Patna High Court
The Pavitra Kuer Thakur Ram Jayaswal And ... vs The State Of Bihar And Ors. on 27 June, 2002
Equivalent citations: AIR2003PAT54, 2003(51)BLJR317, AIR 2003 PATNA 54, (2002) 4 PAT LJR 578 2003 BLJR 1 317, 2003 BLJR 1 317
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. Heard learned Counsel for the parties.
2. By this petition under Article 226 of the Constitution of India, petitioners seek to challenge correctness, validity and propriety of letter dated 8-1-2002 as contained in Annexure-2.
3. The brief facts leading to the present controversy in nutshell are that certain properties were purchased by the erstwhile owners under Annexure-D for raising and constructing a Dharamshala (INN). It appears that a private trust was created for managing the said property and with the passage of time the different members in the family started putting their claims over the management and the property. It also appears that the charitable cause of the public trust in fact became a cause between the different branches as each of them was interested in the earnings and the value of the property. One of the co-own ers/trustees under his application dated 23-3-1998 submitted to the President, Religious Trust Board that under a particular document the property was purchased; a Dharamshala -was constructed. It was used by the passengers and some of the trustees were mismanaging the property and in fact were misusing the earnings of the said property. He further submitted in his complaint (Annexure-A) that name of Dharamshala was changed and it ws named as a 'Athitishala Bhawan'. He submitted to the President that in accordance with pious wishes of his ancestors, he wanted to run the Dharamshala to serve the public and if he was so appointed by the present Religious Trust Board, he would manage the property properly. It appears that on 20-6-1998 Assistant Superintendent issued a notice to the complainant Sonelal Jaiswal asking him to submit documents to substantiate his claim. On 22-6-98 a letter was issued by the said Assistant Superintendent to Gopal Prasad Jaiswal, Madhu Prasad Jaiswal and Pradip Kumar Jaiswal, inter alia, asking them that documents in relation to the said Dharamshala be submitted before the Court on 10-7-1998 along with the accounts for the period between 1951-52 to 1997-98 and also budget for the year 1998-99. It was also made clear that if the order is not observed, action under the provisions of Bihar Hindu Religious Trust Act would be taken it appears that before issuing the said letter dated 22-6-1998 no show cause notice was ever issued to appoint a temporary trustee. By order dated 23-6-1999 the said appointment was kept in abeyance. Thereafter on 8-1-2002 a notice was issued requiring them to submit their replies as in the trust was a public trust, The petitioners are aggrieved by the document (Annexure-2) i.e. letter dated 8-1-2002. According to the petitioners, the property in dispute is a private trust. It is not a religious or public trust. Their further submission is that in a dispute between trustees of a private/personal trust, the board of the Religious Trust has no jurisdiction to interfere or assume jurisdiction simply on a false and frivolous complaint. It is also their contention that the trust board cannot exercise its powers in arbitrary and whimsical manner nor it can intimidate the trustees of the private trust by illegally exercising its power which under the statute it does not possess. According to them unless the Religious Trust Board records a finding that property in dispute is a religious trust, the Board has no authority to issue such intimidating or threatening letters. According to them if the trust board is of the opinion that it is required to make an enquiry then it must hold an enquiry giving proper opportunity of hearing and leading evidence to the affected persons and after recording a finding that the property in dispute is a religious trust, the respondent can exercise his jurisdiction in reply to the allegations and submissions made by the petitioners, the respondent Board through its Counsel has submitted that on 22-6-1998 as show cause notice was issued and at the request of the petitioners appointment of temporary trustee was kept in abeyance and lastly notice dated 8-1-2002 has been issued, it must be presumed that proper opportunity of hearing has been afforded to the petitioners who claim to be trustees. He however, submits that as the trustees did not submit their documents nor they had filed their replies, the trust board was justified in observing that the property in dispute was a religious trust.
4. Strong reliance has also been placed on a judgment of this Court in the matter of Anand Kumar Bajaj v. The State of Bihar and Ors., [1998 (3) PLJR 446] submitting that if there is dispute in relation to title overthe property then the aggrieved party must file a civil suit and get its title decided. The letters dated 22-6-1998 and 20-6-1998 have not been filed along with counter but were shown to this Court at the time of argument. Annexure-A is a complaint made by one Sonalal Jaiswal. In the said complaint he has not even stated or asserted that the property in dispute is a religious trust or is a public property. The complaint simply says that a Dharamshala was constructed. It was to be managed by some of the trustees and the income was to be used in accordance with the trust documents. The complaint nowhere stated that the property was being mismanaged as they are religious trust property. Learned Counsel for the respondent-trust board has placed his strong reliance upon Annexure-D, a document under which the land over which Dharamshala was constructed. He has taken me through every words of the said document. He contended that from a perusal of Annexure-D it would clearly appear that the land was purchased for constructing a Dharamshala as a religious trust. I have gone through the entire documents. Unfortunately the document (Annexure-D) does not contain even a single word that the property was purchased for raising some public property or developing a religious trust. The document simply says that the property was purchased for making a Dharamshala, I am at a loss to understand that how the Dharamshala which is used by the passengers or pilgrimage for staying over a night or a day or two can be deemed to be the religious trust property. Annexure-A the complaint letter itself does not say that it was a property within the jurisdiction of the Bihar Hindu Religious Trust Act. The Religious Trust Board cannot assume jurisdiction simply on some complaint by someone. In fact from a very perusal of Annexure-A it would clearly appear that there was a dispute between one trustee on one hand and the three trustees on the other, I nstead of following their own argument raised at the Bar that in case of a title dispute such person should go to civil Court, Religious Board have entered in the dispute of the and assumed jurisdiction. When the dispute was between the private parties about the title/ownership, under what authority of law the Trust Board assumed jurisdiction to hold that it was a religious trust, I am unable to understand.
5. The Trust Board has not been constituted to grab the properties of those persons who have created private trust for charitable purpose. The Trust Board has been created under the law to manage religious trust properties and non-else. I repeatedly asked learned counsel for the Trust Board whether any single order was passed by the Trust Board that the property in dispute was of the religious trust. After going through the entire file the Counsel for the Trust Board conceded that baring those three letters (alleged to be show cause notice), no single order has been passed by any authority to show that the property in dispute is a religious trust property in the opinion of this Court the Trust Board can assume jurisdiction over property if property is held by civil Court to be religious trust or by any other competent authority to be a religious trust property or on the strength of the document under which Trust is created and not on the strength of an ipse dixit of the Trust Board in his own favour. Unless is so clear that it is a trust property, issuance of such a notice cannot be held to be valid.
6. A show cause notice certainly can be issued for an enquiry to decide whether the property in dispute is a religious trust property or not but in the present case barring issuing certain notices, nothing further has been done, no opportunity of hearing has been afforded to anybody, no enquiry has been made, no findings have been recorded, no order has been passed by the Trust Board that the property in dispute is the religious trust property. If the Trust Board was relying upon Annexure-A, the complaint made by one of the co-trustees then it is obliged to show that in Annexure-A, the complainant have made any assertion that the property was a religious trust property. A perusal of Annexure-A would simply show that in view of certain dispute between trustees, one of the trustees made a complaint to the Board and required the President to appoint the complainant as the working trustee so that he could look after the property properly.
7. Learned Counsel for the respondent Board submitted that in a case where there is a dispute about the nature of the trust and the property the Board has two powers: one under Section 32 of the Act to settle schemes for proper administration of religious trust and another under Section 33 of the Act to appoint temporary trustee. According to him as the temporary trustee was appointed and later on the order was kept in abeyance, it must be presumed that the order was-passed holding the property to be religious trust property within the domain or jurisdiction of the Trust Board. The argument is an argument of desperation and frustration.
8. Religious Trust has been defined under Section 2 (1) of the Bihar Hindu Religious Trust Act, 1950. According to the definition, religious trust means any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable, but shall not include a trust created acceding to the Sikh religion or purely for the benefit of the Sikh community and a private endowment created for the worship of a family idol in which the public are not interested. From the very definition of the religious trust, it would clearly appear that every property cannot be grabbed by the Trust Board observing it to be the religious trust property. Before exercising its jurisdiction, the Board has to record a finding that a express or constructive trust was created or it was so existing for some purpose recognised by Hindu Law to be religious, pious or charitable. Unless such a finding is recorded by the Trust Board, it cannot exercise its jurisdiction over he private properties under its own whim arbitrariness or caprice.
9. In the present case there was no material available before the Trust Board that there existed a religious trust or the property in dispute was property of the religious trust. The document under which the land was purchased simply says that in accordance with the wishes of the ancestors of the purchasers they were purchasing the property for raising Dharamshala. From Annexure-A it does not appeal that property in dispute was a religious trust property. The original file which has been produced before me does not contain any show cause notice to any of the trustees giving them opportunity to say that they were not managing or holding the religious trust property. The two notices simply say that the trustees were required to produce the accounts.
10. Learned Counsel for the Trust Board was unable to show me any material or any such file on strength of which it can be hold that the property in dispute was a religious trust property.
11. Issuance of the notices for production of certain documents if is to be treated to be a step in the enquiry then the Trust Board was required to proceed further in the matter, proceed ex parte in absence of a reply from the trustees make some enquiry even if it was a farce and record findings that the property was a religious trust property. In absence of an enquiry and finding, on the strength of available material the Trust can be held to be a religious trust.
12. So far as applicability of Sections 32 and 33 are concerned the misconceived argument raised by the Trust Board, should not have detained this Court unnecessarily but for their future guidance I shall deal with the matter.
13. Section 32 of the Act provides that the Board may, of its own motion or on application made to it in this behalf by two or more persons interested in any trust,--settle a scheme for such religious trust after making such enquiry as it thinks fit and giving notice to the trustee of such trust and to such other person as may appear to the Board to be interested therein.
14. The complete text of Section 32 of the Act reads as under:
"(32) Power of Board to settle scheme for proper administration of religious trust.--(1)The Board may, of its own motion or on application made to it in this behalf by two or more persons interested in any trust,--
(a) settle a scheme for such religious trust after making such enquiry as it thinks fit and giving notice to the trustee of such trust and to such other person as may appear to the Board to be interested therein;
(b) in like manner and subject to the like conditions, modify any scheme settled under this section or under any other law or substitute another scheme in its stand;
(2) A scheme settled, modified or substituted instead of another scheme under this section shall unless otherwise ordered by the District Judge on an application, if any made under Sub-section (3), come into force on a day to be appointed by the Board in this behalf and shall be published in the Official Gazette.
(3) The trustee of, or any other person interested in, such trust may within three months from the date of the publication in the Official Gazette of the scheme so settled, modified or substituted instead of another scheme, as the case may be make an application to the District Judge for varying, modifying or setting aside the scheme; but subject to the result of such application, the order of the Board under Sub-section (1) and (2) shall be final and binding upon the trustee of the religious trust and upon every other person interested in such religious trust.
(4) An order passed by he District Judge on any application made under Sub-section (3) shall be final."
15. The first and foremost requirement is that the Board may act on its own motion or may proceed on an application made to it in this behalf by two or more persons who are interested in any trust. Undisputedly the Board did not proceed on its own motion. It proceeded on the application filed by the complainant. The requirement of the taw is that an application should be filed by two or more persons who are interested in any trust. If the application is not signed by two or more persons who are interested in the public trust or the religious trust then in the opinion of this Court no cognizance of such an application could be taken by the Trust Board. The very assumption of the cognisance of Annexure-A was illegal and was for the reasons best known to the President the office of the Trust Board.
16. It appears that the Trust Board in the State of Bihar is trying to exploit the private trust by intimidating and issuing threatening letters by threatening such trusts that if they do not succumb to their demands then action would be taken against the trust. Present is not the first case where trust board has issued such threatening letters. I have come across number of cases where Trust Board had issued such threatening letters. In some of the cases they had appointed the Trust Committees and in some of the cases they have requested the District Magistrate and the S.D.O. to immediately take possession of the property. I fail to understand that for what particular reasons the Trust Board is taking such action.
17. When the Trust Board is an statutory authority and it exists and survives under the statute then it must act according to the said statute and it cannot act contrary to the said statute. When somebody uses the power and the sword of the statute then it must show that it can hold it under the statute. It is survives with this power then it must vanish if it has no power.
18. In the present case in absence of a finding that the property in dispute was a religious trust property, the Board had no jurisdiction to proceed further. I have no hesitation in holding that the application filed by Sonelal Jaiswal was not in accordance with Section 32 of the Act and the Trust Board could not assume jurisdiction or take cognizance on the said application. Even otherwise when an application is made in relation to a religious trust according to Section 32 (1) (a) of the Act a scheme is to be settled for the religious trust. As already observed religious trust has been defined under Section 2 (1) of the Act; if the present is not a religous trust then none could make an application for settlement of scheme. Basic foundation for application and assumption of the jurisdiction was existence of the religious trust. If a religious trust does not exist neither Section 32 nor provision contained under Bihar Hindu Religious Trust Act, 1950 would be applicable. Section 32 provides that a scheme is to be settled after making an enquiry. If the property in dispute is a religious trust then too an enquiry is to be made. In absence of an enquiry the Board cannot proceed further. The Board is also obliged to give notice to the trustees of such trust and such other persons as may appear to the Board to be interested in the trust. In the present case barring requiring the trustees to submit certain documents no other notice was ever issued. No notice was issued that the Board was proposing to make an enquiry into the existence of the religious trust or into the matter relating to settlement of the scheme for the religious trust. The scheme has to provide about the governance of the trust and the manner in which trustees would work. Section 32 would come into operation and would be applicable only if there is some material or if there is a finding recorded by the competent authority or Court or officer that the property is religious trust property. In absence of such a finding Section 32 would have no application.
19. The argument of learned Counsel for the respondent board that the trust board is entitled to appoint a temporary trustee, is again misconceived. Section 33 provides that when there is a vacancy in the office of trustee of a religious trust and there is no one competent to be appointed as a trustee under the terms of the deed of such trust then a temporary trustee can be appointed. A temporary trustee cannot be appointed in a vacuum. A temporary trustee is to be appointed to the office if a vacancy arises and such vacancy cannot be filled under the trust-deed. In the present matter there was no trust deed creating a religious trust nor there was any scheme despite that the trust board through its Counsel says that they had appointed temporary trustee. I am unable to appreciate the argument. Application of Section 33 would obviously be subject to the provisions of the trust deed. If the trust deed creating religious trust does not provide for the mode of filling up the vacancies then the Board is required to fill up the vacancies. For application of the Bihar Hindu Religious Trust Act, 1950 requirement is existence of a religious trust.
20. In the matter of Anand Kumar Bajaj, (supra), learned Counsel for the respondents placed his strong reliance upon the headnote/placitum of the judgment. In my opinion a judgment is an authority for what it decides. It is not an authority for what it does not decide. The wisdom of a Judge is reflected in his judgment. A judgment when interprets law it becomes a binding authority. The summary of the-judgment or the understanding of an editor certainly would not be a binding precedent. The wisdom of an editor would never bind even a Munsif what of the coordinate Bench of the High Court. A Judgment if it decides particular things or interprets particular law then it would bind a co-ordinate Benches. The interpretation of the judgment by an author may have some persuasive value but would have no binding effect.
21. The headnote of the judgment says "Board having given the notice to petitioner which he did not reply--no error in Board's notification constituting the committee- however, writ Court not proper forum where dispute about title is involved." I requested the learned Counsel for the Trust Board to read the said observation from the body of the judgment Learned Counsel closed the book on my face and said that was his argument. I did not allow him to close the book. I required him to read the said observation from the body of the judgment. When a argument is raised in the High Court, it cannot be left unfinished. The argument is to be taken up to its logical end. When an argument is raised on the strength of the judgment of the High Court, learned Counsel is obliged and duty bound to read from the the said judgment what he is arguing in support of his case.
22. Paragraph-2 of the said judgment relates to the summary of the petition. Paragraph-3 again relates to part of the summary of the petition and the counter reply. Paragraph-4 simply says that no further rejoinder was filed by the petitioner. Paragraph-5 refers to the arguments raised by Counsel for the State. In paragraph-6 learned single Judge observed that he was. unable to accept the argument raised by the Counsel for the petitioner in view of specific stand taken by the respondents in paragraphs-16 and 17 of the said petition. Paragraph-7 is again the argument of Counsel for the said petitioner. In paragraph-8 learned single Judge observed that it was not the case of the petitioner that the condition required under Section 32 of the Act were not fulfilled in the said case. In the present case, this is the basic dispute. Present petitioner is submitting that property in dispute is not religious trust property. Paragraph-8 of the said judgment further says that the entire case of the said petitioner was that the impugned notification was beyond the scope of the provisions contained in Section 32 of the Act under which Board was entitled to settle the scheme. In the present case it is not the case of respondent Board that it has made some scheme under Section 32 of the Act. In paragraph-9 learned Single Judge observed that after constitution of the committee if the said petitioner was challenging the constitution of the committee and the action taken by the Trust Board then it was obliged to join the members of the said committee. The Court observed "be that as it may, the said persons had not been made party in the writ application and as such, this writ petition is fit to be dismissed on the sold ground of non-joinder of necessary party." In the present case the law laid down in that case would not be applicable because till date no trust committee has been constituted nor persons have been made member of the said committee. Paragraph-9 further says "Besides this, I find that in paragraph 26 of the writ petition the petitioner had admitted that the construction of Dhat'amshala is in dispute in title suit instituted by he heirs of the recorded tenants which is pending for disposal". In the present matter, undisputedly no civil dispute is pending before any Court. The dispute was raised by Sonelal Jaiswal. If this was a dispute in relation to the title then instead of issuing notices to the petitioner, the Board should have been wise in advising Sonelal Jaiswal to go to civil Court for settlement of the dispute. It is clear from the records that some evil design persuaded the Trust Board to grab the property which in fact is private property. Otherwise even from the application Annexure-A or the counter affidavit and the original records it does not appear that it is religious trust property.
23. In paragraph-10 of the said judgment in the matter of Anand Kumar Bajaj (supra) the Court simply observed that in view of law laid down in the matter of M. Kuer v. President, (1968 BLJR 197) the petitioner would not get any relief from the Court specially where the claim of the petitioner has been seriously disputed. I will again come back to the headnote/placitum. If a judgment does not say something what the editor in his wisdom has understood, then the understanding of the editor or contents of the headnote would not bind any Court. Learned Counsel for the respondent Board in fact was relying more upon the head-note than the judgment. A judgment as already observed is a judgment for what it decides and not for what the editor understands it to be.
24. The notice Annexure-2 says that on the basis of documents of 1958-1965 it would appear that land was purchased for constructing a Dharamshala and a Manager was appointed for its management. On this finding the Board further said that the property in dispute was a public Dharamshala falling within the mischief of religious trust and was within the domain or the jurisdiction of the trust Board. I would again repeat that the file which has been produced before me and the statements made in the counter affidavit on which strong reliance has been placed do not contain even a single word that what particular enquiry was made by he trust Board to record a finding that the property in dispute was a charitable trust or public Dharamshala or a religious trust.
25. If certain people to satisfy the wishes of their own family members constructed a Dharamshala and at a concessional rate allowed to public to stay over night or for a day or more, the property would not become religious trust property. After all the right of entry in the Dharamshala is controlled by Manager of the trust, any person who enters or stays, would be bound by the rules framed by the trust and he would be required to pay some amounts for stay for a night in a room. The counter affidavit does not show that how the property in dispute fall within the mischief of the religious trust.
26. The notice Annexure-2 is absolutely baseless and has no foundation to stand. In fact it appears to be a notice for making a fishy enquiry and collecting certain materials so that the Board could grab the property and put it under its control.
27. After going through the entire records, the provisions of law and the file which has been produced before me for perusal I am unable to hold that the property in dispute is religious trust property. The action of the respondents cannot be approved, it appears the the officers in the Trust Board have not read the provisions of Bihar Hindu Religious Trust. If they have read it they could not understand it, if they have understood it then they are not applying it is accordance with the spirit of the Act itself.
28. Annexure-A deserves to and is accordingly quashed. The illegal acts and the manner in which the trust Board acted, required the petitioners to come to this Court. Because of the acts of the trust Board, the petitioners had to undergo unnecessary expenses. I would not hesitate in awarding cost against the Trust Board in favour of the petitioner. The petitioners shall be entitled to the cost of Rs. 10,000 which shall include the Counsel fee. The cost shall be paid by the Trust Board within four weeks from today.