CHANDRAKANT HARMANDAS Vs. CHARITY COMMISSIONER OF GUJARAT

JUDGEMENT

(1.) A short question relating to the applicability of sec. 12 of the Limitation Act arises in this Letters Patent Appeal. An application was made to the District Court Kaira at Nadiad under sec. 72 of the Bombay Public Trusts Act 1950 for setting aside a decision given by the Charity Commissioner in two appeals Nos. 118 of 1954 and 126 of 1954 holding that certain properties belonged to a public trust. One of the contentions raised before the learned Extra Assistant Judge Nadiad who heard the application was that the application was barred by limitation inasmuch as the decision of the Charity Commissioner was given on 29th October 1954 while the application was made on 11th January 1955 more than sixty days from the date of the decision of the Charity Commissioner. Sec. 72 of the Act requires that an application to set aside the decision of the Charity Commissioner must be made within sixty days from the date of the decision. The application was obviously made after the expiration of sixty days from the date of the decision of the Charity Commissioner and was therefore prima facie barred by limitation. But it was contended on behalf of the applicants that after the decision was given by the Charity Commissioner on 29th October 1954 they had applied for a certified copy of the decision on 2nd December 1954 and a certified copy of the decision was received by them on 29th December 1954 and that the time taken up in obtaining the certified copy of the decision was liable to be excluded in computing the period of limitation prescribed by sec. 72 of the Act. It was indisputable that if the time requisite for obtaining the certified copy of the decision was excluded the application would be within time. The learned Extra Assistant Judge following the decision of the Bombay High Court in D. R. Pradhan v. Bombay State Federation of Gaushala and Panjarapoles 58 Bom. L. R. 894 accepted the contention urged on behalf of the applicants and held that the period between 2nd December 1954 and 29th December 1954 which was spent in obtaining the certified copy of the decision was liable to be excluded in computing the period of limitation under sec. 12(2) of the Limitation Act and that the application was therefore within time. On the merits also the learned Extra Assistant Judge upheld the contentions of the applicants and allowed the application setting aside the decision of the Charity Commissioner. The Charity Commissioner thereupon preferred an appeal in this Court. The appeal was heard by Raju J. who found himself unable to agree with the view taken by the Division Bench of the Bombay High Court in D.R. Pradhans Case and held that sec. 12(2) of the Limitation Act did not apply to an application under sec. 72 of the Bombay Public Trusts Act 1950 and that the applicants were therefore not entitled to exclusion of the time taken up in obtaining the certified copy of the decision of the Charity Commissioner. The learned Judge accordingly allowed the appeal and set aside the order passed by the learned Extra Assistant Judge. Hence the present appeal under Clause 15 of the Letters Patent.

(2.) Now we may point out at the outset that the very point which is before us for decision in this appeal came up for decision before the Bombay High Court in D. R. Pradhans Case and in that case the Division Bench of the Bombay High Court consisting of Chagla C.J. as he then was and Dixit 3. took the view that section 72 of the Bombay Public Trusts Act 1950 provided for an application made to the Court under that section a period of limitation different from the period prescribed therefor in the First Schedule to the Limitation Act and section 29(2) of the Limitation Act was therefore attracted and it made the provisions of section 12 (2) of the Limitation Act applicable to such an application and the time taken for obtaining a certified copy of the order of the Charity Commissioner was therefore liable to be excluded under section 12(2) in computing the period of limitation prescribed by section 72 for such an application. This decision being a decision given by a Division Bench of the Bombay High Court prior to the bifurcation of the State of Bombay is binding upon us in view of the decision of the Special Full Bench of this Court in State of Gujarat v. Gordhandas (1962) 3 G.L.R. 269. Having regard to the binding authority of this decision it would be obligatory on us to hold that in computing the period of limitation for an application under section 72 the time taken up in obtaining a certified copy of the order of the Charity Commissioner must be excluded under section 12(2) of the Limitation Act and if that be so the applicants must obviously succeed in this Letters Patent Appeal. But contended Mr. A. D. Desai learned Assistant Government Pleader appearing on behalf of the Charity Commissioner this decision should not be followed by us and that in any event we should refer the matter to a larger Bench for a proper determination of the point involved in this case. And the argument which he advanced in support of this submission was a two-fold one.

(3.) The first argument which he urged was that there was a conflict between this decision of the Bombay High Court and a subsequent decision given by this Court in Shantilal v. Fulchand (1962) 3 G.L.R. 117 and that we should either follow the decision of this Court in preference to the decision of the Bombay High Court or at any rate refer the matter to a larger Bench. This argument involves an examination of the decision of this Court above referred to. In this case an application was made to the District Judge Broach under section 72 of the Bombay Public Trusts Act 1950 against the decision of the Charity Commissioner and the question was whether it was within time. Now admittedly the application was beyond time unless the provisions of either section 4 or section 12(2) of the Limitation Act could be invoked on behalf of the applicants. If either of these two sections applied the application would be within time. The learned Judges who decided this case therefore posed before them the question whether section 4 or section 12(2) of the Limitation Act applied to an application under section 72 of the Bombay Public Trusts Act 1950 The learned Judges took the view that section 4 of the Limitation Act applied to an application under section 72 and they therefore did not consider it necessary to examine the second part of the question as regards the applicability of section 12(2) of the Limitation Act which was the question before the Bombay High Court. The learned Judges relied on section 29(2) of the Limitation Act and observed that the provisions of that section made it abundantly clear that the provisions contained in section 4 shall apply to the extent to which they are not expressly excluded by any special or local law. The learned Judges then proceeded to examine whether there was any express exclusion of section 4 in any provision contained in the Bombay Public Trusts Act 1950 The only provision of the Bombay public Trusts Act 1950 which was relied on on behalf of the Charity Commissioner as excluding the applicability of section 4 to an application under section 72 was section 75. The learned Judges however observed that all that section 75 provided was that in computing the period of appeal under Chapter XI the provisions inter alia of section 4 shall apply to the filing of such appeals and that it did not exclude the applicability of section 4 to applications under section 72. The learned Judges took the view that there was nothing in section 75 which dealt with computation of the period of limitation for an application under section 72 and which expressly excluded the provisions of section 29(2) and in this connection they made the following observations which were strongly relied on by Mr. A.D. Desai on behalf of the Charity Commissioner namely:-