INAYATKHAN MOHMED AJAN KHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The focus of disputation in the present appeal is section 70 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 In the net result S. No. 156 was withdrawn and in its place the Muslim community was allotted two other survey numbers.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 196667 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 aright 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 1468 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 he 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 sec. 70A is an order passed in 1952 whereas sec. 70A has been inserted in the Trust Act by Act 15 of 1954 in 1954. It is argued that sec. 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 sec. 70A set aright errors if any committed prior to the introduction of the section?