1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.3815/2000 Bhushan Dayal & Ors. vs. Murli Manohar & Ors. Date of order : 7/3/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.K. Maloo for the petitioners. Shri Vishvajeet Mantri for the respondent. ****** This writ petition has been filed by the petitioners against the judgment dated 17.5.2000, whereby the appeal filed by the respondent no.1 was allowed. The original application under Section 17(4) read with Section 18(1) of the Rajasthan Public Trusts Act, 1959 was filed by the petitioners on 24.4.1991 with the claim that a public trust be registered for the temple of Shri Ram Chandraji at Anta Distt. Kota by the name of Chitragupt Samiti Kayasth Samaj. The respondent no.1 who had been working as Pujari of the said temple filed objections and claimed that he should be declared as a sole trustee of that temple. The objection of respondent no.1 was upheld by the Assistant Devasthan 2 Commissioner vide its order dated 3.2.1993 and he was declared as the sole trustee though the temple in question was declared as a public trust. An appeal thereagainst was filed by the petitioners which was allowed by the learned Commissioner, Devasthan vide its judgment dated 3.12.1996 on the premise that the evidence of the witnesses produced by the petitioner and their affidavits were not properly considered by the Assistant Commissioner and the enquiry and contemplated by Section 18 of the Act was not properly made. The learned Commissioner therefore while allowing the the appeal in part remanded the matter to the Assistant Commissioner with the direction that he should after taking evidence of both the parties give his finding in the enquiry that may be made under Section 18(2) of the Act. The Assistant Commissioner upon making a fresh enquiry by his order dated 17.5.2000, accepted the application of the petitioner and while declaring the properties of the temple in question as public trust, directed 3 registration of the trust proposed by the petitioner with petitioners declared as trustees and office bearers of the trust and the status of the respondent no.1 was accepted as that of a Pujari only. The respondent no.1 preferred appeal against the said order before the Commissioner under Section 20 of the Act. The Commissioner by the impugned order has set aside the order passed by the Assistant Commissioner vide its judgment dated 17.5.2000. Hence this writ petition. Shri N.K. Maloo, learned counsel for the petitioners has argued that the appeal of the respondent has been allowed by the Commissioner solely on the ground that the Assistant Commissioner upon remand of the matter to him was required to have issued a fresh notice to the respondent under Section 18(2) of the Act. The Commissioner Devsthan in his judgment has not recorded any finding on merits of the arguments, which were raised by the respondent in assigning the order of the Assistant Commissioner dated 25.1.1999. Learned counsel argued that 4 notice required by Section 18(2) of the Act was already served on respondent no.1 and in fact it was his objection which was upheld by the Assistant Commissioner originally against which the appeal was filed by the petitioner. It was argued that there was no question of any fresh notice thereafter. Even if the Commissioner in the order of remand has written that the enquiry u/s. 18(2) should be conducted afresh, that cannot be accepted as a fresh proceeding because order under challenge has not been set aside and the matter remanded to the Assistant Commissioner afresh would result in mere revival of the original proceedings and in effect, be taken as continuation of the same proceedings. Shri Vishvajeet Mantri, learned counsel for the respondent however opposed the writ petition and argued that Devsthan Commissioner has rightly allowed the appeal because it found that the appellants had misused their position. It was argued that the temple was constructed on the land said to have been donated by the predecessors of 5 one of the trustees, namely Rakesh Chandra, the properties of the trust could not be auctioned for repaying the personal loan of such trusty. The learned counsel argued that the respondent no.1 has rightly been accepted as the sole trustee of the temple because there was no material to prove that this temple was constructed only for kayastha samaj. Leaned counsel therefore prayed that the writ petition be dismissed. I have given my thoughtful consideration to the arguments and the material on record. The order of remand dated 3.12.1996 was passed in the presence of the petitioner, whereby the Assistant Commissioner was required to record evidence of both the sides and then pass appropriate order under Section 18(2). That order was passed because the Commissioner was of the view that the Assistant Commissioner in the original proceedings completely ignored the evidence adduced from the side of the petitioners. The remand of the matter to the Assistant Commissioner merely resulted in revival of the original proceedings. The Assistant 6 Commissioner thereafter passed the fresh order upon consideration of arguments of both the parties and in the presence of the respondent. Logic of the reasonings adopted by Devasthan Commissioner in the impugned order dated 17.5.2000 that a fresh notice u/s. 18(2) was required to be issued to respondent no.1 cannot be appreciated. What was under challenge in the earlier appeal before the Commissioner was an order which was passed in favour of the respondent. In fact, the order which was originally passed by the Assistant Commissioner, was passed in his favour upholding his contentions. His participation in the proceedings would obviously therefore have been made pursuant to notice u/s.18(2) of the Act. Thereafter when the appeal was filed, he contested the appeal and the order of remand was made in his presence. On remand also, he participated in the proceedings and when the fresh order was passed, it was passed in his presence and on consideration of his evidence and the arguments. The proceedings that were revived pursuant to remand were 7 merely a revival of the original proceedings. The argument that any further or fresh notice was required to be served on the respondents is wholly misconceived. Learned Commissioner, it appears, has not examined any argument raised by the respondents on merits, therefore, the argument of the respondents referred to above, need not be adverted to by this Court. In my considered view, the order passed by the Commissioner setting aside the order dated 25.1.999 is not sustainable in law and is accordingly liable to be set aside. In view of aforesaid discussion, this writ petition is allowed, the impugned order dated 17.5.2000 is set aside and the matter is remanded back to Devsthan Commissioner, Udaipur for decision of the appeal afresh on merits in accordance with law within six months from the date of production of certified copy of the order. (MOHAMMAD RAFIQ), J. RS/