Patna High Court
Mahanth Ram Shankar Das vs Bihar State Religious Trusts Board And ... on 15 May, 1998
Equivalent citations: AIR1999PAT55, AIR 1999 PATNA 55, (1998) 3 PAT LJR 218
ORDER S.N. Mishra, J.
1. In this writ application, the petitioner has prayed for quashing of the order, dated 21-5-1994 passed by the respondent Chairman, Bihar State Religious Trusts Board, Patna, whereby respondent No. 3, has been declared as temporary trustee of the Trust, namely, Raipur Math. A copy of the order passed by the respondent Chairman of the Board is made Annexure-13 of this writ application. Earlier, by order, dated 13-1-93, the respondent Administrator of the Board, appointed the Sub-Divisional Officer, Dalsingsarai, as temporary trustee of the Math, in question, as it appears from the order contained in Annexure-5 to this writ application. Mr. Tara Kant Jha, learned senior counsel appearing on behalf of the petitioner has assailed the order of the respondent President of the Board on the ground, firstly, that the Trust, in question, is purely a private Trust and, as such, the respondent President has no jurisdiction and/or authority to interfere with the day-to-day functioning of the Trust including appointment of the temporary Trustee unless and until the nature of the Trust is decided either by the authority appointed under Section 43 of the Bihar Hindu Religious Trusts Act, 1950 thereinafter referred to as 'the Act') and/or a competent Civil Court. In sub-
stance, the provisions of the Act apply to only public trust and not the private one. Secondly, the petitioner, being a Chela of the original Mahant Balram Das, having already been appointed Trustee with respect to the Math in question, according to the customs, the provision of Section 33 of the Act cannot be resorted to by the respondent President for appointment of the temporary Trustee unless the petitioner is removed from the post of Trustee in terms of Section 28(2)(h) of the Act. Lastly, it is submitted that the documents were filed before the respondent President in order to show that He, being the Chela of late Balram Das, has been duly appointed Mahant, but without considering those documents, the impugned order has been passed, which is wholly illegal, arbitrary and without jurisdiction. The respondent Board though did not file any counter-affidavit in this case, yet the learned counsel appearing on behalf of the Board supported the order of the respondent-President and submits that the Trust, in question is a public Trust and, as such, the President of the Board is competent enough to appoint the temporary Trustee. The private respondent, namely, Ramadhar Das, has however, filed a counter-affidavit in this case and submits that the petitioner is not the Chela of late Mahanth Balram Das, as alleged, and hence, he cannot be appointed the Trustee of the Math, in question. The private respondent, namely, Ramadhar Das, claiming himself to be the Chela of one Narayan Das, has been rightly appointed a temporary Trustee by the respondent President of the Board.
2. In order to appreciate the rival contentions of the parties, some relevant facts according to the pleadings first. The petitioner was the adopted Chela by the then Mahanth Balram Das of the Math after following the religious ceremony. The said Balram Das was subsequently assassinated on 28-12-1992 and, accordingly, a criminal case lodged being Vidyapati Nagar P.S. Case No. 110 of 1992 for various offences punishable under Section 302 and other sections of the Indian Penal Code including Section 27 of the Arms Act, against unknown. The petitioner was also injured in course of the assassination of Mahanth Balram Das. The dead body of the late Mahanth Balram Das was handed over to the petitioner for performing the last rites. On 8-1-1993, on the day of Dwadsha of late Mahanth Bairam Das, Pagari ceremony was also held whereby the heir and successor of said deceased Mahanth Balram Das was decided. After the death of the deceased Mahanth Balram Das, the Sub-Divisional Officer, Dalsingsarai, had deputed a Magistrate in order to maintain the law and order situation in the Math premises and in presence of a large number, of people including the Mahanths of different Asthals, Pagari was given to the petitioner. The said Pagarj ceremony was presided over by Mahanth Ramanand Das, the Magistrate, who was deputed to maintain the law and order situation submitted a report to the Sub-Divisional Officer, Dalsingsarai, stating therein that the petitioner was given Pagari in presence of several saints and general public. A copy of the report is made Annexure-3 to this writ application. The learned Magistrate has also issued a certificate on 9-1 -93 to the effect that on the day of Dwadsha ceremony i.e, 8-1-93 of the said deceased Mahanth Bairam Das, the petitioner was made the Mahanth of the Main, in question, in presence of Naga community of Ayodhyaji, Mandal adhish saints and other public. A copy of the said certificate, dated 9-1 -93 is made Annexure-4 to this writ application. The petitioner, after having been appointed the Mahanth of the Math, in question started performing the day-to-day functioning of the Math but suddenly on 13-1-93, the respondent Administrator of the Board appointed me Sub-Divisional Officer, Dalsingsarai, as a temporary Trustee in exercise of the power under Section 33 of the Act. A copy of the order, dated 13-1-93 is made Annexure-5 to this writ application. The petitioner filed a petition before the Sub-Divisional Officer challenging his appointment as a temporary Trustee. The Sub-Divisional Officer immediately thereafter sent a letter to the respondent Board stating therein that the petitioner was legally declared Mahant on 8-1-93. Relying upon the certificate issued by the Magistrate-in-charge, the Sub-Divisional Officer wrote a letter to the Board to the effect that the appointment of the Sub-Divisional Officer as a temporary Trustee is not permissible in the eye of law unless the petitioner is removed in terms of Section 28 (2)(h) of the Act, which is apparent from the letter, dated 5-1 -94 issued to the Board, a copy of which is Annexure-6 to this writ application. The Circle Officer has also reported to the Additional Collector by his letter, dated 24-5-94 (Annexure-10) to the effect that the petitioner has been appointed Mahanth according to the customs in presence of respectable Sadhus and Sants including general public on 8-1-93 and since then the petitioner is performing his duty to the satisfaction of all.
3. In order to set the matter at rest, both the Additional Collector as well as the Collector, Samastipur, submitted a joint report, dated 23-1 -94/2-2-94 to the Board wherein it has been specifically stated that the petitioner has succeeded the deceased Mahanth Balram Das on 8-1-93 in a duly constituted religious ceremony in presence of several respectable Sadhus. Sants and general public and since then, the petitioner is looking after the properties of the Math property. The said joint report of the Additional Collector and the Collector, Samastipur, is made Annexure-11 to this writ application. The private respondent, namely, Ramadhar Das, claiming himself to be the Gurubhai of the late Mahanth Balram Das and a Chela of late Mahanth Narayan Das, has supported-the impugned order passed by the respondent President of the Board. It is alleged that the order impugned is an appeal able order, the writ Court cannot interfere with the same. It is further alleged that the petitioner has a criminal background and is trying to grab the property of the Math and hence, the President of the Boards has rightly passed the impugned order appointing him as a temporary Trustee. According to him, the Math is a public Trust since the Math, in question, has already been registered with the Board. It is further alleged that late Mahanth Narayan Das had two disciples; one late Mahanth Balram Das and another, Ramadhar Das, the private respondent No. 3, and on the death of Mahanth Narayan Das in 1987, late Balram Das succeeded him and after his death, the private respondent, namely, Ramadhar Das became the Trustee of the Math, in question. In support of his contention, he has relied upon the Sale deed executed by late Mahanth Narayan Das in favour of Sheo Narayan Singh and the certificate issued by the Mukhiya of the local Gram Panchayat, which are Annexures-'A' and 'B', respectively, to the counter-affidavit filed on his behalf in this case. It is further stated in his supplementary counter-affidavit that the petitioner is involved in the murder of late Mahanth Balram Das.
4. Now coming to the first submission of the learned counsel for the petitioner to the effect that the Math, in question, is a private Trust, and, as such, the provisions of the Act are not attracted in the facts and circumstances of this case, in my view this is a mixed question of fact and law and, in order to decide the nature of the Trust, both oral and documentary evidence will have to be adduced by the parties before a positive finding is arrived at on such a question of fact. It is obvious, therefore, that in a proceeding under Articles 226 and 227 of the Constitution of India, this basic jurisdictional fact cannot be decided, by this Court. However the Board, before invoking the various provisions of the Act. has initially to decide prima facie as to whether the Math is a private Trust or a Public Trust, but such a decision of the Board is always subject to the final decision of the competent Civil Court. Accordingly, the first submission of Mr. Jha cannot be accepted.
5. As regards the second submission of Mr. Jha to the effect that the petitioner being a Chela of late Mahanth Balram Das having already been appointed the Trustee, the President of the Board has no authority in law to resort to the provisions of Section 33 of the Act in order to appoint the temporary Trustee. The submission of Mr. Jha is well founded, which will be apparent from the facts stated above, inasmuch as, right from the Anchaladhikari up to the Collector of the district have accepted the fact that the petitioner has been appointed Trustee after the assassination of late Mahanth Balram Das. The details of the order, certificate and the letters issued by the various authorities have already been referred to above and the same do not require to be reiterated here. It is settled principle of law that unless the Trustee is removed in accordance with the provisions of Section 28(2)(h) of the Act or there is a vacancy on the post of Trustee in that case alone, recourse to Section 33 of the Act has to be resorted to by the respondent Board. In order to answer this question, Section 33 of the Act has to be noticed, which reads as follows -
"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 trusts 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 of serious interference with the management of the property of such trust or where there is vacancy caused by the order of the Board passed under clause (h) of sub-section (2) of Section 28 of the Act the Board may subject to any order of a competent Court appoint any person to act as trustee of the said trust for such period and upon such condition 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."
Admittedly, the petitioner has neither been removed in terms of Section 28(2)(h) of the Act nor there has been a vacancy on the post of Mahanth. Therefore, the respondent-President cannot take recourse to Section 33 of the Act for the purpose of appointing the temporary trustee. From a mere perusal of the impugned order as well as the pleadings of the parties, it is apparent that no averment has been made and/or the reasons assigned as to the existence of the condition precedent for invoking the jurisdiction under Section 33 of the Act. In this connection, reference may a) so be made to Section 28 (2) (h) of the Act -
"28. General Powers and duties of the Board (1) -
XX XX XX (2) Without prejudice to the generality of the provisions of Sub-section (1), and subject to the other provisions of the Act, the powers and duties of the Board shall be-
(a) to (g) xx xx xx
(h) to remove a trustee from the 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) refuse to act, or wilfully disobeys the directions and orders of the Board under this Act; or
(iv) applies for being adjudged an insolvent;"
Having regard to the aforesaid provision, the respondent Board can remove a trustee if such trustee is convicted or refuses to act or wilfully disobeys the direction of the respondent authority. Even assuming for a moment that the trust is a public trust, the petitioner has not been removed by the respondent Board in exercise of its power under the provisions aforesaid. It goes without saying that the respondent authority can exercise its power under Section 33 of the Act only after removing a trustee in accordance with law. The respondent-President, while passing the impugned order, has not assigned any reason whatsoever as to how the private respondent is being appointed a temporary trustee in terms of Section 33 of the Act. Reference, in this connection, may be made to the decision in the case of Ishwari Prasad Jhunjhunwala v. Bihar State Religious Trusts Board, Patna, AIR 1989 Patna 349. The allegation, according to the private respondent that the petitioner having a criminal antecedents and trying to grab the trust property is wholly misconceived, as the petitioner is neither named in the first information report nor the charge-sheet has been submitted against him nor he has been convicted in any offence, so as to call for any interference in this regard by the authority. Even if the contention of respondent No. 3 be accepted as it is claimed he is the Gurubhai of late Mahanth Balram Das, the rightful claim of the petitioner cannot be defeated having regard to the fact that he is a Chela of late Mahanth Balram Das and accordingly to the recital in the deed of dedication and the affidavit by late Mahanlh Narayan Das, as contained in Annexures-23 and 12, respectively, the petitioner has a preferential claim over the private respondent. The submission of the learned counsel for the private respondent to the effect that since the file has already been opened with regard to the Math, in question, in the office of the respondent Board, the respondent authority is well within its jurisdiction to pass the impugned order without resorting to the provisions of Section 28 (2)(h) of the Act, is wholly misconceived and rejected as such. Even if the trustee submitted to the dictates of the respondent authority his conduct does not amount to waiver of his rights muchless his legal rights.
Accordingly, I am of the view that even if the trust, in question, has been registered with the Board, it cannot be said definitely that the Math, in question, is a public trust and the respondent President is at liberty to pass the impugned order without resorting to the provisions of Section 28(2) (h) of the Act.
6. The last submission of Mr. Jha is equally well founded, inasmuch as it appears that various documents were filed before the respondent Board in support of his contention that the petitioner has been appointed Mahanth after following the prescribed ceremony in presence of several Sadhus. Sants and general public, which has been endorsed by not only the Anchaladhikari and the Sub-Divisional Officer but also by the Additional Collector and the Collector of the District. It, however, transpires from the order impugned that the private respondent was earlier appointed as a trustee of the Math, in question, but there is nothing on the record to show as to how and when he was removed from the post of trustee. If the private respondent has been earlier appointed a trustee of the Math, in question, there is nothing on the record to suggest as to how and when and under what provisions of the Act, he has been subsequently removed from the post of the trustee. As has been referred to above, the Sub-Divisional Officer of Dalsinghsarai was appointed Special Officer after the death of Late Mahanth Balram Das. Obviously, therefore, the private respondent was never appointed on the post of trustee at any point of time by the authority either before or after the death of late Mahanth Balram Das. In that view of the matter, it can safely be held that the private respondent was never appointed a trustee of the Math in question and the contrary finding arrived at by the respondent President is perverse and cannot be accepted. For the reasons, stated above, the order, dated 21-5-94 passed by the respondent Chairman of the Board, a copy of which is made Annexure-13 to this writ application is hereby quashed and consequently, this writ application is allowed, but without costs.
7. Before I part with this case, however, I may observe that if the situation so warrants, the respondent authority will be at liberty to appoint the trustee in accordance with law without being prejudiced by the order of this Court.