Parmeshwari Pd. Singh vs The Bihar State Board of Hindu Religious Trusts and Others

K.B.N. Singh, J.—In this writ application under Articles 226 and 227 of the Constitution, the for quashing the order of Authority, appointed u/s 43 of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the Act), dated the 13th September, 1967 (Annexure ''A''). By the impugned order, the Authority declared that the temple of Shree Radhakrishnaji and Shree Mahabirji was a public Thakurbari and the properties dedicated by the two trust deeds dated the 14th October, 1922, and 17th May, 1924, by Shree Awadh Bihari Prasad Singh, were public trust properties. Undisputedly, Shree Awadh Bihari Prasad Singh of village Rahimpur, a man of philanthropic disposition and religious trend of mind, who had no issues, installed deities of Shree Radhakrishnaji and Shree Mahabirji, after performing necessary ceremonies in a separate building attached to his residential house and also executed two Samarpan-nama deeds dated the 14th October, 1922, and the 17th May, 1924, dedicating his properties to the said deities. He appointed himself as the first Shebait and also constituted a Trust Committee, consisting of eleven members. Shree Awadh Bihari Prasad Singh died, leaving behind two widows, Janki Devi, whose brother''s son is Kamleshwari Prasad Singh (respondent no. 2), and Ganga Devi. Subsequent to the death of Shree Awadh Bihari Prasad Singh, Janki Devi died and thereafter Ganga Devi, the last surviving widow, also died on the 2nd January, 1963. It is common ground that near about 1961, only three of the Trustees named in the Trust Deeds, namely, Kamleshwari Prasad Singh (respondent no. 2), Parmeshwari Singh (respondent no. 3) and Madan Mohan Roy (respondent no. 12), were alive.

Thereafter, on the 23rd March, 1964, respondent no. 1 filed an application u/s 43 of the Act before the Authority appointed under the said Act, with a prayer "to declare that the temple along with the properties attached to them which are under the management of the opposite parties are public temples" under the Act. In the said application the Board, besides the aforesaid three surviving trustees, also impleaded the agnates of Shree Awadh Bihari Prasad Singh as parties. On the 1st August, 1964, a written statement was filed on behalf of respondents 7 to 12 and the present petitioner stating that the Thakurbari in question was a private trust. On the 26th October, 1964, respondent no. 2, Kamleshwari Prasad Singh, filed a written statement, alleging that the Thakurbari in question was a public trust within the meaning of the Act, and the properties attached thereto are public trust properties.

Thereafter, the case was taken up for hearing and witnesses were examined on behalf of the parties, and before the case could conclude, on the 24th September, 1966, respondents 7 to 12 and the petitioner filed an application that in view of a Bench decision of this Court in the case of (1) Bihar State Religious Trust Board V. Mahanth Jaleshwar Gir and others (I.L.R. XLVI Patna 23) the Authority had no jurisdiction to decide the question as to whether the Trust was a public trust or a private trust, as was sought in the instant case by respondent no. 1. On the 5th October, 1966, respondent no. 1 filed an application for amendment of the application u/s 43 of the Act by inserting an additional prayer for declaration "that the properties described in the schedule attached to the application are religious trust properties" within the meaning of the Act. By a common order of the even date the amendment was allowed and the objection to the maintainability of the application was rejected and the Authority held that it had jurisdiction to "decide this case in which the real dispute is about the nature of the Trust properties. The character of the Trust has to be gone into and to be decided by this Court incidentally."

Learned counsel for the petitioner has urged that the Authority has acted without jurisdiction in deciding the issue as to the nature of the trust in question, whether it was a public trust or a private trust. Learned counsel submitted that the aforesaid order of the Authority is in the teeth of a Bench decision of this Court in the case of (1) Bihar State Religious Trusts Board V. Mahanth Jaleshwar Gir and others (I.L.R. XLVI Patna 23). I think, there is substance in the submission of the learned counsel.

In the instant case, there is no dispute that the properties in question are the properties dedicated by the two trust deeds to the deities of Sree Radha-krishnaji and Shree Hanumanji. In other words, there is no dispute that the properties in question are trust properties. The real controversy is as to whether the trust in question is a public trust, as asserted by the Board (respondent no. 1), or a private trust, as claimed by the petitioner. The properties are well specified in the two documents and there is no dispute as to their identity, nor there is any dispute that the properties belong to any trust, other than the one created in favour of the deities of Shree Radhakrishnaji and Shree Mahabirji. Although a declaration is sought with regard to the properties by a belated amendment dated the 5th October, 1966, that does not make any difference and, on pleadings of the parties, the real issue involved in the case for decision of the Authority was a declaration as to the nature of the trust and this question did not fall for decision indirectly or incidentally in the instant case. The Authority too, in spite of its earlier orders not to do so, decided the main question of the nature of that trust, as if it had jurisdiction to decide directly this question. That being the position, the order of the Authority is contrary to the aforesaid Bench decision of this Court, relied upon by learned counsel for the petitioner. The following observations of Untwalia, J., who delivered the judgment of the Bench, may be referred to this connection:--

It is to be noticed that disputes as to whether a particular property, and that too only when it is immovable, is or is not a property appertaining to a public trust can be enquired into by the Authority. That is to say, if the dispute relates to any particular immovable property or properties forming part of or appertaining to a public trust, such a dispute shall be enquired into by the Authority either of its own motion or on application of any person. In terms, if a dispute is in regard to the nature of the trust itself, Section 43 is not attracted. In my opinion, nobody can approach the Authority, either the Board or the trustee or any other person, for a declaration that a particular endowment or trust or institution is not a public trust but a private one, nor can anybody file an application before the Authority for a mere declaration that it is a public trust. It may well be that when a question is raised before the Authority in regard to a particular immovable property that it appertains to a public trust, by way of answer to such a claim, the person or the trustee may raise a dispute that even though the particular property appertains to the trust, the trust is not a public "one, and, therefore, the property should be held as not appertaining to a public trust. Incidentally and indirectly, in such a case the question may arise for the determination of the Authority, and, on determination of this question, the ultimate declaration which the Authority would be competent to give under Subsection (3) of Section 43 will be that the property is or is not trust property. But unless, the determination of the character of the trust is involved incidentally and indirectly, the Authority, either within the terms of Sub-section (1) or as made expressly clear by the terms of Sub-section (3), has got no jurisdiction to adjudicate purely in regard to the nature of the trust and to give a declaration as to whether it is a public trust or a private trust.

Learned counsel for the Board, however, submitted that the Act was a self-contained Act, and the Authority could decide the question of nature of the trust both directly and indirectly and the aforesaid Bench decision (reported in ILR XLVI Patna 23) was not correctly decided and it requires consideration by a larger Bench.

I will briefly analyse the scheme of the Act and only refer to the relevant chapters in this regard. Chapter II provides for constitution of the Board, called the Bihar State Board of Religious Trusts, to discharge, in regard to Hindu religious trusts, the functions assigned to it under the Act. Chapter III relates to the meetings of the Board and the procedure at such meetings. Chapter IV provides for appointment of Superintendent of Religious Trusts and Officers and servants of the Board, Chapter V deals with powers and duties of the Board and consists of Sections 28 to 39. In this Chapter Section 28(1) is important, which vests in the Board the general superintendence of all religious trusts in the State and enjoins the Board to do all acts necessary to ensure that such trusts are properly supervised and administered and the income thereof is duly appropriated and applied to the objects of such trusts. Chapter VI deals with regional Trusts Committees. Then comes Chapter VII, entitled, "Declaring immovable properties of Religious Trusts as Trust Property" and consists of a solitary Section 43, Sub-section (1) of Section 43 (without the proviso), which is relevant for our purpose, reads thus:--

(1) All disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on application, by the authority appointed in this behalf by the State Government, by notification, in the official Gazette." (Underlinings are mine) Sub-section (3) provides for declaration in terms of Sub section (1). Sub section (5) provides a limitation of ninety days for institution of a suit in a Civil Court against an order of the Authority. The only other provision worth mentioning is Section 77, which occurs in Chapter XV of the Act, dealing with miscellaneous provisions, and provides for bar of suits. This Section is in the following terms:--

Save as otherwise provided in this Act, no suit shall be brought in any Civil Court to set aside or modify any order made under this Act, and no suit shall he against the Board, the President or any other member or the Superintendent for anything in good faith done or purporting to be done under this Act.

On a reference to the aforesaid provisions, it will be apparent that so far as the powers and functions of the Authority are concerned, the only provision is Section 43. A bare reading of the aforesaid provision would show that the Authority appointed u/s 43 of the Act can decide only the question "whether any immovable property is or is not a trust property." That the Act does not apply to private religious trusts at all and the reference to ''trust property'' in Section 43 must necessarily refer to public trust property'', is now beyond dispute, in view of the decision of the Supreme Court in the case of (2) Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others, . Therefore, all that Section 43 lays down is that the Authority is competent to decide, whether any immovable property is public trust property or not. The fact that Section 43 does not empower the Authority to adjudicate regarding movable properties of a public trust negatives the submission of the learned counsel that u/s 43 of the Act the Authority is competent to decide disputes regarding the nature of the trusts and covers the whole field of public and private trust adjudications. The fallacy underlying this argument of the learned counsel for the Board can be further elucidated by an illustration Supposing a trust has only movable properties besides deities. Can it be said that the Authority, which, on the express terms of Section 43, could not decide the dispute regarding movable properties, is nonetheless competent to adjudicate on the question of the nature of the trust, whether the trust was a public or a private one? Such a declaration will be of no avail, as in spite of such a declaration that a trust is a public trust, the succeeding party will still have to go to the Civil Court for deciding the dispute with regard to the movable properties, where the nature of the trust can again be agitated and decided. Such a truncated and fruitless declaration could not have been contemplated by the Legislature. As has been mentioned above, Section 43, Sub-section (5), provides a shorter period of limitation of ninety days for institution of a suit in the Civil Court challenging an order of the Authority which is much shorter than those provided in Part VIII or other relevant Articles of the Limitation Act, 1964, for suits regarding Trust properties. This difference in the period of limitation for institution of suits also militates against the argument of any liberal construction being put on the provisions of Section 43(1) of the Act.

Reliance has also been placed on behalf of the Board, in support of the argument that the Authority could decide the question of nature of the trust, on the following observations of their Lordships of the Supreme Court in the case reported in Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others, :-

Our attention has been drawn to Section 43 of the Act as amended by Act XVII of 1956. That section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be enquired into, either on its own motion or on an application, by the Authority appointed in this behalf by the State Government by notification in the official gazette. Without expressing any opinion as to the constitutional validity of Section 43 of the Act, we merely paint out that no decision has been given u/s 43 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna Asthal and the properties appertaining thereto.

The aforesaid observations of their Lordships of the Supreme Court were interpreted by Choudhary, J. to mean that the Authority appointed u/s 43 of the Act can decide the question of the nature of the trust, whether it was a public or a private trust, in the case of (3) Champa Sahun V. The Bihar Religious Trust Board (1962 B.L.J.R. XXIII--summary of cases). This interpretation put on the aforesaid observations of the Supreme Court was negatived in the above mentioned Bench decision of this Court (reported in ILR XLVI Patna 23) and I may respectfully point out that the said Bench decision has been followed in a latter Bench decision of this Court to which even Choudhary, J. was a party, in the case (4) Sheo Shankar Choubey and Others Vs. The Bihar Hindu Religious Trust Board, . Still another Bench of this Court in the case of (5) Bihar State Board of Religious Trusts Vs. Raj Ratan Gir and Others, has considered the scope and extent of powers of the Authority u/s 43 of the Act and has agreed with the interpretation put by Untwalia, J. in the earlier Bench decision. It will be interesting to note that it was the Board''s stand (in the case reported in ILR XLVI Patna 23) that in terms or in substance, Section 43 is not attracted for determination of a dispute as to the character of the trust itself; this has to be determined, in the first instance, by the Board and later on by any competent court where this question falls for determination, and the Board''s interpretation of Section 43 was accepted by Untwalia, J. in the said Bench decision of this Court. The stand of the Board in the instant case is just contrary to its earlier stand. There is good deal of difference in the powers of a court and a tribunal of limited jurisdiction to go into the question of title or similar questions, incidentally and indirectly, in appropriate cases and to decide the very question of title and the like directly. From the fact that such court or tribunal could decide the question indirectly or incidentally, no power or jurisdiction to decide such questions directly can be spelled and the argument of the learned counsel on this score is also without substance. I do not think that the aforesaid Bench decision of this Court (reported in ILR XLVI Patna 23) followed in two successive Bench decisions, requires reconsideration by a larger Bench. I am in respectful agreement with the views expressed by their Lordships in (1) Bihar State Religious Trust Board Vs. Mahanth Jaleshwar Gir and others (I.L.R.XLVI Patna 23).

In the result, this application is allowed and the order of the Authority u/s 43 of the Act dated the 13th September, 1967, in Case No. 5 of 1964, is hereby quashed. In the circumstances of the case, there will be no order as to costs.

B.N. Jha, J.

I agree to the order proposed to be passed in this case, but I wish to express my own views in the matter. The Bihar State Board of Hindu Religious Trust (hereinafter called ''the Board''), respondent no. 1, filed an application before the Authority appointed u/s 43 of the Bihar Hindu Religious Trust Act, 1950, (hereinafter referred to as ''the Act'') on the 23rd March, 1964, stating therein that the temples along with the properties mentioned in the schedule attached to the petition are religious trust properties within the meaning of the Act and the trustees submitted returns as required under the Act to the Board but the petitioner and others disputed the fact that they are public religious trust properties and claimed the same as belonging to a private trust and prayed that the temples as well as the properties attached to them as mentioned in the schedule be declared to be the religious trust properties within the meaning of the Act.

The Authority appointed u/s 43 of the Act (hereinafter mentioned as ''the Authority'') issued general notice by publishing it in the local newspapers. The petitioner as well as some other respondents appeared before the Authority and asserted that the temples and the properties formed private trust properties and contended that the Authority had no jurisdiction to decide the character of the trust i.e. whether trust was a public or a private one. It was further contended that the Authority could not also decide whether a person was or was not a trustee of the trust.

The Authority rejected the contention of the petitioner and proceeded to decide the matter, Both parties adduced evidence in support of their respective claims. The Authority by his judgment and order dated the 13th September, 1967 has held that the temples are public thakurbaris and the properties covered by two trust deeds (Exhibits E and E/1) as mentioned in the schedule are public trust properties within the meaning of Section 2 (p) of the Act. It further held that there was no legally constituted trust committee of the thakurbari and, herefore, the Board should take immediate steps to constitute a trust committee of eleven members inclusive of three surviving trustees, namely, Kamleshwari Prasad Singh, Parmeshwari Singh and Madan Mohan Rai (respondents no. 2, 3 and 12 respectively). Hence the petitioner has filed the petition under Articles 226 and 227 of the Constitution for quashing the judgment and order of the Authority dated the 13th September, 1967 (Annexure ''A'').

This application was resisted by the Board (respondent no. 1) and by Kamleshwari Prasad Singh (respondent no. 2) and Parmeshwari Singh (respondent no. 3). A counter affidavit has also been filed on behalf of respondents 2 and 3 supporting the judgment and order of the Authority.

The main contention put forward by learned counsel for the petitioner was that the Authority had no power to decide the character of the trust. It is now agreed that the temples and the properties attached to them are religious trust properties. Shri Awadh Bihari Prasad Singh had considerable properties but he had no issue. He installed the deities of Shri Radhakrishnaji and Mahabirji and performed necessary religious ceremonies of Samarpan Pratistha and Upsarg in a separate building and executed two Samarpan deeds dated the 17th May and the 11th October of the year 1922 dedicating the properties mentioned therein to the deities. He appointed himself as the first shebait of the thakurbari and a trust committee consisting of several persons who were outsiders was also constituted. Provision was also made in the trust committee by death or otherwise of a trustee. Subsequently, Awadh Bihari Prasad Singh died and the trustees named in the trust deeds excepting respondents 2, 3 and 12 also died. The petitioner contended that Awadh Bihari Singh and after his death his widows all along treated the properties as private trust properties. Srimati Ganga Devi, second surviving widow of Awadh Bihari Prasad Singh died on the 2nd January, 1963 and after her death Pramoda Narain Singh came in possession of the dedicated properties as manager and shebait of the deities who has been managing the properties on behalf of the deities and the public had no right and interest in the temples or the properties of the temples as they are not public religious trust properties. He contended that the Authority was not competent to decide whether the trust was a private religious trust or a public one.

On the other hand, it was contended on behalf of the Board and the contesting respondents that the Authority was competent to decide the dispute as to the fact whether the temples and the properties mentioned in the Schedule of the petition are public trust properties or private trust properties. Therefore, this dispute could be decided by the Authority and as such the order passed by the Authority could not be assailed on the ground that the authority had no jurisdiction to decide such a dispute.

The Act provides a machinery for complete supervision and control of the properties of a public Hindu religious trust in order to prevent their dissipation and mal-administration so that the properties of the trust may be preserved. For that purpose a statutory Board is created. Chapter II of the Act provides the constitution of the Board. Chapter III lays down the procedure for the formation of the Board. Chapter IV provides for the appointment of the Superintendent and officers of the Board. Chapter V lays down the powers and duties of the Board. Section 28 empowers the Board to act and do all reasonable and necessary things to ensure that the trusts are properly supervised and administered and the income thereof is duly appropriated and applied to the objects of such trusts and in accordance with the purposes for which such trusts were founded or for which they exist so far as the objects and purposes can be ascertained. Clause (2) gives the details of duties of the Board and empowers it to pass necessary orders in that connection. Under Clause (2)(h) the Board is also empowered to remove a trustee from his office under this provision which (?) can be challenged, within 90 days of the date of the communication of such order, by the trustee concerned before the District Judge under Sub-clause (3) who may vary, modify or set aside the order of the Board. According to Section 29 the trustees of a religious trust are to work under the general superintendence and control of the Board. Under Clause (2), the Board can also supersede any committee and under Clause (4) they may make such arrangement as may be necessary for the religious trust concerned. Section 32 empowers the Board to set schemes for proper administration of the Religious trust which may be quoted here:

32(1)--The Board may, of its own motion or on application made to it in this behalf by two or more persons interested in any trust,--

(a) settle a scheme for such religious trust after making such inquiry as it thinks fit and giving notice to the trustee of such trust and to such other person as may appear to the Board to be interested thereon;

(b) in like manner and subject to the like conditions, modify any scheme settled under this section or under any other law or substitute another scheme in its stead:

Provided that any scheme so settled, modified or substituted shall be in accordance with the law governing the trust and shall not be contrary to the wishes of the founder so far as such wishes can be ascertained.

(2) A scheme settled, modified or substituted instead of another scheme under this section shall, unless otherwise ordered by the District Judge on an application, if any, made under Sub-Section (3), come into force on a day to be appointed by the Board in this behalf and shall be published in the Official Gazette.

(3) The trustee of or any other person interested in, such trust, may within three months from the date of the publication in the Official Gazette of the scheme so settled, modified or substituted instead of another scheme, as the case may be, make an application to the District Judge for varying, modifying or setting aside the scheme; but, subject to the result of such application, the order of the Board under Sub sections (1) and (2) shall be final and binding upon the trustee of the religious trust and upon every other person interested in such religious trust.

(4) An order passed by the District Judge on any application made under Sub-section (3) shall be final.

Section 33 provides for filling up vacancy in the office of the trustees of religious trust. Thereafter there is Chapter VII with the heading "Declaring immovable properties of religious Trusts as Trust property". Section 43 provides the appointment of an Authority. The relevant provisions of Section 43 may be quoted here:--

43(1)--All disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion, or on application, by the Authority appointed in this behalf by the State Government, by notification, in the Official Gazette:

Provided that such Authority shall be a person who is or has been, a member of the Bihar Civil Service (Executive or Judicial Branch) or a member of the Bihar Superior Judicial Service or the Indian Administrative Service.

(2)--Such Authority shall cause:

(a) a general notice to be published in the prescribed manner calling upon all persons having any claim to such property to file their claims within sixty days from the publication of the general notice; and,

(b) notices to be served on the Board and on the persons stated in the application or known to such Authority to be in possession of the property.

(3) Such Authority shall after taking into consideration the claims, if any, filed under Sub-section (2) and after hearing the parties and taking such evidence as may be adduced before him, declare whether the property is a trust property and, if it is so, the trust to which it belongs and shall make an order accordingly.

(4) Where such Authority makes an order declaring a property to be trust property, it shall direct that the trustee of the trust to which it belongs or, if there be no such trustee a person appointed by the Board to be a trustee for the purpose, be put into possession of the property, and determine the cost of management referred to in Sub-section (7).

(5) The Board or any other person, aggrieved by the order of such Authority, may, within ninety days of such order, institute a suit in a Court of competent jurisdiction to have the order set aside or modified.

.. .. .. ..

(9) Every order of such Authority under Sub-section (3) shall be enforceable by any Civil Court having local jurisdiction in the same manner as a decree of such Court.

Under Sub-clause (1) dispute as to whether any immovable property is or is not a trust property shall be enquired into by the Authority constituted under this section. A trust property has been defined u/s 2 (p) as follows:--

2(p)--"trust property" means the property appertaining to a religious trust.

Under Section 2(1), religious trust means:

2(1)--"religious trust" means any express or constructive trust created or existing for any purpose recognized by Hindu Law to be religious, pious or charitable, but shall not include a trust created according to the Shikh religion or purely for the benefit of the Shikh community and a private endowment created for the worship of a family idol in which the public are not interested;

It is now well-settled by the decision of the Supreme Court in (2) Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others, that the Act applies to religious public trusts and religious trust properties mean under the Act public religious trust properties. Therefore, the Board has to exercise supervision and control and pass necessary orders in relation to public religious trust properties and not private religious trusts. For the purposes of exercising supervision and control, the Board has jurisdiction initially to decide whether a particular religious trust is a public trust or a private trust on such materials as prima facie show whether the properties are religious trust properties within the meaning of the Act, (See (6) M.J.C. 541 of 1953--Mahanth Ramdhan Puri V. President, State Board of Religious Trust, Patna and others, decided on the 31st August, 1955). In deciding that, the Board has not to record evidence and investigate the question of complicated facts.

The question may at times crop up as to whether any property is a public religious trust property or not. The dispute may also arise whether the religious trust properties which appertain to the trust appertain to private trust or public trust. It is difficult to lay down the circumstances and the manner as to how such disputes will arise. The Board may prima facie determine that the disputed properties are public religious trust properties and try to supervise and control them by exercising its powers under the Act, but the decision of the Board may be questioned and it may be asserted that the properties are not amenable to the jurisdiction of the Board either on the ground that the properties appertain to private religious trust or they are not religious trust properties at all but private properties of the disputant. This necessitates some kind of decision by a particular authority for giving effect to the purposes of the Act. The powers of a civil court are wide enough to decide such disputes but the decision in a civil court may take long time and the aims and objects of supervision and control provided under the Act may be frustrated if in every case of dispute the Board or a person be compelled to take resort to a civil court. Therefore, in my opinion, Chapter VII is provided with the heading "Declaring immovable properties of religious trusts as trust property" i.e., declaring immovable properties of a public religious trust as appertaining to such a trust. For this purpose an Authority is appointed to decide all such cases as to whether any immovable property is or is not a religious trust property. The word ''any'' is significant. It does not refer only to a dispute regarding a particular property whether it appertains to a public religious trust or it appertains to a private religious trust. Where the nature of the trust is admitted i.e. it is a public religious trust, in that case the dispute may arise whether any particular property appertains to that religious public trust or not. In this case it will not be necessary to decide the nature of the trust. There may be another kind of dispute where the properties forming the religious trust properties are disputed to appertain to religious public trust and claimed to be the religious private trust properties. In this case it has got to be decided before the Act is made applicable to such properties that they are public religious trust properties. This involves determination not indirectly but directly as to the nature of the trust itself.

Section 43 provides a speedy machinery for disposal of all kinds of disputes regarding immovable properties as to whether they appertain to a particular religious public trust or whether the religious trust to which the immovable property appertained, it itself a religious trust or not. When such a dispute with regard to an immovable property is raised before the Authority, a general notice calling upon all persons having any claim to such properties to file their claims and also notices have got to be served on the Board and on the persons stated in the application or known to such Authority to be in possession of such property. Thereafter the Authority will proceed to enquire into the claims made by different persons and take such evidence as may be adduced before him and thereafter declare whether the property is a trust property i.e. a public religious trust property and if in case when he declares a property to be public religious trust property, he will direct the trustees of the trust to which it belongs to be put in possession and if there is no such trustee, he will direct that a person appointed by the Board as a trustee be put in possession of the property under the provisions of Clause (4) of Section 43. All these, at times, involve the determination of the nature of the trust in order to give effect to the various provisions of Section 43.

This decision of the Authority is not final. This is subject to the decision of a civil court in a suit brought by the aggrieved party within 90 days as is provided under Clause (5) of Section 43. Sub-section (6) is also significant which says that the order of the Authority is final and conclusive subject to the decision in a suit. But the court trying the suit would have no power to stay the operation of the order of the Authority. This provision is intended for the purposes of safeguarding the immovable properties of the public religious trust from being wasted or dissipated in cases where the properties are disputed to be the trust properties or claimed to appertain to a private religious trust.

Section 44 provides that no transfer of public religious trust property by way of sale, mortgage, gift or exchange or by way of lease for a term exceeding three years will be valid unless made with the previous sanction of the Board after the Board has been established under this Act. Clause (2) puts restriction on the power of the Board to give sanction of transfer in certain cases. Section 45 also puts restrictions on the powers of the trustees of a public religious trust to barrow money without previous sanction of the Board.

Chapter XI provides for the audit of accounts and recovery of irregular expenses in case of religious public trust by the Board. It is proved that initially while exercising powers under the Act the Board has to decide whether religious trust is or is not a public religious trust for the purposes of carrying out its decision and exercising powers vested in it by law in relation to such trusts. When such decision of the Board is disputed whether on the ground that the particular immovable property does not appertain to a public religious trust or on the ground that the properties of the religious trust do not appertain to a public religious trust and he Board has got no jurisdiction to exercise its powers over the same, in my opinion, Section 43 provides a machinery for deciding such a dispute. Seeing the entire scheme and the various provisions made thereunder, there is no doubt in my mind that the Authority u/s 43 is competent to decide about the nature of the trust when the dispute is raised before him as to whether the immovable properties appertaining to a particular trust appertain to public religious trust or a private trust. The following observation of the Supreme Court in Mahanth Ramsaroop Dasji''s case (referred to above) also lends support to the conclusion that the Authority is competent to give decision as to whether the temple and the properties appertaining thereto are public religious trust properties or not:--

Our attention has been drawn to Section 43 of the Act as amended by Act XVII of 1956. That Section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be enquired into either on its own motion or on an application by the Authority appointed in this behalf by the State Government by notification in the official gazette. Without expressing any opinion as to the constitutional validity of Section 43 of the Act we merely point out that no decision has been given u/s 43 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna asthal and the properties appertaining thereto.

I may refer to some of the decisions which have been cited at the Bar. In the (7) Bihar State Board of Religious Trusts V. Lakshman Kuer and another (S.A. No. 1287 of 1959 decided on the 26th October 1960) the appellant raised a contention that the plaintiff who had filed a suit for a declaration that the endowment of the properties mentioned in the plaint was private endowment for the upkeep of the family deities, should have at the first instance, filed an application u/s 43 before the Authority and in case he was dissatisfied with his decision, then he should have instituted a suit in a court of competent jurisdiction to have the order set aside or modified. This argument was not accepted by Ramaswami, C.J. (as his Lordship then was) His Lordship made the following observation in the case which is being sought to lend support of the contention of the petitioner.

It is, therefore, obvious that the provisions of Bihar Act 1 of 1951 only applies to disputes with regard to property of a religious trust as defined in Section 2(1) of the Act, that is, a public trust, and Section 43 of the Act has, therefore, no application to a case where the trust itself is claimed to be a private trust and not a religious trust within the meaning of the Act. In other words, the dispute as to the character of the trust is outside the ambit of Section 43 of Bihar Act 1 of 1951.

There is nothing in Section 43 to direct a person to file an application u/s 43 before bringing a suit in a court of competent jurisdiction for the declaration that the disputed properties are not trust properties. In other words, the application before the authority is not a condition precedent for bringing a suit. A person may file a suit directly in a civil court for a necessary declaration without even going to the Authority. Therefore in my opinion, the observation of his Lordship is only in the nature of obiter and could not be regarded as an Authority for the proposition that the Authority u/s 43 cannot decide the nature of the trust when a dispute is raised in connection with the immovable properties as to whether they appertain to public religious trust or private religious trust.

In Mossomat Champa Sahun V. The Bihar Religious Trust Board. Patna (Criminal Revision No. 170 of 1961 decided on the 24th August, 1961), the petitioner had been prosecuted u/s 07(1) read with Section 59(1)(a) of the Act for not filing statement as required u/s 59(1)(a) of the Act. The defense of the petitioner was that the temple and the properties attached to it were her personal property and she was not a trustee of the said thakurbari. It was contended in that case that before the provisions of the Act could be applied in the case there should have been a determination that the institution was a public trust by a competent Authority. The provisions of Sections 59 and 67 of the Act could be attracted only when a particular institution is admitted to be a trust or properties attached to it are admitted to be trust properties within the meaning of the Act, or when a dispute is raised and the matter is decided under the provisions of Section 43 of the Act. In that case, no such decision had been taken u/s 43 of the Act and hence the criminal prosecution was not justified. This contention was accepted by Choudhary, J. His Lordship relied on the observation of the Supreme Court in Ram Saroop Dasji Vs. S.P. Sahi, Special Officer-in-charge of The Hindu Religious Trusts and Others, quoted above and observed as follows:--

This judgment, therefore, is an Authority for the proposition that, unless a decision is taken u/s 43 of the Act that a particular institution is a public trust, the Board cannot interfere with the rights of management of the properties attached to that institution in possession of any person.

In that view of the matter the order of conviction and sentence was set aside. In that case it was never contended before his Lordships that the Authority u/s 43 had no power to decide the dispute regarding the nature of the trust when such dispute is raised before him, The only point decided in that case was that if a dispute is raised regarding the nature or whether the properties were trust properties or not, there could not be any criminal prosecution before a decision is given by the Authority. In the opinion of Choudhary, J. the Authority could decide about the dispute that the institution and its properties were public trust properties.

25 This matter also came to be considered before Untwalia and K.K. Dutta, JJ. in Bihar State Religious Trust Board V. Mahanth Jaleshwar Gir and others (I.L.R. XLVI patna 23). In that case the Board had filed criminal cases against the respondents for not complying with the provisions of Sections 59 and 60 of the Act. The defence of the accused was that the trusts in question were not religious trusts within the meaning of the Act. They were private trusts and the properties appertaining to them were private properties of the claimant. The defence was accepted by the trial court and the accused were acquitted. On special leave the Board filed appeals against acquittal. The stand of the Board was that the decision by the Authority u/s 43 was not a condition precedent for starting a criminal case against the respondents for not complying with the provisions of Sections 59 and 60 of the Act. In other words, the decision in Mossamat Champa Sahun''s case, referred to above, was not correctly decided. It was contended in that case that the Authority u/s 43 could not decide a dispute as to the character of the trust as this had to be determined in the first instance by the Board and later on by any competent court where this question fell for determination. This contention of the appellant was accepted by the Bench. In that connection, Untwalia, J, who delivered the judgment observed as follows:--

It is to be noticed that disputes as to whether a particular property, and that too only when it is immovable, is or is not a property, appertaining to a public trust can be enquired into by the Authority. That is to say, if the dispute relates to any particular immovable property or properties forming part of or appertaining to a public trust, such a dispute shall be enquired into by the Authority either of its own motion or on application of any person. In terms, if a dispute is in regard to the nature of the trust itself, Section 43 is not attracted. In my opinion, nobody can approach the Authority, either the Board or the trustee or any other person, for a declaration that a particular endowment or trust or institution is not a public trust but a private one, nor can anybody file an application before the Authority for a mere declaration that it is a public trust. It may well be that when a question is raised before the Authority in regard to a particular immovable property that it appertains to a public trust, by way of answer to such a claim, the person or the trustee may raise a dispute that even though the particular property appertains to the trust, the trust is not a public one and, therefore, the property should be held as not appertaining to a public trust. Incidentally and indirectly, in such a case the question may arise for the determination of the Authority and, on determination of this question the ultimate declaration which the Authority would be competent to give under Subsection (3) of Section 43 will be that the property is or is not trust property. But unless the determination of the character of the trust is involved incidentally and directly, the Authority, either within the terms of Sub-section (1) or as made expressly clear by the terms of Subsection (3), has got no jurisdiction to adjudicate purely in regard to the nature of the trust and to give a declaration as to whether it is a public trust or a private trust.

In my opinion, the above observation clearly shows that the Authority could decide about the nature of the trust in certain cases. It is true that no body can go before the Authority for a mere declaration as to whether a trust is a public trust or a private trust. For the existence of jurisdiction in the Authority, there must be a dispute with regard to immovable property as to whether the disputed property or properties are religious public trust properties or not. While deciding this, in certain cases, the Authority has to decide about the nature and character of the trust. In some cases it may arise incidentally, in others, directly. But there is a jurisdiction in the Authority to decide such a dispute. It cannot be said that the Authority has no jurisdiction to decide in some cases and has jurisdiction to decide in other cases. Both the parties have relied on the aforesaid observation of Untwalia, J. in support of their respective contentions. But in view of certain decisions of the court which I shall discuss presently it has been contended by the petitioner that the Authority has no jurisdiction to decide that the temples and the properties mentioned in the petition are public religious trust properties.

Learned counsel for the petitioner relied on the decision of this Court in Bihar State Board of Religious Trusts V. Raj Ratan Gir (1969 B.L.J.R. 63). In that case the Authority declared a math, its temple and deities and the properties attached thereto were in the nature of public religious trust properties, subsequently a suit was brought by the aggrieved party. The trial court held that the properties in suit were private trust properties of the plaintiffs and the provisions of the Act would not apply to them. In appeal by the Board, it was contended that the suit was barred under the provisions of Section 43(5) of the Act. In that connection A.B.N. Sinha, J. who delivered the judgment and with whom Verma, J. agreed, after quoting Section 43 observed as follows:--

It appears to me that Sub-section (1) of Section 43 on its express terms refers to disputes in connection with the question whether one or more items of immovable property was a trust property or not or appertained to a trust property. It does not include within its ambit the determination of the question as to the nature of the property itself, namely, whether a property in question was a trust property as defined in the Act or was a property which appertained to a private religious trust.

This view of the learned Judge is based on the aforesaid observation made by Untwalia, J. in Bihar Religious Trust Board V. Mahanth Jaleshwar Gir, referred to above. There does not seem to be any independent consideration of the other provisions of the Act. In that view of the matter, the learned Judge held that the decision of the Authority u/s 43 was without jurisdiction and, therefore, the suit could not be barred u/s 43(5) of the Act if not brought before ninety days.

The matter again came for consideration before a Bench of this Court in Sheo Shankar Choubey and Others Vs. The Bihar Hindu Religious Trust Board, . In that case the Board filed an application before the Authority u/s 43 of the Act with the following prayers:

It is accordingly prayed that your honour will be graciously pleased to declare that the Math situated in village Atarsan along with the properties attached to it, of which the opposite party is a trustee comes within the purview of the Bihar Hindu Religious Trust Act, 1960......

It may be mentioned here that in the original petition, the disputed properties were not mentioned. The application was merely an application for declaration that the math situated in village Atarsan along with the properties attached to it came within the purview of the Bihar Hindu Religious Trust Act, 1950. Subsequently, an application for amending the petition by adding the schedule of the properties of the math was sought for by the Board and the opposite party objected to its amendment. It was contended before the Authority that he had no jurisdiction to decide the nature of the trust and of the properties attached to it. The Authority overruled this contention and held that he had jurisdiction to decide it. The opposite party filed an application before this order of the Authority, Relying on the observation of Untwalia, J. in Bihar Religious Trust Board V. Mahanth Jaleshwar Gir, referred to above, the Bench accepted the contention of the petitioner, set aside the order of the Authority that it could proceed with the hearing of the case and decide it. In this case, the application as stood before the amendment was merely for a declaration that the trust in question was a public trust without seeking any decision regarding any dispute in respect of immovable properties.

For the reasons stated above, I am of the opinion that the Authority u/s 43 of the Act can decide in appropriate cases as to the nature of the trust when a dispute is raised in respect of immovable property or properties as to whether it or they appertain to public religious trust or not and, in the present case, the Authority was right in deciding the dispute between the parties involving the determination of the nature of the trust itself. But since in Bihar State Board of Religious Trusts Vs. Raj Ratan Gir and Others, , a Bench of this Court has taken the view that the Authority u/s 43 of the Act has no jurisdiction to decide the nature of the trust and this decision is binding on me, it has got to be held that the Authority exceeded his jurisdiction in deciding the nature of the trust. Therefore, the application has got to be allowed and the order of the Authority set aside.