Pratap Krishna Lohra, J. - (1.) PETITIONERS have filed this writ petition to challenge the impugned order dated 26.08.2015 passed by the Assistant Commissioner, Devasthan, Jodhpur (second respondent) whereby second respondent has rejected Form No. 8 submitted by the petitioners as well as the third respondent for recording necessary changes occurred in any of the entries recorded in the register under Section 23 of the Rajasthan Public Trust Act, 1959 (for short 'the Act of 1959') pertaining to petitioner -Trust which is a registered Public Trust under the Act of 1959. While rejecting Form No. 8 of both the rival fractions, the second respondent has also ordered for conducting election of Public Trust within seven days in terms of the Constitution of Trust.
(2.) WHILE assailing the impugned order of the second respondent on various counts, petitioners have also urged that the same is without jurisdiction and contrary to mandate of Section 23 of the Act of 1959. As per the version of the petitioners, under section 23 of the Act of 1959, the jurisdiction of Assistant Commissioner, Devasthan is confined to making inquiry for recording its satisfaction that a change has occurred or is necessary in any of the entries recorded in the register in this regard to the particular Public Trust and shall record its finding with the reasons therefor. After completing this exercise, the Assistant Commissioner shall cause the entries in the register to be amended in accordance with the findings recorded pursuant to the inquiry. In substance, while questioning the jurisdiction of the second respondent, the petitioners have prayed for undermentioned reliefs: - "It is, therefore, humbly prayed that this writ petition may kindly be allowed and by issuing an appropriate writ, order or direction: 1] the impugned directions passed by the learned Assistant Commissioner in the order dated 26th August 2015 and the committee constituted while making aforesaid impugned directions may kindly be declared to be illegal, void and the same may kindly be quashed and set aside by this Hon'ble Court, 2] The actions and decisions taken by said committee in the guise of impugned directions may kindly be held to be nullity and void and the same may kindly be set aside; 3] The existing Board of Trustees elected on 16th September 2013 may be held to be entitled to continue for their elected term of 5 years; 4] The costs of this writ petition may kindly be awarded in favour of the petitioners. 5] Any other writ, order or direction which your Lordship may deem just and proper in the facts and circumstances of the case, may also kindly be issued in favour of the petitioners." On behalf of third respondent, interim reply is submitted wherein a preliminary objection is also raised. In the preliminary objection, it is submitted that against the impugned order passed by the second respondent, the petitioners have already availed a statutory remedy by preferring appeal under Section 20 of the Act of 1959 and the said appeal is pending consideration before the Commissioner, Devasthan, Rajasthan, Udaipur (first respondent). Therefore, with this plea, the third respondent has urged that petitioners cannot be permitted to avail two remedies simultaneously against the same impugned order. A reference is also made in the preliminary objection about dismissal of earlier CWP No. 8820/2015 filed by the petitioners before this Court on 24.08.2015. The answering respondents have also stoutly defended the impugned order passed by the second respondent. In the reply many insinuations are hurled against the petitioner and his family members in managing the affairs of the Trust. It is also submitted that most of the members of the trust are having valid cause of grievance against functioning of the trust and, therefore, in that background, considering the will of majority of members, the second respondent has exercised its discretion for conducting the election which is not liable to be interfered with. An attempt is also sought to be made that present writ petition has been filed by the petitioners by realizing that there is no merit in their appeal preferred before the first respondent and to stall the valid process of election of public trust which has not been conducted since long.
(3.) MR . Mahesh Bora, learned Senior Advocate assisted by Mr.Om Mehta submits that impugned order passed by the learned Assistant Commissioner, Devasthan is wholly without jurisdiction and, therefore, the said order cannot be sustained. Mr. Bora would contend that while exercising its power under Section 23 of the Act of 1959, the Assistant Commissioner, Devasthan is clothed with the jurisdiction to make necessary inquiry for facilitating changes in the entries of Register of the Public Trust and no order can be passed while making such inquiry for conducting election of public trust. Lastly, Mr. Bora submits that in the appeal preferred by the petitioners before the first respondent, stay application is also filed and final arguments have been heard but it is posted for judgment on 09.11.2015 and by that time, if elections of the public trust are conducted, whole purpose of the appeal would be frustrated. It is in that background, learned counsel has vehemently argued that interference with the impugned order in this writ petition is desirable. In support of his contention, learned counsel has placed reliance on the order passed by learned Single Judge of this Court dated 07.05.2014 in CWP No. 12032/2013 wherein while dismissing application for vacation of interim order, the Court has dilated on the jurisdiction of the Assistant Commissioner under Section 23 of the Act of 1959.;