1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.894/2008 (Agrawal Samaj Sampati Trust, Bhilwara & Ors. Vs. State of Rajasthan & Anr.) Date of order : 11.02.2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. Sandeep Shah, for the petitioners. Mr. Sachin Acharya, for the respondents-caveator. Heard learned counsel for the parties. By way of filing the present writ petition, the petitioners have challenged the order dated 31.12.2007 passed by Commissioner, Devasthan Department, Udaipur so also the order dated 19.5.2004 passed by Assistant Commissioner, Devasthan Department, Ajmer. The main contention of the learned counsel for the petitioner-Trust is that petitioner-Trust was registered as public trust under the Rajasthan Public 2 Trust Act, 1959 (hereafter, for short “the Act of 1959”). Thereafter, unanimously a committee was constituted for brining the amendment in the constitution of the petitioner-Trust which was required in the old constitution prepared in the year 1973. After taking decision for amendment, a copy of the changes and the amendments in the constitution along with a application for condonation of delay was filed before the Assistant Commissioner, Devasthan Department, Ajmer. The Assistant Commissioner, Devasthan Department, Ajmer finally approved the amendments and passed the order dated 19.5.2004. The said order of dated 19.5.2004 was challenged by the respondent Nos. 4 and 5 by way of filing an appeal before Commissioner, Devasthan Department, Udaipur. The Commissioner, Devasthan Department, Udaipur allowed the said appeal vide order dated 31.12.2007 and quashed the order dated 19.5.2004 while holding that under Section 23 of the Act of 1959, the changes could not be taken on record because the proposed amendments were not submitted within 90 days which is mandatory requirement. Learned counsel for the petitioners argued that the Commissioner, Devasthan Department, Udaipur has languished under serious misconception of law with regard to interpretation of Section 23 of the Act of 1959 because upon perusal of Section 23 of the Act, it will reveal that though submission of the changes in 3 any of the entries recorded in the register have to be made within 90 days but the same is not without exception. As per the learned counsel for the petitioners the language of Section 23 of the Act of 1959 clearly reveals that the said section is not mandatory in character, therefore, the learned Assistant Commissioner, Devasthan Department, Ajmer while accepting the application filed by the petitioners has rightly passed the order dated 19.5.2004 in favour of trust. The Commissioner, Devasthan Department, Udaipur has committed an error while setting aside the order passed by Assistant Commissioner, Devasthan Department, Ajmer while holding that Section 23 of the Act is mandatory and the changes in entries as desired by the petitioners were to be made within 90 days. As per the learned counsel for the petitioners, Section 23 of the Act of 1959 is not mandatory and it is directory and learned Assistant Commissioner has rightly passed the order dated 19.5.2004. On the other hand, learned counsel for the respondent Nos.4 and 5 has raised preliminary objection with regard to the maintainability of the writ petition on the ground of availability of alternative remedy by way of filing civil suit under Section 22 of the Act of 1959 against the entries made under Section 21 of the Act of 1959 and submitted that the order impugned passed by Commissioner, Devasthan 4 Department, Udaipur does not require any interference by this Court and the writ petition deserves to be dismissed on this count along. With regard to the argument of the learned counsel for the petitioners that Section 23 of the Act of 1959 is not mandatory in character, it is submitted by learned counsel for the respondents that legislature has prescribed specific time, which is 90 days and obviously, the petitioner Trust was under obligation to file application for the changes in entries as required by them within 90 days, but it has not been done, therefore, the Commissioner, Devasthan Department, Udaipur has rightly set aside the order dated 19.45.2004 passed by Assistant Commissioner, Devasthan Department, Ajmer. I have considered the rival submissions made by both the parties and perused the impugned order dated 31.12.2007. The Commissioner, Devasthan Department, Udaipur has passed the order dated 31.12.2007 merely on the ground that Section 23 of the Act is mandatory and so called amendments for change in the entries were made after expiry of 90 days. For the purpose of adjudicating the present controversy, the provision of Section 23 of the Act of 1959 is required to be seen, which reads as under : 5 “23. Changes . - (1) Where any change occurs in any of the entries recorded in the register, the working trustee shall, within ninety days from the date of the occurrence of such change, or, where any change is desired in such entries in the interest of the administration of such public trust, the working trustee may, report in the prescribed form and manner such change or proposed change to the Assistant Commissioner. (2) For the purpose of verifying the correctness of the entries in the register or ascertaining whether any change has occurred in any of the particulars recorded in the register, the Assistant Commissioner may hold an enquiry. (3) If, after holding such inquiry as he may consider necessary under sub- section (2) either on receipt of a report under sub-section (1) or otherwise, the Assistant Commissioner is satisfied that a change has occurred or is necessary in any of the entries recorded in the register in regard to the particular public trust, he shall record a finding with the reasons therefor and the provisions of Section 29 shall apply to such finding as they apply to a finding under Section 19. (4) The Assistant Commissioner shall cause the entries in the register to be amended in accordance with the finding recorded under sub-section (3) or, if an appeal has been filed 6 therefrom, in accordance with the decision of the Commissioner on such appeal and the provisions of Section 21 and 22 shall apply to such amended entries as they apply to the original entries.” Thus, upon perusal of above provisions of Section 23 of the Act of 1959, it is obvious that the said Section is not mandatory in character though 90 days is prescribed but for condonation of delay, application was filed by the petitioners along with the application for change in entries. The Assistant Commissioner though not observed specifically in the order dated 19.5.2004 that he is condoning delay, he has entered into the merit and decided the case on merit, therefore, it is implied that the delay was condoned while treating Section 23 of the Act of 1959 as directory in character. In my opinion also, the Commissioner, Devasthan Department has committed an error while holding that Section 23 of the Act of 1959 is mandatory in character. Upon perusal of Section 23 of the Act of 1959 it is clear that though submission of changes of any of the entries recorded in register have to be made within 90 days but no consequences in the event of non-filing of changes within 90 days were prescribed, therefore, merely because a provision is couched in a negative language implying mandatory 7 character, the same is not without exception. When the consequences for non compliance have not been mentioned in the statute then the provisions is to be treated as directory and not mandatory even though worded in a negative form. Section 23 of the Act of 1959 is procedural and not a part of substantive law. Therefore, in my opinion, the provision with regard to filing of proposed amendment within 90 days is merely directory and not mandatory and the Assistant Commissioner has rightly condoned the delay though not passed any specific order but while going into the merit, he has condoned the delay because the application was filed by the petitioner Trust supported by an application for condonation of delay. In the circumstances, though alternative remedy is available to the petitioners by way of filing civil suit under Section 22 of the Act of 1959 but in this case, question of law is involved and the Commissioner has not decided the case on merit, therefore, this writ petition is allowed and the impugned order dated 31.12.2007 is set aside and the case is remitted to the Commissioner, Devasthan Department, Udaipur with a direction to decide the case on merit. No order as to the cost. (GOPAL KRISHAN VYAS), J. arun