Narendra Mohan Kasliwal, J.
1. Both the above writ petitions are disposed of by one single order as the facts in both the cases are connected with each-other and an order was also passed to connect both the above writ petitions for hearing purposes.
2. I shall first deal with the facts of writ petition No. 24 of 1982. The case of the petitioner is that the petitioner's ancestors were granted three jagirs separately from time to time:
(1) In the town of Sawai Jaipur (Kishanpole), 6 bighas in 'Udak' vide Patta Annx. 1 of Samvat 1893;
(5) In the town of Sawai Jaipur (Bhawani Shankerpura), 25 bighas in 'Udak' vide Patta Samvat 1930: and
(3) In village Aakodiya Tehsil Chaksoo in 'Bhog' of temple of Maha-deoji, 25 bighas.
Thus, the first two Jagirs in the town of Sawai Jaipur Were in 'Udak' tenure and the third was in 'Bhog' tenure.
3. The case of the petitioner further is that the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (here in after referred to as 'the Act'), came into force with effect from 18th day of February, 1952 and the Rajasthan Land Reforms & Resumption of Jagirs Rules, 1954 (here in after referred to as 'the Rules') came into force on 16-6-1954. Vide notification, dated Oct. 14, 1958, published in the Rajasthan Rajyapatra, dated 23-10-1958, the Government of Rajasthan appointed 1st day of November, 1958 as the date for resumption of Jagirs land (not being Jagir lands which were originally granted or were or are deemed to have been granted and the income of which is being utilised, or for the maintenance of any place of religious worship or for the performance of any religious service) that have not so far been resumed. Thereafter vide notification dated 21-6-1963 the Government of Rajasthan appointed 1st July, 1963 as the date of resumption of all Jagirs lands with annual income below Rs. 1,000/- which were originally granted and the income of which is being utilised for maintenance of any place of religious worship and for the purposes of any religious service.
4. The Government wanted to dispossess the petitioner of the property known as Chhota Ramdwara and as such the petitioner filed D.B. Civil writ petition No. 958/66, Mahant Ram Swaroop v. State of Rajasthan and the same was decided along with D.B. Civil Writ Petition No. 1366/66, Smt. Phool Kanwar v. State of Rajasthan and Ors. vide order, dated 10-7-1967 (Annexure 5) and these writ petitions were allowed and the State Government and its other functionaries were forbidden from interfering with the possession of the petitioner over the disputed properties till the respondents took fresh steps according to law. After the above order of the High Court the Collector, Jaipur issued an order on 15-9-1967 (Annexure 6) and authorised Shri Basanti Lal, Tehsildar Jaipur to take over charge of the Jagir from the petitioner. A copy of the order was also endorsed to the petitioner mentioning him as Jagirdar, Kishanpole and Bhawani Shankerpura i.e. in respect of 'Udak' Jagirs which were resumed with effect from 1-11-1958 not being religious Jagirs. The petitioner then filed a list of his private properties to the Tehsildar, Jaipur and through him to the Jagir Commissioner under Section 23 of the Act. The petitioner had mentioned that Chhota Ramdwara in Kishanpole (Sawai Jaipur) was his private property within the meaning of Section 23(1) of the Act with detailed reasons and that he was entitled to continue to hold the same as his private property. So far as the third Jagir at Aakodiya was concerned, the same was a religious Jagir and as such there was no dispute about the delivery of possession of the Jagir at Aakodiya and as such no list of private property under Section 23 of the Act was required to be filed so far as the Jagir at Aakodiya was concerned. The Tehsildar forwarded the list to the Jagir Commissioner. The Jagir Commissioner then in exercise of his powers under Rule 23(2) of the Rules, forwarded the list for enquiry to the Collector, Jagir on 6-10-1967. The Collector Jagir vide order, dated 10-7-1962 (Annexure 8) submitted his report. According to the petitioner both the Tehsildar in his report, dated 1-1-1969 as well as the Collector in his report, dated 10-7-1972 recorded the findings that the property situated in Chhota Ramdwara was the private property of the petitioner. The Jagir Commissioner on 29-1-1977 gave his judgment (Annx. 9). According to the petitioner the Jagir Commissioner specifically mentioned about the nature of the property in question as follows:
The site was also inspected on the request of the parties on 15-1-1977. It was noted during inspection that there is Mahadeoji's temple and there is adjoining well. There is also Ramdwara having a Chhatri and a Baradari under the Chhatri on ground floor in the front side there was one chowki. On the first floor of this Ramdwara building there is one Silanyas having inscription. In the Verandah there were 'Charaus' of the Gurus and on other side in a small room photos of Gurus are placed. On the front side of this Ramdwara some construction is found to have been done which has blocked the view of the Chhatri. The Parikrama passage is also blocked at present. The entire Astata is enclosed by a compound wall having 'Suras'. On the back side there were houses in which tenants are living. Except these buildings and construction, the rest of the area is open. The first floor of Ramdwara building is occupied by Mahant Ram Swaroop except that on the back side the objector Ram Bharosey is residing and he stated during inspection that he is a tenant. Trees were also found in the open enclosure and within the compound wall;
The Mahant maintained that the building namely, Ramdwara building, houses on the back side fall in the category of property under Sub-clause (iii) of Section 23(b), further trees fall under Sub-clause (iv) of Section 23 (b). Mahadeoji's temple and well fall under Sub-clause (iii) and as such they rightly belong to him and should be declared as his personal property under Section 23 which permits these items to be declared as such;
No doubt these items find a mention in Section 23 and not with standing provisions of Section 22, these can be declared as personal property and excluded from the perview of resumption.
However, the Jagir Commissioner, after having so held proceeded to declare as under:
But I am unable to accept the logic of the plea advanced by the petitioner. Merely on the ground that these categories and specifications of items of property are provided for under Section 23, they cannot be declared as personal property. The status of Mahant has been found to be that of only Pujari and not that of a personal grantee of this 'Punya' or 'Udak grant'. Similarly his possession of Ramdwara building has been noted as that of a 'Nihang Pujari'. This grant is essentially and basically a grant for the temple of 'Mahadeoji' and 'Ramdwara' and not for the Chela of the Mahant. This grant being thus as Mahadeoji's temple and Ramdwara, the item of property comprised in this estate are of these two religious institutions and as such the claim of Mahant Ram Swaroop for declaring them as his personal property under Section 23 of the Act, 1952 is not substantiated and is accordingly disallowed.
5. Both the petitioner and the State Government aggrieved against the aforesaid order of the Jagir Commissioner filed appeals before the Board of Revenue. The Board of Revenue on 21-5-81 (Annx. 10) decided both the appeals by one consolidated order. Appeal No. 13/77 filed by the State was dismissed and appeal No. 78/77 filed by the petitioner was allowed, the order of the Jagir Commissioner, dated 29-1-77 was set aside and the Board gave a direction that the case be remanded to the Jagir Commissioner for fresh disposal in the light of the observations contained in the order.
6. The petitioner aggrieved against the observations made by the Board of Revenue and also against the order of remand has filed writ petition No. 24/82. The case of the petitioner is that both the Jagir Commissioner as well as the Board of Revenue have totally misconceived and misunderstood the case of the petitioner and in the facts and circumstances of this case they were bound to hold that the property in question was the private property of the petitioner and there was no necessity of remanding the case for making any further inquiry.
7. Mr. Agarwal, the learned Counsel for the petitioner, submitted that it would be evident from the judgment of the Board of Revenue, dated 21-5-81 wherein it has been held in para 5 'admittedly the Jaipur State had given this disputed property as a grant in Samvat 1893 to a predecessor in title of Mahant Ramswaroop and, therefore, the property comes within the scope of the Act and the State Government is entitled to resume the same. Section 23 of the Act provides that the private lands, buildings, wells, house-sites and enclosures including groves and fruit trees, places of worship etc. shall continue to be held by the Jagirdars as their personal property. Therefore, whether the Jagir is in favour of the idol, or in favour of the Mahant as a trustee of the idol, it is a Jagir property and on resumption of the Jagir, the property shall remain the personal property of the Jagirdar and the State has no right to take over the possession. Conscious of this position, the Jagir Commissioner has not ordered the vesting of the property in the State under Rule 21 but has only declared that the property belongs to the idol Mahadeoji and not to the appellant Mahant Ramswaroop. The question is whether he can pass such an order The contention of Mr. Agarwal is that after recording a finding in the above manner the learned Members of the Board of Revenue subsequently wrongly assumed jurisdiction by confusing the grant in question, namely, the Kishanpole grant of Sawai Jaipur with the other grant, namely, Udak grant in Bhawani Shankerpura and Bhog grant in village Aakodiya. The contention of Mr. Agrawal is that in so doing the learned Members of the Board of Revenue confused themselves with the heading given in the order of Matmi and by looking into the same orders passed by the Devasthan department relating to some disputes which had nothing to do and had no bearing on the nature of the inquiry under Section 23 of the Act. The argument of Mr. Agrawal is that so far as the inquiry under Section 23 of the Act is concerned, it is only confined to the question, whether the property in question on resumption would vest in the State or continue to belong to the Jagirdar After recording the findings in para 5 by the Board itself that the property in question would remain the personal property of the Jagirdar and the State had no right to take possession of the property in question and further having dismissed the appeal filed by the Government, the learned members of the Board of Revenue had no jurisdiction to give direction to the Jagir Commissioner to find out as to who was the Jagirdar of the property in Bhawani Shankerpura and also in Aakodiya under Rule 21 of the Rules. The learned members also wrongly assumed jurisdiction in directing the Jagir Commissioner to find difference whether Mahant Ramswaroop (petitioner) had ceased to be Nihang Pujari and to take appropriate steps for safeguarding the interest of the idol.
8. It has been further argued by Mr. Agarwal that the only property that was the subject matter of inquiry under Section 23 of the Act was the property which related to the property existing in the Jagir Udak grant in Kishanpole only and the inquiry had nothing to do with the other Udak grant in Bhawani Shankerpura or the 'Bhog' grant in Aakodiya, Tehsil Chaksu. So far as any dispute between the Jagirdar and/or any other person, the same are not envisaged and contemplated to be decided by the Jagir Commissioner under the scope of inquiry to be made under Sub-section (2) of Section 23 of the Act. Mr. Agrawal placed reliance on the following observations made by a Full Bench of Board of Revenue in State of Rajasthan v. Sardar Singh 1964 RLW (Revenue Supplement) 21 as under:
In view of this difference of opinion between the two Division Benches, we are called upon to adjudicate whether the inter-se dispute between the Jagirdar and any other person relating to private properties as mentioned in Section 23(2) of the Jagir Act are to be decided by the Jagir Commissioner or by the Civil Court Shri P.D. Kudal appearing on behalf of the State frankly conceded that in view of the decision given by the Rajasthan High Court in the case of Mahipat Singh v. The State of Rajasthan as reported in 1962 RLW 201, the controversy has been set at rest by holding that the inter-se disputes are not to be settled under an enquiry under Section 23 of the Jagir Act by the Jagir Commissioner between the Jagirdar and any other person. Shri Agrawal, Shri Dhonkal Singh and Shri N.S. Chordia appearing on behalf of private person and Jagirdars also frankly admitted that disputes relating to the private property inter-se the Jagirdar or any other person are not to be decided by the Jagir Commissioner. For them the only proper forum is the Civil Court.
9. On the other hand it has been argued by Mr. Bardar learned Counsel for respondent Nos. 4 and 5, that in para 5 of the judgment the Board of Revenue had explained the position of law in respect of properties described in Section 23 of the Act. The properties which are mentioned in Section 23 of the Act become personal property of the Jagirdar after resumption of the Jagir. It will not make any difference whether the Jagir is in the personal name or in the name of an idol. After explaining this position of law the Board of Revenue had held that the Jagir Commissioner had only rejected the application of the petitioner but had not said that without issuing notice under Rule 21 of the Rules there was no question or occasion to decide about the nature of the properties and on this account the case had been rightly remanded by the Board of Reveune to the Jagir Commissioner. The Board of Revenue had further explained that according to the Jagir Commissioner only the idol of Mahadeoji is the Jagirdar and not Mahant Ramswaroop because according to the Matmi order he was allowed to enjoy the property as Pujari of the idol as long as he remained 'Nihang'. The Board of Revenue found that the question whether the idol is the Jagirdar or Mahant Ramswaroop (Petitioner) is the Jagirdar, is a question which has not been determined by the Jagir Commissioner and as such the Board of Revenue has rightly re manded the case to Jagir Commissioner for determining the above question. It has also been submitted by Mr. Bardar that Under Rule 21 steps will be taken to make an inquiry in respect of ail the grants as it would be necessary to find out as to who is the Jagirdar and thereafter the question under Section 23 of the Act would be decided and as such the notices have been rightly issued to the Devasthan Department.
10. I have given my careful consideration to the arguments advancedby learned Counsel for both the parties as well as throughly perused the record.
11. In this litigation which arises under scope of inquiry under Section 23 of the Act or Rule 21 of the Rules, we are not concerned with any dispute between the petitioner and the objectors between whom a civil suit is already pending. Section 23 of the Act provides that private lands buildings, wells, house-sites and enclosuers shall continue to belong to or be held by such Jagirdar or other person. In Sub-section (2) of Section 23 of the Act if any question arises whether any property is of the nature referred to in Sub-section (1) it shall be referred to the Jagir Commissioner, who may, after holding the prescribed inquiry, make such order thereon as he deems fit. Rule 22 of the Rules provides that the Jagirdar shall submit to the officers taking over charge of such Jagir, a list of the properties which he claims as his private and personal properties under Sub-section (1) of Section 23 of the Act. Thus, the only question to be determined under Section 23 of the Act is whether the property in dispute falls in the category of private property of the Jagirdar so as to exclude the same from being taken possession of by the State or the same being not within the category of private property of the Jagirdar, could be rightly taken charge of by the officers of the State. In the present case it remains almost undisputed that 6 bighas of land granted as 'Udak' by Patta of Samvat 1893 is clearly that category of property which falls within the scope of private property of the Jagirdar. The State atleast has no claim or right over such property after resumpution of such 'Udak' Jagir. The appeal filed by the State before the Board of Revenue has been dismissed by the judgment Ex. Annexure 10 dated 21-5-1981 itself. The State has not come forward before this Court challenging the above order of the Board of Revenue dismissing the appeal filed by the State and it has also not been argued before this Court also by any Government Advocate that the property in question was not the private property of the Jagirdar, but belonged to the State. Thus, so far as the scope of any inquiry under Section 23 of the Act is concerned, there was no further necessity of remanding the case for making any further inquiry. The controversy is that the very grant by Patta of Samvat 1893 was made in favour of idol Mahadeoji or in favour of the predecessors in title of the petitioner is out side the perview of any inquiry under Section 23 of the Act. Such question can only be decided in a civil court and for which a litigation is already pending between the non-petitioner objectors and the petitioner Mahant Ramswaroop. The Devasthan Department or any other person or authority interested in holding that the property in dispute is not an individual property of the petitioner but belongs to the idol of Mahadeoji, can do so only by getting such matter decided in a competent civil court. Such inquiry is beyond the scope of the Jagir Commissioner under the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act.
12. The Board of Revenue itself observed in its order dated May 21, 1981. as under:
Therefore, whether the Jagir is in favour of the Idol or in favour of the Mahant as a trustee of the Idol it is a Jagir property and on resumption of the Jagir the property shall remain as the personal property of the Jagirdar and the State has no right to take over the possession.
The Board has, however, after making the above observation further observed:
Conscious of this position, the Jagir Commissioner has not ordered the vesting of the property in the State under Rule 21, but has only declared that the property belongs to the Idol Mahadeoji and not to the appellant Mahant Ram Swaroop. The question is whether he can pass such an order
13. The stand taken by the learned Deputy Government Advocate and the Advocates for the objectors before the Board of Revenue was that it is a public trust and the original grant in favour of the then Mahant was not an absolute gift in its individual capacity but was only as a 'Udak' grant for the 'seva-pooja' of the idol. Thus the question whether the disputed property is a personal property of the Jagirdar or not is no longer in dispute and no further inquiry under Section 23 of the Act or Rule 21 of the Rules is at all necessary. It is no longer in dispute that the nature of the tenure is 'Udak' grant and the property in dispute has no connection with the other two grants of 25 bighas in 'Udak' in the town of Sawai Jaipur (Bhawani Shankerpura) or the grant of 25 Bighas in village Aakodiya Tehsil Chaksu in Bhog of temple of Mahadeoji. The dispute in the present case relates to the 'Udak' grant of 6 Bighas made in the town of Sawai Jaipur (Kishanpole) vide Patta Annexure 1 of Samvat 1893. The question whether this grant was an absolute gift in individual capacity to the predecessor-in-title of the petitioner or was a grant for the 'seva-pooja' of the idol Mahadeoji and as such for the benefit of the idol, cannot be decided within the scope of inquiry under Section 23 of the Act by the Jagir Commissioner. Even if for argument's sake, it may be considered that it was a grant made for the benefit of the idol Mahadeoji, any beneficiaries of such trust or persons or authorities having interest in the property of idol Mahadeoji can raise this question by taking appropriate proceedings in a Civil Court and not by way of any proceedings under any provision of the Act or the Rules. In view of these circumstances, there was in jurisdiction to the Board of Revenue for giving a direction to hold any further inquiry by the Jagir Commissioner.
14. Now, I shall take up the facts of S.B. Civil Writ Petition No. 780/1985.
15. The case of the petitioner Mahant Ram Swaroop in this writ petition is that the petitioner's ancestor Swami Ram Vallabh Mahant Ram Sanehi Chhota Ramdwara out side Ajmeri Gate, Near Diggi House was given 6 Bighas of land for construction of residential houses and for Bagichi by Maji Sahib Seventh Bhatiyaniji w/o Sawai Jagat Singhji by a patta of Samvat 1893 (Annexure 'A'). The entries of this patta had been affirmed by the Archives Department, Bikaner from their old records vide letter dated August 14, 1968, addressed to the Collector, Jaipur from the Director Rajasthan Rajya Abhi-lekhagar, Rajasthan, Bikaner in regard to declaration of Chhota Ramdwara as the personal property of Mahant Ram Swaroop petitioner.
16. The case of the petitioner further is that in proceedings under Section 18 of the Rajasthan Public Trust Act, 1959 (here in after referred to as 'the Public Trust Act) for, registration of Chhota Ramdwara as the public trust, the publication was made in the newspaper 'Masai' Jaipur. The Assistant Commissioner Devasthan, Jaipur by his order dated June 30, 1965 held that the 'Bhog' land of village Aakodiya is in Tehsil Chaksu and the temple of Mahadeoji is situated in the middle of 'Ramdwara' and leaving these two properties aside the rest of the properties of Ramdwara is the personal property of Mahant Ram Swaroop. It was further held that the land measuring 25 Bighas in village Aakodiya was not of much value and the temple of Mahadeoji and the Aakodiya land will not be equivalent of the valuation of Rs. 30,000/- and Chhota Ramdwara was the personal property of Mahant Ram Swaroop and, therefore, it did not come within the perview of Public Trust Act for registration as a public trust. Thereafter, some tenants filed an application before the Assistant Commissioner, Devasthan again in 1972 for declaring Chhota Ramdwara as public trust but they were informed by the Assistant Commissioner, Devasthan vide order dated July 26, 1972, that Chhota Ramdwara has been held to be a personal and private property of Mahant Ram Swaroop in the past and it was not registered as a public trust and the file was closed and it was further observed that in this matter no proceedings can be taken under the Public Trust Act. The Commissioner Devasthan, applicants Kanhaiya Lal and Babu Lal be informed accordingly. Annexures 'D' & 'E' have been filed in support of the above contention.
17. Thereafter, complaints were again made for registration of'Chota Ramdwara' as public trust but the Assistant Commissioner Devasthan again by his order dated July 23, 1979, in File No. 49 of 1977 ordered that the procedure in the early proceedings had been fully followed and there was no provision for review and Section 21(2) of the Public Trust Act barred taking of proceedings again for registration. It was further observed that once the matter having been decided under the Public Trust Act and unless the same was set aside in appeal, there was no provision for review. The application thus filed by the applicants was dismissed by order dated July 23, 1977 (Annexure 'F')- Deoki Nandan Sharma and Babu Lal filed an appeal against the above order of Assistant Commissioner. The Commissioner Devasthan by order Annexure 'G' dated June 24, 1982, dismissed the appeal holding that it was not a matter of inquiry of any property left out from consideration of the property of Ramdwara when the matter had been decided on June 30, 1965 and no further inquiry could be held under Section 24 of the Public Trust Act. The Commissioner, however, in the same order held that he had power under Section 7 of the Public Trust Act to order a fresh inquiry in the matter and thus exercising his powers under Section 7 the Public Trust Act it was ordered that the Assistant Commissioner shall make further inquiries about the income and the property of Chhota Ramdwara and shall dispose of the matter in accordance with such law by giving findings on all the issues. The petitioner by this writ petition has challenged the above direction of the Commissioner Devasthan given under Section 7 of the Public Trust Act.
18. It has been contended by Mr. Tiwari, learned Counsel for the petitioner that the Devasthan Commissioner had no jurisdiction to reopen the matter by the impugned order and to set aside the order of the Asstt. Devas-than Commissioner dt. June 30,1965 which had become conclusive and final. It has been submitted that there was no provision for revision or supervisory jurisdiction to be exercised by the Commissioner against the judgment of the Assistant Commissioner Devasthan given on June 30. 1965, and Section is not applicable to such cases. The Assistant Commissioner had twice held that this was private and personal property of Mahant Ram Swaroop originally by order dated June 30, 1965, and again in 1972. It has been further submitted that the open land surrounded by the walls adjacent to main building had been declared as the property of Mahant Ram Swaroop in the execution of the decree for specific performance passed by the Civil Judge, Jaipur dated February 25, 1966 in case No. 33/1966 in respect of a sale-deed executed by the petitioner in favour of Smt. Phool Kanwar. Since decrees were passed in some other cases & the land was sold through registered sale-deeds by orders of the Court execution of the decrees and the purchasers have been given possession and in these circumstances no question arises of making any further inquiries regarding declaration of the properties of Chhota Ramdwara as a public trust. It is also submitted that the proceedings having become conclusive and final by the judgment of Assistant Commissioner dated June 30, 1965, there was no authority and jurisdiction to the Commissioner Devasthan to open the inquiry again after a lapse of 17 years.
19. Mr. Bardar appearing on behalf of Deoki Nandan and Babu Lal submitted that his clients were the devotees of the 'Sampradai' and were followers of Ram Sanehi religious order and had moved an application on December 22, 1976 before the Assistant Commissioner Devasthan to make correct entry of religious trust and invited the attention of the Commissioner Devasthan to invoke his inherent powers for registration of Chhota Ramdwara as a religious trust. This application was rejected by the Assistant Commissioner on July, 23, 1979. It has been submitted that it was the duty of the Assistant Commissioner to make an inquiry about the nature of the institution. The applicants aggrieved against the order of the Assistant Commissioner had filed an appeal before the Commissioner Devasthan. The Commissioner Devasthan an after examining the entire record was of the view that technically the appeal was not maintainable but the Commissioner rightly exercised his powers of superintendence under Section 7 of the Public Trust Act and committed no illegality in directing the Assistant Commissioner to proceed with the enquiry for the registration of the trust under Section 18 of the Public Trust Act. It has also been submitted by Mr. Bardar that after passing of the impugned order by the Commissioner Devasthan dated June 24, 1982, the Assistant Commissioner has started taking proceedings for the purpose of inquiry and petitioner had also put in his appearance and had participated in the proceedings and now he has no right to challenge the order of the Commissioner after a lapse of about 3 years.
20. Mr. Tiwari, learned Counsel for the petitioner, on the other hand, submitted that in a writ of prohibition where the proceedings are challenged on the ground of total lack of jurisdiction, the delay is of no consequence. It has also been submitted by Mr. Tiwari that no effective proceedings were taken by the Assistant Commissioner after remand of the case to him and the stage is of issuing notices to all the interested persons and on this ground also no laches or delay can come in the way of the petitioner in filing the present writ petition. Mr. Tiwari in support of the above contentions has placed reliance on the following cases : (2) Orient Paper Mills v. Union of India and Ors. : AIR1979Cal114 ; (3) Rambul Singh v. Board of Revenue and Ors. AIR 1957 Rajasthan 9; (4) M. Subbanna Nail and Ors. v. State of Mysore and Ors. AIR 1965 Mysore 269; (5) Churbu v. State of Jammu and Kashmir and Anr. AIR 1962 J&K; 19; (6) K. Sescha Ram v. District Collector, Guntur and Anr. AIR 1957 A.P. 687; (7) P C. Sethi and Ors. v. Union of India and Ors. : (1975)ILLJ520SC and; (8) {1966)68 BLR 375.
21. I have given my thoughtful consideration to the arguments advanced by learned Counsel for both the parties,
22. So far as the objection regarding delay or laches is concerned, it has been observed in Orient Paper Mill's case (supra) that delay of 4 years was not very fatal and for that reason the petition cannot be thrown out, where the jurisdiction of the Commission to enquire into the matter, is challenged. Moreover, the question of delay does not arise where a writ of prohibition is asked for. It was further observed in the above case that it is well settled that by acquiescence no jurisdiction can be conferred in a case where there is inherent lack of jurisdiction. If the petitioner can satisfy the court that the appointment of Commission is without jurisdiction in that case, their acquiescence might not itself be a bar for denying the relief asked for. It did not appear from the conduct of the petitioner that he was approbating and reprobating.
23. Similar view has been taken in the other cases on which Mr. Tiwari has placed reliance. In view of these circumstances, I am also of the view that the petition cannot be thrown out merely on the ground of laches or delay and it will have to be examined whether the Commissioner Devasthan had any jurisdiction to order for a fresh inquiry under Section 7 of the Public Trust Act, in the present facts and circumstances of this case.
24. A perusal of the provisions of the Rajasthan Public Trust Act, 1959, shows that Section 7, which falls under Chapter III provides as under:
7. Devasthan Commissioner--(1) The State Government shall, by notification in the official Gazette, appoint an officer to be called the Devasthan Commissioner who in addition to other duties and functions imposed on him by or under the provision of this Act or any other law for the time being in force, shall, subject to the general and special orders of the State Government superintendent the administration and carry out the provisions of this Act.
(2) The Commissioner shall be a corporation sole by the name of 'the Devasthan Commissioner of Rajasthan,' shall as such have perpetual succession and a common seal and may sue and be sued in his corporate name.
25. Chapter IV deals with the registration of Public Trust. Under Section 17 there is a provision for registration of public trust under which the working trustee applies to the Assistant Commissioner Devasthan having jurisdiction for the registration of the public trust. Under Section 18 inquiry is made by the Assistant Commissioner on the application submitted under Section 17. Under Section 19 the Assistant Commissioner records his finding with the reasons after completion of the inquiry provided under Section 18. Section 20 provides for an appeal before the Commissioner against any order passed by the Assistant Commissioner under Section 19. Under Section 21 entries are made in the register in accordance with the findings recorded by the Assistant Commissioner under Section 19. Section 22 provides for civil suit against any entries made under Section 21. Section 24 provides that if at any time after the entries or amended entries are made in the register under Section 21 or Section 23 it appears to the Assistant Commissioner that any particular relating to any public trust, which was not subject matter of the inquiry under Section 18 or Sub-section (2) of Section 23, remained to be enquired into, the Assistant Commissioner may make further Inquiry in the prescribed manner. Section 29 provides that no suit to enforce a right on behalf of a public trust, which is required to be registered under this Act, but has not been so registered, shall be heard or decided in any Court. The Commissioner Dcvasthan exercises a dual function; (i) as a delegate of the Government's power of superintendence over trusts as provided under Section 7 and (ii) as an authority vested with the quasi judicial powers of deciding questions under the Act. The scheme of the Act shows that Chapter 111, whose heading is 'Appointment of Officers & Servants' and Section 7 which falls under this chapter only gives such powers to the Commissioner which is a power of superintendence over the administration and carrying out the provisions of the Act for that purpose. There are provisions in various other sections of the Act like Sections 33,37,39,41,42,46,47,48, 49, 50 and 58 where the Commissioner exercises various administrative powers with regard to the public trust. So far as quasi-judicial powers are concerned the same are conferred on the Devasthan Commissioner under Section 17(7), 20 and 21 where the Commissioner exercises powers of appeal against the quasi judicial orders passed by the Assistant Commissioner. In the present case, Mahant Ram Swaroop had himself submitted an application for registration of the trust by submitting an application under Section 17 of the Act on July 23, 1964. After making an inquiry as contemplated under Section 18, the Assistant Commissioner Devasthan vide order dated June 30, 1965, passed an order that the trust in question was not a public trust and did not fall within the perview of Rajasthan Public Trust Act and as such the application for registration was dismissed. This was an order passed under Section 19 of the Public Trust Act. Any working trustee or person having interest in this trust or in any property found to be trust property aggrieved by the finding of the Assistant Commissioner under Section 19 could have filed an appeal before the Commissioner within two months from the date of publication of such order on the notice board of the Assistant Commissioner. Admittedly, no appeal was filed against the above order of the Assistant Commissioner dated June 30, 1965. Thereafter, it appears that in 1972 an application was submitted by Kanhaiya Lal and Babu Lal making a complaint that Mahant of Chhota Ramdwara has married though it was a Nihang Gaddi. On the above application also an order was passed on July 25, 1972, that Chhota Ramdwara had been held to be a private property and its registration had been refused and as such no further proceedings can be taken under the provisions of Public Trust Act. No appeal was filed by Kanhaiya Lal and Babu Lal against the above order also. For the third time it appears that the present litigation started on an application submitted by Deoki Nandan and Babu Lal on December 29, 1976. This application was submitted under Section 24 of the Public Trust Act and the same was dismissed by the Assistant Commissioner by order dated July 23, 1979. An appeal was filed by Deoki Nandan and Babu Lal under Section 20 of the Public Trust Act to the Commissioner Devasthan. While dealing with this appeal the Commissioner though dismissed the appeal filed by Deoki Nandan and Babu Lal but passed an order for making further inquiry in exercise of the powers conferred under Section 7 of the Public Trust Act. In my view, in the facts and circumstances as mentioned above, the Commissioner Devasthan had no jurisdiction to pass such order in exercise of his powers conferred under Section 7 of the Public Trust Act. The Assistant Commissioner Devasthan had passed a quasi judicial order on June 30,1965, in which it was held that this trust was a private property and did not fall within the perview of Rajasthan Public Trust Act. The application filed under Section 17 for registration of this trust was dismissed. As already mentioned above no appeal was filed against (his order and subsequently, an application filed by Kanhaiya Lal and Babu Lal was again dismissed on July 25, 1972. The present application was also filed by Deoki Nandan and Babu Lal under Section 24 of the Public Trust Act. No application of such kind was at all maintainable under Section 24 as it provided only for making further inquiry by Assistant Commissioner regarding any particular relating to any public trust, which was not the subject matter of the enquiry under Section 18 of Sub-section (2) or Section 23 and it remained to to be enquired into on an earlier occasion. The Commissioner himself in his impugned order dated June 24, 1982, has recorded a finding that in the present case there was no case made out for ordering further inquiry under Section 24 of the Public Trust Act. After recording such finding, in my view, neither there is any justification nor any jurisdiction in the Commissioner Devasthan to make an order for further inquiry in exercise of powers under Section 7 of the Public Trust Act. This kind of direction made after 17 years of the order of Assistant Commissioner dated June 30, 1965, which bad become conclusive and final is a misuse and arbitrary exercise of power conferred under Section 7 of the Public Trust Act.
26. Apart from the above circumstances it may also be mentioned that there is no bar under the ordinary civil law for any trust to file a suit for declaration that a particular trust is not a private trust but is a public trust. It appears that some litigation of such kind is already pending in the Civil Court, but we are not concerned with such litigation in the controversy raised in the present writ petition. The petitioner in the present writ petition has challenged the order of the Commissioner Devasthan passed under Section 7 of the Public Trust Act & has already dealt with by me above, the Commissioner had no jurisdiction to pass such an order. The provision in the Public Trust Act only deals with the registration of a public trust & it is for the Assistant Commissioner to decide under Sections 18 and 19 of the Public Trust Act whether such trust requires registration or not. It had already been decided by a quasi judicial order by the Assistant Commissioner on June 30, 1965, that the trust in question does not require registration and no further inquiry could have been ordered by the Commissioner.
27. The net result of the discussions made above is that writ petition No. 24/1982 is allowed, the orders of the Board of Revenue dated May 21, 1981, as well as the order of the Jagir Commissioner dated January 29, 1977 are set aside and the properties in question namely, 6 Bighas of land granted in 'Udak' vide Patta Annexure 1 of Samvat 1893 and known as Chhota Ramdwara in the town of Sawai Jaipur (Kishanpole) is declared to be the private property under Section 23 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952. The writ petition No. 780/85 is also allowed and the order of the Commissioner Devasthan dated June 24, 1982, is quashed and as a result of which the further order passed by the Assitant Commissioner dated July 23, 1985, is also quashed and it is further directed that no further inquiry shall be made under the provisions of the Rajasthan Public Trust Act, 1959.
28. It is, however, made clear that no findings recorded and observations made in deciding these cases shall prejudice the rights of any of the parties in any civil litigation going on between the parties regarding the nature of this property or regarding the status of the petitioner to hold this property. In the facts and circumstances of the case the parties are left to bear their own costs.