CW 527/98 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.527/98 Shri Kela Devi Trust Versus State & Ors. DATE OF ORDER : 24/02/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. R.C. Joshi, for petitioner Ms. Raj Sharma, Addl. Govt. Counsel, for respondents *** Instant petition has been filed by petitioner-Trust assailing order Ann.2 dt.1st July, 1993 passed by Assistant Commissioner, Devasthan Department, Kota while exercising power u/s.33(4) of Rajasthan Public Trust Act, 1959 directing the petitioner to get their accounts of three financial years audited by special auditor and so also pay Rs.15,000/- for each financial year to the auditor. It appears that since audit for sometime was not carried out in terms of order Ann.2 dt.1st July, 1993, penalty of Rs.100/- was also inflicted upon them and being aggrieved with the order Ann.2, petitioner preferred appeal before Commissioner, Devasthan that too was dismissed on the premise that there is no provision under the Act and at the same time observed that the order passed by the authority was under the directions of the State Government and the same cannot be CW 527/98 [2] reviewed/reconsidered by Commissioner, Devasthan, consequently, rejected appeal vide order Ann.10 dt.19th August, 1997. Counsel for petitioner submits that they got their accounts audited by their registered Chartered Accountant M/s. N.S. Rathore & Company which is requirement u/s.33(2) of the Act but without assigning any reason the Assistant Commissioner in exercise of power under sub-sec. (4) of Sec.33 passed order Ann.2 for getting accounts of three financial years to be audited by a special auditor which according to the petitioner is an arbitrary exercise of power and is not legally sustainable. Counsel further submits that penalty of Rs.100/- inflicted vide order Ann.8 is also without authority in the facts of instant case deserves to be set aside. Respondents have filed reply to the writ petition where in Para 3 it has been averred that since petitioner failed to submit accounts for three financial years 1989-90, 1990-91, 1991-92 despite opportunity afforded vide order dt.29th November, 1996 action was initiated to get their annual accounts for three respective financial years to be audited by special auditor. Counsel CW 527/98 [3] submits that in absence of any malafide being pleaded in the writ petition, it is a subjective satisfaction of the authority to get annual accounts of any Trust audited by special auditor in exercise of power under sub-sec.4 which in ordinary course is not required to be interfered with. Counsel further submits that since petitioner failed to comply with the order Ann.2, penalty of Rs.100/- has rightly been inflicted and there was no provision of appeal or revision against the order Ann.2, the same was rightly rejected by the Commissioner, Devasthan vide order Ann.10 dt.19th August, 1997. I have heard counsel for parties and with their assistance perused the material on record. Petitioner-Trust is a registered Trust under Rajasthan Public Trust Act, 1959 and under an obligation to follow the terms & conditions and statutory requirement of the Act, 1959. Sec.33 of the Act castes obligation upon the Trust to get their accounts audited annually in a manner as prescribed by a registered Chartered Accountant or by such persons as may be authorized in this behalf by the State CW 527/98 [4] Government. But at the same time, under sub-sec. (4) of Sec.33 the Assistant Commissioner who is the authority competent to examine audited annual accounts of such Trusts if in his opinion arrived to a conclusion that apart from the audited accounts furnished by the Trust from their registered Chartered Accountant if required to be audited by special auditor in a given case can direct the Trust to get their accounts audited by a special auditor to be nominated by him and payment has to be made of such fee to special auditor from the trust property under sub-sec.(5) of Sec.33 of the Act. It is not the case of the respondents that the petitioner failed to submit audited accounts of three financial years 1989-90, 1990-91, 1991- 92 to which they are under an obligation to submit u/s.33(2) of the Act and no material has come on record by which any inference can be drawn by this court as to what was prevailed upon the Assistant Commissioner exercising power under sub-sec.(4) to get their accounts audited by special auditor. It is true that it is based on subjective satisfaction but when matter comes for judicial review what was prevailed upon the authority in exercising its power available to be CW 527/98 [5] placed before this court for perusal and at the same time, it goes without saying that power vested with the authority has always to be exercised judiciously and not for other collateral reasons. Reply does not disclose as to what was the justification for which the authority expressed its opinion to arrive a conclusion to get their accounts audited by special auditor despite the fact that audit accounts were submitted by the petitioner through their registered auditor. In absence whereof, in opinion of this court power exercised by the authority cannot be said to be judicious exercise of power and certainly it was violative of Art.14 of the Constitution of India and in such circumstances, penalty of Rs.100/- inflicted vide order Ann.8 is also bad in law. It will be relevant to mention that immediately after passing of order Ann.2, the petitioner approaches this court and effect and operation of order was stayed by this court on 20th May, 1998 and it was confirmed on 6th September, 2005 practically it was never carried out at any point of time during pendency of writ petition. CW 527/98 [6] Consequently, writ petition stands allowed. Orders Ann.2 dt.1st July, 1993 & Ann.8 dt.26th November, 1993 are hereby quashed and set aside. No costs. [AJAY RASTOGI], J. FRBOHRA527CW98 24-2.doc