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inayatkhan Mohmed Jan Khan Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR285
Appellantinayatkhan Mohmed Jan Khan
RespondentState of Gujarat and anr.
Cases ReferredKashavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr.
Excerpt:
.....inquiries under the trust act are made essentially in order to find out whether or not there is a public trust, to ascertain which are the trust properties, and to find out who are the trustees, apart from ensuring that if the trust properties are public trust properties, they are managed honestly and efficiently and in accordance with the dictates of the trust with an eye on promotingthe objects and interests of the trust. and in a case like the present where it is by suppression of facts known, to all concerned that the competent authority under the trust act has been made to pass an order (in a way trapped into, passing such an order), it cannot be said that the doctrine as regards invoking the powers within reasonable time can be called into aid by the appellant if fraud vitiates..........1950 (trust act). is it retrospective in operation in the sense that it can be invoked to rectify errors committed even prior to the enforcement of the said section in 1954 as contented by the respondent state? or is it prospective in the sense that it can be invoked only to rectify errors committed subsequent to its introduction as canvassed by the appellant?2. before we tune in to the main question, a swift glance at the facts is called for. on may 15, 1952 one fejmohmad made an application praying that land comprised in s. no. 156 should be declared as public trust property and that it should be registered as rajbai takia kabrastan inasmuch as the said land was assigned to the muslim community of palanpur by the then nawab of palanpur for use as a grave-yard. the application was.....
Judgment:

M.P. Thakkar, J.

1. The focus of disputation in the present appeal is Section 70A of the Bombay Public Trusts Act, 1950 (trust Act). Is it retrospective in operation in the sense that it can be invoked to rectify errors committed even prior to the enforcement of the said section in 1954 as contented by the respondent state? Or is it prospective in the sense that it can be invoked only to rectify errors committed subsequent to its introduction as canvassed by the appellant?

2. Before we tune in to the main question, a swift glance at the facts is called for. On may 15, 1952 one Fejmohmad made an application praying that land comprised in S. No. 156 should be declared as public trust property and that it should be registered as rajbai takia kabrastan inasmuch as the said land was assigned to the muslim community of Palanpur by the then nawab of Palanpur for use as a grave-yard. The application was registered as inquiry No. 1209 of 1952. Within five months the application was granted and an order was passed on October 13, 1952 registering it as a public trust and declaring that the land belonged to the said public trust. It appears that some time in or about 1966-67 it was realised by the State Government on examining the state records that the statement made before the competent authority at the time of registering the trust as a public trust was incorrect and that material information had been suppressed. The records of the state disclosed that as early as 1917 the assignment in respect of the land comprised in the disputed S. No. 156 was reversed and annulled. Since the land was situated in the heart of the town of palanpur which was growing very fast, the then nawab of palanpur had decided to cancel or annul the assignment in respect of this land for user as kabrastan. Simultaneously in order to provide land for kabrastan by way of alternative arrangement, land comprised in S. Nos. 110 and 111 was assigned to the muslim community for palanpur for being used as a grave-yard. In the net result S. No. 156 was withdrawn and in its place the muslim community was allotted two other survey numbers namely, S. Nos. 110 and 111 for being used as a grave-yard or Kabrastan having obtained the advantage of this order and having obtained two survey numbers, namely, S. Nos. 110 and 111 in place of original S. No. 156, the muslim community was amply compensated. This fact ought to have been brought to the notice of the competent authority under the trust Act when the application for registration was made. Frankness and fairness demanded it. Yet, this fact was not brought to the notice of the competent authority. When realisation dawned on State Government in about 1966- 67, they made an application under Section 70A of the trust Act to the charity Commissioner invoking the revisional powers of the charity Commissioner to rectify the error and set a right the wrong order passed previously. That application was registered as revision application No. 16 of 1967. The learned joint charity Commissioner after hearing the parties set aside the previous order and directed further inquiry in the matter on August 13, 1968, a trustee of rajbai takia kabrastan thereupon preferred civil miscellaneous application No. 11 of 1968 to the district court. The learned district judge by his judgment and order dated January 17, 1970 confirmed the decision of the joint charity Commissioner and dismissed the application. Thereupon the said trustee has invoked the jurisdiction of this High Court under Section 72(4) of the Act. The order complained of is merely an order of remand and one can anticipate another round of appeals and revisions which will occupy some more years. One has only to be thankful that the present proceeding is under sub-section (4) of Section 72 and so far as the High Court is concerned, no further appeal would be competent under the letters patent and there is no scope for further stalling of proceedings in view of Hiragar Dayagar v. Ratanlal Chunilal 13 G.L.R. 181 unless this Court is persuaded to certify this as a fit case for appeal.

3. The Learned Counsel for the appellant has contended that the order sought to be revised under Section 70A is an order passed in 1952 whereas Section 70A has been inserted in the trust Act by Act 15 of 1954 in 1954. It is argued that Section 70A would not have retrospective operation and it would not be competent to the Charity Commissioner to revise orders passed before the said section was introduced in the trust Act. The question, therefore, boils down to this. Can the charity Commissioner exercising revisional powers under Section 70A set a right errors, if any, committed prior to the introduction of the section?

4. Examination of this question will be facilitated if the section is quoted in extenso. It reads as under-

70A. (1) the charity Commissioner may, in any of the cases mentioned in Section 70, call for and examine the record and proceedings of such case before any deputy or assistant charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the deputy or assistant charity Commissioner and may either annul, reverse, modify or confirm the said finding or order or may direct the deputy or assistant charity commissioner to make further inquiry to take such additional evidence as he may think necessary or he may himself take such additional evidence:

Provided that the charity Commissioner shall not record or pass any order without giving the party affected thereby an opportunity of being heard.(2) nothing in Sub-section (1) shall entitle the charity Commissioner to call for and examine record of any case,

(a) during the period in which an appeal under Section 70 can lie against any finding recorded by the assistant or deputy charity Commissioner in such case, or

(b) in which an order has been passed either in an appeal made under Section 70 or 71 or on an application under Section 72.

Now, the statement of objects and reasons published in Bombay Government Gazette, part V, dated 26-7-54 at page 237 shows that this provision was introduced as experience has shown that Charity Commissioner should have revisional powers to call for and examine--no doubt can, therefore, be entertained on the score that the provision has been heated in the light of valuable experience gained in the working of trust Act in relation to the administration, of public and charitable trusts and that it has been enacted with the end in view to plug the loopholes or remove lacuna noticed in the course of the Actual working of the Act. This dimension has great impact on the question of interpretation and will have, therefore, to be kept in perspective in examining the question. It must be realised that the inquiries under the trust Act are made essentially in order to find out whether or not there is a public trust, to ascertain which are the trust properties, and to find out who are the trustees, apart from ensuring that if the trust properties are public trust properties, they are managed honestly and efficiently and in accordance with the dictates of the trust with an eye on promotingthe objects and interests of the trust. The administration of public andreligious trusts is a matter of concern for the entire society and it is this obligation which is being discharged by the Charity Commissioner. Section 70A in terms refers to orders which can be subjected to suo motu revision or revision at the instance of a party by invoking the revisional jurisdiction of the Charity Commissioner. A reference has been made to the ordersenumerated in Section 70 in this connection, that is say, to findings or orders made under Sections 20, 22, 22A, 28 and 54(3). Now Section 20 relates to findings recorded at the conclusion of an inquiry under Section 19 inter alia relating to the question whether a trust exists, what are the trust properties, who are the trustees, what is the mode of succession etc. So also Section 22 relates to a change recorded in respect of any of the aforesaid entries and, therefore, has the same perspective. Similarly Section 22A is as regards the order passed on further inquiry about the pertinent matters. And Section 28 pertains to trusts previously registered under the repealed Acts and the pertinent entries in relation to such trusts. Section 54 refers, to sums set apart for charitable or religious purpose and orders passed in the said connection. Evidently, the orders which can be subjected to revisional jurisdiction under Section 73A are all orders pertaining to extremely vital matters which have an impact on public at large. What is at stake is the interest of the public in relation to a religious and charitable trust. And in regard to such orders can it ever be contended that if an error has been committed on one ground or another, such an error should be accorded immortality and rendered immutable? If an error is committed in a us between private parties, it affects only the interest of such individuals, when an error is committed in relation to such an important matter as regards the existence of a public trust or the public character of a property, errors cannot be perpetuated merely because the relevant material could not b placed before the competent authority at a particular point of time. Presumably it was on this account that the amendment was introduced as is manifest from the following recitals in the objects and reasons clause of Act 59 of 1954:

As the experience gathered in the course of the working the Act during the two years between 1952 and 1954.

There is no doubt, therefore, that Section 70 has been installed or the statute book with a special object rtamely, with a view to ensure that the errors committed in the past do not become immortal and immutable. Now, is there any rational ground for assuming that the legislature did not care or was unmindful about rectifying or setting a right errors which may have been committed prior to the introduction of Section 70A on the statute book? Errors relating to such vital matters do not deserve immunity from rectification to the detriment of the public interest merely because they were committed prior to 1954. It is inconceivable that the legislature would have contemplated according a special and privileged treatment to the errors committed between 1952 and 1954 in order to make them immortal. It would, therefore, be unreasonable to assume that the legislature ever intended Section 70A to have only prospective operation. To hold that Section 70A has only a prospective operation is to attribute irrationality or lack of vision to the representatives of the people who legislate on their behalf. It would be entirely wrong to do so. The view that I am taking is buttressed by a decision of a division bench of the Bombay High Court Mohamad Haidar Mujawar v. Jamal Haidar Mujawar : AIR1969Bom328 . Learned Counsel for the appellant, however, seeks support from Kashavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr. : [1968]3SCR623 . The Question before the Supreme Court therein was whether Sub-section (2) of Section 29 of the Bombay rents, hotel and lodging house rates control Act, 1947 was prospective in operation or retrospective in operation. Having considered the scope of Section 115 of the code or civil procedure and Sub-section (2) of Section 29 of the rent Act, the Supreme Court came to the conclusion that a wider jurisdiction was being conferred on High Courts than the one exercised by the High Courts till than under Section 115 of the code of civil procedure and that Sub-section (2) of Section 29 was prospective in operation and not retrospective. It must be realised that the question was being considered in, the context of the powers of the High Court in relation to disputes between landlords and tenants in regard to their individual rights. The revisional power was in a sense exercise of appellate jurisdiction with limitations and restrictions embedded in Section 29(2) itself. In the present case the revisional powers are being conferred in relation to an; inquiry in regard to a public trust and its properties and vital decisions pertaining thereto which have an impact on the entire public at large. And. The dimension regarding public interest creeps in. As observed earlier, if the object of the legislature is impressed on the mental screen and if it is realised that the dominant idea was to remove a lacuna or plug a loophole in order to enable the charity Commissioner to correct the errors committed in the past which called for rectification by way of re-examination, if necessary, it can scarcely be contended that the legislature intended Section 70A to have only a prospective effect and not a retrospective one. In fact the legislature could not but have designed Section 70A so that errors could be rectified regardless of whether they were committed before 1954 or after 1954. I am unable to detect any principle enunciated in Keshavlal Jethalal shahs case which could lead to a contrary conclusion.

5. Learned Counsel for the appellant argued that even if Section 70A does not prescribe a period of limitation, the power has to be exercised within a reasonable time and that in the. Present case it is being exercised some 15 years after the order was recorded in the earlier proceeding. Assuming that power has to be exercised within a reasonable time, I am not prepared to hold that in the present case that doctrine cart rescue the appellant for the state was not a party to the previous proceeding and the st& could not have known that an adverse order was being recorded in a proceeding before the charity Commissioner. The state machinery is an impersonal machinery and can only move when a situation comes to its notice. And in a case like the present where it is by suppression of facts known, to all concerned that the competent authority under the trust Act has been made to pass an order (in a way trapped into, passing such an order), it cannot be said that the doctrine as regards invoking the powers within reasonable time can be called into aid by the appellant if fraud vitiates everything, it is also good enough to condone every delay. In the present case there is no deliberate delay either. There is, therefore no substance in the contention. There is no substance in the appeal. It fails and is dismissed. The costs of the charity Commissioner will come out of the estate. The learned advocate for the appellant applies for a certificate of fitness for a letters patent appeal. Certificate is refused.


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