Patna High Court
Sri Surya Narain Bhagwan vs State on 16 December, 1952
Equivalent citations: AIR1953PAT127, AIR 1953 PATNA 127
JUDGMENT Ramaswami, J.
1. In this case a rule has been issued calling upon the State of Bihar to show cause why a writ in the nature of mandamus should not be granted restraining it from taking possession of certain properties notified under Section 3, Bihar Land Reforms Act.
2. The petition is presented on bahalf of the deity Sri Surya Narain Bhagwan through the shebait Srimati Rani Brijraj Kumari. It is stated in the affidavit that the ancestors of Raja of Deo had installed the family deity Sri Surya Narain Bhagwan in an ancient temple and had devoted a great part of the income of the estate for the maintenance of the temple and the worship of the deity. On 27-2-1950, Mahal Deo Baghoura consisting of (1) 5 annas share in village Sandhail, (2) 1 anna 5 gandas share in Deo Khas, and (3) entire share of Srimati Rani Brijraj Kumari in 45 villages was sold in execution in a certificate case. The properties were purchased by Goswami Rajeshwar Gir, chela of Mahanth Krishna Deyal Gir of both Gaya. The sale was confirmed on 19-9-1950, and sale certificate was granted to Rajeshwar Gir by the Certificate Officer of Gaya. It is said that on 23-3-1950 Rajeshwar Gir transferred his interest to the deity Sri Surya Narain Bhagwan. On 25-9-1951, the properties were recorded in the name of the petitioner in the land registration records. It is alleged on behalf of the petitioner that on 6-11-1951, the State Government published a notification under Section 3, Land Reforms Act declaring that the properties have become vested in the State of Bihar but the notification did not describe the deity as proprietor but it mentioned the name of Rani Brijraj Kumari as proprietor in the appropriate column. Rani Brijraj Kumari who has presented this petition as shebait of the deity alleges that the notification is defective since it omitted to specify the deity as proprietor of the properties. It was argued on petitioner's behalf that the notification did not confer any title and the respondent has no jurisdiction to take possession of the properties or to interfere with the management of the petitioner.
3. In showing cause against the rule the learned Government Pleader contended in the first place that the notification was currently issued, that the purchase of the property in the certificate sale was benami, that the sale deed executed by Goswami Rajeshwar Gir in favour of the deity was a paper transaction and that the real proprietor of the estate was Rani Brijraj Kumari and that the deity Sri Surya Narain Bhagwan had no title. A counter-affidavit has been filed on behalf of the State asserting that the deed of trust dated 12-12-1949, was not a genuine transaction and that the alleged sale in the certificate case and subsequent transfer dated 23-3-1950 were a mere contrivance to put the properties benami in the name of the deity. In para. 4 of the counter-affidavit it is alleged that the purchase-money for the said sale was paid by Rani Brijraj Kumari and that no consideration was paid for the alleged transfer made by Goswami Rajeshwar Gir in favour of the deity.
4. In support of this rule Dr. Sultan Ahmad argued in the first place that the property was recorded in the land registration department in the name of the deity, that it was therefore incumbent upon the State Government to mention the deity as proprietor in the notification issued under Section 3, Land Reforms Act. But the definition of proprietor in Section 2(o) does not support the argument of the learned counsel, Section 2(o) defines "proprietor" to mean a person holding in trust or owning for his own benefit an estate or part of an estate and includes the heirs and successors-in-interest of a proprietor. Whether Rani Brijraj Kumari is a shebait as she alleges or whether she is the actual proprietor as the State Government asserts it is clear enough that Rani Brijraj Kumari is a "proprietor" within the meaning of the Act. That being so, she is correctly described as "proprietor" in the notification issued by the Government under Section 3. In any event the question whether. Rani Brijraj Kumari is a shebait or whether the deity holds the property as be-nami cannot be determined in these summary proceedings under Article 226 of the Constitution. For the proper determination of the question, it is necessary to enter into the complicated questions of fact and, it is obvious that a proceeding under Article 226 is hardly the appropriate machinery for the purpose of deciding the question. The proper remedy for the petitioner is to institute a title suit where the question of benami may be put in issue and evidence offered on the question.
The Land Reforms Act also contains provisions under which the question of the title of the petitioner can be agitated at a later stage. Section 26 states that after the amount of compensation is determined in accordance with Sections 24 and 25 the Compensation Officer shall prepare the Compensation Assessment-roll, and when such roll has been prepared, the Compensation Officer shall cause a draft of it to be published in the prescribed manner. The section imposes a duty upon the Compensation Officer to receive and consider any objections which may be made to any entry in such draft Compensation Assessment-roll or to any emission therefrom during the period of publication. The section provides that the Compensation Officer shall dispose of such objections according to the rule prescribed by the State Government. If the draft assessment-roll is prepared in the name of Rani Brijraj Kumari it will certainly be open to the deity acting through its shebait to prefer an objection under Section 25 stating that the properties constitute endowment for religious purpose and that Rani Brijraj Kumari has no proprietary interest therein.
5. Assuming however that the transaction is not benami and that Rani Brijraj Kumari is shebait and the endowment is valid, can it be said that the notification under Section 3 is without jurisdiction or that the proprietary interest does not pass or vest in the State Government? The argument of Dr. Sultan Ahmad is that the State Government has no jurisdiction to acquire the estate unless the name of the proprietor is correctly mentioned in the notification under Section 3. It was contended by the learned counsel that it was a condition precedent that the name of the right proprietor should be notified under Section 3 and if this condition is not complied with the title to the property does not pass to or vest in the State Government. A similar argument was presented by Dr. Sen Gupta in --'Rebati Ranjan v. State of Bihar, AIR 1953 Pat 121 (A) in which we have pronounced judgment to-day. For the reasons elaborately set out in that judgment and which I do not wish to repeat I have come to the conclusion that the name of the proprietor in the notification under Section 3(1) is merely descriptive and is not relevant on the question of jurisdiction, that the failure of the State Government to mention the correct name of the proprietor will not invalidate the notification nor will it prevent the title from passing to or becoming vested in the Government under the provision of Section 3(1). The argument of Dr. Sultan Ahmad on this aspect of the case must therefore fail.
6. Lastly Dr. Sultan Ahmad complained that the worship of the deity cannot be performed by the shebait unless Government make provision for interim payment of compensation. The question whether the transaction is 'benami' or not will doubtless be determined at the proper stage by the Compensation Officer on the materials presented before him by the parties. The question of 'benami' is relevant only on the quantum of compensation to be ultimately paid. But there is nothing to prevent the shebait Rani Brijraj Kumari from applying to the Bihar Government for interim payment of compensation under Section 33 of the Act. The section prescribes that interim payment of compensation should be paid to the proprietors in accordance with the rates mentioned therein. It will be certainly open to the shebait Rani Brijraj Kumari (without any prejudice to her right to agitate at later stage the question that properties have been really endowed to the deity Surya Narain Bnagwan) to apply to the State Government for payment of interim compensation which'amount she may devote for the purpose of worship of the deity and maintenance of the temple in which the deity is installed.
7. In my opinion this application must be dismissed; but in the circumstances of the case I do not propose to make any order as to costs.
Sarjoo Prosad, J.
8. I agree. In view of the definition of the word 'proprietor' in Section 2(o) which means a person 'holding in trust or owning for his own benefit', I do not consider that the notification under Section 3(1), Land Re forms Act in this case was invalid and did not operate to vest the estate in Government. We have already held in AIR 1953 Pat 121(A) that under the law there is nothing to prevent even a charitable or trust estate vesting in the State Government on a proper notification under Section 3(1) of the Act being issued. It is undoubtedly open to the Compensation Officer under Section 21 of the Act to disregard a fictitious trust, but before he does so, I have no doubt that he would consider and weigh all the materials with the care and caution that it deserves because his determination of the question would vitally affect the institution of trust and the rate of payment of compensation. He has to bear in mind that under Section 4(f) of the Act, if it is found that the estate appertains to a religious and charitable trust, he should not interfere with "the right of the trustee to apply the trust money to the objects of the trust", and under Section 24(3) of the Act, the compensation in such a case has to be assessed on the net annual in come of the properties payable as a perpetual annuity to the trustee of the endowment.