IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.10085 of 2006 Shio Sundar Bharti Son of Late Parmanand Bharti resident of village Madanpur Police Station and District-Araria. --------------------Petitioner Versus 1. The State of Bihar 2. The Bihar State Board of Religious Trusts, Vidyapati Marg, Patna. 3. The Administrator cum the Special Executive Officer, The Bihar State Board of Religious Trusts, Vidyapati Marg, Patna. 4. The Collector of the District of Araria. 5. The Additional Collector, Araria. --------------------Respondents --------------------------------- 12. 01.12.2011 Heard Mr. Shashi Shekhar Dwivedi, learned Senior counsel for the petitioner and Mr. Shekhar Singh, learned counsel for the State. The writ petition has been filed for quashing of the order of Administrator-cum-Special Executive Officer of the Bihar State Board of Religious Trusts (hereinafter referred to as the „Board‟) contained in order dated 21.7.2006 by which Anchal Adhakari, Araria has been directed to hold charge of immoveable property of the temple in question. The challenge to the orders impugned is basically on the ground that the temple in question was never declared as a trust in as much as there is no document to this effect. In that view of the matter, learned counsel for the petitioner submits that the Board has no jurisdiction over the aforesaid temple in question while passing interim orders dated 21.11.2006. 2 This Court had in order dated 21.11.2006 noticed the said facts. The relevant portion is quoted hereinbelow. “The question in dispute is as to whether the Mandir in question is a private Mandir or public Mandir. It is quite apparent from the records that the survey entry was in the name of the petitioner‟s father as owner. Ceiling case was also decided in his favour on the basis of verification report, according to which, it was a private property. The state had also filed a title suit with respect to the said property, but the said suit was dismissed for default and miscellaneous case arising out of it was also dismissed”. Learned counsel for the Board was granted two weeks time to file counter affidavit. A counter affidavit has been filed today but it does not deal with the merits of the case and still it is submitted that since under Section 28 (2) (v) of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the „Act‟) the Board has power to decide the dispute whether any trust is public or private trust in accordance with the definition under Section 2 (l) of the Act. Learned counsel for the Board has also relied upon two decisions of this Court in the case of Mundrika Kuer Vs. President, Bihar State Board of Religious Trusts, reported in 1968 BLJR 197, the relevant being at paragraph 4 which in effect lays down that the question whether a trust is a public or private trust cannot be decided in writ proceeding as it is 3 a mixed question of fact and law for which elaborate evidence both oral and documentary will have to be adduced by the concerned parties. He also relied on the decision rendered in the case of Bihar State Board of Religious Trust Vs. Sri Raja Prasad Agrawal reported in 2009 (2) PLJR 906 in which it is held that the question whether the trust is a public or the private trust can be decided by the Tribunal under Section 28 (2) (u) of the Act. The dispute as to whether any trust is a public or private trust can be decided by the Board and shall remain in force until it is set aside by a competent Court. Further, under Section 43 (B) it is the Tribunal which shall decide with regard to the property belonging to a particular trust. Learned counsel for the petitioner while rebutting the same states that there is specific averment in the writ petition that the Trust was never created as there was no endowment and thus there cannot be any question of the matter being decided whether it is a private or a public trust. He states that even by the order dated 21.11.2006 it is clear that this was one of the main points on which the order impugned was assailed and the Board in the counter affidavit not dealing with the same implied that the fact pleaded that there is no endowment and there is no trust created with regard to 4 the said temple was admitted. The categorical statement in this regard is at paragraph 11 of the writ petition which states that there has never been any endowment or any gift or any kind of deed for transfer of the family property of the petitioner either in favour of the temple or the deities. Considering the facts and circumstances of the case, this Court is inclined to agree with the submission made by learned counsel for the petitioner. The question of relegating the petitioner back either to the Tribunal or any other authority is not appropriate at this stage and the decisions cited by learned counsel for the Board are not appropriate in the facts and circumstances of this case primarily for the reason that in those cases the question was whether the trust was a public or private trust unlike the present case where the moot question is whether there is a trust or not, which in view of the categorical averments made in the writ petition and which have gone unrebutted, this Court is left with no option but to hold that there has been no such endowment and therefore no trust has been created. In such circumstances, there is no question of any decision whether it is private or public trust. In view of the foregoing discussions, the order dated 26.6.2006 passed by the Administrator-cum- 5 Executive Officer of the Board as well as the order dated 21.7.2006 passed by the Collector, Araria is hereby quashed. This order shall however, not preclude the Board from moving in accordance with law, if there exists sufficient factual and legal material for doing the same. Anand Kr. (Ahsanuddin Amanullah, J.)