Calcutta High Court (Appellete Side)
Ram Babu Yadav & Ors vs Managing Committee on 10 October, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present : The Hon'ble Justice Shivakant Prasad
C.O. 2653 of 2015
Ram Babu Yadav & Ors.
Vs.
Managing Committee, Arsh Vidya Niketan & Anr.
For the Petitioner Nos. 1 to 3 : Mr. JibanRatanChatterjee,Sr.Advocate
Mr. Hiranmoy Bhattacharyya
Mr. Tanmoy Mukherjee
For the Petitioner No. 4 : Mr. Kazi Safiullah
For the Opposite Party No. 1 : Mr. Sukumar Bhattacharya
For the Opposite Party No. 2 : Mr. Saptangshu Basu, Sr.Advocate
Mr. Sarthi Dasgupta
Miss. Aritra Chakraborty
CAV On : 31.08.2018
Judgment On : 10.10.2018
SHIVAKANT PRASAD, J.
Petitioners have assailed the impugned order dated 18.11.2014 passed by learned District Judge, 24-Parganas (South) at Alipore in Misc. Case No. 349 of 2013 whereby the permission to sell the property belonging to the trust was allowed on the application under Section 34 of Indian Trust Act.
Thus the subject matter of challenge in this revisional application is the order dated 18.11.2014 passed by District Judge, 24 Parganas(S), Alipore in Misc. Case No. 349 of 2013 whereby the Members of the Managing Committee made an application under Section 34 of the Indian Trust Act, 1882 (hereinafter referred to as the Act of 1882) to sell property belong to the Trust.
Petitioners specific case is that on 04.4.2015 one Shamim Anwar Khan i.e. the Opposite Party No. 2 herein along with his men and agents came to the temple to take forcible possession of the property of the deity. On being resisted by the devotees, followers and disciples of the Ashram, the said the Opposite Party No. 2 claimed to have purchased the property but he could not take possession of the same.
On 05.4.2015 the local people assembled in the temple premises to protest against the attempt to take illegal possession of the temple and the other properties belonging to the deity. The fact of protest made by the local people was also published in various local newspapers on 06.4.2015.
It is further submitted that petitioners are the persons interested in protection of the properties of the deity. They have come to know that one Arunava Banerjee claims himself to be the President of the Managing Committee of Arsh Vidya Niketan on whose application under Section 34 of the Indian Trust Act, Misc. Case No. 349 of 2013 was registered before the District Judge at Alipore. They also learnt after searches in various courts at Varanasi that a suit being No. 584 of 2008 was filed by one Ashoke Kumar Chakraborty claiming to be the trustee and shebait of Arsh Vidya Niketan Trust in the court of Civil Judge (Junior Division), Varanasi City. In the said suit the said Arunava Banerjee was party defendant No. 6 and an order of injunction dated 21.9.2010 was passed restraining the defendants Nos. 5 and 6 namely, Amitava Banerjee and Arunava Banerjee from transferring and/or alienating the suit property which order stood extended from time to time and the same was in force till the disposal of the suit on 18.01.2015.
Further on necessary searches in various registration offices, petitioners have come to know that the Opposite Party No.1 herein has executed two sale deeds on 04.02.2015 thereby transferring the property in question in favour of the Opposite Party No. 2.
On behalf of the Opposite Party No. 1 following facts are pleaded by way of rebuttal :-
a) Arsh Vidya Niketan at Varanasi is not a unit of Sadhan Samar Ashram. It is stated that Satya Deva-III Jatiraj Brahmachari was Acharya of the Arsh Vidya Niketan and had been residing within the premises of Arsh Vidya Niketan.
b) Satya Deva-II Biswaranjan Brahmachari, who was Acharya of Sadhan Samar Ashram by written instructions nominated Satya Deva-III Jatiraj Brahmachari as the next Acharya of Sadhan Ashram from the moment of demise of Satya Deva-II Biswaranjan Brahmachari.
c) On the basis of the said nomination the disciples of Sadhan Samar Ashram in a meeting assembled at the Ashram premises at Baranagar 24 Parganas, Bengal, on 5th December, 1937, Satya Deva-III Jatiraj Brahmachari was declared as the Acharya of Sadhan Samar Ashram and by virtue of the said nomination all movable and immovable properties belonging to Sadhan Samar Ashram at various places vested to Satya Deva-III Jatiraj Brahmachari as Acharya.
d) The Sadhan Samar Ashram by the said Deed of Declaration of Trust made on 2nd April, 1938 declared Sadhan Samar Ashram as a Trust for Seva and Worship of Almighty and to install the image of Lord Shiva.
e) Arsh Vidya Niketan was founded much earlier as a private non-religious trust than Sadhan Samar Ashram which was declared as a trust in or about 1938.
f) The property belonging to Arsh Vidya Niketan was purchased in or about 1933-1934 by virtue of sale deed and it was purchased for the purpose of residence of Acharya of Arsh Vidya Niketan.
It is submitted that the petitioners are neither contributors nor they are performing any seva puja or other festival in premises of Sadhan Samar Ashram. It is also pointed out that the petitioners are neither the trustee nor any beneficiary of said Arsh Vidya Niketan Trust. Thus, prayed for dismissal of the revisional application in limine.
Mr. Sukumar Bhattacharya learned Advocate for the Opposite Party No. 1 submitted that the petitioners have not explained the delay in moving this revisional application to argue that the application is barred by limitation as the time to file the application expired much before 21st July, 2015, when the application was affirmed on affidavit.
Mr. Bhattacharya specifically submitted that the Trust in question is a non religious private trust all through managed and controlled from Calcutta situated within the jurisdiction of Alipore, Kolkata and the learned District Judge had jurisdiction to entertain the application under Section 34 Trust Act, 1882 and has further challenged the locus of the petitioners.
It is also urged that the petitioners were not made parties in the application under Section 34 of Trust Act. So they cannot challenge the order in this revision without obtaining leave from this Hon'ble Court.
As regards jurisdiction, Mr. Jiban Ratan Chatterjee learned Sr. Advocate for the petitioners invited my attention to take note of the fact that the property is situated in Varanasi city in the State of Uttar Pradesh and no notice in Hindi Newspaper was circulated in Varanasi city or in the State of Uttar Pradesh with regard to the miscellaneous case under Section 34 of Indian Trust Act filed by the Opposite Party No.1. The valuation report does not depict the correct valuation of the suit property. So the learned Court below has illegally exercised his jurisdiction directing the sale of Deity's property at Rs.1,09,86,000.
Thus in this revisional application, the moot issues which fall for consideration are:
1) Whether learned Judge entertained the application under Section 34 of Indian Trust Act in excess of his jurisdiction?
2) Whether the revisional application is barred by limitation?
3) Whether the petitioners have any locus to challenge the order impugned?
4) Whether the Endowment is a Hindu Religious and Charitable Endowment public in nature?
Mr. Chatterjee, at the outset submitted that Clause 5 of Schedule III of the Deed of Declaration of Trust dated 02.4.1938 states that the Shebait should not be entitled to alienate by gift or sale any of the endowed properties nor should he be entitled to purchase any property in his own name or in the benami of others. It is also revealed from the said clause that if any purchase is made by the Shebait, the same should be deemed to be the property of the deity and any personal claim, if made, should be rejected.
It is also contended that the property in question is a Hindu Religious and Charitable Public Trust and the general public comes to the temple to offer puja to the deity and contribute to the fund for performing the daily Seva Puja and other festivals performed in the said temple. It is alleged that Opposite Party No. 1 obtained permission for sale of property situated in Varanasi during subsistence of an order of injunction in respect of the property in question passed by the learned Civil Judge (Junior Division) Varanasi which fact was suppressed by the Opposite Party No. 1 to practice fraud on the Court.
It is also argued that the title suit being No.584 of 2008 was filed by one Ashoke Kumar Chaterjee claiming to be one of the trustees of said Vidya Niketan before the learned Civil Judge Junior Division Varanasi Uttar Pradesh, and prayed for an order of injunction restraining the defendant nos. 5 and 6 namely, Amitava Banerjee and Arunava Banerjee from transferring and alienating the property being house No. B- 17/62- IJKL, Mohalla Tilbhandeswar, Varanasi City, belonging to Arsh Vidya Niketan and an order of injunction dated 21st September 2010 was passed restraining the defendants from transferring and alienating the suit property and to maintain status quo and it was extended but the plaintiff suit was dismissed as withdrawn.
Mr. Bhattacharya adverting to the provision of Section 34 of Indian Trust Act argued that it deals with the right to apply to Court for opinion in management of trust property. It provides thus-
"Any trustee may, without instituting a suit, apply by petition to a Principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.
A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
The trustee stating in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application.
The costs of every application under this section shall be in the discretion of the Court to which it is made."
On the issue whether the Endowment is a Hindu Religious and Charitable Endowment public in nature, it is important to take note of the concept of Public vis-à-vis private trusts When the beneficial interest is limited to specified individuals or definitely ascertainable individuals, it is a private trust. The most common example of a private trust is when a person creates a trust by deed or will providing for the enjoyment of the property by the members of his family and descendants. On the contrary, the essence of a public trust lies in its being for the benefit of the public as a whole or of a section of the public and its performance. So, in the private trusts the beneficial interest is vested in one or more individuals or who within a definite time can be ascertained. In public trusts the beneficial interest is vested in uncertain and fluctuating body of persons.
Mr. Bhattacharya pleaded that Biswaranjan Brahmachari during his lifetime dedicated the property in question for seva puja of almighty expressing his desire to install the image of almighty Lord Shiva after construction of temple and also residence of Shebaits.
By the Trust Deed dated 2nd April, 1938, the founder appointed a committee of management for supervision of the seva of the deity providing rules and regulations.
Clause 5 of the said Trust Deed provided restriction to sell, gift and / or transfer.
Petitioners in revision claim themselves as devotees and visitors to the Temple. They contribute funds for performing regular seva puja and other festivals.
The petitioner's specific contention is that the endowment in question is a Hindu religious and charitable endowment and is public in nature. The general public contribute fund for performing daily seva pujas and other festivals.
Mr. Bhattacharya contended that the petitioners do not have locus standi to challenge either the authority of the Opposite Party No. 1 or the impugned order in revision.
In so far as the issue raised with regard to the jurisdiction is concerned the Opposite Party No. 1 had averred in paragraph - 2 of his application under Section 34 of the Trust Act, 1882 to show the jurisdiction of the District Judge Alipore to entertain the said application because the office of the Shebait is situated in 62/B Hindustan Park, Kolkata-700029 within the jurisdiction of District Judge 24 Parganas South.
Accordingly it is submitted on behalf of the Opposite Party No. 1 that the revisional application is liable to be rejected on the ground of properly not explaining the reason as to why the petitioners have not come within reasonable time and further not providing any documents or evidence.
To fortify the argument on the issue of limitation, reliance is placed on the observation in paragraph 4 of a decision in case of Bithika Mazumdar & Anr Vs. Sagar Pal & Ors. reported in (2017) 2 SCC 748 which reads thus-
"4. It is an admitted position in law that no limitation is prescribed for filing application under Article 227 of the Constitution. Of course, the petitioner who files such a petition is supposed to file the same without unreasonable delay and if there is a delay that should be duly and satisfactorily explained. In the facts of the present case, we find that the High Court has dismissed the said petition by observing that though there is no statutory period of limitation prescribed, such a petition should be filed within a period of limitation as prescribed for applications under Sections 115 of the Code of Civil Procedure. This approach of the High Court cannot be countenanced. As mentioned above, in the absence of any limitation period, if the petition is filed with some delay but at the same time, the petitioner gives satisfactory explanation thereof, the petition should be entertained on merits."
I have respectfully considered the principle held therein to hold that no period of limitation is prescribed for filing petition under Article 227 of the Constitution of India if satisfactory explanation is given for delay, such petition is entertainable on its merits. Therefore, this revision cannot be held as barred by limitation.
Next it is urged that the petitioners though not made parties in the original application even then they challenged the order in revision without obtaining leave from this Hon'ble Court. It is contended that there is no dispute that an aggrieved party can challenge an order but he has to first obtain leave and if leave is granted then only they can challenge the said order.
I find that this revisional application has been filed on 22.07.2015 and registered as C.O 2653/15 and while This revisional application was registered on its admission the Opposite Party No. 2 was restrained from transferring or alienating and selling the subject property and from changing the nature and character of the same by order dated 01.10.2015. So, it cannot be said that there has been abuse of the process of law for not having taken leave to prefer the instant revision. Therefore, the application cannot be dismissed on this score.
As regard Locus of the petitioners, learned Advocates for the opposite parties submitted that the petitioners have only made statements that this is a religious and charitable endowment without producing any documents and/or evidence in support that this is a religious and charitable endowment. Clause 14 of the endowment specifically provides as to who can challenge the action of the members of the Managing Committee, it is only restricted to the members of the Managing Committee and disciples of the Ashram. The petitioners may claim themselves as devotees of Lord Shiva but they are not the disciples of Biswaranjan Brahmachari. Therefore, the petitioners being the devotees of Lord Shiva do not have any authority to challenge any act of the members of the Managing Committee. Further more unless the petitioners prove by adducing evidence that the present trust is a religious and charitable trust and the public has a right in the trust property and the trust-in-question is a public trust, the petitioners have no right to challenge the act of the members of the Managing Committee. The Act 1882 is applicable only in respect of the private trust and not to the public and religious and charitable trust.
In this connection Sections 1 and 34 of the Act 1882 are reproduced hereunder -
Section 1. "This Act may be called the Indian Trusts Act, 1882 and it shall come into force on the first day of March, 1882. Local extent. It extends to the whole of India, except the State of Jammu and Kashmir, and the Andaman and Nicobar Islands; but the Central Government may, from time to time, by notification in the Official Gazette, extend it to the Andaman and Nicobar Islands or to any part thereof.
Savings. But nothing herein contained affects the rules of Mohammadan Law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors and nothing in the Second Chapter of this Act applies to trusts created before the said day."
Section 34. Right to apply to Court for opinion in management of trust property.
"Any trustee may, without instituting a suit, apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting the management or administration of the trust property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal.
A copy of such petition shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court thinks fit.
The trustee staing in good faith the facts in such petition and acting upon the opinion, advice or direction given by the Court shall be deemed so far as regards his own responsibility, to have discharged his duty as such trustee in the subject-matter of the application. The costs of every application under this section shall be in the discretion of the Court to which it is made."
Mr. Chatterjee draws my attention to the orders passed in the miscellaneous case 349 of 2013 wherein the impugned order has been passed. It would appear from order dated 03.10.2013 that the Opposite Party No.1/the petitioner in the said case had not filed any document regarding the said property, the Deed of Trust upon the said trust property or the copy of the agreement for sale with the intending purchaser and Opposite Party No.1 was directed to file the said document by 05.12.2013. A Xerox copy of some document was filed on 17.01.2014. The order sheet also reflects that a general notice was directed to be published in a daily reputed newspaper vide order dated 03.7.2014 but the order sheet does not reflect the compliance of the order by publication of general notice in a daily reputed newspaper widely circulated to the knowledge of the public at large. Though a newspaper was filed on 12.8.2014. The order dated 09.9.2014 shows that consideration money shown as 13 lakhs for sale of 13 kottah, 3 chittak, 5 squire at Varanasi city, U.P. was considered low. So the petitioner was directed to file valuation report of the land in question by 18.9.2014 on which day the opposite party no. 1 filed valuer report but still learned Judge did not accept the same and directed for govt. valuation report for valuation of the case. It is curious to note that on the adjourned date on 18.11.2014 the learned judge allowed the miscellaneous case in favour of the President of the Managing Committee of Arsh Vidya Niketan to sell the property at a consideration not below Rs. 1,09,86,000/-(Rupees One crore nine lakhs eighty six thousand).
On behalf of the Opposite Party No. 2 Mr. Saptangshu Basu, Sr. Advocate submitted that subject matter of challenge is whether Trust Act 1882 is applicable or not. If it is applicable since it is a private trust, the Court had rightly passed the order and whether the order has been complied with in its letter and spirit is a matter between the Court and the party in whose favour the order has been passed. The act of the members of the Managing Committee cannot be challenged by the petitioners in revision that too without obtaining any leave to move. It is also argued that the revisionists are strangers to the proceeding in Misc. Case No. 349 of 2013 before the Learned District Judge, South 24 Parganas at Alipore.
Mr. Basu argued that extraordinary jurisdiction of this High Court under Article 227 ought not to be exercised for the reasons that the finding of the Learned Court that the Opposite Party No. 1 is entitled to apply under Section 34 of the Indian Trusts Act, 1882 is a finding of fact. As such, the order impugned cannot be said to have been passed by the said Learned Court in excess of its jurisdiction or out stepping the limits of its jurisdiction. Mr. Basu relied on a decision in case of Nibaran Chandra Vs. Mahendra Nath reported in AIR 1963 SC 1895, on the observation in paragraph 12 thereof to argue that the jurisdiction conferred by Article 227 of the Constitution is not by any means appellate in its nature for correcting errors in the decision of subordinate Courts or Tribunals but it is merely a power of superintendence to be used to keep them within the bounds of their authority.
It is also submitted that the impugned order cannot be by any means said to be based on no evidence and whether or not such evidence was satisfactory or sufficient for justifying such conclusion is not a question which falls to be considered under Article 227 of the Constitution of India and placed reliance on a decision in case of The State of Orissa and Anr. Vs. Murlidhar Jena reported in AIR 1963 SC 404, at paragraph 14 thereof, and in case of Nibaran Chandra Bag Vs. Mahendra Nath Ghughu (deceased) reported in AIR 1963 SC 1895 at Paragraph 17 to fortify similar argument that jurisdiction conferred by Article 227 is not by any means appellate in its nature for correcting errors in the decision of subordinate Courts but is merely a power of superintendence.
Reference is also made to a case of Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and Anr. reported in AIR 1975 SC 1297 to the observation in paragraph 7 which reads thus-
7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath1 that the "... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee2 to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors." This statement of law was quoted with approval in a subsequent decision of this Court in Nagendra Nath Bora v. Commissioner of Hills Division3 and it was pointed out by Sinha, J., as he then was, speaking on behalf of the Court in that case:
"It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi- judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the Tribunal functions within the limits of its authority."
It would, therefore, be seen that the High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it. What Morris, L.J. said in Rex v. Northumberland Compensation Appeal Tribunal4 in regard to the scope and ambit of certiorari jurisdiction must apply equally in relation to exercise of jurisdiction under Article 227. That jurisdiction cannot be exercised "as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings".
If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts."
Per contra - Mr. Chatterjee relied on a decision in case of Kishore Kumar Khaitan & Anr. Vs. Praveen Kumar Singh reported in AIR 2006 SCC 1474 to argue that supervisory jurisdiction under Article 227, interference to the finding of fact for its correction can be had if the finding of fact reached by the subordinate Court is improper. It is held thus-
"The jurisdiction under Article 227 may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a Court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction."
Reliance is also placed in case of Radhey Shyam and Another Vs. Chhabi Nath and Others reported in (2015) 5 SCC 423 wherein three Judge Bench of the Hon'ble Apex Court has held that all the Courts in the jurisdiction of a High Court are subordinate to it and subject to its control and supervision under Article 227. It is further held that orders of the civil Court stand on a different footing from the orders of authorities or tribunals or courts other than judicial/civil courts. Thus judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution of India.
Yet Mr. Chatterjee placed reliance on a decision of K.V.S. Ram Vs. Bangalore Metropolitan Transport Corporation reported in (2015) 12 SCC 39 to argue that the High Court can interfere with order of Tribunal and Courts subordinate to it in exercise of jurisdiction in Article 227 when there is patent perversity in orders of the Tribunal and Courts subordinate to it and where there is gross and manifest failure of justice or principles of natural justice have been flouted, by adverting my attention to the orders passed in Misc. Case No. 349/2013 under Section 34 of the Trust Act.
Therefore, I am unable to accept the contentions of learned Advocates for the opposite parties that this Court cannot exercise its extraordinary jurisdiction under Article 227 of the Constitution. Having said that, it cannot be said that it will amount to convert it into a forum of appeal in view of latest decisions in Radhey Shyam & Another, and K.V.S. Ram (supra). The decision reported in (2010) 8 SCC 329 referred to by Mr. Basu contending that in exercise of powers under Article 227 of the Constitution of India, the Hon'ble Court cannot correct mere errors of law or fact just because another view was possible in my view is distinguishable from the facts of the instant case.
As regards the issue as to whether the endowment is a Hindu Religious and charitable endowment public in nature Mr. Chatterjee invites my attention to the deed of declaration of Trust dated 02.04.1938 by Satya Dev II Jatiraj Brahmachari Acharjya of the Sadhan Samar Ashram which depicts that after he departed his life on 4th Agrahayan 1344 B.S. corresponding to the 20th November 1937 in Calcutta, Jatiraj Bramhachari was nominated being chella of Satya Dev Bramhachari. Rules and regulations for Deva Seva and Management of the endowed properties as prescribed by the Late Biswaranjan Brahmachari shows that he was the first Shebait of the deity and bound by the rules which should also be binding upon the succeeding Shebaits. Relevant rules 4, 5 and 14 are quoted hereunder for profitable appreciation of the case as to whether it is a private or public religious endowment.
"4. The said Biswaranjan Brahmachari would be entitled to nominate as his heir or successor-in-office any disciple of the Sadan Samar Asram or the Arsha Vidya niketan, the succeeding Shebait of this temple and Asram would, in his turn, be entitled to, and should, nominate any fit person belonging to the Asram as his heir or successor in office and he would be vested with all the powers of the first Shebait as regards worship management and nomination etc.
5. The Shebait should not be entitled to alienate by gift or sale any of the endowed properties nor should he be entitled to purchase any property in his own name or in the benami of others; if done the same should be deemed to be the property of the Deity; any such personal claim, if made, should be rejected.
14. If any member of the Committee does anything objectionable or acts against the interect of the temple and the Asram the other members of the Committee should be entitled to remove him and appoint any other fit person from among the disciples of the Asram as a member in his place."
In AIR 1985 SC 905, Shambhu Charan Shukla Vs. Shri Thakur Ladli Radha Chandra Madan Gopalji Maharaj and Another, it has been held that a sale by a Shebait or mohunt authorized to manage debuttar property is void, even though the transfer may be coupled with an obligation to manage the affairs.
In Shriomani Gurudwara Prabandhak Committee, Amritsar Vs. Shri Som Nath Dass & Others repoted in AIR 2000 SC 1421 the Hon'ble Supreme Court has held that the Deity is a minor and if the property is dedicated for the religious purposes, welfare of the Deity could be looked into by the Shebait/Sarvakar/Manager appointed in accordance with the Deed of Dedication or by the Management as guardian of deity because a deity is a perpetual minor and never attains majority and always remains minor. Any transfer made against the interest of the deity will be void as other minors may attain majority, but deity cannot.
In case of Thayarammal (dead) by LR. Vs. Kanakammal and Others reported in (2005) 1 SCC 457, has held that the Trusts Act, 1882 is applicable only to private trusts and not to public trusts.
In case of Sri Sri Lakshmi Janardan Thakur and Ors. Vs. Collector under Section 54 of the W.B.L.R. Act and District Land and Land Reforms Officer and Ors. reported in 2004 (2) CHN 519, it has been observed with reference to the "Principles of Hindu Law" (17th Edition, 1998) that "Religious endowments are either public or private. In a public endowment the dedication is for the use and benefit of the public. The essential distinction between a public and private endowment is that, in the former the beneficial interest is vested in an uncertain and a fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private endowment the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained."
In the cited decision it was held that endowment was private in nature as requirements for holding endowment of public nature was not satisfied.
In the instant case, having considered the respective submission of the learned Advocates of the parties and having regard to the dedication of the trust properties to the deity almighty Lord Shiva and further considering the Clause 5 of the Trust Deed of 1938 and also considering the orders passed by the learned District Judge on an application under Section 34 of the Trust Act 1882 and finding that original deeds could not be placed before him to decide upon the nature of the grant and on bare reading of the averments in application under Section 34 of the Trust Act 1882, I hold that the properties in question belong to public religious trust and is Hindu religious and charitable endowment public in nature. It would also appear that orders were obtained by the opposite party no. 1 herein for the sale of deities property in question without impleading the deity and, therefore, this Court is of the considered opinion that sale deed executed by the opposite party no. 1 is void and cannot confer right to the transferee opposite party no. 2 and the order impugned shall not be binding on the deity because the opposite parties have attempted to corner the properties in question to themselves to make undue gains for themselves by selling the properties. The endowment was for a religious purpose, conducting of pujas in the temples and maintenance of the temples. And the endowment was of public in nature for the seva puja of almighty Lord Shiva. It was clearly a case of public religious endowment and by virtue of Section 1 of the Act, the Trust Act, 1882 would have no application as it does not come within the purview of the Trust Act, 1882. So, alienation is hit by Section 34 of Trust Act, 1882. Such a transaction is clearly seen to be not in good faith. The jurisdiction under Section 34 of the Act is advisory. The Court should have satisfied itself of the need for sale and the property of the sale proposed.
The mere pleas that it was difficult to protect the property and that there was financial crisis in maintaining the old dilapidated condition were by themselves not grounds to direct or permit the sale. The order impugned is thus deprecated and is liable to be set aside.
In the context of the discussion herein above, the order dated 18.11.2014 passed in Misc. Case No. 349 of 2013 by learned District Judge, Alipore, 24 Parganas (south) is hereby set aside.
The revisional application being no 2653 of 2015 is thus allowed, however, without any order as to cost.
Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)