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1981 DIGILAW 59 (PAT)

Bihar State Board of Swetamber Jain v. Mahipal Bahadar Singh

1981-03-07

SATYESHWAR ROY

body1981
Judgment SATYESHWAR ROY, J. The petitioners-opposite party of Miscellaneous Case No.1 of 1978 of the court of the District Judge, Giridih has challenged the legality of the order dated 26.9.1979 by which the court below has made the ad-interim order of injunction absolute. 2. The opposite Party no.1 to 4 filed an application in the court of the District Judge, Giridih, under section 29(2) of the Bihar Hindu Religious Trust Act, 1950 (the Trust Act) challenging the resolution dated 19.2.1978 passed by the petitioner Bihar State Board of Swetamber Jain Religious Trust(the Board) by which it superseded the committee constituted by the Board by its resolution dated 14.11.1976. The Board superseded opposite party nos. 1 to 4 as trustees of Sammet Saikherjee Group of Temples and constituted a committee of seven persons for the management of the aforesaid Tierths. The respondents challenged the legality of the resolution dated 14.11.1976 by filing an application in the court of the District Judge, Giridih which was registered as Miscellaneous Case no. 5 of 1977. When that Miscellaneous Case was pending, the Board by its resolution dated 19.2.1978 superseded that committee and appointed a committee of three members in its place. According to the opposite parties they came to know about the resolution dated 19.2.1978 on 24.3.1978 and filed an application in the court of the District Judge, Giridih, on 19.4.1978 which was registered as Miscellaneous Case No.1of 1978. In that case the opposite parties filed an application for stay of operation of the resolution dated 19.2.1978. The ad-interim order was passed on 22.6.1978. The petitioners filed their show cause and after hearing the parties the court below has made the order dated 22.6.1978 absolute with some modifications. 3. Various points have been urged on behalf of the petitioners challenging the legality of the Impugned order. The only point I shall notice in this application for the purpose of its disposal is whether the application under section 29 (3) of the Trust Act, was barred by limitation and if so whether the court below could have stayed the operation of resolution dated 19.2.1978 without condoning the delay. 4. The only point I shall notice in this application for the purpose of its disposal is whether the application under section 29 (3) of the Trust Act, was barred by limitation and if so whether the court below could have stayed the operation of resolution dated 19.2.1978 without condoning the delay. 4. Section 29(3) of the Trust Act, provides that “such committee or association if superseded by the Board under section 29(2) of the Act, or any other person interested in the religious trust may, if such assignment has been made by the Board, within 30 days of any order of the Board under that sub section make an application to the District Judge for varying, modifying or setting aside such order. Section 29(3) gives a right to supersede committee or association or any other person interested, to make such an application within 30 days from the date of the order. Some relevant dated to be noticed are that the committee was superseded on 19.2.1978 and the application under section 29(3) of the Trust Act, was filed on 19.6.1978, after more than 30 days from the date of the order of the Board. It was contended on behalf of the petitioners that the application on the fact of it being barred and there being no application for condoning the delay, the court below had no jurisdiction to pass the impugned order. It was submitted on behalf of the opposite party nos. 1 to 4 that in view of Bye law 46 of the Board the application was within time as they came to know about the order of the Board on 24.3.1978 when it was published in a newspaper. It was further submitted that under Bye-law 18 (c) of the Board, the order of the Board superseding the trusts, Associations or Committees shall be published in any newspaper in the State for the information of the public in general and persons Interested In particular. The court below on relying on Bye law 46 of the Board held that the application was not barred. It was conceded on behalf of the opposite party that Bye law 46 of the Board has no application to the present case. The court below on relying on Bye law 46 of the Board held that the application was not barred. It was conceded on behalf of the opposite party that Bye law 46 of the Board has no application to the present case. But it was contended on their behalf that Bye-law 18 will apply to this case in as much as the decision of the Board dated 19.2.1978 was published in 'Pradeep' a newspaper published from Patna on 24.3.1978. On which date opposite party nos. 1 to 4 came to know about the order of the Board. According to them for filing an application 30 days as provided in section 29 (3) of the Trust Act, shall have to be computed from 24.3.1978 i.e. from the date of the publications in the newspaper and the application under section 29 (3) of the Trust Act, filed on 29 4.1978 was within 30 days from the date of publication. 5. Legislature in its wisdom provided under section 29 (3) of the Trust Act, that an application to the District Judge challenging the order of the Board must be filed within 30 days from the date of the order or the Board. Bye-law has been framed by the Board under section 83 of the Trust Act. The Bye-law is therefore, delegated legislation and it is settled law that by delegated legislation a delegatee cannot make provision inconsistent with the provision of an Act. It was submitted that Bye law 18 was not inconsistent with section 29 (3) of the Trust Act. This contention is misplaced. Bye-law 18 has noting to do with the period prescribed in Section 29 (3) for filing an application. By Bye-law 18 provisions have been made for giving Information to the public in general and persons interested of some decisions notices and orders of the Board and the made by which such information will be given. 6. For the purpose of computing 30 days for filing an application to the District Judge under section 29 (3) of the Trust Act, limitation starts running from the date of the order. Neither Bye-law 18 nor 46 extends the period of limitation. Therefore, the application under section 29 (3) of the Trust Act, filed in the court of the District Judge was barred by limitation. 7. Neither Bye-law 18 nor 46 extends the period of limitation. Therefore, the application under section 29 (3) of the Trust Act, filed in the court of the District Judge was barred by limitation. 7. There is no dispute that section 5 of the limitation Act, 1963 will apply to the applications filed under section 29 (3) of the Trust Act. But no such application was filed to the District Judge for condoning the delay in filling the application. For the reasons, It must be held that as the application filed under section 29 (3) of the Trust Act, was barred by limitation, the District Judge had no Jurisdiction to grant stay or operation of the order dated 19.2.1978. 8. In the result, the application is allowed and the older dated 26.9.1979 passed by the District Judge, Giridih is set aside. However, opposite party no. 1 to 4 may file an application in the court below for condoning delay in filing the application under section 29(3) of the Trust Act, and the court below after hearing the parties will dispose of the same. If the delay in filling the application under section 29(3) of the Trust Act, is condoned, the District Judge shall hear the parties again, if the opposite party nos.1 to 4 press their application for stay of the order dated 19.2.1978 passed by the Board, and shall pass a fresh order. There will be no order as to costs. Application allowed.