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NaraIn Lal and anr. Vs. Prabandhkarini Committee Digamber JaIn Atishya Kstratia Shri Mahavirji Village Bargava and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 55 and 71 of 1980
Judge
Reported inAIR1985Raj1; 1984()WLN149
ActsRajasthan Public Trusts Act, 1959 - Sections 38, 39, 40 and 40(3); Code of Civil Procedure (CPC) , 1908 - Sections 11, 39(2) and 92
AppellantNaraIn Lal and anr.
RespondentPrabandhkarini Committee Digamber JaIn Atishya Kstratia Shri Mahavirji Village Bargava and ors.
Appellant Advocate S.M. Mehta, Adv.
Respondent Advocate G.C. Kasliwal, Adv.
DispositionAppeal allowed
Cases ReferredHansraj v. Dehradun
Excerpt:
rajasthan public trusts act, 1959 - sections 38, 39 & 40--order deciding application under section 38 or 39 be treated as an order under sub-section (2)--held, it is appealable under section 40(3).;an order finally deciding an application under section 38 or under section 39 one way or the other, as distinguished from an interlocutory order passed during the pendency of the enquiry into such application, may legitimately be treated as an order under sub-section (2) notwithstanding the fact that it is not covered by any of the clauses from (a) to (f) of that sub-section. that being so, the impugned order which, in effect, dismisses the applications of the swetamber samiti and narain lal brought before the district court under section 38 read with section 40 of the act, is appealable in.....k.s. sidhu, j.1. narain lal, a votary of the swetamber sect of jains, made an application under section 38, rajasthan public trusts act, 1959 (hereinafter called the act) before the assistant commissioner appointed under the act, for permission to make an application before the district court seeking certain directions from the said court against the prabandhkarini committee digamber jain atishya kstratia (hereinafter called the digamber samiti), which is in charge of the management and administration of the well known jain temple, known as the temple of mahavirji, situate in the town of mahavirji alias chandangaon naurangabad in the district of sawai madhopur, and also against the president and secretary of the digamber samiti in respect of the administration of the affairs of the said.....
Judgment:

K.S. Sidhu, J.

1. Narain Lal, a votary of the Swetamber sect of Jains, made an application under Section 38, Rajasthan Public Trusts Act, 1959 (hereinafter called the Act) before the Assistant Commissioner appointed under the Act, for permission to make an application before the District Court seeking certain directions from the said Court against the Prabandhkarini Committee Digamber Jain Atishya Kstratia (hereinafter called the Digamber Samiti), which is in charge of the management and administration of the well known Jain temple, known as the temple of Mahavirji, situate in the town of Mahavirji alias Chandangaon Naurangabad in the district of Sawai Madhopur, and also against the President and Secretary of the Digamber Samiti in respect of the administration of the affairs of the said temple. By his order, dated December 23. 1970, the Assistant Commissioner allowed the said application. The Digamber Samiti challenged the order of the Assistant Commissioner by way of a writ petition under Article 226 of the Constitution. The said writ petition was dismissed by this Court on January 8, 1971. The special appeal filed by the Digamber Samiti from the order of dismissal of its writ petition was itself dismissed by a Division Bench of this Court on May 10. 1972.

2. In pursuance of the order of the Assistant Commissioner, which was affirmed by the High Court as aforementioned Narain Lal filed an application under Section 40 of the Act, in the District Court Bharatpur, against the Digamber Samiti and its President and Secretary, for their removal from the management of the public trust consisting of the temple of Mahavirji and for appointment of a new management committee from among the votaries of Swetamber sect. This application was transferred from the District Court Bharatpur to the District Court Jaipur District, Jaipur. It was registered by the latter as application No. 36 of 1979.

3. The Swetamber sect of the Jains formed a society, known as Shri Jain Swetamber (Moorti Poojak) Mahavirji Tirath Raksha Samiti Jaipur (hereinafter called the Swetamber Samiti), to protect the interests of the votaries of Swetamber sect in the management and administration of the affairs of the temple of Mahavirji aforementioned. Taking into consideration the fact that Narain Lal being a mortal may not survive to see his application through, the Swetamber Samiti applied on its own and obtained an order, dated, July 23. 1974, from the Assistant Commissiner under Section 38 of the Act enabling it to file an application before the District Court under Section 40 of the Act, similar to the application filed by Narain Lal against the Digamber Samiti and its President and Secretary for their removal from the management of the temple of Mahavirji and for the appointment of a new committee consisting of Swetamber Jains or of the Jain community as a whole to administer the affairs of the temple. In due course, this application was also transferred to the Court of District Judge, Jaipur District. Jaipur. It was registered by him as No. 35 of 1979.

4. By his order, dated, October 23, 1979, the learned District Judge held that since the parties to the two applications were common and the issues arising in both were directly and substantially the same, the two applications should be consolidated for the purposes of enquiry and disposal under Section 40 of the Act. Thus, the two applications (No. 35 of 1979 and No. 36 of 1979) filed respectively by the Swetamber Samiti and Narain Lal were consolidated As many as twenty issues were stated by the district judge for determination of the controversy raised before him. He started recording evidence on those issues. While evidence was still being recorded, the Court felt that the two applications could be disposed of on the basis of a few issues which were treated as preliminary issues. Issues 14(a) and 19 in the application of the Swetamber Samiti which are relevant for our present purpose read as under : --

14(a) Whether in these proceedings, this Court has jurisdiction to see the validity or otherwise of the permission granted by the Assistant Commissioner, Devasthan, to the petitioner under Section 38 of the Rajasthan Public Trusts Act.

19. Whether the petition is beyond the scope of Section 38 and Section 40 of the Rajasthan Public Trust Act and is not maintainable.

5. By his order, dated, February 8, 1980, the learned district Judge decided these two issues against the applicants. His findings on these issues are to the effect that the orders of the Assistant Commissioner enabling the applicants to file their respective applications under Section 40 of the Act are invalid and that for this reason and also because the relief prayed in application No. 35 of 1979 is beyond the scope of Section 40, the said application is not maintainable. Though the order, dated, Febraury 8. 1980, passed by the district Judge does not expressly say so, it follows as a matter of necessary implication and consequence of the said order that both the applications which had been consolidated and which were being heard together were dismissed by the learned district Judge. Aggrieved by such dismissal Narain Lal and the Swetamber Samiti filed separate appeals before this Court. It is proposed to deal with the two appeals by this common judgment.

6. Mr. G.C. Kasliwal, learned counsel for Digamber-Samiti and other respondents raised a preliminary objection to the effect that these appeals are not maintainable under law. He referred in this connection to the provisions of Section 40 of the Act and argued that this section draws a clear distinction between an order passed under Sub-section (1) on the one hand and an order passed under Sub-section (2) on the other. He further argued that whereas the legislature has laid down that an order to be a decree and as such appealable to the High Court, no such provision is made by the legislature in respect of an order passed under Sub-section (1) with the result that such order cannot be deemed to be a decree for the purpose of appeal to the High Court. In order to be able to make a better appraisal of this argument, let me reproduce Section 40 here. It reads : --

40. Powers of the Court on application under Section 38 or Section 39. (1) On receipt of an application made under or in pursuance of Section 38 or Section 39, the Court shall make or cause to be made such inquiry into the case as it deems necessary and pass such orders thereon as it may consider appropriate.

(2). While exercising the powers under Sub-section (1), the Court shall besides other powers, have power to make an order for:--

(a) removing any trustee;

(b) appointing a new trustee;

(c) declaring what portion of the trustproperty or of the interest therein shall beallocated to any particular object of thetrust;

(d) providing a scheme of management of the trust property;

(e) directing how the funds of a public trust whose original object has failed shall be spent; having due regard to the object for which the trust was created;

(f) issuing such other direction as the nature of the case may require.

(3) Any order passed by the Court under Sub-section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court.

On a careful consideration of the language of this section, it will be seen that it does not admit of any such rigid compartmentalising between Sub-section (1) and Sub-section (2) as is sought to be read into it by Mr. Kasliwal As the marginal heading would itself show, the section deals, as a whole, with the powers of the district court to pass orders on an application made to it under Section 38 or Section 39. Sub-section 1 and Sub-section (2) are both part and parcel of the same integral whole dealing with the powers of the district court to pass orders on an application received by it either under Section 38 or Section 39 of the Act. The hyphen or the essential link between the two sub-sections is provided by the words 'while exercising powers under Sub-section (1), the Court shall besides other powers have the power to make an order for.' This clearly means that any order passed by the Court, under Sub-section (1) including an order of dismissal of the application under Section 38 or under Section 39 shall also partake the nature of an order passed under Sub-section (2) by reason of the plain language of the latter which lays down that while exercising the powers under Sub-section (1), the Court shall besides other powers have the power to make an order for giving the relief as per Clauses (a) to (f). The words 'besides other powers' occurring in what I have described above as the hyphen clause between the two sub-sections would cover an order of dismissal of application under section 38 or under Section 39, passed under Sub-section (1). It is in this manner that an order of dismissal passed under Sub-section (1) may be treated as an order passed under Sub-section (2) in exercise of the powers of the Court conferred on it by the words 'besides other powers'. Obviously, the words 'besides other powers' would also, include the power of the Court to dismiss an application under Section 38 or Section 39 of the Act. It may therefore be safely concluded that an order finally deciding an application under Section 38 or under Section 39 one way or the other, as distinguished from an interlocutory order passed during the pendency of the enquiry into such application, may legitimately be treated as an order under Sub-section (2), notwithstanding the fact that it is not covered by any of the Clauses from (a) to (f) of that sub-section. That being so, the impugned order which, in effect, dismisses the applications of the Swetambar Samiti and Narain Lal brought before the district Court under Section 38 read with Section 40 of the Act, is appealable in accordance with the provisions of Sub-section 3 of Section 40 of the Act.

7. Moreover, the argument that the order is not appealable is at best an argument of an academic nature in the facts of this case. As already stated the district judge has in effect, dismissed the two applications with the result that the case before him stands finally decided so far as he is concerned. The appellants herein are contending that by dismissing the two applications on erroneous grounds, the district Judge has failed to exercise a jurisdiction vested in his court by law and that the dismissal if allowed to stand would occasion a failure of justice. According to the appellants, if the argument that the appeals are not maintainable under Section 40(3) of the Act it entertained, the Court should have no difficulty, and indeed it is its duty under law, to treat these petitions of appeal as petitions of revision under Section 115 of the C.P.C. I find considerable force in this contention.

8. Mr. S.M. Mohta, the appellants' learned counsel pointed out at the forefront of his arguments that the learned district judge has even dismissed the application of Narain Lal on grounds which were first rejected by a Single Judge of this Court by his judgment inter partes in the writ petition decided on January 8, 1971, and thereafter by the Division Bench in the Special Appeal from that judgment which was dismissed on May 10, 1972. Mr. Mohta cited a number of rulings in support of his argument that even if a case may not be strictly covered by the rule of res judicata as enacted in Section 11 of the C.P.C., it would not be correct, on considerations of public policy, for any Court of inferior jurisdiction to ignore the principles of res judicata in dealing with a judgment of a superior court in which the issue arising for decision by the inferior Court was directly and substantially in issue and was heard and finally decided by it. It will be enough to cite here one such authority. In Devilal v. Sales Tax Officer, AIR 1965 SC 1150, the question which arose for decision in the appeal before the Supreme Court was whether the principle of constructive res judicata can be invoked, against a writ petition filed by the appellant. Their Lordships answered that question in the affirmative holding that if principles of constructive res judicata are not applied to such proceedings, a party may file as many writ petitions as he likes and take one or two additional points every time and that such a practice cannot be countenanced because it is opposed not only to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent but would also affect the doctrine of finality of judgments pronounced by a superior Court.

9. Mr. Kasliwal, learned counsel for the respondents quite frankly conceded that the principle of res judicata, including constructive res judicata, could be validly invoked by the appellants before the district judge in their attempt to save Narain Lal's application from dismissal. He however argued that this principle was not invoked by the appellants in their arguments before the Court below and that therefore it should not be allowed to be invoked for the first time in this appeal. It will be seen from the impugned judgment of the learned district judge that he did not address himself at all to the question of Narain Lal's application separately. He mainly concentrated on the application of the Swetamber Samiti and since Narainlal's application had been consolidated with the application of the Samiti, he dismissed both while dismissing the latter, albeit by necessary implication. This erroneous approach on the part of the learned district Judge cannot possibly justify his action in ignoring the judgments of a learned Single Judge and a Division Bench of this Court, upholding the validity of the permission granted by the Assistant Commissioner Devasthan to Narain Lal to apply to the district Court for direction in respect of the administration and management of the temple of Mahavirji. Narain Lal's application could not be legally dismissed by the learned district Judge on the grounds, to the effect that the Assistant Commissioner had not applied his mind to the points in controversy before him, that he had not satisfied himself that Narain Lal had an interest in the public trust in question and that the trust was not being properly managed and administered, because all these grounds had been considered by the High Court and rejected in the writ petition filed by the Digamber Samiti challenging the validity of the order of the Assistant Commissioner.

10. Mr. Kasliwal then contended that since the Assistant Commissioner had already granted permission to Narain Lal to apply to the district Court for directions in respect of the management and administration of this public trust and since he had already filed such application before the district Court, it was not permissible to the Assistant Commissioner to entertain another application from the Swetamber Samiti in respect of the same subject-matter and that in any case the district judge ought to have stayed, the proceedings in the application of the Samiti pending the enquiry into the previously instituted application of Narain Lal. I have very carefully gone through all the relevant provisions of the Act and find that there is no legal bar to the Assistant Commissioner entertaining a plurality of applications from different persons in respect of the management and administration of the affairs of one and the same trust and directing them to file their separate application before the district Court for appropriate relief. Nor is there any such bar in the Act to the District Court entertaining more than one application in respect of the same trust and deciding them together. This does not however mean that the Assistant Commissioner cannot reject the subsequent application on the ground that he has already allowed a previous application in respect of the same subject-matter. But if the Assistant Commissioner does allow the subsequent application for good reasons after having considered the pros and cons of the matter, including the pendency of the previous application before the district Court, he would not be committing any error of jurisdiction or illegality warranting interference by the district Court in the proceedings in the subsequent application filed before it in pursuance of the permission granted by the Assistant Commissioner. In fact, as will be presently seen, the jurisdiction conferred on the district Court under Section 40 of the Act is of a very limited nature, and while seized of the enquiry into a case pending before it on an application filed under Section 38 or Section 39, the district Court must constantly bear in mind the inherent limitations of its jurisdiction under Section 40, and curb for the time being its usual habit and tendency to act as a principal civil Court of original jurisdiction empowered to entertain and try all suits of a civil nature. While exercising its limited jurisdiction under Section 40, the district Court cannot sit in judgment as to whether by issuing a direction to a particular person, like the appellants in the instant case, to file an application before the district Court, for direction in respect of the management and administration of a particular public trust, the Assistant Commissioner had committed an error of jurisdiction or not. One tribunal of limited jurisdiction, like the district Court under Section 40 of the Act, cannot be allowed to adjudge the validity or otherwise of the decision of another tribunal like the Assistant Commissioner. All that the district Court may concern itself in that behalf is with the existence or otherwise of the order of the Assistant Commssioner and not with its legal validity or otherwise. Once the district Court is satisfied that the Assistant Commissioner has issued a direction under Section 38 of the Act requiring a particular person to apply to the district Court for directions regarding the administration of a particular public trust, the district Court gets the jurisdiction to proceed with the enquiry into the application in accordance with the provisions of the Act. The district Court would obviously be guilty of failure to exercise its jurisdiction under Section 40 if it were to dismiss the application on the short ground that the Assistant Commissioner had no jurisdiction to direct the making of the said application to it.

11. The finding of the learned district Judge, as per paragraph 26 of his judgment, that the Swetambar Committee does not fill the character of 'person interested' as contemplated by Section 38, and that therefore the Assistant Commissioner could not have validly directed it to apply to the district Court for directions under Section 40 is unsustainable on the grounds stated above. It may further be elaborated here that the district Judge was not dealing with a suit, but with a mere application and that the jurisdiction conferred on him for the decision of the said application is very limited and qualitatively different from his plenary jurisdiction to entertain and decide all suits of a civil nature, including representative suits under Section 92 of the Code of Civil Procedure 1976. The learned district Judge thinks, and in my opinion erroneously, that there is no difference at all in his jurisdiction under Section 92 C.P.C. and under Section 40 of the Act. He appears to have fallen into this error by reason of certain observations made by this Court in Surajmal Singhvi v. State of Rajasthan, 1966 Raj LW 566. The observations which he relied upon are contained in para 24 of the cited judgment which reads as under :

These provisions (i.e. Sections 38, 39 & 40 of the Act) are in fact reproduction of Sections 92 and 93 of the Code of Civil Procedure which are made inapplicable by Section 44 of (sic) public trust covered by the Act. (Parenthesis supplied).

These observations were made by this Court in an entirely different context. Their Lordships made these observations in the course of discussion as to the challenge to the validity of the provisions of Sections 38 to 46 of the Act on the ground that some of the said provisions are violative of the petitioner's fundamental right to freedom of religion guaranteed by Article 25 of the Constitution. Repelling the challenge to the validity of Section 38 of the Act, their Lordships pointed out that the power conferred on the Assistant Commissioner to permit the making of an application to the district Court for directions in respect of the management and administration of the affairs of a public trust does not by itself amount to an invasion on or intrusion into someone's freedom of religion, because the Assistant Commissioner has not been given any power to pass orders by himself, except in the matter of presentation of an application to the district Court, and that it is the district Court alone which is to pass orders on the applications after applying its mind to the case, and having due regard to the fundamental right of the parties. It was in this context that their Lordships compared the provisions of Sections 38 to 40 of the Act with Sections 92 and 93 of the C.P.C. and emphasised the fact that when a matter, involving the question of a fundamental right, is entrusted to the decision of the district Court as distinguished from an executive authority like the Assistant Commissioner, none should entertain the apprehension that his fundamental right is invaded or is in jeopardy. It will not be correct to read the above quoted observations out of their context and assert on their basis that the jurisdiction conferred on the district Court under Section 40 of the Act is identical with the jurisdiction conferred on such Court under Section 92 of the C.P.C.

12. A plain reading of Sections 38-40 of the Act and Section 92 of the C.P.C. would at once bring out the fundamental difference between the jurisdiction of the district Court under Section 40 of the Act on the one hand and Section 92 C.P.C. on the other. For convenience of comparison, I may reproduce the two sections side by side as follows : --

Section 40 of the Act. Section 92(1) of the Code of Civil Procedure, 1908.40. Power of the Court on application under section 38 or section 39.

(1) On receipt of an application made under or in pursuance of S. 38 or S. 39, the Court shall make or cause to be made such inquiry into the case as it deems necessary and pass such orders thereon as it may consider appropriate.

(2) While exercising the powers under sub-section (1). the Court shall, beside other powers, have power to make an order for-

a. removing any trustee

b. appointing a new trustee

c. declaring what portion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

d. providing a scheme of management of the trust property.

e. directing how the funds of a public trust whose original object has failed shall be spent; having due regard to the object for which the trust was created,

f. issuing such other direction as the nature of the case may require.

(3) Any order passed by the Court under sub-section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court.

92. Public charities. (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General may institute a suit, whether contentious or not, in the principal civil Court of originaljurisdiction or in any other Courtempowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

a. removing any trustee.

b. appointing a new trustee,

c. vesting any property in a trustee,

d. directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to possession of such property, d. directing accounts and inquiries;

e. declaring what proportion of the trust property or of the interest therein shall be allocated to any particular, object of the trust.

f. authorising the whole or any part of the trust property to be let. sold, mortgaged or exchanged.

g. settling a scheme, or

h. granting such further or other relief as the nature of the case may require.

The first and foremost difference which immediately catches the eye is that under Section 92 C.P.C. what comes before the district Court is a suit of a civil nature, and therefore the district Court has plenary jurisdiction in such suit to go into all controversies including the controversy as to the validity of the permission granted by the Advocate-General to the plaintiffs to file the suit. On the other hand, what comes before the district Court under Section 40 of the Act is a mere application for directions as contra-distinguished from a suit for the passing of a decree. It is true that, under Section 40(3) any order or direction passed by the Court under Section 40(2) shall be 'deemed to be a decree' for purposes of appeal to the High Court. This legal fiction of treating a direction made under Section 40(2) as a decree for purposes of appeal to the High Court underscores the inherent fact that an application under Section 40 is a mere application, and not a suit, nor can it be treated as a suit. Had it been a suit or had it been possible to treat it in the nature of a suit, it would not have been necessary for the Legislature to enact the legal fiction to the effect that a direction made on such application under Section 40(2) shall be deemed to be a decree for the purpose of appeal to the High Court. A reference to the definition of the term 'decree' as given in Section 2(2) C.P.C. would show that any formal expression of an adjudication which conclusively determines the rights of the parties in a suit is a decree. If an application under Section 40(1) could legitimately be treated as a suit, any final direction etc. made therein would have amounted to a decree on its own force rather than by virtue of a legal fiction. Moreover, it may be mentioned here that the haw is well settled (see for example Hansraj v. Dehradun-Mussorie Electric Tramway Co. Ltd., AIR 1933 PC 63) that a suit is a civil proceeding which is instituted by presentation of a plaint. A proceeding started by merely making an application to the district Court under Section 40(1) in pursuance of an order passed under Section 38 cannot possibly be treated as a plaint.

13. A quick look at the provisions of the C.P.C. would show that a suit can be entertained, heard and decided according to the procedure prescribed by the Code. The Civil Court competent to hear and decide the suit must hold a trial according to law and decide the suit on that basis. On the other hand, a district Court dealing with an application under Section 40(1) of the Act need not hold any trial within the ambit of the C.P.C. for the purpose of issuing directions in respect of the administration and management of the affairs of a particular public trust. All that it is required to do is to 'make or cause to be made such enquiry into the case as it deems necessary'. In other words, the district Court is not required to try such application in the manner of a suit. It may not even hold the enquiry on its own end. Instead, it may entrust the enquiry to any other person including a private citizen and pass directions on the basis of the report of the person entrusted with the enquiry. A district Court seized of a suit under Section 92 C.P.C. must on the other hand try the suit itself and pass a decree therein on the basis of hearing held in accordance with the provisions of the Code. Such a suit cannot be disposed of on the basis of such enqiry as may be held by the district Court itself or by someone else at the instance of the district Court.

14. It is therefore abundantly clear that the jurisdiction and powers conferred on a district Court under Section 40 of the Act are entirely different, both qualitatively and quantitatively, from its jurisdiction and powers under Section 92 C.P.C. While dealing with an application under Section 40 of the Act, the district Court cannot arrogate to itself all the powers and plenary jurisdiction of a civil Court trying a suit of a civil nature. Though the district Court has been invested with wide powers of choosing its own method of enquiry into the application under Section 40, it is precisely on account of that informality 'of procedure or lack of it that one is led to the irresistible conclusion that the district Court while acting under Section 40 is acting as a tribunal of limited jurisdiction rather than as a civil Court of plenary jurisdiction trying a suit of a civil nature.

15. Even otherwise, Section 92 C.P.C. on the one hand and Sections 38-40 of the Act on the other, are different in their format and contents. It will be seen that under Section 92, as it stood before its amendment in 1976, it was the duty of the Advocate-General for the purpose of according permission to the petitioner to file a representative suit under Section 92, to satisfy himself that : --

(i) There exists a trust for public purposes of a charitable or religious nature;

(ii) There is a breach of such trust or the direction of the Court is necessary for the administration of the trust;

(iii) The suit intended to be filed is a representative one on behalf of the public and not by the individuals for their own interest;

(iv) The relief claimed in the suit must be one of the reliefs mentioned in Sections 92(1)(a) to 92(1)(h).

16. On the other hand, the Assistant Commissioner acting under Section 38 of the Act has much wider powers than the Advocate-General under Section 92 C.P.C. Application or no application, once he is satisfied that the original object of the trust has failed or that the trust property is not being properly managed or administered or that the direction of the Court is necessary for the administration of the public trust (see Clauses (a) to (c) of Sub-section (1) of Section 38) the Assistant Commissioner may direct any person having interest in the trust or even a trustee himself to apply to the district Court for direction under Section 40 of the Act. A reference to Section 40 would show that apart from making directions covered by Clauses (a) to (f) of Sub-section (2) of Section 40, the district Court may pass such orders on the application under Section 40(1) 'as it may consider appropriate' and the amplitude of the powers of the district Court to make directions in addition to the directions covered by Clauses (a) to (f) is emphasised by the words 'besides other powers' occurring in Sub-section (2) of Section 40. These words make it clear that in addition to making orders and directions covered by Clauses (a) to (f) of Sub-section (2) of Section 40, the district Court also possesses 'other powers' in the exercise of which it may pass such orders 'as it may consider appropriate' to suit the exigencies and requirements of a particular public trust in the context of either of the three eventualities mentioned in Clauses (a) to (c) of Sub-section (1) of Section 38 which necessitated the making of an application to the district Court under Section 40 of the Act. Unlike Section 92 C.P.C. Section 38 of the Act does not restrict the powers of the Assistant Commissioner to the making of directions to an interested person or a trustee to apply to the district Court for directions within the strait-jacket of Clauses (a) to (f) of Sub-section (2) of Section 40. He may direct such person to apply for directions as may be 'appropriate' in the circumstances of the case and as the district Court may like to issue in exercise of its 'other powers' besides the powers under Clauses (a) to (f).

17. It may therefore be safely concluded that Sections 38 to 40 of the Act and Section 92 C.P.C. are not pari materia and that therefore Cases decided under Section 92 C.P.C. may not always be of much help in deciding cases involving adjudication as to the nature and scope of the powers and jurisdiction of the Assistant Commissioner and the district Court under the Act.

18. Reference may now be made to Section 39(2) and Section 73 of the Act. Section 39(2) lays down that subject to the orders of the Commissioner, all orders passed by the Assistant Commissioner under Section 38 'shall be final'. Section 73 further provides that no civil Court shall have jurisdiction to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer or authority has been made final. This means that the district Court while dealing with an application under Section 40 could not go behind the decision of the Assistant Commissioner under Section 38 which is declared to be final and conclusive by Section 39(2). As already explained, the district Court being itself a tribunal or authority of limited jurisdiction under Section 40, cannot be allowed to sit in judgment over the order of the Assistant Commissioner passed under Section 38 even on the alleged ground that the order of the Assistant Commissioner suffers from an error of jurisdiction.

19. For all these reasons. I am of the considered opinion that the district Court in this case had no jurisdiction to adjudicate on the validity or otherwise of the permission granted by the Assistant Commissioner Devasthan to the petitioners under Section 38 of the Act. The said permission is final and conclusive. In any case, the district Court is exercising a very limited jurisdiction under Section 40 and it cannot in the exercise of such limited jurisdiction sit in judgment over the validity of the order made by another authority under the Act. The district Court must hold such enquiry into the case as it deems necessary, or cause such enquiry to be made and thereafter pass such orders as it may consider appropriate in the facts and circumstances of this case. If it finds that the reliefs prayed are beyond the scope of its own powers under the Act to grant, it may dismiss the applications before it, but it cannot dismiss these applications merely on the ground that the sanction behind them under Section 38 is not valid or that the relief prayed for therein is beyond the scope of Clauses (a) to (f) of Sub-section (2) of Section 40 of the Act. Issues 14(a) and 19 are answered accordingly.

20. In conclusion therefore, these appeals succeed and are allowed. The impugned judgment and decree or order, whatever it is, are set aside. Both the cases are remanded to the District Judge, Jaipur, District Jaipur for further proceedings according to law in the light of the judgment of this Court announced herein. The parties are directed through their counsel to enter appearance before the District Judge. Jaipur. District Jaipur on May 29, 1984 and obtain orders from him in respect of further proceedings of enquiry to be held by him. The costs in these appeals will be costs in the cause and will abide the decision of the District Judge.


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