Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 720 (PAT)

Nagendra Nath Shukla v. State Of Bihar

2008-05-21

CHANDRAMAULI KR.PRASAD, R.M.LODHA

body2008
Judgment 1. The petitioners have put an issue the constitutional validity of Section 28(2)(u) of the Bihar Religious Trusts Act, 1950 (for short, Act of 1950). 2. Mr. Yogendra Mishra, counsel for the petitioner, submitted that the provisions contained in Section 28(2)(u) were repugnant to Section 5 of the Charitable and Religious Trust Act, 1920 and since the assent of the President has not been obtained, this provison is unconstitutional. The counsel submitted that by insertion of Clause (u) of Section 28(2) of the Act of 1950, the legislature has delegated unguided and uncanalized power to the Religious Trust Board which is an interested party in the matter as they would like the trust to be declared as public trust. The counsel for the petitioners would, thus, contend that the power to determine the nature of the trust has been given to the Board which itself is an interested party. Constitutionality of Section 28(2)(u) of the Act of 1950 is also assailed on the ground of excessive legislation. 28. of List III of Seventh Schedule reads thus: "28. Charities and Charitable institutions, charitable and religious endowments and religious institutions." 3. The Charitable and Religious Trust Act, 1920 came into existence on 20th March, 1920. Section 3 thereof provides for an application to be made by any person having an interest in any express or constructive trust created or existing for a public purpose of a charitable or religious nature to the concerned Court for various directions set out therein. Section 5 provides for procedure on such petition. It reads thus: 5. Procedure on petition. If the Court on receipt of a petition under Section 3, after taking such evidence and making such inquiry, if any, as it may consider necessary, is of opinion that the trust to which the petition relates is a trust to which this Act applies and that the petitioner has an interest therein, it shall fix a date for the hearing of the petition, and shall cause a copy thereof, together with notice of the date so fixed, to be served on the trustee and upon any other person to whom in its opinion notice of the petition should be given. (2) On the date fixed for the hearing of the petitioner or on any subsequent date to which the hearing may be adjourned, the Court shall proceed to hear the petitioner and the trustee, if he appears, and any other person who has appeared in consequence of the notice, or whom it considers ought to be heard, and shall make such further inquiries, if any, as it thinks fit. The trustee may and, if so required by the Court, shall at the time of the first hearing or within such time as the Court may permit, present a written statement of his case. If he does present a written statement, the statement shall be signed and verified in the manner prescribed by the Code of Civil Procedure, 1908, for signing and verifying pleadings. (3) If any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which this Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, Court shall order a stay of the proceedings and, if such is so instituted, shall continue the stay until, the suit is finally decided. (4) If such undertaking is given, or if after the expiry of the three months no such suit has been instituted, the Court shall itself decide the question. (5) On completion of the inquiry provided for in sub-section (2), the Court shall either dismiss the petition or pass thereon such order as it thinks fit: Provided that, where a suit has been instituted in accordance with the provisions of sub-section (3), no order shall be passed by the court which conflicts with the final decision therein. (6) Save as provided in this section, the Court shall not try or determine any question of title between the petitioner and any person claiming title adversely to the trust." 4. The Bihar Hindu Religious Trust Act, 1950 was enacted for better administration of Hindu Religious Trusts and for protection and preservation of properties appertaining to such trusts. The Act received the Presidents assent and was published in the Bihar Gazette, Extraordinary of the 21st February, 1951. That the State Legislature is competent to enact the Act of 1950 is clearly seen from entry 28 of the CONCURRENT LIST of Seventh Schedule. The Act received the Presidents assent and was published in the Bihar Gazette, Extraordinary of the 21st February, 1951. That the State Legislature is competent to enact the Act of 1950 is clearly seen from entry 28 of the CONCURRENT LIST of Seventh Schedule. The competence of the State Legislature, therefore, in enacting such law cannot be doubted. The challenge by the petitioner is in respect of Section 28(2) (u) which was brought into the statute by Act no. 1 of 2007. 5. Section 28 provides for general powers and duties of the Bihar State Board of Religious Trust. By this provision, the Board has been empowered to decide all. disputes with regard to the nature of the trust in as much as whether any trust is a public or a private trust in accordance with the definition of Section 2(1). It clarifies that the decision of the Board would remain in force until it is set aside by the competent Court. 6. Having considered the provisions contained in Sections 3 & 5 of the Act of 1920 and Section 28(2)(u) of the Act of 1950, we find no merit in the submission of the counsel for the petitioner that Clause (u) of Section 28(2) is repugnant to Sections 3 & 5 of the Act 1920. It cannot be said that the aforesaid provisions cannot stand side by side. We find no merit in the contention that it was necessary to seek assent of the President of India before Clause (u) could be introduced in Section 28 of the Act of 1950 nor is there any merit that the provision suffers from excessive legislation. 7. Moreover it is pertinent to notice that the decision of the Board in respect of nature of a trust as to whether such trust is a public trust or private is not final. it is subject to determination by the Civil Court. The decision of the Board, if inconsistent with the decision of the Civil Court becomes ineffective automatically. 8. It is not correct to say as has been contended by the counsel that for exercise of power by the Board as to whether a trust is public or a private trust, no guidelines have been framed. 9. Section 56 enables the Board to summon and enforce attendance of witnesses and production of documents as a Civil Court. 8. It is not correct to say as has been contended by the counsel that for exercise of power by the Board as to whether a trust is public or a private trust, no guidelines have been framed. 9. Section 56 enables the Board to summon and enforce attendance of witnesses and production of documents as a Civil Court. This surely means that before passing any order or making decision under Section 28(2)(u), the principles of natural justice have to be followed by the Board. That would surely include a notice to the affected trust(s), reply by them and consideration of evidence that may be let in by the affected party. It, therefore, cannot be said that the Board has been conferred unbridled power in deciding the dispute referred to in Clause (u) of Section 28(2). 10. There is no merit in the contention of the counsel for the petitioner that the Board is an interested party in declaring in even a private trust as a public trust. Firstly, it is not and secondly, and more importantly, the decision of the Board is not final as it is subject to final determination by the Civil Court. 11. We, thus, find no merit in this writ petition. It is dismissed, accordingly.