1. In this case the petitioner, Mahanth Ramkrishna Das has moved this Court for a writ in the nature of certiorari under Article 226, Constitution of India for calling up and quashing the proceeding drawn under Section 59 of the Bihar Hindu Trusts Act (Bihar Act I of 1951).
2. The petitioner states that he is Mahanth of the temple known as Bhikam Das Thakurwari located in Mahalla Bakerganj in the town of Patna. The temple is very old and was constructed by Benidasji who installed Thakur Radhakrishnaji, Thakur Kapildeo Bhagwan, Bawan Bhagwan and Ramchandraji. The petitioner claims that he is shebait of the idols installed in the temple. It is stated in para 4 of the application that Mosammat Dhanokuer, Jawahar Singh of Rukhai and Jagarnath Sahai have dedicated properties for the worship of the idols installed in the temple. The case of the petitioner is that the temple is not a public endowment and there is no trust constituted with respect to the properties of the temple. The submission of the petitioner is that Bihar Act 1 of 1951 is unconstitutional as it violates the guarantees under Articles 19(1)(f) and 25, Constitution of India. In the alternative it is submitted that the Act has no application to the case of the petitioner and the proceeding started is ultra vires and is without jurisdiction.
3. There is a counter affidavit filed on behalf of the State of Bihar in this case. It is alleged in the counter affidavit that the temple is a public temple and the main source of the income of the temple is “the Charahua made at the feet of the Thakurjees by the public who go to worship there.”
4. In ‘Baijaynanda Giri v. State of Bihar’, AIR 1954 Pat 266 (A) and the connected cases we have examined the question as to the constitutional validity of Bihar Act I of 1951 and for the reasons expressed therein we have reached the conclusion that the Act is a valid piece of legislation.
5. The alternative submission made on behalf of the petitioner is that the temple is a private temple and the properties are not trust properties. No deed of endowment has been produced in this case. It is admitted, however, in para 4 of the application that Mosammat Dhanokuer, Jawahar Singh and Jagarnath Sahai have dedicated lands for the worship of the deities installed in the temple. The question whether the temple is public or otherwise depends upon evidence as to user by public. The character of the endowment is a legal inference to be proved from evidence. On a question of this description, long user by public is a material consideration from which inference of dedication to the public may be drawn. Besides user by public, the conduct of the founder and his descendants is also relevant and if in fact they had held out the temple to be a public temple, very strong presumption of dedication would arise. It has been found in many cases that repairs and additions in temple buildings are made by public subscriptions and the festivals in the temples are also performed with the aid of public funds. These facts certainly lead to the inference of the temple being a public one: see — ‘Lakshamana Goundan v. Subramania Ayyar’, AIR 1924 PC 44 (B).
6. The questions at issue, viz., whether the temple is a public or private endowment and whether the properties are trust properties are questions which involve investigation of facts and which involve recording of evidence. It is manifest that a proceeding under Article 226 is not a proper machinery for investigating such questions of fact. In para 12 of the application the petitioner has said that he has instituted a civil suit. The question at issue is a question which should properly be agitated in that civil suit and not in a proceeding under Article 226.
7. For these reasons we hold that this application for a writ under Article 226 must be dismissed with costs.
8. Hearing fee five gold mohars.
A/G.M.J
9. Application dismissed.