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2006 DIGILAW 1896 (RAJ)

Laxmi Chand Nath v. The Commissioner of Rajasthan

2006-05-26

MOHAMMAD RAFIQ, S.N.JHA

body2006
Judgment S.N. Jha, CJ.-This special appeal is directed against the order of the learned Single Judge dated 011.2005 in S.B. Civil Writ Petition No. 1229/1989 dismissing the writ petition of the appellants. The appellants had filed the writ petition for quashing the order of the Commissioner Devasthan dated 19.09.1983 and the notification dated 01.08.1988 published in the gazette dated 08.09.1988 contained respectively in Annexures-4 and 5 to the writ petition. The appellants also sought a writ of prohibition restraining the respondents from interfering with their right to receive the bhents and offerings and manage the temple. 2. The dispute relates to a temple known as Shri Vijyasan Mataji at Indergarh within Bundi district. Case of the appellants is that the temple was founded by their ancestors, Shri Kamal Nathji Maharaj in or about Vikram Svt. 103 and his descendants have been performing Sewa Pooja and managing the temple. They receive offerings and `Bhent made by the devotees. In short, the temple is a private temple of the appellants. On 13.08.1980 on representation of the then Sarpanch, Mohanpura Gram Panchayat, a proceeding was initiated for registration of the temple as a public trust. After inquiry the Assistant Commissioner, Devasthan Department, Kota by order dated 07.04.1983 held that the temple is a public trust, and ordered for constitution of an executive committee headed by Naib Tehsildar to manage the temple. Against that order the appellants preferred appeal before the Commissioner, Devasthan contending that the temple is a private temple, and it can be managed only by followers of Nath Sampraday and the management cannot be entrusted to outsiders. The offerings and Chadavas constitute source of livelihood to the appellants and their families and the Assistant Commissioner, Devasthan was not justified in holding the temple to be a public trust and directing its management by an executive committee. The Commissioner Devasthan by order dated 19.09.1983 affirmed the finding of the Assistant Commissioner regarding the temple being a public trust but held that appellants alone are entitled to perform pooja and accept the offerings made in the temple, and accordingly set aside part of the order of the Assistant Commissioner directing constitution of the executive committee and to that extent, allowed the appeal in part. 3. It is the admitted position that the order of the Commissioner, Devasthan was not challenged either by the appellants or any other person and thus became final. 3. It is the admitted position that the order of the Commissioner, Devasthan was not challenged either by the appellants or any other person and thus became final. Nothing seems to have happened in the matter until 01.08.1988 when on receipt of the approval of the State government vide letter dated 06.07.1988, notification was issued adding the temple to the list of the government supurdagi temples. It was published in the official gazette on 08.09.1988. The appellants preferred the writ petition challenging the order of the Devasthan Commissioner, and the notification, and seeking direction as mentioned above. 4. In the writ petition the appellants highlighted the fact that the finding of the Commissioner, Devasthan upholding the rights of the appellants to perform Pooja and receive the offerings in the temple was not challenged by the Sarpanch, Mohanpura Gram Panchayat at whose instance proceeding had been initiated or any other person, and contended that the finding that the temple was a public trust was incorrect and void ab initio. To support the plea the appellants enclosed certain documents, some of which were referred to at the time of hearing of this appeal. 5. We have perused the orders of the Assistant Commissioner dated 07.04.1983 and the Commissioner, Devasthan dated 19.09.1983 The finding that the temple is a public trust is based on a detailed consideration of evidence after contest and there is little scope for interference in writ jurisdiction. It is to be kept in mind that the Commissioner set aside only part of the order of Assistant Commissioner to the extent of constitution of an executive committee. The finding that the temple was a public trust was upheld. The appellants did not challenge the order of the Commissioner to the extent it was adverse to them for six years. The notification dated 01.08.1988 apparently was the consequence of the said order. 6. Be that as it may, the question whether the temple is a public trust or not involves disputes questions of fact, and as stated above, the finding was recorded by the Assistant Commissioner and Commissioner, Devasthan Department on appraisal of the evidence on contest. The finding of fact recorded on such appraisal of evidence cannot be set aside in writ jurisdiction. 7. We observed in the circumstances in course of hearing that the appellants if so advised, could file civil suit and seek appropriate reliefs. The finding of fact recorded on such appraisal of evidence cannot be set aside in writ jurisdiction. 7. We observed in the circumstances in course of hearing that the appellants if so advised, could file civil suit and seek appropriate reliefs. Counsel referred to Section 73 of the Rajasthan Public Trusts Act, 1959 and submitted that civil Court cannot entertain suit by reason of the bar contained therein. Section 73 reads as under:-"73. Bar of jurisdiction.-Save as expressly provided in this Act, no civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer of authority under this Act or in respect of which the decision or order of such officer or authority has been made final and conclusive." 8. On a plain reading two things broadly are manifest. First, the section does not create an absolute bar to civil Courts jurisdiction which is evident from the words "save as expressly provided in this Act". Reference to the Act reveals that there are specific provisions under which suit can be filed in the civil Court. Second, the jurisdiction of civil Court is barred only with respect to a "question which is by or under this 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 and conclusive". In other words, a question which can not be decided or dealt with by any officer or authority under the Act would fall outside the mischief of Section 73, and suit in respect of such question or dispute would be maintainable. 9. Chapter V of the Act contains provisions regarding registration of public trusts. Section 17 deals with registration. Section 18 provides for pre-registration inquiry. It empowers the Assistant Commissioner to make inquiry for the purpose of ascertaining, among other things, whether a trust is a public trust. After the inquiry is complete, under Section 19 the Assistant Commissioner is required to record his finding with reasons therefore. Section 20 provides for appeal to the Commissioner who may set aside or modify the finding of the Assistant Commissioner. After the inquiry is complete, under Section 19 the Assistant Commissioner is required to record his finding with reasons therefore. Section 20 provides for appeal to the Commissioner who may set aside or modify the finding of the Assistant Commissioner. Section 21 provides for entries in the Register (of public trusts) and publication as per the findings arrived at under Section 19 or - where appeal has been filed under Section 20, as per the decision of the Commissioner on such appeal. The entries so made are, subject to the other provisions of this Act and subject to any change recorded under any provision of the Act or rules made thereunder, final and conclusive. Under Section 22 a working trustee or a person having interest in the trust or in any property found to be trust property - aggrieved by any entry made under Section 21, may file suit in the civil Court within six months of publication of the entries. 10. From the above said provisions it is clear that the any findings/entry about the trust/temple being a public trust can be challenged in a civil suit and therefore, submission of the counsel that suit was not maintainable by reason of the provisions of Section 73 would appear to be misconceived. 11. Even if this Court were to accept, prima facie, the case of the appellants that the temple is a private temple/trust and the finding of the Assistant Commissioner/ Commissioner on the point are illegal, it would only mean that the temple is not covered by the Public Trusts Act, and if it is so, a priori, the bar of Section 73 would not come in the way. The Rajasthan Public Trusts Act has been enacted to regulate and make better provision for the administration of public religious and charitable trusts in the State of Rajasthan. There is no dispute that the Act is applicable only to public trusts. Where the temple/trust itself is claimed to be private trust, the bar created under Section 73 of the Act would not be attracted. Under Section 9 of the Code of Civil Procedure civil Courts have jurisdiction to try "all suits of the civil nature" except those cognizance of which is "expressly or impliedly" barred. Where the temple/trust itself is claimed to be private trust, the bar created under Section 73 of the Act would not be attracted. Under Section 9 of the Code of Civil Procedure civil Courts have jurisdiction to try "all suits of the civil nature" except those cognizance of which is "expressly or impliedly" barred. Where it is contended that the Act itself is not applicable because the temple/trust is not a public trust, it cannot at the same time be argued that Section 73 is attracted. 12. However, the question whether temple/trust is a public trust or not is a question which falls within the scope of the Act to be decided by the Assistant Commissioner subject to the appellate powers of the Commissioner in terms of Sections 18 and 20 of the Act. Their decisions are final and conclusive. Section 73 bars jurisdiction of the civil Courts where the matter is cognizable under the Act and where decision has already been arrived at which is final and conclusive but that is subject to the clause "save as expressly provided in this Act. Section 22 of the Act specifically provides for suit against entry in the register of public trusts pursuant to the findings of the Assistant Commissioner/Commissioner. The suit was therefore clearly maintainable. If the appellants did not file suit within period of limitation provided in Section 22, they have to thank themselves. Whether a suit can be filed at this stage or not on the plea that the appellants were pursuing the remedy under Article 226 of the Constitution of India bona fide or any other plea is a question we would not like to go into in these proceedings. We leave the appellants to seek the remedy elsewhere in accordance with law. 13. Being of the view that the disputed questions of fact are involved on consideration of which the Assistant Commissioner and the Commissioner, Devasthan have already recorded their finding which could have been challenged under Section 22 of the Public Trusts Act, we do not think interference under writ jurisdiction of this Court was called for. The learned Single Judge therefore did not commit any error in dismissing the writ petition. 14. In the result, the appeal is dismissed.