  would
lead to an inference that an appeal to the High Court against
decision of the District Court under Section 72(4) would/may be

in the nature of an appeal against appellate decree.  
20 It   shall   also   be   noted   at   this   stage   that   on
consideration of various provisions of the BPT  Act, it can be seen
that the Act of 1950 provides and more particularly sub­section (4)
of Section 72 attaches  characteristics of a decree to the decision
of the Court under sub­section (2) for the purposes of facilitating
remedy of an appeal to the High Court.  
21 A decision on an application  under sub­section (2) of
Section 72 is subject to an appeal to the High Court as if such
decision was a decree from which an appeal ordinarily lies. It is,
thus, clear that for the purposes of maintaining an appeal to the
High Court, the decision of the Court under Section 72(2) shall
have a character of decree from which an appeal ordinarily lies.    
22 Similar is the language employed in sub­section (5) of
Section   47,   which   provides   that   the   order   of   a   Charity
Commissioner   under   sub­section   (2)   shall   be   deemed   to   be   a
decree of the Court and an appeal therefrom shall lie to the High
Court.  Sub­section (6) of Section 41D also provides remedy of an
appeal to the High Court against the decision of the Court under
sub­section (5) as if such decision was from a decree from which
an   appeal   ordinarily   lies.     Section   41D   relates   to   suspension,
removal and dismissal of a trustee and against the order passed
by   the   Charity   Commissioner,   the   aggrieved   party   has   been
provided with remedy under sub­section (5) of Section 41D to
maintain an application to the Court.  The scheme of Section 41D,
so far as it relates to maintaining an application and providing

remedy of an appeal to the High Court, is similar to that of Section
72.  Section 41E of the Act refers to power to act for protection of
Charities and aggrieved person has been provided with a remedy
of maintaining an appeal to the High Court against the order of
the Court attaching the property of such person or detaining such
person in Civil Prison, treating order of the Court to be a decree
appealable to the High Court under Section 41E (6) of the Act.
Sub­section (5) of Section 41E provides for maintaining an appeal
to the District Court against an order of injunction or any other
order within 90 days from the date of communication of such
order.  The order of Charity Commissioner, subject to the order of
the Court or in appeal is provided finality in view of sub­section (7)
of Section 41E.   It is, thus, an appeal to the High Court under
Section 41E (6) from appellate decree of the ' Court '.  
23 In respect of the powers to act for protection of the
Charities, the Charity Commissioner is entrusted with the powers
to take action on consideration of report tendered by the Deputy or
Assistant Charity Commissioner or on an application presented by
atleast   two  persons  having interest   in the  Trust,  supported  by
affidavits.
24  The   following   hierarchical   structure,   as   regards
appeal, emerges from the provisions of Bombay Public Trusts Act.  
(i) The change in the entries recorded in the Register kept
under Section 17 is required to be reported within 90 days from
the date of occurrence of such change to the Deputy or Assistant
Charity Commissioner in charge of the Public Trusts Registration

Office where the Register is kept and such report shall be made in
the prescribed form {under Section 22(1) of the Act}.  
(ii)  The   decision   rendered   by   the   Deputy   or   Assistant
Charity Commissioner is appealable under Section 70 of the Act to
the Charity Commissioner.
(iii) An application is provided under Section 72(1) to the
Court within sixty days from the date of decision of the Charity
Commissioner under Sections 40, 41, 41C, 43(2)(a) and [c], 50A, 70
or 70A, etc.
(iv) An appeal to the High Court is provided under Section
72(4) against the decision of the Court under sub­section (2) of
Section 72, as if such decision was a decree from which an appeal
ordinarily lies.  
(a) Similarly,   in   the   matters   of   suspension,   removal   or
dismissal of a trustee, the Charity Commissioner is empowered to
take decision on an application of a Trust or any person interested
in the Trust or a report under Section 41B or suo motu and such a
Trustee may  be  suspended,  removed  or  dismissed, as provided
under Section 41D (1) of the Act.
(b) Aggrieved trustee is provided with remedy to maintain
an application within ninety days from the date of communication
of  the   order  of  suspension,  removal  or  dismissal  to  the  Court
under sub­section (5) of Section 41D.

( c) An appeal is provided under sub­section (2) to the High
Court   against   decision   of   the   Court   under   sub­section   (5)   of
Section 41D.  
(d) The   Charity  Commissioner  may,  by  an  order,   grant
temporary injunction or make such other order for the purpose of
staying and preventing the  wasting, damaging,  alienation,  sale,
removal or disposition of such property, on such terms as to the
duration   of   injunction,   keeping   an   account,   giving   securing
production of the property or otherwise as he thinks fit.
(e) After   hearing   the   trustee   or   person   concerned   and
holding such inquiry as he thinks fit, the Charity Commissioner
may confirm, discharge or vary or set aside the order of injunction
or pass any other appropriate order.
(f) Sub­section (4) of Section 41E provides that in case of
disobedience  or breach of any injunction, any of its terms or any
order passed under this section, the Charity Commissioner may
apply   to   the   Court,   which   may,   after   hearing   the   Charity
Commissioner and the party affected, order the property of such
person, guilty of such disobedience or breach to be attached and
may also order such person to be detained in jail for a term not
exceeding six months.
(g) Order of attaching property of a person or detaining such
person in civil prison is made appealable considering such order as
a decree to the High Court.

25 Neither Section 41D (6) nor 41E (6) nor Section 72(4)
make use of the word Second Appeal.  However, appeal to the High
Court is against an appellate order passed by the Court.  The word
“  appeal  ”  is   not   defined   under   the   Act   or   under   the   Code,
including   scope,     however,   it   has   been   interpreted   in   various
judgments.
26 It is, thus, clear that the proceedings under Section
41E (5) of the Act  of 1950 are  that  of an  appeal,   so  far as
challenge relates to the order of injunction or any other order is
concerned.  An appeal is provided under sub­section (6) of Section
41E in respect of order of the Court attaching property of such
person or detaining such person in Civil Prison.
27 In the matter of Tirupati Balaji Developers (P) Ltd.
and another Vs. State of Bihar & others, reported in (2004) 5
SCC 1, it is observed thus:
9 In a unified hierarchical judicial system
which   India   has   accepted   under   its
Constitution, vertically the Supreme Court is
placed over the High Courts.  The very fact that
the Constitution confers an appellate power on
the   Supreme   Court   over   the   High   Courts,
certain consequences naturally flow and follow.
Appeal   implies   in   its   natural   and   ordinary
meaning   the   removal   of   a   cause   from   any
inferior court or tribunal to a superior one for
the   purpose   of   testing   the   soundness   of
decision and proceedings of the inferior court
or   tribunal.     The   superior   forum   shall   have
jurisdiction to reverse, confirm, annul or modify
the   decree   or   order   of   the   forum   appealed
against and in the event of a remand the lower
forum   shall   have   to   rehear   the   matter   and

comply with such directions as may accompany
the order of remand.  The appellate jurisdiction
inherently   carries   with   it   a   power   to   issue
corrective   directions   binding   on   the   forum
below and failure on the part of the latter to
carry out such directions or show disrespect to
or to question the propriety of such directions
would – it is obvious – be destructive of the
hierarchical system in administration of justice.
The seekers of justice and the society would
lose faith in both.  
10 In   Shankar   Ramchandra   Abhyankar   v.
Krishnaji Dattatreya Bapat, this Court pointed
out   that   appeal   is   the   right   of   entering   the
superior   court   and   invoking   its   aid   and
interposition to redress the error of the court
below.   There are two important postulates of
constituting   the   appellate   jurisdiction:   (i)  the
existence of the relation of superior and inferior
court; and (ii) the power in the former to review
decisions   of   the   latter.     Such   jurisdiction   is
capable of being exercised in a variety of forms.
An appeal is a process of civil law origin and
removes a cause, entirely subjecting the facts
as well as the law, to a review and a retrial.  
28 In the matter of Hari Shankar  Versus Rao Girdhari
Lal Chowdhury, reported in AIR 1963 SC 698, the Supreme Court
has observed in paragraph no.7 of the judgment, as below:
“ 7 The distinction between an appeal and a
revision is a real one.  A right of appeal carries
with it a right of rehearing on law as well as
fact, unless the  statute  conferring  the  right
of  appeal   limits  the  rehearing   in  some  way
as, we find, has been done in second appeals
arising under the code of Civil Procedure.  The
power to hear a revision is generally given to a
superior court so that it may satisfy itself that a

particular case has been decided according to
law.   Under Section 115 of the Code of Civil
Procedure, the High Court's powers are limited
to see, whether in a case decided, there has
been an assumption of jurisdiction where none
existed, or a refusal of jurisdiction where it did,
or   there   has   been   material   irregularity   or
illegality   in   the   exercise   of   that   jurisdiction.
The right there is confined to jurisdiction and
jurisdiction alone.  In other Acts, the power is
not so limited, and the High Court is enabled to
call for the record of a case to satisfy itself that
the decision therein is according to law and to
pass such orders in relation to the case, as it
thinks fit. “  
29 In  the   matter   of  Shankar   Ramchandra   Abhyankar
Versus Krishnaji Dattatreya Bapat, reported in 1969 (2) SCC 74,
the Hon'ble Supreme Court, referred to the statement in Story on
Constitution (of Union States), Vol.2, Article 1761, as follows:
“  In   the   well   known   work   of   Story   on
Constitution (of United States), Vol. 2, Article
1761, it is stated that the essential criterion of
appellate   jurisdiction   is   that   it   revises   and
corrects   the   proceedings   in   a   cause   already
instituted and does not create that cause.  The
appellate   jurisdiction   may   be   exercised   in   a
variety of forms and, indeed, in any form in
which the Legislature may choose to prescribe.
According to Article 1762 the most usual modes
of   exercising   appellate   jurisdiction,   at   least
those   which   are   most   known   in   the   United
States, are by a writ of error, or by an appeal, or
by some process of removal of a suit from an
inferior tribunal.  An appeal is a process of civil
law   origin   and   removes   a   cause,   entirely
subjecting   the   fact   as   well   as   the   law,   to   a
review and a retrial.  A writ of error is a process
of common law origin, and it removes nothing

for   re­examination   but   the   law.     The   former
mode is usually adopted in cases of equity and
admiralty   jurisdiction;   the   latter,   in   suits   at
common law tried by a jury. “
30 In the matter of M/s Sri Raja Lakshmi Dyeing Works
and  others Vs  Rangaswamy  Chettiar,  reported in AIR 1980 SC
1253 (1), the Hon'ble Supreme Court has  observed  in paragraph
no.2 of the judgment, thus:
2 'Appeal' and 'revision' are expressions of
common   usage   in   Indian   statute   and   the
distinction between 'appellate jurisdiction' and
'revisional   jurisdiction'   is   well­known   though
not   well   defined.     Ordinarily,   appellate
jurisdiction involves a rehearing, as it were, on
law   as   well     as   fact   and   is   invoked   by   an
aggrieved   person.     Such   jurisdiction   may,
however, be limited in some way as, for instance
has been done in the case of second appeal
under the Code of Civil Procedure, and under
some   Rent   Acts   in   some   States.     Ordinarily
again, revisional jurisdiction is analogous to a
power of superintendence and may sometimes
be exercised even without its being invoked by a
party.   The extent of revisional jurisdiction is
defined   by   the   statute   conferring   such
jurisdiction.     The   conferment   of   revisional
jurisdiction   is   generally   for   the   purpose   of
keeping tribunals subordinate to the revising
tribunal within the bounds of their authority to
make them act according to law, according to
the procedure established by law and according
to well defined principles of justice.  Revisional
jurisdiction   as   ordinarily   understood   with
reference to our statutes is always included in
appellate jurisdiction but not vice versa.  These
are general observations.   The question of the
extent of appellate or revisional jurisdiction has
to be considered in each case with reference to
the language employed by the statute.  

31 The   judgments   of   the   Supreme   Court,   referred   to
above, by analogy, lead to irresistible conclusion that the superior
forum i.e. District Court, while exercising jurisdiction, has powers
to   reverse,   confirm,   annul   or   modify   the   order   of   the   forum
appealed against and in the event of remand, the lower forum
shall have to re­hear the matter and comply with such directions,
as may accompany  the order of remand.  The superior forum i.e.
District Court has power to issue corrective directions binding on
lower   forum.     The   District   Court,   dealing   with   an   application
under Section 72(1), does have right of hearing on law as well as
facts.  It answers the proposition that “an appeal is a process of
civil law origin and removes a cause entirely subjecting the facts
as well as the law, to a review and retrial”.  There can, thus, be a
little doubt that the District Court, exercising jurisdiction under
Section 72, does exercise powers and deal with the matter as an
appellate forum.   Thus, an appeal to the High Court against an
appellate order on an application presented to the District Court,
is an appeal, but has not been  labelled as Second Appeal.   
32 Applying  the   ratio   of   the   decision   delivered   by  the
Supreme Court in the matter of Ramchandra (supra), it shall have
to be construed that the Single Judge of the High Court, while
deciding the appeal from the order of the District Court, deals
with   the   matter   decided   by   the   District   Judge   in   exercise   of
appellate powers by a Court subject to superintendence of the
High Court.  Though the appeal filed under Section 72(4) of the
Bombay Public Trusts Act, 1950, is an appeal against a decision
on the application, exercising appellate powers, is not subjected to

restrictions and limitations imposed on the Second Appeal, as
prescribed under Section 100 of the Code of Civil Procedure and
such a conclusion needs to be drawn in observance of the law laid
down by the Supreme Court in the matter of James Joseph Vs.
State of Kerala, reported in (2010) 9 SCC 642.   
33 The   question,   that   arose   for   consideration   in   the
appeal presented by  James  Joseph  before the Supreme Court,
relates to scope of an appeal against appellate order under Section
12A of the Kerala Forest Act, 1961.  Under the scheme of the Act,
the Forest Settlement Officer is entrusted with the adjudicatory
functions to determine whether disputed lands form part of the
proposed or reserved forest.  An appeal against the order of Forest
Settlement Officer is provided to the District Judge and order of
the District Judge is appealable under Section 12A of the Act to
the High Court.  The appeal to the High Court under Section 12A
of   the   Kerala   Forest   Act   is   termed   as   Second   Appeal   in   the
judgment.  
34 In aforesaid matter of  James   Joseph  (supra), after
travelling one round up to the Supreme Court, the matter reached
High   Court   in   terms   of   the   order   of   remand   passed   by   the
Supreme Court to determine as to whether jurisdiction exercisable
under Section 12A of the Act is akin to Section 100 of the Code of
Civil Procedure.   When the matter was pending before the High
Court   on   remand,   the   appellant   (who   is   thirty­third   party
respondent   in  the  appeal  before  the  Supreme  Court),   filed  an
application praying that the High Court be pleased to formulate
substantial questions of law before proceeding with hearing of the

appeal.  It was contended that the appeal under Section 12A was
a Second Appeal and that the Second Appeal was available only if
the   case   involves   any   substantial   question   of   law   and   was
governed by the provisions of Section 100 of the Code of Civil
Procedure.  The High Court dismissed the application holding that
Section 12A of the Act did not provide for a “Second Appeal”, but
only provides “an appeal” against appellate order and, therefore,
the question of importing requirements of Section 100 of the Code
of Civil Procedure into such an appeal did not arise.   The High
Court proceeded to hold that the intention of the Legislature in
enacting Section 12A of the Act, granting right of appeal against
the order passed by the District Court under Section 11 of the Act,
was not limited to substantial questions of law and, therefore,
question of formulating any substantial questions of law, before
hearing   the   appeal,   did   not   arise.       The   aforesaid   order   was
challenged before the Supreme Court in an appeal by a Special
Leave.
35 Section   12A   of   the   Kerala   Forest   Act,   1961,   reads,
thus:
12­A.  Appeal to the High Court ­
(1) The Government or any person objecting
to any order of the District Court in an appeal
under Section 11 may, within a period of ninety
days from the date of that order, appeal against
such order to the High Court:
Provided that High Court may admit an
appeal   preferred   after   the   expiration   of   the
period of ninety days aforesaid if it is satisfied
that the appellant had sufficient cause for not

preferring the appeal within the said period.
(2) An appeal under sub­section (1) shall be
in the prescribed form and shall be verified in
the   prescribed   manner   and   shall   be
accompanied by a fee of one hundred rupees.
(3) On   receipt   of   an   appeal   under   subsection
(1), the High Court may, after giving the
parties   a   reasonable   opportunity   of   being
heard, either in person or by a representative:
(a) confirm or cancel the order of the District
Court appealed against; or
(b) set aside such order and remand the case
to  the   District   Court   for   decision   after   such
further enquiry as may be directed; or
(c) pass such other orders as it may think
fit.
(4) Every order passed in appeal under this
section shall be final.
36 It is observed in paragraph 10 of the judgment in
James Joseph (supra), that Section 12A does not use the words
“Second Appeal”.  It provides that an appeal would lie against an
appellate order under Section 11 to the High Court.  The Supreme
Court, in paragraph no.19, formulated principles with reference to
an appeal.  Those are:
“ (i) An appeal is a proceeding where an higher
forum reconsiders the decision of a lower forum,
on questions of fact and questions of law, with
jurisdiction   to   confirm,   reverse,   modify   the
decision or remand the matter to the lower forum
for fresh decision in terms of its directions.
(ii) The appellate jurisdiction can be limited or

regulated by the legislature and its extent has to
be   decided   with   reference   to   the   language
employed by the statute conferring the appellate
jurisdiction.
(iii) The width of jurisdiction or the limitations
on jurisdiction with reference to an appeal, does
not depend on whether the appeal is a first appeal
or   a   second   appeal,   but   depends   upon   the
limitations, if any, placed by the statute conferring
the right of appeal.
(iv) If the legislature's intention is to limit the
jurisdiction   in  an  appeal,   it   may  indicate   such
limits   in   the   provision   providing   for   appeal.
Alternatively,   it   may   expressly   or   impliedly
incorporate   the   provisions   of   Section   100of   the
Code, into the provision for appeals.
(v) Generally   statutory   provisions   for   appeals
against  original orders or decrees (that is, first
appeals)   will   not   have   any   limitations   and
therefore   rehearing   on   both   law   and   fact   is
contemplated;   and   statutory   provisions   for
appeals against appellate orders (that is, second
appeal) will b restricted to questions of law.  But
such restriction is not  on account of any legal
principle that all second appeals should always be
with   reference   to   questions   of   law,   but   would
depend upon the wording of the statute placing
the restrictions upon the scope of second appeal.
(vi) Where   the   statute   does   not   place   any
limitations or restrictions in regard to the scope
and width of the appeal, it shall be construed that
the appeal provides a right of rehearing on law as
well   as   facts.     If   the   legislature   enacts   a   selfcontained
provision for second appeals, without
any   limitation   upon   the   scope   of   the   second
appeal and excludes the possibility of reading the
provision of Section 100 of the Code, into such
provision, then, it will not be permissible to read
the limitations of Section 100 of the Code into the
special provision. ”

37 The   Hon'ble   Supreme   Court,   in  James   Joseph
(supra), has referred to earlier judgment in the matter of Chunilal
Vithaldas Vs. Mohanlal Motilal Patel, reported in AIR 1967 SC
226, wherein it has been held that Second Appeal under Section
28 of the Saurashtra Rent Control Act, 1951, can be entertained
by the High Court within the limits prescribed by Section 100 of
the Code of Civil Procedure and it is not open to the parties to
demand re­appraisal of the evidence by the High Court.  The Apex
Court held that the scheme of Saurastra Act did not confer any
special jurisdiction, but it only intends to provide for a Second
Appeal in terms of Section 100 of the Code of Civil Procedure.  The
Apex Court held that the Saurashtra Act merely declared that a
Second Appeal will lie to the High Court against decrees or orders
passed by the Courts exercising jurisdiction under Section 27, but
thereby the essential character of a Second Appeal under the Code
was   not   altered   and   the   procedure   in   the   trial   of   the   suit,
applications and proceedings under the Act, was the procedure
prescribed by the Code of Civil Procedure and, therefore, it had to
be held that the Legislature has intended to confer a right of
Second Appeal subject to restrictions imposed by Section 100 of
the Code.  Section 28 (1) of the Saurashtra Rent Control Act, 1951,
provides:
“ 28 (1)  Notwithstanding anything contained in
any law, but subject to the provisions of the
Provincial Small Cause Court Act, as adapted
and   applied   to   the   State   of   Saurashtra,   an
appeal shall lie from a decree or order made by
a Civil Judge or a Munsif exercising jurisdiction
under Section 27 to the District Court and a

second appeal to the High Court. ”
38 It was held by the Supreme Court that the expression
“Second Appeal” in Section 28(1) of the Act means an appeal from
appellate decree and it is subjected to the limitations imposed by
Section 100 of the Code of Civil Procedure.  
39 In the instant matter, as has been pointed out, subsection
(4) of Section 72 provides for an appeal to the High Court
against the decision of the Court under sub­section (2), as if, such
decision was a decree from which an appeal ordinarily lies.  Order,
on an application under Section 72, is a decree for limited purpose
of maintaining an appeal to the High Court.  Decree is defined in
sub­section (2) of Section 2 of the Code of Civil Procedure:
“ 2(2) “  decree ” means the formal expression
of an adjudication which, so far as regards the
Court   expressing   it,   conclusively   determines
the rights of the parties with regard to all or
any of the matters in controversy in the suit
and may be either preliminary or final.  It shall
be deemed to include the rejection of a plaint
and the determination of any question within
section 144, but shall not include­­
(a) any adjudication from which an appeal
lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation:­   A   decree   is   preliminary
when   further   proceedings   have   to   be   taken
before the suit can be completely disposed of.
It is final when such adjudication completely
disposes   of   the   suit.     It   may   be   partly
preliminary and partly final;

40 The expression provided in the Section itself includes
rejection of a plaint and determination of any question within
Section 144.  But it does not include any adjudication from which
an appeal lies as an appeal from order or any order of dismissal
for default.
41 In the instant matter, determination by the Court i.e.
District   Court,   as   provided   under   the   Act   of   1950,   is   on
consideration of application under Section 72 of the Act and has
been   accorded   the   status   of   decree   for   the   purposes   of
maintaining an appeal to the High Court under sub­section (4).
The application, within contemplation of Section 72, cannot be
equated with the suit for the purposes of holding that the order
passed on an application under Section 72 in the stricto sensu is a
decree   within   the   meaning   of   expression   of   sub­section   (2)   of
Section 72.  Appeal provided to the High Court under sub­section
(4) of Section 72, though is an appeal against an order in exercise
of appellate powers, cannot be equated with the Second Appeal
subject to the restrictions imposed by Section 100 of the Code of
Civil Procedure.  The principles laid down by the Supreme Court,
in   paragraph   no.19   of   the   judgment   in   the   matter   of  James
Joseph  (supra), squarely apply to the class of appeals provided
under sub­section (4) of Section 72 of the Act. 
Section 72 of the Maharashtra
Public Trusts Act, provides thus:
72. Application   from
Charity Commissioner's
decision   under   section
Section 100 of the Code of Civil
Procedure provides thus:
100. Second appeal:­ 
(1) Save as otherwise expressly

40, 41 [41C and 43(2)(a)
and   (c)],   [50A,   70   or
70A], etc.
(1) …..............................
(2) ….............................
(3) …............................
(4)     An appeal shall lie
to   the   High   Court,
against   the   decision   of
the   court   under   subsection
  (2)   as   if   such
decision   was   a   decree
from   which   an   appeal
ordinarily lies.
{emphasis supplied)
provided   in   the   body   of   this
Code or by any other law for the
time  being in  force,  an  appeal
shall lie to the High Court from
every decree passed in appeal by
any   Court   subordinate   to   the
High Court, if the High Court is
satisfied that the case involves a
substantial question of law.
(2) An appeal may lie under this
section from an appellate decree
passed ex parte.
(3)   In   an   appeal   under   this
section,   the   memorandum   of
appeal shall precisely state the
substantial   question   of   law
involved in the appeal.
(4)   Where   the   High   Court   is
satisfied   that   a   substantial
question   of   law   is   involved   in
any case, it shall formulate that
question.
(5) The appeal shall be heard on
the question so formulated and
the   respondent   shall,   at   the
hearing   of   the   appeal,   be
allowed to argue that the case
does not involve such question:
     Provided that nothing in this
sub­section shall be deemed to
take away or abridge the power
of the Court to hear, for reasons
to   be   recorded,   the   appeal   on
any   other   substantial   question
of law, not formulated by it, if it
is   satisfied   that   the   case
involves such question.

Sub­section (4) of Section 72 of
the Act of 1950 is intended to be
a self­contained Code.   Insofar
as appeals under the Act to the
High Court, deliberate deviation
from   the   provisions   of   Section
100 of the Code.
Sub­sections (1), (2) and (3) of
Section   100   CPC   would
specifically   provide   that   a
Second Appeal would lie where
substantial questions of law are
involved.
Where   the   Act  wants  to  adopt
provisions of the Civil Procedure
Code, it expressly provides so.
           For example, Section 76
refers to the applicability of the
Code to the proceedings before
the   Court   (i.e.   District   Court)
under the Act of 1950, whereas,
so far as proceedings for holding
inquiries under the Act of 1950
is concerned, vesting of powers
under   the   Code   of   Civil
Procedure   in   trying   the   suit
relates  to  (a)  proof  of  facts  by
affidavit;   (b)   summoning   and
enforcing   presence   of   any
person   and   examining   him   on
oath; (c) ordering of   discovery
and   inspection   and   compelling
production   of   documents;   (d)
issuing of commissions;
                                (Section 73)
   
But when it comes to  appeal to
High   Court   under   sub­section
72(4), the Act deliberately makes
a   departure   and   does   not
provide   for   any   limitations   on
the  powers, as  provided under
Section 100 of the Code.  
While sub­section (3) of Section
100   would   require   that   the
memorandum   of   appeal   shall
precisely   state   the   substantial
questions of law involved in the
appeal.
   

42 In view of the distinctive features specified above, it is
clear   that   the   Legislature   did   not   intend   to   limit   appellate
jurisdiction   provided under sub­section (4) of Section 72.   Had
there   been   any   such   intention,   it   would   have     expressly   or
impliedly incorporated the provisions of Section 100 of the Code of
Civil Procedure into the relevant provision of the Act.  
43  Focus on the provisions of Section 72 of the BPT Act
would reveal another facet which may have to be  looked at.  While
appeals   are   provided   before   the   Charity   Commissioner   against
certain orders having regard to Sections 70 and 70A, the decisions
in such appeals of Charity Commissioner have been subjected to
application and not to further appeal under its wisdom by the
Legislature.   The Legislature appears to have specifically omitted
to provide for appeals to   the Court keeping in view treatment to
be given to the decision of the Court which has been   accorded by
Legislature the   status of a decree from which appeal ordinarily
lies.    The Legislature  has also empowered the Court to exercise
powers of court of appeal. The decisions/orders passed in exercise
of such powers are regarded to be decree, from which   appeal
ordinarily lies.  Appeal ordinarily lies on facts and on law, as can
be   gathered   from   decisions   of   Supreme   Court   referred   to
hereinbefore.  
44 Had the legislative intent, in this respect, been  about
giving of treatment to the decisions of the court under Section 72
of   decrees   to   be   subjected   to   a   remedy   with   restrictions   and
limitations. it would not have been necessary to refer to in subsection
(4) of Section 72, that the decisions would be decrees, from

which appeals would ordinarily lie.  Appeals lie on facts and on law
generally   unless   restrictions   and   limitations   are   placed   by
statutory provision.
45 The legislative intent   is discernible   that decisions
under Section 72(2) of the BPT Act were not intended to be decrees
subjected  to  appeals  with  restrictions  and  limitations.      In its
wisdom, the Legislature appears to have thought it appropriate
that in the proceedings, pursuant to Section 72, the Court   may
exercise   powers   of   court   of   appeal,   however,   the   decisions
thereunder were not to be treated as  appellate decrees amenable
to   challenge   in   appeals   with   restrictions   and   limitations.     The
empowerment of the court with the powers of appellate Court and
treatment to the proceedings and the decisions thereon appear to
have been segregated in the process and as such, it does not
appear to be  casus omissus.      
46 The principle laid down by the Supreme Court in the
matter of James Joseph (supra), where the statute does not place
any limitations or restrictions in regard to the scope and width of
the appeal, it shall be construed that the appeal provides a right
of rehearing on law as well as facts,  applies on all fours to the
class of appeals provided under sub­section (4) of Section 72 of
the Act of 1950.
47 The expression “First Appeal” or “Second Appeal” does
not make any difference since there are no limitations imposed on
the powers exercisable by the High Court by the Legislature.  The
limitations   provided   under   Section   100   of   the   Code   of   Civil

Procedure cannot be read and pressed into service while dealing
with an appeal to the High Court provided under Section 72(4) of
the Act of 1950.
48 There   are   certain   enactments   wherein   appeal
provision   incorporates provisions of Section 100 of the Code of
Civil   Procedure   by   reference.       Section   18(1)   of   the   Telecom
Regulatory Authority of India Act, 1997, is an example:
18 Appeal to Supreme Court:­ 
(1) Notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908) or in
any other law, an appeal shall lie against any
order, not being an interlocutory order, of the
Appellate Tribunal to the Supreme Court on one
or more of the grounds specified in Section 100
of that Code.  
49 On   the   other   hand,   there   are   certain   statutes
containing  provisions in regard to the appeals to High Court which
specify   limitations   on   the   extent   and   scope   of   the   appellate
jurisdiction providing therein, that the appeal shall lie only if it
involves substantial question of law or questions of law without
reference to Section 100 of the Code of Civil Procedure.   
50 By way of illustration, we may refer to Section 260­A
of the Income Tax Act, 1961:
260­A Appeal to High Court:­ 
(1) An appeal shall lie to the High Court from

every order passed in appeal by the Appellate
Tribunal, if the High Court is satisfied that the
case involves a substantial question of law.
(2) The   Chief   Commissioner   or   the
Commissioner or an assessee aggrieved by any
order passed by the Appellate Tribunal may file
an appeal to the High Court and such appeal
under this sub­section shall be­­
(a) filed within one hundred and twenty days
from   the   date   on   which   the   order   appealed
against is received by the assessee or the Chief
Commissioner or Commissioner;
(b) omitted
(c) in the form of a memorandum of appeal
precisely   stating   therein   the   substantial
question of law involved.
(3) Where the High Court is satisfied that a
substantial question of law is involved in any
case, it shall formulate that question.
(4) The appeal shall be heard only on the
question  so   formulated,  and  the   respondents
shall, at the hearing of the appeal, be allowed to
argue   that   the   case   does   not   involve   such
question:
Provided that nothing in this sub­section
shall be deemed to take away or abridge the
power of the court to hear, for reasons to be
recorded, the appeal on any other substantial
question of  law  not  formulated  by  it,  if it  is
satisfied that the case involves such question.
(5) The High Court shall decide the question
of law so formulated and deliver such judgment
thereon containing the grounds on which such
decision is founded and may award such cost
as it deems fit.

(6) The High Court may determine any issue
which­­
(a) has not been determined by the Appellate
Tribunal; or
(b) has   been   wrongly   determined   by   the
Appellate Tribunal, by reason of a decision on
such question of law as is referred to in subsection
(1).
(7) Save as otherwise provided in this Act,
the provisions of the Code of Civil Procedure,
1908 (5 of 1908), relating to appeals to the High
Court shall, as far as may be, apply in the case
of appeals under this section.”   
51 Similar   is   the   provision   viz.   Section   15­Z   of   the
Securities and Exchange Board of India Act, 1992, which provides
thus:
15­Z  Appeal  to  Supreme   Court:­  Any   person
aggrieved   by   any   decision   or   order   of   the
Securities Appellate Tribunal may file an appeal
to the Supreme Court within sixty days from
the date of communication of the decision or
order   of   the   Securities   Appellate   Tribunal   to
him on any question of law arising out of such
order.
52 The Employee's Compensation Act, 1923, provides for
an   appeal   to   the   High   Court   against   the   order   of   the
Commissioner, however, the First Appeal is  required to be heard
only   on   substantial   questions   of   law   involved   in   the   appeal.
Section 30 of the Employee's Compensation Act, 1923, provides
thus:

30 Appeals ­  (1) An appeal shall lie to the High
Court   from   the   following   orders   of   a
Commissioner, namely ­ 
(a) an   order   awarding   as   compensation   a
lump sum whether by way of redemption of a
half­monthly   payment   or   otherwise   or
disallowing a claim in full or in part for a lump
sum;
[(aa)   an   order   awarding   interest   or   penalty
under section 4­A;]
(b) an order refusing to allow redemption of a
half­monthly payment;
(c) an order providing for the distribution of
compensation   among   the   dependents   of   a
deceased [employee], or disallowing any claim of
a person alleging himself to be such dependent;
(d) an order allowing or disallowing any claim
for   the   amount   of   an   indemnity   under   the
provisions of sub­section (2) of section 12; or
(e) an   order   refusing   to   register   a
memorandum of agreement or registering the
same   or   providing   for   the   registration   of   the
same subject to conditions:
Provided that no appeal shall lie against
any order unless a substantial question of law
is involved in the appeal, and in the case of an
order other than an order such as is referred to
in clause (b), unless the amount in dispute in
the   appeal   is   not   less   than   three   hundred
rupees;
Provided further that no appeal shall lie
in any case in which the parties have agreed to
abide by the decision of the Commissioner, or in
which   the   order   of   the   Commissioner   gives
effect to an agreement come to by the parties;

[Provided   further   that   no  appeal  by  an
employer under clause (a) shall lie unless the
memorandum of appeal is accompanied by a
certificate   by   the   Commissioner   to   the   effect
that the appellant has deposited with him the
amount   payable   under   the   order   appealed
against.]
(2) The   period   of   limitation   for   an   appeal
under this section shall be sixty days.
(3) The   provisions   of   section   5   of   [the
Limitation   Act,   1963   (36   of   1963)],   shall   be
applicable to appeals under this section.
53 So far as provision of Section 72(4) of the Bombay
Public Trusts Act is concerned, there is no such specification that
the appeal from appellate order of the District Court, presented to
the High Court, shall be heard only if it  involves any substantial
question of law.  Neither Section 72(4) makes  reference to Section
100   of   the   Code   of   Civil   Procedure,   nor   specifically   puts   any
restriction   or   limitation   on   the   powers   of   the   High   Court   in
entertaining the appeal.  Since the provision itself does not limit
scope of the appeal nor puts any limitations on the Court dealing
with the appeal, it cannot be construed that appeal to the High
Court,   as   provided   under   Section   72(4)   is   subject   to   any
limitations as prescribed under Section 100 of the Code of Civil
Procedure.
54 In view of the reasons recorded above, our answer to
the questions formulated for consideration, in this Reference, is:
(1) Appeal provided under sub­section

72(4)   of   the   Maharashtra   Public   Trusts   Act,
1950, is not subjected to the restrictions and
limitations   imposed   under   the   provisions   of
Section 100 of the Code of Civil Procedure and
the scope of appeal extends to reconsideration
of decision of the lower forum on questions of
fact and questions of law with a jurisdiction to
reverse,   modify   the   decision   or   remand   the
matter to the lower forum for fresh decision in
terms   of   its   directions.     Appeal   to   the   High
Court under sub­section (4) of Section 72 of the
Act  of   1950  is  an  appeal  against   the   decree
under   sub­section   (2)   of   Section   72   [The
decision   of   Court   under   section   72(2)   is   a
decree for limited purposes of maintaining an
appeal to the High Court.]
(2) Consequently, there is no obligation for
the appellant to state substantial questions of
law involved in the memorandum of appeal and
High   Court   is   also   not   bound   to   formulate
substantial questions of law while admitting the
appeal or before posting the appeal for hearing.
RAVINDRA V. GHUGE    SUNIL P. DESHMUKH        R.M.BORDE
JUDGE   JUDGE                    JUDGE

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