Kesharwani Panchayat Jharia vs The Bihar State Board of Religious Trusts and Others

Ajit Kumar Sinha, J.—In the instant writ petition the petitioner prays for issuance of an appropriate writ, order or direction in the nature of mandamus commanding upon the concerned respondents for quashing the direction issued by the respondent No. 2 as contained in Memo No. 994 dated 6.6.2000 whereby and whereunder the respondent No. 2 under the purported exercise of his powers u/s 33 of the Bihar Hindu Religious Trusts Act 1950 (hereinafter referred to as "the said Act) appointed respondent No. 3 as temporary Trustee, interalia, to take over the Management of the assets of the petitioner.

The facts, in brief, are set out as under:

Kesharwani Panchayat Jharia is an organization of people of Kesharwani community and the panchayat owns Kesharwani Dharamshala for the purpose of development of the said community and for holding Panchayat/community in relation to marriage, education, settlement of family disputes amongst the members of Kesharwani community as per their own by-laws. The land and the house was gifted by one Smt. Shanukh Kumari, wife of late Budhan Sah, by caste Kesharwani to the Kesharwani Panchayat through its then President by registered deed No. 7790 dated 12.9.1949 and since then the said panchayat is run by the members of the Kesharwani community of Jharia.

The Managing Committee is constituted every year by election and the said Office bearers are elected every year and the funds are given by way of contribution for improvement of the Panchayat.

The respondent No. 2 the President, Bihar State Board of Religious Trusts, Vidyapati Marygya, Patna vide its impugned order issued a direction bearing memo No. 994 dated 6.6.2000 addressed to respondent No. 3 as temporary trustee, inter alia to take over the management of the assets of the petitioner.

The learned Counsel for the petitioner Sri Jai Prakash submits that the Kesharwani Panchayat is an organization of the people of Kesharwani community and the Panchayat owns Kesharwani Dharamshala. It is exclusively owned and possessed by Kesharwani community for purpose of development of the community and holding Panchayat and was also used for marriage, education, settlement of family disputes among the members of the Kesharwani community as per their by law. It also submitted that the said construction of the Panchayat in any event is not a place of worship nor for any other religious activities and thus the Bihar Hindu religious Trusts Act has no application. In this regard he also refers to an order passed by this Court dated 13.11.1987 passed in an identical case in Agrawal Dharamshala and Ors. v. Bihar State Board of Religious Trust and Ors. in C.W.J.C. No. 4453 of 1987 wherein the High Court while interpreting Section 33 of the Act held that the power u/s 33 of the Act can be exercised only for ramification of the trust in accordance with Section 28(2)(h)(iii) of the Act and accordingly the writ petition was allowed and the communication dated 29.8.1987 was quashed vide which the Special Officer, Bihar State Board of Religious Trust to the Anchal Adhikari, Jharia, Dhanbad appointed him as a Trustee for Agarwal Dharmshala.

I have considered the submissions raised on behalf of the petitioner and also the pleadings. Section 33 is quoted as under:

Power to appoint temporary trustee.-(1) Where there is a vacancy in the office of trustee of a religious trust and there is no one competent to be appointed as trustee under the terms of the deed of such trust or where there is a bonafide dispute as to the right of any person to act as trustee and in the opinion of the Board there is likelihood of a breach of the peace or serious interference with the management of the property of such trust, [or where there is a vacancy caused by the order of the Board passed under Clause (h) of Sub-section (2) of Section 28 of this Act] the Board may, subject to any order of a competent Court appoint any person to act as trustee of the said trust for such period and upon such conditions as it thinks fit.

(2) In appointing a person as a trustee under Sub-section (1), the Board shall, if possible select a person of the section to which the last trustee belonged.

Two most important ingredients is that there has to be a bonafide dispute and it may lead to breach of peace with regard to the Management and or property of a religious trust. Further, there has to be a vacancy in the office of a religious trust in order to invoke Section 33 of the Bihar Hindu Religious Trust Act.

The Panchayat in the instant case is run by the Kesharwani community and the Dharmshala is used for the purpose of development of the said community and for holding marriage, education and family settlement of disputes of the Kesharwani community and thus it could not be termed as a religious trust to invoke Section 28 and 33 of the Act.

It will be obvious that the power u/s 33 of the Act can be exercised only after removal of the trustee in accordance with Section 28(2)(h)(iii) of the Act and in absence of the same the order itself is rendered illegal and void ab-initio. There is another aspect of the matter that there was no vacancy in the office of the trustee and there was no dispute with regard to right of any person to act as a trustee which are condition precedent for exercising the power to appoint a temporary trustee in the purported exercise of power u/s 33 of the Act and thus the Board was not competent to appoint a person in the exercise of its jurisdiction u/s 33 and the same is on the face of it arbitrary and illegal. In any event, not even a show cause notice was issued before exercising the power u/s 33 of the Act to the petitioners to justify as to whether it was a religious trust or not and thus the entire exercise is on the face of it against the well settled cardinal principles of natural justice and also violative of Section 28, 29 and 33 of the Act.

Considering the aforesaid facts and circumstances of the case, this writ petition is allowed and the impugned order dated 6.6.2000 is quashed without any order as to costs.