Patna High Court
Anurag Krishna Sinha vs The State Of Bihar on 29 February, 2024
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7940 of 2015
======================================================
Anurag Krishna Sinha S/o Late Gopal Krishna Sinha, P.S.- Kotwali, P.O.-
G.P.O. Patna, District- Patna.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
2. The Secretary, Department of Law, Government of Bihar, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Sunil Kumar, Sr. Advocate
Mr. Abhay Shankar, Advocate
Mr. Shayameshwar Kumar Singh, Advocate
For the Respondent/s : Mr. P. K. Shahi, AG
Mr. Ajay Behari Sinha, GA-8
Mr. Sanjiv Kumar, Advocate
Mr. Amish Kumar, Advocate
Mr. Neeraj Raj, AC to GA-8
Mr. Suryakant, AC to GA-8
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
ORAL JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 29-02-2024
The challenge is to a legislation which took
over the Smt. Radhika Sinha Institute and Sachidanand
Sinha Library (for short ''the Institute & Library'') from its
Trustees for better management and development.
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2. Learned Senior Counsel Sri. Sunil Kumar
appeared for the petitioner, who is the Trustee/Honorary
Secretary and the Chief Executive Officer of the Institute
and the Library. Learned Advocate General, Sri. P.K. Shahi,
appeared for the State.
3. The learned Senior Counsel appearing for
the petitioner referred to the earlier similar action of the
State to take over 'the Institute & Library' for which two
ordinances were brought out in the year 1983, which got
lapsed. On a challenge raised, a Division Bench of this
Court, despite the lapse, held that the vesting under the
ordinance will have an enduring effect. The Hon'ble
Supreme Court reversed the decision of the Division Bench
expressing surprise at the rejection of the writ petition after
taking note of the fact of both the ordinances having lapsed
without any legislative measure having been taken during
the currency of the ordinances. The vesting was adjudged to
be life-less by the Hon'ble Supreme Court. The judgment of
the Hon'ble Supreme Court was in the year 1996 and the
State did not attempt any action for long years. In the year
2015, again, the State came with the present legislation.
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4. The impugned legislation does not disclose any
public interest on which the acquisition is made. Further
there is no compensation awarded to the trustees; the
legislation having provided for a maximum of a measly one
rupee for the legacy of a great son of Bihar, who was the
Chairman of the Constituent Assembly. The learned Senior
Counsel also graphically described the life of Dr.
Sachidanand Sinha and the history behind the formation of
the Trust; which completes a century as on this year. The
terms of the deed were specifically read over to impress
upon us the ownership vested on the Trustees, who are also
in the line of succession of Dr. Sachidanand Sinha and his
wife Smt. Radhika Sinha. They were continuously in
management of the affairs of 'the Institute & Library' for
the entire period in which the Trust was in existence and
had complied with every condition of the agreement entered
into with the State, which is produced as Annexure-2.
5. On the challenge to the Act, it is argued that it is
confiscatory in nature for reason of and compensation being
totally absent and there being no public interest disclosed,
which are necessary ingredients for enforcing the States
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eminent domain under Article 300A of the Constitution of
India. The Act, as has been brought out, is violative of
Article 14 and Article 19(1)(g) of the Constitution.
6. The State lacks legislative competence to
enact a law on a trust and the trustees. 'the Institute &
Library' is covered under the Indian Trust Act brought out
under Entry 10 of the Concurrent list (List III) of Schedule
VII of the Constitution of India. An Act of the State
legislature, for acquisition of property, cannot impinge upon
the legislation brought out by the Union Parliament.
Reliance is placed on Hari Krishna Mandir Trust v. State
of Maharashtra & Others reported in (2020) 9 SCC 356,
wherein the essential ingredients for exercising the power of
eminent domain was laid out. Existence of public purpose
and adequate compensation are imperative in the State
action of an acquisition, both absent in the impugned
legislation.
7. Section 7 of the Act makes the compensation
illusory and renders the enactment confiscatory and
expropriate especially since the building was constructed with
the personal funds of the original settlor and the huge
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collection of books, publications and periodicals also
belonged to the settlor. T.M.A. Pai Foundation & Other v.
State of Karnataka & Others reported in (2002) 8 SCC 481
is relied on to contend that the library and the access
provided therein is a systematic activity carried on by the
Trustees which they have a right to continue and cannot be
deprived of, unless there is overwhelming public interest
and adequate compensation paid. Reliance is also placed on
B.P. Sharma v. Union of India reported in (2003) 7 SCC
309.
8. Learned Advocate General on the other hand
points out that the Trust formed in 1926 was subject to a
metamorphosis when Annexure-A2 agreement was entered
into with the State in the year 1955. The State had been
funding 'the Institute & Library' till date, but the activities
have become defunct. The Library is kept open, but there
are no foot-falls therein. The activity of the Trust and the
objectives with which the Trust is formed has become
defunct for all practical purposes. The State which is
financing 'the Institute & Library' by grants-in-aid, intends
to infuse new life into the activities of 'the Institute &
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Library', thus ensuring enduring recognition to the memory
of the original settlor. The preamble specifically speaks of
better management and development of 'the Institute &
Library', which is the public purpose with which the Act is
enacted.
9. The Bihar State Public Library and
Information Centre Act, 2008, was enacted in which Section 3
specifically speaks of State Libraries; which the Institute &
Library is, as per the agreement entered into in the year 1955.
Insofar as the contention, with respect to special enactment
having precedence above the general enactment, it is argued
that the principle has no application insofar as the Indian Trust
Act and the subject Act is concerned. The ownership of the
properties is sought to be taken over and since the enactment
itself in its Preamble speaks of development and better
management of 'the Institute & Library', this is the public
interest and there is no question of any digression from the
objectives of the trust.
10. Indian Trust Act is one to regulate the
activities of Trusts, its formation, its conduct, its revocation
and so on and so forth and does not affect the acquisition of
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the property which is relatable to the ownership and not the
obligation of the trust; which is attached to such ownership.
Reliance is placed on Ishwari Khetan Sugar Mills (P) Ltd.
and Other v. State of Uttar Pradesh and Others reported in
(1980) 4 SCC 136 and Shri Krishna Gyanoday Sugar Ltd.
and Another v. State of Bihar reported in (2003) 4 SCC
378. While asserting that there is no question of
compensation, since the Institute had been run with the
funds of the State all through, the learned Advocate General
submits that they are open to any valid claims made by the
Trustees. It is also pointed out that the ownership of the
property in any event, is with the State since 'the Institute &
Library' is situated in a property given on lease, by the
State, for the establishment of 'the Institute & Library';
which would be continued after the State takes over the
Trust.
11. Learned Senior Counsel for the petitioner
would specifically refer to the interim order passed in the
above case and inform us that while the English version
speaks of a requisition, the Hindi version speaks of
acquisition. It is pointed out that the consequence of vesting
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results in the deed of trust, deed of agreement and deed of
lease being deemed to be replaced and dissolved. There is
no question of the Trust being dissolved since it can only be
under Section 79 of the Indian Trust Act.
12. Learned Advocate General, on the other
hand, points out that the vernacular version of the
enactment has to be relied on and what was intended was an
acquisition of 'the Institute & Library' for a public purpose,
which is for its development and better management. As far
as the consequences of vesting, though the same is not
happily worded, it only intended that the Management
would be taken over by the State and all Committees and
Sub-Committees under the deed of trust would seize to have
any powers of administering the affairs of 'the Institute &
Library' after the enactment.
13. In controverting the ground raised of
impinging upon a Union legislation, the learned Advocate
General has placed before us the decision in Ishwari
Khetan Sugar Mills (P) Ltd. (supra) wherein the State of
Uttar Pradesh by a legislation, attempted to acquire
industrial undertakings involved in manufacture of sugar, in
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larger public interest. One of the grounds of attack was that
the State legislature had no legislative competence; which
had two distinct limbs of argument. The first limb was that
under Entry 52, List-I, the Parliament enacted the Industries
(Development and Regulation) Act, 1951 (for brevity 'IDR
Act') wherein a declaration was made in Section 2 and
sugar industries were included in the First Schedule of the
Act. Hence it goes out of Entry 24, List-II; wherein the
State legislature has control over industries, only subject to
the provisions of Entries-7 and 52 of List-I. The learned
Judges, by a majority compared the declaration under
Section 2 of the IDR Act to Section 2 of the Mines and
Minerals (Regulation and Development) Act, 1957 (for
brevity 'M & M Act') under Entry 54, List-I. It was held
that the expression in the declaration under the M & M Act:
'to the extent hereinafter provided'(sic) and the absence of
such expression under the IDR Act was inconsequential. It
was held by majority that though Parliament was entitled to
make a declaration in respect of industry or industries under
Entry-52, List-I, in public interest, the control exercised is
not abstract and has to be concrete and specific. It was held
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that the absence of the expression; 'to the extent herein
provided', while assuming control of the sugar industries,
would not lead to the conclusion that the control assumed
was something in abstract, total and unfettered de hors the
provisions of the IDR Act. In addition to this, the learned
Judges also delineated the trite principle of examining the
pith and substance of a legislation, when its validity is
challenged on the ground of absence of legislative
competence.
14. Reliance was placed on Union of India v.
H.S. Dhillon; (1971) 2 SCC 779, Kerala State Electricity
Board v. Indian Aluminium Co.; (1976) 1 SCC 466 and
State of Karnataka v. Ranganatha Reddy; (1977) 4 SCC
471 and the principle of examining the pith and substance
of an enactment was reaffirmed to find an incidental
trespass, incapable of invalidating the law. It was held: "If
in pith and substance a legislation falls within one entry or
the other but some portion of the subject-matter of the
legislation incidentally trenches upon and might enter a
field under another List, the Act as a whole would be valid
notwithstanding such incidental trenching." (sic paragraph
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13). Looking at the provisions of the IDR Act, it was held
that it does not deal with the ownership of industrial
undertakings and is primarily concerned with the
development and regulation of the declared industries. The
power of the Central Government to assume direct
management or control of industrial undertakings would
survive even after the acquisition of scheduled undertakings
under the State Act, was the finding.
15. It was held that in pith and substance the
Act was one enacted under Entry 42, List-III and was not an
incidental power exercised under Entry 24, List-II. We
specifically extract Paragraph 25 of Ishwari Khetan Sugar
Mills (P) Ltd. (supra): -
"25. There is thus a long line of decisions
which clearly establishes the proposition
that power to legislate for acquisition of
property is an independent and separate
power and is exercisable only under Entry
42 List III and not as an incident of the
power to legislate in respect of a specific
head of legislation in any of the three lists.
This power of the State Legislature to
legislate for acquisition of property
remains intact and untrammelled except to
the extent where on assumption of control
of an industry by a declaration as
envisaged in Entry 52 List I, a further
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power of acquisition is taken over by a
specific legislation."
16. In the minority judgment of two learned
Judges, they opined that the terms of the declaration under
the IDR Act limiting the control exercised by the Central
Government could be dealt with in an appropriate case;
which issue was not "sufficiently covered" before them in
the instant case. Still, there was concurrence insofar as the
impugned legislation; acquiring sugar industries, falling
within Entry 42 of List-III, not possible of being related to
either Entry 52 of List-I or Entry 24 of List-II. Looking at
the pith and substance of the enactment, it was held that the
legislation was one for acquisition of the undertaking and it
was not the exercise of an incidental power under an Entry
in the State list. In Shri Krishna Gyanoday Sugar Ltd.
(supra) the contention raised that Synthetics & Chemicals
Ltd. V. State of U.P (1990) 1 SCC 109 overruled Ishwari
Khetan Sugar Mills (P) Ltd. (supra) was negatived.
17. Likewise, the subject legislation, impugned
in the present writ petition, is one under Entry 42 of List-III,
in pith and substance. It is clearly the exercise of power of
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acquisition, which does not even incidentally trench upon
the Indian Trust Act, as enacted under Entry 10 of List-III of
the VIIth Schedule. The arguments were addressed on an
assumption that the institution which is a Trust is a private
trust governed by the Indian Trust Act. We have our own
reservations, about such assumption, looking at the deed of
Trust authored by the settlor; but, for the moment, for the
sake of argument, we will assume it to be a private trust and
deal with the contention regarding the impugned legislation
trenching upon the power of the Parliament as exercised by
enacting the Indian Trust Act under Entry 10 of List-III of
the Seventh Schedule.
18. We have to immediately notice the statement of
Objects & Reasons of the Trust Act, which speaks of
codifying the law relating to Trusts. Hence, even a private
trust cannot be assumed to be one statutorily created under
the Indian Trust Act but all the same the creation and
functioning, would be regulated by the law as codified
under the enactment. We also have to specifically notice the
definition of Trust which is "an obligation annexed to the
ownership of property" (sic). Hence, the obligation travels
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with the ownership of the property. Even if there is
acquisition of the property, as in the present case, for the
better administration of the Trust, the obligation travels with
such acquisition and annexes itself to the entity which has
acquired the property; which in the present case is the State.
19. As we observed above, we are not convinced
that the settlor intended the Trust to be a private trust and it
was not in fact, a private trust. The settlor was Dr.
Sachidanand Sinha and in Annexure-1, the deed of
declaration of trust, the trustees were stated to be the settlor
and those holding different public offices like, the Chief
Justice of the High Court of Patna, Member of the Executive
Council, Minister of Education of the Government of Bihar
and so on and so forth.
20. Pausing here, we have to state that the Bench
being comprised of the Chief Justice, we queried to both the
parties as to whether there is any objection in this Bench
hearing the matter; despite the fact that in the last nine
months of the Chief Justice assuming office there was not
even one meeting of the trustees convened. Both the learned
Senior Counsel categorically submitted that there is
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no objection.
21. Coming back to the deed, the settlor first
recorded the cherished desire of his wife Smt. Radhika
Sinha to establish an institute with the object of "providing
the public of Patna and its neighbourhood with a place for
intellectual and social intercourse by founding an institute
comprising a library, reading room, a hall for public
meetings and social gatherings and also by providing
sufficient recreation grounds for healthy sports and games"
(sic). It is to give effect to the said desire of the settlor's
wife; the settlor wrote a letter to the first Governor of Bihar
and Orissa offering a sum of Rs. 50,000/- out of the sale
proceeds of the ancestral property of his wife for the
establishment of the institute. The Governor on being
requested by the settlor, accepted the office of Patron of the
said institute and on 28.03.1922 the foundation stone of the
Institute was laid and the settlor erected and completed
buildings for the Institute with the said sum of Rs. 50,000/-.
22. The settlor in addition to the aforesaid
amounts also made over to the said Institute the collection
of books, made by himself, numbering about 10,000
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volumes, of the approximate value of Rs. 1,00,000/-. 'the
Institute & Library' was thus opened at the inaugural
gathering on 09.02.1924 and the Trustees were declared as
having been appointed to hold and possess the said Institute
& Library upon the trust hereinbefore created. There was a
further sum of Rs. 50,000/- made over to the Trustees by
way of bank deposit for the maintenance and upkeep of the
said Institute & Library. The Trustees were also to hold and
possess the said messuages and premises as also the money,
books, furniture and appurtenances and any other property,
movable and immovable, for all or any of the purposes of
the presents. Hence, the dedication made by the settlor was
in favour of the public of Patna and its neighbourhood, an
unascertainable collective of people; the general public.
23. . Whether a trust is public one or a private
one, as held in Deoki Nandan v. Murlidhar AIR 1957 SC
133, is essentially a mixed question of law and fact. The
cited case, a classic case, decided the question whether a
Thakurdwara, a religious institution, was an endowment for
the public at large or a private one. The dedication, as in this
case, was admitted and the dispute was confined to the
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scope of such dedication, to decide which, it was held, first
the principles of law are to be stated and the scope
determined on the application of the stated law. The
principles of law were stated thus; extracted from paragraph
5: -
5. ... The distinction between a private
and a public trust is that whereas in the
former the beneficiaries are specific
individuals, in the latter they are the
general public or a class thereof. While in
the former the beneficiaries are persons
who are ascertained or capable of being
ascertained, in the latter they constitute a
body which is incapable of ascertainment.
The position is thus stated in Lewin on
Trusts, 15th Edn., pp. 15-16:
"By public must be understood such as
are constituted for the benefit either of the
public at large or of some considerable
portion of it answering a particular
description. To this class belong all trusts
for charitable purposes, and indeed public
trusts and charitable trusts may be
considered in general as synonymous
expressions. In private trusts the beneficial
interest is vested absolutely in one or more
individuals who are, or within a certain
time may be, definitely ascertained...."
Vide also the observations of Mitter J. in
Nabi Shirazi v. Province of Bengal [ILR
(1942) 1 Cal 211, 227, 228] . Applying this
principle, a religious endowment must be
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held to be private or public, according as
the beneficiaries thereunder are specific
persons or the general public or sections
thereof.
24. Even in the case of a temple, though the
idol installed therein has the status of a juristic person, it
was found that the established law is that the endowed
properties are owned by the idol only in an ideal sense. The
idol cannot use, enjoy, dispose of or even protect its
properties and hence has no real beneficial interest in the
endowment. Quoting from the authoritative religious texts,
it was found that the deity has no beneficial enjoyment of
the properties and its ownership is only in a figurative sense
and the true purpose of a religious endowment is not to
confer any benefit on the Gods, but to felicitate spiritual
benefit to the devotees. The dedication to a deity, thus is a
compendious expression of the pious purpose for which the
dedication is designed. Once the dedication to an idol is
understood in that perspective, then the question to be
decided is as to who are the beneficiaries, or in the case of a
temple, whether the intention of the settlor was to confer the
benefit of worship to specified individuals, the general
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public or any specified portion thereof. The established
principle, based on the above theory, was held to be that, if
the dedication is for the worship of a family idol, then it is a
private endowment; for the benefit of an ascertained group
of individuals comprising only of the family members and
when the dedication is not to a family or a specified
individual or a group of individuals and is in favour of a
general body of worshippers, then the endowment can only
be regarded as public.
25. In Deoki Nandan (supra), to understand
the true nature of dedication, (i) the Will, which speaks of
the intention of the testator and the scope of dedication, (ii)
the user of the temple (iii) the ceremonies of consecration
and (iv) other facts were examined. The testator had two
wives and no issues and the construction of the
Thakurdwara was to install the idol. The income from the
properties were to be divided equally; one half going to the
two wives jointly and the other half to the Thakurdwara,
which after the death of the wives, was in its entirety, to be
used by the Thakurdwara. It provided for a contingency of a
son being born to the testator, in which event the properties
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were to be divided equally between the son and the
Thakurdwara, which contingency never occurred. The
wives were to maintain accounts and the surplus, after
meeting the expenses, were to be deposited in a fixed
deposit, to be utilized as and when possible, for purchase of
properties in the name of the deity. A Committee of four
persons were appointed, of whom two were not the relatives
of the settlor, nor even from the same caste. After death of
the wives the Committee was given the option to appoint a
nephew, the defendant in the suit, as Mutawalli, but not
mandatory and only on unanimous opinion of the
Committee. There was also a clause specifically disentitling
any near or remote heir from raising any claim on the
property and any suit filed was stated to be improper on the
face of the deed. The recitals of the Will were held to reveal
indubitably, an intention to dedicate the Thakurdwara to the
public and not merely to the family members of the settler.
26. The Will, distinguished from a deed of
endowment; in the absence of the latter, the user was
established by way of evidence. The villagers examined,
deposed on their worship carried out freely and without any
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interference and it was also stated that the construction was
made by the testator, at the instance of the villagers. Though
a dedication to a deity would survive even without any
ceremonies of consecration, in the cited case the dedication
and the ceremonies, made with great solemnity and in
accordance with the sastras were admitted by both sides.
The attendant facts, supporting an endowment in favour of
the public, were noticed as, (i) the idols having been
installed on a pedestal, (ii) that too in premises separate
from the residential quarters, (iii) the pujari being appointed
from time to time and (iv) the fact that there was no other
temple in the village, which supports the deposition
regarding the construction having been made at the request
of the villagers.
27. We are quite conscious of the fact that, the
present proceedings are not, one in which oral evidence is
led, but only on affidavit. However, we have to notice the
admitted facts as coming out from the deed. In Deoki
Nandan (supra) the evidence was looked into since there
was no deed of dedication as such; which in the present
case is available. As we noticed, the intention is clear and
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the beneficiaries are the general public, 'the public of Patna
and its neighbourhood' (sic); an unascertainable mass
constituting the general public, for whom a place is
facilitated for 'intellectual and social intercourse' (sic), by
founding an 'Institute comprising a Library, Reading room
and a Hall for public meetings and social gathering' (sic).
The provision is also intended to be used as 'recreation
ground for healthy sports and games' (sic).
28. The Trustees are also four at (a) ex-officio
Trustees; the Chief Justice, the Prime Minister, Bihar,
(succeeded by the Chief Minsiter, Bihar) the Minister of
Education and the Vice-Chancellor of the Patna University.
The other trustees are, (b) two to be nominated by the
settlor or his representative, to be made within six months
of vacancy and on failure by the other Trustees, (c) eight to
be nominated initially by the settlor, for life, and on death
by the other Trustees and (d) the settlor; and after his death,
his legal heir. Hence the Trustees are not the family
members of the settlor and the settlor himself retains only
for himself a trusteeship which after his death devolves on
his legal heir. The character and status of the Trustees is
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another pointer to the indubitable presumption that the
dedication was one for a public purpose and not a private
one; conferring on it all the characteristics of a public trust
and not a private trust. Thus, there is no application of the
Indian Trust Act; which even if applicable, we already held,
there arises no impingement on the legislative power of the
Parliament and there is not even an incidental trenching by
the impugned enactment.
29. In Union of India v. Nareshkumar
Badrikumar Jagad (2019) 18 SCC 586 (2019) 18 SCC 586
review filed by the Union of India was allowed finding
locus to file a review despite being a third party. A Trust
property was leased out to a mill which was taken over by
the National Textile Corporation Ltd. The lessor Trust filed
a suit for eviction which was decreed and it travelled up to
the Hon'ble Supreme Court wherein the Civil Appeal of the
NTPC was dismissed. The review was on account of a
Vesting Act by which the textile undertaking vested in the
Union. It was held that the statutory or protected tenancy
rights of the Mill stood transferred and vested in the Union.
The landlord Trust was required to take appropriate
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recourse against the Union to get back possession of the
property. Hence, it cannot be the position at all that the
Trust property is absolved from any statutory vesting or
acquisition by reason only of its character.
30. The assertion that the Trust is a private one
covered under the Indian Trust Act also arises from Clause
12 of the deed, which reads as under: -
"(12). If for any reason whatsoever the
trust under these presents shall fail, the
entire trust property including the said
Smt. Radhika Sinha Institute and
Sachchidanand Sinha Library building,
books, furniture, trust once given or
settled by the settler together with all
income accumulation and interest thereof
shall revert back to and be vested in the
settler or his legal representative."
31. This is also the provision based on which
the petitioner claims that the lack of compensation vitiates
the enactment as expropriate and one invalid. Answering
the ground of inadequate compensation, in the teeth of our
finding that the trust is a public one; the beneficiaries are
the public, an unascertainable group of people, the members
of which would be in the state of a constant flux. The legal
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heirs of the original settlor derive no benefit from the
dedication, neither proprietary rights, on nor monetary
benefits from, the property, which is on a lease from the
Government. The buildings constructed, though with the
sale proceeds of the ancestral properties of the wife of the
settlor, clearly is dedicated in furtherance of the object of
the trust, as is the case with the books acquired by the
settlor in his lifetime for himself, but dedicated
unconditionally. B.P. Sharma (supra) has no application
since there is no professional activity involved in managing
the trust, which in any case is with the Committee of
Trustees and not the individual Trustee, the petitioner
herein.
32. In so far as the validity of the aforesaid
clause of reversion and vesting of all properties on the legal
heirs of the settlor, we need only refer to Radha Sundar
Dutta v. Mohd. Jahadur Rahim AIR 1954 SC 24. It was
held so in Paragraph 11 & 13: -
11. ... Now, it is settled rule of
interpretation that if there be admissible
two constructions of a document, one of
which will give effect to all the clauses
therein, while the other will render one or
Patna High Court CWJC No.7940 of 2015 dt.29-02-2024
26/37
more of them nugatory, it is the former
that should be adopted on the principle
expressed in the maxim' ut res magis
valeat quam pereat'.
xxx xxx xxx
13. ... If, in fact , there is a conflict
between the earlier clause and the latter
clause and it is not possible to give effect
to all of them, then the rule of construction
is well established that it is the earlier
clause that must override the latter
clauses and not 'vice versa.'
Both these extracts apply squarely. The general purport of
the dedication being to constitute a public trust, the
extracted clause of reversion, would frustrate the very
object of dedication. In any event, the extracted clause (12)
being later to the earlier recitals; clearly demonstrating the
intention of the settlor, the objects and purpose would
prevail over the reversion to legal heir; which later clause
would be rendered nugatory.
33. We have also to pertinently notice that the
Trustees had substantially changed the management of the
affairs of the Trust, the nomination of the Trustees and the
manner in which the affairs of the Trust are carried out, by
bringing in the State Government as a major contributor in
Patna High Court CWJC No.7940 of 2015 dt.29-02-2024
27/37
furtherance of the objects of the Trust itself. This is evident
from Annexure 2, a deed of agreement executed on
20.04.1955by the Trustees and the Governor of Bihar; who executed it in the status of representing the Government of Bihar. The agreement was executed pursuant to the Government expressing an intention to raise 'the Institute & Library' to the status of a Central Library for the State of Bihar. The ownership and management of the land, buildings, furniture, fixtures, books, and periodicals, as well as other properties and assets, were to remain as, then presently vested in the Trustees.
34. The Institute & Library were to be treated at par with a Government aided educational institution of the State and the Government was permitted the use of the same as a State Central Library for the implementation of any governmental scheme of Library reorganisation in the State, subject to the restrictions as may be imposed by the Trustees, which restrictions were also confined to external circulation of the books and periodicals belonging to 'the Institute & Library'. By the said agreement the Trustees conceded to the Government the right to audit the accounts Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 28/37 of income and expenditure, especially for reason of the financial assistance offered to cover the expenses, as approved in the budget or supplementary budgets of 'the Institute & Library'. The Trustees also conceded a set of rooms in the Institute building, free of rent, for the accommodation of the Office of the Superintendent of Library, Bihar, who would also act as ex-officio Chief Librarian of the Institute and the Library, responsible for the general supervision of the working and administration of 'the Institute & Library', subject to the general control and direction of the Trustees.
35. The Trustees were required to frame a set of rules for regulating the employment and service conditions of the staff, which had to be approved by the Government. In addition to the ex-officio Trustees, four of the life- Trustees were to be appointed from among the nominees of the State Government. The disbursement of grants for any structural improvements of fresh constructions to be made, as sanctioned by the Government could further impose conditions as the Government desires.
36. It was also specifically stated that on breach Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 29/37 of the terms of the agreement, the Government may, at their discretion, stop all further grants to 'the Institute & Library'. For all intend & purpose, the management of 'the Institute & Library' stood transferred to the Government; who as submitted by the learned Advocate General, has been financing 'the Institute & Library' from that date. The subject enactment was only to vest the Trust and its properties, in the Government for better functioning and also for furtherance of the objects of the Trust, for which the dedication was made by the settlor, as evidenced from the original deed of dedication. It has to be immediately noticed that the State on takeover cannot digress from the objects of the Trust and the same has to be followed through.
37. The only right retained with the Trustees, after Annexure-2 agreement were; (i) ownership and management of the land, buildings, furniture, fixtures, books, and periodicals, as well as other properties and assets then vested in the Trustees, (ii) restrictions as may be imposed by the Trustees of external circulation of the books and periodicals belonging to 'the Institute & Library' and (iii) the general control and direction of the Trustees, which Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 30/37 by the subject enactment cease to exist in the Trustees.
38. The petitioner herein, the Executive Officer, as we have already found, had neither proprietary interest nor monetary benefits flowing to him from the Institute & Library nor was it a professional activity, which he in any case is demonstrably, not qualified to undertake. As evident from Annexure-2 one qualified so to do, the Superintendent of Libraries, Bihar, was appointed as the ex-officio Chief of the Library; even earlier to the vesting and with consent of the Trustees.
39. The learned Senior Counsel appearing for the petitioner had placed considerable reliance on Hari Krishna Mandir Trust (supra), in which the proprietary rights of a Trust relating to an immovable property was considered in the teeth of Article 300(A) of the Constitution of India, which was found to include proprietary/hereditary interest in the right of management of a religious endowment. The deprivation of such property, though possible under a legally initiated acquisition proceedings in public interest, would necessarily have to be compensated, irrespective of the purpose for which the acquisition is Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 31/37 made. Failure of payment of compensation would result in deprivation of property without specific legal authority.
40. There was no question dealt with in the said case of whether the Trust was a private one or a public one. The Trust had acquired the property by way of a valid sale effected by the owner. Contiguously lying properties included in one plot assigned by the Municipal Corporation (for brevity, 'the Corporation') were divided into four, two of which remained with two individuals, the third with the Trust, and the fourth, a private road, which was shown in the records as being in the name of the two persons managing the Trust, who had purchased it from the original owner. There was no question of acquisition of the Trust property, since 'the Corporation' records also showed the property in the name of two individuals; the father and daughter. Despite repeated communications issued by 'the Corporation' that the private road was in the name of the two individuals, who were running the Trust in the said property, the authorities found that 'the Corporation' is the owner in respect of the land, and there is no reason to assume that the Trust would permit the other two property Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 32/37 owners, the user of the road.
41. The reliance placed on Section 88 of the Regional and Town Planning Act 1966 to assert vesting of the land in 'the Corporation', was held to be not possible, only on reading the said provision in isolation. It was found that there was a provision for compulsory acquisition of land for the purposes of a regional plan, development plan, or town planning scheme which had not been done in the proper manner. It was found that the proper consideration of Section 88 enables vesting only when the land is acquired for the purposes of a development scheme. Further, it was held that 'the Corporation' cannot be considered to have any right over the land, and in any event, the holder of the land had conceded easementary rights to the owners of the other two lands. 'the Corporation' was never shown as the owner of the private road, and the road was held jointly by the three property owners. It was in that context that it was held that, though the right to property is not a fundamental right, it is still a constitutional right under Article 300(A) and a human right; deprivation of which can only be by legally permissible measures enabling due compensation to be paid Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 33/37 to the person who is deprived of such rights. The vesting, as per the impugned enactment, divests the Trustees of the minimal authority that remained with them after Annexure- 2 and vests the complete obligation of the Trust, on the Government of Bihar.
42. In the present case, we have already found that the beneficiaries are an unidentified, unascertained group of persons comprised of the public in Patna and its neighbourhood; making the Trust a Public Trust. The petitioner herein, who was the Executive Officer, we reiterate, did not have proprietary rights, nor could he draw any monetary benefits from his office as Executive Officer. He had not been carrying on any professional activity, and for all purposes, 'the Institute & Library' was financed by the State Government and the State Librarian was acting as the ex-officio Chief Librarian of the Library who was all entrusted with the responsibility of the general supervision of the working and administration of 'the Institute & Library' subject only to the general conduct and direction of the Trustees.
43. The Trustees themselves had given over the Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 34/37 reins of the administration to the State Government for the purpose of financing the functioning of 'the Institute & Library'. The acquisition now made is only one step further in taking over the entire control of 'the Institute & Library', which is a public Trust. The public interest is clear from the recitals 'for better management and development' in the Preamble of the enactment. It also indicates the intention of the State Government to carry on the objects of the Trust, the intention behind the dedication made; to further such intention of the settlor and fulfil the desire of the settlor's wife.
44. Shri Krishna Gyanoday Sugar Ltd. (supra) was also a challenge to the enactment of the State legislature providing for the acquisition and transfer of certain sugar undertakings in the State of Bihar. As noticed from Ishwari Khetan Sugar Mills (P) Ltd. (supra), the acquisition impugned falls under Entry 42 of List III, which was reaffirmed, finding that an examination of the mutually competing claims of Entry 7 and Entry 52 of List I and Entry 24 of List II is not at all necessary. Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India; (1970) Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 35/37 1 SCC 248 was relied on and the following extracts was made;
..."in its normal connotation "property" means "the highest right a man can have to anything, being that right which one has to lands or tenements, goods or chattels which does not depend on anothers' courtesy; it includes ownership, estates and interests in corporeal things, and also rights such as trademarks, copyrights, patents and even rights in personam capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially with reference to transfer or succession, and to their capacity of being injured".
45. The expression undertaking in the impugned Act was found to be clearly meaning a going concern with all its rights, liabilities, and assets. As already held by us, in the present case, the Trust as such has been acquired by the State, the beneficiaries of which is the general public of Patna and its neighbourhood, and the petitioner, who is only the Chief Executive Officer, is not deprived of any right which has a monetary value. There is no injury caused to him insofar as the object of the Trust, as intended by his Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 36/37 predecessor, who was the settlor, would be carried on further by the State Government. The mere difference in the terms employed in English and in the vernacular, respectively, being requisition and acquisition, is inconsequential.
46. The vesting occurs of 'the Institute & Library' on the State Government for the purpose of better management and development of 'the Institute & Library'. The objects of the Trust cannot be digressed from by the State Government nor is it intended to be, as is disclosed from the impugned enactment. Whatever rights, powers and duties that remained with the Trustees, in the management of 'the Institute & Library' as was available after Annexure- 2 agreement was entered into, would also vest completely in the State Government by the impugned enactment.
47. We find absolutely no reason to entertain the writ petition and dismiss the same but hasten to add that the vesting does not absolve the State Government from carrying on the objects of the Trust; which obligation attaches itself to the Trust taken over by the State Government, who has the responsibility to further the Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 37/37 intention of the original settlor.
48. The writ petition stands dismissed without any order on costs.
(K. Vinod Chandran, CJ) Rajiv Roy, J. I agree ( Rajiv Roy, J) Sharun/PKP-
Aditya/-
AFR/NAFR AFR CAV DATE 08.01.2024 Uploading Date 29.02.2024 Transmission Date