Patna High Court
Nalini Kanta Choudhary And Ors. vs President Of Bihar State Board Of ... on 22 December, 1969
Equivalent citations: AIR1971PAT1, AIR 1971 PATNA 1, 1970 PATLJR 91, 1970 BLJR 306, ILR 49 PAT 140
JUDGMENT Misra, C.J.
1. Civil Writ Jurisdiction Case No. 571 of 1969, Criminal Miscellaneous Cases Nos. 1181 and 1182 of 1069 have been heard together as they involve a common question of law which has been referred by the Division Bench for consideration by the larger Bench, in view of certain conflicting opinions in the judgments pronounced by this Court in regard to the interpretation of sections 43 and 67 of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act 1 of 1951).
The petitioner in C. W. J. C. No. 571 of 1969 is resident of village Bana Nava Cram in the district of Santhal Parganas. He was served with a notice (annexure 1) dated the 15th of March, 1969, by the Bihar State Board of Religious Trusts preceded by similar notices dated the 8th February, 1969 (annexure 2) and the one dated the 29th November, 1967 (annexure 3), calling upon the petitioner to submit a statement relating to Giri Gobardhan Mandir, Bana Nava Gram, for the period 1951-52 to 1967-68 and budget for 1968-69 and that, if it was not filed, action under Section 67 of Bihar Act 1 of 1951 (hereinafter called the Act) would be taken against him. The petitioner filed C. W. J. C. No. 188 of 1969 to this Court for quashing Annexure 2 aforesaid but the Court, on the 12th of March, 1989, ordered that the petitioner might withdraw the application for moving the Board for the declaration required under Section 43 of the Act, if necessary. The Board, however, did not take recourse to Section 43 of the Act. The notices under Section 59 of the Act were issued on the footing that he was required to file return of the income and expenses for 1951-52 to 1968-69 and budgets for 1969-70 as the temple was a public trust, but the petitioner maintained that there was no temple of Giri Gobardhan but only the idol of Giri Gobardhan which was the family idol of late Haradban Sarkar for his worship as the family idol and the income of the land was not the income derived from the properties of the idol but of the late Haradhan Sarkar. After the death of Hara-dhan Sarkar, all his properties including his house and agricultural land devolved upon his only daughter late Bimla Sundari Devi, wife of Ramtanu Choudhary of Banior in the district of Birbhum. She died also survived by her only son Prithwi Chandra, father of Nalini Kant Choudhary. He inherited the property in his personal capacity but continued to worship Giri Gobardhan as a family idol. In fact, the petitioner also inherited the property along with his brother Bhujanga Bhushan Choudhary and the sons of other brothers, Indu Bhushan Choudhary, Bibbuti Choudhary, Mohini Mohan Choudhary and Sashi Bhushan Choudhary, and they were all in possession of the lands and house. There was no trust of any kind relating to the properties and whatever properties, in fact, were situated in Bana Nava Gram were all personal properties of Prithwi Chandra Choudhary, and not trust properties. Hence, Section 67 of the Act could not be set in motion against him. No member of the public had any access to the idol nor was any offering made by them. It was the members of the joint family who met all the expenses of the idol for Puja and Ragbhog. Under Section 59 of the Act, notice could be issued only to a trustee of a public charitable religious trust but not to a person who would be holding the office of a trustee of the private religious trust such as is seen in the case of family deity.
2. The conflict of views centres round the interpretation of Section 43 of the Act which, as it originally stood prior to its amendment, in so far as it is relevant, reads as follows:--
"43. (1) The Board or any person interested in a religious trust may, at any time, apply in the prescribed manner to the District Judge for a declaration that any immovable property is trust property."
In the subsequent clauses provision is made in regard to the manner in which the District Judge is to proceed when an application is filed for the declaration mentioned in Section 43 (1) and in Sub-section (6) it is provided that the Board or any other person considering himself aggrieved by the order of the District Judge may within one year of the date of such order institute a suit in a Court of competent jurisdiction to have the order set aside or modified.
Sub-section (7) of Section 43 provides that subject to the final result of any suit instituted under Sub-section (6), the order of the District Judge shall be final.
Section 67 provides as follows:--
"67. (1) If trustee fails without reasonable causes, the burden of proving which shall be upon him, to comply with any order or direction made or issued under Clause (i), (o) or (q) of Sub-section (2) of Section 28 or under Section 58, to comply with the provisions of Sub-section (i) of Section 59, Sub-section (i) of Section 60, Section 61 or Section 62, or to furnish any statement, annual account, estimate, explanation or other document or information relating to the religious trust of which he is the trustee, which he is required or called upon to furnish under any of the provisions of this Act, he shall be punishable with fine which may extend in the case of the first offence, to two hundred rupees, and in the case of the second or any subsequent offence, to five hundred rupees and, in default of payment of the fine, with simple imprisonment for a term which may extend to six months or one year, as the case may be.
(2) The fines realised under Sub-section (1) shall be credited to the Trust Fund."
Section 43, however, was amended by Bihar Act 17 of 1956. Sub-section (1) after amendment stands thus:--
"43. (1) All disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on application by the authority appointed in this behalf by the State Government, by notification, in the official Gazette:
Provided that such authority shall be a person who is, or has been, a member of the Bihar Civil Service (Executive or Judicial Branch) or a member of the Bihar Superior Judicial Service or the Indian Administrative Service."
It is not necessary to quote the provisions of the following sub-sections except Sub-sections (5) and (6) which provide:--
"(5) The Board or any other person, aggrieved by the order of such authority, may, within ninety days of such order, institute a suit in a court of competent jurisdiction to have the order set aside or modified.
(6) Subject to the final result of any suit instituted under Sub-section (5), the order of such authority shall be final and conclusive; and the Court trying the suit shall have no power to stay the enforcement of the order pending the disposal of the suit."
The question for consideration is whether the offences committed by the trustees under Section 67 of the Act can be deemed to have been committed in the event of their failure to answer any notice issued to them before a declaration in regard to the nature of the property, based on a dispute contemplated under Section 43 (1), is made by the authority appointed under that section.
One line of reasoning has been that if a notice is issued under Section 59 to a trustee and he disputes the character of the trust as a public trust and claims that he is trustee only of a private trust and the properties belong to the private trust, this amounts to a dispute as to the nature of the immovable properties belonging to the trust and such a dispute might be decided by the District Judge before the amendment of the Section in 1956, and therefore, necessarily by the authority appointed under this section before the question of prosecuting a trustee for failure to file an account of income and expenses can be held to be valid and legal.
On the other hand, there are some decisions which seem to lay down that when a dispute arises in regard to the character of the trust itself, Section 43 does not come into play; its operation should be confined to a situation in which the character of the trust as a public trust is not disputed and the dispute is confined only to whether certain properties belong to the public trust or not. Reference has been made in this connection at the Bar to the following decisions: 1955 BLJR 665, Mahanth Ramdhan Puri v. President. State Board Religious Trusts, Patna; AIR 1959 SC 951, Mahanth Ram Saroop Dasji v. S. P. Sahi; S. A. No. 1287 of 1959, D/- 26-10-1960 (Pat), Bihar State Board of Religious Trusts v. Laksman Kuer; Cr. Revn. No. 170 of 1961, D/- 24-8-1961 (Pat), Mst. Champa Sahn v. Bihar Religious Trust Board. Patna; (1968) ILR 46 Pat 23, Bihar State Religious Trust Board v. Mahanth Jaleshwar Gir; 1969 BLJR 63, Bihar State Board of Religious Trusts v. Bai Ratan Gir; 1969 BUR 74 = (AIR .1968 Pat 510), Sheo Shankar Choubey v. Bihar Hindu Religious Trust Board; 1969 Pat LJR 386, Parmeshwari Pd. Singh v. Bihar State Board of Hindu Religious Trusts.
3. In the case of Mahanth Ramdhan Puri 1955 BLJR 665 the petitioner in the writ application considered by this Court wrote a letter to the President, Bihar State Board of Religious Trusts, bringing to his notice that the property to be regarded as the trust property by the Board, within the meaning of Section 2 (p) of the Act was not a trust property. The reply to that by the President was that a mere claim by the petitioner that the property in dispute was not trust property could not be sufficient. He was required to produce documentary evidence to satisfy the Board that the properties in question were really the properties of the petitioner or that he should file a regular suit in a Civil Court for a declaration that the properties in question were private properties. In the reply to that letter, the petitioner, Mahanth Ramdhan Puri, asserted further that the properties were not trust properties but the personal properties of the petitioner. After some correspondence between the parties, the petitioner moved the High Court substantially for a declaration that the provisions of the Act did not apply to him or to his properties because the properties were not trust properties at all. On behalf of the Board, however, it was asserted that the properties in dispute were trust properties. It was urged on behalf of the petitioner that there was no provision in the Act under which the question could be determined whether a particular trust was a religious trust within the meaning of the Act or whether a particular property was a trust property. As soon as, therefore, a person made a claim that the property in question was not trust property, the Board had no power to proceed further under the Act. Since a claim like that was made in the above case, the jurisdiction of the Board was ousted. This argument, however, was fully considered with respect to the provisions of the unamended Act and it was held that where the Board determined the question that a particular trust was a religious trust so as to come within the purview of the Act, such determination could be questioned only in a suit properly constituted for that purpose and such a question could not be gone into in a writ application, because it involved investigation of a complicated question of fact. The language of Section 43, as it stood prior to its amendment in 1956, which governed the proceedings in the above case, however, provided for determination of such a dispute in regard to the character of the property, as to whether it was a trust property or a private property, by the District Judge when moved by the Board or any person interested in the religious trust. In that case the petitioner did not take recourse to filing an application before the District Judge for determination of that question, but came straight to the High Court in a writ application. Das, C. J. and Kanhaiya Singh, J., ruled in that case that the writ petition involved determination of question of fact which could not be gone into by the learned Judges of this Court. If the petitioner felt aggrieved by the decision of the Board in regard to the nature of the property, he could institute a suit for such a declaration as to the nature of the property. In that case, since the petitioner came straight to the High Court immediately after the letter was written to him by the President of the Board of Religious Trusts, obviously, he was not legally justified in doing so. No doubt, Section 43 (1) was a part of the Act from its very inception but, in that case, it was only a matter of option for the Board or any person interested in the religious trust to apply to the District Judge for a declaration that any immovable property was a trust property or not.
Unlike that, the amended Section 43 (1) which has been extracted above, however, makes it obligatory, inasmuch as all disputes as to whether any immovable property is or is not a trust property shall be inquired into by the authority appointed in this behalf by the State Government. There is apparent difference in the wording of Section 43 (1) prior to its amendment in 1956 and as it stands thereafter. Going to the District Judge, therefore, was a matter of option under the unamended provision of the Act; but going to the authority appointed under Section 43 now is obligatory for any person when a dispute has arisen as to whether a certain immovable property is or is not a trust property. In the above case, there was no real dispute also between the petitioner and the Religious Trust Board. Section 43 (1) was merely an enabling provision and as such Das, C. J., observed as follows:
"It is clear to me that Section 28 by necessary implication enables the Board to determine, at least prima facie, that a particular trust is a religious trust within the meaning of the Act and that a particular property is trust property. Section 43 of the Act, on which Mr. Baldeva Sahay has relied, is merely an enabling section. It merely enacts that the Board or any person interested in a religious trust may, at any time, apply for a declaration to the District Judge that any immoveable property is trust property. It should be obvious that Section 43 can have no application if the trust is not a religious trust at all. Section 43 applies only when the Act applies. If the Act does not apply, Section 43 can have no application."
In that case reference was also made to an observation of Lord Esher, M. R. in Queen v. Commr. for Spl. Purposes of Income-tax, 1888-21 QBD 313 at p. 319. That, however, was a case in which the observation made was that when an inferior Court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give to that Tribunal or body. The body in question must be a body in the nature of a tribunal as happened in that case. It may be that any quotation in that judgment is not quite apt and Das, C. J. might not be quite right in equating the Religious Trust Board constituted under Section 28 of the Act with an inferior Court or tribunal or quasi-judicial body. The Board is merely an executive body constituted under the Act and it cannot be regarded as a tribunal whose finding of fact may be considered as binding.
In that English case also the tribunal constituted was such a tribunal or quasi-judicial body under Section 133, Chapter 35, Victoria 5 and 6. It related to the power of commissioners for general purposes ordering a refund of overpaid income-tax who could not be regarded as a party to a dispute such as the Board in the instant case. Hence, the observation of Das, C. J. must be understood in the light of the facts of that case that Section 43, as it stood then, was merely an enabling section. Section 43, as it stands, however, after amendment, is of a more obligatory nature inasmuch as the language used is that all such disputes, shall be determined by the authority appointed under Section 43. Under the provisions of the Act, it is the Board that has to issue notice to a trustee, or to one who is regarded as a trustee, of a public religious trust to submit accounts in respect of the income and expenditure of the particular trust. If the person upon whom notice is served to submit an account of income and expenditure, denies his liability to submit such an account inasmuch as the properties alleged to belong to the trust in fact do not belong to it or the trust itself is not a public trust, but a private trust, a dispute arises between the Board and the person who denies the liability. Such a dispute in terms of Section 43 has to be determined by the authority appointed under that section, as the section itself lays down that any party aggrieved by the decision of such an authority has to institute a suit in the Civil Court.
Before any action, therefore, is taken under Section 67 of the Act for starting a prosecution in the event of failure to comply with a direction by the person noticed to do so, the procedure prescribed under Section 43 has to be carried out. If it were correct to hold, as is contended on behalf of the Board before us that the decision of the Board itself is final and the party aggrieved must start a suit against the order of the Board to submit an account of income and expenses on pain of the order of prosecution, then Section 43 (1) is rendered completely nugatory. As a matter of fact, an occasion arose for the amendment of Section 43 (1) and the amendment came to be incorporated in the Act in 1956 only because of the optional nature of the jurisdiction of the District Judge under Section 43 (1) before, which vested some authority in the Board to proceed on a prima facie examination of the character of a trust and any particular property. To stop this loophole which led to some orders being passed by the Board, which were arbitrary, unreasonable and. in any case, based on inadequate material that the legislature felt it necessary to introduce justice into the procedure by appointing a competent individual as an authority under Section 43, who would examine the nature of a trust or of a particular property alleged to belong to the trust, before such a person could be called upon to file an account of income and expenditure or before a prosecution under Section 67 could be started against him. The decision of Das, C. J., therefore, is not relevant in pronouncing upon the merit of the point at issue in the present case, the decision of which turns upon the language of Section 43 (1) as it stands after its amendment.
4. Reference is also made to the case of AIR 1959 SC 951 by learned Counsel for both the parties. That decision lays down that the definition of the expression "religious trust" in Section 2 (1) of the Act does not include private trusts. Hence, it was held that the notice issued by the State Board of Religious Trusts, calling upon the Mahanth, appellant to the Supreme Court, to submit return of income and expenditure under Section 59 was incompetent, inasmuch as the trust in that case was a private trust and, unless it was held to be otherwise, notice under Section 59 could not be issued. The main question for consideration, therefore, was different from the point which has been mooted before us. At p. 959, para 15 of the Report, there occurs a passage in regard to Section 43 of the Act as it stood after its amendment by Act 17 of 1956. The following observation has been made in that para:
"Our attention has been drawn to Section 43 of the Act as amended by Act XVII of 1956. That section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be enquired into, either on its own motion or on an application, by the authority appointed in this behalf by the State Government by notification in the official gazette. Without expressing any opinion as to the constitutional validity of Section 43 of the Act we merely point out that no decision has been given under Section 43 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna asthal and the properties appertaining thereto. It would be open to the respondents to take such steps as may be available to them in law to get it determined by a competent authority that the trust in question is a public trust."
It is true, no doubt, that in that case S. K. Das, J., did not give any clear pronouncement as to whether it was obligatory to take recourse to Section 43 after its amendment; but the indication in the above paragraph of the judgment is to the effect that that was the procedure to be followed before it could be decided as to whether the Salouna asthal was a public religious trust or a private trust and before notice under Section 59 could be issued. If the learned Judge had taken the view that only when it was taken for granted that a certain trust was public trust and then the dispute arose as to whether a certain property belonged to it or not, that the provisions of Section 43 would be attracted and the authority appointed under that section could determine the question and any decision by the Religious Trust Board could be final then the judgment of the Supreme Court should have gone on a different line.
It is remarkable that the judgment of S. K. Das as a Judge of the Patna High Court was given with reference to Section 43 of the Act prior to its amendment when reference to the District Judge was optional, and the judgment of S. K. Das, J., as a Judge of the Supreme Court was given with reference to the amended provision of Section 43. It is clear from the facts of the above case that the scope of Section 43 after its amendment is sufficiently wide to include any dispute which has arisen between the President of the Board of Religious Trusts and the holder of any property, the former issuing notice under Section 59 calling upon the Tatter to furnish a return of income and expenditure and the latter denying his liability to do so, either because the trust itself is not a public trust or in fact there is no trust at all, or any particular property is the personal property of the holder of the trust and does not belong to the trust. All such disputes can be decided by the authority under Section 43 and any party aggrieved by the decision will be at liberty to go to the Civil Court for a declaration to the contrary and pray for injunction etc., or any other interim relief that the situation of the case justifies for the grant of such relief. The contention on behalf of the Board is that the decision of S. K. Das, J., in this case supports the argument that the Board is competent to decide this question compelling the other side to go in for a suit even without taking recourse to Section 43 (1) of the Act. But this is negatived by the above pronouncement of S. K. Das, J., in so far as it goes and, in any case, certainly, it does not support it.
5. The judgment of Ramaswami, C. J., in Second Appeal No. 1287 of 1959 (Pat.) (Supra) related, no doubt, to the scope of Section 43 after its amendment, but that question arose in a suit which was for a declaration that the endowment in question was a private trust and not a public trust. The two courts below came to a finding on examination of oral and documentary evidence adduced by the parties that the endowment was a private trust and not a public trust. It was held accordingly that the provisions of the Bihar Hindu Religious Tnists Act were not applicable to the trust and defendant No. 1, being the Board of Religious Trusts, was not entitled to demand accounts from the plfls. The argument advanced in that case was an extreme one on behalf of the appellant that a suit in the Civil Court did not lie unless the plffs. took recourse to the proceeding under Section 43 of Bihar Act 1 of 1951. It was rightly held, if I may say so with respect, by the learned Single Judge that even if Section 43 provided that all disputes arising between the Religious Trust Board and a trustee in regard to the nature of a property shall be determined by the authority appoint-ed under that section, it did not follow that no suit could be instituted direct by either party for such a declaration. Section 43 of the Act is only a summary proceeding and, before it is resorted to, the subsequent provisions of the Act would not come into play, such as giving notice by the Board to any person to submit account under Section 59 or to start a prosecution under Section 67, but it will be wholly indefensible to urge that a suit cannot be instituted by a party without taking recourse to Section 43. After all, even after a decision under Section 43, the aggrieved party is entitled to institute a suit to get rid of the decision of the authority under Section 43, so that if, instead of taking recourse to Section 43 authority, a party would institute a suit, it cannot be said that the Civil Court has no jurisdiction to entertain it. That exactly was the argument of the Religious Trust Board in the above second appeal which was negatived by Ramaswami, C. J. and, properly understood, this case has no relevance so far as the point at issue in the instant case is concerned.
6. The decision of Choudhary, J., in Criminal Revn. No. 170 of 1961 (Pat.) (supra) lays down the law, if I may say so with respect, correctly. That was a case in which a prosecution under Section 67 of the Act was launched by the Board and the petitioner was convicted and sentenced to pay a fine of Rs. 50/-. In that case resort was not had to Section 43 of the Act and the learned single Judge after having considered the position in detail came to the following conclusion:
"Till there is a decision under Section 43 of the Act, it was not, in my view, legally open to the Munsif-Magistrate to convict the petitioner for violation of the provision of Section 59 (1) of the Act."
7. In the case of (1968) ILR 46 Pat 23, it has been laid down (at p. 29 of the Report):
"It is to be noticed that disputes as to whether a particular property, and that too only when it is immovable, is or is not a property appertaining to a public trust can be enquired into by the authority. That is to say, if the dispute relates to any particular immovable property or properties forming part of or appertaining to a public trust, such a dispute shall be enquired into by the authority either of its own motion or on application of any person. In terms, if a dispute is in regard to the nature of the trust itself, Section 43 is not attracted. In my opinion, nobody can approach the authority, either the Board or the trustee or any other person for a declaration that a particular endowment or trust or institution is not a public trust but a private one, nor can anybody file an application before the authority for a mere declaration that it is a public trust. It may well be that when a question is raised before the authority in regard to a particular immovable property that it appertains to a public trust, by way of answer to such a claim, the person or the trustee may raise a dispute that even though the particular property appertains to the trust, the trust is not a public one, and, therefore, the property should be held as not appertaining to a public trust. Incidentally and indirectly, in such a case the question may arise for the determination of the authority, and, on determination of this question, the ultimate declaration which the authority would be competent to give under Sub-section (3) of Section 43 will be that the property is or is not trust property. But unless the determination of the character of the trust is involved, incidentally and indirectly, the authority, either within the terms of Sub-section (1) or as made expressly clear by the terms of Sub-section (3), has got no jurisdiction to adjudicate purely in regard to the nature of the trust and to give a declaration as to whether it is a public trust or a private trust."
Having thus laid down the proposition, their Lordships held in that case that the prosecution which was launched even without the non-determination of the question as to the nature of the trust by the authority under Section 43, the Bihar Hindu Religious Trusts Act was not a bar to the launching of the prosecution under Section 67 of the Act.
Learned Counsel for the Religious Trust Board has, mainly, relied upon the pronouncement of this court in the above decision, In my opinion, however, the decision does not lend support to that contention. The main point for consideration in that case was that without a dispute being raised with regard to the nature of the immovable property, as to whether it belonged to a public religious trust or not, a proceeding before the authority under Section 43 would not be competent. There can be no doubt with regard to the soundness of this view, as a mere application either by a trustee or by the Board, before the authority under Section 43, for a declaration that a certain religious trust is a public trust or a private trust would not be competent, because the Section refers to a dispute between the parties. Where, however, a notice has been issued by the Board to any person to submit an account of income and expenditure under Section 59, and the person noticed denies that the trust in ques-tion is a public trust or any property belonging to it is public property., a dispute certainly has arisen and such a matter must be referred to that authority under Section 43, before further proceedings under the Act can be taken, i. e., launching a prosecution under Section 67 in the event of failure to file the return within the time allowed cannot be permissible without determination of the question regarding the character of the property under Section 43.
The policy of the Legislature is to avoid harassment or misconceived procedure by the Board against any individual so that before further action is taken, the authority under Section 43, who in its very nature is supposed to be a very experienced judicial or executive officer, has to determine the character of the property taking an impartial and objective view of the rival contentions of the Board and of the person noticed, and it is only after his decision that the question of g iving further notice or prosecution can be held to be competent, unless, in the meantime, the party aggrieved thinks it proper to agitate the question in a regular suit in a Civil Court. The broad observation, however, made in the above judgment by their Lordships cannot be accepted as correct and it has to be examined carefully in order to decide the point raised on behalf of the parties.
8. There can be no question as stated above that if either the Board or any person in charge of the properties, which he apprehends may be subjected to the liability of furnishing a return of income and expenditure, thinks it proper to move the authority under Section 43 for a mere declaration that the trust is a public trust or a private trust, as the case may be, it cannot be regarded as a case of dispute because both the patties, before such a proceeding, have not claimed or denied the character of the property. If the observation of Untwalia. J., in that case is to be construed in that light, it must be stated that Section 43 does not provide a forum for any party to launch a proceeding before any authority as in a declaratory suit. To that extent, therefore, the observation may be held to be correct. It is, however, to be noted that even his Lordship has stated that when a question is raised before an authority in regard to any particular property then the person concerned or the trustee may controvert the claim of the Board either by saying that the property alleged to be the subject-matter of public trust, in fact, does not belong to a public trust but to a private trust, or that it is his personal property even if he is the trustee of a public trust, and in that case, incidentally and indirectly, even the character of the trust may have to be gone into.
To my mind, this observation in itself is an answer to the question as to whether the nature of the trust itself can be gone into in a proceeding before the authority under Section 43, or not. It may well be taken for granted that the contingency which I have set out above of a proceeding being started by either party, simplieiter, for a declaration will rarely arise. It will arise, however, when a notice is issued by the Board to a person to submit a return of income and expenditure under Section 59 or budget under Section 60. Then he is likely to feel aggrieved and the forum provided under Section 43 will be invoked. The observation with regard to the declaration simplieiter, therefore, is more or less of a theoretical nature.
In most cases, the point arises when a notice is issued by the Board for submitting a return and the person in possession of the alleged properties claims them either as belonging to a private trust or a family idol etc., or as belonging to him personally, even though some of the properties may belong to a public trust of which he happens to be the trustee. In the latter event, however, he is bound to respond to the notice in his capacity as a trustee of a public trust, but he may not include the particular property or properties which he would claim as his personal property. In the majority of cases, however, the dispute turns out to be one in which the claim of the trust being a public trust is denied by the person noticed and there the first question to be determined is the character of the trust itself. The observation of Untwalia, J., therefore, has to be modified to this extent that it is not only when the question arises incidentally or indirectly but when a dispute is raised in regard to certain properties; and in fact if there be no property available, there would be no income and no occasion would arise for the Board to issue notice in such a case to such a party, as notice is for filing a return of income and expenditure. Income could be derived only from a property. A property as such may be of any kind belonging to the trust or it may be even income derived from offerings to the idols in the temple, which case also would be covered by the term immovable property. To bold otherwise would amount to saying that the Trust Board would decide ex parte or for itself whether the bolder of certain properties, ostensibly being trust properties, is bound to submit a return of income and expenditure or not, failing which he would expose himself to prosecution or conviction.
It is to be noticed that even the learned Judges in the above case have taken tbe view that this question can be gone into even in a criminal trial for prosecution. That will unnecessarily prolong a criminal case and, in some cases, it may be too difficult for the Magistrate to give a regular finding as to the character of a trust, whether it is public trust or private trust, which is bound to delay the disposal of a simple criminal case. That is why in the report of the Select Committee on the Bihar Hindu Religious Trust (Amendment) Bill, 1955, in Clause 4, it is stated:
"This clause replaces the existing Section 43 by a new section and, in order to ensure expeditious disposal of inquiries, it is provided in Sub-section (1) of the new section that the President of the Board or a member of the Executive Service or Judicial Service, authorised in this behalf, by the State Government, shall have the power to declare any immovable property as a trust property after necessary inquiries and that the order of such authority shall, subject to the result of any civil suit instituted to set aside the order, be final. As we apprehend that difficulties may arise if the President of the Board is authorised to decide a dispute between the board and any private person, we decided that the President should not be so authorised".
The object of this legislation is clearly set out herein and this is also to be borne in mind from the change in the wording of the section as it stood prior to its amendment, which made reference of such a dispute to the District Judge as optional, whereas the word 'may' has now been changed into 'shall in the amended section, indicating thereby the intention of the Legislature to make a general examination of the claims. of the parties obligatory and not left to the option of either side to by-pass it for a further proceeding under the Act itself, although, of course, so far as the civil suit is concerned, it is not necessary that Section 43 must be resorted to because even in Clause (6) of the section it is stated that this is subject to the result of a decision by the Civil Court.
It is as good as saying that a proceeding under Section 145, Code of Criminal Procedure, may be resorted to if the conditions of that section are fulfilled and a decision given by the Magistrate in such a proceeding binds the parties subject to the result of a decision by a competent Court which generally means a Civil Court. A party may not resort to a proceeding under Section 145 and may institute a suit in a Civil Court, as the provisions of Section 145 could be a bar to the institution of such a suit. Likewise, merely because a proceeding under Section 43 is to be launched, it does not debar any party from taking recourse to the more conclusive remedy of a civil suit. The only effect of Section 43, as amended, is that this being a section in the Act itself, no further proceeding under the Act, such as issuing notice under Section 59 or demanding submission of budget under Section 60 or a prosecution under Section 67, can be open to the Board where in answer to the notice under Section 59, the other party denies that it is a public trust of which he is in charge as a trustee or that a particular property is at all a trust property. If it were to be construed as laying down that a prosecution can be started without a proceeding tinder Section 43 so far as the properties in general alleged to belong to a trust are concerned, but if a dispute is confined only to a particular property then and then only Section 43 is obligatory, it will bring about an anomalous result. A relief will be taken to have been granted by the legislature in a partial dispute, but the same relief will be denied when the dispute is more comprehensive. In my opinion, therefore, the observation of the learned Judges, in the above case, that only when it is incidentally or indirectly involved that the character of the trust can be gone into, cannot be regarded as laying down the law correctly in regard to the construction to be put upon Section 43 (1) of the Act
9. There is a particular reason assigned in the judgment which is to be noticed. It has been held that, because Section 43 (1) refers only to an immovable property, if a dispute relates to a movable property then Section 43 is not attracted. This reasoning in order to support the conclusion that the dispute is confined only to a particular property has a fallacy in it, inasmuch as if move-able properties are not included in a summary proceeding, it is because in a summary proceeding it is difficult to give a finding on movable properties since seldom any document would be available for or against holding such properties as belonging personally to the trustee or belonging to the public trust, if there be any. Unlike movable property, in the case of immovable property, documents may be available on which the authority under Section 43, holding a summary enquiry, as it is supposed to be, may come to some kind of reliable conclusion, even though on the matter being examined by the Civil Court in a regular suit, the decision may be set aside. The reason why movable property is not brought in the category of Section 43 is not that only particular properties are subjected to scrutiny under that Section but because there is an essential difference in the nature of the two kinds of properties and the kind of proof required in support of the claim from either party. In a Civil Court, after detailed cross-examination, the point may be proved as to whether move-able property standing in the name of the deity or institution, or in the name of the trustee, can be safely held to be trust property or the personal property of the trustee.
10. In the case of 1969 BLJR 63 reference, no doubt, has been made to the case of Mahant Jaleshwar Gir, (1968) ILR 46 Pat 23, but, on a careful examination of the facts, it appears that in that case it was held that where an authority under Section 43 had no jurisdiction to pass an order, the question of limitation provided in that section would not arise for a civil suit. In that case two brothers were co-trustees and defendant No. 2 Surajbhan Gir, brother of the plaintiffs, was not pulling on well with them. He answered a notice issued by the authority under Section 43 of the Act and suffered an order on the 30th of May, 1958, to be passed by the same authority to the effect that Dhankutwa Math and the suit properties appertaining thereto were trust properties within the mean-Ing of the Act. When the other brothers, being the plaintiffs, came to know of it, they filed a suit but beyond ninety days from the date of the order passed by the authority under Section 43, It was urged on behalf of the Board in that case that the suit was barred. Their Lordships negatived the contention and held that the plaintiffs were not even aware of the proceeding and, apparently, they were not served with notice either, so that an order passed under Section 43 by the authority concerned could not have the effect of debarring persons who had no notice at all of the proceeding from instituting a regular suit and the question of limitation, therefore, could not arise so far as they were concerned. It is true, no doubt, as I have said, that they referred approvingly to the above judgment of Untwalia, J., but since the question did not directly arise for consideration, the facts being different, the principle of law laid down in that case is clearly distinguishable.
11. In the case of Sheo Shankar Chou-bey, 1969 BLJR 74 = (AIR 1968 Pat 510), which is a judgment of Shambhu Prasad Singh, J., to which R. K. Choudhury, J., also was a party, the question for consideration was the power of the High Court to revise under Section 115, Code of Civil Procedure, an order passed by an authority appointed under Section 43 and whether such an authority would be regarded as a Court subordinate to the High Court, although in that judgment also reference has been made to the case of Mahanth jaleshwar Gir, (1968) ILR 46 Pat. 23, referred to above, and the passage I have quoted has been relied upon.
12. In the case of Parmeshwari Pd. Singh, 1969 Pat LJR 386 one of the learned Judges, no doubt, held that a tribunal of limited jurisdiction could not go into the question of title or similar questions. If at all, it could go indirectly and incidentally into these questions in appropriate cases, but the question could not be taken up directly and reference has been made to the case of Mahant Jaleshwar Gir, (1968) ILR 46 Pat 23. The other learned Judge, however, observed that the authority under Section 43 of the Act can decide in appropriate cases the nature of the trust when a dispute is raised in respect of immovable property or properties as to whether it or they appertain to public religious trust or not. After having expressed his opinion like this, however, the learned Judge felt bound by the opinion of the Division Bench and held that the question of title could not be directly decided. The learned Judge, if I may say so with respect, has, however, exhaustively considered the decisions on this point and has come to the correct conclusion in holding that the authority under Section 43 of the Act can decide in appropriate cases even the nature of the trust where a dispute is raised in respect of an immovable property, for the reasons stated above, it seems to me clear that the contention raised on behalf of the petitioners must be accepted and the prosecution launched against them before submitting the matter for consideration by the authority under Section 43 of the Act quashed. I hold that the opinion expressed by Choudhury, J., 1969 BLJR 74 = (AIR 1968 Pat 510) and B. N. Jha, J., 1969 Pat LJR 386 must be accepted as correct, and the contrary observations in the other judgments cannot be taken to be correct law.
13. It is not necessary to state in detail the facts of the two criminal miscellaneous cases since the point involved for consideration in all the three cases is common. It is, however, sufficient to state a few salient facts as follows:--
14. In Criminal Miscellaneous Case No. 1181 of 1969 the petitioner claimed to be the sole Shebait of a temple in village Basar-hia, in the district of Darbhanga. Notice was issued by the Board to the petitioner to submit an account of income and expenditure. The petitioner, however, did not submit the account demanded on the ground that the property of which the return was sought was not trust property, that there had been no declaration under Section 43 of the Act and that, without there being such a declaration, there could be no notice under Section 59 nor could the petitioner be prosecuted under Section 67 of the Act. Hence, prayer was made for quashing annexures 1 and 2.
15. In Criminal Miscellaneous Case No. 1182 of 1969 the petitioner claimed to be the sole Shebait of a temple in village Basgarhia, in the district of Purnea. Notice was issued to him by the Board calling for return under Section 59 of the Act for the years from 1951 onwards. The petitioner has claimed that he was the sole Shebait of the temple within the family dwelling house of the petitioner with which the public have no concern and as such the petitioner is not liable to render an account of the income and expenditure; and although the petitioner prayed to the Board that before further proceeding could be taken, the matter should be placed before the authority under Section 43 of the Act, his prayer was ignored and a criminal case was instituted against him on the basis of a complaint petition (annexure 2). He prayed accordingly that the notice issued to the petitioner (annexure 1) and the complaint lodged (annexure 2) in the Court of the Munsif Magistrate, First Class, Patna, be quashed.
16. In the result, all the three applications are allowed and the notices issued to the petitioners to submit an account of income and expenditure and the prosecutions launched against them in all the cases are quashed.
Before, however, I part with this case, I may state that learned Counsel for the Board has urged that although the procedure is intended to be of a nature, in Sub-section (3), the language is so broad as to allow any amount of unnecessary evidence including oral evidence being led which has the effect of prolonging the proceeding and the Board is rendered helpless in the matter of taking any step. Sub-section (3) of Section 43 runs thus:--
"Such authority shall after taking into consideration the claims, if any, filed under Sub-section (2) and after hearing the parties and taking such evidence as may be adduced before him, declare whether the property is a trust property and, if it is so, the trust to which it belongs and shall make an order accordingly."
It is true, no doubt, that the expression "taking such evidence as may be adduced before him" widens the scope of the enquiry and prolongs the proceeding, but it is not for the law Court to say anything to curtail the proceeding. It is for the Legislature to see whether in view of the terms of Sub-section (3) the summary character of the enquiry is not really taken away by such a procedure and whether it might not be more desirable to confine it to documentary evidence or such oral evidence on affidavit as the parties may think it desirable to put in, as is done in a proceeding under Section 145, Code of Criminal Procedure, and any party aggrieved by such an order may institute a suit in a Court of competent jurisdiction to have the order set aside or modified. That, however, is hardly a ground for giving a different interpretation to Section 43 than how it should be properly construed.
S.N.P. Singh, J.
17. I agree.
G.N. Prasad, J.
18. I have had the advantage of perusing the judgment prepared by my Lord, the Chief Justice, and I find myself in agreement with all that has been said therein. I wish, however, to lay stress upon "All disputes" which are the opening words of Section 43, as amended in 1956. These words did not occur in the old section, land they are undoubtedly intended to with the scope of the enquiry envisaged under the section as it now stands. In my judgment, a dispute as to whether any item of immovable property is or is not a trust property may involve two questions-- (i) whether it appertains to a trust or is somebody's personal property; and, (ii) whether the trust to which it is said to appertain is a public trust or a private trust. Where the public character of a trust is not in dispute, only the first of these questions will arise for determination by the "authority". But where the public character of the trust is in dispute, the "authority" will have also to decide the second question. I find no justification for holding that the words "All disputes" do not cover a dispute with regard to the true character of the trust.