CHARITY COMMISSIONER OF BOMBAY Vs. CHANDRAKANT HARMANDAS

JUDGEMENT

(1.) This is a first Appeal against the order of the learned Extra Assistant Judge at Nadiad reversing the decision of the Charity Commissioner who held that the property in question was a public trust. The learned Extra Assistant Judge came to a contrary conclusion.

(2.) A preliminary point has been raised by the learned Assistant Government Pleader on behalf of the State. His contention is that the Charity Commissioner passed the order on 29th October 1954 while the application under section 72 of the Bombay Public Trusts Act 1950 was made to the District Court on 11th January 1955. He contends that an application under section 72 of the Bombay Public Trusts Act should be made within 60 days as provided in sec. 72 of the said Act and hence the District Court was not correct in considering the application and deciding it after the period of limitation. He also contends that secs. 5 and 12 of the Indian Limitation Act do not apply to an application under section 72 of the Bombay Public Trusts Act. As decided by me in Shantilal Hemchand v. Mulchand Dalichand 3 Guj. Law Reporter 117section 12 of the Limitation Act can be applied to an application provided the wording of section 12 of the Limitation Act is applicable. If we turn to section 12 of the Limitation Act we find that it applies to two types of applications namely application for leave to appeal and application for a review of a judgment. It does not apply to an application under section 72 of the Bombay Public Trusts Act It is true that in D. R. Pradhan v. Bombay State Federation etc. 58 Bom. L.R. 895 an application under section 72 of the Bombay Public Trusts Act has been treated as an appeal. With great respect I beg to differ from the view taken by the learned Judges of the Bombay High Court. The Legislature knew the difference between appeal and `application. The word appeal is used in secs. 70 and 71 of the Bombay Public Trusts Act but in the first part of sec. 72 of the said Act the word appeal is not used but the word application is used. It would not be proper in my opinion to distort the meaning of the words used by the Legislature by holding that an application includes an appeal The Courts must take the words as used by the Legislature and should not try to distort them. When in one part of an Act or in one section two different words are used by the Legislature it would not be correct for Courts to say that there is no difference between two different words. Courts must scrupulously carry out the intention of the Legislature as expressed in the words used by it and should not try to get round the intention of the Legislature as expressed in the Statute. The word application has been deliberately used because the Court has power of taking evidence. The word application has been used in section 72(1) of the Bombay Public Trusts Act because it is to an entirely different authority quite independent of and having no relation to the Charity Commissioner. That is why in section 72(4) of the said Act the word appeal is used. An application under sec. 72(1) is not an appeal because there is no power of remand. In sub-sec. (4) of sec. 72 of the Bombay Public Trusts Act itself the word appeal is used. It is therefore difficult to hold that the Legislature did not know the distinction between an application and an appeal. With great respect therefore I beg to differ from the view taken by the learned Judges of the Bombay High Court and I hold that sec. 12 of the Indian Limitation Act does not apply to an application under sec. 72 of the Bombay Public Trusts Act. In the present case the application was therefore made beyond time and should not have been entertained by the District Court.

(3.) The appeal is allowed and the order of the learned Extra Assistant Judge Nadiad holding that the property is private property is set aside. No order as to costs.