IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.204 of 2002 SHYAM BALLABH MISRA & ORS Versus BIHAR STATE BOARD OF RELIGIOUS TRUST & ORS. ----------- 7 15/4/2009 Heard counsel for the petitioners, counsel for the Bihar Hindu Religious Trust Board and counsel for respondent no.4 as also counsel for the State. Shorn of niceties, the only issue involved in this writ application pertaining to legality and validity of certain orders passed by the authorities of the Board as contained in Annexures-1,2 and 3 is that as to whether the temple of Sri Ram Lakshamnjee, Shanker Jee and Ganesh Jee in village Mathila in the district of Buxar is a public religious trust or private trust ? Grievance of the petitioners claiming to be Sebait of such trust is that even when section 34 of the Act vests power with the Board to register any public trust by entering into the register of the Board such power has been vested in the Board and not in its Chairman. Counsel further submits that such recording even in the register of the Board by 2 registering the properties of the public trust must be done after conducting enquiry which was never done in the present case of the petitioner. He would, therefore, submit that the decision taken by Chairman of the Board as would be apparent from reading of Annexures-1,2 and 3 is wholly without jurisdiction and in teeth of the provisions made in section 34 of the Act. Counsel for the Board as also counsel for the private respondents have tried to go into merits of the case by projecting that the deed of endowment of the said temple by itself is glaring proof to the fact that it fulfills all the test of public religious trust as defined under section 2 (1) of the Act. They have, therefore, submitted that once there was sufficient evidence and proof, the decision of the Chairman of Board ordering for registering the property as public religious trust cannot be said either factually or legally incorrect and therefore this writ application is fit to be dismissed. 3 In the opinion of this Court, counsel for the petitioners is correct in his submission that if for exercise of power, a manner is prescribed in the Act for registering any property as public religious trust in terms of section 34 of the Act that has to be complied. There can be no two views about the scope of section 34 of the Act which lays down that such decision has to be taken by the Board and that too after holding "such enquiry". There can be again no dispute on this score that the order has not been passed by the Board rather the same was passed by its Chairman on the recommendation of the Office Superintendent and that too without holding any enquiry muchless an enquiry envisaged under section 34 of the Act. In that view of the matter, this Court would set aside the decisions/impugned orders as contained in Annexures- 1,2 and 3. Since now power for deciding as to whether a property is part of public religious trust or private trust, has been vested with the Board under section 28 (2) (u) of the Act the 4 matter is remitted to the Board/Administrator to decide the issue as to whether the said temple and its property is public religious trust within the meaning of section 2 (l) of the Act or is still a private trust. Such decision must be taken after affording opportunity of hearing to the petitioners as also any other person including respondent no.4, who may lead their evidence to prove their respective contentions with regard to property either private or public trust. The petitioners and Respondent no. 4 are therefore directed to appear on 11th May, 2009 at 3.30 P.M. before the Administrator along with a copy of this order, whereafter the Administrator will either hear the matter on the same day or fix any other date of hearing in order to ensure that the matter is finally disposed of by 11th June, 2009. In view of the fact that this Court by interim order dated 24.7.2002 had afforded certain protection to the petitioners that they would not be removed as Sebait and Pujari of the aforementioned 5 temple, the petitioners’ same status would continue till a final order is passed by the Board/Administrator in the manner as indicated above. At the same time, it is also directed that the petitioners will not alienate any of the property of the temple/trust till a final order is passed by the Administrator. With the aforementioned observation and direction this application is disposed of. (Mihir Kumar Jha, J.) Abhay Kumar