Dismissed

Radhey Shyam v. State and Ors.

Rajasthan HC22 Mar 2023CW/14606/2017

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a temple registration order. The Court held the petition was not maintainable as the petitioner failed to show sufficient cause to bypass the available alternate statutory remedy under Section 20 of the Rajasthan Public Trust Act, 1959, noting a related appeal was already pending.

What did the court decide?

The writ petition and the stay application were dismissed on the ground of an efficacious alternate statutory remedy being available and pending before the competent authority.

Radhey Shyam Vs State and Ors. — Public Procurement and Tenders | Rajasthan HC (2023)

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[2023/RJJD/007389]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 14606/2017

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Radhey Shyam Son Of Ram Karan, Resident Of Junawas School, Near Bediya Bhawan, Ward No. 34. Junawas, District Bhilwara.

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----Petitioner

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Versus

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State Of Rajasthan Through The Principal Secretary, Devsthan Department, Government Of Rajasthan, Jaipur, Rajasthan.

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District Collector, Bhilwara.

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Assistant Commissioner, Devsthan Department, Ajmer Division, Ajmer.

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Bhilwara Jat Samaj Charbhuja Mandir Trust, Near Solanki Talkies, Shastri Nagar, Bhilwara, Through Its Chairman.

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----Respondents

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For Petitioner	: Mr.	Ramawatar Choudhary
For Respondents	: Mr.	Dinesh Joshi, for Resp. No.1&3,
	Mr.	PradeepChoudhary,for Resp.No.4

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HON'BLE DR. JUSTICE NUPUR BHATI

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Judgment

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22/03/2023

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This Civil Writ Petition has been preferred claiming the following reliefs:-

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“It is, therefore, most humbly and respectfully prayed that record of the case may kindly be called for, writ petition filed by the petitioner may kindly be allowed with costs and by and an appropriate order or direction-

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The judgment and order dated 26.10.2016(Anx-7) may kindly be quashed and set aside; the respondents may kindly be restrained to construct the temple as directed in the judgment aforesaid.

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Any other other appropriate writ, order or direction which this Hon’ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.”

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(2 of 9)

The petitioner assails the impugned judgment dated 26.10.2016 (at Annex.-7), passed by the respondent no. 3- Assistant Commissioner, Devsthan Department, Ajmer Division, Ajmer on the grounds; that the land in question whereupon the permission was granted for the registration of the Trust of respondent no.4 is his personal property, of which he has been in continuous and uninterrupted possession, and that the permission so granted by the aforesaid authority vide the impugned judgment is in contravention of the powers under the Rajasthan Public Trust Act, 1959.

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Brief facts of the case as laid before this Court by learned counsel for the petitioner are that; the respondent no.4-Bhilwara Jat Samaj Charbhuja Mandir Trust submitted an application(at Annex.-1), dated 06.09.2010, under Section 17(2) of the Act of 1959 before the respondent no.3-Assistant Commissioner for the registration of the Trust. And that, pursuant thereof; notice was accordingly published and upon no objections being received against the same, ex-parte inquiry was initiated.

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3.1 That when the matter was duly fixed for inspection report, the present petitioner-Radhey Shyam raised certain objections regarding the registration of the Trust on the land in question, and that he preferred an application under Order VII Rule 14 (3) read with Section 151 C.P.C., which was accepted vide order dated 02.01.2013. And that, on 16.09.2014, some objections were raised on behalf of certain other persons.

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Learned counsel for the petitioner further submits that the objections raised by the petitioner have not been dealt with by the concerned authorities, in due accordance with law, and that

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therefore the impugned judgment, dated 26.10.2016, passed by the respondent no. 3-Assistant Commissioner deserves to be quashed and set aside.

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Learned counsel for the petitioner also submits that the petitioner also preferred an application under the provisions of the Rajasthan Religious Buildings and Places Act, 1954 before the respondent no.3-Assistant Commissioner and in response thereto, was informed, by way of letter (at Annex.-8), dated 25.05.2016, to approach the concerned District Collector.

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Learned counsel for the petitioner vehemently submits that the impugned judgment dated 26.10.2016 is unsustainable in law as the direction given therein by the respondent no. 3-Assistant Commissioner, permitting the construction of the temple on the land in question, is beyond jurisdiction, and that such power vests solely with the concerned District Collector.

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6.1 In this regard, learned counsel drew the attention of this Court to the following sections of the Rajasthan Religious Buildings and Places Act, 1954:-

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6. Constructions etc. of public religious buildings -

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(1) No person shall, without first obtaining the written permission of the Collector-

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(a) construct any public religious building; or

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(b) convert any private or public building or place into a public religious building.

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Explanation. - The temporary use of a building or place for religious purposes on occasions such as Holi, Moharram and the like shall not be deemed to be the conversion thereof into a public religious building.

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(2) A person desirous of obtaining permission for any of the purposes mentioned in sub-section (1) shall first obtain permission from any local authority or officer having jurisdiction

(4 of 9)

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over the area where the building or place in question lies and thereafter such person shall apply to the Collector for the requisite permission in the prescribed manner.

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7. Procedure of Collector -

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(1) When an application under Sec. 5 of Sec. 6 is prescribed to the Collector in the prescribed manner, he may, after making such inquiry as he may think necessary, either disallow the application or grant the requisite permission unconditionally or with such conditions as to security or otherwise as he may consider reasonable in the circumstances of each case.

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(2) The order of the Collector passed under sub-section (1) shall be communicated in writing to the applicant and if the latter does not receive such communication within four weeks in the case of an application under Section 5 or within three months in case of an application under Section 6, calculated from the date on which such application was received in the office of the Collector, the applicant shall be deemed to have obtained the permission required by Section 5 or Section 6 as the case may be.

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8. Appeals -

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(1) An appeal shall lie, and may be brought in the prescribed mode to the [revenue appellate authority] under sub-section (1) may within 90 days from the date of such decision, appeal to the Revenue Board and the decision of the Board in an appeal under this section shall be final.

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(emphasis supplied)

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On the other hand, Mr. Dinesh Joshi, learned counsel appearing for the respondents no.1-State of Rajasthan thr. Principal Secretary, Devsthan Department and respondent no.3Assistant Commissioner, Devsthan Department, Ajmer and Mr. Pradeep Choudhary, learned counsel appearing for respondent no.4 jointly submit that the petitioner did not avail the alternate statutory remedy of appeal against the impugned judgment, dated 26.10.2016 (at Annex.-7) passed by the respondent no.3, as

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(5 of 9)

contained in the Rajasthan Public Trust Act, 1959 and that the right to appeal such order/judgment must be availed within a period of 6 months. And that, therefore, the present writ petition ought to be dismissed at the threshold itself.

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7.1 Learned counsel jointly further submit that the petitioner’s brother-Om Prakash S/o Ram Karan preferred an appeal (at Annex.-R/1) against the impugned judgment dated 26.10.2016 (at Annex.-7) under Section 20 of the Act of 1959, and that the present petitioner-Radhey Shyam S/o Ram Karan was duly arrayed as party-respondent no.13 to such appeal (at Annex.R/1), which is still pending.

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7.2 Learned counsel for the respondent no. 1 & 3, while drawing the attention of this Court to the various provisions of law contained in the Rajasthan Public Trust Act, 1959, submits that the respondent no.3-Assistant Commissioner has acted within his powers in passing the impugned judgment.

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Relevant provisions of law as relied upon by the learned counsel are reproduced hereunder:-

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18 - Inquiry for Registration:

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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:

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

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

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

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

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(vi) the origin, nature and objects of such trust;

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(vii) the amount of gross average annual income and expenditure of such trust: and

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

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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.

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19 - Finding of Assistant Commissioner:

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On completion of the inquiry provided for under section 18, the Assistant Commissioner shall record his findings with the reasons therefore as to the matters mentioned in the said section.

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20 - Appeal:

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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.

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Learned counsel appearing for the respondent no.4-Trust, submits that as on date, the temple has already been constructed and the statue of the deity has been installed therein.

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8.1 Learned counsel further submits that the application so preferred by the respondent no.4-Trust specifically stated that a temple had existed on the land in question, that had crumbled and therefore, required to be constructed afresh.

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8.2 Learned counsel also submits that the issue of ownership of the land in question stands decided by a competent Court, as the father of the petitioner-Ram Karan had filed a revenue suit to such

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(7 of 9)

extent, which was decided vide order dated 29.07.1993. And that the said order was challenged before this Court in S.B. Civil Writ Petition No. 733/2001, which was dismissed vide order dated 23.02.2001, and subsequently upheld by the Division Bench of this Hon’ble Court, in D.B. Special Appeal (Writ) 636/2011 vide order dated 28.03.2016 and had preferred review of the said appellate order, which was also dismissed. And that, it has been established that the land in question was donated by the erstwhile Maharaja of Mewar to the temple of ‘ Charbhuja ’ deity and that the petitioner’s father was only given the right to worship and not the title of the land in question and that the learned counsel for the petitioner is not in a position to refute the same.

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Heard learned counsel for the parties at length. Perused the record of the case. 10. At the outset, this Court takes cognizance of the preliminary objection raised on behalf of the respondents regarding the maintainability of the present petition owing to the availability of the alternate statutory remedy under Section 20 of the Rajasthan Public Trust Act, 1959. And while it is a settled position of law that the availability of an alternate remedy cannot preclude the jurisdiction of a writ Court, however, it is incumbent upon the petitioner to place before the writ Court sufficient cause to bypass the alternative statutory remedy available to him.

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10.1 In the present case, the petitioner has not been able to set up his case that the availability of the alternate statutory remedy, as under Section 20 of the Act of 1959, is not an efficacious remedy.

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(8 of 9)

This Court, upon a perusal of Annex.-R/1, further observes that an appeal was preferred by the present petitioner’s brotherOm Prakash S/o Ram Karan against the impugned judgment, dated 26.10.2016, under Section 20 of the Act of 1959, in which the petitioner-Radheyshyam Sharma S/o Ramkaran Sharma, was duly arrayed as party-respondent no.13, and the same is still pending consideration before the concerned authority.

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This Court also observes that the father of the petitioner, Ram Karan, had filed a writ petition, being S.B. Civil Writ Petition No. 733/2001, against the order, dated 05.09.2000, passed by the Board of Revenue, Ajmer (at Annex.-11) affirming the order, dated 21.03.1995, passed by the Revenue Appellate Authority (at Annex.-10). And the same was dismissed by this Court vide order(at Annex.-12), dated 23.02.2001. And that, an intra-court appeal was preferred against the said order in D.B. Civil Special Appeal No. 636/2001, which was dismissed vide order(at Annex.13) dated 28.03.2016, and that a review of the said appellate order, was preferred which was also dismissed. The issue with respect to the ownership of the lands in question also thus stands crystallized.

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This Court, in light of the observations made hereinabove, finds that the petitioner has not been able to produce sufficient cause before this Court to bypass the availability of the alternate statutory remedy in law, and the clear fact that the petitioner’s brother has already laid challenge to the impugned judgment, dated 26.10.2016, by filing appeal and has duly arrayed the present petitioner as party-respondent to such appeal, preferred under Section 20 of the Act of 1959.

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(9 of 9) [CW-14606/2017]

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[2023/RJJD/007389]

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Therefore, in view of the same and for the reasons stated above and without expressing anything on the merits in favour of either of the parties, the present petition is thus dismissed on the ground of efficacious alternate statutory remedy being available to the petitioner.

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Accordingly, the stay application also stands dismissed.

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(DR.NUPUR BHATI),J

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120-skm/-

Radhey Shyam v. State and Ors.

Case brief

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Radhey Shyam v. State and Ors.

Case brief

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