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1969 Supreme(Pat) 172
PATNA HIGH COURT
Misra, S.N.P.Singh and G.N.Prasad JJ.
Nalini Kanta Choudhary
Versus
President Of Bihar State Board Of Religious Trusts
Civil Writ Jurisdiction Case No. 571 of 1969 ;
Criminal Miscellaneous Case No. 1181 of 1969 ; 1182 of 1969 ;
Decided On : DECEMBER 22, 1969
The authority appointed under Section 43 of the Bihar Hindu Religious Trusts Act, 1950 has jurisdiction to decide all disputes as to whether any immovable property is or is not a trust property, including disputes as to the nature of the trust itself, i.e., whether it is a public trust or a private trust. A notice under Section 59 of the Act can be issued only after such determination by the authority under Section 43, and a prosecution under Section 67 of the Act for failure to file a return of income and expenditure cannot be launched without such determination.
Headnote:
BIHAR HINDU RELIGIOUS TRUST ACT, 1950 - SECTION 43 - INTERPRETATION - DISPUTE AS TO WHETHER ANY IMMOVABLE PROPERTY IS OR IS NOT A TRUST PROPERTY - AUTHORITY APPOINTED UNDER SECTION 43 HAS JURISDICTION TO DECIDE - NOTICE UNDER SECTION 59 CAN BE ISSUED ONLY AFTER SUCH DETERMINATION - PROSECUTION UNDER SECTION 67 FOR FAILURE TO FILE RETURN OF INCOME AND EXPENDITURE CANNOT BE LAUNCHED WITHOUT SUCH DETERMINATION.
Fact of the Case:
The petitioner, a resident of village Bana Nava Gram in the district of Santhal Parganas, was served with a notice by the Bihar State Board of Religious Trusts calling upon him to submit a statement relating to Giri Gobardhan Mandir, Bana Nava Gram, for the period 1951-52 to 1967-68 and budget for 1968-69. The petitioner filed a writ petition in the High Court to quash the notice on the ground that there was no temple of Giri Gobardhan but only the idol of Giri Gobardhan which was the family idol of late Haradban Sarkar for his worship as the family idol and the income of the land was not the income derived from the properties of the idol but of the late Haradhan Sarkar. The Board, however, did not take recourse to Sec. 43 of the Act and issued notices under Sec. 59 of the Act on the footing that the petitioner was required to file return of the income and expenses for 1951-52 to 1968-69 and budgets for 1969-70 as the temple was a public trust. The petitioner contended that Sec. 67 of the Act could not be set in motion against him as there was no trust of any kind relating to the properties and whatever properties, in fact, were situated in Bana Nava Gram were all personal properties of Prithwi Chandra Choudhary, and not trust properties.
Finding of the Court:
The Court held that the authority appointed under Section 43 of the Bihar Hindu Religious Trusts Act, 1950 has jurisdiction to decide all disputes as to whether any immovable property is or is not a trust property, including disputes as to the nature of the trust itself, i.e., whether it is a public trust or a private trust. The Court further held that a notice under Section 59 of the Act can be issued only after such determination by the authority under Section 43, and that a prosecution under Section 67 of the Act for failure to file a return of income and expenditure cannot be launched without such determination.
Issues: 1. Whether the authority appointed under Section 43 of the Bihar Hindu Religious Trusts Act, 1950 has jurisdiction to decide disputes as to the nature of the trust itself, i.e., whether it is a public trust or a private trust? 2. Whether a notice under Section 59 of the Act can be issued before a determination by the authority under Section 43? 3. Whether a prosecution under Section 67 of the Act for failure to file a return of income and expenditure can be launched without such determination?
Ratio Decidendi: 1. The words "All disputes" in Section 43 of the Act are intended to widen the scope of the enquiry envisaged under the section and cover disputes as to the nature of the trust itself. 2. The purpose of Section 43 is to ensure that a proper determination is made as to the nature of the trust before any further action is taken under the Act, such as issuing a notice under Section 59 or launching a prosecution under Section 67. 3. A prosecution under Section 67 of the Act for failure to file a return of income and expenditure cannot be launched without a determination by the authority under Section 43 as to the nature of the trust.
Final Decision: The Court allowed the petitioner's writ petition and quashed the notices issued to him under Sections 59 and 67 of the Act.
Misra, J.
1. Civil Writ Jurisdiction Case No. 571 of 1969, Criminal Miscellaneous Cases Nos. 1181 and 1182 of 1069 have been heard together as they involve a common question of law which has been referred by the Division Bench for consideration by the larger Bench, in view of certain conflicting opinions in the judgments pronounced by this Court in regard to the interpretation of sections 43 and 67 of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act 1 of 1951). The petitioner in C. W. J. C. No. 571 of 1969 is resident of village Bana Nava Cram in the district of Santhal Parganas. He was served with a notice (annexure 1) dated the 15th of March, 1969, by the Bihar State Board of Religious Trusts preceded by similar notices dated the 8th February, 1969 (annexure 2) and the one dated the 29th November, 1967 (annexure 3), calling upon the petitioner to submit a statement relating to Giri Gobardhan Mandir, Bana Nava Gram, for the period 1951-52 to 1967-68 and budget for 1968-69 and that, if it was not filed, action under Sec. 67 of Bihar Act 1 of 1951 (hereinafter called the Act) would be taken against him. The petitioner filed C. W. J. C. No. 188 of 1969 to this Court for quashing Annexure 2 aforesaid but the Court, on the 12th of March, 1989, ordered that the petitioner might withdraw the application for moving the Board for the declaration required under Sec. 43 of the Act, if necessary. The Board, however, did not take recourse to Sec. 43 of the Act. The notices under Sec. 59 of the Act were issued on the footing that he was required to file return of the income and expenses for 1951-52 to 1968-69 and budgets for 1969-70 as the temple was a public trust, but the petitioner maintained that there was no temple of Giri Gobardhan but only the idol of Giri Gobardhan which was the family idol of late Haradban Sarkar for his worship as the family idol and the income of the land was not the income derived from the properties of the idol but of the late Haradhan Sarkar. After the death of Hara-dhan Sarkar, all his properties including his house and agricultural land devolved upon his only daughter late Bimla Sundari Devi, wife of Ramtanu Choudhary of Banior in the district of Birbhum. She died also survived by her only son Prithwi Chandra, father of Nalini Kant Choudhary. He inherited the property in his personal capacity but continued to worship Giri Gobardhan as a family idol. In fact, the petitioner also inherited the property along with his brother Bhujanga Bhushan Choudhary and the sons of other brothers, Indu Bhushan Choudhary, Bibbuti Choudhary, Mohini Mohan Choudhary and Sashi Bhushan Choudhary, and they were all in possession of the lands and house. There was no trust of any kind relating to the properties and whatever properties, in fact, were situated in Bana Nava Gram were all personal properties of Prithwi Chandra Choudhary, and not trust properties. Hence, Sec. 67 of the Act could not be set in motion against him. No member of the public had any access to the idol nor was any offering made by them. It was the members of the joint family who met all the expenses of the idol for Puja and Ragbhog. Under Sec. 59 of the Act, notice could be issued only to a trustee of a public charitable religious trust but not to a person who would be holding the office of a trustee of the private religious trust such as is seen in the case of family deity.
2. The conflict of views centres round the interpretation of Sec. 43 of the Act which, as it originally stood prior to its amendment, in so far as it is relevant, reads as follows:-
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"43. (1) The Board or any person interested in a religious trust may, at any time, apply in the prescribed manner to the District Judge for a declaration that any immovable property is trust property."
In the subsequent clauses provision is made in regard to the manner in which the District Judge is to proceed when an application is filed for the declaration mentioned in Sec. 43 (1) and in Sub-sec
