The central legal point established in the judgment is the need for trust determination under section 43 of the Bihar Hindu Religious Trust Act, 1950 and the inconsistency of relegating the petitioners to a civil suit for a declaration when the Act itself provides a machinery for determining such issues.

1. An interlocutory application has been filed that the heirs of appellant no. 2, Jagdish Pd. Sah, be permitted to be substituted. This application is allowed. The substitution may be made.

2. The order impugned is on the writ petition which apparently was passed at the time when the writ petition was presented for admission and dismissed.

3. The petitioners have thus filed this present Letters Patent Appeal.

4. Contention is that the issue whether the institution run by the petitioners is a public trust or a private trust is a. matter which has to be determined under section 43 of the Bihar Hindu Religious Trust Act, 1950. In the instant case straightaway a committee decision was imposed on the institution, in effect presuming that it is a public trust without giving an opportunity to the petitioners to have the issue determined.

5. There is nothing on record to show that the petitioners received an opportunity to submit on the issue whether the institution run by the petitioners is a private trust or a public trust. The contention also is that relegating the petitioners to a civil suit for a declaration is inconsistent in the provision of the Act as the Act itself provides a machinery for determining these issues. The reference made by the learned counsel appearing on behalf of the petitioners is to section 43 of the Act.

6. The contention of the appellants further is that if any notice had been issued to them then they would have placed their contention before the requisite forum under section 43 along with a judgment of the High Court dated 17th July, 1980, in the matter of C.W.J.C. No. 1390 of 1972 (Janak Sah vs. The President, Bihar State Board of Religious Trusts and others), delivered by the Honble the Chief Justice and the Honble Mr. Justice Prem Shanker Sahay.

7. In the circumstances, the petitioners pray that they may still be put on notice so that they may have an opportunity to submit before that forum under Section 43.

8. The State counsel has been unable to resist the submission of the learned counsel for the petitioners before the court that there is no record that a notice was ever served on the petitioners, so that they could address the forum under section 43. This may be done now if the State is of the opinion that there is an issue whether the institution run by the appellants is a pubiic trust and not a private trust.

9. In the circumstances, the order dated 1.5.1995 on the writ petition as also the order dated 25.4.1994 (Annexure-1 to the writ petition) are quashed.

10. The appeal succeeds.