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2010 DIGILAW 752 (PAT)

Sri Ram Das v. State Of Bihar

2010-04-15

DIPAK MISRA, MIHIR KUMAR JHA

body2010
JUDGEMENT Dipak Misra, J. 1. I.A. No. 2030 of 2010 This is an application for condonation of delay of 67 days in preferring the appeal. 2. We have heard. Mr. Sidheshwari Pd. Singh, learned Senior Counsel, alongwith Mr. M.P. Singh, learned counsel for the appellants, on the question of limitation. 3. Before adverting ourselves to the issue of limitation, we thought it apt to dwell upon the merits of the appeal whether issuance of notice on the question of limitation is warranted. 4. The appellants invoked the writ jurisdiction of this court for issue of a writ of certiorari for quashing the notification contained in Memo No. 4549 dated 4.10.2001 issued by the Board of Religious Trust, whereby individual property of the petitioners had been declared as Trust property of Makandpur Thakurbari. It was contended before the learned Single Judge that the said properties had been purchased by the ancestors of the petitioners in the year 1965 by registered sale deed and mutation had already been effected in their favour. It was urged that their residential house contains a room of the god and goddesses, which came to be the trust property though there is no temple. Due to hostile proclivity of some of the persons it was complained to the Bihar State Religious Trust Board for treating the properties as the trust properties. 5. The stand of the petitioners were combatted by the contesting respondents stating, inter alia, that a temple is situated in the disputed land in question and, therefore, it has the status of a public trust. It was also put forth that the predecessors in the interest of the petitioners had accepted the same to be a temple and had filed return as Sabaits and, therefore, the petitioners claim has no legs to stand upon. 6. The learned Single Judge upon hearing learned counsel for the parties referred to Section 32(3) of the Bihar Hindu Religious Trusts Act, 1950 (for brevity, the Act) and noted the contentions of learned counsel for the petitioners and eventually directed as follows: "Learned counsel for Religious Trust Board submits that petitioners . ought to have challenged the impugned order under the provisions of Section 32(3) of the Bihar State Religious Trusts Act, 1950. He submits that the facts are disputed. ought to have challenged the impugned order under the provisions of Section 32(3) of the Bihar State Religious Trusts Act, 1950. He submits that the facts are disputed. On the other hand counsel for the petitioners submits that the authorities should have decided the matter under Section 43 of the Act. The respondents are claiming the property to be a public trust property. It is now for the petitioner to either avail remedy under Section 43 of the Act or go in for a suit in respect of claim of his stand." 7. It is submitted by Mr. Singh, learned Senior Counsel for the appellants that the learned Single Judge has fallen into grave error by holding that it is open to the petitioners to avail the remedy under Section 43 of the Act, though the same is not applicable. Be it noted, the learned Single Judge has passed the said order on the basis of a submission put forth by learned counsel for the petitioners. It is the further submission of Mr.Singh that the declaration of public trust as contemplated under Section 32 has to be done after following the prescribed procedure as engrafted under Section 32(1), but, the same having given a decent burial the writ petition can be entertained. In essence, the proponement of Mr. Singh is that the scheme came into existence de hors the provision of Section 32(1) and hence, it is a fit case where the writ court should exercise the jurisdiction and set aside the scheme. 8. First, we shall deal with the applicability of Section 43 of the Act. It occurs in Chapter-VII which pertains to declaring immovable properties of Religious Trust as Trust Property. Section 43(1) deals with constitution of a Tribunal, its powers and functions. Section 43A deals with procedure for filing an application. Section 43B deals with decision of property disputes. 9. Regard being had to the entire ambit and sweep of Section 43 we are of the considered opinion that Section 43 is not applicable to the case at hand as the basic challenge in the writ petition was that a private trust or individuals properties which have in no semblance of public trust have been treated as a public trust by the Board by taking recourse to Section 32. At this juncture, we may profitably refer to Section 32 which reads as follows: "32. At this juncture, we may profitably refer to Section 32 which reads as follows: "32. Power of Board to settle schemes for proper administration of religious trusts. (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 enquiry 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 therein; (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 stand: 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, ["and it may contain provision for: (a) constituting a committee consisting of not more than eleven persons for the purpose of assisting in the whole or any part of the administration of the religious trust; (b) determining the powers and duties of such committee; and (c) any other relevant matter incidental to the framing and functioning of such scheme."] (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." 10. The submission of Mr. (4) An order passed by the District Judge on any application made under sub-section (3) shall be final." 10. The submission of Mr. Singh, learned Senior Counsel for the appellants, is that no inquiry was made by the Board and no notice was issued to the trustee and to other persons interested therein. He has urged that the appellants were the persons interested as the deity was installed in their land. In our considered opinion, the same is in the realm of a factual dispute. In this context, we may refer to the decision rendered in Anand Kumar Bajaj V/s. The State of Bihar & Ors., 1998(3) PLJR 446, wherein the learned Single Judge of this court has held that whether a trust is a private trust or not cannot be looked into in writ jurisdiction. Though the factual matrix of the said decision is slightly different, yet, in our considered opinion, when there is a challenge to the action of the Board on the foundation that there was an individual right and it is the private trust, the same has to.be adjudicated before the learned District Judge, as provided under Section 32(3). 11. We will be failing in our duty if we do not notice the facts that Section 32(3) provides a period of limitation to challenge the scheme either for modification or setting aside by filing an application within three months from the date of publication of the official gazette. The effect of formation of the public trust has been published in the official gazette on 4.10.2001. 12. There is an apprehension that the District Judge might throw the application on the ground of limitation. Be it noted, the writ petitioners on a genuine and sanguine belief had preferred the writ petition under Article 226 of the Constitution of India on 25.1.2002 and thereafter against the observations made by the learned Single Judge the present appeal has been filed. 13. In view of the aforesaid, we are of the considered opinion that Section 14 of the Limitation Act would come to their aid. 13. In view of the aforesaid, we are of the considered opinion that Section 14 of the Limitation Act would come to their aid. Therefore, if the appellants file an application before the learned District Judge as contemplated under Section 32(3) with an application under Section 14 of the Limitation Act within a period of four weeks from today, the learned District Judge shall be well advised to dispose of the same on merits and not throw the application overboard on the ground of limitation. 14. We will be failing in our duty if we do not take note of another submission canvassed by Mr. Singh. It is urged by him that even if there is a Mahanth in a Trust but he has personal property that cannot be brought within the ambit of public trust. In essentiality, the submission is that a Mahanth can hold private property in his individual capacity. We do not intend to state anything on this score as we are of the considered opinion that the District Judge is the competent adjudicating authority to decide the adjudication as well as the jurisdictional facts. 15. In view of aforesaid, there is no need to issue notice on the question of limitation as we have only clarified the order passed by the learned Single Judge and removed the apprehension that has been harboured by Mr. Singh, learned Senior Counsel appearing for the appellants. 16. The appeal is accordingly disposed of.