Bhagwat Singh vs State of Rajasthan and Others

S.S. Byas, J.—By this revision the accused who is an ex-ruler of the erst while State of Mewar challenges the validity and legality of the order of the learned Sessions Judge, Udaipur dated June 15, 1979.

Briefly recalled, the facts giving rise to this revision-petition are that the complainant Balwant Singh, who is a non-petitioner in this revision petition submitted a complaint in writing against the accused in Court of the learned Judicial Magistrate (2), Udaipur in June, 1977. It was averred therein that the temple of ''Iklingnath'' situata in Kailashpuri district Udaipur was declared a public trust by the Assistant Commissioner Deovstan Udaipur on May 30,1976. It was farther declared a public trust by the Commissioner, Deovstan on February 25, 1977. The accused, who is an ex-ruler of the erstwhile State of Mewar is the working trustee of the said trust He is also managing the affairs of the trust. The complainant is a follower of the deity of Shri ''Iklingnath'' and is, therefore interested in the management of the trust. The trust has vast movable and immovable assets. The income of the trust runs in thousands of rupees per month. The accused has not complied with the provisions of the Rajasthan Public Trusts Act 1959 (for short the Act)'' and the Rules made thereunder. A list of the act''s and omissions was given in the complaint to show how the provisions of the Act and the Rules were breached, According to the complainant, the acts and omissions of the accused are punishable u/s 70 of the Act It was further alleged that the complainant approached the Assistant Commissioner, Deovstan to obtain his sanction to launch prosecution against the accused. The Assistant Commissioner, vide his order dated April 6 1977 accorded the sanction. The learned Magistrate took cognizance of the offence and issued summons against the accused. The accused put appearance and submitted an application on December 7, 1977 raising a number of objections therein that the cognizance of the offence was wrongly taken and the accused was wrongly summoned to face the trial. One of the objections raised by him relates to the validity of the sanction accorded by (sic)ie Assistant Commissioner, Deovstan dated April 6, 1977. The learned Magistrate heard the parties and by his order dated January 30, 1977 up held the objections of the accused relating to the invalidity of sanction and thereafter dropped the proceedings. The learned Magistrate was of the view that the sanction of the Assistant Commissioner dated April 6, 1977 was no* sanction in the eye of law and did not comply with the provisions of Section 75(2) of the Act. Aggrieved against the said order of the learned Magistrate, the complainant went in revision which was decided on June, 15, 1979 by the learned Sessions Judge Udaipur. He allowed the revision and set aside the order of the learned Magistrate dated January 30, 1977. The learned Sessions Judge was of the opinion that the question whether the sanctioning authority applied or failed to apply his mind to the relevant papers put before him was essentially a question of evidence and should be decided after taking the evidence of both the parties on this point. Feeling aggrieved with the said order of the learned Sessions Judge, the accused has come up in revision.

The complainant despits service of notice did not put appearance in this Court. I have heard the learned Counsel for the accused and learned Public Prosecutor.

Mr. Mathur learned Counsel for the accused submitted that the order of the learned Sessions Judge is not valid in view of the fact that he trust Shri Iklingnath is not a public trust. It was submitted that the findings of the Assistant Commissioner declaring the temple of Shri Iklingnath as public trust u/s 19 of the Rajasthan Public Trust Act, 1959 have been set aside in a regular civil suit filed by the accused in accordance with the provisions of Section 22 of the Act. A copy of the judgment and decree of the learned Additional District Judge, Udaipur were submitted before me. It was urged that after the aforesaid judgment and decree, the matter whether the said temple is or is not a public trust is under enquiry before the Assistant Commissioner, Devsthan, Udaipur. It was argued that until and unless the temple Shri Iklingnath is declared a public trust, no prosecution of the accused is maintainable. It was also submitted that this temple was earlier declared a private trust of the Ruling family of the erst while State of Mewar. The learned Public Prosecutor could not controvert the above position canvassed before me by Mr. Mathur. The Rajasthan Public Trust Act, 1959 as its preamble shows, was enacted to regulate and to make better provision for the administration of public religious and charitable trusts in the State "A public trust" has been defined in the Act. When the question arises whether a particular trust is or is not a public trust, an enquiry has to be made by the Assistant Commissioner in accordance with the provisions enshrined in Section 18 of the Act. Section 18 of the Act, in explicit terms lays down that the Assistant Commissioner shall make an enquiry in the prescribed manner for the purpose of ascertaining whether a trust exists and whether such a trust is a public trust. He is to record a positive finding on this aspect of the matter regarding the nature of the trust u/s 19 of the Act. Section 20 makes a provision for appeal against the finding of the Assistant Commissioner. The aggrieved, party may prefer an appeal before the Commissioner, Deovstan. Thereafter entries in the prescribed register are to be made by the Assistant Commissioner, as laid down in Section 21 of to be Act. Section 22 makes a provision for civil suits against the entries trade u/s 21 of the Act. This section speaks that any working trustee or a person having interest in the public trust, if feels aggrieved by any entry made u/s 21, is entitled to institute a suit in the civil Court to have such entry cancelled or modified. It may be mentioned that whether a trust is public trust or not, an entry to this effect is to be made in the prescribed register u/s 21 of the Act. thus, if a party feels aggrieved that a trust has been wrongly declared to be a public trust by the Assistant Commissioner or Commissioner, Deovstan, he is entitled to institute a civil suit challenging that finding. On the decision of the suit, the Assistant Commissioner shall correct the entries made in the aforesaid register in accordance with such decision as laid down in Section 22(3) of the Act.

In the instant case, the judgment of the learned Additional District Judge, Udaipur shows that the temple of Shri Iklingnath was earlier declared a private trust on January 4, 1967 by the Assistant Commissioner Devostan. Later on the Assistant Commissioner reopened the case in 1976 and proceeded to make an enquiry whether the said trust is or is not a public trust. The Assistant Commissioner by his order dated April 30, 1976 declared the said trust to be a public trust. Aggrieved against the said finding and declaration of the Assistant Commissioner, the accused and some persons filed a regular civil suit challenging the correctness, legality and validity of the aforesaid finding. The suit came for trial before the learned District, Udaipur. Issue No. 5 was cast in the following words:

Whether the temple of Shri Iklingnath is a public trust.

The learned Additional District Judge recorded his fin ling on this issue that the entry of the aforesaid trust as public trust in the prescribed register u/s 21 of the Act was invalid. The said entry along with the other entries were consequently set-aside. In other words, the findings of the Assistant Commissioner and the Commissioner, Deovstan that the temple Shri Iklingnath is a public trust were set aside. The findings of the learned Additional District Judge are final till now.

A perusal of the complaint filed in the Court of the learned Magistrate shows that the offences alleged to have been committed by the accused relate to the contravention of the provisions of Sections 17,23,27,33 and 66 of the Act. These offences can be committed by trustee only in respect of a public trust. Since the findings of the Commissioner and the Assistant Commissioner that the temple Shri Iklingnath is a public trust have been set-aside, it cannot be said that the accused has committed the aforesaid offences punishable under the Act. A complaint u/s 75 of the Act is maintainable against a trustee or manager of a public trust. Section 75(2) lays down that no prosecution for an offence punishable under the Act shall be instituted without the previous sanction of the Assistant Commissioner. It follows from this prevision that the sanction is to be given by the Assistant Commissioner only when the matter relates to the offence committed in respect of a public trust. Since the findings of the Commissioner and the Assistant Commissioner declaring the aforesaid trust to be public trust have been set-aside, the sanction accorded by the Assistant Commissioner u/s 75(2) of the Act loses its very foundation and is, therefore, invalid.

It may be stated even at the fault of repetition that the provisions of the Rajasthan Public Trusts Act, 1959 apply only to a public trust and not to a private trust. The Act does not cover a private trust in its wings. Until and unless the temple Shri Iklingnath is validly and finally declared a public trust, no trustee of it can be prosecuted for the contravention of the provisions of the Act. If the prosecution is there, it will have to be struck down and dropped.

In the result, the revision-petition is allowed. The impugned order of the learned Sessions Judge, Udaipur date June 15, 1979 is set aside and the order of the learned Magistrate dropping the criminal proceedings is restored.