BHERU MAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) UNDER challenge in this petition is the order dated 21. 1. 95 whereby Asstt. Devisthan Commissioner, Bikaner directed initiation of inquiry under Section 18 of the Rajasthan Public Trust Act, 1959 (for short ``the Act") against the petitioner in relation to temple in question. This order was earlier challenged by the petitioner in appeal before the Devasthan Commissioner at Udaipur who by his order dated 18. 11. 96 dismissed the same as premature, which is also under challenge in this writ petition.

(2.) I have heard Mr. M. S. Singhvi learned counsel for the petitioner, Mr. Shyam Ladrecha, learned Govt. counsel appearing for the respondent State and Mr. A. K. Khatri learned counsel appearing for the respondent No. 4 Ganesh Ram.

(3.) QUESTION that arises for determination in this petition is whether the penalty proceedings which were earlier initiated against the petitioner for contravention of sub section (1) of Section 17 for not getting the temple in question registered would be construed as a bar for initiation of a regular inquiry under Section 18 of the Act. Proceedings initiated under Section 70 cannot be construed to be described only administrative in nature. Since such proceedings visit the person against whom they are held with penal consequences, they have to have some semblance of judicial proceedings and, therefore, the submission made by Mr. M. S. Singhvi learned counsel for the petitioner to that extent are liable to be upheld. But then, further question that arises is whether the penalty proceedings initiated against the petitioner in which neither respondent No. 4 nor anyone else from the general public had an opportunity to participate and substantiate the fact that temple in question was in fact a public property having been constructed on the land received by way of grant from the Government of that time would bar regular inquiry envisaged in Section 18 of the Act. In order, therefore, to have a glimpse of the scheme of the legislation it would be apposite to reproduce hereunder all the three relevant provisions i. e. Sections 17, 18 and 70. Section 17. Registration of public trusts: (1) Within (two years) from the date of the application of this section to a public trust or from the date on which a public trust or from the date on which a public trust is created, whichever is later, the working trustee thereof shall apply to the 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-section (1) for the making of an application for registration by not more than three months. (3) Each such application shall be accompanied by such fee, if any, not exceeding five rupees, and to be utilized 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 known), 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 names and addresses of 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 or immovable property; (vii) the gross average annual income derived from movable and immovable property and form any other source, if any, based on actual gross annual income during the three years immediately preceding the date on which the application is made for the period which has elapsed since the creation of the trust, whichever period is shorter, and, in the case of 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 period to which the particulars under clause (vii) relate, and in the case of a newly created public trust, the estimated annual expenditure in connection with such public trust; (ix) the address to which any 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 oral public trusts, it shall not be necessary to give the particulars of the trust property of such value and such 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 of V of 1908) for signing and verifying plants. 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 interest. (7) An appeal against the order of the Assistant Commissioner before whom the application was filed first, given sub-section (6) may be filed within sixty days before the Commissioner and, subject to the decision on such appeal, the order of the Assistant Commissioner under sub-section (6) shall be final. Section 18. Inquiry for registration:- (1) On receipt of an application under Section 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 procedure 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 manner of such trust; (v) the mode of succession to the office of the trustee of such trust; (vi) the origin, nature and object 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 persons having interest in the public trust under inquiry to prefer within sixty days objections, if any, in respect of such trust. Section 70, Penalty, (1) whoever contravenes any provision of sub-section (1) of Section 17 or of sub-section (1) of Section 23 or of Section 27 or of Section 30 or of sub-sections (2) and (3) of Section 66 shall be punished with fine which may extend to give hundred rupees. (2) Whoever contravenes any of the provisions of this Act or the rules made thereunder for the contravention of which no specific penalty has been provided shall be punished with fine which may extend to one hundred rupees.