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S.B. CIVIL WRIT PETITION NO.3208/1996
Rameshwar Dass @ Babu Lal Vaishnav
Vs.
The Commissioner, Devasthan & Ors.
Date of Order :: 17th March 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr.J.L.Purohit,for the petitioner.
Mr.Sanwal Ram Choudhary, Government Counsel.
....
BY THE COURT
By way of this writ petition, challenge is given to the
order dated 01.07.1996 as passed by the Devasthan
Commissioner of the State of Rajasthan at Udaipur (‘the
Commissioner’ hereafter) dismissing the appeal (No.16/1991)
preferred by the petitioner against the order dated 14.03.1991
as passed by the Assistant Devasthan Commissioner, Jodhpur
(‘the Assistant Commissioner’ hereafter) whereby the temple
in question was held to be a public trust and was ordered to be
registered as such under the provisions of the Rajasthan
Public Trusts Act, 1959 (‘ the Act of 1959’).
Having heard the learned counsel for the parties and
having examined the material placed on record, this Court
finds the impugned order as passed by the learned
Commissioner to be essentially an unreasoned order wherein
neither the contentions as urged on behalf of the appellant-
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petitioner have been dealt with nor the reasons behind the
conclusion have been stated with reference to the material
available on record; and, therefore, the appeal is proposed to
be remanded to the Commissioner for decision afresh and in
accordance with law. In this view of the matter, only a brief
reference to the background facts and relevant aspects would
suffice.
The dispute relates to a temple located near village Pal,
Jodhpur that is sought to be claimed by the petitioner to be his
private temple having been constructed and managed by his
ancestors and now by himself. Upon receipt of a complaint
that the temple in question was a public property and the
persons incharge of the affairs of the temple were misusing
the income and were intending to alienate its property, the said
Assistant Commissioner got the matter examined by the
Inspector concerned; and after receipt of the report suggesting
that it were a public trust and liable to be registered under the
Act of 1959, proceeded to issue notices under Sections 17
and 18 of the Act of 1959 for the requisite inquiry. After filing of
the reply by the petitioner and so also the objections by other
persons; and after taking the evidence adduced by the
different parties including the petitioner, the learned Assistant
Commissioner held the trust in question having commenced
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from installation of the deity by Kushal Dass, the ancestor of
the petitioner, and the petitioner being entitled to be
recognised as the hereditary trustee but then, found the trust
income to be more than Rs. 3,000/- per annum and thus, held
it requiring registration under the Act of 1959.
Aggrieved by the order so passed by the Assistant
Commissioner, the petitioner preferred an appeal before the
Commissioner under Section 20 of the Act of 1959 that has
been dismissed by the impugned order dated 01.07.1996. The
learned Commissioner has referred to the facts of the case;
the findings as recorded and the directions as issued by the
Assistant Commissioner; and the contentions as urged on
behalf of the appellant that it were a private temple and merely
for visit of a few devotees did not become a public temple. The
learned Commissioner, thereafter, merely observed that the
evidence adduced made it clear that the temple in question
was a public temple; and that the petitioner Rameshwar Dass
and his ancestors were engaged in sewa-puja after the temple
was constructed by their forefathers. With these observations,
the learned Commissioner concluded that there was no
ground to interfere with the order as passed by the Assistant
Commissioner.
The petitioner contends that his ancestor Khushal Dass
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constructed this temple of Hanumanji near village Pal, Jodhpur
about hundred years back on the land belonging to him and
did install a family deity that was worshiped by his
descendants. While claiming himself to be the present existing
descendant of Khushal Dass and Mahant of the said temple,
the petitioner maintains that the temple in question, wherein
resides his family deity, was constructed on the land belonging
to the said Shri Khushal Dass. It is submitted that though the
temple was intended for private worship, the owners of the
temple had been permitting the members of the public to visit
the same and to worship the deity but and nevertheless, the
temple remains a private trust of the petitioner’s family and the
petitioner is the Mahant of the said temple who had been
managing the same without interference by anybody.
It is contended that in the impugned order dated
14.03.1991, though the Assistant Commissioner recorded the
findings that the temple had been managed by the petitioner
Rameshwar Dass and his predecessors for 5 generations; that
the petitioner was the hereditary Mahant and the sole trustee
of the said temple; that the temple was established by Khushal
Dass, the predecessor of the petitioner; and that the offerings
are made in the temple by the visitors at their sweet will and
are not collected through any donation box or receipt but then,
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while holding that the total collection through offerings was
more than Rs.3,000/- per annum, held it to be a public trust
requiring registration under the Act of 1959 without any
justification. It is further contended that in the appeal taken by
the petitioner several grounds were urged but the learned
Commissioner dismissed the appeal without even stating the
requisite reasons.
The order as passed by the learned Commissioner in
dismissal of the appeal preferred by the petitioner cannot be
approved for the same being essentially an unreasoned order.
Ordinarily, when the first Appellate Authority/Court is having
the final say on the facts; and when the findings of fact as
rendered in the first appeal are taken final and rather binding
unless suffering from perversity or misreading or such akin
shortcomings, it is, as a necessary corollary, expected that
the judgment of the first Appellate Authority/Court is complete
and self-contained with sufficient, even if not elaborate,
discussion to show that the concerned Authority/Court has
applied its mind to the facts and circumstances of the case
and the issues calling for determination. Even when the
Appellate Authority/Court would affirm the impugned decision
of the subordinate Authority/Court, a mere general expression
of concurrence without giving any reasons cannot, ordinarily,
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be taken sufficient.
Moreover, it is to be imbibed that in the scheme of the
Act of 1959, the findings after enquiry as recorded by the
Assistant Commissioner under Section 19 of the Act of 1959,
are subject to only one appeal under Section 20 of the Act and
else, the entries in accordance with the findings recorded by
the Assistant Commissioner follow per Section 21 of the Act.
The Commissioner is invested with the powers to deal with the
appeal against the finding of the Assistant Commissioner
under Section 20 of the Act of 1959 and in case of taking of
appeal, the entries under Section 21 are made by the
Assistant Commissioner in accordance with the decision of the
Commissioner on such appeal. The entries so made under
Section 21 of the Act of 1959, subject to the other provisions of
the said Act, are treated final and conclusive. In such a
scheme of the provisions of the Act of 1959, the necessity of
the Appellate Authority, i.e., the Commissioner to deal with the
contentions urged before him and recording of reasons of his
decision cannot be over-emphasised; and even if not requiring
the detailed, elongated, and encumbered order, the decision
of the Commissioner ought to speak of the reasons prevailing
with him with reference to the material on record and the law
applicable to the case.
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In the present case, it is noticed that even the order as
passed by the Assistant Commissioner, so far the requirement
of compulsory registration under the Act of 1959 is concerned,
had been more or less cursory in nature with one reference to
the fact that according to the enquiry and the statements, the
annual income was more than Rs.3,000/-. And then, as
noticed, the order as passed by the Commissioner is bereft of
the reasons for the conclusions. The order as passed by the
Appellate Authority i.e., the Commissioner, does not show if
the contentions as urged on behalf of the petitioner have been
bestowed requisite consideration and in this view of the
matter, this Court is of opinion that interest of justice shall be
served if the impugned order is set aside and the matter is
remanded to the Commissioner for decision afresh in
accordance with law.
Accordingly, this writ petition is allowed to the extent
indicated above; the impugned order dated 01.07.1996 is set
aside; Appeal No.16/1991 shall stand restored for
reconsideration of the Devasthan Commissioner for the State
of Rajasthan. The parties through their respective counsel
shall stand at notice to appear before the said Commissioner
on 27.04.2009.
There shall, however, be no order as to costs of this writ
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petition.
(DINESH MAHESHWARI), J.
s.soni