Appeal No 343 of 1955
Appeal from the judgment and order dated September 13 1954 of the Patna High Court in Misc
Case No 39 of 1954
L K Jha B K P Sinha and R C Prasad for the appellant
Mahabir Prasad Advocate General for the State of Bihar Ishwari Nandan Prasad and section P Varma for the respondents
April 15
The Judgment of the Court was delivered by section K DAS J
This appeal on a certificate granted by the High Court of Patna is from a judgment of the said High Court dated September 13 1954 in a writ proceeding numbered as Miscellaneous Judicial Case No 39 of 1954 in that court which the appellant had instituted on an application made under article 226 of the Constitution in the circumstances stated below
It was alleged that one Mahatma Mast Ram Hindu saint owned and possessed considerable properties in the district of Monghyr in the State of Bihar
About two hundred years ago he built a small temple at Salouna in which he installed a deity called Sri Thakur Lakshmi Narainji
This temple came to be known as the Salouna asthal
Mast Ramji died near about the year 1802
He was succeeded in turn by some of his disciples one of whom was Mahant Lakshmi Dasji
He built a new temple in 1916 into which he removed the deity from the old temple and installed two new deities Sri Ram and Sita
in 1919 Mahant Lakshmi Dasji died
He left three disciples Vishnu Das Bhagwat Das and Rameshwar Das
A dispute arose among these disciples about succession to the gaddi which was settled sometime in February 1919
By that settlement it was arranged that Vishnu Das would succeed Mahant Lakshmi Das as the shebait and would be succeeded by Bhagwat Das and thereafter the ablest bairagi  of the asthal born of Brahmin parents would be eligible for appointment as 585 shebait
Bhagwat Das died sometime in 1935 and again a dispute arose between one Rameshwar Das the youngest chela of Mahant Lakshmi Das and Ram Saroop Das who is the present Mahant and appellant before us
Rameshwar Das it appears filed an application under the Charitable and Religious Trusts Act XIV of 1920 for a direction upon Mahant Ram Saroop Das to render an account of the usufruct of the asthal
This application was contested by Mahant Ram Saroop Das who said that the properties appertaining to the Salouna asthal did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act XIV of 1920 and therefore he was not accountable to any person
Mahant Ram Saroop Das also applied for and obtained permission under section 5 of the aforesaid Act to institute a suit for a declaration that the Salouna asthal and the properties thereof did not constitute a public trust
Such a suit was brought in the court of the Subordinate Judge of Monghyr who however dismissed the suit
Then there was an appeal to the High Court of Patna and by the judgment and decree passed in First Appeal No 10 of 1941 dated March 5 1943 the High Court gave a declaration to the effect that the Salouna asthal and the properties appertaining thereto did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act XIV of 1920
Some eight years later the Bihar Hindu Religious Trust Act 1950 Bihar I of 1951 hereinafter referred to as the Act was passed by the Bihar Legislature and received the President s assent on February 21 1951
It came into force on August 15 1951
The Bihar State Board of Religious Trusts one of the respondents before us was constituted under this Act to discharge in regard to religious trusts other than Jain religious trusts the functions assigned to it under the several provisions of the Act
On November 14 1952 this Board in exercise of the powers conferred on it under section 59 of the Act asked the appellant to furnish to the Board a return of the income and expenditure of the asthol
74 586 The appellant replied by a letter dated December 1 1952 that the Salouna asthal was a private institution to which the Act did not apply and also drew the attention of the Board to the judgment and decree of the High Court in First Appeal No 10 of 1941
The Board however gave a reply to the effect that it was not bound by the declaration made by the High Court and asked the appellant to obtain a declaration in respect of his claim under the provisions of the Act or to submit a return
Thereafter  on January 22 1954 the appellant made his application under article 226 of the Constitution in which he averred a that the Salouna asthal was not a religious trust within the meaning of the Act b that the properties appertaining thereto did not constitute a religious trust and the appellant was not a trustee within the meaning of the Act e that the Act did not apply to private trusts and d that the demand made by the respondent Board amounted to an interference with the appellant s fundamental right to hold the asthal properties
The appellant accordingly prayed for the issue of a writ quashing the order of the respondent Board requiring the appellant to submit a return of income and expenditure and also for an order directing the respondent Board and its officers to refrain from interfering with the appellant in his right of management of the Salouna asthal and the properties appertaining thereto
The High Court of Patna by its judgment complained against dismissed the petition on the main ground that the language of section 21 of the Act which defined a I religious trust  for the purposes of the Act was wide enough to cover within its ambit both private and public trusts recognised by Hindu law to be religious pious or charitable and that the Salouna asthal did not come within any of the two exceptions recognised by the section namely 1 a trust created ac cording to Sikh religion or purely for the benefit of the Sikh community and 2 a private endowment created for the worship of a family idol in which the public are not interested
The High Court also held that the materials on the record were not sufficient to decide 587 the question whether the Salouna asthal and the properties thereof constituted a religious trust of a public character but proceeding on the footing that the Act applied to private trusts it expressed the view that the restrictions imposed on the trustee by the several provisions of the Act were not violative of the fundamental right guaranteed under article 191f of the Constitution inasmuch as there was no legal reason why the State should not exercise superintend ence and control over the administration of private trusts as in the case of public trusts
In a judgment dated October 5 1953 dealing with the same question in some earlier cases the High Court had however expressed a somewhat different view
It had then referred to the principle that when a legislature with limited power makes use of a word of wide and general import the presumption must be that it is using the word with reference to what it is competent to legislate and adopting that principle it said that section 21 of the Act should be read in a restricted sense so as to include only Hindu religious or charitable trusts of a public character and the provisions of the Act would accordingly apply to such trusts only
The principal point urged before us on behalf of the appellant is one of construction do the provisions of the Act apply to private religious trusts The contention of the appellant is that they do not
It is necessary to refer at this stage to some of the relevant provisions of the Act
In connected Civil Appeals Nos 225 226 228 229 and 248 of 1955 1 in which also we are delivering judgment today we have referred to the provisions of the Act in somewhat greater detail
In this appeal we shall refer to such provisions only as have a bearing on the principal point
We start with the definition clause in section 2 1
It says  religious trust  means any express 6r 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 according to the Sikh religion or purely for the benefit of the Sikh 1 Mahant Moti Das vs SP Sahi see P 563 ante
588 community and a private endowment created for the worship of a family idol in which the public are not interested The expression trust property  in a 2 p means the property appertaining to a religious trust and the expression trustee  in section 2 n is defined in the following terms  I trustee  means any person by whatever designation known appointed to administer a religious trust either verbally or by or under any deed or instrument or in accordance with the usage of such trust or by the District Judge or any other competent authority and includes any person appointed by a trustee to perform the duties of a trustee and any member of a Committee or any other person for the time being managing or administering any trust pro perty as such 
The next important section for our purpose is section 4 as amended by Bihar Act XVI of 1954 which gives effect to certain amendments and repeals
Sub section 5 of section 4 is in these terms The XX of 1863 and section 92 of the Code of Civil Procedure 1908 V of 1908 shall not apply to any religious trust in this State as defined in this Act Chapter V of the Act contains a series of sections which delimit the powers and duties of the State Board of Religious Trusts
Section 28 the opening section of the chapter states the general powers and duties of the Board
Section 291 has a bearing on the question at issue before us
It states inter alia that where the supervision of a religious trust is vested in any committee or association appointed by the founder or by a competent court or authority such committee or association shall continue to function under the general superintendence and control of the Board unless superseded by the Board under sub section 2 of the section
If an order of supersensible is passed the committee or association or any other person interested in the religious trust may within 30 days of the order of the Board under sub section
2 make an application to the District Judge for varying modifying or setting aside 589 the order of supersession
Section 30 so far as it is relevant for our purpose states  When any object of a religious trust has ceased to exist or has in the opinion of the Board become impossible of achievement the Board may of its own motion or on the application of any Hindu after issuing notice in the prescribed manner to the trustee of such trust and to such other person as may appear to the Board to be interested therein and after making such inquiry as it thinks fit determine the object which sfiall be similar or as nearly similar as practicable to the object which has ceased to exist or become impossible of achievement to which the funds property or income of the trust or so much of such fund property or income as was previously expended on or applied to the object which has ceased to exist or become impossible of achievement shall be a plied
 Section 32 defines the power of the Board to settle schemes for proper administration of religious trusts
It states  321
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 inquiry 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 stead Provided that any scheme so settled modified or substituted shall be in accordance with the law governing the trust and shall not be contrary to the wishes of the founder so far as such wishes can be ascertained
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
590 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 sections 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 the District Judge on any application made under sub section 3 shall be final
 It may be here stated that the expression  person interested in religious trust  is defined in section 2g
The definition is in these terms   person interested in a religious trust  means any person who is entitled to receive any pecuniary or other benefit from a religious trust and includes 1 any person who has a right to worship or to perform any rite or to attend at the performance of any worship or rite in any religious institution connected with such trust or to participate in any religious or charitable ministration under such trust ii the founder and any descendant of the founder and iii the trustee
The only other section which need be quoted in full is section 48 of the Act which is in these terms  481
The Board or with the previous sanction of the Board any person interested in a religious trust may make an application to the District Judge for an order a removing the trustee of such religious trust if such trustee 1 acts in a manner prejudicial to the interest of the said trust or ii defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property or income of the said trust or any other statutory charge on such property or income or 591 iii defaults on three or more occasions in the payment of any sum payable to any beneficiary under the said trust or in discharging any other duty imposed upon him under it or iv is guilty of a breach of trust
b appointing a new trustee e vesting any property in a trustee d directing accounts and inquiries or e granting such further or other relief as the nature of the case may require
2 The order of the District Judge under sub  section 1 shall be final 
Now the argument on behalf of the appellant is that on a true and proper construction of the aforesaid provisions of the Act considered in the background of previous legislative history with regard to religious charitable or pious trusts in India the definition clause in section 2 1 of the Act is confined to religious pious or charitable trusts of a public nature recognised as such by Hindu law
In order to appreciate this argument it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private
To put it briefly the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons either the public at large or some considerable portion of it answering a particular description in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained
The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust see the observations in Nabi Shirazi vs Province of Bengal 1
The distinction in this respect between English law and Hindu law has been thus stated by Dr Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts 1952 Edition pp
392 396 In English law charitable trusts are synonymous 1 1942 ILR I cal
211 228
592 with public trusts and what is called religious trust is only a form of charitable trust
The beneficiaries in a charitable trust being the general public or a section of the same and not a determinate body of individuals the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust
In English law the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts such trusts being essentially matters of public concern 
One fundamental distinction between English and Indian law lies in the fact that there can be religious trust of a private character under Hindu law which is not possible in English law 
On behalf of the appellant it has been pointed out that so far as public religious and charitable trusts are concerned there are a number of legislative enactments both general and local which aim at controlling the management and administration of such trusts and provide for remedies in cases of maladministration So far as private religious trusts are concerned there are no specific statutory enactments and such trusts are regulated by the general law of the land
The British Government when it was first established in India following the tradition of the former rulers asserted by virtue of its sovereign authority the right to visit public religious and charitable endowments and to prevent and redress abuses in their management
A Regulation for that purpose was passed in Bengal in 1810 Regulation XIX of 1810 and one for Madras in 1817 Regulation VII of 1817
In Bombay also there was a Regulation XVII of 1827 which related to endowments of the same character
In 1863 was passed the XX of 1863 which repealed the Bengal and Madras Regulations in so far as they related to purely religious institutions and their control was transferred from the Board of Revenue to non official committees constituted under the Act of 1863
It is worthy of note however that the Act of 1863 also applied to public religious endowments only
In course of time it was found that the Act of 1863 did not provide adequate protec
593 tion to public religious trust against abuses which led to their control by the State and the remedies provided by that Act did not go far enough
Then came the VI of 1890 and the Charitable and Religious Trusts Act 1920 XVI of 1920 both of which related to public trusts  the former related exclusively to public trusts for charitable purposes unconnected with religious teaching or worship while the latter related to trusts created for public purposes of a charitable or religious nature
In the Civil Procedure Code of 1877 a specific section was introduced viz section 539 under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes
This section was later amended and in this amended form it became section 92 of the present Civil Procedure Code the first condition necessary to bring a case within its purview being the existence of a trust whether express or constructive for public purposes of a religious or charitable nature
It is clear beyond doubt that a private trust is outside the operation of section 92 Civil Procedure Code
Of the local Acts the earliest was that of the Bombay Presidency of the year 1863
In more recent years were passed the Orissa Hindu Religious Endowments Act 1939 the Bombay Public Trusts Act 1950 and the Madras Hindu Religious and Charitable Endowments Act 1951 all of which relate to public religious institutions and endowments
No local Act has been brought to our notice which clearly or unmistakenly sought to include within its ambit private religious trusts
On behalf of the appellant it has been submitted that though the definition clause in section 2 1 of the Act is expressed in wide language other provisions of the Act make it clear that it is confined to public trusts only
Section 2 1 of the Act we have pointed out recognises two exceptions first a trust created according to the Sikh religion or purely for the benefit of the Sikh community and second a private endowment created for the worship of a family idol in which the public are not interested
It is not disputed 75 594 that the second exception is an instance of a private trust in which the public are not interested
The High Court has taken the view that inasmuch as the definition clause mentions by way of an exception only one instance of a private endowment all private endowments created otherwise than for the worship of a family idol must be included within the definition Of the maxim of expression unius exclusio alterius
We do not think that this view is quite correct
First of all let us examine some other provisions of the Act which specifically refer to the definition clause and see what the legislature has itself taken it to mean
Take for example section 4 of the Act as amended by Bihar Act XVI of 1954
This section amends and repeals certain earlier Acts like the  and the Charitable and Religious Trusts Act 1920 both of which we have already pointed out related exclusively to public trusts
Sub section
5 of section 4 states that the  and section 92 of the Code of Civil Procedure 1908 shall not apply to any religious trust in the State as defined in this Act
The  and section 92 Civil Procedure Code both apply to public trusts they have no application to private trusts
If the definition clause was intended to include within its ambit private trusts other than those created for the wor ship of a family idol then it is difficult to understand why sub section
5 of section 4 should be worded as it has been done
That sub section in effect says that two earlier enactments which apply exclusively to public trusts shall not apply to any trust we emphasise the word  any  as defined in the Act
If private trusts created otherwise than for the worship of a family idol were included in the definition of religious trust then sub section
5 was entirely otiose or redundant so far as those private trusts were concerned for the earlier enactments never applied to them
The obvious indication is that all trusts defined in the Act are public trusts and therefore it became necessary to exclude the operation of earlier enactments which but for the exclusion would have applied to such trusts
If the intention of sub section 5 of section 4 was to exclude some trusts 595 only out of many included within the definition clause from the operation of the earlier enactments as is contended for by the learned Advocate General of Bihar then the use of the word any  appears to us to be particularly inapt
Sub section 5 of section 4 was amended by Bihar Act XVI of 1954
Before the amendment it read as follows  section 45
The  and section 92 of the Code of Civil Procedure 1908 shall not apply to any Hindu Religious Trust in the State of Bihar Prior to the amendment sub section
5 made no reference to the definition clause it merely said that two of the earlier enactments shall not apply to any Hindu Religious Trust in the State of Bihar
The amended subsection however specifically refers to the definition clause and states that two of the earlier enactments which apply only to public trusts shall not apply to any trusts as defined in the Act
In our opinion by sub section
5 of section 4 the Legislature itself has spoken and indicated the true scope and effect of the definition clause
Secondly it may be asked why the legislature having before it the earlier enactments which applied to public trusts only failed to use the word public  before the word purpose  in the definition clause  This is a pertinent question which must be faced
The answer we think is this
Charitable trusts are public trusts both under the English and Indian law in England a religious trust being a form of charitable trust is also public but in India according to Hindu law religious trust may be public or private
But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested
Any other pri vate religious trust must be very rare and difficult to think of  Dealing with the distinction between public and private endowments in Hindu law Sir Dinshah Mulla has said at p 529 of his Principles of Hindu Law 11th edition  Religious endowments are either public or private
In a public endowment the dedication is for 596 the use or benefit of the public
When property is set apart for the worship of a family god in which the public are not interested the endowment is a private one 
Obviously enough the definition clause merely quotes the typical example of a private endowment mentioned above
It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it viz  in which the public are not interested 
In other words the exclusion is based on the essential distinction between a public and private trust in Hindu law
If the test is that the public or any section thereof are not interested in the trust such a test is characteristic of all private trusts in Hindu law
It also shows that there may be a trust created for the worship of a family idol in which the public may be interested
Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public
This also indicates that the definition was intended to cover only public trusts
We now turn to some of the other provisions of the Act which we have earlier quoted
Section 291 which talks of supervision of a religious trust being vested in any committee or association appointed by the founder or by a competent court or authority is ordinarily appropriate in the case of a public trust only
Section 301 which embodies the doctrine of cypress permits any Hindu to make an application for invoking the power of the Board to determine the object to which funds property and income of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achievement
This section is also inappropriate in the case of a private trust the obvious reason being that any and every Hindu cannot be interested in a private trust so as to give him a locus stand to make the application
Further it is difficult to visualise that a Hindu private rebutter will fail for a deity is immortal
Even if the idol gets broken or is lost or stolen another image may be consecrated and it cannot be said that the original object has ceased to exist
Sec 597 tion 32 is an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts
Now the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two or more persons interested in any trust
The language of the section follows closely the language of section 92 Civil Procedure Code so far as the phrase  two or more persons interested in any trust  is concerned
It is difficult to understand why in the case of a private trust it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust
In a private or family rebutter the beneficiaries are a limited and defined class of persons as for example the members of a family
If the trustee or shebait is guilty of mismanagement waste wrongful alienation of debutter property or other neglect of duties a suit can certainly be instituted for remedying these abuses of trust
Under the general law of the land the founder of the endowment or any of his heirs is competent to institute a suit for proper administration of the debutter for removal of the old trustee and for appointment of a new one
It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit
The condition of  two or more persons  is appropriate only to a public trust the reason being that a public trust is a matter of public concern
Section 48 of the Act is also analogous to section 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of section 92 of the Code of Civil Procedure from trusts as defined by the Act is the existence of provisions in the Act which are analogous to section 92 of the Code of Civil Procedure
This section is also more appropriate to public trusts than to private trusts
In fact the Act contains provisions as the preamble states for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments like the  the  598 the Charitable and Religious Trusts Act 1920 and the Civil Procedure Code 1908 have either been amended or excluded from operation
All those earlier enactments related only to public trusts and if the intention was that the Act would apply to private trusts as well one would expect that intention would be made clear by the use of unambiguous lan guage
We find on the contrary that though the definition clause in section 21 is expressed in somewhat wide language sub section
5 of section 4 makes clear what the true scope and effect of the definition clause is
For the reasons given above we hold that the definition clause does not include within its ambit private trusts and the Act and its provisions do not apply to such trusts
Learned counsel for the appellant has in the alternative argued before us that if the Act applies to private trusts several of its provisions will be violative of the fundamental right guaranteed to citizens under article 191f of the Constitution inasmuch as the restrictions imposed thereby on trustees of private trusts in which the public are not interested cannot be justified as reasonable restrictions in the interests of the general public within the meaning of cl
5 of article 19
The High Court negatived this argument by adopting the rule of English law that in the case of a charitable corporation where the founder is a private person he and his heirs become visitors in law and where such heirs are extinct or incompetent their powers devolve on the Crown or the State therefore it is in the interests of the general public that the State should exercise superintendence and control over the administration of private trusts as in the case of public trusts
This view of the High Court has been seriously contested before us and learned counsel for the appellant has submitted that there is no war
rant for the adoption of the rule of English law in view of the fundamental distinction between English and Hindu law as to private religious trusts
He has also drawn our attention to the following observations of Dr Mukherjea Hindu Law of Religious and Charitable Trust 1952 Edition p 393 on this point 599 In English law there is a  visitatorial  power attached to all eleemosynary corporations
A visitor has the right to settle disputes between members of the corporation to inspect and regulate their actions and generally to correct all abuses and irregularities in the administration of charity
The law allows to the founder of an eleemosynary institution full powers to make regulations for its creation and such powers include the right of nominating visitors
Under the law of England as it stood before 1926 if a private person was the founder of a charitable corporation then he and his heirs became automatically the visitors
The descent of the rights of a visitor to heirs has now been abolished by the Administration of Estates Act 1925 and it is not clear as to who would be visitor in default of appointment by the founder
Most probably such rights would devolve upon the Crown as they did when the founder s heirs became extinct or could not be found or the heir was a lunatic
 He has further submitted that whatever be the position in English law the guarantee of a fundamental right must depend on the terms of article 19 of the Constitution and such guarantee cannot be whittled down by importing artificial rules of English law
In view of our finding on the question of construction of the definition clause read with section 4 5 and other provisions of the Act we consider it unnecessary to pronounce finally on the contentions referred to in the preceding paragraph except merely to state that a serious question of the constitutional validity of several provisions of the Act would have undoubtedly arisen if the Act were held to apply to private trusts as well
On our finding that the Act does not apply to private trusts the appellant is entitled to succeed in his appeal
The High Court has said that the materials on the record of the case are not sufficient to decide the question whether the Salouna asthal and the properties of the mahant constitute a trust of a public character
This question however was the subject of a contested litigation and the appellant had obtained a declaration in First Appeal No 10 of 1941 that the Salouna asthal 600 and the properties appertaining there to did not constitute a public trust
The respondents were not parties to that litigation and may not be bound by that judgment but on behalf of the respondents no affidavit was filed nor were any materials placed to show that the position is different from what was declared by the High Court
The High Court commented on the fact that the appellant did not produce before the court all the documents in his possession
A petition has been filed before us for taking in evidence the documents which were considered by the High Court in First Appeal No 10 of 1941
We do not think that in the circumstances of this case it is necessary to consider that evidence afresh
As long as the declaration made by the High Court in First Appeal No 10 of 1941 stands and in the absence of some evidence to the contrary the appellant is entitled to say that the Salouna asthal and the properties appertaining thereto do not Constitute a public trust and the Act and its provisions do not apply to it
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 inquired 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
We would accordingly allow this appeal set aside the judgment and order of the High Court dated September 13 1954 and direct the issue of an appropriate writ quashing the order of the respondent Board calling upon the appellant to file a statement of income and expenditure with regard to the properties of the Salouna 601 asthal and also prohibiting the respondents from interfering with the rights of the appellant in the management of the Salouna asthal and the properties appertaining thereto unless and until the respondents have obtained the necessary determination that the Salouna asthal is a public trust
The appellant will be entitled to his costs throughout
Appeal allowed


Summary:
The respondent assessee challenged the best judgment assess ment for the ear 1972 73
The First Appellate Authority dismissed it its limine on the ground that the respondent had failed to pay the tax  not disputed In appeal
A second appeal was dismissed by the Karnataka Appellate Tribunal
The High Court allowed the revision petition of the assessee on the ground that the additional tax payable under section 6B was distinct from the tax in S20 3 on the payment of which the right of appeal is made dependent
In the appeal by the State to this Court the question was whether the mandate unders
203 to pay the undisputed tax before the appeal is entertained is also applicable to additional tax payable under s6B of the Act
Allowing the appeal this Court HELD 1
The expression tax  has been defined to mean a tax leviable under the provisions of the Act and as such includes the additional tax levied under section 6B of the Act
When Section 20 3 talks of payment of the tax and penalty not disputed in the appeal it obviously includes the additional tax
85 B On the plain language of section 20 3 the only conclusion which can he drawn is that the undisputed tax  which includes additional tax has to he deposited before the appeal is entertained
85 C 82 2
The fact that the quantum in of the additional tax is determined with reference to the sales tax purchase tax imposts would not alter its character
The additional tax is nothing but an enhancement in the rate of the sales taxpurchase tax under the Act
As soon as the assessing authority determines the levy of sales taxpurchase tax the additional tax under Section 6B become 
part of the assessment order
Similarly if the main impost under Section 5 1 is successfully challenged the reasoning sustaining the challenge would also ipso facto affect the validity if the additional impost under Section 6B of the Act
85 D E