1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3933 of 2003 KASERA DHARAMSALA,RAJGIR through its present Trustee Ram Awtar Prasad, son of late Ram Saran Sao, resident of village Pareo, P.S.Bihta, District Patna------petitioner Versus 1.THE BIHAR STATE BOARD OF RELIGIOUS TRUST through its Chairman, Vidyapati Marg, P.O. and P.S. Patna 2.The Chairman, Bihar State Board of Religious Trust, Vidyapati Marg, Patna 3.The O.S.D., Bihar State Board of Religious Trust, Vidyapati Marg, Patna 4.The Collector, Nalanda District Nalanda (Bihar) 5.The Circle Officer, Rajgir, District Nalanda-respondents ----------- For the petitioner :M/S D.K.Sinha, Sr.Advocate Bajarangi Lal, Advocate For the Religious Board:Mr.Shekhar Singh, Advocate For the State :Mr.Md.Obaidullah, AC to G.P.6 ---- 6. 19.4.2010 Heard learned counsels for the parties. The writ application has been filed for quashing the Memo No. 3868 dated 25.10.2002 by which the Bihar State Board of Religious Trust had directed the respondent No.4, the Collector, Nalanda to take over the moveable and immoveable property of the petitioner Dharamsala through the respondent No.5, the Circle Officer; and also to quash the letter No. 1170 dated 31.7.1993 by which the Board had superceded the Trust Committee and appointed the respondent No.5, the Circle Officer, Rajgir as the temporary trustee of the Dharamsala; and for a further direction to 2 the respondent Trust Board for holding proper enquiry and declare the Dharamsala in question as a private religious trust and then release the same from the Religious Trust Board. The facts of this case need not be gone into detail on account of the nature of the order which I propose to pass. The petitioner Dharamsala is situated at Rajgir and earlier it had been filing its statement of accounts with the Trust Board from 1951-62, paid as fee Rs.2916.75 for the Trust up to 1975-76 to the Board and was also allotted a Registration No. 1130 on the records of the respondent No.5 and, thus, was being treated as a public trust by the Board. Subsequently, it stopped filing the statements and returns and, accordingly, by the order dated 31.7.1993 (Annexure-2) the then Administrator of the Religious Trust Board after issuing the show cause to the members of the Trust Committee stating that the statement of account from financial year 1975-76 to 1991-92 and the budget for 1991-92 as also the arrears of the fee of the Board amounting to approximately Rs.4,500/- not 3 having been submitted by them, they were to show cause as to why the Trust should not be dissolved under the provisions of Section 29(2) of the Act and action should not be taken under Section 33 of the Act. Thereafter by the order dated 31.7.1993 (Annexure-2) the Trust Committee was dissolved under Section 29(2) of the Act and under Section 33 the Circle Officer, Rajgir was appointed as a temporary trustee until further orders. The stand of the petitioner which is not effectively controverted in the counter affidavit filed on behalf of the Board is that the Circle Officer, Rajgir did not take any action on the aforesaid order and much later in 1998 directed the Circle Inspector to make an enquiry. The Circle Inspector in his report dated 24.1.1998 stated that the alleged Kasera Dharamsala is not a Dharamsala but the Kasera Vikash Bhawan and is not run like a religious trust; rather it is a caste organization for the benefit of the members of the caste and its property is private property. It is alleged by the petitioner that no action was 4 taken thereafter and suddenly on 25.10.2002 the Religious Trust Board issued the impugned letter to the Collector, Nalanda referring to the earlier order dated 31.7.1993 stating that the taking over of the charge of the said trust has not yet been communicated to the trust, as a result of which the trustees are misusing the income of the trust and attempting to change its nature and again requested the Collector to direct the Circle Officer, Rajgir to take charge of the petitioner Dharamsala. Aggrieved by the same, the present writ application is filed. Learned counsel for the petitioner submits that mere submission of returns due to lack of knowledge of consequences does not convert a private trust into a public trust under the control of the Bihar State Religious Trust Board and until the said issue is decided it is not appropriate for the Trust Board to take any action under Section 29 of the Act. It is further submitted that the authorities of the Trust Board have acted in a 5 most unreasonable manner as no show cause was issued before the impugned order under Section 29(2) was passed. It is pointed out by learned counsel that the Trust Committee has continued to function as a private trust over the trust and its property despite the order dated 31.7.1993 and subsequently after the filing of the writ application the same position has continued on account of the interim order of status quo passed by this Court. Learned counsel for the Trust Board, on the other hand, submits that the erstwhile trustees of the petitioner trust had been filing returns continuously and the statement of accounts with the Trust Board as also depositing the fee till the year 1975-76 which goes to show that the trust in question is a public trust. It is further contended that the order dated 31.7.1993 under Section 29(2) of the Act has never been challenged for which the statutory provision has been made under Section 29(3) of the Act and, thus, the same has acquired finality. 6 It is true that the order under Section 29(2) ought to have been challenged by the petitioner when the same had been passed but it is also true that the said order though passed in the year 1993 has not been acted upon at any point of time and there is a report of the Circle Inspector of 1998 that from the records it appears that the Dharamsala is a private trust and not a public body. In the meantime the Bihar Hindu Religious Trusts Act, 1950 has been amended and in sub-section (2) of Section 28 of the Act by the new clause (u) power has been conferred upon the Board to decide all disputes whether any trust is a public or private trust in accordance with the definition under section 2(1) of the Act and the decision of the Board is to remain in force until it is set aside by a competent court. In view of the aforesaid facts and circumstances and the amendment to the Act, this Court is of the view that since the petitioners have raised an issue that the 7 trust in question is a private trust it would be best that the said matter is set at rest by an appropriate order under Section 28(2)(u) of the Act by the Trust Board itself. Hence, the orders dated 31.7.1993 and 25.10.2002 are set aside and the Trust Board to directed to decide the issue as to whether the petitioner is a public or private trust in terms of Section 2(1) of the Act. The petitioners are directed to appear before the Board along with their claim in this regard on or before 17th May, 2010 whereupon the Board shall consider and decide the matter in accordance with law within a further period of two months thereafter. The writ application is, accordingly, partly allowed subject to the aforesaid observations and directions. (Ramesh Kumar Datta,J.) spal/