IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3588 of 2002 1. KHATESHWAR NATH MAHADEOJEE deity through its Shebait Sri Lakshmi Narain Goswami (Gosain), installed in a temple in Mohalla Gudari Bazar, Balbhadrapur, Laheriasarai, District-Darbhanga. 2. Shyam Kishore Goswami, S/o Late Lakshmi Narain Goswami, Resident of Mohalla Gudari Bazar, Laheriasarai, District-Darbhanga. .............Petitioners. Versus 1. THE BIHAR STATE HINDU RELIGIOUS TRUST BOARD, Vidyapati Marg, Patna through its Chairman. 2. The Chairman, Bihar Hindu Religious Trust Board, Vidyapati Marg, Patna. 3. The District Magistrate, Darbhanga at Laheriasarai, District Darbhanga. 4. The Block Development Officer, Bahadurpur, District Darbhanga. 5. Sri Kanhaiya Prasad, S/o not known to petitioner, resident of Mohalla Gudari Bazar, Laheriasarai, Darbhanga. 6. Sri Raman Panjiar, S/o not known to petitioner, resident of Mohalla Pandasarai, Laheriasarai, District Darbhanga. 7. Sri Upendra Pradhan S/o not known to petitioner, resident of Mohalla Pandasarai, Laheriasarai, District Darbhanga. 8. Sri Dinesh Panjiar son of not known to petitioner, resident of Mohalla Pandasarai, Laheriasarai, District Darbhanga. 9. Sri Kedar Mahto s/o not known to petitioner, resident of Mohalla Pandasarai, Laheriasarai, District Darbhanga. 10. Sri Ramakant Lal son of not known to petitioner, resident of Mohalla Pandasarai, Laheriasarai, District Darbhanga. 11. Sri Mukesh Paswan son of not known, resident of Mohalla Laheritola, Laheriasarai, District Darbhanga. 12. Sri Dilip Khatik, son of not know, resident of Mohalla Gudari Bazar, Laheriasarai, District Darbhanga. 13. Sri Arun Purbey, son of not know, resident of Mohalla Bakerganj, Laheriasarai, District Darbhanga. 14. Sri Kusheshwar Mahto, son of not known, resident of Mohalla Laheritola, Pandasarai, Darbhanga. 15. Sri Ganesh Yadav son of not known, resident of Mohalla Pandasarai, Laheriasarai, District Darbhanga. 16. The Board representative, Bihar State Religious Trust Board, Vidyapati Marg, Patna. 17. The State of Bihar. ...........Respondents. ----------- 2 For the Petitioners : Mr. Durga Nand Jha, Adv. For respondent no. 6 : Mrs. M. Chatterjee, Adv. Mr. Vinay Kuma Mishra, Adv. For Bihar State Board of Religious Trust : Mr. Shekhar Singh, Adv. --------------- 11/ 09.02.2011 Heard the parties. 2. The present writ petition has been filed on behalf of the petitioners questioning the validity of notification dated 19.10.2001 (Annexure-1) issued under the signature of the Chairman of Bihar State Board of Religious Trust, Patna, whereby in exercise of powers conferred under Section 28 of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the Act), the Trustee of Shree Khateshwar Nath Mahadeojee Mandir has been removed and scheme has been settled by the respondent Board in terms of Section 32 of the Act for proper administration of aforesaid Religious Trust and a Trust Committee of 13 persons, named therein, has been constituted. 3. Mr. Durganand Jha, learned counsel, appearing on behalf of the petitioners has assailed the validity of the impugned notification primarily on the ground that the trust in question is a Private Trust and, therefore, the respondent Bihar State Board of Religious Trust and its Chairman had no jurisdiction/power to remove the previous trustee in 3 terms of Section 28 of the Act and constitute a new Trust Committee in terms of Section 32 of the Act. He further submits that some dispute regarding trust in question was raised in a Title Suit and that finally concluded in Second Appeal No. 1345 of 1958 vide judgment dated 30th August 1962, reported in 1963 B.L.J.R. 44 (Profulla Kumar Banerji alias Profulla Kumar Mukherji Vs. Lakshmi Narain Gossain). He also submits that before determination of the issue as to whether the trust in question is a public trust or not, the impugned notification could not have been issued. 4. Mr. Shekhar Singh, learned counsel appearing on behalf of respondent nos. 1 and 2 and Mrs. M. Chatterjee, learned counsel appearing for respondent no. 6, have placed reliance on their counter affidavits filed on behalf of the respective respondents and have supported the impugned action of the respondent Bihar State Board of Religious Trust. 5. It is submitted on behalf of the respondents that in the Title Suit filed earlier leading to Second Appeal No. 1345 of 1958, dispute was regarding shebaitship of the trust in question, and no issue was either raised or decided either 4 by the trial court or by this Court that the trust in question is a public trust. Therefore, in their submission, the aforesaid judgment, reported in 1963 B.L.J.R. 44 would be inapplicable in the present case. It is further submitted that as to whether a particular trust is a public trust or private trust is a mixed question of law and facts and has to be decided on the basis of evidence led by the parties. In support of this contention, a reliance has been placed on a Division Bench judgment of this Court in the case of Mundrika Kuer V. President, Bihar State Board of Religious Trust, and others, reported in 1968 BLJR 197 (Paragraph 4). Lastly it has been argued on behalf of the respondents that dispute as to whether any particular trust is a public or private trust has to be decided by the respondent Board under the Provisions of Section 28 (2) (u) of the Act and, therefore, if the petitioners are at all aggrieved by the impugned notification, they may approach the Board for its adjudication on the basis of materials produced by them. 6. Having heard the parties at length and after having considered the submissions made on their behalf, this Court finds that on the previous occasion in Second Appeal No. 1345 of 1958 (Profulla Kumar Banerji alias 5 Profulla Kumar Mukherji Vs. Lakshmi Narain Gossain), the issue was regarding shebaitship between two individuals, and the question whether the trust is a public or private was not decided there. Therefore, on the strength of the aforesaid judgment, the petitioners cannot be permitted to raise the question of the validity and legality of the impugned notification. The question as to whether it is a public or private trust has not been decided by any court of law or any authority after giving opportunity of hearing to all concerned including respondent Bihar State Board of Religious Trust. Therefore, on the basis of previous decisions, in which respondent Board was not a party, the petitioners cannot be permitted to raise the issue that it is a private trust. 7. This Court further finds that now there are specific provisions under the Act itself and Board is fully empowered to decide the issue under Section 28 (2) (u) of the Act, which is relevant and is being reproduced hereinbelow: “28 (1) xx xx xx (2) Without prejudice to the generality of the provisions of sub- section (1), and subject to the other provisions of this Act, the powers and duties of the Board shall be— 6 (a) xx xx xx (u) to decide all disputes whether any trust is a public or a private trust in accordance with the definition under section 2 (1) of this Act and the decision of the Board shall remain in force until it is set aside by a competent court.” 8. From the plain perusal of the impugned notification (Annexure 1), it appears that a show cause notice was issued to the previous trustee, but no reply to show cause was filed, whereafter the impugned notification as contained in Annexure 1 was issued. Therefore, there has been no infraction of the principle of natural justice and as such, the impugned notification cannot be faulted. Consequently, the writ petition fails and it is accordingly dismissed, but no costs. 9. However, the petitioners, if so advised, may file a representation before respondent Bihar State Board of Religious Trust raising a dispute in terms of Section 28 (2) (u) of the Act. If such a dispute is raised within a period of one month from today, then respondent-Board shall be obliged to decide the dispute as to whether the trust in question is a public trust or private trust, within a period of two months from the date of raising of such dispute. Till the 7 matter is finally concluded by the respondent Board, the status quo as obtaining today shall be maintained by the parties. Anjani/ ( Birendra Prasad Verma, J )