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1973 Supreme(Pat) 88
PATNA HIGH COURT
S.N.P.Singh and Shiveshwar Prasad Sinha JJ.
Kamal Singh Badalia
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1137 of 1972 ;
Decided On : APRIL 24, 1973
The State Government has the power to make rules for the preparation of an electoral roll for the election of members of the Board under Section 8(2)(c) of the Bihar Hindu Religious Trusts Act, 1950, and Rule 4(2)(c) of the Bihar Swetamber Jain Religious Trusts Rules, 1955, is valid and does not impose any condition affecting the right to vote granted under Section 8(2)(c) of the Act.
Headnote:
BIHAR HINDU RELIGIOUS TRUSTS ACT, 1950 - SECTION 8(2)(C) - ELECTION OF MEMBERS OF BIHAR STATE BOARD OF SWETAMBAR JAIN RELIGIOUS TRUSTS - PREPARATION OF ELECTORAL ROLL - VALIDITY OF ELECTION - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:
Petitioners, members of the Swetamber Jain community, challenged the validity of the constitution of the Fourth Bihar State Board of Swetamber Jain Religious Trusts and sought to quash notices issued under the Bihar Hindu Religious Trusts Act, 1950.
Finding of the Court:
1. The State Government has the power to make rules for the preparation of an electoral roll for the election of members of the Board under Section 8(2)(c) of the Act. 2. Rule 4(2)(c) of the Bihar Swetamber Jain Religious Trusts Rules, 1955, which provides for the preparation of the electoral roll, is valid and does not impose any condition affecting the right to vote granted under Section 8(2)(c) of the Act. 3. The election of Shri Navratan Mull Surana (respondent No. 9) cannot be challenged in a writ petition as the question of his residency and voter status is a controversial question of fact that should be addressed in an election petition. 4. The nomination of Shri Gambhir Chand Bothra and Shri Shiva Chand Jhabak (respondents 3 and 4) as members of the Board under Section 8(2)(a) of the Act is valid even if they are not residents of Bihar or voters in any Assembly constituency in the State.
Issues: 1. Whether the State Government has the power to make rules for the preparation of an electoral roll for the election of members of the Board under Section 8(2)(c) of the Act. 2. Whether Rule 4(2)(c) of the Bihar Swetamber Jain Religious Trusts Rules, 1955, is valid and does not impose any condition affecting the right to vote granted under Section 8(2)(c) of the Act. 3. Whether the election of Shri Navratan Mull Surana (respondent No. 9) can be challenged in a writ petition. 4. Whether the nomination of Shri Gambhir Chand Bothra and Shri Shiva Chand Jhabak (respondents 3 and 4) as members of the Board under Section 8(2)(a) of the Act is valid even if they are not residents of Bihar or voters in any Assembly constituency in the State.
Ratio Decidendi: 1. The power to make rules for the preparation of an electoral roll is conferred on the State Government under Section 82(2)(b) of the Act, read with Section 8(2)(c), which provides for the election of members in the prescribed manner. 2. Rule 4(2)(c) of the Rules does not impose any condition affecting the right to vote granted under Section 8(2)(c) of the Act, as it only prescribes the procedure for inviting and receiving applications for enrolment in the electoral roll. 3. The question of Shri Navratan Mull Surana's residency and voter status is a controversial question of fact that cannot be decided in a writ petition and should be addressed in an election petition under Rule 5(1) of the Rules. 4. Section 8(2)(a) of the Act does not limit the choice of members appointed by the State Government to residents of Bihar or voters in the State's Assembly constituencies.
Final Decision: The writ petition is dismissed.
S.N.P.Singh, J.
1. All the five petitioners belong to the community of the Swetamber Jains. In this writ application they have questioned the validity of the constitution of the Fourth Bihar State Board of Swetamber Jain Religious Trusts and have made a prayer for quashing the notices as contained in Annexures 1, 2 and 3 to the writ application.
2. In order to appreciate and decide the points in controversy, it is necessary to state a few facts and to refer to the relevant provisions of law.
3. In the State of Bihar there are a number of public religious trusts belonging to the Swetamber Jains including pawapuri Group of Temples and Rajgrih Group of Temples. The properties of the Swetamber Jain religious trusts and the right to administer the same vest in the Shree Sangha. To provide for the better administration of Hindu Religious Trusts and for the protection and preservation of properties appertaining to such trusts, the Bihar Hindu Religious Trusts Act, 1950 (hereinafter to be called "the Act") was enacted with the assent of the President and was published in the Bihar Gazette Extraordinary of the 21st February, 1951. As provided under Sec. 5 (2) of the Act, the First Bihar State Board of Swetambar Jain Religious Trusts was constituted. The President and members of the first Board were appointed by the State Government in exercise of the powers conferred under Section 7 of the Act. The second and the sub-sequent Boards were to be constituted in accordance with the provisions as contained in Section 8 (2) of the Act. which, as originally stood, read as follows:
"8 (2). Of the members of the second and every subsequent Bihar State Board of Swetamber Jain Religious Trusts- (a) two shall be persons appointed by the State Government;
(b) four shall be persons elected in the prescribed manner by [he trustees of the Swetamber Jain Religious Trusts registered under this Act; and
(c) five shall be persons elected in the prescribed manner by the Shree Sangh (an assembly of Swetambar Jains)."
In exercise of the powers conferred by Section 82 of the Act, the State Government made the Bihar Swetambar Jain Religious Trusts Rules, 1955 (hereinafter called "the Rules"). Rule 4 provides as follows:
"(1) The election of members of the Bihar State Board of Swerambar Jain Religious Trusts under clauses (b) and (c) of sub-section (2) of Section 8 shall be by the method of postal voting and by means of single transferable vote.
(2) (a) The electoral roll in respect of the election of the members under Clause (b) of Sub-section (2) of Section 8 shall be prepared in Hindi in Devanagri script by the President on the basis of the register of trusts maintained by him under Sec.34.
(b) The electoral roll prepared under Clause (a) shall contain the following particulars: (i) the name of each elector,
(ii) the postal address of each elector,
(iii) the name of the father or spiritual Guru of each elector, and
(iv) the name of the religious trust of which the elector is a trustee.
(c) The electoral roll in respect of election of the members under clause (c) of Sub-section (2) of Section 8 shall be prepared in Hindi in Devanagri script by the President. The President shall publish a notice in at least two Hindi newspapers, having circulation in the State, specifying the date, which shall not be less than 30 days from the date of publication of the notice, within which applications shall be received for enrolment of members in the electoral roll. No fee shall be charged for such applications and they may be presented in person to the office of the Board or sent by post.
(d) The electoral roll shall be hung up at a conspicuous place in the office of the Board and information will be sent to all the registered offices of the trusts registered under Sec.34.
(e) Any objection regarding any mistake in the electoral roll may be filed in writing before the President within fifteen days of the date on which the roll is so hung up, and if no objection is fi
