BALVEER SINGH TOMAR Vs. COMMISSIONER, DEVASTHAN DEPARTMENT

JUDGEMENT

(1.) These two appeals seek to challenge the judgment of learned Single Judge dtd. 30/4/2019, whereby two writ petitions filed by appellant Dr. Balveer Singh Tomar were dismissed. Appeal No. 699/2019 arises out of Writ Petition No. 26712/2018, while Appeal No. 700/2019 has been filed against the judgment passed in Writ Petition No. 26717/2010. In Writ Petition No. 26717/2018, the appellant/writ-petitioner impugned the order dtd. 30/11/2018 passed by the Commissioner, Devasthan Department, Rajasthan, in Appeal No. 35/2018, which was filed by respondent No. 2 Dr. Shobha Tomar as well as entire proceedings of the said appeal. In Writ Petition No. 26712/2018, the appellant/writ-petitioner impugned the order dtd. 30/11/2018 passed by the Commissioner, Devasthan Department in Appeal No. 36/2018 filed by respondent No. 2 Dr. Shobha Tomar, who therein challenged the order dtd. 9/8/2017 passed by the Assistant Commissioner (First), Devasthan Department, Jaipur, whereby the amended trust-deed dtd. 2/1/2017 (registered on 3/1/2017) produced by appellant Dr. Balveer Singh Tomar, was placed on record. By order dtd. 30/11/2018 the Commissioner Devasthan Department overruled the preliminary objections raised by the appellant as to maintainability of the appeal on the ground of delay as also res judicata on the presumption that appeal against the same order had already been dismissed earlier. Since the parties to the dispute are common and the facts are also similar, learned Single Judge decided both the writ petitions by common judgment. Therefore we shall also decide these two appeals by present judgment simultaneously.

(2.) In order to appreciate the dispute between the parties, we first need to take note of the background facts. The Assistant Commissioner (First), Devasthan Department, Jaipur by order dtd. 16/4/2015 took on record the minutes of the meeting of the trust known as Indian Medical Trust, Jaipur, dtd. 2/2/2015, whereby the respondent No. 2 Dr. Shobha Tomar was appointed as Vice Chairman and respondent No. 6 Dr. Swati Tomar as Trustee. As per the allegations of the appellant, those minutes were forged therefore he filed an application under Sec. 24 of the Rajasthan Public Trusts Act, 1959 (for short, 'the Act of 1959') before the Assistant Commissioner (First), Devasthan Department, for further inquiry in relation to the said forgery, which was registered as Application No. 01/2016 and order was made by the Assistant Commissioner (First), Devasthan Department, Jaipur on 4/8/2016 restraining Dr. Shobha Tomar and Dr. Anurag Tomar from holding any meeting without presence and consent of Dr. Balveer Singh Tomar. While on one hand, the appellant submitted written complaint to the police, which was registered as F.I.R. No. 454/2016 at Police Station Chandwaji, Jaipur Rural, for offence under Ss. 420, 406, 467, 468, 471 and 120B of the Indian Penal Code on 2/12/2016, on the other hand, he filed Writ Petition No. 7897/2017 before the Single Bench of this Court challenging the proceedings pending before the Assistant Commissioner (First), Devasthan Department, under Sec. 24 of the Act of 1959. The Single Bench, vide judgment dtd. 1/8/2017, partly allowed the writ petition filed by the appellant and upheld the order dtd. 4/8/2016 setting the appellant at liberty to initiate contempt proceedings in the event of infringement of restraint order dtd. 4/8/2016 made by the Assistant Commissioner (First), Devasthan Department, Jaipur in Case No. 01/2016 in accordance with the law. By the said judgment dtd. 1/8/2017, the learned Single Judge also dismissed the Writ Petitions No. 3999/2017, 1648/2017, 6047/2017 and 4507/2017 instituted by the Indian Medical Trust as also Dr. Balveer Singh Tomar and Dr. Swati Tomar, as office bearers of the Indian Medical Trust. The Assistant Commissioner (First) passed the consequential order dtd. 9/8/2017 giving effect to the judgment of the Single Bench of this Court dtd. 1/8/2017. The said judgment of the learned Single Judge was challenged by both the parties in Special Appeals. The Division Bench of this Court disposed of the appeals vide judgment dtd. 11/8/2017, by setting aside the directions contained in para 40 of the judgment of learned Single Judge, which pertained to the question whether Shri Jayanti Lal Patel, a trustee, who earlier tendered resignation on 17/3/2012, could participate in the meeting held on 2/4/2015 pursuant to notice dtd. 31/1/2015 on the premise that his resignation has not been approved. The Division Bench, while disposing of the appeal, passed following order:-

(3.) The respondents Nos. 2 and 3 thereafter filed an application before the Assistant Commissioner (First), Devasthan Department, Jaipur, on 21/8/2017 praying for recall of the order dtd. 9/8/2017. The appellant filed appeal before the Commissioner, Devasthan Department, challenging the maintainability of the said application. The Commissioner, Devasthan Department, by order dtd. 26/12/2017 dismissed the Appeal No. 35/2017 observing that the Division Bench in its judgment dtd. 11/8/2017 has merely set aside para 40 of the judgment of learned Single Judge dtd. 1/8/2017 and not the rest of the judgment, therefore, the judgment of learned Single Judge on other aspects was still binding and since no final order has been passed on the application filed by the respondents Nos. 2 and 3 by the Assistant Commissioner (First), Devasthan Department, the appeal was premature and not maintainable. The respondents Nos. 2 and 3 then filed contempt petition, being Contempt Petition No. 1563/2017 before the Division Bench of this Court seeking action against the Assistant Commissioner (First) for not passing any order on their recall application, however, the same was dismissed as withdrawn vide order dtd. 11/1/2018, with the observation that it will be open for them to challenge the order that may be finally passed by the Assistant Commissioner (First), Devasthan Department, if the same is contrary to aforesaid Division Bench order. The respondents Nos. 2 and 3 therefore filed Appeal No. 17/2018 on 11/4/2018 under liberty, purported to have been granted by the Division Bench in its order dtd. 11/1/2018, before the Commissioner Devasthan Department, challenging the order dtd. 9/8/2017 passed by the Assistant Commissioner (First), Devasthan Department. This appeal was accompanied by an application under Sec. 5 of the Limitation Act on 11/4/2018. It was thereafter that the Assistant Commissioner (First), by order dtd. 20/4/2018, consigned the application for recall of the order dtd. 9/8/2017 to record on the premise that now pursuant to liberty granted by the order of the Division Bench dtd. 11/8/2017, the respondents Nos. 2 and 3 have already filed Appeal No. 16/2018 (arising out of Case No. 1/2016) and Appeal No. 17/2018 (arising out of Case No. 6/2017), therefore no action was needed on the recall application. The Commissioner Devasthan Department by order dtd. 7/5/2018 dismissed Appeal No. 16/2018 filed against the order dtd. 9/8/2017 as not maintainable, being premature and time barred. In the meantime, the respondents Nos. 2 and 3 filed petition seeking review of the order of the Division Bench dtd. 11/8/2017. The Division Bench by order dtd. 9/7/2018 disposed of the review petition however with liberty to review-petitioners (respondents Nos. 2 and 3 herein) to challenge the order of the Assistant Commissioner (First), Devasthan Department dtd. 9/8/2017 by way of appropriate proceedings and passed the following order:-