Rajasthan High Court - Jaipur
Dr. Balveer Singh Tomar Son Of Late Sh. ... vs Commissioner, Devasthan Department on 30 April, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 26712/2018
Dr. Balveer Singh Tomar Son Of Late Sh. Hotam Singh Tomar,
Aged About 68 Years, By Caste Rajput, Resident Of 4, Govind
Marg, Raja Park, Jaipur-302004 (Raj.) And Plot No. B-28-29,
Govind Marg, Raja Park, Jaipur - 302004 (Raj.) Chairman And
Settler Trustee, Indian Medical Trust, Office - 4, Govind Marg
Raja Park, Jaipur- 302004 (Raj.)
----Petitioner
Versus
1. Commissioner, Devasthan Department, 2, Meera Marg,
Madhuban, Udaipur
2. Dr. Shobha Tomar Wife Of Dr. Balvir Singh Tomar, Aged
About 67 Years, By Caste Rajput, Resident Of 4, Govind
Marg, Raja Park, Jaipur (Raj.)
3. Assistant Commissioner (First) Devasthan Department,
Office - In Front Of Old Vidhan Sabha, Badi Chaupad,
Jaipur (Raj.)
4. Smt. Urmila Ben Patel Wife Of Sh. Jayantilal Patel, Trustee
Indian Medical Trust, Resident Of 78, K.n.b. Road, Forest
Hill, London, S.e. -23. 3A.g., Local Address - 4, Govind
Marg, Raja Park, Jaipur (Raj.)
5. Dr. Anurag Tomar Son Of Dr. Balvir Singh Tomar,
Managing Trustee, Indian Medical Trust, Resident Of 4,
Govind Marg, Raja Park, Jaipur (Raj.) At Present Lodged
In Central Jail, Ghatgate, Jaipur.
6. Dr. Swati Tomar Wife Of Dr. Anurag Tomar, Trustee Indian
Medical Trust, Resident Of 4, Govind Marg, Raja Park,
Jaipur (Raj.)
----Respondents
Connected With
S.B. Civil Writ Petition No. 26717/2018
Dr. Balveer Singh Tomar Son Of Late Sh. Hotam Singh Tomar,
Aged About 68 Years, By Caste Rajput, Resident Of 4, Govind
Marg, Raja Park, Jaipur-302004 (Raj.) And Plot No. B-28-29,
Govind Marg, Raja Park, Jaipur - 302004 (Raj.) Chairman And
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(2 of 16) [CW-26712/2018]
Settler Trustee, Indian Medical Trust, Office - 4, Govind Marg
Raja Park, Jaipur- 302004 (Raj.)
----Petitioner
Versus
1. Commissioner Devasthan Department, 2, Meera Marg,
Madhuban, Udaipur
2. Dr. Shobha Tomar Wife Of Dr. Balvir Singh Tomar, Aged
About 67 Years, By Caste Rajput, Resident Of 4, Govind
Marg, Raja Park, Jaipur (Raj.)
3. Assistant Commissioner (First) Devasthan Department,
Office - In Front Of Old Vidhan Sabha, Badi Chaupad,
Jaipur (Raj.)
4. Smt. Urmila Ben Patel Wife Of Sh. Jayantilal Patel, Trustee
Indian Medical Trust, Resident Of 78, K.n.b. Road, Forest
Hill, London, S.e. -23. 3A.g., Local Address - 4, Govind
Marg, Raja Park, Jaipur (Raj.)
5. Dr. Anurag Tomar Son Of Dr. Balvir Singh Tomar,
Managing Trustee, Indian Medical Trust, Resident Of 4,
Govind Marg, Raja Park, Jaipur (Raj.) At Present Lodged
In Central Jail, Ghatgate, Jaipur.
6. Dr. Swati Tomar Wife Of Dr. Anurag Tomar, Trustee Indian
Medical Trust, Resident Of 4, Govind Marg, Raja Park,
Jaipur (Raj.)
----Respondents
For Petitioner(s) : Mr. SS Hora, Adv. with
Mr. Achintya Kaushik, Adv.
For Respondent(s) : Mr. Deepak Chauhan, Adv. with
Mr. Amitabh Jatav, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment / Order
Reserved on 09/04/2019
Pronounced on 30/04/2019
1. Since common question of law and identical facts are
involved in both the writ petitions, the same are being decided by
this judgment.
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(3 of 16) [CW-26712/2018]
2. While in SB Civil Writ Petition No.26717/2018 (Dr. Balveer
Singh Tomar Vs. Commissioner, Devasthan Department & ors.) the
petitioner has challenged the order dated 30/11/2018 passed by
the Commissioner, Devasthan in Appeal No.35/2018 (Dr. Shobha
Tomar Vs. Assistant Commissioner & ors.) as well as the
proceedings undertaken in the said appeal, in SB Civil Writ Petition
No.26712/2018 (Dr. Balveer Singh Tomar Vs. Commissioner,
Devasthan Department & ors.), the order dated 30/11/2018
passed by the Commissioner, Devasthan in Appeal No.36/2018
(Dr. Shobha Tomar Vs. Assistant Commissioner & ors), and the
proceedings therein have been sought to be set aside.
3. Brief facts as stated by the petitioner in SB Civil Writ Petition
No.26712/2018 are being noted for the purpose of disposal of the
writ petition. As the same facts are mentioned in the other writ
petition, to avoid repetition, the facts are being jointly mentioned.
4. The petitioner (Dr. Balveer Singh Tomar) has stated that he
is the Chairman and Settler Trustee of Indian Medical Trust, a
Public Charitable Trust having registration under the Rajasthan
Public Trust Act, 1959 (for short, 'Act of 1959'). The respondent
no.2 (Dr. Shobha Tomar) is the estranged wife of the petitioner
and was a trustee and her son-Dr. Anurag Tomar (respondent
No.5), who is step son of the petitioner was a Managing Trustee of
the Trust. Apart from the above two, one Mr. Jayantilal Patel and
Smt. Urmilaben Patel were the Vice Chairman & Settler Trustee
and Trustee respectively of the Indian Medical Trust as on
20/08/2002.
5. As per the petitioner, a meeting was held on 02/01/2017 and
those Trustees were inducted who are all daughters and son-in-
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(4 of 16) [CW-26712/2018]
laws and Dr. Shobha Tomar and Dr. Anurag Tomar were suspended
for anti trust activities till final outcome of the FIR registered
against them at Police Station Chandwaji. Amendments in the
trust deed by execution of the supplementary trust deed were also
sought to be made and were filed in Form No.8.
6. On the aforesaid submissions, notices were issued to the
respondents No.2 and 5 by the Assistant Commissioner,
Devasthan under Section 23 of the Act of 1959 and thus the
respondents no.2 to and 5 challenged initiation of the proceedings
by filing SB Civil Writ Petition No.1648/2017 (Indian Medical Trust
Vs. Dr. Balveer Singh Tomar & anr.) and other writ petition before
this Court. The said writ petitions were dismissed by Single Bench
of this Court vide order dated 01/08/2017.
7. The aforesaid order of the Single Bench was challenged by
filing DB SAW-1153/2017 and the Division Bench vide order dated
11/08/2017 passed following order:-
"All these appeals arise out of common judgment
passed by the learned Single Judge, hence, they are
decided by this common judgment.
By way of these appeals, the appellant has assailed
the judgment and order of the learned Single Judge
whereby the learned Single Judge has rejected the
contention of the appellant that the Assistant
Commissioner, Devsthan Department, Jaipur has no
jurisdiction and dismissed the appeals.
However, learned Single Judge while considering the
same has observed as under:-
"40. From the factual matrix and materials
available on record, the resignation of Shri Jayanti
Lal Patel, tendered on 17th March, 2012, was
perfectly legal and valid and it needed no further
approval. Hence, the meeting held on 2nd February,
2015 (Monday) by issuance of notices on 31st
January, 2015 at 4.10 P.M. (Saturday) wherein Shri
Jayanti Lal Patel, allegedly again tendered
resignation and participated in the meeting held on
2nd Feburary, 2015; is absolutely an illegal process,
and therefore, the actions taken by the petitioners
in consequence thereof shall be invalid and illegal.
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(5 of 16) [CW-26712/2018]
Accordingly, the changes incorporated in the order
dated 14th April, 2015, by the Assistant
Commissioner, Devsthan Department, Jaipur, as a
consequence of meeting dated 2nd February, 2015,
shall be void, so also the resolutions passed in
meeting held on 3rd March, 2017, are also declared
void and illegal. In the singular facts of the case at
hand, the meeting held on 2nd January, 2017,
resolutions made therein and amended Trust deed
of even date, registered on 3rd January, 2017;
cannot be faulted and are legal and valid. "
Since it was not subject matter of the writ petition, in
that view of the matter, the observations made above will
not be treated as conclusion for either side. The
observations made by the learned Single Judge are
nullified and will not come in the way of either side.
With the above observations, all the appeals are
disposed of. The order passed by Assistant Commissioner,
Devsthan Department, after the order of learned Single
Judge, will not be appropriate for the appellant to
challenge before the appellate authority as we have never
called upon to address the court on the said point.
All the stay applications are disposed of "
8. In the meanwhile, the Assistant Commissioner, Devasthan
vide order dated 09/08/2017, in terms of the order passed by the
Single Bench which incorporated Para 40 and relying upon the said
observations accepted the application moved under Section 23 of
the Act of 1959 for amendment in the trust deed and issued
directions for making entries in Form No.4.
9. An application was moved on behalf of the respondent Dr.
Shobha Tomar to the Assistant Commissioner, Devasthan for
modifying/recalling of the order dated 09/08/2017 in view of the
order passed by the Division Bench.
10. On the said application, the Assistant Commissioner,
Devasthan passed an order dated 01/09/2017 seeking guidance in
this regard from the Commissioner, Devasthan against which an
appeal was preferred by the petitioner under Section 20 of the Act
of 1959 raising grounds that the respondent-Assistant
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(6 of 16) [CW-26712/2018]
Commissioner, Devasthan had no power to review/recall its earlier
order dated 09/08/2017.
11. The appeal preferred by the petitioner was dismissed by the
Commissioner, Devasthan vide order dated 26/12/2017 holding it
to be not maintainable against intra-departmental order. As no
decision was taken on the application moved by the respondent-
Dr. Shobha Tomar dated 21/08/2017, a Contempt Petition bearing
DB CCP No.1563/2017 was filed on behalf of the Indian Medical
Trust and Dr. Shobha Tomar against the Commissioner, Devasthan
and Assistant Commissioner, Devasthan which was withdrawn with
liberty to the petitioners therein to challenge the order if the same
is contrary to the Division Bench order.
12. An appeal was thereafter filed by the respondent before the
Commissioner assailing order dated 09/08/2017 whereby the
entries were allowed to be made incorporating the changes in the
original trust deed.
13. The Commissioner, Devasthan vide order dated 07/05/2018
held the appeal to be premature and beyond limitation and as not
maintainable holding therein that the respondents herein had
already moved an application on 21/08/2017 seeking review of
the order dated 09/08/2017 which is pending. Vide another order
dated 20/04/2018, the Assistant Commissioner, Devasthan
dismissed the application dated 21/08/2017 on the ground that
the appeal had been filed against the order dated 09/08/2017.
14. A review petition was thereafter filed by the respondents
no.2 before the Division Bench (bearing DB Civil Review Petition
No.79/2018) which was decided by the Division Bench vide order
dated 09/07/2018 wherein the Division Bench made following
observations:-
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(7 of 16) [CW-26712/2018]
"6. It is very clear from the above that the
observations made by the learned Single Judge in
para no.40 were quashed and set aside. It is not to be
taken as conclusion by either of the side as stated in
para second which we have reproduced above.
7. However, it will be open for the present
applicants to challenge the order of the Assistant
Commissioner, Devasthan dt.9.8.2017 by way of
appropriate proceedings.
8. We make it clear that if the whole appeal is
allowed only on the basis of para no.40 of the learned
Single Judge, our order is very clear and since order
dt.9.8.2017 has been passed prior to our order, we
are not inclined to interfere but subsequently the
appeal has to follow our Division Bench judgment
dt.11.8.2017 and appropriate order will be passed in
accordance with law."
15. It appears that on the basis of the said observations made
by the Division Bench, the respondent no.2 filed appeals bearing
Appeals No.35/2018 and 36/2018 against the order dated
09/08/2017 in terms of Section 20 of the Act of 1959.
16. The petitioner preferred writ petition bearing SB Civil Writ
Petition No.19172/2018 with the prayer to set aside the
proceedings in the aforesaid appeals. No.35/2018 and 36/2018
The coordinate Bench of this Court disposed of the writ petition
directing the petitioner to take all objections including
maintainability before the Commissioner, Devasthan and further
directed the parties to maintain status-quo vide order dated
08/10/2018. The appeal was directed to be decided within the
period of two months.
17. The petitioner challenged the order dated 08/10/2018 in
appeal and the Division Bench of this Court vide order dated
23/10/2018 disposed of the appeals making observations that the
Commissioner, Devasthan shall decide the question regarding
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(8 of 16) [CW-26712/2018]
maintainability of the two appeals taking into consideration the
prevision decisions.
18. It is stated by the petitioner that he had submitted
preliminary objections and also stated that certain documents
have also been filed which show that criminal cases have been
registered against respondents no.2, 5 and 6 and charge-sheets
have also been filed. On 30/11/2018 the Commissioner,
Devasthan passed an order holding the appeals to be maintainable
against which the present writ petitions have been filed by the
petitioner before this Court praying for quashing and setting aside
the order dated 30/11/2018.
19. Learned counsel for the petitioner submits that the order
dated 30/11/2018 is illegal & arbitrary and therefore, deserves to
be quashed & set aside. It is submitted that the Commissioner,
Devasthan, once having exercised the power of appeal at the
instance of respondent no.2, could not have exercised the said
power once again at the instance of respondent no.2 specially
when the order passed earlier stands unchallenged and there is no
power of review available under the statute. It is submitted that
the liberty granted by this Court cannot be construed as giving a
substantive right to appeal when no such right to appeal exists in
law. The decision holding the appeal to be maintainable, therefore,
is unjustified. Reliance has been placed on the judgment passed
by the Apex Court in the case of East India Commercial Co.
Ltd. Vs. Collector of Customs: AIR 1962 (SC) 1893 wherein it
has been held in Para 29 as under:-
"(29) As we have already noticed in the earlier stage
of the judgment, the notice issued by the respondent
charges the appellants thus:
"One of the conditions of the special licence was
that the goods would be utilized for consumption as
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(9 of 16) [CW-26712/2018]
raw material or accessories in the factory of the
licence-holder and no part thereof would be sold to
other parties, but in contravention of that condition the
appellants sold a part of the goods imported to a third
party; and as the goods had been caused to be issued
by fraudulent misinterpretation, they were liable to be
confiscated under S. 167(8) of the Sea Customs Act."
Section 167(8) of the Sea Customs Act can be invoked
only if an order issued under S.3 of the Act was
infringed during the course of the import or export.
The division Bench of the High Court held that a
contravention of the condition imposed by a licence
issued under the Act is not an offence under S. 5 of
the Act. This raises the question whether an
administrative tribunal can ignore the law declared by
the highest court in the State & initiate proceedings in
direct violation of the law so declared. Under Art. 215,
every High Court shall be a court of record and shall
have all the powers of such a court including the
power to punish for contempt of itself. Under Art. 226,
it has a plenary power to issue orders or writs for the
enforcement of the fundamental rights and for any
other purpose to any person or authority, including in
appropriate cases any Government, within its
territorial jurisdiction. Under Art. 227 it has jurisdiction
over all courts and tribunals throughout the territories
in relation to which it exercises jurisdiction. It would
be anomalous to suggest that a tribunal over which
the High Court has superintendence can ignore the law
declared by that court and start proceedings in direct
violation of it. If a tribunal can do so, all the
subordinate courts can equally do so, for there is no
specific provision, just like in the case of Supreme
Court, making the law declared by the High Court
binding on subordinate courts. It is implicit in the
power of supervision conferred on a superior tribunal
that all the tribunals subject to its supervision should
conform to the law laid down by it. Such obedience
would also be conducive to their smooth working:
otherwise, there would be confusion in the
administration of law and respect for law would
irretrievably suffer. We, therefore, hold that the law
declared by the highest court in the State is binding on
authorities or tribunals under its superintendence, and
that they cannot ignore it either in initiating a
proceeding or deciding on the rights involved in such a
proceeding. If that be so, the notice issued by the
authority signifying the launching of proceedings
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders)
(Downloaded on 28/06/2019 at 04:08:10 AM)
(10 of 16) [CW-26712/2018]
contrary to the law laid down by the High Court would
be invalid and the proceedings themselves would be
without jurisdiction."
20. Learned counsel for the petitioner has also relied upon the
judgment passed by the Apex Court in Ranjit Kumar Murmu Vs.
Lachmi Narayan Bhomraj: (2013) 14 SCC 572 wherein it has
been held in Para 19 as under:-
"19. The learned counsel for the appellant submitted
that the writ petition was withdrawn by the appellant
to move before the competent authority. But that
does not mean that while withdrawing such case, the
court or any individual can confer jurisdiction upon
any authority who otherwise is not so empowered
under the statute.
21. Per-contra, learned counsel appearing for the respondents
has submitted that the respondent no.2 and the petitioner were Settler Trustees of the Indian Medical Trust. During the course of time, several disputes occurred between the petitioner and the respondents and several writ petitions were filed by both the parties. The Single Bench of this Court vide its judgment dated 01/08/2017 conferred certain rights in favour of the petitioner in Para 40 of the judgment which was set aside by the Division Bench. It is submitted that after the decision given by the Division Bench, it was incumbent upon the Assistant Commissioner, Devasthan to have made amendments in its order dated 09/08/2017 as per Section 26 of the Act of 1959 but since he failed to make amendments, the respondents moved an application on 21/08/2018 for seeking compliance of the order passed by the Division Bench. The respondents submit that they are entitled to be reinstated as trustees of the trust. The respondents have supported the order dated 30/11/2018 and it is submitted that the order of holding the appeal to be maintainable (D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) (11 of 16) [CW-26712/2018] is in consonance with the legal principles. The learned counsel submits that under Section 23(4) of the Act of 1959, the appeal is maintainable against the entries made under Section 23 of the Act of 1959 and there is no time period stipulated therein. Reliance has been placed by the respondents on the judgment passed by this Court in Sudhir Heeralal Dhadda & anr. Vs. The Assistant Commissioner, Devasthan & ors. (SB Civil Writ Petition No.1416/2018), decided on 17/05/2018. It is further submitted that Section 24 of the Act of 1959 also provides for making amendments and the appeal against the order passed under Section 24 of the Act of 1959 would also lie in terms of Section 23(4) of the Act of 1959. Learned counsel further submits that the appeals preferred by the respondents earlier bearing Appeals No.16/2018 and 17/2018 were dismissed vide order dated 07/05/2018 on the ground of being premature and time barred. Since thereafter, the Division Bench decided the Writ Review on 09/07/2018 directing that the appeal has to follow the judgment of the Division Bench and appropriate order shall be passed (according to law) and thereafter again, the Division Bench upheld the order of the Single Bench wherein the issue was raised by the petitioner relating to maintainability of the appeals and directed the Commissioner, Devasthan to decide the issue of maintainability first and as such, the maintainability question decided by the Commissioner, Devasthan is in accordance with law and does not warrant any interference.
22. Heard learned counsel for the parties.
23. Before adverting to the facts of the case, it would be appropriate to quote certain provisions of the Act of 1959. Sections 20, 23, 24 and 26 of the Act of 1959 provide as under:-
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) (12 of 16) [CW-26712/2018] "Sec. 20.- Appeal: 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 Assistant Commissioner under Sec. 19 may, within two months from the date of its publication on the notice board of the Assistant Commissioner, file an appeal before the Commissioner to have such finding set aside or modified. 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.
Sec.24- Further inquiry by Assistant Commissioner:
If, a any time after the entries or amended entries are made in the register under Section 21 or section 23, it appears to the Assistant Commissioner that any particulars relating to any public trust, which was not the subject matter of the inquiry under section 18 or sub-section (2) of section 23, as the case may be, has remained to be inquired into, the Assistant Commissioner may make further inquiry in the prescribed manner, record his findings and make or amend entries in the register in accordance with the decision arrived at, and the provisions of sections 19, 20, 21, 22 and 23 shall, so far as may be, apply to the inquiry, the recording of findings and the making or amending of the entries in the register under this section.
(D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) (13 of 16) [CW-26712/2018] Sec.26- Court to forward copy of decision to Assistant Commissioner concerned: Any court of competent jurisdiction deciding any question relating to any public trust which by or under the provisions of this Act is not expressly or impliedly barred from deciding shall cause a copy of such decision to be sent to the Assistant Commissioner having jurisdiction and the Assistant Commissioner shall cause an entry in the register to be made or amended in regard to such public trust in accordance with such decision. The amendments so made shall not be altered except in cases where such decision has been varied in appeal or revision by a court of competent jurisdiction. Subject to such alterations the amendments made shall be final and conclusive."
24. In view of the checkered history as noted above, it is apparent that the Assistant Commissioner, Devasthan has passed an order relying upon Para 40 of the order passed by the Single Bench. The order dated 09/08/2017 does not take note of the pendency of the appeal against the order of the Single Bench. In view of the Division Bench setting aside the observations made in Para 40 of the judgment, the Assistant Commissioner, Devasthan was required to pass orders in terms of Section 26 of the Act of 1959.
25. No application was required to be moved by the respondents for the said purpose and the amendments which were made vide order dated 09/08/2017 were required to be altered in terms of the order passed by the Division Bench. However, he has failed to do so. The application which was moved by the respondents dated 21/08/2017 was kept pending and the same was decided holding to be not maintainable vide order dated 20/04/2018. At the same time, the appeals preferred by the respondent against the order dated 09/08/2017 were held to be premature on account of pendency of the application dated 21/08/2017 before the Assistant Commissioner, Devasthan vide order dated 07/05/2018. Thus, it is noticed that both i.e. the Assistant Commissioner, (D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) (14 of 16) [CW-26712/2018] Devasthan and the Commissioner, Devasthan did not decide the issue in spite of there being a Division Bench judgment declaring Para 40 of the Single Bench judgment dated 01/08/2017 as null and void.
26. An appeal, which is declared as premature, cannot be said to be a decision on merits as at that stage it cannot be said that there was any cause of action which could have been decided finally as held in Amba Prasad Vs. Mahboob Ali Shah: (1964) 7 SCR 800 and Abdullah Ashgar Ali Khan Vs. Ganesh Dass (AIR 1917 PC 201).
27. Thus, it cannot be said that the appeal decided by the Commissioner, Devasthan as premature and time barred vide its order dated 07/05/2018 can come in the way for presenting of the present appeals preferred by the respondents. The Commissioner, Devasthan therefore, has rightly entertained the appeals vide its order dated 30/11/2018 and held them to be maintainable.
28. The question relating to limitation is no more res-integra. This Court in Sudhir Heeralal Dhadda & anr. Vs. The Assistant Commissioner, Devasthan & ors. (supra), has held as under:-
"25. The contention of the petitioners with regard to the appeal to be preferred under Section 20 of the Act of 1959 within a period of two months and that the appeals entertained by the appellate authority were delayed, does not have any force. Section 20 of the Act of 1959, which lays down limitation, is only with regard to the order passed by the Assistant Commissioner under Section 19 of the Act of 1959 and not with regard to the order passed by the Assistant Commissioner under Section 23 of the Act of 1959. While under Section 19 of the Act of 1959, the Assistant Commissioner records his finding with regard to the enquiry conducted under Section 18 for registration of a trust, Section 23 of the Act of 1959 is with regard to the order passed by the Assistant (D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) (15 of 16) [CW-26712/2018] Commissioner for changes and thus, the limitation as provided under Section 20 of the Act of 1959 would have no application for an appeal against the order passed under Section 23 of the Act of 1959. Thus, the argument that the appeals before the Commissioner were belated does not hold good."
29. Thus, the appeal preferred under Section 23(4) of the Act of 1959 is held to be maintainable. The question of maintainability has been decided in terms of the directions issued by the Division Bench vide order dated 23/10/2018.
30. The question raised by the petitioner that entertaining of appeal would amount to review its earlier order is misconceived. The law cited by counsel for the petitioner in Ranjit Kumar Murmu Vs. Lachmi Narayan Bhomraj (supra), Ranjit Kumar Murmu Vs. Lachmi Narayan Bhomraj, does not have application to the present facts. In the said case, the question was whether the appeal is maintainable against the order passed under Para 8, 9 and 11 of the Control Order whereas there is a specific provision under Section 23(4) of the Act of 1959 in relation to the entries made by the Assistant Commissioner, Devasthan. As observed earlier, even if the entries are made and subsequently there is judgment of any Court, the Assistant Commissioner, Devasthan is required to revise its entries accordingly. Thus, the inherent power to review its earlier order is also available with the Assistant Commissioner, Devasthan in terms of any judgment which may be passed subsequently.
31. In the present case, as per the facts noted above, the order passed by the Assistant Commissioner, Devasthan dated 09/08/2017 was solely based on Para 40 which he has quoted in his order. Once the Division Bench has set aside Para 40 of the judgment of the Single Bench, the amendment by the Assistant (D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) (16 of 16) [CW-26712/2018] Commissioner, Devasthan in its earlier order dated 09/08/2017 was a natural consequence. Having failed to perform his duty in terms of provisions under Section 26 of the Act of 1959, the appeal was filed in terms of the Division Bench judgment. The Division Bench has thus granted liberty to the respondents and it has to be construed as having given a substantive right to appeal which is also available under the statute.
32. The view taken by the Apex Court in East India Commercial Co. Ltd. Vs. Collector of Customs: AIR 1962 (SC) 1893 (supra), is respectfully followed by this Court while interpreting two constructions of the provisions of the Act.
33. In view thereof, both the writ petitions preferred by the petitioner assailing the order dated 30/11/2018 are found to be devoid of merit. The order dated 30/11/2018 passed by the Commissioner, Devasthan has to be treated as an appeal in terms of Section 23(4) of the Act of 1959 and accordingly the same is required to be decided on merits by the Commissioner, Devasthan.
34. Taking into consideration that the limitation in this regard has been prolonged,it is directed that the appeal shall be decided in terms of the judgment of the Division Bench within a period two months henceforth.
35. Both the writ petitions are accordingly dismissed.
(SANJEEV PRAKASH SHARMA),J RAGHUVEER PRASAD SHARMA / (D.B. SAW/699/2019 and 1 more have been filed in this matter. Please refer the same for further orders) (Downloaded on 28/06/2019 at 04:08:10 AM) Powered by TCPDF (www.tcpdf.org)