Mundrika Kuer v. President, Bihar State Board Of Religious Trusts And 8 Ors

and B.N. Jha, J.

1. This is an application under Articles 226 and 227 of the Constitution to quash the order of the President of the Bihar State Board of Religious Trusts, dated the 7th June, 1967, appointing a committee to administer a religious trust. The President of the Board has purported to exercise the powers conferred on him by the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as the Act). There was formerly some ambiguity as to whether the Act would apply both to public and private religious trusts; but in Mahant Ram Saroop Dasji v. S.P.

Sahi , their Lordships have made it absolutely clear that the Act would apply only to public religious trusts and not to private religious trusts.

2. The trust was alleged to have been created by the petitioner herself by an arpannama dated the 15th July, 1940. According to the petitioner, however, the said document was executed by her on account of the fraudulent persuasion, of some of her enemies, and no such trust was created neither in law or in fact. It is, however, admitted that, after the coming into force of the Act, the petitioner submitted the statutory returns to the Board for two years, paid also the requisite fee, and never alleged that the arpantiama was a farzi document or else that the trust was illusory. Subsequently, however, disputes arose between her and the Board, and she was criminally prosecuted in 1962 in T.R. Case No. 353 of 1962 for an offence under Section 67 of the Act read with Section 60(1). She was, however, acquitted by a first-class Magistrate of Patna on the 18th September, 1963. The petitioner also instituted a suit (Title Suit No. 46 of 1963) in the Court of the 2nd Additional Subordinate Judge, Gaya, for a declaration that the disputed properties were her secular properties and not the properties of a religious trust. The Board was the principal contesting defendant in that litigation, and its main defence was that there was a genuine religious endowment created by the petitioner, and that the properties ceased to be secular properties. In that case, strangely enough, the petitioner did not put forward an alternative case to the effect that, even if the endowment be held to be a religious trust, that trust was a private trust and not a public religious trust, and that, consequently, the Board had no jurisdiction to take up the administration of the same. The entire litigation was fought out on the simple question as to whether the arpannama was a farzi document, and the properties remained all along secular properties, of the petitioner or else whether the arpannanama was a genuine document, by which a religious trust was created. The learned Additional Subordinate Judge, by his judgment dated the 29th May, 1965, dismissed the plaintiff's suit, and held that, by virtue of the said arpannama, a genuine religious trust was created. We understand from the learned Counsel for the petitioner that an appeal against that judgment is now pending in the High Court.

3. Being emboldened by the judgment of the learned Additional Subordinate Judge, the Board tried to take over the management of the trust by appointing a committee; but the petitioner's allegation is that she has not yet given up possession of the properties.

4. The crucial question for consideration now is whether, in view of the aforesaid facts, this is a fit case for us to exercise our extraordinary jurisdiction under Articles 226 and 227 of the Constitution or else whether the petitioner should seek her relief, if any either in the appeal said to be pending in the High Court against the judgment of the learned Additional Subordinate Judge or else by filing another title suit (if permitted by law) for a declaration that the trust is a private trust and not a public trust and, as such, outside the jurisdiction of the Board. The question whether a trust is a public trust or a private trust is a mixed question of law and fact, and elaborate evidence, both oral and documentary, will have to be adduced by the contending parties before a Court can give its decision on the same. It is obvious that, in a proceeding under Articles 226 and 227 of the Constitution, this question cannot be properly decided. Mr. Rai for the petitioner did not challenge the fact that the Civil Court alone can decide this mixed question; but he urged that, inasmuch as the petitioner is in possession of the properties, she should continue in possession of the same, and that the Board should be directed to go, to the Civil Court to establish its case that the trust is a public religious trust. Thus, the ultimate question for consideration is whether the petitioner or the Board should go to the Civil Court in the first instance for a declaration that the trust is a private religious trust or a public religious trust.

5. Mr. Rai's contention is opposed to the fundamental principles regulating the exercise of statutory powers by authorities constituted by Acts of the Legislature. The Board was created by the Act, and the Legislature assigned to it certain functions, described in detail in Chapter V of the Act. It is true that the Act does not expressly say that the trust must be a public religious trust; but, as already pointed out, their Lordships of the Supreme Court have settled this controversy beyond any doubt. It may, therefore, be taken as unassailable that the Board's jurisdiction to administer trust properties will arise only if the trust is a public religious trust; but that does not mean that, whenever any person raises a dispute saying that the trust is not a public religious trust the Board should leave him in possession of the properties and go to the Civil Court to establish its right to administer the same. In this connection, the classic observations of Lord Esher M.R. in The Queen v. The Commissioners for Special Purposes of the Income Tax (1888) 21 Q.B.D.

313 at p. 319 may be quoted:

When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.

These observations have been followed with approval in innumerable decisions of their Lordships of the Supreme Court, and it is unnecessary to refer to them in detail. It necessarily follows that, when the Legislature by the Act created the Board, it also, in effect, conferred on it initial jurisdiction to decide whether a religious trust is a public trust or a private trust because on that decision will depend the exercise of its further jurisdiction as conferred by the Act; but, inasmuch as there is no provision in the Act making the decision on the jurisdictional question final, it will always be open to the aggrieved party to challenge the same in an appropriate proceeding in the Civil Court because no body or tribunal can give itself jurisdiction by a wrong decision on the jurisdictional fact. But to say that, once a dispute is raised, the Board has no jurisdiction to decide whether a religious trust is public or private, and that it must abdicate its functions and go to the Civil Court will not be justified by any authority, and will render the provisions of the Act practically ineffective, The Act was made mainly for the purpose of better administration of religious trusts, and there will always be vested interests ready to raise a dispute about the jurisdiction of the Board to administer the same.

6. This view is also supported by some of the unreported judgments of this Court. Thus, in Mahanth Ramdhan Puri v. President, State Board Religious Trust, Patna M.J.C. No. 541 of 1953 decided on 31-8-1955, a Division Bench of this Court held:

Therefore, before the Board acts under the Act, it has to be prima facie satisfied that the trust in respect of which it is acting is a religious trust and that the property is trust property within the meaning of the Act. This, in my opinion, is clearly the meaning of Section 28 of the Act. It is true that the determination by the Board that a particular trust is a religious trust or that a particular property is trust property is not final or conclusive. Such a determination can be questioned in a properly constituted suit. It is obvious, however, that such a question cannot be gone into on a writ, application, because it involves an investigation of complicated questions of fact and law.

This Bench decision was also relied upon in a subsequent Bench decision of this Court In Bihar State Religious Trust Board y. Mahanath Jaleshwar Gir Cr. Appeal Nos. 16, 17, 32 and 66 of 1963 decided on 23-2-1966. It will be noticed that the observations quoted above are in conformity with the observations of Lord Esher mentioned in the earlier paragraph.

7. It is true that, if the Board acted capriciously and arbitrarily without any material whatsoever and attempts to administer private property, saying that it is a public religious trust, this Court may have to interfere in appropriate cases; but it cannot be said here that there were no prima fade materials to show that the trust is a public religious trust. The acquittal of the peti1tioner in the criminal case (Annexure A) was very much relied upon; but it is well settled that acquittal or conviction in a criminal case has no evidential value in a subsequent civil litigation except for the limited purpose of showing that there was trial resulting in acquittal or conviction, as the case may be. The findings of the Criminal Court are inadmissible-see Anil Behari Ghosh v. Smt. Latika Bala Dassi , Ramadhar Chaudhary v. Janki Chaudhary and Hollington v. Hewthorn & Company, Limited (1943) 2 All E.L.R. 35.

8. On the other hand, the decision of the learned Addition al Subordinate Judge (Annexure B) in Title Suit No. 46 of 1963 between the same parties should be given much weight. The petitioner made the Board a party in that litigation, knowing fully well that the Board cannot be a party unless the trust is a public religious trust. She deliberately did not raise an issue as to whether the trust was a private trust or a public trust but fought out the litigation on the plea that there was no trust at all, and that the properties were her secular properties. The learned Additional Subordinate Judge rejected this plea, and dismissed her suit. The matter is now pending in appeal n the High Court, and it will always be open to the petitioner to ask for such interim relief as is permissible by law during the pendency of the appeal.

9. Mr. Rai, however, contended that, in that litigation, the controversy as to whether the trust was a public trust or a private trust was not raised, and a that, consequently, that judgment will not be of any help to the Board. Whether the petitioner can now bring another suit for a declaration that the trust is a private trust and not a public trust or else whether such a suit may be barred by constructive res Judicata are questions regarding which it will not be proper for this Court to express any opinion at this stage; but the learned Additional Subordinate Judge, while holding that the trust was not illusory, relied, apart from oral evidence, on the admitted fact that, after the Constitution of the Board, the petitioner accepted the endowment to be effective by submitting returns for two years, and also paid the necessary fee to the Board. On these materials, we think there was sufficient ground prima facie for the Board to hold that the trust was a public religious trust and to take steps under the Act to take over the management of the same.

10. It was, however, urged that, in the order under challenge of the Board, dated the 7th June, 1967, there is no express decision by the Board to the effect that the disputed trust is a public religious trust. The absence of such an express decision is not material. When the Board purports to act under the Act, knowing full well that the Act applies to public religious trusts only, it necessarily follows that it has impliedly held it to be such a trust. The order further shows that the petitioner was given notice to show cause against the formation of the committee; but she did not show cause, if, as now claimed by her, the trust is a purely private religious trust, it is indeed strange that she did not show cause to that effect. Mr. Rai then contended that the petitioner did not receive the notice to show cause, and the processes were suppressed at the instance of her enemies. These are, however, disputed questions of fact which cannot be gone into in this writ application.

11. For these reasons, it is not a fit case for exercising our extraordinary jurisdiction at this stage. The application is summarily dismissed.