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HISTORICAL BACKGROUND

6. The Jain Religion reveres 24 Tirthankaras and some of their disciples. Though according to the Supreme Court, the Jains do not believe in God or the supreme being, they believe in the worship of the Tirthankaras. It is believed that twenty, out of the twenty-four Tirthankaras, lived and attained 'Nirvana' in the Parasnath Hill situate in Hazaribagh district (now part of Giridih District) of the erstwhile undivided State of Bihar, and presently in the State of Jharkhand. It is not clear when the dispute about the mode of worship among the Jains began and schism developed between the two sections of Jains who have come to be known as the Swetambaris and the Digambaris (though it appears to be in about 500 AD). Inspite of this divide, the two factions of Jains continued to worship the Tirthankaras and continued to believe that the Parasnath Hill was the last resting place of twenty of the Tirthankaras and to treat the top of the Hill as a centre of pilgrimage. Thus, the Parasnath Hill had a religious significance for the Jains in general, whether they belonged to the Swetambar sect or to the Digambar sect. It is also seen that there are sub-sects in these two main sects. The bone of contention in this litigation is this Parasnath Hill.

39. It is contended that the Bihar Land Reforms Act was only a measure of land reforms and had no application to objects and places of worship which are religious institutions. The observation of the Supreme Court in State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, has clarified the object of the Act and the Act never intended to acquire objects and places of worship, wince they are religious institutions. Even if the words used in a statute are capable of more than one interpretation, the Court should prefer that interpretation which would suppress the mischief and advance the purpose of the Act and not the one which would render the Act unconstitutional as being arbitrary and unreasonable. With respect, we have to notice that the Bihar Land Reforms Act and the subsequent amendments have all been included in the Ninth Schedule to the Constitution precluding any challenge based on alleged violation of rights under Articles 14 and 19 of the Constitution of India. The argument is that even then, the Court has to ensure that the basic structure theory propounded in Keshavananda Bharati case is not transgressed while interpreting the provision. With respect, we see no merit in this submission. Land Reforms Acts and even vesting of private forests have been saved as agrarian reforms and have been found valid by the Supreme Court in numerous decisions. The Bihar Act and its amendments have also been included in the Ninth Schedule, giving it the umbrella of protection. The enactment of laws for distribution of lands with the object of fulfilling the goal of socialism introduced in the preamble to the Constitution, cannot be said to affect the basic structure of the Constitution. We are, therefore, satisfied that nothing turns on this argument raised on behalf of Anandji Kalyanji Trust. It is not possible to accept the argument that the notification issued under Section 3(1) of the Act should be read down as not to include the Parasnath Hill. It is seen that Parasnath Hill was a revenue paying estate. It consisted of a vast area of forests fetching income to the owner thereof. The owner had leased out an extent of two thousand acres for a plantation. Seven hundred acres were being cultivated by raiyats. There were other structures like sanatorium which was later converted into a Dak Bungalow on the Hill. The Raja of Palganj was getting income from the lands. Even Anandji Kalyanji had bargained with the State while entering into the agreement Ext. 9(a) for sharing the profits from the forests at 60:40. The definition of estate in the Act includes forest land. As explained in the decision of the Patna High Court referred to earlier, even places of religious worship were within the purview of vesting under the Act. The said decision has held the field all these years. The decision of the Supreme Court in Labanya Bala Devi v. State of Bihar, 1994 Supp (3) SCC 725, and Brigunath Sahai Singh v. Md. Khalilure, 1996 (1) PLJR (SC) 65, also support this. We, therefore, find no merit in the. contention on behalf of Anandji Kalyanji that the Parasnath Hill should be treated as excluded from the vesting. It is also not possible to accept the argument that Parasnath Hill, as a whole, was a place of religious worship. No doubt, the Hill as a whole, was considered sacred by the Jains of all hues, but that was because of the Hill at the top, containing the Samadhis of 20 of the Tirthankaras and Charans and of monuments erected in respect of the other four Tirthankaras believed in by the Jains. The observation of the Calcutta High Court and that of the Privy Council generally stating that every foot of the Hill is treated as sacred by Jains, cannot be taken as the rendering of a decision that the whole of the Hill is a place of religious worship that cannot vest in the State of Bihar under the Land Reforms Act. As we have noticed, according to the view held by the Patna High Court, which has not been questioned all these years, a religious trust can and does vest in the State on the issuance of a notification under Section 3(1) of the Act. We may notice here that Anandji Kalyanji Trust itself, though after receipt of a notice under Section 40 of the Act, made a claim for compensation for these lands under the Act, as if it were a property held by an individual, though at a later stage, it claimed annuity on the basis that this was a Trust. What we mean to notice here is that the conduct on the part of Anandji Kalyanji itself indicates that even if it was a religious Trust as claimed by Anandji Kalyanji, what it could took for was annuity in place of compensation for the vesting payable under the Act. We find that the relevant aspects have been duly and properly considered by the learned single Judge while holding that the lands have vested in the Government under the notification under Section 3(1) of the Act and that the lands have also passed into the possession of the Government subsequent to the said notification. On a re-consideration of the relevant materials, in the light of the elaborate arguments addressed before us, we respectfully agree with the conclusion of the learned single Judge in that behalf.

40. There was considerable dispute before us whether Anandji Kalyanji did not adorn the mantle of a Trust only after the coming into force of the Bihar Land Reforms Act and the issuance of the notification under Section 3(1) of the Act. The resolution, Ext. 6, which we have quoted earlier, does not indicate that the purchase was for charitable purposes. Actually, the resolution emphasized that the purchase from the Raja of Palganj was a good business deal. Normally, a trust comes into existence when there is a dedication of the corpus for religious or charitable purposes or at least of the income from the properties for charitable purposes. The purpose must be eleemosynary. A trust can be created by a deed or can be implied from the circumstances. In other words, it must be either an express dedication or an implied dedication. There is nothing to show that there was any dedication of Parasnath Hill, including the forest for any charitable purpose. The Raja of Palganj obviously treated it as a property fetching an income, though he undertook the obligation of reserving and protecting the shrines and charans on the top of the Hill. He had even laid a claim to the offerings in the shrines and there was ultimately an agreement by which he agreed to receive Rs. 1,500/- from the Jain Swetambar Society towards his share of the offerings at the shrines. It is no doubt true that places of worship on the top of the Hill containing tonks of the 24 Tirthankaras, their Charans and the Temple of Gautam Swamy and the Jal Mandir were places of worship of the Jain Community. But there is no evidence to show that there was dedication of any part of the Hill for charitable purposes or of a major portion of the income therefrom, for a religious purpose by the Raja of Palganj. Anandji Kalyanji Trust was a body which probably was doing charitable work and was protecting the interests of the Murti Pujak Jain Community of India. Merely because Anandji Kalyanji purchased the property from the Raja of Palganj, it does not necessarily impress the property with the character of a Trust. We must notice here that originally there was no temple or even enclosure around the tonks and charans. Only subsequently, some constructions were attempted which resulted in some litigations, but there was no case at an early stage that there was a dedication of the property for religious or charitable purposes. The Privy Council had found that it Was not debut tar property. Even in the plaint in T.S. No. 10 of 1967, except the claim that Seth Anandji Kalyanji Trust was registered as a Trust under the Bihar Hindu Religious Trust Act, 1953 and that the whole of Parasnath Hill must be deemed to be a religious institution, there is no specific plea that there was ever a dedication of the property either by the Raja of Palganj or by the assignee, Anandji Kalyanji for any religious or charitable purpose. Nor is there any plea that the entire income from the property was dedicated for the use of the Jain places of worship on top of the Hill. Therefore, in the absence of even a specific pleading in that behalf, there is considerable force in the argument on behalf of the Digambaris that it has not been shown that a Trust was created in respect of the land in question. We find from the registration obtained after the coming Into force of the Land Reforms Act, and the notification issued, that a trust called 'Parasnath Hill' was not registered, ion the coming into force of the Bihar Hindu Religious Trust Act, 1953, and Anandji Kalyanji was shown to be the Trustee. Along with an application filed before the learned single Judge under Order XLI, Rule 27 of the Code of Civil Procedure, Anandji Kalyanji had attempted to produce a copy of the application said to have been made for registration of the Trust to Indicate that what was sought was registration of the Trust, Anandji Kalyanji and not a Trust by the name of Parasnath Hill. An explanation was attempted before us that the certificate of registration, Ext. 10, and Ext. 10-A, was in that Form because the Bihar Act applied only to Parasnath Hill and not to the other properties held by Anandji Kalyanji outside the State. But the fact remains that the registration as a Trust in this State was only after the coming into force of the Bihar Land Reforms Act and it was not in the name "Anandji Kalyanji".

44. An attempt was made by the senior counsel appearing for Anandji Kalyanji in LPA No. 332 of 1997 (R) to argue that the extent of 397 acres, including 0.86 acres in Khewat No. 7 should be held to have not vested in the Government under the Act. With respect, we may say that there was no such specification of any 397 acres in plaint in T.S. No. 10 of 1967 and no specific case relating to such an extent was put forward by the plaint. There was also no description of the location of 397 acres in the plaint. It is no doubt true that while referring to the agreement, Ext. 9(a) dated 5.2.1965, it is pointed out that as per the said agreement it was agreed to exclude the extent of half a mile round about the temple on the Parasnath Hill. It was also pleaded by way of an amendment of the plaint that the right to ownership, possession and control over the area of the half a mile round-about the temple on the Parasnath Hill recently demarcated by the State of Bihar was in no way affected by the subsequent agreement Ext. D1 dated 5.8.1967 entered into by the Digambaris. The evidence shows that as on the date of the plaint, in T.S. No. 10 of 1967, the area of half a mile around the place of worship had not been demarcated and no possession had been handed over to Anandji Kalyanji of that extent. In view of our finding, in agreement with the learned single Judge, that Touzi No. 20/1 was taken possession of by the Collector, Anandji Kalyanji had to specifically plead and prove that they were put back in possession of 397 acres by the State on the basis of the agreement, Ext. 9(a). As we have noted, the said 397 acres has also not been specifically described in the plaint. No plan of it was also got prepared by taking out a commission. The finding by the Trial Court and the learned single Judge is that the entire Touzi No. 20/1 had vested in the State and we have also agreed with that finding. Therefore, strictly speaking, as on the date of the Suit, T.S. No. 10 of 1967, Anandji Kalyanji had no possession over the area of half a mile around the temples, and tonks on the top of the Hill. Admittedly, the so called 397 acres in part of Touzi No. 20/1 which had vested in the State and possession of which had been taken. Hence, it has necessarily to be held that Anandji Kalyanji had lost not only its right over 397 acres but also its possession over it. The attempt, to separate an extent of 397 acres from the entire Hill in Touzi No. 20/1 made at the stage of the Letters Patent Appeal, cannot be upheld. In fact, if one were to go by the plaint in T.S. No. 10 of 1967, no distinction had been made between the extent of half a mile around the temple and the entire Hill. On the basis of the pleadings the submission regarding the area of half a mile around the temple of Parasnath Hill, equally apply to the forest area outside it and which is under the Management of the Forest Department of the State of Bihar as the agent of Anandji Kalyanji. At best, what can be said is that the area of half a mile around the temples or places of worship was intended to be left in the management of Anandji Kalyanji by the State under Ext. 9(a) agreement dated 5.2.1965. But that cannot enable Anandji Kalyanji to contend that the said extent must be dealt with separately and held to have not vested in the State under the provisions of the Bihar Land Reforms Act. We have, therefore, no hesitation in rejecting the attempt made to distinguish between an extent of 397 acres on top of the Hill from the rest of the lands forming the Parasnath Hill.