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51.13 Lastly, the aforementioned view regarding the appointment of Mahant by the State gets further corroborated by (D.B. SAW/621/2023 has been filed in this matter. Please refer the same for further orders) [2024:RJ-JP:26918] (67 of 104) [CW-16347/2016] the fact that Sections 41 and 43 of the Act of 1959 make it mandatory that upon the death of the working trustee, an application has to be filed by the new working trustee under Section 41, upon which an enquiry shall be conducted by the Assistant Commissioner and thereafter, the novel working trustee shall be appointed by the court having due jurisdiction under Section 43, whilst duly acknowledging the custom and usage of the public trust and its objectives. This procedure, leaving no room for ambiguity for the appointment of the working trustee, precludes in totality the claim of the petitioners that succession on the post of Mahant was hereditary in nature.

64. Moreover, considering the scheme of the Act of 1959 and more specifically Section 2(18) read with Section 17(1), it becomes glaringly evident that the 'working trustee' is responsible for applying for registration of the public trust, a role which in the facts and circumstances of the present case, was assumed by Shri Ramodaracharya. Therefore, it can be deduced that Shri (D.B. SAW/621/2023 has been filed in this matter. Please refer the same for further orders) [2024:RJ-JP:26918] (78 of 104) [CW-16347/2016] Ramodaracharya acted as a 'working trustee' at the time of registration of the Thikana Galta Ji Trust, whose rights as per Section 2(18) regardless are very limited to the mere role of management, as compared to the rights of a 'trustee' defined under Section 2(17). A trustee is a person who acts on a permanent basis, in favour of whom the property may vest as well. However, no such conferment of property is envisioned in favour of a 'working trustee'. Therefore, above and beyond the impermissibility of alienating with property which vests in the idol i.e. Thikana Galta Ji, the Mahant could not hold an interest in the said property, whilst having assumed the role of a mere 'working trustee'.

(g) is not available to administer the trust, such working trustee or any person having interest"

in the public trust, as the case may be, may apply to the Assistant Commissioner having jurisdiction, for permission to apply to the Court for the appointment of a new working trustee.
(2) The Assistant Commissioner, after making such inquiry as he considers necessary and, where the application has not been made by the working trustee himself, after giving him a reasonable opportunity of being heard, direct such working trustee or any other trustee or person having interest in the trust to apply to the Court for the appointment of a new working trustee, and where the person so directed fails to make such an application or for any other reason the Assistant Commissioner considers it expedient to do so, he shall himself make the application.

79. That in cumulative view of the aforesaid, it is held that the said amended bylaws of the Year 1999 do not create an estoppel in continuing the practice of appointment of Mahant by the State, as opposed to the hereditary succession, for the simple reason that the amendments to the bylaws are steeped in illegality, having been effectuated without the due authority of law.

80. Furthermore, it is also noted that pursuant to the demise of the erstwhile 'working trustee' i.e. Shri Ramodaracharya, an application under Section 41 ought to have been filed for the appointment of the new 'working trustee', subject to due inquiry by the Assistant Commissioner. The mere non-compliance of the said provision, made a mockery of the required inquiry and as a result, the dispute spill over its intended circumference, including the changes so effectuated in the bylaws in the Year 1999 by the new 'working trustee', whose position on the said post of 'working trustee', was in itself not scrutinised as per Section 41, thereby nullifying the appointment in-toto along with any actions taken whilst being on the said post, which include the amendments of the Year 1999.