JUDGMENT This application has been made on behalf of Shri Shri lswar Satyanarayanjee and other deities and by Satyanarayan Bagla as shebait of the said deities. The case of the petitioners is that Shewbux Bagla consecrated the deities in a temple house at Calcutta from the 1st June, 1984 and thereafter at Varanashi. On 11 January, 1988 the said Shewbux Bagla executed a registered deed of dedication. On the 3rd January, 1985 the property being the subject-matter of this petition, then numbered as 105, Mechua Bazar Street, Calcutta, was purchased by the founder in a Court sale to form part of the trust estate. 2. On 1st August, 1901, a Deed of Declaration was executed by the said Shewbux Bagla who was then known as Raja Shewbux Bagla. By the said Deed the said Shewbux Bagla dedicated and/or confirmed dedication to the said Deities of other properties since purchased and belonging to and/or confirmed them to be part of the dedication and declared the same to be absolute debuttar properties, including the property being the subject-matter of this petition which was purchased on 3rd January, 1895 in Court sale in Suit No.8 of 1887 of this Court. By the said Deed of Declaration, the properties were declared not alienable and in case of acquisition it was provided that the property has to be substituted by other immoveable property of the same value. It was also provided that the properties are to be vested at all times in the Idols. The expenses of the Deities were to be met from out of the rent realised from the debuttar properties. It was also provided that the properties are to be vested at all times in the Idols. The expenses of the Deities were to be met from out of the rent realised from the debuttar properties. The said Deed of 11th January, 1988 whereby the said Shewbux Bagla dedicated the properties situated at No.41, Cotton Street, Calcutta and Bisweswar Phatak, Varanashi to Sri Satyanarayan Jew and other deities, appointing him as the sole shebait and trustee, provided, inter alia, as follows:- "Where as the said Shewbux Bagla is desirous of severing for ever the said house at Calcutta and Benaras and the said articles and furniture from all secular purposes and concerns and of converting the same into absolute debutter property and limitation reservation of restraint and whereas the expenses of the said sheva or worship and for the maintenance of the said Chutter at the scale at which they are now performed and worked being considerably larger then the income derived or derivable from the said houses and the said Shewbux Bagla with a view to maintain the said Sheva and the said Chutter or their present scheme and scale is desirous of making such provisions therefore as are hereinafter contained. Now this indenture witnesseth that in pursuance of the said premises and for effectusting the said intention of the said Shewbux Bagla with the consent and concurrence of the said Ganapat Roy testified by this being party to and executing these presents doth hereby grant convey assure unto the said Shewbux Bagla as shebait of the said idols Sree Sree Iswar Satyanarayanjee and the auxiliary deities hereinbefore mentioned and to his successors in the office of shebait......... ..." "To have and to hold the said temples houses lands hereditaments and other premises hereby granted or expressed or intended to be unto the said Shewbux Bagla as such shebait as aforesaid and his successors in the office of such Shebaits upon Trust that the said shewbux Bagla as such shebait as aforesaid and his successors in the office of such shebait shall stend seized and possessed of the said temple houses lands hereditaments and premises and place keep locate and put up the said idols in that protion of the said houses and premises No. 51, Cotton Street, Calcutta namely in the same set of rooms where the said idols, are at present kept located and put up and to use the said hereditaments and premises as the con secreted temples or places of worship of the said idols to let out or demise such other portions rooms or set of rooms of the Same house and premises namely the House and premises No. 51, Cotton Street hereby Convayed and con secreted or any parts thereof as to the discretion of the said shebait or sheba its can be conveniently let out and demised for any term or period upon and subject to such rents covenants and conditions as the said shebait or shebaits shall think fit and out of the income arising or to be derived therefrom in the first place to keep the said house hereditaments and premises in due and proper repairs and to pay and spend the balance in the manner hereafter provided set out and appointed modifying to and in due proportion with the increase or diminution of the said income with full and sufficient power and liberty to the said sheoait or she-baits to set apart and accumulate such portion of the said income as the said shebait or shebaits shal in his or their discretion shall think fit against any sudden emergency or unforeseen accident in Connection with a concerning or relating to the said house and premises or to keep up and maintain the sheba or worship of the said idols in a regular or systematic mode and manner as hereinafter prescribed..... "Sree Sree Satyanarayanjee such funded property investment or money shall be deemed taken or considered to all intent and purposes as debutter property and for ever absolutetly and completely served from the secular properties of the said Shewbux Bagla his heirs representative or assigns or the descendants of any or either of them and shall be absolutely and completely subject to the provisions limitation and reservations of there presents and dealt with accordingly provided always the discretion hereinbefore reserved to in shebait or shebaits for the time being to vary and modify the expenses and to create a fund for providing against future contingencies shall not be so exercised as to diminish the monthly and periodical expenses lower than Rupees Four thousand two hundred sixty nine and thirteen annas annually or in other word to make the expenses less than Rupees Three hundred fifty five thirteen annas per year provided always and it is hereby agreed and declared that in case the said houses lands hereditaments and premises or any portion thereof he taken up by Government or taken up any public purposes according to any law for the time being in force or in case any landed property or any portion thereof to be hereafter dedicated or consecrated under the provisions herein before to that effect contained be taken up by Government of for any public purpose then and as obtain as the same may happen the shebait or shebaits for the time being shall with an convenients speed subsitute for the lands or houses or any portion thereof so taken up lands or houses of similar income by purchase or otherwise with the moneys received by the then acting shebait or shebaits as compensation for the lands house on any portion thing so taken up as aforesaid and it is hereby agreed and declared that the said Shewbux Bagla as such shebaits as aforesaid shall have power and authority at any time or times during the terms of his natural life to appoint by deed or deeds in writing any person or persons to act as substitute or substitutes for himself as such shebaits and at his discretion to revoke such appointment and to replaced or reappoint new shebait or shebaits in the place or stead of the displaced or dismissed shebait or sbrbaits and in default of such appointment by the Said Shewbux Bagla upto the time of his death or if the said Shewbux Bagla departs this life with out making any such appointment then and stated provided always that in the succession of next of kin the male should be preferred to a female and the order successors shall commit or be guilty of any breach of trusts conditions covenants directions or proviso herein contained and it is hereby agreed and declared that if so often any future shebait or shebaits shall die or become incapable to act in the trusts of these presents it shall be lawful for the eldest male descendants or representative or next of kin of the said Shewbux Bagla or if there be no such female next of kin then for the retiring or refusing shebait or the male nearest of him of the last acting shebait to constitute or appoint not shebait or shebaits in the place of the shebait or shebaits. dying going to reside abroad or desiring to retire or refusing or become incapable to act as aforesaid with liberty upon any such appointment to increase or diminish the number of shebaits and upon every such succession or appointment the hereditaments and premises and all additional properties hereby dedicated consecrated settle assured and consigned under the provisions of these presents shall be so transferred to stand transferred as to become vested in the said shebaits as the case may require and......” “............Provided and it is hereby agreed and declared that the heirs and decendants of the said Shewbux. Bagla or any or either of shall have full power to increase and scale of the said sheba or worship or of the said chutter by making a suitable provision therefore bar not otherwise and it is hereby agreed and declared that all persons of Hindu pursuation shall have right to worship the said idols Sree Sree Satyanarayan or to make any presents to it at their own cost and the shebait or shebaits shall not be competent to refuse admittance to any Hindu desirous of performing the worship of the said idol or to accept any offering presented to it at his own cost and the said Gunpatroy Bagla doth hereby declare that money paid as consideration for the purchase of the said house No. 51, Cotton Street and also the gelid house at Benaras was the proper money of the Slid Shewbux Bagla and that be the said Gunpatroy Bagla has no interest to the said property or claim or demand to the said moneys or to the said properties namely and the said house and premises at 51, Cotton Street, Calcutta or the said house and premises at Bisweswarnath Phattak............" 3. The petitioners relied on the judgment in the case of (1) Satyanarayan Bagla v. Controller of Estate Duty, West Bengal, Calcutta reported in 1981(1) Cal LJ 94. In that judgment a Division Bench of this Court bad an occasion to concider the purpose and effect of the said Deeds, dated I 11th January, 1888 and various other Deeds and Declarations. Of course the question there was only as to the assessment proceedings under the Estate Duty that arose due to the death of Kumar Gungadhar Bagla on 20th September, 1964, who was the father of the present shebait. Of course the question there was only as to the assessment proceedings under the Estate Duty that arose due to the death of Kumar Gungadhar Bagla on 20th September, 1964, who was the father of the present shebait. Satyanarayan Bagla and was the shebait and/or trustee of the said deities and/or the said deities and their estate until his death. 4. After considering the said Deeds and Declarations the Division Bench of this Court, inter alia, held that in the facts and circumstances of the case and own proper interpretation of the relevant Deeds the tribunal was justified in holding that the deceased Kumar Gungadhar Bagla was only a shebait and not also a trustee of the Mukhram property which is one of the properties belonging to the said deities. The Court also held that on the facts and in the circumstances of the case the tribunal was not justified in holding that the residental portion of the Mukhram property occupied by the deceased passed on death of the deceased or that the value thereof was includable in the principal value of the estate left by the deceased. The net effect of this finding is that the entirety of the properties were held to be debuttar and no portion of the debuttar property was held to have passed upon the death of the deceased shebait to the incoming shebait. 5. That the properties belong to the deities was not even disputed by the Revenue authorities in the aforesaid estate duty case. The Revenue authorities only want to the extent that since the right of residence was given to the shebait in Mukhram property, the said right of residence in Mukhram property was a property held by the shebait, and the same should have been treated as passed to the incoming shebait. However, that contention was negatived by the, Said Division Bench judgment. 6. The petitioner also placed before this Court the certificate dated 4th January, 1974, certifying that Shree Shree Iswar Satyanarayanjee and other deities as constituted under the Deed of Trust, dated 11th January, 1888 had on that day been registered under section 12A of the Income Tax Act, 1961. However, that contention was negatived by the, Said Division Bench judgment. 6. The petitioner also placed before this Court the certificate dated 4th January, 1974, certifying that Shree Shree Iswar Satyanarayanjee and other deities as constituted under the Deed of Trust, dated 11th January, 1888 had on that day been registered under section 12A of the Income Tax Act, 1961. It was also submitted that the said deities have been complying with the conditions laid down by section 12A of the Income Tax Act, 1961 and that the said deities have been granted exemption as permissible under section 11(i)(a) of the Income Tax Act as income derived from properties held under trust wholly for charitable or religious purpose. 7. In this case the respondents have not filed any affidavit-in-opposition to dispute the allegations contained in the petition find under the circumstances as stated above this Court has no hesitation in proceeding on the basis that the land and building belonging to the said deities including the said land and the building formerly known as 105, Mechua Bazar Street and now known as 21, Keshab Chandra Sen Street, are all absolute debuttar properties of the Deities, namely, Sri Sri Iswar Satyanarayanjee and other deities being the petitioner No.1. 8. The petitioner next relied on the Special Bench judgment in the case of (2) Lakshmimoni Das & Ors. v. State of West Bengal & Ors. reported in 1987(2) Cal LJ 53 The petitioner mainly relied on the portion of the judgment in paragraphs 63 and 64 which are as hereunder :- "63. The learned Counsel appearing for the Official Receiver on wh0se behalf some of the writ petitions have been filed, has contended that section 5 of the impugned Act is ultra vires the provisions of Article 25 and Article 26 of the Constitution on the ground that the lands in question comprising thika tenancies were held exclusively for religious purpose. Similar point has also been taken on behalf of a mutwali of a wakf estate in another writ application. It has been contended that the wakf estate is protected under Article 26 of the Constitution of India inasmuch as the muslim community is a religious minority and such muslim has a right to acquire movable or immovable property and to administer such property in accordance with the Mohamedan Law. It has been contended that the wakf estate is protected under Article 26 of the Constitution of India inasmuch as the muslim community is a religious minority and such muslim has a right to acquire movable or immovable property and to administer such property in accordance with the Mohamedan Law. It has been contended that if the thika tenancy land belonged to the Wakf estated is vested the purpose of the wakf will laid and consequently the mosque and other charitable purpose for which wakf had been created cannot be maintained. The learned Counsel appearing on behalf of the official Receiver has contended that official Receiver was appointed in respect of certain debuttar estates and from the income of such debuttar estates, temples are being maintained and the sheba puja of deities are performed. Article 25(1) of the Constitution provides that subject to public order or morality and health and other provision of part III of the Constitution, all persons are (quail) entitle to freedom of conscience find the right to freely profese, practise and propagate religion. Relying on this Article it has been contended that a right to freedom of Religion can only be curtailed and/or abridged on the ground of public order, morality and health and other provisions of Part III of the Constitution. In the instant case, such right to freedom of religion Is being denied because of vesting of debuttar estate without making any provision for permanent annuity as provided in other Acts. In this connection, reference has been made to the provisions of section 6(1)(i), section 12(2) read with section 17 of the West Bengal Estates Acquisition Act which provide that where an intermediary is an institution established exclusively for religious or charitable purpose, the annual income of the property computed in accordance with the provisions of the said Act is to be given to the deity by way of annuity for the purpose of maintaining such charitable and/or religious institution. It has been contended that in the absence of any provision of giving permanent annuity under the impugned Act to the wakf estate and/or debuttar estate, section 5 which intends to vest the thika tenancies and other lands including the wakf estate and debuttar estate must be declared ultra vires the provisions of Articles 25 and 26 of the Constitution of India." "64. In our considered view, the contention raised in this regard appears to be of substance. The right of religious minority protected under Article 26 of the Constitution to own property and to administer such property and/or to establish and. maintain institutions for religious and charitable purpose cannot be taken away by the impugned Act and further if the temples and/or the sheba puja of the deities cannot be maintained because of taking away of such property without providing for permanent annuity, the 'purpose of the trust is bound to be frustrated and the religious institutions so affected will come to an end thereby interfering with the right to profess and practise religion guaranteed under Article 23(1) of the Constitution. Applying such test, we are of the view that sub-section 2 of section 8 read with Rule 5(1) of the Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 infringes Articles 25 and 26 of the Constitution. In our view in the absence of any provision for reasonable permanent annuity for vesting of properties belonging to religious trust and/or a wakf estate maintained for religious purpose, such properties belonging to religious trust or wakf estate will not be affected under section 5 of the impugned Act. We are, however, not inclined to accept the contentions made on behalf of the petitioners that the impugned Act is bad for total non-application of mind by the legislature resulting in obvious in inconsistencies in various provisions of the impugned Act thereby making the Act as a whole unworkable. It appears to us that some of the provisions of the impugned Act and the Rules framed thereunder since indicated hereinbefore and to be indicated thereafter are not tenable and should be declared ultra vires but it cannot be held that the impugned Act as a, whole is illegal, ultra vires and/or un workable." 9. The Special Bench held that in the absence of any provisions for reasonable permanent annuity for vesting of properties belonging religious trust and/or wakf estate maintained for religious purpose such properties belonging to religious trust or wakf estate will not be affected under section 5 and section 8(1)(2) of the Calcutta Thika Tenancy (Acquisition and Regulation) Ace, 1981 (hereinafter referred to as the said Act). 10. Section 5 of the said Act reads as hereunder :- "5. Lands comprised in thika tenancies and other lands, etc. 10. Section 5 of the said Act reads as hereunder :- "5. Lands comprised in thika tenancies and other lands, etc. and right, title and interest of landlords in such land of vest in the State. With effect from the dale of commencement of this Act lands comprised in thika tenancies and other lands held under any person in perpetuity or under registered lease for a period of not leas than twelve years or held in monthly and periodical tenancies for being used or occupied all khatals along with easements, customary rights, common facilities and such other things in such thika tenancies and khatals attached to or used in connection with such thika tenancies, and khatals and the right, title and interest of landlords in such lands shall vest in the State free from all in-cumbrances :- Provided that the easements, rights, common facilities or benefits enjoyed by a thika tenant or an occupier of any land under any person in perpetuity or any land under any 'person under registered lease for a period of not less than twelve years or a khatal in khas lands of the landlords shall not be affected in any way by such vesting." Section 8(1)(2) reads as follows :- "8. Payment of compensation. (1) The State shall for the vesting of any land under section 5., pay to the landlord or landlords hawing any right in such land an amount as may be determined in accordance with the provisions of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976). (2) Where the landlord is a corporation or an institution established exclusively for a religious or a charitable purpose, of a public nature, or is a person holding under a public trust or an endowment or other legal obligation exclusively for a public purpose which is religious or charitable, the State shall, for vesting under section 5, pay to such landlord an annuity for such number of years as may be prescribed, having regard to the extent of the rights of the landlord. Such annuity shall not exceed the annual net income derived from the holding as may be determined by tile Controller in the prescribed manner. Such annuity shall not exceed the annual net income derived from the holding as may be determined by tile Controller in the prescribed manner. In determining the net annual income the Controller shall deduct from the gross income apart from other sums as may be prescribed, charges on account of management and collection at the rate of twenty per centum of the gross income." 11. The Special Bench also held that sub-section (2) of section 8 read with Rule 5(1) of the Calcutta Thika Tenancy (Acquisition and Regulation) Rules, 1982 infringes Articles 25 and 26 of the Constitution. 12. At the request of the State six weeks stay was granted on the condition that the status quo as was prevailing on the date of passing of the judgment will continue for six weeks, yet nobody on behalf of the State has appeared nor submitted as to whether the said judgment was appealed from and whether any stay was obtained from the Supreme Court. The said judgment of the Special Bench was delivered on July 8, 1987 and after the expiry of six weeks from the date of the judgment the said judgment came into force. If that is so, then and in that even the said land and property at 21, Keshab Chandra Sen Street being a property belonging wholly and exclusively to the said deities for religious purpose cannot be affected under section 5 of the said Act. 13. It was also submitted on behalf of the petitioner that the land in question contained pucca structures and as such the said land was not comprised in thika tenancy and could not be vested in the Government. The petitioner also relied on the report of the Special Officer wherein the Special Officer reported that there were pucca structures on the land in question. It was submitted that these structures were not constructed pursuant to or in accordance with any section under the Thika Tenancy Act and as such the same could not be vested in the Government. The petitioner also relied on the report of the Special Officer wherein the Special Officer reported that there were pucca structures on the land in question. It was submitted that these structures were not constructed pursuant to or in accordance with any section under the Thika Tenancy Act and as such the same could not be vested in the Government. The petitioner relied on the provision of the Special Bench in paragraph 67(b) which is as follows : "Within the scope and ambit of section 5 of the impugned Act only lands comprised in thika tenancies within the meaning of the Calcutta Thika Tenancy Act, 1949 comprising a kutcha structure and/or a pucca structure constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949 and khatal lanas held under a lease shall vest and save as aforesaid no other land and structure vests under the impugned Act." 14. It was submitted on behalf of the petitioner that in view of the aforesaid observations the land could not in any event stand vested in the State Government. However, this question requires further facts to be placed before this Court as to whether or not, the structures was pucca structures constructed for residential purpose with the permission of the Controller under the Calcutta Thika Tenancy Act, 1949. In view of all the facts and circumstances of the case, I do not think that this question can be decided in this proceeding in view of the State of Affidavits. The petitioner submitted that so far as this case is concerned the same can be decided on this ground alone, that the property is an absolute debutter estate occupied by the said deities and therefore in view of the said judgment of the Special Bench (Supra), no part of the land Court stand vested in the State Government. 15. I am making it clear that I have pot gone into the questions as to the factum of the existence pucca structures and/or circumstances under which such pucca structures have been built and the legal consequences arising therefrom and all such questions are left open to the petitioner, in any future proceedings. 16. In view of the discussions aforesaid the rule issued in terms of prayers (a), (b),(d) and (e) is made absolute. Mr. 16. In view of the discussions aforesaid the rule issued in terms of prayers (a), (b),(d) and (e) is made absolute. Mr. Hiralal Bhowsingka, the Special Officer and/or Receiver appointed in the above proceeding is directed to make over all the amounts lying in his hands to the petitioner deities. All further rents and/or mesne profits in respect of the said land & premises, Irrespective of the fact as to whether the same is outstanding for earlier period, shall be payable to petitioner deities. The said Mr. Hiralal Bhowaingka is hereby discharged from further acting as Special Officer and/or Receiver. There will be no order as to costs. All parties including the Special Officer and or the Receiver are to act on a signed copy of the operative portion of the judgment.