Rajasthan High Court - Jodhpur
Jay Kumar Kothari And Anr vs Kailash Chand Choudhary And Ors on 6 January, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
(1 of 4) [CW-4874/2015]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. Civil Writ Petition No. 4874/2015
Jay Kumar Kothari And Anr
----Petitioner
Versus
Kailash Chand Choudhary And Ors
----Respondent
Connected With
S.B. Civil Writ Petition No. 4872/2015
Jay Kumar Kothari And Anr
----Petitioner
Versus
Kailash Chand Choudhary And Ors
----Respondent
For Petitioner(s) : Mr. Dhanesh Saraswat, on VC
For Respondent(s) : Mr. Vinay Jain, on VC
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 06/01/2022 In wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, the lawyers have been advised to refrain from coming to the Courts.
The petitioner has preferred these writ petitions claiming for the following prayers:-
SBCPW No.4874/2015 :
"It is, therefore, host humbly and respectfully prayed that this writ petition may kindly be allowed and the order dated 28.01.2015 may kindly be quashed and set aside. The application filed under Order 6 Rule 17 CPC may kindly be dismissed with costs."(Downloaded on 10/01/2022 at 09:08:22 PM)
(2 of 4) [CW-4874/2015] The bone of contention is management of a public trust, in which certain entries have been challenged under Section 22 of the Rajasthan Public Trust Act, 1959. The Trust is registered with Devsthan Department, Udaipur.
The petition is against order passed by the trial court allowing application filed under Order 6 Rule 17 of the respondents while adding fresh prayer of conducting fresh elections of the Trust.
Counsel for the petitioner Mr. Dhanesh Saraswat has drawn attention of this Court to Section 21, 22 & 23 of the Rajasthan Public Trust Act, 1959, which reads as follows:-
"Sec. 21 - Entries in the Register:
1. The Assistant Commissioner shall cause entries to be made in the register in accordance with the finding recorded by him under section 19 or, if an appeal has been filed under Sec. 20 in accordance with the decision of the Commissioner on such appeal, and shall cause to be published on the notice board of his office and at a conspicuous place in the city, town or village where the principal office or the principal place of business of the public trust is situate, the entries made in the register.
2. The entries so made shall, subject to the other provisions of this Act and subject to any change recorded under any provisions of the Act or a rule made there under, be final and conclusive. Sec. 22 - Civil suit against entries made under section 21:
1. Any working trustee or person having interest in a public trust or in any property found to be trust property aggrieved by any entry made under section 21 may, within six months from the date of the publication thereof on the notice board of the office of the Assistant Commissioner under sub-section (1) of section 21, institute a suit in a civil court to have such entry cancelled or modified.
2. In every such suit the civil court shall give notice to the State Government through the assistant Commissioner and the State Government, if it so desires shall be made a party to the suit.(Downloaded on 10/01/2022 at 09:08:22 PM)
(3 of 4) [CW-4874/2015]
3. On the final decision of the suit, the Assistant Commissioner shall, if necessary, correct the entries made in the register in accordance with such decision.
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."
Counsel for the petitioner submits that the focus of Section 22 is only the correction of entries and any direction for conducting election in this jurisdiction cannot be given.
Counsel for the respondent vehemently opposes on the ground that if the entries are excluded or if the suit is allowed, then there shall be automatically an election and, thus, to avoid multiplicity of litigation it would be in the interest of justice that (Downloaded on 10/01/2022 at 09:08:22 PM) (4 of 4) [CW-4874/2015] the application under Order 6 Rule 17 CPC with impugned order 28.01.2015 is sustained.
This Court after looking into peculiar facts of the case and also admitted position that the suit is under Section 22 of the Rajasthan Public Trust Act, 1959 for correction of entries of public Trust in-question as a specific remedy helds that the same cannot be expanded beyond the scope of Rajasthan Public Trust Act, 1959. Any consequence of removal of entries shall follow and no separate prayer is required at this stage.
The learned trial court has failed to appreciate that Section 22 of the Rajasthan Public Trust Act, 1959 is for correction of entries made under Section 21 and Section 21 is regarding entries in register. The amendment was not required as if there was a correction in the entry, its consequences are bound to follow and it does not require any amendment in the prayer as it would expand the scope of remedy under Section 22 of the Rajasthan Public Trust Act, 1959 beyond the legislative intention.
Thus, the present petitions are allowed. The impugned order dated 28.01.2015 is quashed and set aside. The amendment sought in the prayer is quashed.
(DR.PUSHPENDRA SINGH BHATI),J.
35-36-Sanjay/-
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