Patna High Court
Mahanth Sukhdeo Giri And Anr. vs Sri Kapildeo Singh And Ors. on 7 April, 1969
Equivalent citations: 1969(17)BLJR1058
JUDGMENT S. Wasiuddin, J.
1. This is an application under Articles 226 and 227 of the Constitution for the quashing of the Notifications (Annexures B and B/1) of the petition on the ground of being illegal, mala fide and without jurisdiction. The relevant facts giving rise to this present application may be briefly stated as follows:
There are two petitioners in this case and these two petitioners along with respondent Nos. 4 to 18 are members of the Bihar State Religious Trust. It may be stated that respondent No. 4 is Sri Lal Singh Tyagi. This Board was constituted by the Government in the year 1963 and the term of this Board was to expire in May, 1968. Respondent No. 1 of the petition is Sri Kapildeo Singh, who at the relevant time was a Minister Incharge of Religious Trust. Respondent No. 2 is the State of Bihar and respondent No. 3 is Sri Shrish Chandra Lala, who was. Legal Remembrancer and Secretary to the Government at the relevant point of time. They are respondents first party and, as stated above respondents 3 to 18 are respondents second party. The State Government in exercise of its power under Section 8(4) of the Act appointed Sri Lal Singh Tyagi, respondent No. 4 as the President of the Board on 1-9-1967 for a period until further orders. This notification was duly published in the Gazette and according to the petitioners this appointment was made because respondent No. 4 is a man of great honesty, integrity, reputation, social service and status and, therefore, he was selected to be the President. The notification appointing him as President was duly published in the Gazette and it has been stated on behalf of the petitioners that after his appointment as such, he effected tremendous improvements. The details of these improvements have been given in the petition. It was also contended by the petitioners that Sri Kapildeo Singh, the then Minister Incharge not finding him acting upto his desires suddenly decided to supersede the Board and the Board was superseded by a Notification under Section 80(1)(b) of the Act which was published in the Gazette on 12-12-1967. It has been urged that the allegations made in the notification with regard to the Board were false and that the order was mala fide. It was also contended that the members had not . committed any act which would have disqualified them and the order of supersession was also bad because it was arbitrary and without giving an opportunity to the petitioners and other members of the Board of being heard. It was also contended that according to the principle of natural justice also such an opportunity should have been afforded before passing the order of the supersession of the Board.
2. A counter-affidavit has been filed on behalf of the respondents First party and according to this counter-affidavit it was not necessary to frame any charge or to call for any explanation before superseding under Section 80 of the Act. It was also alleged that no improvement whatsoever had been effected by the President except that he had called some Press Conferences. It was also submitted that there was no mala fide and the supersession was on account of the materials which were available and which have been detailed in the counter-affidavit and the details of which have also been given in Annexure-B of the counter-affidavit.
3. It may also be mentioned here that a reply to the counter-affidavit has been filed in which it has been submitted that the person who filed the counter-affidavit was an Assistant and he was not competent to file any affidavit and that the then Minister ought to have himself filed an affidavit. There was also a denial of the allegations made in the counter-affidavit.
4. This position was not disputed that the Board was constituted in 1963 and its terms was to expire in May, 1968. Annexure-A to the petition is the notification by which Sri Lal Singh Tyagi, respondent No. 4 was appointed as a President of the Board. The notification shows that Sri Rameshwar Prasad, (I.A.S. retired) had been appointed the President of the Board for one year from the 1st of September, 1966. His term of appointment was to expire and, therefore, the State Government appointed respondent No. 4 to be the President of the Board from the 1st of September, 1967 until further orders. It has been urged on behalf of the petitioners that it was very strange indeed that although this appointment of respondent No. 4 had been made on 1-9-1967, but on 12-12-1967 there was a supersession of the Board, that is, three months after, and, therefore, this shows a mala fide. The appointment of respondent No. 4 obviously was on account of the fact that the term of the Ex-President was expiring and as appointment had to be made. The State Government selected respondent No. 4 and appointed him as the President. The State Government had the power and authority under the Act to do so. In my opinion, from this alone no definite conclusion can be arrived at that the order of supersession passed on 12-12-1967 was a mala fide one.
5. It is necessary here in the first instance to see the relevant provisions of the Act. Section 14 deals with the removal of President and members and Section 9 deals with the disqualifications of members. The President or the member of the Board can be removed by the State Government if there is any disqualification as contemplated by Section 9. Section 28 lays down that the general superintendence of all religious trusts in the State shall be vested in the Board and Sub-section (2) lays down as to what are the powers and duties of the Board and Section 80 deals with the dissolution or supersession of the Board. Section 80 is as follows:
If, in the opinion of the State Government, the Board persistently makes default in the performance of the duties imposed on it by or under this Act or exceeds or abuses its powers, the State Government may, by notification, specifying the reason for so doing, declare the Board to be in default or to have exceeded or abused its powers, as the case may be; and
(a) direct that on a date to be specified in the order, the office of the members of the Board shall be deemed to be vacated and require a fresh election to be held on or before the said date; or
(b) direct that the Board shall be superseded for such period, not exceeding six months at a time, but in any case not exceeding eighteen months in all, as may be specified in the notification.
(2) The members of the Board who vacate office by reason of a declaration made under Sub-section (1) shall not, unless the State Government otherwise direct, be deemed disqualified for re-election or re-appointment.
Section 80, therefore, confers power for the supersession of the Board, but the conditions under which it can be are (1) that Board persistently makes default in the performance of the duties, and (2) or exceeds or abuses its powers; and on these conditions being present there should be a notification, specifying the reasons for so doing. It will be better if I now refer to the notification itself which is Annexure-B of the writ petition and the English version of the same is Annexure-A to the counter-affidavit. The notification runs as follows:
Annexure-B State of Bihar Law (Judicial) Department.
Notification Dated, the 12th December, 1967 S.O.J. 385 whereas in the opinion of the State Government the Third Bihar State Board of Religious Trust has persistently made defaults in the performance of its duties imposed on it by and under the Bihar Hindu Religious Trust Act, 1950 (Bihar Act I of 1951), by its failure:
(1) to comply with the provisions of Clause (m) of Sub-section (2) of Section 28 of the said Act; and (2) to perform the duties imposed upon it under Clause (a), (b), (d) and (g) of Sub-section (2) of Section 28 of the said Act.
And whereas the said Board has also otherwise abused its powers which have proved detrimental to the proper administration of religious trust in the State:
New, therefore, the Governor of Bihar, in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 80 of the said Act, is pleased to declare that the said Board has committed excess and abused its powers and it is directed that the Board be superseded for six months with effect from the date of this notification.
(R. E. 0107/67) By the order of the Governor of Bihar.
Sd. Shrish Chandra Lal, Secretary to Government of Bihar According to this notification, therefore, the Board had failed to comply with the Sub-clause (m) of Sub-section (2) of Section 28 of the Act. I have already referred above to this fact that Sub-section (2) of Section 28 of the Act lays down the powers and duties of the Board and Clause (m) imposes a duty on the Board to furnish to the State Government or to such officer as the State Government may appoint in this behalf any statement, report, return or other document and any information which the State Government or, as the case may be, such officer may require to be furnished arid also to furnish to the State Government an annual report giving a detailed account of the activities of the Board. In the counter-affidavit filed on behalf of the respondents first party (vide paragraph 12 of the counter-affidavit) it was clearly asserted that the Board had failed to furnish reports as are contemplated by Clause (m) of Sub-section (2) of Section 28 of the Act, to the Government since last several years. As stated above, an affidavit in reply was filed on behalf of the petitioners. There is, of course, a denial of the allegations made in the counter-affidavit, but there was no specific denial with regard to the non-compliance of Clause (m) of Section 28. If such reports had been furnished then some reference of the same could have been given. Respondent No. 4, Sri Lal Singh Tyagi also filed a petition on affidavit supporting the case made out by the petitioners. In that petition also there is no specific reference to the question whether there was or not any violation of the directions as contained in Clause (in) of Section 28 of the Act.
6. Now referring to the notification (Annexure-A) to the Counter-affidavit, it was stated therein that the Board had also failed to perform the duties imposed upon it under Clause (a), (b), (d) and (g) of Sub-section (2) of Section 28 of the Act. Clause (a) imposes the duty that the Board should prepare and maintain in the prescribed manner a complete record containing full information relating to the origin, nature, extent, income of the religious trusts. Clause (b) lays down that the Board shall prepare and maintain a register containing true copies of all documents creating any religious trust. Clause (d) imposes the duties to take measures for the recovery of lost property and Clause (g) lays down that the Board shall give directions for the proper administration of a religions trust in accordance with the law governing such trust and the wishes of the founder in so far as such wishes can be ascertained and are not repugnant to such law. The respondents first party along with their counter-affidavit have also filed an annexure which is Annexure-B and it contains as many as thirteen items. These item's relate to specific instances where certain matters had been brought to the notice of the Board and reminders had been issued but no action had been taken by the Board. These instances are right from the year 1963 to the year 1967. There was also a denial in the reply to the affidavit that there was any such breach of duties in respect of any such items. The position is that there was a serious contention on both sides on this point and this raises disputed questions of fact which cannot be gone into a writ petition.
7. Section 80 lays down that the Government may supersede the Board if in the opinion of it there have been defaults as contemplated in that section. The opinion has to be formed by the Government and it is a matter of subjective satisfaction, but certainly there must be materials before the Government before any action under Section 80 can be taken. Annexure-B to the counter-affidavit has been submitted on behalf of the respondents first party to show that there were materials which necessitated an action under Section 80 of the Act.
8. This position is not disputed that no explanation had been asked for and no opportunity had been given to the members of the Board before passing orders of supersession. Section 80 as it stands does not provide that any such notice should be given or the parties concerned should be given an opportunity of being heard. The Government, therefore, in strict compliance with the section could issue the notification without giving any prior notice or giving an opportunity to be heard. It has been urged on behalf of the petitioners that natural justice demanded that there should have been some notice and hearing before passing the order of supersession. In this connection, reliance has been placed on three decisions and one of these is in the case of Radheshyam Khare and Anr. v. The State of Madhya Pradesh and Ors. . That was a case under C. P. and Berar Municipalities Act, and there a question arose whether the action taken by the Government under sec-lion was 53 (A) or 57 of the Act. There in that case there was a specific provision that no order under Sub-section (1) or Sub-section (2) of Section 57 of the Municipalities Act shall be passed until reasonable opportunity had been given to the Committee to furnish an explanation. The facts and the circumstances of that case and specially in view of the fact that there was such a provision, are quite different from the facts and circumstances of the present case. Reliance has also been placed on a decision of our High Court in the case of Siya Sharan Sinha and Ors. v. The Stale of Bihar and Ors. 1969 B.L.J.R. 17. There a declaration had been issued for the declaration of the area which was under a Municipality which was under the Notified Area Committee. The circumstances and the provisions of that Act were also quite different and there it was found that the Government had ignored the precedent conditions before issue of a declaration of the area to be Municipality. In my opinion, this would also not apply to the facts of the present case. Reliance has also further been placed on a decision in the case of Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors. . It was a case in respect of the Companies Act and the relevant provisions which were being considered in that case were Sections 235 and 237 of the Companies Act. Section 237 of the Act provided that if in the opinion of the Central Government there were circumstances suggesting, as specifically mentioned in that section and which have been quoted in the judgment of the Supreme Court at page 301 then the Central Government shall appoint one or more competent persons as inspectors to investigate the affairs of a company. The words occurring which I have referred above were "in the opinion of the Central Government" and it was held that the words "reason to believe" or "in the opinion of" do not always lead to the construction that the process of entertaining "reason to believe" or "the opinion" is an altogether subjective process and not landing itself even to a limited scrutiny by the Court and as such "a reason to believe" or "opinion" was not formed on. relevant facts or within the limits or within the restraints of the statute as an alternative safeguard to the rules of natural justice where the function is administrative. There the Central Government before forming its opinion had to see whether those circumstances as mentioned in Section 237 of the Companies Act were present and the facts and the circumstances of that case also in my opinion, are completely different from this present one. The Government in this present case had to form an opinion on the materials which were available in respect of matters as contemplated by Section 80 of the Bihar Hindu Religious Trust Act, and as, pointed above, it appears that there were materials and the Government on those materials took an action. The action of the Government and the Notifications, therefore, cannot be said to be without jurisdiction.
9. It was also contended that the order of supersession was mala-fide inasmuch as, Sri Kapildeo Singh, the then Minister did so in a mala fide manner. This has also been denied in the counter-affidavit, but it has also been submitted that the person who could have denied was the Minister Incharge himself and the Assistant of the Secretariat was not competent to make such a denial. True, it is, that when there are allegations regarding mala fide, then the person against whom the allegations are made should file the affidavit. But here in this case it appears that at the time when this writ petition was pending, the Minister Sri Kapildeo Singh had gone out of office. He was no longer the Minister and naturally he could not have access to the papers which were available and a Minister who has gone out of office will not have any interest in the matter also. In such circumstances, no adverse inference can, therefore, be drawn from the non-filing of the affidavit by Sri Kapildeo Singh himself.
10. As stated above, apart from the circumstances that from before there were some materials before the Government, there are disputed question of facts also to which I have referred above and the further more the term of the Board itself would be expiring. It was stated by the Learned Counsel appearing for the State at the time of the hearing that steps for fresh election are also being taken. Therefore, having regard to all these circumstances, it does not seem to be a fit case in which the prayer for quashing of the Notifications (Annexures B and B/1) of the petition should be allowed. The petition is, therefore, dismissed, but no order for costs is passed.
S.C. Misra, C.J.
11. I agree.