//
you're reading...
legal issues

Public interest litigations -Not maintainable when issues are pending in another forum – whether the properties of Galta Peeth have to be treated as public properties or private properties and whether the Mahant has right to alienate them? and whether there is any right of succession to the Galta Peeth and its properties as per order dated 09-06-1943 appointing Mahant; and whether the Mahant was to administer the properties during his life time? – High court dismissed as both issues are pending before the commissioner – Apex court too held same and dismissed the SLP =Public interest litigations -whether the properties of Galta Peeth have to be treated as public properties or private properties and whether the Mahant has right to alienate them? and whether there is any right of succession to the Galta Peeth and its properties as per order dated 09-06-1943 appointing Mahant; and whether the Mahant was to administer the properties during his life time? – High court dismissed as both issues are pending before the commissioner – Apex court too held same and dismissed the SLP = JAIPUR SHAHAR HINDU VIKAS SAMITI … APPELLANT VERSUS STATE OF RAJASTHAN & ORS. … RESPONDENTS=2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41424

Public interest litigations -Not maintainable when issues are pending in another forum – whether the properties  of Galta Peeth have to be treated as public properties or  private  properties and whether the Mahant has right to alienate them? and whether there is any right of  succession  to  the Galta Peeth and its properties as per  order  dated  09-06-1943  appointing Mahant; and whether the Mahant was to administer the properties during  his life time? – High court dismissed as both issues are pending before the commissioner – Apex court too held same and dismissed the SLP =

 

first issue as to whether the properties  of

 Galta Peeth have to be treated as public properties or  private  properties

 and whether the Mahant has right to alienate them?

      The second issue is whether there is any right of  succession  to  the

 Galta Peeth and its properties as per  order  dated  09-06-1943  appointing

 Mahant; and whether the Mahant was to administer the properties during  his

 life time?

  both the issues are pending consideration before

      the Assistant  Commissioner,  Devasthan  Department  as  it  has  been

      admitted by the learned counsel  for  the  respondent  No.  6  (Avdesh

      Kumar), who is presently holding  the  post  of  Mahant.  In  view  of

      aforesaid, Public Interest Litigations can be disposed of as  one  and

      the same issue cannot be decided in Public Interest  Litigation,  when

      statutory enquiry under Section 24 of the Act of 1959 is  pending  for

      consideration before the Assistant Commissioner, Devasthan Department.

      In view of aforesaid, we are of the opinion  that  the  issues  raised

      before us would be decided by the  Assistant  Commissioner,  Devasthan

      Department after hearing all the  parties  and  in  this  regard,  the

      petitioners in the writ petition No. 2321/2006 would be at liberty  to

      participate in the hearing by making a proper  application  and  would

      further be at liberty to  substantiate  their  grounds  by  submitting

      necessary documents.=

 

 

     We feel that it is apt to quote the views expressed by this  Court  in

Guruvayoor Devaswom Managing Committee (supra) wherein this  Court  observed

:


      “It is possible to contend that the Hindus in general and the devotees

      visiting the temple in particular are interested in proper  management

      of the temple at the hands of the statutory functionaries. That may be

      so but the Act is a self-contained Code.   Duties  and  functions  are

      prescribed in the Act and the rules framed  thereunder.   Forums  have

      been created thereunder for  ventilation  of  the  grievances  of  the

      affected persons.  Ordinarily, therefore, such forums should be  moved

      at the first instance.  The State should be asked  to  look  into  the

      grievances of the aggrieved devotees, both as parens patriae  as  also

      in discharge of its statutory duties.


                                …     …     …


      The Court should be circumspect in entertaining such  public  interest

      litigation for another reason.   There  may  be  dispute  amongst  the

      devotees as to  what  practices  should  be  followed  by  the  temple

      authorities.  There may be dispute as regard the rites and rituals  to

      be performed in the temple  or  omission  thereof.   Any  decision  in

      favour of one sector of the people may heart  the  sentiments  of  the

      other.  The Courts normally, thus, at the  first  instance  would  not

      enter into such disputed arena, particularly, when by  reason  thereof

      the fundamental right of a group of devotees under Articles 25 and  26

      may be infringed.  Like any other wing of the State, the  Courts  also

      while passing an order should ensure that the fundamental rights of  a

      group of citizens under Articles 25 and 26 are  not  infringed.   Such

      care and caution on the part of the High  Court  would  be  a  welcome

      step.


                                …     …     …


      When the administration of the temple is within  its  control  and  it

      exercises the said power in terms of  a  Statute,  the  State,  it  is

      expected, normally would itself probe into the alleged irregularities.

      If the State through its machinery as provided  for  in  one  Act  can

      arrive at the requisite finding of fact for the purpose  of  remedying

      the defects, it may not find it necessary  to  take  recourse  to  the

      remedies provided for in another statute.  It is trite  that  recourse

      to a provision to another statute may be resorted to  when  the  State

      finds that its powers under the Act governing the field is inadequate.

       

The High Courts and the Supreme Court would not  ordinarily  issue  a

      writ of mandamus directing  the  State  to  carry  out  its  statutory

      functions in a particular manner.  Normally, the Courts would ask  the

      State to perform its statutory functions, if necessary within  a  time

      frame and undoubtedly as and when an order is passed by the  State  in

      exercise  of  its  power  under  the  Statute,  it  will  examine  the

      correctness or legality thereof  by way of judicial review”.



49.   The concept of Public Interest Litigation is  a  phenomenon  which  is

evolved to bring justice to the reach  of  people  who  are  handicapped  by

ignorance, indigence, illiteracy and other  down  trodden  people.   

Through

the Public Interest Litigation, the cause of  several  people  who  are  not

able to approach the Court is espoused.  In the  guise  of  Public  Interest

Litigation, we are coming across several cases where  it  is  exploited  for

the benefit of certain individuals.  

The Courts have  to  be  very  cautious

and careful while entertaining Public Interest  Litigation.   The  Judiciary

should deal with the misuse of Public Interest Litigation  with  iron  hand.

If the Public Interest Litigation  is  permitted  to  be  misused  the  very

purpose for which it is conceived, namely to come to the rescue of the  poor

and down trodden  will  be  defeated.   

The  Courts  should  discourage  the

unjustified litigants at  the  initial  stage  itself  and  the  person  who

misuses the forum should be made  accountable  for  it.   In  the  realm  of

Public Interest Litigation, the Courts while protecting  the  larger  public

interest involved, should at the same time have to  look  at  the  effective

way in which the relief can be granted  to  the  people,  whose  rights  are

adversely affected or at stake.  

When their interest can  be  protected  and

the controversy or the dispute can be adjudicated  by  a  mechanism  created

under  a  particular  statute,  the  parties  should  be  relegated  to  the

appropriate forum, instead  of  entertaining  the  writ  petition  filed  as

Public Interest Litigation.

 50.  In view of the above discussion and the law laid down  by  this  Court

and particularly taking into consideration that the  appellant  has  already

availed statutory remedies and the appeals  are  still  pending  before  the

Commissioner, we do not find any  reason  to  interfere  with  the  impugned

order.



51.   Accordingly, the appeals fail and are dismissed with no  order  as  to

costs.   

2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41424

P SATHASIVAM, RANJAN GOGOI, N.V. RAMANA

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs.4593-4594 OF 2014
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NOs. 28021-28022 OF 2010
JAIPUR SHAHAR HINDU VIKAS SAMITI … APPELLANT

VERSUS

STATE OF RAJASTHAN & ORS. … RESPONDENTS
JUDGMENT
N.V. RAMANA, J.

 

Leave granted.
2. The present Civil Appeals arise out of the common order dated 4th
May, 2010 passed by the High Court of Judicature for Rajasthan at Jaipur
Bench, Jaipur. The facts as culled out from the impugned order dated 4th
May, 2010 are – The appellant herein filed a Public Interest Litigation
i.e. D.B. (Civil) Writ Petition No. 2321/2006 alleging misappropriation of
property of Galta Peeth/Thikana (3rd respondent herein); whether Mahanth
appointed vide order dated 09.06.1943 was to administer the properties
during his life time or there was a right of succession. D.B. (Civil) Writ
Petition No. 5111 of 2004 was also filed by one Mahanth Ram Saran Das as a
Public Interest Litigation, whereas D.B. (Civil) Writ Petition No. 6607 of
2004 was filed by Mahant Shri Ramodaracharya challenging the notifications
dated 17.09.2004 whereby Chapter 10 of the Rajasthan Public Trust Act, 1959
was made applicable to the Trust and notification dated 18.09.2004 whereby
a Committee under Section 53 of the Act was appointed in respect of the
Trust. D.B. (Civil) Writ Petition No. 5650 of 2007 was filed by the Mandir
Thikana Shri Galtaji. Though D.B. (Civil) W.P. No. 6607 of 2004 and D.B.
(Civil) W.P. No. 5650 of 2007 were filed before the learned single Judge,
as all the issues revolve around Galta Peeth and properties of Thikana
Galta, the writ petitions before the learned single Judge were called and a
common order was passed by the High Court.
3. For better appreciation of facts, the relief sought in D.B. (Civil)
W.P. No. 2321 of 2006, which is a Public Interest Litigation, the order
which is impugned in the Civil Appeal @ SLP(C) No. 28021 of 2010 is
extracted below:
(i) by an appropriate writ, order or direction in the nature
whereof, this Hon’ble Court may be pleased to declare that the
Galta Peeth / Thikana, its temples and properties are public
properties and not private or individual properties and it may
be dealt with in the manner public properties are dealt with;
and
(ii) by an appropriate writ, order or direction in the nature
whereof, the Hon’ble Court may be pleased to restrain respondent
No. 4 Shri Avadhesh Kumar or any of the other legal
representative of late Shri Ramodaracharya as well as respondent
No. 5 Shri Raghavacharya in any manner using, managing or
interfering in the temples and properties of the Galta
Peeth/Thikana and its accompanying temples;
(iii) by an appropriate writ, order or direction in the nature
whereof, the State Government should be directed to take over
control and management of the temples and properties of the
Galta Peeth/Thikana and appoint a Board to manage the properties
and temples of the Galta Peeth in line with the Vaishno Devi
Shrine or Tirupati Balaji Temple or in any other manner which
this Hon’ble Court may deem fit and proper; and
(iv) by further appropriate writ, order or direction in the nature
whereof, the Hon’ble Court may be pleased to direct the State
Government to submit a list of the properties of the Galta Peeth
to the Hon’ble Court as well as the list of properties which had
been sold by the former Mahant Shri Ramodaracharya or his family
members including Shri Avadhesh Kumar and others.
4. The High Court, after taking into consideration the material placed
before it, disposed of all the four writ petitions by a common order.
5. The High Court has framed two issues in the Public Interest
Litigation. It summarized the first issue as to whether the properties of
Galta Peeth have to be treated as public properties or private properties
and whether the Mahant has right to alienate them?
The second issue is whether there is any right of succession to the
Galta Peeth and its properties as per order dated 09-06-1943 appointing
Mahant; and whether the Mahant was to administer the properties during his
life time?
6. The High Court considered the provisions of Section 24 of the
Rajasthan Public Trust Act, 1959 (hereinafter referred to as ‘the Act’) and
also the objections filed by the petitioner in W.P. (Civil)
No. 5111 of 2004 which was filed by one Mahant Ram Saran Das. The Advocate
General brought to the notice of the High Court that the issue of
succession of Mahant and also the issue of properties of Galta
Peeth/Thikana are pending before the Assistant Commissioner, Devasthan
Department, in Complaint Nos. 1 of 2004, 1 of 2006 and 1 of 2007.
Respondent No. 4 in that writ petition consented for the disposal and
adjudication of these issues by the Assistant Commissioner. Accordingly,
the High Court, passed common order in the writ petitions in the following
terms:
“We have considered rival submissions made by the learned counsel
for the parties and perused the record.
The issues raised in two Public Interest Litigations have been
narrated while dealing with the arguments of learned counsel for the
petitioners. The first issue is regarding nature of appointment of
Mahant in the year 1943. As to whether the post of Mahant will go in
succession to the legal heirs in view of the fact that late Mahant
Ramodaracharya is no more. The other issue is that as to whether the
property of Galta Peeth/Thikana is public property or property
belonging to individual.
According to us, both the issues are pending consideration before
the Assistant Commissioner, Devasthan Department as it has been
admitted by the learned counsel for the respondent No. 6 (Avdesh
Kumar), who is presently holding the post of Mahant. In view of
aforesaid, Public Interest Litigations can be disposed of as one and
the same issue cannot be decided in Public Interest Litigation, when
statutory enquiry under Section 24 of the Act of 1959 is pending for
consideration before the Assistant Commissioner, Devasthan Department.
In view of aforesaid, we are of the opinion that the issues raised
before us would be decided by the Assistant Commissioner, Devasthan
Department after hearing all the parties and in this regard, the
petitioners in the writ petition No. 2321/2006 would be at liberty to
participate in the hearing by making a proper application and would
further be at liberty to substantiate their grounds by submitting
necessary documents.
… … …
Learned counsel Shri S.R. Bajwa appearing for Respondent No. 6 in
Writ Petition No. 5111 of 2014 further submits that they have no
objection if the issue of succession of Mahant so as the issue as to
whether the property of Galta Peeth/Thikana is individual property or
public property is decided by the Assistant Commissioner and further
if the petitioner in the Writ Petition No. 2312/2006 makes an
application and participate in the hearing, they have no objection.
… … …
We expect from the Assistant Commissioner, Devasthan Department
that he will look into the matter entirely and thereupon record his
finding by a speaking order while deciding both the issues. It goes
without saying that whatever is the outcome of the order passed by the
Assistant Commissioner, Devasthan Department, the consequences will
follow.
With the aforesaid observation, both the writ petitions by way of
Public Interest Litigation are disposed of.”
7. The High Court has dismissed D.B. (Civil) W.P. No. 5650 of 2007 filed
by Mandir Thikana Shri Galtaji, as withdrawn basing on the submission of
the learned counsel that in the light of the order passed in Public
Interest Litigations, petitioner may be permitted to withdraw the writ
petition with a liberty to take pleas before the Assistant Commissioner,
Devasthanam Department.
8. D.B. (Civil) W.P. No. 6607 of 2004 was dismissed as withdrawn basing
on the submission made by the counsel for the petitioner that the term of
the Committee concerned was only five years and which has came to an end in
the year 2009, and hence the writ petition may be rendered infructuous and
the petitioners be given liberty to raise other issues about the
notification which was issued under Chapter 10, if need so arises.
The High Court observed that – “It is agreed by all the parties that
till the matter is decided by the Assistant Commissioner, Devasthan
Department, they will maintain status quo in respect of the office of
Mahant as well as regarding property of Galta Peeth/Thikana.”
9. Aggrieved by the order passed in D.B. (Civil) W.P. No. 2321 of 2006,
Civil Appeal @ SLP(C) No. 28021 of 2010 was filed and whereas against the
order passed in D.B. (Civil) W.P. No. of 6607 of 2004 which was filed by
the father of the 4th respondent herein, wherein the appellant herein was
not a party, has sought leave of the Court and preferred Civil Appeal @
SLP(C) No. 28022 of 2010 on the ground that the High Court without going
into the merits, rendered the matter infructuous and which resulted in
miscarriage of justice and irreparable injury to the public interest.
Accordingly, these two appeals are placed before us, which arise out of a
common order of the High Court.
10. We have heard the counsels at length. It is mainly contended by the
learned counsel appearing for the appellant that the writ petitions were
disposed of by the High Court without considering any of their contentions
and particularly the reliefs sought in writ petitions, namely (i) a
declaration to the effect that Galta Peeth/Thikana, its temples and
properties are public properties; (ii) a restraint order against legal
representatives of deceased Ramodaracharya, including Respondent No. 4 (the
present Mahant) from interfering with the management of the Galta Peeth;
(iii) a direction to the State Government to take over the management of
the Galta Peeth; and (iv) call for a list of its properties and the
properties sold by the deceased Ramodaracharya and his family members.
11. He further contended that even though, the above reliefs were prayed
for, but the High Court, without considering the public interest involved,
in a casual manner, has disposed of the writ petition. The High Court has
failed to take into consideration the material aspect in D.B. (Civil) W.P.
No. 6607 of 2004 filed by the father of Respondent No. 4 and without going
into the merits, simply rendered the matter infructuous. The reason given
by the High Court for its disposal is that the term of five years of the
Committee of Management appointed by the Government has come to an end and
hence the matter has become infructuous and no cause survives. In fact, by
an interim order of the Court, the Committee was prevented from discharging
its duties and it did not function for a period of five years. In view of
Section 53 of the Act, the Managing Committee shall function till such time
permanent arrangement is made for the management of the Trust in question
or in the alternative, the State Government may be directed to appoint
another Managing Committee comprising independent persons.
12. Another contention advanced by the counsel was that the reliefs
sought in the writ petition cannot be considered by the Assistant
Commissioner in view of the fact that the Assistant Commissioner does not
have such jurisdiction to decide the issues raised.
13. To substantiate his contention, the learned counsel submitted that as
per the provisions of the Act, it is the Court within the meaning of sub-
section (6) of Section 2 of the Act, which has to appoint the members of
the Trust. But, the 4th respondent, himself, nominated the members of the
Trust and usurped the office of the Trust without any authority of law.
Under Section 41 of the Public Trust Act, he has to apply to the concerned
Court and under Section 43 it is the power of the Court to appoint the
trustees with regard to the custom or usage and, as per the provisions of
Section 53(1) of the Act a committee of management has to be appointed in
place of the Respondent No.4 by the State to protect the properties of the
Galta Peeth and the Respondent No.4 cannot appoint his own trustees and the
State Government has to appoint the working trustee in accordance with the
Act.
14. During the pendency of the reconstitution of the Committee of
Management under Section 53 of the Act, a direction to the State Government
was sought to appoint a Managing Committee of independent persons to
protect the interests of the trust. He contended that the order of the
High Court disposing of the writ petition was unmindful and has resulted in
serious miscarriage of justice and irreparable injury to public interest.
Under Section 53 of the Act, the Government is bound to appoint another
Committee or re-appoint the erstwhile members of the Committee. The High
Court has created a vacuum not contemplated by the Act, which is against
public interest.
15. In support of his contentions, learned senior counsel for the
appellant has relied upon the decisions of this Court in Seth Badri Prasad
Vs. Seth Nagarmal & Ors. (1959) Supp. 1 SCR 769; Shehla Burney (Dr.) Vs.
Syed Ali Moosa Raza & Ors. (2011) 6 SCC 529; Rural Litigation and
Entitlement Kendra Vs. State of U.P. (1989) Supp 1 SCC 504; Padma Vs.
Hiralal Motilal Desarda & Ors. (2002) 7 SCC 564 and Bangalore Medical Trust
Vs. B.S. Muddappa & Ors. (1991) 4 SCC 54.
16. In addition to the oral submissions, learned senior counsel for the
appellant has also placed before us detailed written submissions and
chronology of events from 15th century onwards about the formation of the
trust to till date and had taken us through various provisions of the Act
and also placed the pedigree of the Mahants starting from the founder
Mahant and submitted that submission based on statutory provision can be
raised at any stage.
17. Respondent No. 4 filed an interlocutory application raising
preliminary objections about the maintainability of these appeals and
narrated the earlier litigation. While the D.B. (Civil) W.P. No. 2321 of
2006 was pending, the High Court, by an interim order dated 4th May, 2007,
restrained the Respondent No. 4 herein to deal with the properties of the
Galta Peeth as a working trustee. Aggrieved thereby, Respondent No. 4 filed
a Special Leave Petition before this Court. Consequently it became Civil
Appeal No. 3746 of 2009.
18. During the pendency of Civil Appeal No. 3746 of 2009, the Writ
Petitions before the High Court were disposed of on 4-5-2010 holding that
since the issues raised are already pending consideration before the
Assistant Commissioner, Devasthan Department the parties may raise their
grievances before him. Accordingly, Civil Appeal No. 3746 of 2009 filed
against interim order of the High Court, was also dismissed by this Court
on 08.07.2013 as having become infructuous.
19. It is contended by the learned counsel for the Respondent
No. 4 that the appellant has misused the pendency of Civil Appeal No. 3746
of 2009. Taking advantage of the pendency of Civil Appeal No. 3746 of
2009, the appellant has filed the present appeals. The appellant moved an
application before this Court for dismissal of Civil Appeal No. 3746 of
2009 as it has become infructuous in view of the impugned order of the High
Court. But, deliberately and intentionally the appellant did not move any
application for formal dismissal in the present appeals, though they too
have become infructuous.
20. Relying upon the order of the Division Bench of the High Court, it is
contended that after the disposal of the writ petition, as per the
directions of the High Court, the appellant herein has impleaded himself
and filed objections before the Assistant Commissioner in the statutory
appeal. Taking into consideration the provisions of
Sections 21, 38 and 41 of the Act, the Assistant Commissioner rejected the
same by three separate speaking orders dated
28th March, 2013. Against those orders, the appellant has already filed
appeals before the Commissioner, which are pending for consideration. Hence
these Civil Appeals are not maintainable.
21. Apart from preliminary objections, learned counsel appearing for the
respondents addressed on the main issues also and relied upon different
provisions of the Act. The counsel brought to our notice that in fact as
early as on 19-5-1928 itself a list of properties of Galta Peeth was drawn
up, including some of the private properties of the Mahant i.e. residential
house etc. Thereafter, a series of legal proceedings have taken place
between the Government, private parties and the Galta Peeth and their
rights are crystallized in the respective litigations. According to him,
the appellants have again raked up the issue in the guise of Public
Interest Litigation, which was already subject matter of dispute in the
earlier round of litigation.
22. It is also stated by the counsel that after the Act has come into
force, the Mahant submitted a list of properties on 25-10-1962 to the Jagir
Commissioner wrongly showing some of his personal properties as trust
properties and this list of properties was the same as submitted in 1928.
It is also prayed before us that on 31st December, 1962 the Mahant made an
application for registration of the Mandir Thikana Shri Galtaji as public
trust under the Act and made it clear that the mode of succession to the
office of Trustee will be by way of ‘custom and usage’. The said trust was
registered by the Assistant Commissioner on 26th April, 1963. It is also
contended that in the list of trust properties which were also submitted
along with the application, and which list became final, the property in
question has not been shown as trust property and the said list has never
been questioned.
23. Relying upon several documents as well as counter affidavit and
provisions of the Act, it is contended that in view of the fact that the
issues are pending before the competent authority, subsequent orders passed
by the Assistant Commissioner against which appeals are pending before the
Commissioner, there is no need for this Court to entertain these appeals
and they have to be dismissed as the appellant cannot litigate
simultaneously before the appellate authority and this Court. It is also
contended that there is no allegation against Avadesh Kumar (Respondent
No.4) who is the present Mahant and in view of the pendency of the appeals
before the Commissioner, the appellant cannot come before this Court and
misuse the forum in the guise of Public Interest Litigation.
24. To substantiate his arguments, learned counsel relied on the
Judgments of this Court in Guruvayoor Devaswom Managing Committee & Anr.
Vs. C.K. Rajan & Ors. (2003) 7 SCC 546 and Church of North India Vs.
Lavajibhai Ratanjibhai & Ors. (2005) 10 SCC 760. A counter affidavit has
been filed by the Assistant Commissioner of behalf of the State of
Rajasthan stating that the appellant is trying to confuse the issues and
supported the judgment of the High Court in all respects and further stated
that the present appeals are not maintainable
25. In view of the extensive arguments submitted on behalf of either
side, the following issues fall for consideration before this Court:

1. Whether the High Court was right in relegating the parties to the
Assistant Commissioner without going into the merits and legal issues
involved in the case?

2. Whether the Assistant Commissioner has got the authority and
jurisdiction under the Act to deal with complicated issues involved in
the matter?

3. Whether the appellant herein is aggrieved by the order passed in Writ
Petition (C) No. 6607 of 2004, wherein the writ petition was dismissed
as infructuous?

26. Before we deal with the above issues, it is necessary to examine the
relevant provisions of the Rajasthan Public Trust Act, 1959 which came into
force w.e.f. 1st July, 1962.
Chapter 5 of the Act covers Sections 16 to 29 and it deals with
Registration process of a public trust. As per Section 16, the Assistant
Commissioner shall be in charge of the registration and he maintains a
register. Section 17 explains the procedure for registration of public
trusts which reads thus:
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.
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 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.
Thus, Section 17 mandates that within three months from the date of
enforcement of this Section to a public trust, the working trustee can make
an application to the Assistant Commissioner, in the prescribed form for
registration. Sub-Section (4) of Section 17 prescribes the particulars
which shall contain in the application so made. Clause (v) of sub-Section
(4) specifies that the application shall contain a list of movable and
immovable trust property. Under sub-Section (7) an appeal shall lie before
the Commissioner against the order of the Assistant Commissioner within a
period of sixty days.
27. Section 18 describes the procedure of inquiry to be undertaken by the
Assistant Commissioner for registration of the public trust. The said
Section reads thus:
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
viii) the correctness or otherwise of any other particulars furnished
under sub-section (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.
28. On completion of the inquiry as contemplated under section 18, the
Assistant Commissioner shall record his findings as provided under Section
19 of the Act. Section 20 of the Act makes the provision for Appeal and
reads thus:
“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.”
29. Section 21 of the Act prescribes that the Assistant Commissioner shall
cause entries to be made in the register and under sub-section (2) the
entries so made shall become final and conclusive. As per Section 22, if
anyone is aggrieved by any entry, he may institute a civil suit. If there
is any necessity for changes in the entries so recorded in the register,
the working trustee can make an application under Section 23(1) to the
Assistant Commissioner. After holding an inquiry under Section 23(2) the
Assistant Commissioner can change the entries. Section 24 enables the
Assistant Commissioner to undertake further inquiry, at any time after the
entries are made under Section 21 or 23. The said Section reads thus:
24. Further inquiry by Assistant Commissioner:
If, at 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.
30. It is the duty of the Auditor under Section 34 of the Act, to prepare
balance sheet of the public trust and to report irregularities, if any, and
the Auditor has to forward a copy thereof to the Assistant Commissioner. It
is further the duty of the Auditor to mention in the report in case of any
irregularity, illegality or improper expenditure, failure or omission to
recovery moneys or other property belonging to the public trust or of loss
or waste of money or other property thereof.
31. Chapter 8 of the Act deals with Management of trust property. Section
38 therein provides for issuing directions by the Assistant Commissioner on
an application filed by any person having interest in a public trust or
otherwise that (a) the original object of the public trust has failed; (b)
the trust property is not being properly managed or administered; or (c)
the direction of the Court is necessary for the administration of the
public trust, he can direct inquiry after giving the working trustee an
opportunity of being heard.
32. Section 39 provides that where the Assistant Commissioner rejects an
application, fails or refuses to make an application to the Court, an
appeal lies to the Commissioner. On receipt of an application made under
Sections 38 or 39, the Court shall consider and pass appropriate orders
under Section 40 of the Act. Section 41 envisages that if the present
working trustee of a public trust, for any reasons mentioned therein, can
make an application to the Assistant Commissioner having jurisdiction
seeking permission to apply to the Court for appointment of a new working
trustee and the Court under Section 43 of the Act can make inquiry and pass
an order.
33. Section 49 of the Act empowers the Assistant Commissioner to ask for
explanation of the working trustee. If the Assistant Commissioner, on a
perusal of the report of the auditor made under Section 34, is of the
opinion that material defects exist in administration of the public trust,
he may require the working trustee to submit an explanation thereon within
such period as he thinks fit.
34. Some special provisions are provided to public trusts under Chapter
10. Section 52 emphasizes how this chapter is applied to a public trust.
It provides that this Chapter applies to every public trust which has a
gross annual income of Rs. 1.00 lakh or more or is maintained or managed by
the State Government. Sub-section (2) provides that it is the duty of the
State Government to publish in the official gazette a list of the public
trusts to which this chapter applies. The amended sub-section (3) makes it
clear that for the purpose of maintaining public order, the State
Government may suspend by notification in the official gazette, the
application of this Chapter to any public trust or the procedure for
constitution of committee of management under this Chapter for such period
as may be specified in such notification.
35. Section 53 as amended on 9th May, 2007 provides that if the State
Government is satisfied with the public interest, it ‘may’, by notification
in the official gazette, vest the management of a public trust in a
committee of management to be constituted by it. Before the said amendment,
the old Act contained the word ‘shall’ in place of ‘may’. Thus, before the
amendment, it was compulsory for the Government to constitute a committee
which was diluted by introducing the provision as ‘may’.
36. Sub-section (5) of Section 53 states that the Committee of Management
which is to be appointed by the Government, must include, the hereditary
trustee in case of a public trust whereas in case of a Math, the head
thereof as the Chairman of the Committee of Management.
37. Whenever the State Government decides to appoint a Committee of
Management under Section 53, a notice shall be issued under Section 54 to
the hereditary trustee or the head of the Math, as the case may be, about
the intention of the Government to constitute the committee and shall hear
their objections, if any. Under Section 55 of the Act one can be
disqualified from being considered as a member of the Committee of
Management. According to Section 56, the term of office of the committee is
five years.
38. Section 67 of the Act provides that the officers holding enquiries
shall have the power of civil Court. The Section reads thus:
In holding enquiries under the Act, the Commissioner or an
Assistant Commissioner shall have the same powers as are vested in
civil Courts in respect of the following matters under the Code of
Civil Procedure, 1908 (Central Act V of 1908) trying a suit –
a) Proof of facts by affidavits;

b) Summoning and enforcing the attendance of any persons and examining
him on oath;

c) Compelling the production of documents; and

d) Issuing of Commissions.

39. From the above, it is evident that all the officers holding enquiry
under the Act i.e. the Commissioner and Assistant Commissioner, have the
power of a civil Court in respect of proof of facts by affidavits, for
summoning and enforcing the attendance of any person and examining him on
oath and further compelling the production of documents and issue of
Commissions.
40. A detailed examination of the Act reveals that it is a
self-contained Act. We have thoroughly examined the Sections and each and
every provision of law that is relevant for the purpose of the case on hand
and find that the Act has provided appropriate mechanism (a) to deal with
the registration of a public trust;
(b) making of entries in the register, their correction and inquiry, if
any; (c) duties of auditor and inspection of balance sheet by any person
interested in such public trust; (d) application by any person seeking
directions from the Assistant Commissioner to appoint a new working trustee
on the ground that the properties of the trust are not being properly
managed or administered; (e) power of the Assistant Commissioner to ask for
explanation of the working trustee about the administration of the trust;
and (f) in case of mismanagement, power of the State Government to appoint
a new committee of management etc.
41. Now in the light of the above provisions of the Rajasthan Public
Trust Act, we would like to deal with the submission of the counsel on
either side and the legality or otherwise of the order passed by the High
Court.
It appears from the material placed before us that there is a long
standing dispute with regard to the properties of the Galta Peeth/Thikana
which was established in the 15th century by one Mahant Shri Krishnadas
Payohari. Later on 06.07.1943, Ramodaracharya, the father of respondent
No.4 herein was appointed as Mahanth by the ruler. The Rajasthan Public
Trusts Act 1959 has come into force w.e.f. 01.07.1962. The case of the
appellant is that on 25.10.1962, the Mahant submitted a list of properties
to the Jagir Commissioner showing some of the properties of the Trust as
his personal properties. Then the Mahanth has executed gift deeds in
favour of his wife and sons. On 31.12.1962, Mahant Ramodaracharya made an
application for registration of the Mandir Thikana Shri Galtaji as a Public
Trust under the Act. In the application, as regards the mode of succession
of the Office of the Trustee, he stated that it would be “by custom and
usages”. On 26.04.1963, the Assistant Commissioner passed order
registering the Trust. Later on, a series of litigation went on between
the parties with regard to the properties of the Trust/Math. When the
Government appointed a five-Member Committee for proper management of the
Trust, challenging the same D.B. (Civil) W.P. No.6607 of 2004 was filed.
When the Assistant Commissioner re-opened the issue of succession, 4th
respondent herein filed D.B. (Civil) W.P. No.5650 of 2007. Two Public
Interest Litigations i.e. D.B. (Civil) W.P. No. 5111 of 2004 and D.B.
(Civil) W.P. No. 2321 of 2006 were filed seeking to declare (a) the
properties are trust properties, (b) the mode of succession, (c) direct the
Government to take over the management of the trust and (d) to appoint a
Board to manage the properties in line with Vaishno Devi Shrine or Tirupati
Balaji Temple.
42. The above narrated facts disclose that either in the Public Interest
Litigation or in the private civil litigation, the entire issues revolve
around the properties of Galta Peeth and the mode of succession to the
Peeth. Already in respect of these issues, by the time, these writ
petitions were filed, statutory enquiry application
Nos. 1/2004, 1/2006 and 1/2007, under Section 24 of the Act, were pending
before the Assistant Commissioner. Hence, the High Court felt that those
issues can be effectively decided by the Assistant Commissioner, and
accordingly, permitted the appellant to implead himself in the pending
applications before the authority. In view of the statutory provisions, as
narrated and discussed by us supra, which give extensive powers to the
Assistant Commissioner and Commissioner, in some cases the power of the
civil Court to effectively decide the issues of the Public Trust, by
providing effective mechanism, we are unable to agree with the contentions
advanced by the learned counsel that the Assistant Commissioner has no
jurisdiction to adjudicate the disputes involved, because the Act clearly
demonstrates the power and jurisdiction of the Assistant Commissioner in
deciding the issues pertaining to public trust and particularly the issues
raised before us.
43. Apart from that, the appellant herein has impleaded himself in the
applications pending before the Assistant Commissioner which were disposed
of by him vide orders dated 28.03.2013, and against those orders of the
Assistant Commissioner, it appears that the parties have preferred appeals
as provided under the Act. The appellant having availed the alternative
remedy available under the Act, however, approached this Court by way of
these Civil Appeals. In our opinion, the appellant cannot be permitted to
avail two remedies simultaneously, and such conduct of the appellant is
abuse of process of Court. It is no doubt settled law that mere
availability of alternative remedy cannot be a ground to reject the relief
in a Public Interest Litigation, but in the facts and circumstances of the
case, namely the history of the case, right from 15th century, the long
standing litigation, the voluminous record, etc. involving disputed
questions of facts and law, we are of the considered opinion that
adjudication of such disputes is not possible in a Public Interest
Litigation, and the remedy is to get such disputes adjudicated by a fact
finding authority as enumerated under the Act, which remedy is not only
alternative, but also effective, because the parties can put a quietus to
the litigation once for all. Hence, in view of our above discussion, we
are of the considered opinion that the High Court, by the impugned order,
was justified in relegating the parties to the Assistant Commissioner,
before whom the applications are pending adjudication. The appellant
having got impleaded himself in the applications before the Assistant
Commissioner and having invited an order from the High Court, now cannot be
permitted to question the said order of the High Court. Accordingly, the
first and second issues are answered.
44. Third issue that requires our consideration is whether the appellant
herein is aggrieved by the orders passed in D.B. (Civil) W.P. No. 6607 of
2004, which was dismissed as infructuous. The case of the appellant is
that the High Court should not have dismissed the writ petition as
withdrawn basing on the submission that the term of the Committee has
expired. It ought to have decided the issue on merits. By this order, the
High Court has created a vacuum not contemplated by the Act, which is
against Public Interest, in view of the status quo orders passed by the
Court, the Committee could not function its full period. Hence, the
Committee has to be allowed to function till a permanent Committee is
appointed by the Government.
45. We are also not able to appreciate the argument advanced by the
learned counsel for the appellant for reason that D.B. (Civil) W.P. No.
6607 of 2004 was filed by the father of Respondent No.4 herein questioning
the constitution of the Committee. When the Court directed the parties to
appear before the Assistant Commissioner for proper adjudication of the
issues as the five-year term of the Committee expired, the 4th respondent
sought permission of the Court and withdrew the writ petition, with a
liberty to raise all the issues before the authority. The appellant herein
who was not a party to D.B. (Civil) W.P. No. 6607 of 2004 has not chosen to
implead himself nor objected to the withdrawing of the writ petition when
the order was passed in his presence. He is taking such an objection and
such plea for the first time before this Court. He relied on Shehla Burney
(Dr.) Vs. Syed Ali Moosa Raza & Ors. (2011) 6 SCC 529; that on technical
objection, this Court cannot reject to grant relief to the appellant in
this Public Interest Litigation. There is no dispute with regard to the
legal proposition that technicalities should not come in the way of the
Court in granting relief in a Public Interest Litigation, but application
of a legal proposition depends upon the facts and circumstances of each
case.
Here we deem it appropriate to extract Section 53 which reads thus:

Sec. 53 – Management of public trusts to which this chapter applies:
1. Notwithstanding anything contained in any provision of this Act or
in any law, custom or usage, if the State Government is satisfied that
it is expedient in public interest so to do, it may, by notification
in the official Gazette, vest the management of a public trust to
which this Chapter applies in a committee of management to be
constituted by it in the manner hereinafter provided from such date as
may be appointed by it in this behalf.
2. On or before the date so fixed under Sub-Sec. (1) in respect of a
public trust, the State Government shall subject to the provision
contained in Sec. 54, constitute by notification in the official
Gazette a Committee of management thereof under such Committee shall
be deemed to be the working trustee of the said public trust and its
endowment.
Provided that upon the combined request of the trustee of and persons
interested in several public trusts representing the same religion or
persuasion, the State Government may constitute a Committee of
management for all of them, if their endowments are situated in the
same city, town or locality.
3. Every Committee of management constituted under sub-sec. (2) shall
be a body corporate having perpetual succession and a common seal,
with power to acquire, hold and dispose of property subject to such
conditions and restrictions as may be prescribed and may by the name
specified in the notification under sub-section (2) sue and be sued.
4. A committee of management shall consist of a Chairman and such even
number of members not exceeding ten and not less than two as the State
Government may determine.
5. The Chairman and members of a committee of management shall be
appointed by the State Government by notification in the official
Gazette from amongst –

(a) trustee of public trusts representing the same religion or
persuasion and having the same objects, and

(b) person interested in such public trusts or in the endowments
thereof or belonging to the denomination for the purpose of
which or for the benefit of whom the trust was founded, in
accordance with the general wishes of the person so interested
so far as such wishes can be ascertained in the prescribed
manner.

 

 

 

Provided that in the case of a public trust having a hereditary
trustee, such trustee, and in the case of a Math, the head thereof,
shall be the Chairman of the committee of management, if he is willing
to serve as such.
46. In this case, a Committee was constituted pursuant to notification
dated 18.09.2004, and the term of the Committee expired on 17.09.2009, and
even though four years have passed from the date of expiry of the term of
the Committee, the Government has not chosen to appoint a fresh Committee.
The appointment of the Committee invoking Section 53, depends upon the
satisfaction and necessity felt by the Government. It is brought to our
notice that the notification was issued by the Government invoking
unamended Section 53 of the Act. The said Section has now been amended on
12.10.2007, where the Government was given discretion to appoint or not to
appoint the Committee. We have gone through the amended Section 53 of the
Act wherein the word ‘may” has been substituted in the place of ‘shall’.
The Assistant Commissioner has already passed an order and the same is
subject matter of appeal before the Commissioner. In view of the same, we
are not able to
appreciate the contention of the counsel that a permanent Committee has to
be appointed to look after the management of the Galta Peeth, and such
contention, deserves no consideration by this Court, and is accordingly
rejected, and further hold that the order passed by the High Court in D.B.
(Civil) W.P. No. 6607 of 2004 is perfectly valid. Accordingly, issue No.3
is answered.
Under the circumstances, we cannot give any direction to the
Government to invoke Section 53 for appointment of a Committee of
Management to the trust.

47. The scope of Public Interest Litigation is very limited,
particularly, in the matter of religious institutions. It is always better
not to entertain this type of Public Interest Litigations simply on the
basis of affidavits of the parties. The public trusts and religious
institutions are governed by particular legislation which provide for a
proper mechanism for adjudication of disputes relating to the properties of
the trust and their management thereof. It is not proper for the Court to
entertain such litigation and pass orders. It is also needless to mention
that the forums cannot be misused by the rival groups in the guise of
public interest litigation.

48. We feel that it is apt to quote the views expressed by this Court in
Guruvayoor Devaswom Managing Committee (supra) wherein this Court observed
:

“It is possible to contend that the Hindus in general and the devotees
visiting the temple in particular are interested in proper management
of the temple at the hands of the statutory functionaries. That may be
so but the Act is a self-contained Code. Duties and functions are
prescribed in the Act and the rules framed thereunder. Forums have
been created thereunder for ventilation of the grievances of the
affected persons. Ordinarily, therefore, such forums should be moved
at the first instance. The State should be asked to look into the
grievances of the aggrieved devotees, both as parens patriae as also
in discharge of its statutory duties.

… … …

The Court should be circumspect in entertaining such public interest
litigation for another reason. There may be dispute amongst the
devotees as to what practices should be followed by the temple
authorities. There may be dispute as regard the rites and rituals to
be performed in the temple or omission thereof. Any decision in
favour of one sector of the people may heart the sentiments of the
other. The Courts normally, thus, at the first instance would not
enter into such disputed arena, particularly, when by reason thereof
the fundamental right of a group of devotees under Articles 25 and 26
may be infringed. Like any other wing of the State, the Courts also
while passing an order should ensure that the fundamental rights of a
group of citizens under Articles 25 and 26 are not infringed. Such
care and caution on the part of the High Court would be a welcome
step.

… … …

When the administration of the temple is within its control and it
exercises the said power in terms of a Statute, the State, it is
expected, normally would itself probe into the alleged irregularities.
If the State through its machinery as provided for in one Act can
arrive at the requisite finding of fact for the purpose of remedying
the defects, it may not find it necessary to take recourse to the
remedies provided for in another statute. It is trite that recourse
to a provision to another statute may be resorted to when the State
finds that its powers under the Act governing the field is inadequate.
The High Courts and the Supreme Court would not ordinarily issue a
writ of mandamus directing the State to carry out its statutory
functions in a particular manner. Normally, the Courts would ask the
State to perform its statutory functions, if necessary within a time
frame and undoubtedly as and when an order is passed by the State in
exercise of its power under the Statute, it will examine the
correctness or legality thereof by way of judicial review”.
49. The concept of Public Interest Litigation is a phenomenon which is
evolved to bring justice to the reach of people who are handicapped by
ignorance, indigence, illiteracy and other down trodden people. Through
the Public Interest Litigation, the cause of several people who are not
able to approach the Court is espoused. In the guise of Public Interest
Litigation, we are coming across several cases where it is exploited for
the benefit of certain individuals. The Courts have to be very cautious
and careful while entertaining Public Interest Litigation. The Judiciary
should deal with the misuse of Public Interest Litigation with iron hand.
If the Public Interest Litigation is permitted to be misused the very
purpose for which it is conceived, namely to come to the rescue of the poor
and down trodden will be defeated. The Courts should discourage the
unjustified litigants at the initial stage itself and the person who
misuses the forum should be made accountable for it. In the realm of
Public Interest Litigation, the Courts while protecting the larger public
interest involved, should at the same time have to look at the effective
way in which the relief can be granted to the people, whose rights are
adversely affected or at stake. When their interest can be protected and
the controversy or the dispute can be adjudicated by a mechanism created
under a particular statute, the parties should be relegated to the
appropriate forum, instead of entertaining the writ petition filed as
Public Interest Litigation.
50. In view of the above discussion and the law laid down by this Court
and particularly taking into consideration that the appellant has already
availed statutory remedies and the appeals are still pending before the
Commissioner, we do not find any reason to interfere with the impugned
order.
51. Accordingly, the appeals fail and are dismissed with no order as to
costs.
………………………………CJI.
(P. SATHASIVAM)
……………………………………………J.
(RANJAN GOGOI)
NEW DELHI, ……………………………………………J.
APRIL 17, 2014 (N.V. RAMANA)

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,763,154 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,855 other followers

Follow advocatemmmohan on WordPress.com