Dwarikadasji and Others vs State of Bihar

This suit is brought by Mahant Dwarikadasji and 13 other Mahants against the State of Bihar for a declaration that the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act I of 1951) is a constitutionally invalid. The ground on which the suit based is that the Act violates the constitutional guarantee under Article 19(1)(f) and Articles 25 and 26 of the Constitution of India. The State of Bihar has contested the suit and it is claimed on its behalf that all the provisions of the impugned Act are constitutionally valid and the restrictions imposed by the various sections of the Act are within the permissible limits contemplated by the Constitution of India.

The two main issues arising in the suit are (1) is the suit bad for non-compliance with, the provisions u/s 80 of the Civil Procedure Code? and (2) Is the Bihar Hindu Religious Trusts Act, 1930 (Bihar Act I of 1951) unconstitutional, ultra vires and void for any of the reasons stated in the plaint?

As regards the first issue there is an averment in the plaint that notice u/s 80 of the CPC had been served on the Chief Secretary of the Government of Bihar on the 8th of September, 1951. In the written statement (paragraph 3) there is a denial on behalf of the defendant that there is non-compliance of the provisions of Section 80 of the Civil Procedure Code. The denial on behalf of the defendant is vague and the learned Government Pleader was not able to satisfy us in the course of argument how the notice given by the plaintiffs did not fulfil the requirements of Section 80.

In our opinion the provisions of Section 80 have been sufficiently complied with on the part of the plaintiffs and this issue must be answered in favour of the plaintiffs and against the defendant.

The main issue in this case is however the second issue relating to the constitutional validity of Bihar Act I of 1951. It is alleged on behalf of the plaintiffs that the provisions of this Act are invalid since they violate the guarantees conferred by Articles 19 and Articles 25 and 26 of the Constitution of India. The precise question was raised before a Bench of this Court in Baijaynanda Giri and Others Vs. State of Bihar and Another, . After a close analysis of the various provisions of the Act it was held by the Bench in that case that there is no violation of the guarantee under Articles 19, 25 and 26 of the Constitution of India and that Bihar Act I of 1951 was a valid piece of legislation.

We are bound by the authority of this decision; but the argument Put forward by Mr. Aswani Kumar Koy on behalf of the plaintiffs is that the subsequent decision of the Supreme Court in Ratilal Panachand Gandhi Vs. The State of Bombay and Others, , has to some extent affected the authority of the decision pronounced by this Court. Counsel referred in this connection to Sections 28 (2) (j), 30 and 49 of the Act and argued that these provisions extended the doctrine of cypres in an unreasonable manner. The contention of the learned counsel is that these sections were not legally valid and infringed the constitutional guarantee of the freedom of religion under the Articles 25 and 26 of the Constitution.

Learned counsel based his argument upon the decision of the Supreme Court which has already been referred to. In our opinion there is no substance in the argument raised by Mr. Roy in this case. Section 28 (2) (j) of the Act is in the following terms :

"Without prejudice to the generality of the provisions of Sub-section (1), and subject to the other provisions of this Act, the powers and duties of the Board shall be to sanction on the application of a trustee or any other person interested in a religious trust, the conversion of any property of such trust into another property, if the Board is satisfied that such conversion is beneficial for the said trust."

It is apparent that this section merely empowers the Board to sanction the conversion of any property of the trust into another property, if the Board is satisfied that this conversion is for the benefit of the trust. There is a proviso that no such conversion shall be sanctioned unless the Board so resolves by a majority which includes at least three-fourths of its members and there is a further condition that the resolution of the Board should, receive the prior approval by the District Judge. This section has no bearing on the doctrine of cypres. It merely enacts in a statutory form the rule of English Chancery Court that a trustee may with the sanction of the Court convert any property of the trust into another property if such conversion is for the benefit of the trust.

The power conferred by Section 28 (2) (j) is also surrounded by ample safeguards. In the first place, the Board must be satisfied that the conversion is for the benefit of the trust, and secondly, the conversion may not be sanctioned by the Board unless there is a majority of at least three-fourths of its members. There is also a further restriction that approval of the District Judge must be sought by the Board before the conversion of the property into another form. In our opinion there is nothing unreasonable in the provision of Section 28 (2) (j) either from the substantive or procedural aspect. Counsel for the plaintiffs next referred to Section 30 of the Act which enacts :

"1. When any object of a religious trust has ceased to exist or has, in the opinion of the Board, became impossible of achievement, the Board may, of its own motion or on the application of any Hindu, after issuing notice in the prescribed manner, to the trustee of such trust and to such other person as may appear to the Board to be interested therein and after making such inquiry as it thinks fit, determine the object (which shall be similar or as nearly similar as practicable to the object which has ceased to exist or become impossible of achievement) to which the funds, property or income of the trust or so much of such fund, property or income as was previously expended on or applied to the object which has ceased to exist or become impossible of achievement, shall be applied ;

The applicant or the trustee of, or any other person interested in, the religious trust may within ninety days of any order passed under Sub-section (1) make an application to the District Judge for varying, modifying or setting aside such order; but subject to the decision of the District Judge on any such application, the order of the Board shall be final and binding upon the applicant and every person interested in such trust."

Counsel also referred to Section 49 which states:

"1. Where on the application of the Board or, with the previous sanction of the Board, of any person interested in a religious trust, the District Judge is satined that any object of the trust to which the application relates is vague or uncertain, he may direct that the funds, property or income of the trust or so much of such funds, property or income as relates to such object shall be utilised lor the purpose of imparting education to poor Hindus;

The funds, property or income to be utilised for the purpose of imparting education to poor Hindus under the provisions of Sub-section (1) shall be applied to the object by the trustee concerned subject to the directions of the Board." The argument on behalf of the plaintiffs is that these sections undoubtedly interfere with the freedom of religion guaranteed under Articles 25 and 26 of the Constitution. It was argued that Section 3ft granted power to the Board to determine the object to which the fund shall be applied where the object has ceased to exist or has become impossible of achievement. It was similarly argued that Section 49 conferred power on the District Judge on application to make direction that the funds belonging to a trust should be utilised for the purpose of imparting education to poor Hindus if he is satisfied that the object of the trust was vague or uncertain.

It is clear that Sections 30 and 49 enact in statutory form the doctrine of cypres so far as the Hindu Religious Trusts are concerned. In our opinion the provisions enacted in these sections are wholly reasonable and there is no violation of the guarantee of freedom of religion under Articles 25 and 26 of the Constitution. Counsel on behalf of the plaintiffs referred in support of his argument to Ratilal Panachand Gandhi Vs. The State of Bombay and Others, . The question raised in that case was whether Section 55 of Bombay Act 29 of 1950 was a valid piece of legislation. The principle of the decision of the Supreme Court has no application to the present case for the material statutory provisions of the Bombay Act are different from the provisions which are attacked in the present case. Section 55 (1) of the Bombay Act is in the following terms:

"If at any time the Charity Commissioner is of, opinion that (a) the original object for which the public trust was created has failed, (b) the Income or any surplus balance of any public trust has not been utilized or is not likely to be utilized, (c) it is not in public interest expedient, practicable, desirable, necessary or proper to carry out wholly or partially the original intention of the author of the public trust or the object for which the public; trust was created and that the property or the income of the public trust or any portion thereof should be applied to any other charitable or religious object, (d) in any of the cases mentioned in Ss 10 to 13 or in regard to the appropriation of the dharmada sums held in trust u/s 54 the directions of the Court are necessary, the Charity Commissioner shall give notice in writing to the trustees to apply to the Court within the time prescribed for directions."

The argument before the Supreme Court was that the provisions of Section 55 extend the doctrine of cypres to an unreasonable extent and so there is an infringement of the guarantee of religious freedom under Articles 25 and 26 of the Constitution of India. The main ground of attack was that Section 55 (1) (c) empowered the Charity Commissioner to divert the funds of the public trust to any other purpose if he was satisfied that "it was not in public interest expedient, practicable, desirable, necessary or proper to carry out wholly or partially the regional intention of the author of the public trust or the object for which the public interest was created."

It was not argued before the Supreme Court that Section 55 (1) (a) or Section 55 (1) (b) was constitutionally invalid. The only argument was with reference to Section 55 (1) (c) and in dealing with this argument the Supreme Court said that it was an unwarranted encroachment on the freedom of religious institutions if the Legislature empowered the Charity Commissioner to divert the funds of the public trust to any other purpose even though the objects indicated by the founder are not vague or uncertain and though the objects have not failed or ceased to exist. The principle of the Supreme Court decision has no bearing on the present case, for there is nothing in Bihar Act I of 1951 which corresponds to Section 55 (1) (c) of the Bombay Act.

There is no provision in the Bihar Act which empowers the Board of Religious Trusts to divert the funds of the institution to any other purpose if the Board took the view that the objects of founder were "not expedient, practicable, desirable or necessary." The Act empowers the Board of Religious Trusts to interfere only if the object of the religious trusts has ceased to exist has become impossible of achievement or, in the alternative, if the object of the trust was vagnie or uncertain.

To put it differently, the Legislature has simply enacted in statutory form the doctrine of cypres applicable in the general law of charitable trust and the doctrine has not been carried to the extent contemplated by Section 55 of the Bombay Act. For these reasons it is clear that the argument of the learned counsel challenging the validity of Sections 30 and 49 of the Bihar Act must be rejected.

The other branch of the argument addressed on behalf of the plaintiffs is that Sections 28 (2) (s), 60 (2) and 81 (d) of the Bihar Act are also invalid since these restrictions on the liberty of the Mahanth in managing his own property are not warranted by the Constitution. Section 28 (2) (s) reads as follows;

"Without prejudice to the generality of the provisions of Sub-section (1), and subject to the other provisions of this Act, the powers and duties of the Board shall be to permit a trustee to retire from his office and, in case the trustee has power to appoint his successor, to permit him to make the appointment in his life time."

The argument on behalf of the plaintiffs was that, the section would be a weapon of harassment, in the hand of the Religious Board and a Mahanth. who wishes to retire from his office for the purpose of going to samadhi may not be given permission by the Board. The argument proceeds, on the assumption that the Board would act unreasonably and abuse their powers. But the possibility that a power may be abused is not a proper test in examining the constitutional validity of a law. As Section 23 (2) (s) stands, we see no reason to hold that the provision is in any way unreasonable or that there is encroachment on the guarantee of religious freedom under Articles 25 and 26 of the Constitution.

As regards Section 60 (2) it was argued on behalf of the plaintiffs that the Board has been authorised under this section to alter or modify the budget for religious institutions in such manner and to such extent as it thinks fit. It was argued that this provision granted an arbitrary power to the Board of Religious Trusts in the matter of the management of the funds of the religious institutions. This argument is unsound, for Section 60 (6) which is the controlling section states that nothing contained in Section 60

"shall be deemed to authorise the Board to alter or modify any budget in a manner or to an extent inconsistent with the wishes of the founder, so far as such wishes can be ascertained, or with the provisions of this Act."

It is manifest that the power granted to the Board u/s 60 (2) is not an uncontrolled or arbitrary power but it is subject to the overriding condition that the power must be exercised in accordance with the wishes of the founder or in accordance with the provisions of the Act. Counsel for the plaintiffs also attacked the validity of Section 81 of the Act. But it is not clear from the argument on what ground the provisions of Section 81 were attacked and counsel has been unable to satisfy us that the provisions of this section are in any way unconstitutional.

For these reasons we hold that the provisions of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act I of 1951) are not unconstitutional or void for any of the reasons stated in the plaint and the issue must be answered against the plaintiffs and in favour of the defendant (State of Bihar).

In our opinion, this suit must be dismissed with costs.