Anil L. Pansare, J.

1. Faced with two conflicting views, the learned Single Judge of this Court vide order dated 9-8-2021, referred the following question for authoritative pronouncement.

                   Whether the District Court while exercising the power under Section 72(2) of Maharashtra Public Trust Act has power to remand the proceedings ?

2. In the case of Smt. Mamta w/o Vijay Vaidya and others Vs. Smt. Kusumtai Baburao Zade and others in Writ Petition No. 808/2019, the learned Single Judge of this Court (Nagpur Bench) held that the District Court, while exercising powers under Section 72 of the Maharashtra Public Trusts Act, 1950 (for short ‘the Act of 1950’) is empowered to remand the matter back whereas in Shaikh Abdul Razak Yaseen Patel and others Vs. Sayyad Murad Syed Irfan Ali (deceased), through his L.Rs. Smt. Sharifabai w/o Murad Sayed and others in Second Appeal No. 477/2012 (Aurangabad Bench), contrary view is taken viz. power to remand matter back is not envisaged under the said provision.

3. As such, the argument before the learned Single Judge was that the issue involved has been answered by Full Bench of this Court in the case of Prabhakar Sambhu Chaudhary Vs. Laxman Baban Mali and others [2016 (3) Mh.L.J. 202]. However, the learned Single Judge found that the Full Bench delve upon Section 72(4) of the Act of 1950 and not Section 72(2) of the said Act.

4. We have read the judgment. The following questions were referred to the Full Bench.

                   “(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.”

5. Section 72 (since deleted), reads as under :-

                   “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 of 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.

                   [(1A) 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 or the 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 if 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 orders as to costs as it thinks proper in the circumstances.

                   (3) Pending the disposal of an application under sub-section (2) all proceedings for surcharge shall be stayed if the person aggrieved makes out a prima facie case for a stay order.

                   (4) An appeal shall be 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.”

6. The Full Bench held that the appeal under Section 72(4) is not a second appeal and is not subjected to the limitation of Section 100 of the Code of Civil Procedure, 1908 (for short ‘the Code’). Accordingly and for the reasons stated in the judgment, the Full Bench answered the questions in following terms.

                   “(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 questions of law while admitting the appeal or before posting the appeal for hearing.”

In view of above findings and having gone through the entire judgment, the learned Single Judge opined that the scope of provision under Section 72(4) was the core issue and not under Section 72(2) of the Act. Thereupon and noting two views on the subject matter, the Single Judge referred the question noted earlier to the Larger Bench.

7. Accordingly, we have heard Mr. S. N. Bhattad, learned counsel for the appellants and Mr. A. S. Jaiswal, learned Senior Counsel for respondent nos. 1 to 7 and 9, who are respective parties in Second Appeal No. 184/2017, which we will treat as lead matter and refer to its facts to the extent necessary.

8. The controversy pertains to the management and membership of the Trust in question, which has been the subject matter of continuous proceedings since 1997. Various Change Reports were filed from time to time before the competent authorities. In particular, Change Report Enquiry No. 19/2004 came to be decided by the Assistant Charity Commissioner, Chandrapur, whereby nine persons, including the appellants, were declared as valid members of the Trust. Subsequently, certain rival parties preferred Revision Application Nos. 12/2013, 18/2013 and 02/2014 before the Joint Charity Commissioner, Nagpur Division, challenging the said declaration. Meanwhile, pursuant to an order dated 3-8-2010 passed under Section 47 of the Act of 1950, elections were conducted on 2-1-2011 under the supervision of the Assistant Charity Commissioner, and a Change Report in that regard is pending adjudication. The said elections and the functioning of the elected body have also been the subject matter of proceedings before the High Court in Writ Petition No. 2237/2011, wherein the Court permitted the elected body to continue to manage the affairs of the Trust. It is further an admitted position that several original members have since expired and new members have been inducted, and subsequent developments have materially altered the factual matrix. It is alleged that despite these intervening events, the Joint Charity Commissioner, by judgment dated 20-5-2015, allowed the revision applications and set aside the findings recorded in Change Report No. 19/2004, without adequately considering the subsequent developments and the pendency of related proceedings. The District Judge-2, Warora, by judgment dated 27-1-2017, remanded the matter permitting additional evidence. Being aggrieved, the appellants have approached this Court.

9. Mr. Bhattad, learned counsel for the appellants submits that the Court under sub-section (2) of Section 72 of the Act of 1950 can either confirm, revoke or modify the decision of the Charity Commissioner taken under Section 40, 41, 41C and 43(2)(a) and (c), 50A, 70 or 70A or the questions referred to in sub-section (1). The Court, however, cannot remand the matter back to the Charity Commissioner.

10. In support of his submissions, Mr. Bhattad relied upon the judgment rendered by the Single Judge in the case of Shaikh Abdul Razak Yaseen Patel (supra). One of the issues was the scope and powers of the District Court under sub-section (2) of Section 72 of the Act of 1950. Learned Single Judge considered various pronouncements as also the provisions of the Act of 1950 and the Code and held thus :-

                   “29. In light of the discussion as made above, I am of the view, that the language of sub-section (2) of Section 72 of the Bombay Public Trust Act does not confer a power of remand upon the District Court and I choose to follow the judgments in the cases of Vasantrao Mane and Gaffar Sattar Khan Pathan (supra), in light of which the impugned order dated 16.01.2012, passed by the District Judge-7, Ahmednagar, in Trust Application No. 3/2003 is set aside. The District Judge-7 is further directed, to decide the matter on merits after calling for the record from the concerned authorities.” Thus the Single Judge took a view that Section 72(2) does not confer power of remand.

11. As against, contrary view is taken in the case of Mamta w/o Vijay Vaidya (supra). The Court examined whether the District Court, while exercising jurisdiction under subsection (2) of Section 72 read with other provisions of the Act of 1950 as also the provisions of the Code, possesses authority to remand the case back to the authorities below for fresh decision. Learned Single Judge referred to the judgment of the Full Bench in Prabhakar Sambhu Chaudhary case (supra) and held that the Full Bench, though delved upon various provisions to consider the scope of sub-section (4) of Section 72 of the Act of 1950, its conclusion is based on examining the relevant provisions which includes sub-section (2) of Section 72 and the basis of inference is binding on the Court.

12. Mr. Jaiswal, learned Senior Counsel, in support of view taken by learned Single Judge in the case of Mamta w/o Vijay Vaidya (supra), has referred to the judgment of Hon’ble Supreme Court in the case of Secunderabad Club and others s Vs. CIT-V and others [(2024) 18 SCC 310] to contend that the principles underlining a decision is binding. The judgment primarily addresses the question of whether interest earned by the clubs on surplus funds invested in fixed deposits with banks is exempt from income tax under the doctrine of mutuality. In doing so, the Supreme Court also dealt with law of precedent in following terms.

                   “70. What is binding, therefore, is the principle underlying a decision which must be discerned in the context of the question(s) involved in that case from which the decision takes its colour. In a subsequent case, a decision cannot be relied upon in support of a proposition that it did not decide. Therefore, the context or the question, while considering which, a judgment has been rendered assumes significance.

                   71. As against the ratio decidendi of a judgment, an obiter dictum is an observation by a court on a legal question which may not be necessary for the decision pronounced by the court. However, the obiter dictum of the Supreme Court is binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case. Although the obiter dictum of the Supreme Court is binding on all courts, it has only persuasive authority as far as the Supreme Court itself is concerned.”

Thus, the Supreme Court held that the principle underlining a decision is binding. Accordingly, it held that context or the question, while considering which a judgment has been rendered assumes significance. As against, the obiter dictum is an observation by a Court on a legal question which may not be necessary for the decision pronounced by the Court. Such obiter dictum of the Supreme court is also binding under Article 141 to the extent of the observations on points raised and decided by the Court in a case.

13. Mr. Jaiswal, learned Senior Counsel submits that the Full Bench, while dealing with the scope of sub-section (4) of Section 72 has also considered the powers of the District Court while exercising appellate jurisdiction which includes power to reverse, confirm, annul or modify the order of the forum appealed against and also to remand the matter back.

14. The emphasis of Mr. Jaiswal is to the reference made by the Full Bench to the powers of the appellate Court. He submits that these powers were considered to ultimately decide the scope of proceedings under sub-section (4) of Section 72 and, therefore, the findings to that effect will be binding on this Court.

15. We are not convinced with the argument. The aforesaid observations as regards powers of District Court were considered in the light of the use of expression ‘appeal’ and ‘revision’ in common/general parlance where appellate Court has powers of re-hearing on law as well as on facts and to remand the matter back to the Court below. The Full Bench had no occasion to consider the limitation imposed under sub-section (2) of Section 72. The observations were made by Full Bench to understand whether the appeal under subsection (4) will be in the nature of second appeal subject to restrictions and limitations imposed on the second appeal as prescribed under Section 100 of the Code. Ultimately, the Full Bench held that had there been any such intention of legislature, it would have expressly or impliedly incorporated the provisions of Section 100 of the Code into the relevant provisions of the Act. It is, in this context, where no such restriction is imposed, the Full Bench referred to the case of James Joseph (supra) that where 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 re-hearing on law as well as facts and it applies on all force to the class of appeals provided under sub-section (4) of Section 72 of the Act of 1950.

16. Thus, the position of law is that, where the statute does not place any limitation or restriction in regard to the scope and width of the proceedings, the plenary powers shall be available whereas if the statute imposes certain limitations or restrictions, the proceedings should be conducted and decision taken strictly in accordance with the provisions. In the light of such position of law, we may now examine the wordings of sub-section (2) of Section 72. It provides that the court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to costs as it thinks proper in the circumstances. The District Court is empowered to either confirm, revoke or modify the decision. The word ‘remand’ is conspicuously absent, which means it is intentionally omitted. It will be then impermissible to read into provision such a power of remand. The pronouncement of the Supreme Court on the point of ratio decidendi, if appropriately applied, the observations made by the Full Bench as regards powers of appellate Court cannot be said to be a finding rendered considering the provision under sub-section (2) of Section 72 of the Act of 1950.

17. We may now refer to the scheme of the Act of 1950 to the extent necessary to decide the reference. Section 22 provides that where any change occurs in any of the entries recorded in the register kept under section 17, the trustees shall report such change or proposed change to the Deputy or Assistant Charity Commissioner concerned. The Deputy or Assistant Charity Commissioner, after receiving the report, shall hold an inquiry and if satisfied that the change had indeed occurred, he shall record a finding to that effect with reasons therefor. Such finding is appealable to the Charity Commissioner. The appeal is provided under Section 70 of the Act of 1950 which reads thus :-

                   “70. Appeals from findings of Deputy or Assistant Charity Commissioner

                   (1) An appeal [against the finding or order] of the Deputy or Assistant Charity Commissioner may be filed to the Chairty Commissioner in the following cases :-

                   (a) the finding [and order, if any,] under section 20;

                   (b) the finding under Section 22;

                   [(b-1) the findings under Section 22A;]

                   (c) the findings under Section 28;

                   (d) the order under sub-section (3) of Section 54;

                   [(e) an order confirming or amending the record under Section 79AA.]

                   (2) No appeal shall be be maintainable after the expiration of sixty days from the recording of the finding or the passing of the order, as the case may be.

                   (3) The Charity Commissioner may, after hearing the appellant or any person appearing on his behalf for reasons to be recorded in writing either annul, reverse, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence.”

18. As could be seen, under sub-section (3) of Section 70, the Charity Commissioner is empowered to either annul, reverse, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence.

19. Thus, the Act of 1950, which is complete code in itself, makes a provision empowering the Charity Commissioner to either annul, reverse, modify or confirm the finding or the order of the Deputy or Assistant Charity Commissioner and further to make inquiry or to take additional evidence as he may think necessary. However, when it comes to scope under Section 72(2), the power to annul and reverse the finding or the order appealed against has been replaced by power to revoke the finding and order in the proceedings filed. What is more important is that under sub-section (3) of Section 70, the Charity Commissioner is empowered to direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary. This power is absent when the proceedings are dealt with under subsections (1) and (2) of Section 72.

20. Mr. Jaiswal, learned Senior Counsel then argued that powers exercised by the District Court under Section 72 are plenary in nature, which in itself include power to remand the proceedings back to the Charity Commissioner. In support, he has invited our attention to the judgment of the Hon’ble Supreme Court in the case of Ramchandra Goverdhan Pandit Vs. Charity Commissioner of State of Gujarat [AIR 1987 SC 1598]. The Hon’ble Supreme Court, while examining the availability of remedy under Letters Patent Clause 15, held that Single Judge of the High Court while deciding appeal under sub-section (4) of Section 72 from the order passed by the District Court under Section 73(1) of the Bombay Public Trusts Act, 1950 deals with a matter made by the District Judge in exercise of appellate jurisdiction by a Court subject to superintendence of the High Court and hence Clause 15 of the Letters Patent is directly attracted. Accordingly, the Supreme Court held that in such cases, it was necessary for the appellant to obtain certificate from Single Judge that the case was fit for appeal to the Division Bench under Clause 15.

21. In this context, the Court held that the powers of District Court in exercising jurisdiction under Section 72 is a plenary power and though under Section 72, the aggrieved party is required to move an application, in a sense, the proceedings are appellate in nature.

22. That being so, merely because the Supreme Court has used word ‘plenary powers’, which would mean an authority and powers as broad as is required in a given case, will not permit the Court to read something which is intentionally omitted by the legislature. In other words, it will be impermissible to read power of remand in a provision merely because the Supreme Court, while examining scope of availability of remedy under Clause 15 of Letters Patent, refers to expression ‘plenary power’ available to the District Court in exercise of jurisdiction under Section 72. The judgment therefore, will be of no help to read otherwise, particularly, in the light of the fact that the findings so rendered by the Hon’ble Supreme Court was in different context where the Supreme Court had no occasion to delve upon the scope and powers of District Court under sub-section (2) of Section 72 of the Act of 1950.

23. As noted earlier, Section 70 provides for appeal against finding/order of Deputy or Assistant Charity Commissioner whereas Section 72 provides for challenging the decision taken by the Charity Commissioner under Section 70 amongst other Sections by filing application and while entertaining such application, the District Court is empowered to either confirm, revoke or modify the decision. The power to remand is conspicuously absent. Thus, the legislative intent is clear. The power to remand back the matter to Charity Commissioner is not envisaged and, therefore, to read into it such power will amount to amending the provision, which is an exclusive jurisdiction of the legislature.

24. Learned Single Judge in Shaikh Abdul Razak Yaseen Patel’s case (supra) has, in detail, considered this in following words :-

                   “11. Thus, in light of the above position of law, the language of Section 72 (2) of the B.P.T. Act has to be tested. The words used are “the Court after taking evidence if any, may confirm, revoke or modify the decision or remit the amount of the surcharge and make such orders as to cost as it thinks proper in the circumstances”. The words “confirm, revoke or modify”, in their ordinary grammatical sense, have been defined as under :