IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15466 of 2010 1. Sri Shri Thakur Ramchandra, Lakshmi Narayn, Shri Krishna Bhagwan Thakurbari, Gram-Betari P.S. And Distt.- Bhabhua Through Its President Of The Managing Committee Shri Prem Nath Mehrotra 2. Prem Nath Mehrotra S/O Late Jagannath Prasad Mehrotra R/O Gram-Betari, P.S. And Distt.- Bhabhua Versus 1. Bihar State Board Of Religious Trusts Vidyapati Marg, P.S.- Kotwali, Distt.- Patna Through Its Chairman/ President 2. The Chairman/President Bihar State Board Of Religious Trusts, Vidyapati Marg, P.S.- Kotwali, Distt.- Patna 3. The District Magistrate, Kaimur, Bhabhua 4. The State of Bihar ----------- For the Petitioners :- Mr. Y.V.Giri, Senior Advocate Mr.V.K. Tripathi, Advocate For the Respondents:- Mr. Ganpati Trivedi, Advocate Mr.Madan Mohan, Advocate ********** 7 28.06.2011 Heard learned counsel for the parties. With the consent of the parties the matter has been taken up at the stage of admission with a view to its final disposal. The writ petition filed under Article 226 of the Constitution questions the legality and validity of the order dated 28.8.2010 passed by the Chairman/President of the Bihar State Religious Trust Board (hereinafter referred to as the “Board”) as contained in Annexure-13 of the writ petition whereby the trust of the petitioners has been declared to be a 2 public trust and by the same order the respondent Chairman/President has appointed the District Magistrate as a temporary trustee. The facts of the case in brief are that in the year 1932 one Most. Bhagwati Devi, the Nani of the petitioner created a private trust by a registered deed dated 6.5.1932 in favour of the family deities. The Managing Committee was constituted, of the family members and close relatives. The position was reiterated by the settler Most. Bhagwati Devi vide supplementary deed of trust dated 4.11.1948 (Annexure-3). In the year 1962-63 an enquiry was made by the then Chairman of the Board late Pandit Girindra Mohan Mishra, who after a detailed enquiry held the trust to be in the nature of private trust. The issue as regarding the nature of the trust again came up for consideration in Case No. 730 (2) of 1967 before the Munsif Magistrate, Patna and by judgment and order dated 16.5.1969 as contained in Annexure-4, the trust in question was held to be a private trust. While the matter rested, the Religious Trust Board vide Notification dated 2.12.1993 appointed a Managing Committee with regard to the trust in question and which was challenged by the petitioner by filing C.W.J.C.No.12591 of 1993. The writ petition was admitted on 27.1.1994 and the parties were directed to maintain status quo. The writ petition was subsequently allowed by a Bench of this Court 3 vide order dated 5.12.2008 and the notification dated 2.12.1993 appointing the Managing Committee was quashed and set aside. Liberty was however, granted to the respondent-Board to satisfy themselves as regarding the nature of the trust. Copy of the order passed in the writ petition is placed at Annexure-7. The writ petitioner thereafter received a notice dated 20.3.2009 (Annexure-8) issued by the Administrator in purported exercise of power vested under Section 28(2) h and (3) of the Bihar Hindu Religious Trust Act, 1950 (hereinafter referred to as the “Act”). Before proceeding it would be relevant to mention that during the period in question as the Board was under supersession hence the State Government had appointed an Administrator for management of the affairs of the Board. The notice was responded to by the petitioners who appeared through his counsel and filed a reply on 30.4.2009, followed by a supplementary reply. The Administrator heard the petitioner through his counsel on 30.07.2009 and again on 18.12.2009, on which date the counsel for the petitioner submitted a written notes of argument and citations in support thereof. The arguments thus stood concluded on 18.12.2009 and the matter was posted on 15.1.2010 enabling the counsel for the petitioner to submit documents if any, before any final order was 4 passed. Copy of the ordersheet is placed at Annexure-C of the counter affidavit filed on behalf of the Board. It appears that no document was filed by the petitioner or his counsel on 15.01.2010 and the matter rested there. In the meanwhile the Board was reconstituted on 11.5.2010 and a meeting of the Board was held on 26.05.2010. One of the agendas of the said meeting was regarding the proceedings which had been heard by the Administrator during the period of supersession of the Board and in which orders had been reserved. The issue has been discussed at item No. 5 of the proceedings of the Board which has been placed at Annexure-B of the counter affidavit filed on behalf of the Board. The Board vide resolution passed on the said date i.e. 26.05.2010 delegated the power of adjudication on the Chairman/ President and authorized him to pass final order in relation to such of the proceedings which had been initiated and concluded prior to 11.05.2010 and were pending for final orders. Another decision recorded in the minutes of the Board meeting held on 26.05.2010 is in relation to establishment of two Bench of the Board for the purpose of disposal of the matters. One of the benches so constituted consisted of the Chairman of the Board and Justice P.K. Sinha (Retd.) while the other Bench consisted of the Chairman and the Justice Damodar Prasad (Retd.). The said arrangement had been made until the amendments to 5 the bye-laws and the Rules came into effect. Following the aforesaid resolution of the Board, the Chairman/President of the Board vide order recorded in the proceedings dated 25.06.2010 referred the matter to the Board for appropriate directions and clarification. A notice thereafter, was served on the petitioner dated 2.07.2010 issued under the signature of the Superintendent of the Board requiring the petitioner to be present for hearing before the Board on 22.7.2010 at 3 P.M. The proceedings in relation to the trust in question was thus taken up by a Bench of the Board on 22.07.2010 comprising of the Chairman and the Judicial member and which was duly attended by the learned counsel appearing on behalf of the petitioner as well as the counsel representing the Board. The Bench considering the circumstances and the authorization made by the Board in its resolution dated 26.05.2010 and taking into consideration the fact that the hearing in the matter already stood concluded before 11.05.2010 by the Chairman/ President in his capacity as the Administrator of the Board, held that the Chairman was fully competent to pass judgment thereon and that there was no requirement for rehearing of the matter by the Bench. Records of the case were directed to be placed before the Chairman for necessary orders. As a consequence of the order dated 22.07.2010 placed at Annexure-A of the counter affidavit the records were placed before the Chairman of the 6 Board and who passed the order impugned dated 28.08.2010 as contained in Memo No. 880 placed at Annexure-13. The order passed by the Chairman is in two parts. The Chairman while exercising powers under Section 28(2)(h) read with Section 33 of the Act has appointed the District Magistrate as a temporary trustee against the vacancy occurring in the Managing Committee and by the same order has also declared the trust in question to be a public trust in exercise of powers vested in him under Section 28(2)(u) of the Act. It is this decision of the Chairman/President of the Board which is put to challenge before this Court. Mr. Giri, learned Senior Counsel representing the petitioner made the following submissions in support of his contentions:- (a) That the order passed by the respondent Chairman/President of the Board as contained in Annexure-13 was the patently illegal and contrary to the constitutional provisions. Even while the matter had been heard and concluded by the Administrator of the Board during the period of supersession, the Board having been reconstituted as on 11.05.2010, the Chairman/ President of the Board had no jurisdiction to pass any order since after 11.05.2010. 7 (b) Though Sections 38 and 39 undoubtedly enables the Board to delegate powers in extraordinary circumstances but in the case of present nature in which the matter after conclusion of arguments had remained pending for judgment for a period of more than six months, no extra ordinary situation arose. (c) The adjudicatory powers vested in the Board could not have been delegated by the Board and that the extent of delegation has been clearly spelt out in paragraph 43 of the bye- laws and which does not include adjudicatory functions. (d) The Adjudicatory function vested in the board requires an exercise of collective wisdom and the decision making process cannot be delegated to either a single member or even to a Bench comprising two persons. (e) The Board having been constituted on 11.5.2010 should have reheard the matter and passed appropriate orders. (f) The issue as regarding the nature of the trust having been considered and adjudicated on earlier occasions, there was no circumstance warranting the exercise of power by the Board 8 for reconsideration of the issue. (g) The relevant documents accompanying the writ petition sufficiently proved that the trust in question is in the nature of a private trust. (h) The declaration of vacancy of a trustee by the Chairman under Section 28(2)(h) followed by the appointment of the District Magistrate, Bhojpur as a temporary Trustee under Section 33 of the Act is patently illegal for the reason that there was no vacancy existing in the trust and without removal of any of the trustee by taking recourse to the eventualities set out in Section 28(2)(h), the action under Section 33 is without jurisdiction and without sanction of law. (i) The order impugned is a manifestation of the bias of the chairman/President of the Board against the petitioners. (j) The matter having been placed before the President/Chairman of the Board under the resolution dated 26.05.2010 followed by the order of the Bench dated 22.07.2010, the respondent Chairman/President of the Board should have conducted a rehearing. Learned counsel for the petitioner in support of his 9 contentions aforesaid relied upon the following judgments :- (a) 1993(1) PLJR 767 (Mahanth Motilal Goswami versus The State of Bihar & Others.) (b) 2003(4) PLJR 710 paragraphs 9 to 13 (Mahanth Vijay Das versus The State of Bihar and Others.) (c) 2007(2) PLJR 443 paragraphs 5, 7 to 9, 11 and 13 to 15. (Prem Sankar Bharatee Versus The State of Bihar & Others.) Mr. Ganpati Trivedi, learned counsel for the Board responding to the contentions advanced by Mr. Giri and the issues framed by him submitted that the writ petition itself was not maintainable and that the remedy for the petitioner lay before the Civil Court of competent jurisdiction. It was submitted that whether or not the trust in question was in nature of private trust or a public trust is a issue of fact and that this Court in exercise of its discretionary power vested under Article 226 of the Constitution of India would not delve into such disputed areas. The petitioner has an efficacious and alternative remedy before the Civil Court. The march of events has not been disputed by the learned counsel for the Board except that the allegation of the petitioner that the proceedings dated 26.05.2010 is ante 10 dated and that no proceeding/hearing took place on 22.07.2010 is denied. Mr. Trivedi also while denying the allegation of bias made against the Chairman submits that no such objection was ever raised by the petitioner at any stage of proceeding before the Board and was being raised for the first time before this Court. It was further submitted that no specific instance has been brought on record of the proceedings which demonstrated bias of the Chairman towards the petitioner. He further submits that although paragraph 43 of the bye laws of the Board earlier did not provide for delegation of powers of adjudication by the Board on the Chairman or any Bench constituted for this purpose but the situation underwent a change when the State Government vide Notification dated 6.05.2009 published in the Bihar Gazette extraordinary dated 06.07.2009 (Annexure-F) proposed certain amendments in paragraph 43 which provided as follows:- “Sections Existing Bye-Laws: Proposed Amendments 43. The powers and duties of the Board specified below shall exercised and performed by the President (i) In sub-clause(s) of the bye-law 43 after the words “temporary trustees” the following new words shall be added:-“and to appoint trustees in vacancies created by the removal under section 28(2)(h) subject to the wishes of the founder or to a mutual compromise 11 between the Board and the trust.” (ii) After sub-clause (zii) the following provisions shall be added:- “(ziii) to enquire into any serious case of dispute or serious allegation and take a decision after hearing the concerned parties.” “(ziv) to decide all disputes whether any trust is a public or a private trust” “(zv) may constitute a trust committee under section 32(1) of the Act:” “(zvii) to grant permission to the trustee or two persons interested in the trust for filing cases in Tribunal for the recovery of the alienated properties or for removal of the encroached trust properties or for the decision on the property disputes referred to it under any provision of the Act.” In response to the averment of the learned counsel for the petitioner that the said amendments were only proposed and never took a final shape, learned counsel for the Board relied upon Section 83 of the Act. He submits that Section 83(2)(k) provides for allocation of duties to the President/Chairman and the members by the Board. Learned counsel while relying upon Sub-Section 3 and the 12 proviso thereto submits that the objection raised by the learned counsel for the petitioners that the previous publication shall not take effect until it was approved and confirmed by the State Government, stands answered by the proviso which runs as follows: “Provided that if the State Government do not approve and confirm such bye laws within four months from the date of receipt thereof by the State Government, the said bye laws shall be deemed to have been approved and confirmed on the expiry of the said four months.” Learned counsel thus submits that in view of the statutory provisions referred to above the amendment to the bye laws proposed vide Gazette publication dated 6.7.2009 shall be deemed to have been approved and confirmed by the State Government and shall form part of the bye laws. Learned counsel for the Board proceeding therefrom submitted that it is in these circumstances that the resolution dated 26.05.2010 was passed by the Board authorizing the Chairman/President to pass final orders on the proceedings in which the hearing stood concluded prior to 11.05.2010, the date on which the Board was constituted. Learned counsel further submitted that it is under these very powers that the Bench was constituted by the Board for proper adjudication of the matters. In response to the contentions of the counsel for the petitioners that although the proceedings had been conducted by the Administrator, the order has been passed 13 by the Chairman/President of the Board, learned counsel submits that as the person who heard the matter while holding the post of Administrator and the Chairman/President of the Board who passed the order impugned are one and the same person, hence the objection is frivolous, excessively technical and does not warrant indulgence. Learned counsel in support of his submissions relied upon a judgment of the Supreme Court reported in (2007)4 SCC 54 paragraph 28 (Ashok Kumar Sonkar versus Union) which runs as follows:- “A Court of law does not insist on compliance of useless formality. It will not issue such direction where the result would remain the same, in view of the fact situation prevailing or in terms of the legal consequences. Further in this case, the selection of the appellant was illegal. He was not qualified on the cut of date. Being ineligible to be considered for appointment, it would have been a futile exercise to give him an opportunity of being heard” Learned counsel for the Board in response to the contentions raised by the petitioner that whereas the notice initiating proceedings, referred to Section 28(2)(h) and (3) of the Act but the scope of the proceedings were enlarged to determine even the nature of the trust, submits that the position in law stands well settled and that it is the substance of the notice which is to be considered and not the heading thereof. He further submits that the said lacunae in any case was removed by the Chairman under the 14 objection raised by the petitioner and which fact is manifest by the order dated 28.04.2009 placed at Annexure-15 of the rejoinder filed on behalf of the petitioner. Learned counsel for the Board concluding his argument submits that as the petitioner had not approached this Court with clean hands and had made incorrect statements which is manifest from the documents enclosed in the counter affidavit, the writ petition itself should be dismissed with cost. Learned counsel in support of his submission relied upon a judgment of the Supreme Court reported in (2008)12 SCC 481 paragraph 36 ( K.D. Sharma versus Steel Authority of India Limited and Others) I have heard learned counsel for the respective parties and have perused the materials available on the records. The order impugned evidently is in two parts. One part of the order deals with the appointment of a temporary trustee by the Chairman in purported exercise of power vested in him under Section 28(2)(h) and (3) read with Section 33 of the Act. The other part of the order adjudicates upon the nature of the trust in exercise of power vested in the Chairman under Section 28(2)(u) of the Act and under which the nature of the trust has been determined as a public trust. In the first instance I shall take up the issue regarding declaration of vacancy and appointment of a temporary 15 trustee by the Chairman. The plea of the petitioners that neither there was a vacancy in the post of trustees as petitioner No.2 continued to be a trustee nor the circumstances prevailing warranted the appointment of the District Magistrate as a temporary trustee could not draw a justifiable response from the learned counsel appearing on behalf of the Board. Neither the learned counsel for the Board could satisfy the Court that any such circumstance as envisaged under Sections 28(2)(h) and (3) was prevailing requiring exercise of power for removal and appointment of a temporary trustee under Section 33 of the Act nor the documents available on the records of the proceedings justifies such action. This Court thus in absence of the eventualities warranting action of removal and appointment of a temporary trustee as provided under the Act holds the order to be unsustainable being contrary to legal provisions and sets aside the order to that extent. This brings this Court to the second issue regarding the nature of the trust and the determination thereof by the Chairman/President and whether the act and the bye laws framed thereunder vested him with such powers. Undoubtedly, the bye laws as it existed did not authorize the Board to delegate its adjudicatory functions on the Chairman/President or any other person. The legislative intent reflected in Section 28 of the Act envisaged a system of 16 adjudication by the collective wisdom of the members constituting the Board. Had the situation remained as such, the matter would have been different and the case had to be remitted to the Board for fresh hearing and disposal, in the circumstances that the Board stood reconstituted on 11.05.2010. But that is not the position. The amendments to the bye laws having taken place much prior on 6.7.2009 and the mandatory period under Section 83 of the Act for approval or confirmation of the bye laws having expired four months thereafter in November, 2009, the proposed amendments stood incorporated in the bye-laws. As a consequence of the said position, the Board became fully authorized to delegate the powers of adjudication on the Chairman/President or any other member. The arguments in the case admittedly stood concluded on 18.12.2009 granting liberty to the petitioner to file any document by 15.1.2010. Admittedly, no document was filed by the petitioner or his counsel although a written notes of arguments were filed on his behalf on 18.12.2009 when orders were reserved in the case. It is again not in dispute that the person who conducted the proceedings, heard the matter and reserved judgment in the capacity of the Administrator of the Board is the same who has passed the order impugned in the capacity of the Chairman/President of the Board. The argument of the learned counsel for the 17 petitioner that though the person is the same but the capacity in which he heard the matter and has passed the adjudicatory orders are different thus rendering the order bad, is too far fetched to invite indulgence from this Court being hyper technical in nature. Adjudicatory order is a reflection of the opinion of the authority presiding over a quasi judicial proceeding and the opinion of a Presiding Officer would not change by a change in his position/ official capacity. The only factor relevant is that in either capacity he should be appropriately vested with such powers. It is manifest from the documents on the records of the proceedings that the Administrator was fully competent to hear the matter at the relevant time and as Chairman/President of the Board, was appropriately empowered to pass orders under the Act and the Bye laws. That being the position the issue raised by the petitioners that in absence of a hearing being given by the Chairman, the order impugned is unsustainable and has been passed in gross violation of the principles of natural justice, cannot be upheld and is rejected. The plea of bias also is misplaced as I find that at no stage of the proceedings before the Board did the petitioner ever raise such plea. I, would however like to clarify that this Court has not delved into the merits of the order in so far as the declaration 18 of the trust is concerned and the petitioner shall be at liberty to challenge the declaration in an appropriate proceeding before a Civil Court of competent jurisdiction in the light of the judicial pronouncements reported in 2008(2)PLJR 812 paragraph 7 (Nagendra Nath Shukla and Anr. Versus The State of Bihar and others) and 2009(2)PLJR 906 paragraph 11 (Bihar State Board of Religious Trusts versus Sri Raja Prasad Agrawal). In the result, the application is allowed in part. The impugned order dated 28.08.2010 to the extent of appointment of a temporary trustee is set aside. As the authority of the Chairman/President to pass the order under Section 28(2)(u) of the Act has been upheld, hence this Court without entering into the merits of the order disposes of the writ petition with a liberty to the petitioner to challenge the validity of the order passed under Section 28(2)(u) of the Act declaring the trust in question as a public trust before a Civil Court of competent jurisdiction and which shall be heard and decided on its own merits, in accordance with law. Bibhash ( Jyoti Saran, J)