Rajasthan High Court - Jodhpur
Shailesh D. Vardhan vs State Of Rajasthan on 21 April, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2023/RJJD/010694]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2429/2023
1. Shri Shailesh D. Vardhan S/o Devi Chand Vardhan, Aged
About 52 Years, Working Trustee Cum In-Charge Sri Achal
Gachh Jain Shweatamber Trust Ganesh Chowk Bhinmal,
Tehsil Bhinmal And District Jalore.
2. Ashok Sanghvi S/o Shri Jeth Mal Sanghvi, Aged About 54
Years, Working As President Sri Achal Gachh Jain
Shweatamber Trust Ganesh Chowk Bhinmal, Tehsil
Bhinmal. District Jalore.
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary, Department Of
Devasthan, Government Of Rajasthan, Jaipur.
2. Assistant Commissioner (First), Devasthan Department,
Jaipur.
3. Mohan Lal Seth S/o Shri Janwat Seth, Resident Of
Bhinmal, Tehsil Bhinmal, District Jalore.
----Respondents
Connected With
S.B. Civil Writ Petition No. 4041/2023
1. Shailesh D. Vardhan S/o Devi Chand Vardhan, Aged
About 52 Years, Working As Trustee-Cum-In-Charge Of
Sri Achal Gachh Jain Shwetamber Trust Ganesh Chowk
Bhinmal, Tehsil Bhinmal District Jalore.
2. Ashok Sanghvi S/o Shri Jeth Mal Sanghvi, Aged About 54
Years, Working As President Sri Achal Gachh Jain
Shweatamber Trust Ganesh Chowk Bhinmal, Tehsil
Bhinmal, District Jalore.
----Petitioners
Versus
1. State Of Rajasthan, Through Secretary Department Of
Devasthan, Government Of Rajasthan, Jaipur.
2. Assistant Commissioner (First), Devasthan Department,
Jaipur.
3. Mohan Lal Seth S/o Shri Janwat Seth, Resident Of
Bhinmal, Tehsil Bhinmal, District Jalore.
----Respondents
For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. Sandeep Shah, Sr. Advocate &
AAG assisted by Ms. Akshiti Singhvi
Mr. O.P. Mehta
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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 18/04/2023 Pronounced on 21/04/2023
1. These writ petitions under Article 226 of the Constitution of India have been preferred claiming the following reliefs:
S.B. Civil Writ Petition No. 2429/2023:
"It is, therefore, most humbly prayed that this writ petition may kindly be allowed:
a) By an appropriate writ order or direction, order may kindly issued and the order dated 19.01.2023 (Annexure-
42) passed by Assistant Commissioner (First), Jaipur in proceeding No.134/2022 (titled as Sri Achal Gachh Shweatamber Trust Bhinmal Vs. State of Rajasthan & Ors.), may kindly be quashed and set aside.
b) By an appropriate writ, order or direction may kindly be issued and order dated 15.02.2000 (Annexure-32) may kindly be declared arbitrary, illegal and bad in law and the Respondent-Authority may kindly be directed to proceed in the matter according to the provisions of Rules 21 and 22 of the Rajasthan Public Trust Rules 1962.
c) By an appropriate writ, order or direction may kindly issued and the respondent Assistant Commissioner, Jaipur may kindly be directed to conduct the inquiry into the matter with fair and impartial manner and pass the order accordance with law.
d) That the any other relief, which this Hon'ble Court deems fit, by which the Petitioners may get full justice may also be allowed.
e) Costs of this writ petition may kindly be awarded in favor of the Petitioners."
S.B. Civil Writ Petition No. 4041/2023:
"It is, therefore, most humbly prayed that this writ petition may kindly be allowed:(Downloaded on 21/04/2023 at 10:54:48 PM)
[2023/RJJD/010694] (3 of 15) [CW-2429/2023]
a) By an appropriate writ order or direction, order may kindly issued and the order dated 21.03.2023 (Annexure-49) passed by Assistant Commissioner (First), Jaipur in proceeding No.134/2022 (titled as Sri Achal Gachh Shweatamber Trust Bhinmal Vs. State of Rajasthan & Ors.), may kindly be quashed and set aside.
b) By an appropriate writ, order or direction may kindly be issued and an application (Annex-46) under section 67 B of the Public Trust Act and application dated 20.03.2023 (Annex-48) may kindly be allowed.
c) That the any other relief, which this Hon'ble Court deems fit, by which the Petitioners may get full justice may also be allowed.
d) Costs of this writ petition may kindly be awarded in favor of the Petitioners."
2. In sum and substance, the factual matrix is common in both the instant petitions, which reveals that the Trust was registered under Section 19 of the Rajasthan Public Trust Act, 1959 (hereinafter referred as 'Act of 1959') in the year 1987, and since then, many of its Trustees have either expired or left the Trust. 2.1 On 15.11.2021, the petitioners submitted an application before the Assistant Devasthan Commissioner, Devasthan Department, Jodhpur for initiating the proceedings under Section 23 of the Act of 1959 alongwith Proforma No. 8 for necessary changes in the register of the Trust. The respondent-Mohanlal Seth also submitted proforma No.8, before the same authority; the said proforma, as per the petitioners, was prepared on the basis of a fake and false so called election which was never conducted by the Members of the General Body of the Trust. 2.2. In the meantime, the Devasthan Department, Jaipur vide order dated 12.11.2021 (Dispatched on 23.11.2021) transferred (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (4 of 15) [CW-2429/2023] the entire proceedings from Assistant Commissioner, Jodhpur to Assistant Commissioner (Headquarter) Devasthan, Udaipur. 2.3. The petitioners against the said transfer order dated 12.11.2021 submitted a letter on 01.12.2021 before the Commissioner Devasthan, Udaipur; whereupon, when the grievance of the petitioners was not redressed, they have preferred a writ petition bearing S.B. Civil Writ Petition no. 16991/2021 before this Hon'ble Court assailing the aforementioned order dated 12.11.2021.
2.4. Thereafter, on 14.12.2021, the petitioners filed an application before the Assistant Commissioner, Devasthan, Udaipur, stating therein the Proforma No.8 submitted by the petitioners was not published in daily newspapers and the objections were not invited according to the provisions contained in Chapter IV of the Rajasthan Public Trust Rules, 1962 (hereinafter referred as 'Rules of 1962'). The respondents filed reply to the said application, stating therein that the Proforma No.8 so was already duly published, and therefore, there was no requirement to publish Proforma No.8 submitted by the petitioners. In the meantime, this Hon'ble Court on 17.12.2021, while issuing notices, had passed an interim order in the aforementioned Writ Petition No. 16991/2021, to the effect that, "In the meanwhile and till the next date of hearing, any order passed by the Assistant Commissioner, Devsthan Department Headquarter, Udaipur in the proceedings in question shall remain subject to final outcome of the writ petition'. (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (5 of 15) [CW-2429/2023] 2.5. Subsequently on 04.01.2022, the petitioners filed objections against the aforementioned Proforma No.8 filed by the respondent no.3 and prayed for allowing the petitioners' application. 2.6. The petitioners filed another application on 15.02.2022 before the Court of Assistant Commissioner (Headquarters), Devasthan Department, Udaipur, praying therein since this Hon'ble Court had fixed the date i.e. 16.02.2022, therefore, until further orders are passed by this Hon'ble Court, no order, affecting the rights of the petitioners, ought to be passed in the proceedings before the said Authority. However, the Assistant Commissioner vide the impugned order dated 15.02.2022 rejected the said application.
2.7. Thereafter, the petitioners filed an application on 23.05.2022 before the Court of Assistant Commissioner (Headquarters), Devasthan Department, Udaipur under Rule 22 of the Rules of 1962 stating therein that the procedure prescribed in Chapter IV was not duly adopted in the proceedings in question; but the said application was also rejected vide order dated 23.05.2022. Aggrieved by the same, the petitioners preferred a Writ Petition bearing S.B. Civil Writ Petition No.8022/2022, wherein this Hon'ble Court on 03.06.2022, while issuing notices, passed an interim order to the effect that, "Till then, the respondents authorities shall be restrained from passing any final order". Thereafter, when the application filed by the petitioner before the learned authority below for perusal and compliance of the aforementioned interim order dated 03.06.2022 was not considered in an appropriate and (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (6 of 15) [CW-2429/2023] lawful manner, another writ petition was filed before this Hon'ble Court.
2.7.1. As per the record, all the aforementioned writ petitions were preferred against the orders passed by the learned authority below alleging that such orders were passed without affording the petitioners an opportunity of hearing, and that, a direction may be issued for fair and impartial enquiry, to be conducted by any competent authority other than the Commissioners, at Udaipur and Jodhpur.
2.8 Thereafter, this Hon'ble Court vide common order dated 16.11.2022, decided all the aforementioned writ petitions; relevant portion of the said order reads as under:
"8. This Court does not wish to delve into the merits of the case at this stage when the proceedings under Section 23 of the Public Trust Act are pending. Further, this Court finds that making any kind of remarks against the respondent no.5 would not be appropriate in the present case, as it is a matter of internal electoral contest between the executive committee members and it would not be proper to drag the officers in the dispute.
9. However, in the interest of justice, all the writ petitions as well as contempt petition are disposed with a direction to the State to conduct efficacious, transparent and expeditious proceedings under Section 23 of the Public Trust Act within a period of three months from today strictly in accordance with law. The authority shall be appointed by the respondent no.2 within a period of 15 days from today for which appropriate order shall be passed exercising is discretion except for authority of Jodhpur and Udaipur. The authority shall give a fair chance to all the parties and shall not get prejudiced by any proceedings (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (7 of 15) [CW-2429/2023] previously held, however, the previous proceedings which were held shall be kept on record. The present proceedings shall be freshly adjudicated and no prejudice shall be caused by the previous proceedings to either of the parties, but no party shall be restricted from any opportunity of hearing.
10. It is directed that the present petitioners and respondent no.6-Mohan Lal Seth shall cooperate with the adjudication.
11. It is taken note by this Court that the learned counsel for the petitioners and learned counsel for the respondent no.6 are agreeable to the aforesaid proposition and assure this Court that they shall cooperate with the adjudication in a time-bound manner.
12. The parties shall be at liberty to take appropriate remedy in case any need arises in future i.e. after the adjudication under Section 23 of the Public Trust Act is completed by the State.
13. In the meanwhile, if any dispute is there, the respondent no.2 shall be required to pass necessary order. However, the Assistant Commissioner shall be free to proceed from where the earlier proceedings were left, but all opportunity to contest shall be given to both the parties. Any adversity in previous proceeding shall not hold good and everything will be decided afresh.
14. It is also directed that anything which has not been covered in the reply, the opportunity for the same be granted to the petitioner.
15. All pending applications also stand disposed of accordingly."
2.9. In pursuance of the aforesaid order, the proceedings of the enquiry were transferred to the Assistant Commissioner (First), Jaipur, for making further enquiry into the matter. Thereafter, the petitioners filed the applications before the said Authority on 22.10.2022 and 02.01.2023, requesting therein for proceeding (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (8 of 15) [CW-2429/2023] with the matter according to the mandate of Rules 21 and 22 of the Rules of 1962, but the same were rejected vide the impugned order dated order dated 19.01.2023.
3. Feeling aggrieved by the impugned action of the respondents, as averred in the instant petitions, the petitioners have approached this Court seeking redress, while claiming the aforequoted reliefs.
4. In the instant S.B. Civil Writ Petition No.2429/2023, learned counsel for the petitioners submitted that once the procedure, pertaining to the publication of the proforma in question, has been laid down under Rules 21 and 22 of the Rules of 1962, then it was mandatory for the respondents to have duly published the same. 4.1 Learned counsel further submitted that the impugned orders passed by the respondents are beyond the scope of the Section 23 of the Act of 1959, more particularly when the inquiry as pending before the Assistant Commissioner is with regard to the claim pertaining to Proforma No.8 under Rule 24 of the Rules of 1962; thus, the impugned action of the respondents, being beyond the scope of the Rules as well as inquiry, is clearly unsustainable in the eye of law. In support of such submissions, he relied upon the judgment rendered by a Coordinate Bench of this Hon'ble Court in the case of Mehta Charitable Trust, Pali Vs The Commissioner, Devasthan, AIR 1994 Raj 207.
4.2. Learned counsel also submitted that even if it is assumed that the publication, as claimed by the petitioners, was not mandatory, then also, once the publication of the Proforma No.8 submitted by the private respondent was made, then on the (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (9 of 15) [CW-2429/2023] ground of equity, the respondents are bound to make publication of the Proforma, as submitted by the petitioners, before them.
5. On the other hand, Mr. Sandeep Shah, learned Senior Advocate & Additional Advocate General (assisted by Ms. Akshiti Singhvi) and Mr. O.P. Mehta, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioners, submitted that the petitioners had earlier also filed application for publication of Proforma No. 8 and the same was rejected on 23.05.2022; therefore, the second application filed by the petitioners for the same purpose was not maintainable, as per the doctrine of res judicata. 5.1. It was further submitted that as per Section 23 of the Act of 1959, there is no mandate for publication of Proforma No. 8, and the mandatory publication comes into picture only when a new Trust has been formed under Section 17 of the Act of 1959. Therefore, the submissions made on behalf of the petitioners in regard to such mandatory publication does not hold good. It was also submitted that Proforma No.8 has been submitted by the respondent no.3 prior to the petitioner, and therefore, the concerned authority below has rightly considered the same for publication thereof.
5.2. It was further submitted that the aforementioned common order dated 16.11.2022 passed by this Hon'ble Court has been challenged before the Hon'ble Division Bench by preferring D.B. Special Appeal (Writ) No.1071/2022, which material fact has been deliberately concealed by the petitioners herein, and therefore, it (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (10 of 15) [CW-2429/2023] is clear that the present petitioners have not approached this Court with clean hands.
6. However, apart from the afore-projected common factual matrix, the marginal variation in the pleaded facts of the above- numbered S.B. Civil Writ Petition No. 4041/2023 would reveal that the petitioners on 20.03.2023 filed an application under Section 67(b) of the Act of 1959 before the Assistant Commissioner, Devasthan (First), Jaipur, for summoning the Inspector Shri Omveer Tada and Station House Officer (SHO) Shri Bheru Singh for examination and recording of their statements. The petitioners, in addition, also filed three applications seeking permission to exhibit the documents as secondary evidence under Section 65 of the Indian Evidence Act, 1872. On the same day, the petitioners filed another application for summoning the six persons for recording of their evidence in the matter.
6.1. The learned Assistant Commissioner vide the impugned order dated 21.03.2023 rejected the aforementioned application under Section 67(b) of the Act of 1959 and also declined to summon the six persons for recording of their evidence.
7. Learned counsel for the petitioners submitted that the proceedings under Section 23 of the Act of 1959 for inquiry in regard to the Proforma in question, as submitted by the private respondent, were registered on 14.12.2021, wherein not a single adjournment was sought by the petitioners.
7.1. Learned counsel further submitted that the Inspector and SHO were important witnesses to the proceedings and the (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (11 of 15) [CW-2429/2023] adjudication, and therefore, the impugned action of the respondents is not justified in law.
7.2. Learned counsel also submitted that summoning of the witnesses and recording of the statements of the Inspector and SHO was necessary for fair and impartial proceeding, and therefore, the learned authority below fell into error in declining to accept the prayer made by the petitioners in that regard.
8. As against the aforesaid submissions made on behalf of the petitioners, it was contended on behalf of the respondents that the petitioners filed, in total, 12 applications till date before the learned authority below, only with an object to prolong and delay the proceedings in question, despite the fact that the case was posted by the learned authority below for final arguments, and that, the examination-of-chief and cross-examinations of the witnesses of the petitioners and respondents also stood complete; therefore, any order, if passed by this Court, in favour of the petitioners herein, at this stage, would have an adverse bearing on the proceedings before the learned authority below, and the same would also result into delay in such proceedings. 8.1. It was also submitted that the petitioners have failed to give any plausible and cogent reason for summoning and examining the Inspector and SHO, as witnesses. It was further contended that the report of the Assistant Commissioner is already on record, which also reflects that no unlawful action has been taken by the respondents against the petitioners herein. It was further submitted that the petitioners have filed, in total, 5 applications (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (12 of 15) [CW-2429/2023] and out of that the same, 3 applications were allowed by the Assistant Commissioner.
8.2. It was also contended that the proceedings under Section 23 of the Act of 1959 are summary in nature, unlike a civil suit proceedings, and that, this Hon'ble Court, vide the aforementioned common order dated 16.11.2022, directed to complete the proceedings within a period of three months, and therefore, the approach of the petitioners herein in filing several applications, is nothing, but an attempt to prolong and delay the proceedings, that too, without any cogent and reasonable ground.
9. Heard learned counsel for the parties as well as perused the record of the case along with judgment cited at the Bar.
10. This Court observes that the issue in the instant Writ Petition No. 2429/2023 is that the petitioners filed an application for publication of the Proforma No.8 and for conduct of the proceedings in the matter, as per Rules 21 and 22 of the Rules 1962. The said application was dismissed by Assistant Commissioner (First), Devasthan Department, Jaipur vide the impugned order dated 19.01.2023. While, the issue in the instant Writ Petition No. 4041/2023 is that the petitioners filed an application under Section 67(b) of the Act of 1959 for summoning of the witnesses, but the same was also rejected by the Assistant Commissioner (First), Devasthan Department, Jaipur vide the impugned order dated 21.03.2023.
11. This Court further observes that the Trust in the present case has been constituted in the year 1987, as per the Section 23 of the Act of 1959, and thus, as per law, if any change is required to (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (13 of 15) [CW-2429/2023] be made in the existing Trust, the same can be done only by resorting to provision of Section 23 of the Act of 1959 itself and as per the procedure as laid down therein.
The said Section 23 is reproduced as hereunder:
"Sec. 23 - Changes:
1. Where any change occurs in any of the entries recorded in the register, the working trustee shall, within ninety days from the date of the occurrence of such change, or, where any change is desired in such entries in the interest of the administration of such public trust, the working trustee may, report in the prescribed form and manner such change or proposed change to the Assistant Commissioner.
2. For the purpose of verifying the correctness of the entries in the register or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Assistant Commissioner may hold an inquiry.
3. If, after holding such inquiry as he may consider necessary under sub-section (2) either on receipt of a report under sub-
section (1) or otherwise, the Assistant Commissioner is satisfied that a change has occurred or is necessary in any of the entries recorded in the register in regard to the particular public trust, he shall record a finding with the reasons therefore and the provisions of section 29 shall apply to such finding as they apply to a finding under section 19.
4. The Assistant Commissioner shall cause the entries in the register to be amended in accordance with the finding recorded under sub-section (3) or, if an appeal has been filed therefrom, in accordance with decision of the Commissioner on such appeal and the provisions of section 21 and 22 shall apply to such amended entries as they apply to the original entries."
12. This Court also observes that the petitioners filed an application for publication of the Proforma No.8, in relation to the old and existing Trust, and that, the word 'may' as used in the (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (14 of 15) [CW-2429/2023] language of the aforesaid Section 23 makes it amply clear that the same was not mandatory in nature; thus, vide the said provision of law, it was well within the discretion of the authority concerned whether to publish the Proforma No.8, or not.
13. This Court further observes that the mandate in regard to publication in question is to apply, only when a new trust has been formed under Sections 17 and 18 of the Act of 1959, and in that eventuality, the procedure as laid down in Rules 20 and 21 of the Rules 1962 is to be followed; such a situation is not prevailing in the present case.
14. This Court also observes that the petitioners have filed, in total 5 applications; (1) Summoning of the witnesses under Section 67(b) of the Act of 1959; (2) Application under Section 65 of the Indian Evidence Act, 1872; (3) Application under Section 65-B (4) of the Indian Evidence Act, 1872; (4) Application for exhibiting the documents and; (5) Application for summoning 6 witnesses in support of defence. Out of these 5 applications, the learned authority below has allowed 3 application (Serial nos. 2, 3, and 4), while the remaining two applications were rejected vide the impugned orders.
15. This Court further observes that the petitioners did not assign in their application any cogent reason for summoning the Inspector and Station House Officer (SHO), Bhinmal as witnesses; the Station House Officer was assigned the duty for maintaining the law and order during the election, and the report of the Inspector regarding the proceeding dated 14.11.2021 is already taken on record, Therefore, their statements and evidence were (Downloaded on 21/04/2023 at 10:54:48 PM) [2023/RJJD/010694] (15 of 15) [CW-2429/2023] not at all required for the adjudication by the learned authority below in the pending proceedings in question.
16. This Court also observes that all the proceedings, including the cross-examination of the witnesses of the petitioners and respondent have completed. Therefore, filing of various applications without any cogent reason is not justified in the eye of law, and that, such applications were filed only for the purpose of prolonging and delaying the proceedings.
17. This Court also observes that the matter has been posted by the learned authority below for the final arguments, and thus, at this stage, filing of various applications, as done by the petitioners herein, cannot be said to be an appropriate legal recourse.
18. This Court further observes that the judgment cited at the Bar by the learned counsel for the petitioners does not render any assistance to the case of the petitioners herein.
19. In light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petitions.
20. Consequently, the present petitions are dismissed. All pending applications stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
SKant/-
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