Patna High Court
Mahanth Ramesh Giri @ Ramesh Giri vs The State Of Bihar on 9 February, 2024
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.12252 of 2022
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Mahanth Ramesh Giri @ Ramesh Giri S/o and Chella of Sadanand Giri R/o
Bodh Gaya Math, Bodh Gaya, District- Gaya (Bihar).
... ... Petitioner/s
Versus
1. The State of Bihar through its Chief Secretary, Bihar, Patna.
2. The Bihar State Religious Trust Board through its President, Vidyapati
Marg, Patna- 800001.
3. The Superintendent of Bihar State Religious Trust Board, Vidyapati Marg,
Patna- 800001.
4. The District Magistrate, District- Gaya (Bihar).
5. The Senior Superintendent of Police, Gaya (Bihar).
6. The Sub-Divisional Magistrate, Sadar Gaya (Bihar).
7. The Deputy Collector, Land Reforms, Sadar Gaya (Bihar).
8. The Executive Officer, Bodh Gaya, District- Gaya (Bihar).
9. Mahanth Triveni Giri Chela Mahanth Dhanshuk Giri, resident of Bodh
Gaya Math, P.S. Gaya Town, District-Gaya.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Kamal Nayan Chaubey, Sr. Advocate.
Mr. Alok Agrawal, Advocate.
Mr. Amar Jyoti Sharma, Advocate.
For the State : Mr. Manoj Kumar Sinha, AC to SC-19.
For the Religious Trust Board: Mr. Ganpati Trivedi, Sr. Advocate.
For the Respondent No.9: Ms. Mahasweta Chatterjee, Advocate.
Mr. Rajiv Singh, Advocate.
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 09-02-2024
Heard Mr. Kamal Nayan Chaubey, learned senior
counsel along with Mr. Alok Agrawal and Mr. Amar Jyoti
Sharma, learned counsel appearing on behalf of the petitioner;
Mr. Manoj Kumar Sinha, learned AC to SC-19 for the State; Mr.
Ganpati Trivedi, learned senior counsel for the Bihar State
Religious Trust Board and Ms. Mahasweta Chatterjee, learned
counsel along with Mr. Rajiv Singh, learned counsel for the
respondent no.9.
Patna High Court CWJC No.12252 of 2022 dt.09-02-2024
2/31
2. The petitioner has filed the writ petition for the
following reliefs:
"(i) For issuance of appropriate writ in the
nature of certiorari for setting aside order dated
06.06.2022whereby and whereunder the Bihar Religious Trust Board was pleased to remove the petitioner from the post of Mahanth and appoint the petitioner as Petron of the Bodh Gaya Math in a proceeding initiated vide Letter No. 89 dated 09.04.2021 on the basis of false complain filed by persons whose interest are adverse to the interest of the Bodh Gaya Maath.
(ii) For issuance of appropriate writ in the nature of Mandamus, commanding the respondents for forming and independent probe-committee since the enquiry committee formed by order dated 27.07.2021 suffers from the conflict of interest.
(iii) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petition may be found entitle in the facts and circumstances of the case."
3. Briefly stated facts of the case are that the Bodh Gaya Math situated at Bodh Gaya saw a long battle between the Mahant of the Math in question with regard to the nature of the Trust and its properties. An information has been given on behalf of the respondent nos. 2 and 3 that on the basis of a compromise before the Hon'ble Supreme Court in SCA No. 66 of 1955, it has been held that the provisions of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the "Act, 1950") will be made applicable to the Math in question. The Mahant of the Math is / are appointed in terms of the condition of a registered deed dated 13.02.1932 and the Board accordingly recognized the Mahant so appointed. One amongst the other Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 3/31 Mahant namely Mahant Sudarshan Giri who was a recognized Mahant by the Board had died on 29.10.2013 and upon the death of the Mahant Sudarshan Giri, the seat of the Mahant fell vacant. The present petitioner has claimed before the Board to declare him Mahant in want of any claimants and the Board took decision contained in Memo No. 2185 dated 20.02.2014 by appointing the petitioner as temporary trustee of the Math. The petitioner was never recognized as Mahant of the Math in question. On the other hand, one Triveni Giri - respondent no.9 filed several complaints apprising mismanagement of the Board's property at the hands of the petitioner. The Administrator of the Board at that point of time had requested the District Magistrate to hold an inquiry with respect to the charges levelled against the petitioner. The District Magistrate got the matter inquired by the Additional Collector, Gaya vide Letter No. 5159 dated 03.07.2018 that illegally lands belonging to the Math were sold which required constitution of a committee for better administration of the Trust. In this connection, a Letter No. 5159 dated 03.07.2018 has been brought on record by way of Annexure-C to the counter affidavit filed on behalf of respondent nos. 2 and 3. The Board issued show cause notice to the petitioner to explain the charges levelled against him and simultaneously by that time the Board Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 4/31 became functional and President of the Board requested the Regional Trust Committee in exercise of power under Section 40 of the Act to submit an enquiry report with respect to the Math in question along with the other temple trusts. The report was submitted with respect to the trust in question by the Regional Trust Committee and the President considering the report found it necessary to protect the properties of the Math and took decision contained in Memo No. 1747 dated 31.10.2020. The decision of the Board was challenged by the petitioner in CWJC No. 1491 of 2020 on the ground that the president has no jurisdiction to take such decision as contained in Memo No. 1747 dated 31.10.2020. The writ court allowed the prayer of the petitioner on the ground that in absence of the Board duly constituted under Section 8 of the Act the President had no jurisdiction to take decision. The petitioner, thereafter, started living at some other place after the order was passed by this Court in CWJC No. 1491 of 2020 and Triveni Giri - respondent no.9 claiming himself to be appointed according to the customs and rituals of the Math in question claimed his Mahanthship of the Math. The Board intervened in exercise of power under Section 33 of the Act. The President constituted a Committee of six members vide Memo No. 2320 dated 29.07.2021 till it is finally decided with respect to the Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 5/31 Mahanthship of the said Math. The petitioner being aggrieved by the said constitution of committee filed CWJC No. 16795 of 2021, however, this Court declined to interfere in any manner with respect to the decision of the President contained in Memo No. 2320 dated 29.07.2021 and the writ petition was dismissed vide order dated 17.01.2022 (Annexure-F). The Board was duly constituted and the President was having power. The enquiry was held and it was found to be true against the petitioner and his claim for Mahanth was rejected. Several persons claimed Mahanthship, but all were declined by the Board and the petitioner having grown too old and considering his association with the trust in question for long years, he was honoured by conferring him a post of Sanrakshak of the trust and was being paid a sum of Rs. 50,000/- per month for the purpose of the management of the Math and Puja Path etc. in the Math and the management of the committee was handed over to the temporary committee constituted by the President. The petitioner also admitted his position in a duly sworn affidavit dated 08.02.2023 before the Notary Public Varanasi (Annexure- G).
4. The petitioner being aggrieved by the report of the enquiry committee dated 29.07.2021 and his alleged removal vide order dated 06.06.2022 has filed the present writ Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 6/31 petition.
5. Mr. Kamal Nayan Choubey, learned senior counsel alongside Mr. Alok Agrawal and Mr. Amar Jyoti Sharma, learned counsel appearing on behalf of the petitioner submitted that petitioner was appointed to the post of Mahanth of Bodh Gaya Math as per the binding customs, which as per the practice is also recognized by the Board. Referring to Section 33 of the Act, he submits that the Board is empowered to appoint trustee, only for the period not exceeding one year. There is no power vested in the Board to appoint a Mahanth. The power is conferred to the learned District Judge having jurisdiction and anyone can make application for appointment of Mahanth as prescribed under Section 48 of the Act. The petitioner adorns ex-officio place in Magadh University Senate Committee, in Managing Committee of Mahabodhi Temple and is also Patron of Jagarnath Mandir Bodhgaya and President of Kali Mandir Lucknow only when he has been recognized as the Mahanth of the Bodhgaya Math. Learned counsel in support of his submission has placed reliance on a notification of the Bihar State Board of Religious Trust by which the petitioner has been recognized as Sanrakshak. However, there is no prefix Mahanth 's before the name of the petitioner. Learned counesl submitted that these facts are enough to recognize the petitioner as Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 7/31 Mahanth of Bodhgaya Math. Learned counsel then proceeded to submit that the condition prescribed for removal of a Mahanth has not been followed by the Board in either removing the petitioner or having recognized Sri Triveni Giri - respondent no.9 as Mahanth of Bodhgaya Math. Therefore, in view of the terms and conditions of the order contained in Memo No. 2185 dated 20.02.2014 (Annexure-2 to the writ petition), the petitioner till date is continuing as Mahanth and in absence of any complaint of any kind ever made against the petitioner to the Board. He further submitted that it is only after lapse of 8 years, the controversy of Mahantship started. Learned counsel emphatically submitted that the custom of the trust is binding and the Mahanth continued to remain Mahanth for long time unless he resigns or is legally removed following the procedure prescribed under Section 48 (2) (h) of the Act. Learned counsel further submits that petitioner is the successor of the old Mahanth in accordance with the tradition followed by the Math and in garb of the illegal order dated 26.07.2022 cannot be illegally denied to continue as Mahanth of Bodhgaya Math once having appointed in accordance with the religious practice of the Math and not as per the deed dated 13.02.1932 as claimed by the Board (respondent no. 2). Learned counsel further informs that the deed dated 13.02.1932 was cancelled on Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 8/31 19.02.1935 by a registered deed. The petitioner is Mahanth as per the tradition, ritual and By-laws and the Board has no role to play in appointment of Mahanth of Bodhgaya Math. Learned counsel has further submitted that specific statement has been made in paragraph no. 7 of the rejoinder that the aforesaid fact has been well recognized by Rai Ram Anugrah Narayan Singh Bahadur, Deputy Magistrate and Deputy Collector of Gaya District under the directions and order of G.A Grierson, ESQ, C.S. Magistrate-Collector of Gaya District and the same was printed and published at Bengal Secretariat Press at Kolkata in 1893. The succession has been discussed in the said document and the Mahanthship since 1590 A.D. to 1892 A.D. is well discussed in the document which forms 'Annexure-1' to the main writ petition. He further submits that till 2022, no dispute with regard to Mahanthship had ever arose in Bodhgaya Math. Learned counsel claims that after the death of Mahanth Sudarshan Giri on 29.10.2013, the petitioner having been appointed as Mahanth which was duly recognized by the Board as it would appear from Memo No. 2185 dated 20.02.2014. Learned counsel submitted that the enquiry report submitted by the Additional District Magistrate contained in Letter No. 5159 dated 03.07.2018 is not based on the correct facts and the enquiry is also conducted behind his back. The petitioner had Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 9/31 filed objection before the Board but, in spite of that the same was not considered. The petitioner had also objected that the District Magistrate had no jurisdiction to delegate the Additional District Magistrate which is undesirable also illegal and relies on the settled maxim "delegatus non protest delegare". The enquiry report cast avoidable and undesirable aspersion on the petitioner. In paragraph no. 22, petitioner has admitted the power of attorney dated 02.02.2023 was cancelled on 14.06.2023 and learned counsel proceeded to submit that so far as Will is concerned, a person making the Will is at liberty to change the same at any given point in time in his lifetime. He further submitted that once the compromise has been admitted between the parties, the action of the Board is otherwise also fails insofar as constituting the temporary managing committee and will not amount to removal of the petitioner from the post of the Mahanth of the Bodhgaya Math.
6. Per contra, Mr. Ganpati Tirvedi, learned senior counsel appearing on behalf of the Religious Trust Board submitted that the petitioner has not filed the present writ petition and has also suppressed the vital facts from the Hon'ble Court. He submitted that the petitioner has admitted that he wanted to resolve the dispute and had cancelled power of attorney executed in favour of Om Bharti & Ors. by executing a Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 10/31 registered deed of cancellation no. 34 dated 19.01.2023 and on the same day also cancellation of "will" was executed in favour of Om Bharti & Ors. (Annexure-I). The petitioner accepted in the cancellation deed that he had been appointed as temporary trustee on 20.02.2014 which was never confirmed by the Board. In the meantime, FIR No. 215 of 2020, P.S. Chowk, District- Lucknow was lodged against the petitioner under Sections 406, 420, 467 and 468 of the Indian Penal Code and to obtain anticipatory bail, petitioner had filed an affidavit dated 08.02.2023 in Criminal Miscellaneous (Anticipatory Bail Application) No. 12817 of 2023, specifically stating that on the basis of the settlement arrived at between the petitioner and Triveni Giri he accepted Triveni Giri as Nyasdhari of the Math in question.
7. The petitioner was appointed as temporary trustee of the Math in question by order contained in Memo No. 2185 dated 20.02.2014 (Annexure 2). In view of several complaints filed against the petitioner for misuse of Math property, the administrator of the Board vide Letter No. 2009 dated 29.12.2017, requested the District Magistrate, Gaya to hold an enquiry with respect to the charges levelled against the petitioner. (Annexure B to the counter affidavit filed by respondent Nos. 2 & 3). The enquiry was conducted jointly by Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 11/31 the Addl. Collector Gaya and S.D.O Sadar Gaya on direction of the District Magistrate and by Letter No. 3257 dated 07.11.2017 sent a report to the District Magistrate thereafter District Magistrate sent the report to the Board by Memo No. 5195 dated 03.07.2018.
8. By order contained in memo No. 1747 dated 31.10.2020, a committee had been constituted by the President of the Board. Hon'ble Court vide order dated 04.03.2021 passed in CWJC No. 1491/2020 had set aside the decision of Board on the ground that the Board having not been constituted, the President alone has no authority to exercise the power in absence of the Board duly constituted under Section 8 of the Act (Annexure 3).
9. After the constitution of the Board vide order dated 27.07.2021, as contained in Annexure-5 to the writ petition, a six Member Enquiry Committee was constituted by the Board and a notification was issued contained in Memo No. 2320 dated 29.07.2021 under Section 33 of the Act (Annexure E). He further informs that the writ petitioner had challenged the order dated 27.02.2022 and notification dated 29.07.2021 in C.W.J.C. No.16795 of 2022, which was dismissed by the Division Bench of this Court on 17.01.2022 (Annexure F).
10. Learned counsel further submitted that the Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 12/31 petitioner has accepted that Respondent no. 6 is Nyasdhari and admitted that he has sworn an affidavit dated 08.02.2023 before the Notary Public, Varanasi (Annexure G).
11. Mr. Rajiv Singh, learned counsel along with Ms. Mahasweta Chatterjee, learned counsel appearing on behalf of the respondent no.9 submitted that the petitioner was appointed on the post of trustee by the Board for one year only and the contention of the petitioner that he was recognized as trustee of the Board on 20.02.2014 and his removal from the Mahantship of the Math is not in accordance with the law being in violation of Section 28(2)(h) of the Act. Learned counsel submitted that in C.W.J.C. No. 16795 of 2021 (Mahanth Ramesh Giri @ Ramesh Giri, Son/Chela of Sadanand Giri Vs. The State of Bihar & Ors.), the petitioner has already challenged that the provision of Section 28(2)(h) of the Act has not been followed in C.W.J.C. No. 16795 of 2021 (Mahanth Ramesh Giri @ Ramesh Giri, Son/Chela of Sadanand Giri Vs. The State of Bihar & Ors.) on the ground that the Board was short of quorum. Learned counsel emphatically submitted that on this ground present writ petition is barred by the principle of res judicata as the issue has already been decided by this Court that the power of removal of Mahant vests with the Board in accordance with Section 28(2)(h) of the Act, while Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 13/31 in the present case, the petitioner has not been removed rather he has been made Sanrakshak / Patron of the trust. Learned counsel further submitted that the petitioner has suppressed the vital facts from this Court by not giving information that he had earlier moved before this Court by filing C.W.J.C. No. 16795 of 2021 which was disposed of vide order dated 17.01.2022 in presence of the parties. Learned counsel has also raised objection that in the said writ petition the answering respondent no.9 was not impleaded as party. He contradicting to the statement made on behalf of the petitioner submits that the question of law which is to be considered in the present writ petition is as to whether the appointment or removal of Mahant solely falls within the exclusive jurisdiction of the District Judge under Section 48 of the Act. Self admission of the petitioner is that he has remedy under Section 48 of the Act and can move before the District Judge after he is aggrieved in any manner that he has been removed from the office of Mahnat, then in that case, he may avail such remedy before the District Judge having realized that there is alternative remedy under Section 48 of the Act to challenge the order dated 06.06.2022 by which he has been removed by the order passed by the President of the Board. Mr. Rajiv Kumar Singh, learned counsel further submitted that so far as Mukhtarnama dated 02.02.2023 is concerned, the same Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 14/31 was presented before the Sub-Registrar, Sadar, Varanasi and has been registered after accepting stamp duty as per its valuation on 02.02.2023. Referring to the Mukhtarnama, he submitted that the petitioner was appointed as temporary trustee for one year on 20.02.2014 and thereafter from the recital of the Mukhtarnama, it is admitted that respondent no.9 - Mahant Triveni Giri has been accepted, acknowledged and admitted by him to be the present trustee of Bodh Gaya Math in accordance with the order dated 06.06.2022 passed by the President of the Board. Learned counsel, in this regard, has referred to the recital made at Page No.4 of the Mukhtarnama dated 02.02.2023. For ready reference, the same is reproduced hereinafter:
"cks/k x;k eB /kkfeZd U;kl ifj'kn ds }kjk ge feueqfdj dks fnukad 20-02-2014 bZ0 dks ,d o'kZ ds fy, vLFkk;h U;kl/kkjh cuk;k x;k Fkk fd blh chp fookn mRié gks x;k fygktk ml lEcU/k esa orZeku le; ds egaFk Jh f=os.kh fxfj tks cks/kx;k eB ds orZeku le; esa egaFk ,oa xÌhu"khu gSa cks/kx;k eB ds U;kl/kkjh ds fookn dk fuLrkj.k fcgkj jkT; /kkfeZd U;kl ifj'kn ds }kjk fnukad 06-06-2022 bZ0 dks fd;k x;k gSA ge feueqfdj fcgkj jkT; /kkfeZd U;kl ifj'kn ds vkns'k fnukad 06-06-2022 bZ0 ,oa mlds vkyksd esa fuxZr izek.k&i= fnukad 26-07-2022 bZ0 dks ekurk ,oa Lohdkj djrk gSA ge feueqfdj ,oa egaFk f=os.kh fxfj ds chp orZeku le; esa ftrus Hkh izdkj ds eqdnes tgkWa&tgkWa Hkh fHké&fHké U;k;ky;ksa esa fopkjk/khu gSa mu lHkh eqdneksa dks egaFk f=os.kh fxfj th vkilh lgefr ls eB ds fgr esa dk;Z djrs gq, mls okil ys ysaxs vFkok mldks fuLrkfjr djk;saxsA pwafd ge feueqfdj dkQh o`) gks pqdk gS vkSj pyus&fQjus esa iw.kZ:i ls vleFkZ gS ftldk uktk;t Qk;nk mBkdj dqN O;fDr;ksa us ge feueqfdj dk QthZ gLrk{kj cuk&cukdj ge feueqfdj dh u tkudkjh esa Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 15/31 cks/kx;k eB ,oa cks/kx;k eB dh lEifÙk dks uqdlku o {kfr igqWapk jgs gSa ftlds dkj.k cks/kx;k eB esa jg jgs egkRekvksa ds chp fookn mRié gks jgk gS fygktk mls lekIr fd;s tkus ds lEcU/k esa ge feueqfdj mijksDr "krksZa dks bl eq[rkjukek esa rgjhj dj jgs gSaA ;gkWa ;g Hkh crkuk vko";d gS fd ge feueqfdj }kjk orZeku le; esa fcgkj jkT; /kkfeZd U;kl ifj'kn esa fdlh Hkh O;fDr dks vf/koDrk vFkok iSjksdkj fu;qDr ugha fd;k gSA"
12. Learned counsel further alleges that Mukhtarnama dated 02.02.2023 was executed by the petitioner just to obtain bail in connection with Chowk P.S. Case No. 0215 dated 06.08.2022 which forms part of the counter affidavit filed on behalf of respondent nos. 2 and 3 and on the basis of said Mukhtarnama, the petitioner was granted anticipatory bail by the Lucknow Bench of the Allahabad High Court. He further proceeded to allege that the inquiry report which forms part of the record is also fictitious document and the same was created by the concerned authority in connivance with the petitioner. In these background, he submitted that after obtaining the anticipatory bail on 30.05.2023, the petitioner rescinded the original Mukhtarnama by executing deed dated 14.06.2023. Learned counsel further emphatically submitted that the Mukhtarnama dated 02.02.2023 will not lose its force as an evidence before the competent court even though it has been rescinded by another instrument dated 14.06.2023. The recital Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 16/31 made at Page No.4 of the Mukhtarnama will remain in force for considering the fact that he has unconditionally accepted the order dated 06.06.2022 passed by the President of the Bihar State Board of Religious Trust and by filing the present frivolous writ petition, he cannot be permitted to challenge the said order before this Court once he had admitted the same. On these ground, learned counsel submitted that the writ petition is required to be dismissed at the threshold.
13. Heard the parties
14. Before deciding the issue raised by learned counsel appearing on behalf of the petitioner, it is apt to reproduce Sections 28(2)(h), 32, 33 and 38 of the Act:
"28. General powers and duties of the Board
(h) to remove a trustee from his office if such trustee-
(i) is convicted of any such offence or is subjected by a Criminal Court to any such order as implies moral turpitude which in the opinion of the Board, unfits him to hold office;
(ii) is convicted more than once of the same or different offences under this Act;
(iii) refuses to act, or willfully disobeys the directions and orders of the Board under this Act; or
(iv) applies for being adjudged or is adjudged an insolvent:
[(v) makes persistent defaults in the submission of budgets,accounts, reports or returns or in payment of contributions or other dues payable to the Board.
(vi) alienates immovable property of the trust in contravention of this Act or misappropriates funds of the trust.
(vii) indulges in immoral act disapproved by Dharmashashtras or has violated "maryada" of the "sampradaya" to which he belongs.]"
32. Power of Board to settle schemes for proper administration of religious trusts. - (1) The Board may, of its Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 17/31 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 provisions 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."
33. Power to appoint temporary trustee. - (1) Where there is a vacancy in the office of trustee of a religious trust and there is no one competent to be appointed as trustee under the terms of the deed of such trust or where there is a bona fide dispute as to the right of any person to act as trustee and in the opinion of the Board there is likelihood of a breach of the peace or serious interference with the management of the property of such trust, [or where there is a vacancy caused by the order of the Board passed under clause (h) of sub-section (2) of Section 28 of this Act] the Board may subject to any order of a competent Court Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 18/31 appoint any person to act as trustee of the said trust for such period [not exceeding one year] and upon such conditions as it thinks fit.
(2) In appointing a person as trustee under sub-section (1), the Board shall if possible select a person of the Section to which the last trustee belonged.
[(3) During the period of one year if the dispute over the bona fide trustee is not decided by a competent authority, the Board shall settle a scheme for the trust under Section 32 of the Act, subject to any subsequent order of a competent court.]
38. Exercise by President of powers of Board. - If any necessity arises for immediate action by the Board and a meeting of the Board cannot be arranged in time to take such action, the President may exercise any power that could be exercised under this Act by the Board, but shall at the next meeting of the Board make a report in writing of the action taken by him under this Section, and the reasons for taking such action, for confirmation of the action taken [and no such action of the President, if it is approved by the Board in the next meeting, shall be void merely on the ground that the President had no such power on behalf of the Board.]"
15. The question raised in the present writ petition as to whether the President of the Board has the authority to frame scheme under Section 32 of the Act was raised in case of the President Trust in a writ petition filed by Swami Jai Krishnacharya against the Bihar State Board of Religious Trust and Others, reported in 2000(4) PLJR 645, wherein it was decided that the power of the President of the Board under Clause (43) of the Bye-Laws pertains only to giving opinion or advice, wherein it had decided the objection raised by the petitioner and the action of the President inasmuch as passing the order dated 06.06.2022 is wholly beyond jurisdiction. The said submission made by the petitioner was taken note of by a Division Bench of this Court in case of Satyeshwaranand Jyoti Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 19/31 Chela of Late Hariharanand Jyoti Vs. The State of Bihar & Ors. (C.W.J.C. No. 6724 of 2020) and considering the detailed facts of the case, this Court finds it proper and gainful to decide the above issue by referring to paragraph nos.8 to 13. The same are reproduced hereinafter:
"8. Having considered rival submissions made on behalf of the parties on the question as to whether the President of the Board has the authority to frame scheme under Section 32 of the Act, we need to take note of the fact that the Bye-Laws have been framed in exercise of power under Section 83 of the Act. Section 83 of the Act confers upon the Board, power to make Bye-Laws consistent with the Act or the Rules made thereunder for any matter necessary to carry into effect the objects of the Act. Sub- section (2) of Section 88 delineates the items in respect of which the Board may make Bye-Laws, which includes allocation of duties to the President and the Members. We have no hesitation in recording our opinion that the said Bye-Laws have the statutory force, having been made in exercise of the statutory provision under Section 83 of the Act. Bye-Law 43 delineates powers and duties of the Board that can be exercised and performed by the President. Clause (r) of Bye-Law 43 in no uncertain terms confers such power on the President of the Board to settle scheme for the proper administration of a religious trust. Further, clause (zv) confers upon the President power to constitute a trust committee under Section 32(1) of the Act. For ready reference Clause (r) and Clause (zv) of Bye-Law 43 are being reproduced hereinbelow: -
"43.
xxx xxx xxx
(r) to settle schemes for proper administration of religious trust;
xxx xxx xxx (zv) may constitute a trust committee under Section 32(1) of the Act"
9. On a plain reading of Clause (r) and clause (zv) of Bye-Law 43, the impugned notification dated 04.09.2021 issued by the President of the Board cannot be said to be completely unauthorized, requiring this Court's interference on that ground.
10. Ms. Mahasweta Chatterjee has relied on a Division Bench decision of this Court in the case of Swamy Jai Krishnacharya vs. Bihar State Board of Religious Trust Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 20/31 and Others, reported in 2000(4) PLJR 645 wherein it has been held, according to her, that the power of the President of the Board under Clause (43) of the Bye- Laws pertains only to giving opinion or advice. She contends, therefore, that the impugned action of the President is wholly beyond jurisdiction. The said submission, in the Court's opinion, is wholly misplaced since this Court's observation in the case of Swamy Jai Krishnacharya (supra) is concerning the function of the President of the Board under Clause 43(z)(ii) of the Bye- Laws, which casts a duty upon the President of the Religious Trust to give opinion, advice or direction to a trustee of religious trust on any question affecting the proper management and administration of the properties of such trust. The said decision is in the context of the President's power to remove the trustee under Section 28(h) of the Act. The Division Bench, in the case of Swamy Jai Krishnacharya (supra) had the occasion to test the validity of the decision of the President of the Board to remove a trustee in the exercise of power under Section 28(h) of the Act, with reference to Bye-Law 43(z)
(ii) of the Bye-Laws. The said Division Bench judgment is not at all applicable in the facts and circumstances of the present case.
11. Ms. Chatterjee has relied on a Single Judge decision of this Court dated 04.03.2021 rendered in C.W.J.C. No. 1491 of 2020 (Mahanth Ramesh Giri @ Ramesh Giri vs. The State of Bihar and Others) to contend that the power, which is vested in the Board could not have been exercised by the President. The said submission concerning this Court's decision in case of Mahanth Ramesh Giri @ Ramesh Giri (supra) is wholly misconceived for the reason that in that case, this Court, noticing the fact that the Board itself was not constituted, held that the President could not exercise the powers of a non- existent Board.
12. For the aforesaid reasons, we do not find any legal infirmity in the impugned notification requiring this Court's interference in the exercise of powers under Article 226 of the Constitution of India. We find no merit in this application.
13. In our opinion, it is vexatious litigation, which has unnecessarily consumed considerable valuable time of this Court and, therefore, it deserves to be dismissed with cost."
16. The another point which has been raised by the learned counsel that Section 48 of the Act is sole repository of power either upon the appointment of Mahant or his removal Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 21/31 also need to be considered and in this regard Section 48 of the Act is reproduced hereinafter:
"48. Power of District Judge to remove trustee or appoint trustee. - (1) The Board, or with the previous sanction of the Board, any person interested in a religious trust may make an application to the District Judge for an order-
(a) removing the trustee of such religious trust, if such trustee.-
(i) acts in a manner prejudicial to the interest of the said trust; or
(ii) defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property or income of the said trust or any other statutory charge on such property or income; or
(iii) defaults on three or more occasions in the payment of any sum payable to any beneficiary under the said trust or in discharging any other duty imposed upon him under it; or
(iv) is guilty of a breach of trust;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries; or
(e) granting such further or other relief as the nature of the case may require.
(2) The order of the District Judge under sub-section (1) shall be final.
17. The said question was raised by the petitioner in earlier writ filed by him being C.W.J.C. No. 16795 of 2021 ( Mahanth Ramesh Giri @ Ramesh Giri, Son/Chela of Sadanand Giri Vs. The State of Bihar & Ors.) and the objection was heard by the Division Bench wherein the Division Bench vide order dated 17.01.2022 has elaborately discussed the Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 22/31 above issue in Paragraph Nos. 10, 11 and 14. The Division Bench in Para-7 has taken note of the condition and information given on behalf of the petitioner that condition precedent for exercise of power under Section 33 of the Act is compliance of Clause (h) of sub-section (2) of Section 28 which confers upon the Board, power to remove a trustee from his office on the ground mentioned therein. The discussions made by the Division Bench in Para-7 and 9 to 15 are reproduced hereinafter which are relevant for deciding the present writ petition:
7. Mr. Kamal Nayan Choubey, learned Senior Counsel appearing on behalf of the petitioner has argued that compliance of Clause (h) of sub-section (2) of Section 28 of the Act is a condition precedent for exercise of power under Section 33 of the Act. Clause (h) of sub-section (2) of Section 28 of the Act confers upon the Board, power to remove a trustee from his office on the ground mentioned therein. He has placed heavy reliance on decisions of this Court in case of M/s Agrawal Dharamshala & Ors. vs. Bihar State Board of Religious Trust & Ors, reported in 1988(1) PLJR 212 (D.B.) and Ishwari Prasad Jhunjhunwala v. Bihar State Religious Trust Board (AIR 1989 Patna 349) (S.B.), to bolster his contention. Reliance has also been placed on the decisions in the cases of Mahanth Motilal Goswami v.
State (AIR 1993 Patna 171(D.B.)); Tej Bahadur Verma, Managing Trustee of Sri Shyam Lal Rashtriya Vidyalaya Trust Board, Khagaria vs. The State of Bihar and 6 Ors. (S.B.), reported in 1998(3) PLJR 347 and Mahanth Vijay Das vs. The State of Bihar & Ors., reported in 2003(4) PLJR 710."
"9. On careful examination of Section 33 of the Act, we have no hesitation in concluding that the Board has power to appoint any person to act as trustee of a Trust for such period not exceeding one year in following circumstances :-
(I) Where there is a vacancy in the office of trustee of a religious trust and there is no one competent to be appointed as trustee under the terms of the deed of such trust;
(II) Where there is a bonafide dispute as Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 23/31 to the right of any person to act as trustee and in the opinion of the Board, there is likelihood of breach of peace or serious interference with the management of the property of such trust; and (III) Where there is a vacancy caused by the order of the Board passed under Clause (h) of sub-
section (2) of Section 28 of the Act."
"10. It can easily be discerned on the basis of the aforesaid analysis of Section 33 of the Act that question of exercise of power by the Board to appoint a temporary trustee in the third situation will arise only when there is a vacancy because of removal of trustee from his office for the reasons enumerated in Clause (h) of sub-section (2) of Section 28 of the Act and not otherwise. The submission that removal of a trustee under Clause (h) of sub-section (2) of Section 28 of the Act is the only circumstance where the Board can exercise power under Section 33 of the Act, in our opinion, is untenable and deserves to be rejected. The Division Bench in case of M/s Agrawal Dharamshala (supra) has held as under : -
"On a plain reading of the said Act it appears that whenever there is a vacancy in the office of trustee of a religious trust and no one is competent to be appointed as trustee under the terms of the deed of such trust or where there is a bonafide dispute as to the right of any person to act as trustee and in the opinion of the Board there is likelihood of a breach of the peace or serious interference with the management of the property of such trust, the Board may, subject to any order of a competent Court, appoint any person to act as trustee of the said trust."
11. After having held as above, the Division Bench in case of M/s Agrawal Dharamshala (supra) added that a trustee can be appointed under Section 33 of the Act even in such cases where the vacancies have been caused by passing an order under Clause (h) of sub- section (2) of Section 28 of the Act. The Division Bench further observed that the said power under Section 33 of the Act can be exercised in case of removal of a trustee under Clause (h) of sub-section (2) of Section 28 of the Act only after removal of trustee in accordance with the said provision.
12. The Board, in the present case, has not exercised power under Section 33 of the Act with reference to the provision under Clause (h) of sub-section (2) of Section 28 of the Act, rather taking into account Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 24/31 bonafide dispute as to the right of the persons to act as trustee and serious interference with the management of the properties of the Trust. The decision rendered by this Court, in case of Ishwari Prasad Jhunjhunwala (supra), relied on by learned Senior Counsel appearing on behalf of the petitioner, cannot support his contention that compliance of Clause (h) of sub-section (2) of Section 28 of the Act is the sole condition precedent for exercise of power under Section 33 of the Act. Paragraph 24 of the said decision is noteworthy and is being reproduced hereinbelow : -
"24. Evidently, therefore, there exists a dispute as to whether the petitioner is the owner in respect of the said property or not. In my opinion, such a question of title cannot be decided by me in exercise of my jurisdiction under Arts. 226 and 227 of the Constitution of India. Such a disputed question of title can be decided in terms of the provisions contained in S. 43 of the Bihar Hindu Religious Trusts Act, 1950."
13. We are conscious of the fact that Section 43 of the Act has been substituted by Sections 43 to 43F of the Act by way of amendment by Act No. 1 of 2007.
14. The Division Bench in case of Mahanth Motilal Goswami (supra) has no application at all in the facts and circumstances of this case. The Division Bench in the said case has held that a temporary trustee can be appointed in exercise of power under Section 33 of the Act, if the conditions precedent therefor exist. In the said case, the petitioner had himself pleaded that he was appointed as Mahanth pursuant to a recommendation made by a Member of Parliament to the Chief Minister, which was forwarded by the Chief Minister to the respondent. The Court, in such circumstance, has held in case of Mahanth Motilal Goswami (supra) that the function of the Board is a statutory one and such statutory functionary cannot act on the basis of recommendation of a person who has no role to play under the statute. In the backdrop of the fact that the appointment of the petitioner of that case as a temporary trustee itself was illegal, the Court applied the legal principle that when by quashing of an illegal order by the Court in exercise of jurisdiction under Article 226 of the Constitution of India another illegal order may revive, it may not quash the illegal order or may quash both the orders. The said case has no application in the facts and circumstances of the present one. Similarly, the decision in case of Tej Bahadur Verma, Managing Trustee of Sri Shyam Lal Rashtriya Vidyalaya Trust Board, Khagaria Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 25/31 (supra) and Mahanth Vijay Das (supra) do not support the petitioner's contention that exercise of power under Clause (h) of sub-section (2) of Section 28 of the Act is the only condition precedent for exercise of power under Section 33 of the Act."
15. In our opinion, the impugned decision of the Board by way of interim measure in exercise of power under Section 33 of the Act cannot be said to be unauthorized, illegal and suffering from such legal infirmity requiring interference by this Court in writ jurisdiction under Article 226 of the Constitution. It is evident from the petitioner's own pleading that there are serious disputes in relation to administrative and financial management of the Math. Considering safety and protection of the properties of the Math, the Board, after due consideration, has issued the impugned notification dated 29.07.2021. We do not find any reason for this Court's interference in such situation as it cannot be said that no condition requisite for exercise of power under Section 33 of the Act, as noted above, exists."
18. Therefore, contention of the learned senior counsel that the appointment or removal of Mahant falls within the exclusive jurisdiction of the District Judge under Section 48 of the Act to the extent that the same have not been considered in earlier judgment or elsewhere, this Court finds it to answer the said question which was raised in the earlier writ. The validity of Section 48 of the Bihar Hindu Religious Trust Act, 1950, Bihar Act, 1951, was a matter of challenge before a Division Bench of this Court in the case of Raghavacharya and Ors. vs Saligramcharya, reported in AIR 1960 Patna 148, on the question raised by the Additional District Judge that the the provisions of Section 48 of the Act are ultra vires for the reason that no right of appeal is provided against the order of the District Judge to any higher judicial authority. The vires of the Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 26/31 provision was upheld by the Division Bench by observing that even there is no right of appeal is provided from the order of the District Judge made under Section 48 (1) on the application of the Board or with the previous sanction of the Board by any person interested in a religious trust, the right of appeal being a procedural in nature, there is no reasonable restriction imposed on the fundamental right of the trustee of a religious trust under Article 19(1)(f) of the Constitution. The power of removal may be exercised by the District Judge under Section 48(1)(a) of the Act if a trustee acts in a manner prejudicial to the interest of the said trust, or defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property of the trust or any other statutory charge on the property. In this regard, discussion made by this Court in Mahanth Ramesh Giri (supra) can be taken note of. In the present case, it is admitted that the petitioner never remained in the capacity of the Mahant of the Trust rather he was appointed as temporary trustee which lasts for one year and thereafter, he was made Sanrakshak/Patron of the trust. The Section 28(2)(h) of the Act came into force by amending the Act by inserting by Act 1 of 2007 which empowers the Board to decide a dispute regarding nature of trust. Section 28(2)(h) gives jurisdiction to the Board to remove a trustee from his office if Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 27/31 such trustee (i) is convicted of any such offence or is subjected by a Criminal Court to any such order as implies moral turpitude which in the opinion of the Board, unfits him to hold office; (ii) is convicted more than once of the same or different offences under this Act; (iii) refuses to act, or willfully disobeys the directions and orders of the Board under this Act; or (iv) applies for being adjudged or is adjudged an insolvent: (v) makes persistent defaults in the submission of budgets,accounts, reports or returns or in payment of contributions or other dues payable to the Board. (vi) alienates immovable property of the trust in contravention of this Act or misappropriates funds of the trust. (vii) indulges in immoral act disapproved by Dharmashashtras or has violated "maryada" of the "sampradaya" to which he belongs.
19. In the present case, admittedly the petitioner is accused of FIR No. 215 of 2020, P.S. Chowk, District- Lucknow and thus it cannot be said that exclusive jurisdiction of removal of trustee or the Mahant lies with the District Judge in accordance with Section 48 of the Act.
20. Coming to the facts of the case, the writ petition has been filed by the petitioner suppressing the vital information that he had earlier filed C.W.J.C. No. 16795 of 2021, which was disposed by the Division Bench vide order dated 17.01.2022 as Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 28/31 contained in Annexure-F to the counter affidavit. The petitioner has also suppressed the fact that he has been made accused in FIR No. 215 of 2020, P.S. Chowk, District- Lucknow, which amounts to committing fraud in legal proceeding not only before this Court, but in a proceeding before the Hon'ble Allahabad High Court, Lucknow Bench, while obtaining anticipatory bail on 30.05.2023 on the basis of Mukhtarnama dated 02.02.2023. The action is deprecated especially considering the statement made at Page No.4 of the Mukhtarnama, where the petitioner has accepted the fact that the respondent no.9 has been appointed as Mahant by the President of the Board in accordance with the provision of the Act, and thereafter, the petitioner has chosen to rescind the Mukhtarnama by a registered instrument on 14.06.2023. The said fact has been taken note in the argument made by the respondent no.9 recorded in Paragraph No.11 and the relevant paragraphs of the Mukhtarnama has been reproduced therein.
21. The Hon'ble Allahabad High Court vide order dated 30.05.2023 passed in Criminal Miscellaneous (Anticipatory Bail Application) No. 12817 of 2023 considering the Mukhtarnama has passed, inter alia, following orders in Paragraph No.5:
"5. Learned A.G.A. opposed the prayer of the applicant and submitted that without any authority of power of attorney is Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 29/31 executed by the applicant as he was the officiating Mahant of the aforesaid trust and on the basis of alleged power of attorney, co- accused, Om Bharti, rent out several property of matha and collected huge money. He further submitted that some gold of the temple is also sold and investigation is going on. He further submitted that charge sheet has already been filed against, co- accused, Om Bharti who has collected money from several persons but he does not dispute this fact that in the power of attorney, it is categorically mentioned that attorney is having no right to sell or purchase the property in relation to Trust, only he has power to maintain the property and pursue the cases of the aforesaid Trust."
22. Mr. Alok Agrawal, learned counsel appearing on behalf of the petitioner, at this stage, admitted the fact that after grant of anticipatory bail to the petitioner by the Lucknow Bench of the Allahabad High Court on 30.05.2023, the Mukhtarnama has already been rescinded by registered instrument on 14.06.2023.
23. So far as contention on behalf of the respondent no.9 to the effect that the Mukhtarnama dated 02.02.2023 and the instrument by which it was rescinded dated 14.06.2023 are valid evidences to hold that the petitioner has himself admitted the position of respondent no.9 to be the Mahant of the Math and with an intention to suppress vital facts from the Court, the petitioner had purposely not impleaded the respondent no.9 in the earlier writ petition bearing C.W.J.C. No. 16795 of 2021. The contention finds force. The Court has held vide order dated 17.01.2022 that in exercise of power conferred under Section 28(2)(h) of the Act the Board found it fit to remove the petitioner on the ground of he having been facing criminal Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 30/31 prosecution for making persistent default and having alienating the immovable property of the trust and also misappropriated the fund of the trust.
24. This Court also holds that the petitioner having indulged in an immoral act having suppressed the vital facts from this Court and also obtained anticipatory bail by committing fraud upon the Court which is disapproved by Dharmshastra and to have violated Maryada of the Sampradaya to which he belongs.
25. It is well-settled that the jurisdiction exercised by the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that when a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. In this regard, the Apex Court in the case of Ramjas Foundation & Ors. Vs. Union of India & Ors., reported in AIR 1993 SC 852, in Paragraph No.7 has held as under:
"7......It is well settled that a person invoking an equitable extraordinary jurisdiction of the Court under Article 226 of the Constitution is required to come with clean hands and should not conceal the material facts.....
26. Further, the Apex Court in the case of Shri K Patna High Court CWJC No.12252 of 2022 dt.09-02-2024 31/31 Jayaram & Ors vs Bangalore Development Authority LL 2021 719, has, inter alia, held that a litigant is bound to state all facts which are relevant to the litigation. This is because 'the Court knows law but not facts'. If he withholds some vital or relevant material in order to gain advantage over the otherside, then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced.
27. For suppressing the vital facts from the Court, this Court was of the opinion to direct the learned Registrar General to file a complaint against the petitioner before the competent court of having jurisdiction under Section 340 Cr.P.C., however, at this stage, Mr. Amar Jyoti Sharma submits that the petitioner is ready to deposit a cost of Rs. 5000/- in the Patna High Court Legal Services Committee.
28. The writ petition being devoid of any merit is dismissed with cost of Rs.5,000/- to be deposited in the account of Patna High Court Legal Services Committee.
(Purnendu Singh, J) mantreshwar/-
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