Case: The State Of Bihar &amp; Others Vs. Bhabapritananda Ojha

1. This is an appeal from the judgment and order of the High Court of Patna dated 9-10-1953 in Miscellaneous Judicial Case No. 181 of 1953 of that Court (AIR 1954 Pat 262  , Bhabhapritananda Ojha v. Bihar State Board of Religious Trusts.). It relates to a temple commonly known as the Baidyanath temple situate in the town of Deoghar within the limits of Santhal Parganas in the State of Bihar.For the purposes of this appeal it will be necessary to refer to some earlier litigation about this temple. The history of this temple, it is not disputed, goes back to remote antiquity. According to Hindu tradition referred to in the Siva Purana and Padma Purana, extracts from which, with translations, are given by Dr. Rajendra Lal Mitra in his paper on the Temples of Deoghar (see Journal of the Asiatic Society of Bengal, Part 1, 1883, quoted in the Bihar District Gazetteer relating to Santal Parganas, 1938 edition pp. 373-376), the origin of the temple is traced to the Treta Yuga, which was the second age of the world by Hindu mythology. Side by side with Hindu tradition, there is a Santal tradition of the origin of the temple given by Sir William Hunter (see the Annals of Rural Bengal, p. 191; Statistical Account of Bengal Vol. XIV, p. 323). But these materials afford no evidence as to when and by whom the idol was established or the temple was built.The temple sheltering the "lingam" and dedicated to Mahadeva stands in a stone-paved quadrangular courtyard. The courtyard contains eleven other temples, smaller in size and of less importance than that of Baidyanath. Pilgrims visit the temples in large numbers and make offerings of flowers and money in silver or gold; rich people offer horses, cattle, palaquins, gold ornaments and other valuables and sometimes, rent-free land in support of the daily worship. There is a high or chief priest (Sardar Panda) who it appears used to day a fixed rent to the Rajas of Birbhum during the Muhammadan regime, and the administration of the temple was then left entirely in the hands of the high priest. It may be here stated that about 300 families of "pandas", who belong to a branch of Maithil Brahmins, were attached to the temple and earned their livelihood by assisting pilgrims in performing the various ceremonies connected with the worship of the God. When the British rule began, it was decided to take over the management of the temple, and with this object an establishment of priests, collectors and watchmen was organised in 1787 at Government expense. The revenue soon fell off, as the chief priest beset the avenues to the temples with emissaries, who induced the pilgrims to make their offerings before approaching the shrine. (See the District Gazetteer, ibid, p. 383). In 1791 Government relinquished its claim to a share of the offerings and entrusted the management of the temple to the head priest on his executing an agreement to keep the temples in repair and to perform all the usual ceremonies. This agreement was entered into by Ram Dutt the (ancestor of the present respondent), then high priest of the temple, and Mr. Keating who was then Collector of the district. According to Mr. Keating the income of the temple in 1791 consisted of the offerings of the proceeds of 32 villages and 108 bighas of land which he estimated at Rs. 2,000 a year; some years later the total income was estimated at Rs. 25,000 a year. Under the system introduced by the agreement of 1791, the mismanagement of the temple was a source of constant complaint; the temple and "ghats" were frequently out of repair and the high priest was charged with alienating villages from the temple and treating his situation as a means of enriching himself and his family. On the death of the high priest in 1820 a dispute over the succession arose between an uncle and a nephew. The nephew Nityanand was eventually appointed, but neglected to carry out the terms of his appointment. Finally, Nityanand was charged with malversation of the funds and the uncle Sarbanand was appointed in his stead inThere was a faction which was opposed to Sarbanands retention in office and asked for Government interference in the internal management of the temple. In 1835 Government declined all interference in the matter and the parties were left to have recourse to the established Courts of law. Sarbanand died in 1837 and Iswaranund Ojha, son of Sarbanand Ojha, was subsequently elected Sardar Panda. Iswaranund was succeeded by his grand-son, Sailajanund Ojha.There were, however, frequent disputes between the high priest and the pandas" regarding the control of the temple and in 1897 a suit was filed under S 539 (now S. 92) of theCode of Civilin the Court of the District Judge of Burdwan. This was Suit No. 18 of 1897 which was decided by the learned Additional District Judge of Burdwan by his Judgment datedSailajanand Ojha was dismissed by the order of the Court, as he by his conduct and behavior and by causing loss to the Debutter properties rendered himself unfit and disqualified to hold the post of Sardar Panda and trustee of the temple of Baidyanath. It was further ordered by the learned Additional District Judge in the decree granted by him that some fit person be elected as Sardar Panda by the "pandas" of the temple and that the affairs of the temple be managed under a scheme which was framed by the learned Additional District Judge and formed a part of the decree. Under this scheme three persons were to be appointed to look after the temple and its properties and for a proper administration of the same. One of these three persons was to be elected from amongst the descendants of Ram Dutt Jha. After this Umeshanand Dutta Jha; second son of Iswaranund Ojha, was elected Sardar Panda. On the death of Umeshanund Dutt Jha, Bhabapritananda Ojha, who was the petitioner in the High Court and is now respondent before us, was appointed Sardar Panda. Bhabapritananda is the grand-son of Sailajmanda Ojha, and we shall hereinafter refer to him as the respondent.5. The scheme which was framed as a result of the decision in Civil Suit 18 of 1897 was confirmed by the Calcutta High Court and the decision of the High Court is reported in Shailajananda Dut Jha v. Umeshanunda Dut Jha, 2 Cal LJ 460. This scheme was modified in a subsequent litigation in 1909, when one of the members of the committee applied to the District Judge for a modification of the scheme. The application was first dismissed, but the matter was taken to the Calcutta High Court, and on 8-9-1910 that Court on the authority of the decision of the Judicial Committee in Prayag Doss v. Tirumala; ILR 30 Mad 138 and with the consent of counsel on both sides, directed the insertion of two clauses in the decree; by one of these clauses, liberty was reserved to any person interested to apply to the District Court of Burdwan with reference to the carrying out of the directions of the scheme and by the other clause, liberty was reserved to any person interested to apply from time to time to the Calcutta High Court for any modification of the scheme that might appear necessary or convenient. Under these two clauses the members of the committee subsequently applied to the District Judge of Burdwan that certain directions might be given to the high priest; the high priest opposed the application on the ground that it was in essence an application for modification of the scheme and could be entertained only by the High Court. The learned District Judge overruled this objection. The matter was again taken to the Calcutta High Court and that Court directed (1) that the committee must prepare an annual budget of the income and expenditure; (2) that provision must be made for quarterly audit and annual inspection of the amounts; (3) that provision should be made for joint control of the temple funds after they have been realised; (4) that there must be no undue interference on the part of the committee with the high priest in the internal management of the temple; and (5) that no one who has any pecuniary interest in the temple properties or is a creditor of the endowment should serve on the committee. The High Court further directed that clauses embodying the aforesaid five directions should be inserted in the scheme. This decision of the High Court is reported in Umeshananda Dutta Jha v. Ravneswar Prasad Singh, 17 Cal WN 871.We now come to more recent events which gave rise to Miscellaneous Judicial Case No. 181 of 1953 in the Patna High Court (AIR 1954 Pat 262  ). The Bihar Hindu Religions Trusts Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, received the Presidents assent on 21-2-1951 and came into force onThis Act established the Bihar State Board of Religious Trusts to discharge the functions assigned to the Board by the Act. Sometime in August 1952 the President of the Bihar State Board of Religious Trusts acting under S. 59 of the Act asked the respondent to furnish a statement in respect of the Baidyanath temple and the properties appertaining thereto. The respondent wrote back to say that the administration of the temple and its properties was in the hands of a committee constituted under a scheme made by the District Judge of Burdwan and approved by the Calcutta High Court, and these Courts being outside the jurisdiction of the Bihar Legislature, the Act did not apply to the temple and the respondent was not in a position to carry out the directions of the President of the Bihar State Board of Religious Trusts which might be in conflict with those of the Calcutta High Court. The Board however, proceeded to assess and damand payment of Rs. 1,684-6-6 as fee payable by the respondent in respect of the Baidyanath temple to it under S. 70 of the Act. The respondent then made an application under Art. 226 of the Constitution to the High Court of Patna, which application gave rise to Miscellaneous Judicial Case No. 181 ofOn various grounds stated therein, the respondent contended that the Act was ultra vires the Bihar Legislature; he further contended that even if intra vires, the Act properly construed did not apply to the Baidyanath temple and the properties appertaining thereto by reason of the circumstance that the said temple and its properties were administered under a scheme made by the Court of the District Judge of Burdwan and approved by the Calcutta High Court both of which are situate outside the territorial limits of Bihar.7. The State of Bihar, the Bihar State Board of Religious Trusts and the President thereof, now appellants before us, contested the application. Relying on the principles (1) that there should be as far as possible no conflict or clash of jurisdiction between two equally competent authorities and (2) that no intention to exceed its own jurisdiction can be imputed to the Bihar Legislature and of two possible constructions of the Act, the one that would make it intra vires should be preferred, the High Court came to the conclusion that the expression "religious trust as defined in S. 2 (1) of the Act must be construed not in the plain and grammatical sense but must be cut down so as to exclude such religious trusts as are administered under a scheme made by a Court situate outside the territorial limits of Bihar and, therefore, the Act did not apply to the Baidyanath temple and the President of the Bihar State Board of Religious Trusts constituted under the Act had no jurisdiction to take any proceedings against the respondent under the provisions of the Act. Accordingly, the High Court allowed the application of the respondent quashed the proceedings taken against him by the Bihar State Board of Religious Trusts, and issued a writ prohibiting the said Board from taking any further proceedings against the respondent under any of the provisions of the Act.8. The State of Bihar, the Bihar State Board of Religious Trusts and its President obtained a certificate under Art. 132 of the Constitution from the High Court and the present appeal has been filed by them in pursuance of that certificate. We shall hereinafter refer to them compendiously as the appellants.

Reasoning:
We agree with learned counsel for the parties that no question arises in this case of any conflict or inconsistency with the doctrine of comity of nations or with any established rule of international law.The question which really arises for decision is if any of the provisions of the Act have extra-territorial operation, this question has two aspects.First, there is S. 3 which says inter alia that the Act shall apply to all religious trusts, any part of the property of which is situated in the State of Bihar. The argument is that the Bihar Legislature has no power to legislate about trust property which is outside the territorial limits of Bihar and S. 3 of the Act in so far as it seeks to operate on trust property outside Bihar makes the Act bad on the ground of extra-territorial operation.This part of the argument has been fully dealt with and rejected in the decision relating to the Charusila Trust, Civil Appeal. No. 230 of 1955. (AIR 1959 SC 1002  ). The second facet of the argument is what Mr. P. R. Das has specially emphasised before us in this appeal.His argument in substance is that the Act by some of its provisions seeks to interfere with the jurisdiction of courts which are outside Bihar, and this in effect is the vice of extra-territorial operation from which, according to him, the Act suffers.We are unable to agree with him in this contention. Section 3 we have already referred to. Sub-section (5) of S. 4 states inter alia that S. 92 of theCode of Civil1908 shall not apply to any religious trust in the State of Bihar as defined in the Act. We have considered the effect of this sub-section in the decision relating to the Charusila Trust, (AIR 1959 SC 1002  ) (ibid) and have held that the Act applies when the trust itself, temple or deity or math, is situate in Bihar and also some of its property is in Bihar. We have pointed out therein that the trust being situated in Bihar, that State has legislative power over it and over its trustees and their servants or agents who must be in Bihar to administer the trust; therefore, there is really no question of the Act having extra-territorial operation. In our opinion, this reasoning is equally valid in respect of the argument of Mr. P. R. Das.If, as we have held, it is open to the Bihar Legislature to legislate in respect of religious trusts situate in Bihar, then that Legislature can make a law which says, as in sub-s. (5) of S. 4 of the Act that S. 92 of theCode of Civilshall not apply to any religious trust in the State of Bihar.If sub-s. (5) of S. 4 of the Act is valid as we hold it is, then no question really arises of interfering with the jurisdiction of the District Judge of Burdwan or of the Calcutta High Court in respect of the Baidyanath temple, inasmuch as those courts exercised that jurisdiction under S. 92,Code of Civilwhich no longer applies to the Baidyanath temple and the properties appertaining thereto, after the commencement of the Act. It is true that the Act does put an end to the jurisdiction under S. 92,Code of Civilof all courts with regard to religious trusts situate in Bihar, but that it does by taking these trusts out of the purview of S.In other words, the Act does not take away the jurisdiction of any court outside Bihar but takes the religious trusts in Bihar out of the operation of S. 92 so that a court outside Bihar in exercise of its jurisdiction under S. 92 will decline to deal with a religious trust situate in Bihar just as it will decline to entertain a suit under that section regarding a private trust of religious or charitable nature. Civil Procedure, including all matters included in theCode of Civilat the commencement of the Constitution, is item 13 of the Concurrentanswer to this argument is the same as that given before. Either the Act, is bad on the ground of extra-territorial operation or it is not. If the Act is bad on the ground of extra-territorial operation, then there is good reason for cutting down the scope and ambit of S. 29 of the Act so that it will apply only to committees appointed by a competent court or authority in Bihar. If, however, in respect of a religious trust in Bihar, the Bihar Legislature can amend the Civil Procedure Code and take the trust out of the purview of S. 92, Civil Procedure Code, then there is no good reason why the ambit of S. 29 should be cut down in the manner suggested by the High Court.15. It is true that the legislation of a State is primarily territorial and the general rule is that extra territorium jus dicenti impune non paretur. There is, however, no departure from that general rule when the trust itself is in Bihar and in legislating about that trust, the legislature lays down what should be done to fulfil the objects of the trust and for that purpose puts an end to an old jurisdiction in the sense explained above and creates a new one in its place.The doctrine of territorial nexus which arises in this connection has been commented on before us at great length by learned counsel for the respondent. That doctrine and the decisions bearing on it we have considered at some length in our decision relating to the Charusila Trust, Civil Appeal No. 230 of 1955: (AIR 1959 SC 1002  ). We do not wish to repeat what we have said therein.The conclusion at which we have arrived is that the Act and its several provisions do not suffer from the vice of extraterritoriality in the sense suggested by learned counsel for the respondent and there is no such conflict of jurisdiction as learned counsel for the respondent has suggested. Accordingly, the Act is good and applies to the Baidyanath temple and the properties appertaining thereto.