Nrapendra Prakash Sharma And Ors vs State And Ors (2023:Rj-Jd:29446)
2023 Latest Caselaw 7118 Raj

[2023:RJ-JD:29446]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 2415/1998

1. Nrapendra Prakash Sharma S/o Shri Vaid Ram Sharma, 12 Nyay Marg, Opp. Court, Udaipur.

2. Upendra Sharma S/o Shri Nrapendra Prakash Sharma, 16 Nyay Marg, Opp. Court, Udaipur.

3. Hitendra Sharma S/o Shri Nrapendra Prakash Sharma, 16 Nyay Marg, Opp. Court, Udaipur.

----Petitioners

Versus

1. State of Rajasthan through the Secretary of the Government of Rajasthan, Devasthan Department, Udaipur.

2. The Assistant Commissioner, Devasthan Department, Udaipur Division, Udaipur.

3. LRs of Sukhdeo Prasad Menaria son of Shri Onkar Lal Menariya, all residents of 4, Choti Brahampuri, Udaipur. 3/1 Nand Kanwar wd/o Late Sh. Sukhdeo Prasad Menariya, 3/2 Ram Lal S/o Late Sh. Sukhdeo Prasad Menariya, 3/3 Bhawan Lal S/o Late Sh. Sukhdeo Prasad Menariya, 3/4 Satyanarayan S/o Late Sh. Sukhdeo Prasad Menariya, 3/5 Vidhya D/o Late Sh. Sukhdeo Prasad Menariya, 3/6 Nirmala D/o Late Sh. Sukhdeo Prasad Menariya,

4. Madanlal (Deceased)'s legal representatives:- 4/1 Lali Bai Widow of Madanlal 4/2 Bhagwati Lal S/o Madanlal 4/3 Gordhan S/o Madanlal 4/4 Mithalal S/o Madanlal 4/5 Deepak S/o Madanlal 4/6 Pannalal S/o Madanlal 4/7 Om Prakash S/o Madanlal 4/8 Kalawati D/o Madanlal 4/9 Raju D/o Madanlal 4/10 Kanchan D/o Madanlal All residents of 238, Alipura Ghati, Udaipur.

----Respondents

[2023:RJ-JD:29446] (2 of 11) [CW-2415/1998]

For Petitioner(s) : Mr. Manish Shishodia, Sr. Adv.

assisted by Mr. Harshvardhan Singh Rathore For Respondent(s) : Mr. L.K. Purohit, G.C.

Mr. Yogendra Singh Arnay

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

13/09/2023

1. The matter pertains to the year 1998, and thus, listed under

the category of "Oldest Cases for Early Disposal".

2. This writ petition under Articles 226 & 227 of the Constitution

of India has been preferred claiming the following reliefs:

"(i) allow the above writ petition of the petitioners;

(ii) qua the impugned order dated 21.5.98 (Annex.No.10) passed by the Assistant Commissioner, Devasthan, Udaipur;

(iii) quash the entire proceedings in the cases no.3/97 and F.6/97 pending before the Assistant Commissioner Devasthan, Udaipur;

(iv) hold that the Assistant Commissioner Devasthan, Udaipur is not entitled to reopen the issue regarding the nature of the temple.

(v) grant such further relief/reliefs, which in the facts and circumstances of this case may do complete justice to the petitioners; &

(vi) award costs of this petition to the petitioners from the respondents."

3. Brief facts of this case, as noticed by this Court, are that an

Abadi property comprising the present Khasra Nos.313/25, 314/25

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and 315/25 (Old Khasra Nos.1211, 1212 and 1213) situated at

Nyay Marg, Udaipur since belonging to one Shri Balram Das, he

was in occupation and possession of the said property since before

1929; he constructed a private Place of Worship, commonly known

as Private Temple, which is said to be a property, for which, the

rights were conferred by the erstwhile Maharana of Mewar in

favour of Shri Balram Das, as an absolute grant. The present

controversy has arisen after demise of the said Shri Balram Das

on 03.12.1951 and the present petitioners are his legal heirs.

4. Mr. Manish Shishodia, learned Senior Counsel assisted by Mr.

Harshvardhan Singh Rathore, appearing on behalf of the

petitioners, has drawn the attention of this Court towards the fact

that the Assistant Commissioner, Devasthan Department, Udaipur

initiated proceedings for registration of the aforesaid Temple/Place

of Worship by issuing certain notices under the Rajasthan Public

Trust Act, 1959 (hereinafter referred to as 'the Act of 1959).

4.1 Learned Senior Counsel further submits that the notice under

Section 18 of the Act of 1959 was also issued although it could not

be pointed out as to whether any inquiry whatsoever had taken

place in accordance with Section 18 of the Act of 1959, because

the notice itself was of Section 70, which is the violation of Section

17 of the Act of 1959 itself. The notices given under Section 17 of

the Act of 1959 culminated into closure of the case against the

petitioners vide order dated 15.09.1977 (Annexure-1) on count of

the fact that there was no violation of Section 17 of the Act of

1959.

[2023:RJ-JD:29446] (4 of 11) [CW-2415/1998]

4.2 Learned Senior Counsel has further pointed out while passing

of the order dated 15.09.1977 (Annexure-1) definition of the term

'Public Trust' as contained in Section 2(11) of the Act of 1959, and

the provisions of Section 70 of the Act of 1959 was kept into due

consideration. The said definition of the term 'Public Trust' and

Section 70 of the Act of 1959, reads as follows:

"Sec. 2 - Definitions:

In this Act, unless the subject or context requires otherwise -

1. ...................

2. "Board" means the State advisory Board of public trusts established under Sec. 11;

11. "Public trust" means an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a math, dharmada or any other religious or charitable endowment or institution and a society formed either for a religious or charitable purpose or for both;"

"Sec. 70 - Penalty:

1. whoever contravenes any provision of sub-section (1) of section 17 or subsection (1), (2) and (5) of section 66 shall be published with time which may extend to five hundred rupees.

2. whoever contravenes any of the provisions of this Act or the rules made there under for the contravention of which no specific penalty has been provided shall be punished with fine which may extend to one hundred rupees."

4.3. The notice under Section 70 of the Act of 1959 has been

given on count of violation of Section 17; the said Section 17 of

the Act of 1959 reads as follows:

"Sec. 17 - Registration of public trust:

1. Within three months from the date of the application of this section to a public trust or from the date on which a public trust is created whichever is later, the working trustee thereof shall apply to a Assistant Commissioner having jurisdiction for the registration of such public trust.

2. The Assistant Commissioner may, for reasons to be recorded in writing, extend the period prescribed by Sub-Sec. (1) for the making of an application for registration by not more that two years.

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3. Each such application shall be accompanied by such fee if any, not exceeding five rupees, and to be utilised for such purpose, as may be prescribed.

4. The application shall be in such form as may be prescribed and shall contain the following particulars, namely: -

(i) the origin (so far as knows), nature and object of the public trust and the designation by which the public trust is or shall be known;

(ii) the place where the principal office or the principal place of business of the public trust is situate;

(iii) the name and addresses of the working trustee and the manager;

(iv) the mode of succession to the office of the trustee;

(v) the list of the movable and immovable trust property and such description and particulars as may be sufficient for the identification thereof;

(vi) the approximate value of the movable and immovable property;

(vii) the gross average annual income derived form movable and immovable property and from other source, if any, based on the actual gross annual income during the three years immediately proceeding the date on which the application is made or of the period which has elapsed since the creation of the trust, whichever period is shorter, and, in the case of a newly created public trust the estimated gross annual income from all such sources;

(viii) the amount of the average annual expenditure in connection with such public trust estimated on the expenditure incurred within the case of a newly created public trust, the estimated annual expenditure in connection with such public trust;

(ix) the address to which and communication to the working trustee or manager in connection with the public trust may be sent;

(x) such other particulars as may be prescribed;

Provided that the rules made may provide that in the case of any or all public trusts it shall not be necessary to give the particulars of the trust property of such value and kind as may be specified therein.

5. Every application made under sub-section (1) shall be signed and verified in accordance with the manner laid down in the code of Civil Procedure, 1908 (Central Act v if 1908) for signing and verifying plaints. It shall be accompanied by a copy of the instrument of trust (if such instrument has been executed and is

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in existence) and, where the trust property includes immovable property entered in a record of rights, a copy of the relevant entries relating to such property in such record of rights shall also be enclosed.

6. No Assistant Commissioner shall proceed with any application for the registration of a public trust in respect of which an application for registration has been filed previously before any other Assistant Commissioner, and the Assistant Commissioner before whom the application was filed first shall decide which Assistant Commissioner shall have jurisdiction to register the public trust.

7. An appeal against the order of the Assistant Commissioner before whom the application was filed first, given under sub- section (6) may be filed within sixty days before the Commissioner and, subject to the decision on such appeal, the orders of the Assistant Commissioner under sub-section (6) shall be final."

4.4 Learned Senior Counsel further submits that the order under

Section 70 of the Act of 1959 had already attained finality to the

extent that the petitioners were not found guilty of violating

Section 17 of the Act of 1959.

4.5 Learned Senior Counsel also submits that the Assistant

Commissioner, Devasthan Department, Udaipur again passed

certain orders, which are annexed alongwith the writ petition and

which were virtually reflecting that the case for penalizing the

petitioners in terms of Section 70 of the Act of 1959 was not made

out.

4.6 Learned Senior Counsel further submits that issuance of the

repeated notices by the Devasthan Department are the cause of

concern, primarily leading to filing of this writ petition, as neither

any proceeding under Section 17 culminated into finality nor the

provisions of Section 70 could have been attracted particularly, in

light of the order dated 15.09.1977 (Annexure-1).

[2023:RJ-JD:29446] (7 of 11) [CW-2415/1998]

5. On the other hand, Mr. L.K. Purohit, learned Government

Counsel appearing on behalf of the respondent-State has however

drawn the attention of this Court towards the order dated

21.05.1998 (Annexure-10), in which, the learned Authority has

arrived at a finding that the case for imposition of penalty under

Section 70 of the Act of 1959 was not made out. The learned

Authority has also observed that twice the notices of Section 70 of

the Act of 1959 have been quashed, and thus, initiation of any

proceeding under Section 70 of the Act of 1959 was not called for.

The learned Authority however, has clearly pointed out that no

investigation or inquiry under Section 18 of the Act of 1959

whatsoever has ever been conducted.

5.1 Section 18 of the Act of 1959, as per counsel for the

petitioner, has certain points and, in case, any inquiry on those

points is made, the same can decide the controversy finally.

5.2 Section 18 of the Act of 1959, reads as follows:

"Sec. 18 - Inquiry for Registration:

1. On receipt of an application under Sec. 17 or upon an application made by any person having interest in a public trust or on his own motion, the Assistant Commissioner shall make an inquiry in the prescribed manner for the purpose of ascertaining:

(i) whether a trust exists and whether such trust is a public trust:

(ii) whether any property is the property of such trust;

(iii) whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction;

(iv) the names and addresses of the working trustee and the manager of such trust;

(v) the mode of succession to the office of the trustee of such trust;

(vi) the origin, nature and objects of such trust; (vii) the amount of gross average annual income and expenditure of such trust: and

[2023:RJ-JD:29446] (8 of 11) [CW-2415/1998]

(viii) the correctness or otherwise of any other particulars furnished under subsection (4) of Section 17.

2. The Assistant Commissioner shall give in the prescribed manner public notice of the inquiry proposed to be made under sub-section (1) and invite all person having interest in the public trust inquiry to prefer within sixty days objection, if any, in respect of such trust."

5.3 Thus, liberty was given to the authorities concerned to hold

an inquiry under Section 18 of the Act of 1959. Thereafter, the

order dated 21.05.1998 has been challenged and the interim

order is operating against the said order.

6. Learned Senior Counsel, in his rejoinder arguments, submits

that his principal grievance is only against applicability of Section

70 of the Act of 1959 and not against the proceedings under

Section 18 of the Act of 1959 because initiation of such proceeding

at any point of time under Section 18 of the Act of 1959, is not

reflected from the record.

6.1 Learned Senior Counsel further submits that since the

proceedings under Section 17 of the Act of 1959 are not

sustainable and in light of the order dated 15.09.1977 (Annexure-

1), the penalty provisions of Section 70 of the Act of 1959 cannot

be invoked, therefore, in the interest of justice, it is a case where

the controversy pertains to Section 70 in co-relation with Section

17 of the Act of 1959 has to be dropped and has to be given a

finality.

6.2 Learned Senior Counsel also submits that the Temple is a

private property and the petitioners are not interested in coming

into the domain of the Act of 1959, and therefore, the proceeding

to penalize the petitioners again and again under Section 70 of the

[2023:RJ-JD:29446] (9 of 11) [CW-2415/1998]

Act of 1959 was illegal and dehors the rules, and thus, cannot be

sustained in the eye of law.

7. This Court, after hearing learned counsel for the parties as

well as perusing the record of the case, finds that it is a long

drawn controversy with very weak tracks of documentation

because of the passage of time, which is understandable, but the

concrete contours of the controversy brought on record by both

the parties are that there was a Temple, which was private in

nature. The rights of ownership conferred by the erstwhile

Maharana of Mewar upon Late Shri Balram Das and the petitioners

being his legal heirs, although had crystallized their rights, but at

the same time they were facing prosecution by the respondent-

Department on count of Sections 17 and 70 of the Act of 1959,

which is not tenable in the eye of law.

8. It is reflected from whatever record is available that the

repeated notices under Section 70 of the Act of 1959 were of no

avail and the authorities themselves had arrived at a conclusion

that the nature of the property (Temple) was private, and if at all

such nature has to be changed, then any penalty under Section 70

of the Act of 1959 would not serve the purpose, and since the

petitioners are not interested to getting the property registered as

a Public Trust, therefore, Section 17 of the Act of 1959 would also

not operate at this juncture.

9. Thus, this Court finds that the record does not support any

proceedings under Section 70 of the Act of 1959 and at this stage,

continuing such proceedings will not only be prejudicial to the

present petitioners, but it is a futile attempt because it would be

[2023:RJ-JD:29446] (10 of 11) [CW-2415/1998]

pressing the dispute to about 60 years back and putting it in a

right perspective or a clock at this juncture, would be virtually

impossible due to the passage of time. The solution lies in the

record as the order dated 21.05.1998 (Annexure-10) also reflects,

and as agreed upon by the counsel for the parties that while

closing the controversy pertaining to Section of 70 of the Act of

1959, the petition deserves to be decided with liberty to the

respondents to hold an inquiry under Section 18 of the Act of

1959, which can be taken up suo moto, to the discretion of the

authority concerned in accordance with law.

10. In light of the aforesaid observations, the present writ

petition is allowed in the terms that no proceeding under Section

70 of the Act of 1959 whatsoever array in co-relation with Section

17 of the Act of 1959 shall be continued against the petitioners.

However, the respondents shall take the call, if they want to

proceed under Section 18 of the Act of 1959 by conducting a suo

moto inquiry and the legal consequences of such inquiry shall

follow. To avoid any confusion, it is made clear that in case, the

respondent No.2 decides to continue with the inquiry under

Section 18 of the Act of 1959, then without going into the fact that

whether such inquiry was going on or not, a fresh inquiry shall be

instituted strictly in accordance with Section 18 of the Act of 1959

and the parameters so laid down, therefore, if any decision is

taken, it shall not be hit by the limitation law. Further, it is made

clear that since the petitioners have not initiated the proceedings

under Section 17 of the Act of 1959 of getting their Temple

registered as a Public Trust, therefore, the petitioners shall not be

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penalized under Section 70 of the Act of 1979; the respondents

are thus, directed to continue afresh with the inquiry of Section 18

of the Act of 1959, strictly in accordance with law, if so advised. It

is also made clear that the petitioners shall not be made to suffer

any proceeding(s) under Sections 17 and 70 of the Act of 1959

hereinafter, but the respondents shall have complete liberty to

proceed under Section 18 of the Act of 1959.

11. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

6-Zeeshan

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