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2022 DIGILAW 1588 (ALL)

Neel Prasad v. Anoop Prasad

2022-09-29

J.J.MUNIR

body2022
JUDGMENT : J.J. MUNIR, J. 1. Heard Mr. Deepak Kumar Srivastava, learned Counsel for the petitioner and Mr. Manish Goyal, learned Senior Advocate, who on request of the Court acted as Amicus Curiae. 2. This petition under Article 227 of the Constitution arises from proceedings brought before the District Judge of Gorakhpur under Section 34 of the Indian Trusts Act, 1882 (for short ‘the Act of 1882’). 3. By an application under Section 34 of the Act of 1882, the petitioner, invoking the advisory jurisdiction of the Court regarding the management of trust property of the temple of Thakur Ji, has come up with a prayer for the grant of permission to dispose of the property of the temple, that is de-butter, in order to apply the proceeds of the sale for restoration of the temple, that is said to be hundred years old and in a dilapidated condition. 4. The learned Additional District Judge, Court No. 1, Gorakhpur, before whom the said application numbered as Civil Misc. Case No. 171 of 2020 came up, has rejected the same, holding that the Act of 1882 does not apply to public or private religious or charitable endowments. 5. It is against the said order that the unsuccessful applicant before the District Judge has petitioned this Court under Article 227 of the Constitution. 6. Since a purely legal question about the applicability of the Act of 1882 to a religious endowment or a trust, governing a temple, where thousands throng in faith was involved, this Court requested Mr. Manish Goyal to assist the Court as Amicus Curiae. Mr. Goyal readily rendered his very able assistance. 7. The applicant, Neel Prasad says that he has been the owner of a one-half share in the property shown in Schedule A to the application moved before the District Judge and has power of disposition over it. His ancestor, Rai Thakur Dayal Singh was an issueless man with inclination towards religion. He got a temple of Thakur Dwara Ji constructed and consecrated at Village Sarhari over land shown in Schedule B to the application, where members of the public in general offer prayers (Pooja-Archana). The said temple was got constructed by Rai Thakur Dayal Singh in the year 1880 and he donated for the purpose of maintenance of the said temple, as per his wish, 100 bighas (pakka) land. The said temple was got constructed by Rai Thakur Dayal Singh in the year 1880 and he donated for the purpose of maintenance of the said temple, as per his wish, 100 bighas (pakka) land. However, before Rai Thakur Dayal Singh could execute a deed of trust, gift or the other disposition in favour of the temple, he passed away. Therefore, his widow, Smt. Jaswant Kunwari and another Rai Devi Saran Lal executed a gift deed dated 29.04.1885, donating lands comprised in Schedule A to the application, then lying in Village Bhelam. In consequence, the name of Smt. Jaswant Kunwari was mutated out of the Government records and that of Thakur Ji Mandir, Sarhari was entered. 8. It is the petitioner's case that during the first and the second rounds of the consolidation operations, all that was the property of Thakur Ji Mandir, Sarhari, given in gift, remained His. The temple is for the benefit of public in general and has now turned 100 years old. It has fallen into disrepair and may collapse any time. It was, therefore, said that to save the temple from grave damage, it was necessary that fresh construction thereof be undertaken in keeping with Rai Thakur Dayal Singh's religious sentiments. An estimated expenditure of Rs. 16 lakhs in the enterprise was indicated, for which there were no funds with the temple. A prayer, therefore, was made that the property of the temple, that is de-butter, comprising of agricultural holdings, shown in Schedule A to the application, may be permitted to be sold, the proceeds whereof would be applied for reconstruction of the temple. 9. The learned Counsel for the petitioner says that the mischief sought to be remedied is grave and emergent. Mr. Goyal, on the other hand, submits that the Act of 1882 does not apply to any kind of a religious trust, public or private. 10. Upon hearing the learned Counsel for the petitioner and Mr. Manish Goyal, the learned Amicus Curiae, this Court does find that the Act of 1882 does not apply to any kind of a religious trust. The reason is to be found in Section 1 of the Act of 1882, that reads: “1. Short title - This Act may be called the Indian Trusts Act, 1882: Commencement - and it shall come into force on the first day of March, 1882. The reason is to be found in Section 1 of the Act of 1882, that reads: “1. Short title - This Act may be called the Indian Trusts Act, 1882: Commencement - and it shall come into force on the first day of March, 1882. Local extent - It extends to the whole of India [except the State of Jammu and Kashmir] and the Andaman and Nicobar Islands; but the Central Government may, from time to time, by notification in the Official Gazette, extend it to [the, Andaman and Nicobar Islands] or to any part thereof. Savings - But nothing herein contained affects the rules of Muhammadan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors and nothing in the second Chapter of this Act applies to trusts created before the said day.” (Emphasis by Court) 11. It is evident that the Act of 1882 does not apply at all to a public religious trust. The temple of Thakur Ji, Sarhari, which is a public religious endowment, both by the terms of dedication and the subsequent use, where thousands repose faith in Thakur Ji, would not be governed by the Act of 1882. This is precisely what the learned Additional District Judge has held, and in the opinion of this Court, rightly so. Mr. Goyal points out that the public religious endowments are governed by the Charitable and Religious Trusts Act, 1920 and certain other legislations also apply. It is true that the petitioner's cause is noble and requires urgent relief, but the remedy he has been advised to invoke, is not available at all in the present case. 12. In the circumstances, no case for interference with the impugned order is made out. 13. The petitioner will, however, be at liberty to invoke all or any such remedy/remedies, as may be advised to secure urgent relief, unaffected by anything said in this order or the learned District Judge's order. 14. This petition is disposed of, accordingly.