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IN THE HIGH COURT OF JUDICATURE AT PATNA
HARISH KUMAR, J.
CWJC No.1086 of 2021
(22.12.2023)
Ajay Kumar Mahto ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Bihar Hindu Religious Trusts Act, 1950 – Sections 2(1), 32, 33 and 48 – Appointment as Trustee of temple – For the purposes of declaration of Religious Trust, not only express declaration, rather it can be declared constructively also – In case in hand, after construction of temple, many donors of locality donated in favour of temple for maintenance which where duly accepted – However, by mere donation and worship by public, deities/temple cannot be treated as a public temple – Section 2(l) of Bihar Hindu Religious Trusts Act, 1950 does not include a private endowment created for worship of a family idol in which public in general are not interested – In case in hand, some persons having faith in deity donated some landed properties in its favour and their descendants are claiming their rights on documentary evidence and before exercising jurisdiction at ends of Trust Board, they cannot shirk from their responsibility to record a finding that an express or constructive trust was created – Application/complaint must be filed by two or more persons who are interested in any trust – In absence, there is no cognizance of such application could have been taken by Trust Board – Instead of making spot verification or asking a report from local authorities or to notice persons claiming or interested with temple/deity, in question, asking recommendation from Akhada of Ayodhya, who had no concern with temple, might be acquainted with person in whose favour, Board is likely to pass an order appointing him a Trustee, cannot form a conclusive opinion to pass order of appointment of trustee – Order for appointment of trustee was passed without any enquiry or notice to affected person – There cannot be any estoppel against law – Impugned order set aside and matter relegated to Board of Religious Trust, to consider claim of petitioner and other interested/affected person. (Paras 18, 19, 20, 21, 25 to 28)
Constitution of India – Article 226 – Writ jurisdiction – No law of limitation applies in a writ jurisdiction – Wherever and whenever this Court while exercising power of extraordinary jurisdiction under Article 226 of Constitution can hold and declare any order unsustainable, if it is found to be per se illegal, without jurisdiction and in complete violation of principles of natural justice – When a statutory functionary makes an order based on certain grounds, its validity must be judged by reasons so mentioned and cannot be supplemented by fresh reasons in shape of affidavit or otherwise – Otherwise, an order bad in beginning may, by the time it comes to court on account of a challenge, gets validated by additional grounds later brought out. (Paras 23 and 24)
Harish Kumar, J. – The petitioner claimed to be Shebait of Sri Ram Janki Mandir, Sonpatahi (Babubarhi) has filed the present writ petition under Article 226 of the Constitution of India seeking quashing of the letter dated 07.03.2013 (Annexure-3 to the writ petition) issued by the respondent no.5 whereby and whereunder the respondent no.6 has been appointed as Trustee of the temple, in question, allegedly, without the procedure followed under the law. The petitioner further sought relief to hold and declare that neither the Bihar State Board of Religious Trust, Patna (hereinafter referred to as ‘the Board’) nor the respondent no.6 has got any concern over the lands and properties of the deities as well as of the temple and in the aforesaid facts let a direction be given to the respondent authorities to protect the legal right, title, interest and peaceful possession of the deities as well as the present petitioner from the respondent no.6. The petitioner also prays for restraining the respondent nos. 4, 5 and 6 from interfering into the smooth functioning and management of the Rag-Bhog & other daily routine work of the deities, further a direction to the local administration to protect the landed property of the deities from the unscrupulous person/anti-social elements, who have greedy eyes on the properties of the temple, in question.
2. It is the case of the petitioner that he being successor-in-interest of the land donor late Mostt. Jaleshwari, who dedicated her own lands measuring about 3 Kathas in favour of the deities-Sri Ram Chandra Jee & Sri Lakshman Jee & Sri Janki Jee & Sri Hanuman Jee (hereinafter referred to as ‘the deities’) through a deed of Samarpan Nama dated 03.06.1957, is declared as Shebait of the temple, in question. All these deities are installed in an old temple, which is out and out a private and personal temple of the family of the donors and moreover, neither the general public nor the Board has got any concern with the management, worship and Bhog-Rag of the deities/temple.
3. Learned counsel for the petitioner while drawing the attention of the deed of Samarpan Nama (Annexure-1) submitted that there is clear recital in it that the intention and will of the donor was to the effect that only the successor of her family could become the Shebait of the deities, hence in any view of the matter, neither the Board nor the respondent no.6 had/has any claim over the property or right to interfere in the peaceful management of the deities. After passage of time, all the execution of the aforesaid Samarpan Nama, several other donors of the locality also dedicated their respective lands in favour of the aforesaid deities and at present the total landed properties have come around 4 Bighas 10 Kathas, as per the revenue records, which is in the name of the deities.
4. Having seen the prosperity and amass landed property, the respondent no.6 in order to grab the same clandestinely approached before the Board vide his letter dated 04.01.2013 and surreptitiously obtained a certificate in his favour vide letter/order dated 07.03.2013 from the Board and in this way became the sole trustee of the temple, in question. It is vehemently submitted that the impugned order dated 07.03.2013 is not only in violation of the principles of natural justice, without issuing any notice to the then Shebait of the deities i.e. the father of the present petitioner, but also without making any enquiry and considering the necessary documents. He further submits that respondent no.6, apart from stranger of the village, in question, is a fraud claiming himself to be a Sanyasi and Shebait of the temple, but the fact is that he had no connection with the family of the said land donor, Mostt. Jaleshwari and in any other donor.
5. It is also stated that the father of the petitioner late Jivachh Mahto when came to know about the impugned order dated 07.03.2013, challenged the same before the Board by filing a petition dated 01.08.2013, but till dat
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