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Shankar Lal Tiwari Vs. Vaidya Ram Niwas Joshi and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 5076 of 2001
Judge
Reported inRLW2005(1)Raj458; 2005(1)WLC185
ActsRajasthan Public Trust Act, 1959 - Sections 19, 20 and 70
AppellantShankar Lal Tiwari
RespondentVaidya Ram Niwas Joshi and ors.
Appellant Advocate R.K. Goyal, Adv.
Respondent Advocate Rakesh Sharma and; C.S. Sharma, Advs.
DispositionPetition dismissed
Excerpt:
- - 3. the commissioner, devasthan department recommended to the revenue department, which was also the administrative department of the devasthan department vide letter dated 2.9.57 that the temple in question was constructed by the ancestors of ghisi lal and asked for sanction for handing over the temple to ghisi lal and the temple was handed over to ghisi lal. 19. while considering this aspect i like to refer section 20 once again. devasthan commissioner has given this direction well within the competence and jurisdiction of the devasthan commissioner......for handing over the temple to ghisi lal and the temple was handed over to ghisi lal.4. the asstt. devasthan commissioner issued a notice under section 70 of the rajasthan public trust act 1959 and after considering the enquiry the asstt. devasthan commissioner vide order dated 6.4.88 set aside the notice issued under section 70 of the act 1959. against which the respondent no. 1 being devotee and interested in the temple filed an appeal under section 20 before the commissioner, devasthan department, udaipur in the year 2000. devasthan commissioner vide its order dated 23.7.2001 set aside the order passed by the asstt. devasthan commissioner dated 6.4.88 and remanded the matter back to the asstt. devasthan commissioner for conducting enquiry in the matter afresh.5. this order has.....
Judgment:

K.S. Rathore, J.

1. Present petition is directed against the order dated 23.7.2001 passed by the Commissioner, Devasthan Department in appeal No. 3/2001 filed by respondent No. 1.

2. The brief facts of the case are that there is a temple of Shri Krishna Behariji situated in Purani Basti, Jaipur. This temple was constructed more than 100 years ago. It is allowed that the temple was constructed by the ancestors of the petitioner and the former Jaipur State has sanctioned State Grants in various villages for the SewaPooja and for the maintenance of the temple. The last grantee in whose favour the Matmi was sanctioned by the former Jaipur State was Tiwari Govind Bus, was died on 20.3.46. Thereafter, the Board of Revenue for Rajasthan, Jaipur in case No. 49/Matmi-Jaipur of Samvat 2006 vide its order dated 14.8.50 recognised Ghisi Lal as the successor of last grantee Govind Bux and sanctioned the Matmi in his name.

3. The Commissioner, Devasthan Department recommended to the Revenue Department, which was also the Administrative Department of the Devasthan Department vide letter dated 2.9.57 that the temple in question was constructed by the ancestors of Ghisi Lal and asked for sanction for handing over the temple to Ghisi Lal and the temple was handed over to Ghisi Lal.

4. The Asstt. Devasthan Commissioner issued a notice under Section 70 of the Rajasthan Public Trust Act 1959 and after considering the enquiry the Asstt. Devasthan Commissioner vide order dated 6.4.88 set aside the notice issued under Section 70 of the Act 1959. Against which the respondent No. 1 being devotee and interested in the temple filed an appeal under Section 20 before the commissioner, Devasthan Department, Udaipur in the year 2000. Devasthan Commissioner vide its order dated 23.7.2001 set aside the order passed by the Asstt. Devasthan Commissioner dated 6.4.88 and remanded the matter back to the Asstt. Devasthan Commissioner for conducting enquiry in the matter afresh.

5. This order has been assailed by the petitioner on the ground that this order is not appealable as the notice under Section 70 was issued by the Asstt. Devasthan Commissioner and as per Section 70 the penalty can only be imposed in the case of contravention of any provisions of Section 17, 23, 27, 30 and 66.

6. Learned counsel for the petitioner also seriously alleged that th appeal, which has been preferred by respondent No. 1 before the Devasthan Commissioner after lapse of more than 12 years whereas as per the provisions of Section 20 of Limitation Act 60 days limitation is provided. Thus the order passed by the Devasthan Department is per se illegal and without jurisdiction and respondent No. 1. is not entitled to file the same.

7. Learned counsel for the petitioner further submits that since the notice under Section 70 is issued, the question does not arise to examine the aspect under Section 70 and the enquiry is required to be conducted under Section 18 and no finding also required to be given under Section 19. Thus the appeal, which has been preferred by respondent No. 1 under Section 20 before the Devasthan Commissioner is without jurisdiction.

8. Learned counsel for the petitioner further submits that the Devasthan Department and the Revenue Department in the year 1957 itself and after granting Matmi in favour of the petitioner the temple was handed over considering the fact that the temple is constructed by ancestors of the petitioner. In view of this fact the order passed by the Devasthan Commissioner is unwarranted, uncalled for the deserves to be quashed and set aside.

9. Per contra learned counsel for the respondents submits that the complaint was made under Section 70 and after receipt of application under Section 70 the Asstt. Devasthan Commissioner initiated enquiry under Section 18 of the Act 1959. Notices were also issued under Section 18(1) and 18(2) and Asstt. Devasthan Commissioner is supposed to give the finding under Section 9 and same be published in the notice board of Asstt. Commissioner's office as per the provisions of Section 20. Since the publication was not made in the instant case, therefore, the respondent No. 1 immediately came to know about this fact in the year 2000 filed the appeal under Section 20, which is rightly considered as respondent N.1 is vitally interested in the management of the temple as being a devotee.

10. Learned counsel of the respondent also raised the objection that no finding contrary to the observation has been made. It is innocuous order passed by the Devasthan Commissioner and the matter has been remanded back to Asstt. Devasthan Commissioner for fresh enquiry and the observation, which has been pointed out by learned counsel for the petitioner does not tantamount any finding on the merit.

11. Heard rival submissions of the respective parties and perused the relevant provisions referred before me. I also carefully perused the order impugned. This Court has directed the learned counsel, who is appearing on behalf of Devasthan Department to place the original record for perusal. I also perused the original record produced before me by Devasthan Department. In the present case the controversy is with regard to that whether the order passed by the Asstt. Commissioner against the notice issued under Section 70 is appealable or not. By perusal of the original record it reveals that the enquiry was initiated and that fact also reveals by perusal of original file that notice under Section 18(1) has been issued.

12. As per Section 18(1) on receipt of an application under Section 17 or upon an application made by nay person having interest in a public trust or on his own motion, the Assistant Commissioner shall made an inquiry in the prescribed manner for the purpose of ascertaining-whether a trust exists and whether such trust is a public trust, whether any property is the property of such trust, whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction, the names and addressed of the working trustee and the manager of such trust, the mode of succession to the officer of the trustee of such trust, the origin, nature and object of such trust, the amount of gross average annual income and expenditure of such trust and the correctness or otherwise of any other particulars furnished under Sub-section (4) of Section 17.

13. By perusal of Section 17 of the Act, Section 17, stipulates for registration of public trusts. It is evident by bare perusal of Section 18 that upon receipt of an application under Section 17 the Asstt. Commissioner having jurisdiction for the registration of such public trust and for that purpose the enquiry is to be conducted under Section 18.

14. It is evident by perusal of the original record that after issuing the notice under Section 18(1) the notice under Section 18(2) was also issued. Under Sub-section 2 of Section 18 the Assistant Commissioner shall give in the prescribed manner public notice of the inquiry proposed to be made under Sub-section (1) and invite all persons having interest in the public trust under inquiry to prefer within sixty days objections, if any, in respect of such trust. After perusal of the record it reveals that after initiating step under Section 17 a notice under Section 18(1) (2), which are mandatory, are issued.

15. As per Section 19 after conducting such enquiry as stipulated under Section 18 the Asstt. Commissioner shall record his findings with the reasons. After recording such reasons it is also mandatory on the part of the Asstt. Commissioner to notify the finding given by the Devasthan Commissioner in the notice board of Asstt. Commissioner's office.

16. This is not disputed by the parties and it is also confirmed by perusal of the original record that such publication in the notice board has not been made. Now the question arises whether respondent No. 1 have any cause of action to challenge the notice even without publication of notice.

17. Section 20 of the Public Trust Act, 1959 having two ingredients. One with regard to the right of appeal, which is given to any working trustee or person having interest in a public trust or in any property found to be trust property, aggrieved by a finding of the Asstt. Commissioner, which is given under Section 19 may file appeal. Second ingredient of Section 20 is that such appeal can be filed within a period of two months from the date of its publication in the notice board of Asstt. Commissioner. As in the instant case if the publication is not made and the respondent No. 1 having interest in the trust, could he entitled to file appeal, in my considered opinion the respondent No1. is legally entitled to file the appeal before the Devasthan Commissioner under Section 20.

18. Now the question arises whether such appeal, which has been filed after 12 years is maintainable or not. Though Devasthan Commissioner in its order dated 23.7.2001 has discussed this aspect also and after considering the submissions made on behalf of the parties it was held that even after the 12 years appeal filed by the respondent No. 1 is maintainable.

19. While considering this aspect I like to refer Section 20 once again. Under Section 20 right of appeal is given to a class of persons, who are interested. The limitation is also prescribed that can only be counted after publication of the finding given by the Asstt. Commissioner only. Suppose there is no publication and the Asstt. Commissioner defers such publication, the person interested cannot file any appeal against the finding given by Asstt. Commissioner while invoking jurisdiction of Section 20 before the Devasthan Commissioner.

20. As already discussed herein above I perused original record, which has been placed before me by the Devasthan Department, admittedly there is no publication order passed by the Asstt,. Commissioner. In such eventuality I do not find it mandatory that appeal can only be filed after publication. If any person is aggrieved with the finding given by the Asstt. Commissioner, he can also file immediately after came to know about such finding. Two months period, which has been provided under Section 20 is an outer limit to invoke the provisions of Section 20 for filing appeal and this limitation can only be counted from the date of publication. In the instant case as the publication is not make, therefore, the interested person can file appeal even before publication.

21. Therefore, I am not convinced with the submissions made on behalf of the petitioner and I hold that the appeal, which has been filed; by respondent No. 1 is maintainable and the order of the Devasthan Commissioner entertaining the appeal cannot said to be without jurisdiction.

22. Now question remains with regard to the provisions of Section 70, which provides the penalty. In Sub-section (1) of Section 70 whoever contravenes any provision of Sub-section (1) of Section 17 or of Sub-section (1) of Section 23 or of Section 27 or or Section 30 or of Sub-section (2) and (3) of Section 66 shall be punished with fine which may extend to five hundred rupees.

23. In Sub-section (2) of Section 70 whoever contravenes any of the provisions of this Act or the rules made there under for the contravention of which no specific penalty has been provided shall be punished with fine which may extend to one hundred rupees.

24. It is no doubt that the Asstt. Commissioner while considering the notice issued under Section 70 of the Act 1959 has opined and after considering the report submitted by the Inspector has decided the complaint, which is received under Section 70 by the respondents and the Asstt. Devasthan Commissioner set aside the complaint and also set aside the notice under Section 70. This aspect has been thoroughly considered by Devasthan Commissioner and it is observed that the enquiry, which is required to be conducted first under Section 18 against the complaint received under Section 70, which has not been properly conducted, therefore, Devasthan Commissioner has rightly remanded the matter back to the Asstt. Commissioner for fresh enquiry.

25. I find no illegality in such finding. Devasthan Commissioner has given this direction well within the competence and jurisdiction of the Devasthan Commissioner. This Court does not want to interfere in the order passed by the Devasthan Commissioner and Devasthan Commissioner's order dated 23.7.2001 does not suffer from any illegality and also not contrary to the facts and the circumstances of the case.

26. Consequently, the writ petition fails and is herewith dismissed and the interim order granted by this Court dated 8.2.2002 also stands vacated.


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