IN THE HIGH COURT OF JUDICATURE AT PATNA. L.P.A. No.534 of 2006 ------- Bihar State Board of Religious Trust, Vidyapati Marg, Patna-800 001 … Respondent/Appellant versus 1. Sri Raja Prasad Agrawal, son of Late Brij Kishore Agrawal @ Fuddi Babu, Resident of 102, NTPC Colony, Ashiana Nagar, Town & District- Patna. 2. Sri Atul Kumar Agrawal, son of Late Hira Lal Agrawal, Resident of G-7, Rajni Path, P.C. Colony, Kankarbagh Colony, Town & District- Patna. …… Petitioners/ Respondents. ------- For the appellant : Mr. Shekhar Singh, Advocate Mr. Ambuj Nayan Chaubey, Advocate For the respondents : Mr. L.N.Das, Advocate Mr. Bipin Kumar, Advocate -------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------ Dated, the 02nd December, 2008 I.A. No.3137 of 2006 The appeal suffers from delay of eighty eight days. For condonation of delay, the present application has been made. The cause has been set out thus: “5. That as soon as the order impugned dated 4.4.06 was passed allowing the writ application treating the Trust as private trust and not the public trust as decided by the appellant, there was none to take such a vital decision to challenge the same under L.P.A. even after knowing and judging that the order passed by the Hon‟ble Single Judge was erroneous, bad in law, without jurisdiction and against the law, settled by our own High Court time and again. - 2 - 6. That on 23.5.2006 the State Government was pleased to appoint an Administrator cum O.S.D under Section 8A, inserted in the Act by Amendment Act 21 of 1992. 7. That after the joining of the learned Administrator cum O.S.D. on 23.5.06, the file was put up before him. 8. That on 12.6.2006, the learned Administrator was pleased to direct the office to take step for filing the L.P.A. 9. That the memorandum of appeal after being prepared by the learned Standing counsel for the Appellant Board sent to the office of the Board immediately on 19.6.2006. 10. That the Learned Administrator upon perusal of the Memorandum of Appeal called for a judgment reported in 1968 B.L.J.R-197 (Mundrika Kuer Vrs. Board) decided by the Division Bench of this Hon‟ble Court passed in C.W.J.C.No.650/1967 and once again directed to proceed in the matter. 11. That the record along with the Memorandum of Appeal was again sent to the office of learned Standing Counsel for the Board on 22.7.2006 (Saturday). 12. That on 25.7.2006, a letter was sent to the Superintendent to Board his comment and instruction upon the delay caused for filing the condonation application under Section 5 of the Limitation Act for condoning the delay in filing the Appeal. 13. That it is stated that in the interest of Justice and for the judicious opinion from the learned Advocate General, Bihar, the learned Advocate General was consulted with regard to filing the instant L.P.A. against the impugned order dated 4.4.2006 and after that the record were sent on 22.7.2006 for filing the L.P.A before this Hon‟ble Court.” 2. The aforesaid facts have not been traversed by the respondents. 3. Upon careful consideration of the averments afore- noticed, we are satisfied that the appellant was prevented by sufficient cause in filing the appeal in time. 4. We, accordingly, condone the delay in filing the appeal. 5. We heard the counsel for the appellant and the respondents in appeal. - 3 - 6. The present respondents ( hereinafter referred to as „the petitioners‟) filed the writ petition before this court challenging the resolution dated 07th August, 2004 passed by the Bihar State Board of Religious Trust (appellant herein and to be referred hereinafter as „the Religious Trust Board‟) whereby the subject trust has been declared public trust. The petitioners also prayed for quashing the notice dated 17th February, 2005 issued by the Religious Trust Board for initiating penal action against the trustees under Section 28(2) (h) and Section 32 of the Bihar Hindu Religious Trust Act, 1950 (for short, „Act, 1950‟) for non-compliance of the resolution dated 07th August, 2004. 7. In challenging the resolution dated 07th August, 2004 and the notice dated 17th May, 2005, the principal ground that has been set up by the petitioners is that the trust is a private endowment which was created by Raghunath Das for his family idol and ancestral temple situated at Naya Bazar (Mahajan Toli), Bhagalpur. It was also stated that the trustees of the trust are the legal heirs, successors and representatives of the original endower Late Raghunath Das. 8. From perusal of the order passed by the Single Judge, however, it appears that it was submitted by the petitioners before the Single Judge that there was dispute appertaining to immovable properties belonging to religious trust and that can only be decided by the authority mentioned in Section 43 of the Act, 1950 and since no authority under Section 43 has not been constituted, the Board was required to approach the Civil Court. The Single Judge was pursuaded - 4 - by the submission made on behalf of the petitioners and allowed the writ petition. 9. We are afraid, the controversy in the writ petition, related mainly to the subject trust having been declared a public trust. The challenge was to the resolution dated 07th August, 2004 and the notice for non-compliance of that resolution. 10. Section 2 of the Bihar Hindu Religious Trust Act, 1950 defines the „religious trust‟ in section 2(l) and the „trust property‟ in Section 2(p) which read thus: “2(l) “religious trust” means [and shall be deemed always to mean] any express or constructive trust created or existing for any purpose recognized 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 community and a private endowment created for the worship of a family idol in which public are not interested and where public offerings and donations are not received.” “2(p) “trust property” means the property appertaining to a religious trust.” 11. Section 28 provides for general powers and duties of the Religious Trust Board. Clause (u) of Sub-section (2) to Section 28 empowers the Religious Trust Board to decide all issues whether any trust is a public or a private trust in accordance with the definition under section 2(l) of the Act, 1950 and the decision of the Board remains in force until it is set aside by a competent court. The Religious Trust Board has not adjudicated any dispute relating to trust property. What they have held is that subject trust is a public trust vide - 5 - its resolution dated 07th August, 2004. If the petitioners are aggrieved by the aforesaid resolution, they have to approach competent court for setting aside the said resolution. Any decision given by the Religious Trust Board on a question whether the trust is a public or a private trust is subject to final decision by the competent court, but it is for the person aggrieved by such finding to approach the competent court. 12. In so far as Section 43 is concerned, it relates to constitution of a Tribunal for deciding property disputes under Section 43B and for taking decisions under Section 43C and other matters relating to trust property under section 43D, 43E and 43F and other incidental matters provided under Sections 44 and 72. 13. Section 43B empowers the Tribunal specifically to decide the property disputes only; (i) whether any immovable property is or is not a property of a particular trust and (ii) whether any particular property claimed by the Mahanth, Shebait, priest or a trustee is his personal property or the property of the temple or math. As a matter of fact, as noticed above, the question in the writ petition did not relate to adjudication of property disputes, but the question related to subject trust having been held as a public trust, although the petitioners claimed that the said trust is a private trust. If the petitioners are aggrieved by the said decision of the Religious Trust Board, as noticed above, in view of the provisions contained in Section 28(2) (u), they have to approach the competent court and have such decision annulled if they are able to prove that the trust is not a - 6 - public trust. In other words, the legality and correctness of the resolution dated 07th August, 2004 is needed to be challenged by the petitioners by approaching competent civil court as provided in Section 28(2) (u) of the Act, 1950 itself. 14. In so far as challenge to the notice dated 17th May, 2005 is concerned, it is a notice issued by the Religious Trust Board to the trustees for non-compliance with the resolution of the Religious Trust Board dated 07th August, 2004. It is always open to the petitioners to file their written response to the notice. Surely, the Religious Trust Board shall consider the cause shown by the petitioners and then take appropriate decision thereon. 15. In our considered view, the matter has not been considered by the Single Judge in right perspective as indicated above. Consequently, the order dated 04th April, 2006 passed by the Single Judge has to be set aside and is set aside. The petitioners shall be at liberty to approach the competent court in accordance with law for setting aside the resolution dated 07th August, 2004. 16. No order as to cost. R.M. Lodha, CJ Kishore K. Mandal, J. Sunil