Pratap Krishna Lohra, J. - (1.) PETITIONERS have laid this writ petition challenging the order dated 30th of June 2010 (Annex. 7) passed by the Commissioner, Devasthan, Rajasthan, Udaipur, whereby the learned Commissioner while deciding appeal of the private respondents under Section 20 of the Rajasthan Public Trust Act 1959 (for short, "Act of 1959') remanded the matter back to learned Assistant Commissioner, Devasthan for reconstitution of broad -based public trust involving all communities/ethnic groups of village Kaniwara.
(2.) SUCCINCTLY stated, the facts of the case are that in village Kaniwara there is a temple of Lord Hanuman which is ancient and approximately 800 years old as per petitioners. The petitioners, while claiming hereditary Seva and Pooja right of the said temple, laid an application before the Assistant Commissioner, Devasthan under Section 17 of the Act of 1959 for registration of a public trust. In the application, petitioners No. 1 to 11 staked the claim for being appointed as lifetime trustees and first petitioner was named as Chairman of the trust with petitioners No. 2 to 5 as its other office bearers. On receipt of the application for registration of public trust, the learned Assistant Commissioner resorted to an inquiry under Section 18(2) of the Act of 1959 and a public notice was issued. After completion of inquiry, vide order dated 3rd August 2009, public trust was registered and the petitioners No. 1 to 5 were declared office bearers of the public trust. As per the averments in the writ petition, the learned Assistant Commissioner before registration of public trust has undertaken the requisite exercise including the inquiry envisaged under Section 18 of the Act of 1959. In the form of supporting proof, the petitioners have also placed on record Annex. 3 Registration Certificate issued by the Registrar of Societies, Jalore bearing No. 106/Jalore/2008 -09 in the name of Shree Kaniwara Hanumanji Seva Samiti, Kaniwara, Jalore. Be that as it may, the registration of the public trust caused indignation amongst some of the villagers including respondent No. 3 to 6 and that prompted the respondents to assail the order of the Assistant Commissioner before learned Commissioner, Devasthan, Udaipur by way of appeal under Section 20 of the Act of 1959. The learned Commissioner, Devasthan, on evaluation of the available materials and thorough examination of the impugned order of registration of public trust, found that temple is 50 to 60 years old constructed on Government land which is looked after by Garuda Samaj and land measuring 9.67 hectares with a well is presently recorded in the revenue records in the name of temple. It is also noticed by the learned Commissioner that building of temple, Dharamshalas and other constructions have been carried out by collecting funds from public at large. On scanning the available material, the learned appellate authority has also found that there is no evidence available on record to show that for creating assets of the temple including the construction of temple and development of the land appurtenant to it, petitioners have shown extra benevolence or generosity in the form of donation or special grant. In that background, while concurring with the conclusions of the Assistant Commissioner in the registration of the public trust, the learned appellate authority found that it is not in the interest of public trust to entrust its management to a few individuals belonging to one ethnic group, i.e. petitioners. Consequently, learned Commissioner in order to make the constitution of the trust democratic and transparent in the interest of public at large, remanded the matter back to the learned Assistant Commissioner for creating a broad -based public trust having representation of all the communities and ethnic groups of village Kaniwara.
(3.) THE writ petition is contested by the respondents. On behalf of respondents No. 1 to 3 reply is submitted and order impugned is defended. Respondent No. 4 also submitted reply and defended the impugned order. The respondents have raised an objection about availability of alternative remedy of civil suit under Section 22 of the Act of 1959. The order passed by the learned Commissioner, Devasthan was also defended by urging that the learned Commissioner has rightly granted indulgence in remanding the matter for creation of a broad -based public trust. The respondent No. 4 also defended the order passed by the learned Commissioner on the ground that while registering the public trust the Assistant Commissioner, Devasthan has not issued public notice for proposed inquiry in accordance with Section 18 of the Act of 1959 as the same was not published at a conspicuous place of the locality. Mr. Rajesh Shah, learned counsel for the petitioners, has vehemently argued that the learned Assistant Commissioner has ordered registration of a public trust after making thorough inquiry under Section 18 of the Act of 1959 and therefore by remanding the matter back, the learned appellate authority has over -stepped its jurisdiction. Mr. Shah would contend that by exceeding its jurisdiction, the learned Commissioner has committed a serious jurisdictional error which warrants interference in exercise of writ jurisdiction. Assailing the impugned order, learned counsel for the petitioners submits that the learned Commissioner has not recorded cogent and convincing reasons for remanding the matter back to the Assistant Commissioner, more particularly when it has concurred with the findings and conclusions about registration of a public trust. Mr. Shah has argued that the petitioners are undertaking Seva and Pooja of the temple by way of inheritance and therefore inclusion of their names as trustees was a just decision which is upset by the learned appellate authority in clear negation of the intent of the Act of 1959.;