I.S. Israni, J.
1. These 3 Special Appeals filed under Section 18 of the Rajasthan High Court Ordinance arise out of the same order of the learned Single. Judge dated February 17, 1986, therefore, all the 3 appeals are disposed of by ibis one judgment.
2. The subject matter of the dispute is the property known as Chota Ramdwara, situated near Diggi House, Jaipur. There are other two gfants also in village Bhawani Shuckerpura aisd Aakodiya. The State Government issued a Notification under Section 21 of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (hereinafter called as "the Act") and appointed 01-07-1963 as the date of resumption of all Jagir lands with an annual income below Rs. 1,000/- according to the original grant and the income of which is utilized for maintenance of any place of worship. When the possession of the grant Chbota Ramdwara was not delivered to the State Government, steps for taking over possession were taken by the Government in the year 1966, which was challenged by the respondent Mahant Ram Swaroopin D.B. Civil Writ Petition No. 958/66, before this court. This writ petition of Mahant Ram Swaroop was accepted on 10-07-1967 on the ground that before taking possession of the property resumed, the State Government has not followed the procedure prescribed under the Act and the rules It was further observed by this Court that the State Government will be at liberty to take any action according to law, but the property cannot be resumed by administrative action. In view of the Judgment of this Court, the Collector, Jaipur appointed Tebsildar. Jaipur to take charge of the disputed property and did not refer the question to the Jagir Commissioner. Respondent Mahant Ram Swaroop claimed the property as his personal property and filed an application on 28-09-1967, under Section 23 of the Act for declaration of the disputed-: property as his personal property. The Jagir Commissioner sent his application to the Collector for enquiry and report. The Collector Jagir sent his report and recommended for declaration as personal property on the ground that 'Matmi' has been sanctioned in the past as Nihang Pujari of Ramdwara (ten?ple of Mahadeoji) in favour of respondent Ram Swaroop as such it may be declared as personal property in the same capacity. Tehsildar. Jaipur also, after enquiry, sent his report on 09-01-1968. How ever, the Jagir Commissioner after perual of the entire documents and evidence produced by the parties, was of the view that the entire grant belongs to the temple of Mahadeoji including Ramdwara and the status of the Mahant is found only that of a 'Pujari' and as such he is not entitled to get the disputed property declared as his personal property. The Jagir Commissioner while rejecting the application of Mahant Ram Swaroop on 29 01-1977, did not make any enquiry regarding the fact that who is jagirdar and whether the property liable to be resumed by the State nor any findings on these questions were given by him. The State Government and Mahant Ram Swaroop both filed separate appeals against the said order of Jagir Commissioner before the Board of Revenue. The State Government contended that the Jagir Commissioned' should have held that the property vested in the State after resumption and is Government-property rather than holding it to be the temple property. Mahant Ram Swaroop, on the other hand contended that the nature of the property in dispute is covered under Section 23 of the Act and therefore, he as entitled of get it declared as his personal property. The Board of Revenue heard the appeals and vide its judgment dated 2105-1981 rejected the appeal filed by the State as not maintainable since no order had been pasted by the Jagir Commissioner regarding the disputed property under Rule 21. The appeal of Mahant Ram Swaroop was allowed and the order of Jagir Commissioner dated 29-01-1977 was set-aside and the Board of Revenue gave a direction to the Jagir Commissioner to strictly comply with the order of this Court for taking action under Rule 21 so that no settlement is created in view of the observations of this Court in the wait petition. It was further directed that it would be desirable for him to give notice to the Devsthan Department as well as the plaintiffs in the civil suit pending before the Additional District Judge No. 1, Jaipur City and pass a fresh order not only under Section 23 of the Act, but also under Rule 21 as well, It was further directed that if the Jagir Commissioner feels that Mahant Rem Swaroop who had got married and is having children and has ceased to be 'Nihang Pujari' and therefore, cannot safeguard the interest of the Idol Mahadeoji, the appropriate steps may be taken under the provisions of law for proper representation of the Idol in these proceedings, Mahant Ram Swaroop filed a write petition before this Court against the order of remand passed by the Board of Revenue Another writ petition No. 780/86 against the order of Devsthan Commissioner pertaining to the same property was also filed by Ram Swaroop Both these wit petition were consolidated and decided by the judgment under appeals.
3. We have heard Mr. D.L. Bardhar, learned Counsel appearing for the appellants, Mr. S.B. Mathur, learned Government Advocate for the State, Mr. B.P. Agarwal for respondent No. 4 in appeal No. 153/86 and Mr. H.S. Rajpurohit for respondent No. 4 in appeal No. 173/86, and have also gone through the various judgments and documents on record.
4. The contention of learned Counsel for the appellants is that the learned Single Judge while setting aside the orders of Board of Revenue dt. May 21, 1981 as well as the order of Jagir Commissioner dated January 29, 1977 erred in declaring that the property in question, namely 6 bighas of land granted in 'Udak' known as 'Chhota Ramdwara' in the town of Sawai Jaipur (Kishanpole) to be the private property under Section 23 of the Act. It is contended that similarly the learned Single Judge also erred in allowing writ petition No. 780/85 and set-aside the order of Commissioner, Devasthan dated June 24, 1982 and directed that no further enquiry shall be made under the provisions of Rajasthan Public Trust Act, 1959. It is pointed out that none of the courts below or the Board of Revenue gave any declaration that the property in dispute is the personal property of Mahant Ram Swaroop. The writ petition had been filed against the order of Board of Revenue, by which the order of the Jagir Commissioner was set-aside and the matter was remanded for fresh enquiry as directed in the order. Therefore, no relief by way of declaration that the property in dispute Chhota Ramdwara along with the house and open land etc. were the personal properties of Mahant Ram Swaroop could have been granted in the writ petition. The Board of Revenue only desired that the order of this Court dated 10-7-1967 be strictly complied with before deciding the matter in dispute. In the said order, the Court observed that "the question whether the property is the absolute property of the petitioner 'Mahant' (respondent No. 4) so as to fall outside the scope of the Act is essentially one of the fact and in its extraordinary jurisdiction under Articles 226 of the Constitution, we find ourselves unable to deal with it".
5. It is further contended that the learned Board of Revenue in its judgment dated 21-5-1981 has clearly remarked that it is not known whether het Jagir Commissioner has treated the Jagir as belonging to Idol and had given notice to the Mahant only as its trustes or Pujari. It is further observed chat the impugned order of the Jagir Commissioner was on the application filed by Mahant Ram Swaroop, wherein he has not claimed to be the trustee or Pujari of Idol and has claimed that the disputed properties are his personal properties. It is, therefore, contended that the Board of Revenue rightly set-aside the order of the Jagir Commissioner and remanded the matter to him to be disposed of in accordance with the directions given therein. Our attention has been drawn to the case of Board of Revenue and Ors. v. Rao Baldeo Singh and Ors , which was a case under the ame Act. This was also a case in which the Revenue Board had set-aside the order of the Additional Jagir Commissioner and remanded the case to him with with the direction that the enquiry under the provisions of the Act and the rules framed thereunder must be held and the case should be decided thereafter afresh. It was held by the Apex Court that the Board of Revenue was right in thinking the view that the Additional Jagir Commissioner should have followed the procedure prescribed by the statutory rules and the High Court had no justification for setting aside the order of Board of Revenue in this regard. It is, therefore, contended that this is what precisely the Board of Revenue has done in this case also and has set-aside the order of Jagir Commissioner and remanded the case to be decided strictly in accordance with the provisions of the Act and the directions given by this Court in its order dated 10-7-1967.
6. Shri B.P. Agrawal, learned Counsel appearing for Mahant Ram Swaroop, on the other hand has supported the impugned order and has contended that no enquiry under Section 23 of the Act or Rule 21 of the Rules is necessary as has been held in the impugned order also and that the learned Single Judge has rightly held that the property falls within the provisions of Section 23 of the Act. It is further contended that the application of Mahant Ram Swaroop was regarding the property of Ramdwara and regarding Bhawani Shankerpura and Aakodiya. In the order of Board of Revenue, it has been mentioned that the order of Jagir Commissioner was waived (sic 'vague':) as to who was really treated as Jagirdar under Rule 21 in respect of the property in Bhawani Shankerpura and Aakodiya. Therefore, there was no reason to remand the case when the property under dispute is regarding Ramdwara only. It is also submitted that respondent Mahant Ram Swaroop had filed a list of personal properties as required by the rules regarding the disputed property of Ramdwara. Out attention has been drawn to the case of Daljeet Singh and Ors. v. Tkakur Shivnath Singh 1969 W.L.N. 70 wherein it was observed by the Apex Court that even when no specific issue is framed, but the parties lead evidence, in such circumstances the case need not be remanded.
7. It is further contended by the learned Counsel that even though ordinarily the High Court does not substitute its own order for the order quashed by it under Article 226 of the Constitution it bas nonetheless power o pass such an order as the justice in the case requires. Reliance has been placed in this respect on the case of Grindlays Bank Ltd. v. Income Tax Officer . It is,
therefore, urged that when the learned single Judge was satisfied no further enquiry was needed under the provisions of Section 23 of the Act of the rule framed thereunder, the declaration that the disputed property Ramdwara is the personal property of respondent Mahant Rao Swaroop was given to cut short the long drawn out litigation.
8. Regarding appeal No. 173/86, it is contended by the learned Counsel for the appellants that respondent Mahant Ram Swaroop himself filed an application on 23-7-1964 before the Assistant Commissioner, Devsthan praying that the disputed property may be registered as public trust How ever, on 9-5-1965 he again filed another application requesting that he may be permitted to withdraw his previous application dated 23-7-1964 mentioned above. It is pointed out that the appellants who are followers of Sampraday came to know about this fact, they moved an application before the Assistant Commissioner, Devsthan on 29-12-1976 to make the correct entries about the religious trust under its inherent powers for registration of Ramdwara as public trust. This application was rejected by the Assistant Commissioner Devsthan on 23-7-1979. In appeal the Commissioner, Devsthan vide its order dated June 24, 1982 even though found that the appeal by the appellant was not maintainable, yet under his inherent powers directed the Assistant Commissioner, Devsthan to make enquiry under Section 18 of the Rajasthan Public Trust Act keeping in view the importance and value of the property in dispute. There upon, the Assistant Commission, Devsthan started enquiry as per the provisions of Section 18 of the Rajasthan Public Trust Act and issued a public notice on 27-3-1985 which was published in the daily news paper in Jaipur. Respondent Mahant Ram Swaroop participated in the enquiry held in pursuance to the order of Commissioner, Devsthan dated 26-4-1982 for several years, thereafter, filed writ petition No. 780/85 challenging the order of Commissioner, Devsthan, by which the enquiry was started by the Asstt. Commissioner, Devsthan. This writ petition as well as the above writ petition were consolidated for the purpose of hearing and both were decided by the order under appeals and the order of Commissioner, Devsthan dated June 24, 1982 was quashed as a result of which the order passed by the Assistant Commissioner, Devsthan dated July 23, 1985 was quashed and it was directed that no further enquiry shall be made under the provisions of Rajasthan Public Trust Act, 1959.
9. Shri Bardhar, learned Counsel for the appellants contends that the property in dispute is very valuable and when respondent Mahant Ram Swaroop himself made an application that the same may be registered as public trust and subsequently, evidently changed his mind with mala-fide intention of grabing the valuable property, it was only in the interest of justice that the proper enquiry should have been allowed to be made. It is also contended that as in the case of above writ petition, the order under challenge in this writ petition also was for only setting aside the order of remand passed by the learned Commissioner, Devsthan, therefore, the learned Single Judge has committed an error, in as much as non only the order of remand was set aside, but it was also ordered that no further enquiry should be made under the provisions of Rajasthan Public Trust Act, 1959.
10. Mr. Rajpurohif, learned coueselfor respondent Mahant Ram Swaroop on the other hand supports the impugned order and contends that under section 7 of the Rajasthan Public Trust Act, the Commissioner. Devsthan had no powers to pass an order, which has beea set-aside by the impugned order. Our attention has been drawn to the case of Chanty Commissioner Bombay v. The Municipality of Talodu (1962 LXV Bombay LR 27), and it is pointed out that section 3 of the Bombay Public Trust Act, 1950 is similar to that of section 7 of the Rajasthan Public Trust Act It is further pointed out that the Bombay High Court has observed that section 3 of the Act enables the Charity Commissioner, subject to the general or special orders of the Govt. to superintendence the Administration and carry out the provisions of the Act. The Charity Commissioner is not merely a judicial authority who has merely to determine the certain questions, which are brought before him. He exercise a dual function; (i) as delegate of the Government powers of superinteudence over trust and (it) as an authority who is vested with quasi-judicial powers of deciding the questioas under the Act. It is, therefore, contended that the order of Commissioner, Devsthan dated 24-6-1982 was without jufisdiciioa and it was rightly set aside and it was in the interest of justice to have stopped former enquiry to put an end to the long drawn out litigation.
11. It is clear from the above discussion that the nature of the grant of Ramdwara is 'Udak', which means for charity purposes. Whereas, the grant of 25 Bighas Aakodiya and Bhawani Shankerpura was in Bhog of temple Mahadeoji. The question to be decided as a question of fact whether this grant of Ramdwara was the absolute gift in individual capacity to the predecessor in title of the petitioner or was a grant for "Seva Pooja" of the Idol Mahadeoji and as such for the benefit of the Idol. This, therefore, clearly needs a factual enquiry in accordance with the provisions of section 23 and Rules, 21, 22 and other relevant rule framed under the Act. Thus the learned Board of Revenue and the Commissioner, Devsthan thought fit that complete enquiry under the relevant provisions of the Act and Rules framed thereunder is needed before any final decision in the matter can be taken. Evidently, 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 end not to the respondent Mahant Ram Swatoop The Jagir Commissioner passed an under on the application filed by Mahant Ram Swaroop., where he has cot claimed to be the trustee or Pujari of the Idol, Since the position of grant in respect of Ramdwara was not completely clear, the Board of Revenue remanded the matter only with a view to complete the enquiry as per directions of the judgment of Division Bench of this court dated 10-7-1967, No such finding either by the Jagir Commissioner or by the Revenue Board has been given that the property in dispute is the personal property of respondent Ram Swaroop. It may also be pointed out that respondent Mahant Ram Swaroop filed the writ petition not against the initial assumption of jusisdiction by the Jagir Commissioner but contended that the conclusions arrived at by the Jagir Commissioner were not correct. Even thought the Jagir Commissioner had not given any finding that the properties in dispute, namely Ramdwara along with its houses etc. were the private properties of respondent Ram Swaroop, but a declaration was sought in the writ petition that the tame may be declared to be his personal property under Section 23 of the Act. Learned Single Judge has himself remasked that "Even if for argument sake it may be considered that it was a grant made for the benefit of the Idol Mahadeoji, any beneficiary of such trust or person or authorities having interest in the property of Idol Mahadeoji can raise this question by taking apporopriate proceedings in civil court and not by way of any provisions under the Act or the rules In view of these circumstances, there was no jurisdiction to the Board of Revenue for giving a direct on to hold any further enquiry by the Jagir Commissioner." It is, therefore, evident that even though the learned Single Judge felt that the matter can be better thrashed out in civil court, still though it fit to declare the disputed property of respondent Mahant Ram Swaroop, even though no such finding was given by the Jagir Commissioner or the Board of Revenue.
12. The contention of learned Counsel for Mahant Ram Swaroop that the remand order of the Board of Revenue is regarding Bhawani Shankerpura & Aakodly whereas this disputes is regard Ramdwara, therefore, there should have been no order of remand regarding Ramdwara.
13. However, since one order dated 15-9-1967 was issued by the Collector Jagir regarding resumption of all Jagir land granted in respect of disputed property as well as Aakodiya and Bhanwanishankerpura therefore, the order was rightly passed by the Board of Revenue remanding the matter enquiry in accordance with law. The Board of Revenue has rightly pointed out that the proper steps in accordance with Sections 21 and 22 of the Act were not taken. This was necessary before application of the provisions of Section 23 of the Act. A direction was, therefore, given by the Board of Revenue that a fresh order be passed not only under Section 23 but also under Section 21 of the Act. We are, therefore, of the opinion that at the most the learned Single Judge, if thought fit, could have set-aside the order of remand passed by the Board of Revenue and there is no justification for having declared the property in dispute to be personal property of respondent Mahant Ram Swaroop.
14. Coming to appeal No. 173/86 Section 7 of the Rajasthan Public Trust Act lays down that the Commissioner Devsthan superintend the administration and also carry out the provisions of this Act throught the territories to which this Act extends. Learned Counsel Shri Rajpurohit appearing for respondent Ram Swaroop during the course of arguments gave out that he has himself purchased a plot from respondent Ram Swaroop in the name of his wife from the property in dispute. This shows that respondent Ram Swaroop has been disposing-off the property in dispute treating it to be his own even before a proper enquiry in his claim has claim has been made and appropriate declaration regarding the same is made in his favour. The case of State of Maharashtra v. Harish Chandra is a matter in which the Surplus Land Det rmination Tribunal gave a particular finding against which the respondent No. 1 preferred an appeal before the Maharashtra Revenue Tribunal The Revenue Tribunal after hearing both the parties remitted the case back on remand to the Surplus Land Determination Tribunal for fresh enquiry and decision after setting aside the judgment and order of the Surplus Land Determination Tribunal. The respondent No 1 how ever did not make any objection against the order of remand and on the other hand submitted to it The Surplus Land Determination Tribunal after hearing both the parties, revised its earlier finding The respondent No. 1 feeling aggrieved, preferred an appeal before the Maharrstra Revenue Tribunal, which was dismissed and the rinding were confirmed Thereafter, the respondent No. 1 filed as application under Article 227 of the Constitution of India before the High Court of Judicature, Bombay challenging the illegality and validity and of the order of Surplus Land Determination Tribunal as well as the order of Revenue Tribunal dismissing his appeal after the said order of remind. It was held by the High Court that the order of remand was erroneous and required to be rectified by the court in exercise of powers under Article 227 of the Constitution on the ground of advancement of justice. It was held by the Apex Court that considering all the circumstances specially the fact that the respondent No. 1 waived his right to object to the order of remand by submitting to it, and the judgment and order of the High Court was set-aside and the order of Surplus Land Determination Tribunal and of Maharastra Revenue Tribunal after remand were affirmed.
15. The circumstances in the present matter are also similar in nature. In this case also respondent Mahant Ram Swaroop after passing of the remand order by the Commissioner, Devsthan, dated 24-6-1982 submitted to the jurisdiction of the Assistant Commissioner, Devsthan and participated in the proceedings for few years, thereafter he filed a writ petition in April, 1985. Once the respondent Mahant Ram Swaroop submitted to the order remand passed by the Commissioner, Devsthan and participated in the proceedings before the Assistant Commissioner, Devsthan, it was in the interest of justice to have allowed the enqviry to be completed, so that the proper factual position regarding the disputed property may become clear.
16. The provisions of Section 7 of the Rajasthan Public Trust Act clearly show that the Devsthan Commissioner is not only empowered to superintend the administration but has also been empowered to carry out the provisions of this Act. Therefore, when the Commissioner, Devsthan was of the view that the property involved is very valuable and it was necessary to hold proper enquiry under the relevant provisions of the Rajasthan Public Trust Act, more so when respondent Ram Swaroop 'himself gave in writing that the property in dispute may be registered as public trust, we are of the opinion that he was justified in passing the order for fresh enquiry. Morever, mo prejudice is caused to the respondent Mahant Ram Swaroop who will have full chance to put up his side before the Assistant Commissioner; Devsthan. Apart from this, by the order of Division Bench of the court dated 10-7-1967 there will be no interference with the possession of respondent Ram Swaroop till the State takes any fresh steps in accordance with law after completing the enquiry.
17. In the result, the appeals are allowed, the impugned order of the learned Single Judge is set aside and the orders of Board of Revenue dated 21-5-1981 and Commissioner Devsthan dated 24-6-1982 are restored. The matter shall now be remanded to the Jagir Commissioner to comply with the directions given by the Board of Revenue as also with the order of this Court dated 10-7-1967. The Assistant Commissioner, Devsthan shall also proceed with the enquiry as per the order of the Commissioner, Devsthan. Since the matter is quite old it should be disposed of as expeditiously as possible.