MAHESHWARI, J. - (1.) THE petitioners, Jayanti Lal and Hansmukh lal, have submitted this writ petition against the order dated 23. 5. 2001 (Annex. 6) passed by the Commissioner, Devasthan Department, Rajasthan, Udaipur particularly questioning the interpretation put by the learned commissioner on the provisions of Sections 38 and 39 of the Rajasthan Public Trusts act, 1959 (`the Act' hereinafter ).
(2.) A brief reference to the background facts would suffice. According to the petitioners, there exists an ancient Teerth of Shri Andeshwar Parshvanath at Kushalgarh about 50 kilometers from Banswara. The idol dates back to 12th or 13th Century and the temple exists at the said place of almost a century. A Public Trust in the name of `shri Atishay Kshetra Shri Andeshwarji Bees Panthi Jain Mandir, Kushalgarh' was got registered under the provisions of the act on 20. 7. 1966; and at the time of registration, 11 Trustees were named as the initial Trustees with Shri Seth Nathmal as the working trustee. According to the petitioners, the mode of succession for the position of trustees was indicated as; `by Digambar Jain Panchan Bees Panthi, Kushalgarh'. The trustees were managing the temple and its properties under the supervision of Shri Digambar Jain Panchan Bees Panthi,kushalgarh which is the Supreme Body of the persons belonging to Bees Panthi Digambar Jain Samaj at Kushalgarh. Every year, on Kartik Sudi 13th, 14th and 15th, the members of Samaj assemble in a `mela', decisions are taken by the Samaj wherein the trustees of the Trust also participate. In the meeting dated 19. 1. 1994, a Committee of 31 members, including the respondent No. 3 Kantilal, was appointed by the Samaj for managing its affairs, chiefly of looking after the temple. The Committee was appointed for three years and as the working trustee Seth Nathmal was not physically fit, his son petitioner No. 1 Jayanti Lal was appointed as Chairman of the Samaj with petitioner No. 2 Hansmukh Lal as the Secretary. According to the petitioners, they ipso facto became respectively the working trustee and the Secretary of the Trust. The petitioners have also alleged that in the meeting dated 18. 12. 1996, the Samaj authorised Seth Nathmal to appoint trustees and consequently he appointed 21 trustees on 18. 6. 1977. The petitioners have averred that on 23. 11. 1996, the respondents No. 3 and 4 filed an application under Section 38of the act seeking directions to apply to the Court regarding the Trust and the said application was contested. By the order dated 17. 6. 1999, the Assistant Commissioner, Devasthan Department recorded the finding that no case of misuse of the property of Trust has come to light and no action against the objects of the trust nor any instance of mismanagement of temple was found. However, some mistakes relating to accounts were found and, therefore, under Section 33 of the Act, special audit was ordered. According to the petitioners, they produced the accounts duly audited for ten years. Objections were filed by respondents and as such clarification was also submitted. The Assistant Commissioner, Devasthan Department, appointed Chartered Accountants to conduct special audit and upon submission of their report, the Assistant Commissioner, closed the proceedings on the application by the order dated 16. 2. 2000 (Annex. 2 ). The respondents No. 3 and 4 filed a writ petition before this Court and simultaneously they moved an application before the Commissioner, Devasthan Department under Section 39 of the Act. The Commissioner, by the order dated 20. 4. 2001 (Annex. 3), allowed the application of respondents No. 3 and 4 and set aside the order dated 16. 2. 2000 passed by the Assistant Commissioner and granted permission to the Respondents No. 3 and 4 to move an application to the District Court under Section 38 (b) (c) of the Act for seeking directions in relation to the Trust. Feeling aggrieved by the order dated 20. 4. 2001, the petitioners preferred S. B. Civil Writ Petition No. 1714/2001 before this court which came to be disposed on 8. 5. 2001. A photostat, of the certified copy of order dated 8. 5. 2001 (Annex. 4) shows that this Court considered the submissions of the petitioners against the order of the Commissioner, Devasthan Department that under Section 39 of the Act, in case the Commissioner allows the application, he would direct the Assistant Commissioner to make a reference to the concerned District Court; and the Commissioner has no jurisdiction to direct any of the parties to directly approach the District Court. This Court, however, found that the extraordinary jurisdiction cannot be invoked unless there is substantial failure of justice and passed the following order:- ``it is true that the provisions of Section 39 envisage such direction to Assistant Commissioner, Devasthan. However, it is admitted that in pursuance of that direction respondents have already made application before the District Judge, Banswara in which the petitioners are appearing and have lodged a caveat. The making of reference to District Judge is not a subject of dispute at this stage. Keeping in view of the paramount consideration, that exercise of extraordinary jurisdiction ought not be invoked unless there is substantial failure of justice. I am not inclined to entertain this petition at this stage. The defect, if any, in the order is curable by making a simple application before the Devasthan Commissioner or even now directing the Assistant Commissioner to move an appropriate application to the District Court. In these circumstances, this petition is disposed of with the observation that the petitioners may move the Devasthan Commissioner for making the necessary modification in his order. On such application being made, Devasthan Commissioner will pass the appropriate order. '' The petitioners moved an application on 14. 5. 2001 (Annex. 5) in pursuance of the order passed by this Court before the Commissioner, Devasthan Department, and it was prayed that the order dated 20. 4. 2001 may be modified and in place of the applicants Kanti Lal and Hansmukh Lal, the Assistant Commissioner may be directed to move the application to the District Court.
(3.) AFTER notice to the respondent No. 3 and 4 and after hearing the parties, the Commissioner, Devasthan Department has proceeded to pass the impugned order dated 23. 5. 2001 (Annex. 6) rejecting the application filed by the petitioner, inter alia, on the ground that under Section 39 of the Act, such a direction could be given to the applicants and it was not necessary that only the Assistant Commissioner should move the application in pursuance of the order passed under Section 39 of the Act. Aggrieved by the order dated 23. 5. 2001, the petitioners have submitted this writ petition contending that the interpretation put by the learned commissioner that even a private party could be permitted under Section 39 of the Act to move the District Court is erroneous. The respondents have filed reply to the writ petition submitting, inter alia, that the petitioners indulged in financial mismanagement and were not entitled for any relief in extraordinary writ jurisdiction. the averments regarding meetings appointments of trustees have been denied. In relation to the grounds taken by the petitioners, it has been averred that a close reading of Sections 38 and 39 of the Act such Public Trusts and Section 38 in clear and unambiguous terms confers locus upon any person having direct interest in the public trust to file application for permission to seek directions against the Trust on the grounds contained therein. Section 39 provides for a remedy in case of failure on the part of Assistant Commissioner to grant relief; and, according to the respondents, applying the well settled rules of construction, if any person files an application under Section 38, he has a remedy to apply before the Commissioner and naturally, therefore, such a person is conferred a right to move the Court if so directed by the Commissioner. The order dated 20. 4. 2001 was absolutely just and proper and that is why the same was not set aside by the Court. ;