Bajpai and Dar, JJ.:— This is an appeal against the judgment and decree dated the 15th of July, 1935, of the Civil Judge of Benares by which the plaintiffs' claim for a perpetual injunction restraining the defendants from constructing a building was dismissed.

In the heart of the city of Benares there was situated in the year 1929 a small cloth market called Naya Chowk which was the property of the Municipal Board of Benares. In the year 1929 the Municipal Board of Benares resolved to demolish the market and to reconstruct in its place a new one. During the course of pulling down of this market, while the work of excavation was going on, 6th January, 1930, an old Hindu idol was found buried underground and was excavated. Underneath this idol were the ruins of some old building or temple which became visible on excavation but were not actually unearthed. On the discovery of the idol the Hindu public of Benares desired to worship it and to house it in a temple to be constructed on the spot where the idol was discovered. Close to the market at a distance of about 30 feet there is situated a Muhammadan mosque which is in charge of a mutwalli. The mutwalli of the mosque and the Muhammadan public of Benares raised an objection to the idol being worshiped or a temple being constructed close to the mosque and on their opposition a problem arose with regard to the housing of the idol. The Municipal Board at first asked the Archaeological department of the Government to take charge of the idol and the site. But the department leaving come to the conclusion that the idol and the site was not of any Arch geological interest, declined to take it in its charge. The Municipal Board thereupon stayed its hands and suspended further excavation and building of the market.

Some time later the Municipal Board of Benares was superseded by the Government and Mr. Lynch the Additional District Magistrate of Benares in due course was appointed its Administrator. In February, 1935, Mr. Dible the Commissioner of Benares, Kr. Jasbir Singh the Collector of Benares and Mr. Lynch the Administrator of the Municipal Board of Benares came to an agreement to close up the controversy which existed with regard to the idol excavated at Naya Chowk in the circumstances mentioned above. With the concurrence of the Commissioner the Collector suggested certain orders to be passed by Mr. Lynch which Mr. Lynch approved and accepted and on 18th February, 1933. Mr. Lynch passed the following order:

“Read papers regarding a proposal to construct municipal shops on municipal land in the Naya Chowk market.

“2. The area is already congested. It will become very congested if more shops are built as was originally proposed. The proposal to build shops is therefore abandoned. Instead, the site will be laid out and maintained as a municipal park.

“3. Regarding the idol which was found when excavation was started, in 1929, I recognize that the Hindus cannot be expected to remove it, now after such a period, has elapsed. A building will, therefore, be constructed out of municipal funds to house it underground. This building will be constructed in accordance with he plan prepared by the Municipal Engineer as finally amended and approved and will be maintained in future by the Municipal Board. The public will have access to it at all times for the purposes of performing worship of the idol.

“4. A pujari will be permitted to conduct the worship and attend to the idol. For the present, the present pujari will be permitted to continue to do so. When the question of appointing a successor arises, he will be appointed by the Chairman of the Municipal Board with the concurrence of the District Magistrate. In the event of disagreement between him and the District Magistrate, the decision of the District Magistrate will prevail.

“5. The pujari will be provided by the Municipal Board with two bells for the purpose of worship. No other form of music will be permitted, and the use of no other type of bell. The weight and measurements of the bells being provided are to be noted on the record before being placed in the shrine. The pujari's signature to be taken on those specifications.”

In pursuance of the above order the Municipal Board of Benares took in hand the work of construction of the park and of a small building to house the idol. The park was to be about 86 × 46 ft. and the building to house the idol was intended to be 12 × 12 ft. and was to be mostly underground, its roof being about 1½ ft. above the level of the ground. The Municipal Board provided an expenditure of about Rs. 2,000 over the entire scheme and about half of which was intended to be for the building. Soon after the work of the construction of the park and of the building was commenced and before any substantial progress had been made in the construction of the building, on 1st March, 1935, the plaintiffs who are two Muhammadan residents and tax-payers of Benares raised an action in the court of the Civil Judge of Benares against the Municipal Board of Benares and against three Hindu residents of Benares as representatives of the Hindu public, restraining the defendants “from constructing a place for worship for the Hindus at the place specified in the plaint” and for an order directing the defendants “to remove all the idols from the market in question so that a market might be established there as before”.

The plaintiffs' claim in substance was that the Municipal Board of Benares was constructing a Hindu temple for the worship of the Hindu public on municipal land with municipal funds, which under the U.P Municipalities Act they had no right to do, and as the ratepayers of the municipality the plaintiffs were interested to see to the proper application of the municipal funds and were entitled to restrain the defendants from malversation of the municipal funds. With this claim there was mixed up one other matter, namely that the idol excavated on 6th January, 1930, was not genuinely excavated but was planted by the Hindus, and that the defendants should be ordered to remove the idol from the market so that the market might be established again.

The trial Judge, finding that the idol was genuinely excavated and that the Municipal Board, as the owner of the market and of the idol, had statutory powers to convert the market into a park and to erect a building for housing the idol, has dismissed the claim and against that dismissal the plaintiffs have made this appeal.

At the outset it is necessary to determine the controversy which exists as to certain questions of fact relating to the discovery of the idol, the nature of the building which is intended to be erected to house it and the circumstances which have necessitated the erection of the said building. On 6th January, 1930, at about midday while the work of excavation was going on in the new market at Benares, the idol was discovered underground. Immediately on the discovery of the idol a report was made by the sub-overseer of the Municipal Board to his officers who in their turn communicated it to the District Magistrate, who in his turn advised the Municipal Board to refer the matter to the Archaeological department. Soon after the finding, the police also came on the scene and the site was inspected by the various officials of the Municipal Board and was under the public eye. It is therefore clear that if the idol was planted it must have been planted there surreptitiously under cover of night, and before 6th January, 1930, the day when the discovery was reported by municipal officials. Now there is an official inspection note on record dated 8th January, 1930, which reads: “I inspected the site. There are two lingums. The bigger one is about 15 inches high and 12 inches in diameter. There is also visible the top portion of a temple. It is projecting about one foot from the bottom of the trench. The edge of a platform is also visible.”

During the trial an inspection of the site was made by the trial Judge and he has recorded his impressions in a note in the following words: “There is a mosque at a distance of about thirteen or fourteen paces from the place where the idol has been found. The idol of Mahadeoji is fixed in a stone argha. The thickness of the argha aforesaid cannot be accurately stated because there is at present clay all round it. The idol of Shivji is very heavy and it seems impossible that a person might be able to lift the idol together with the argha. There is a small idol of Shivji in front of the big one. Besides those there was no idol at that time at that place above the ground. It was urged on behalf of the defendants that a portion of the stone temple was underground at that time and the defendants were willing to show it by digging it, but as it was not considered necessary it was not caused to be dug …. The idol is about 6 or 7 feet below the surface of the ground and the foundation of the wall of the construction in dispute is deep to the same extent. This means that if a person goes to see the idol, he would have to go about six feet below the level of the ground. The mosque is situated to the north of the construction in dispute and the gate of the said constructions is towards the south.”

There seems to be no motive for the Hindus to plant an idol on the site where it was discovered. The size of the idol and its close proximity to the ruins of a temple which lies buried underneath raise a presumption in favour of a genuine excavation. There is this further fact that immediately on the, discovery of the idol a controversy arose between Hindus and Muhammadans and feelings began to run high and there was every desire on the part of one community against the other to create evidence and to overstate the case. On 9th January, 1930, the mutwalli of the neighbouring mosque made a complaint to the Municipal Boad in which inter alia it was stated: “Recently the municipality undertook the construction of some of the shops and there is a strong rumour that some idols have been found underground over which the Hindus of the locality contemplate to erect a temple.”

It is somewhat remarkable that on this occasion it was not mentioned that the idols were planted and were not a genuine find. The oral evidence given at the trial is, as usual, conflicting. The trial Judge before whom the witnesses gave evidence, has disbelieved the plaintiffs' version and has accepted the defendants' version and in view of the probabilities of the case his estimate seems to be correct and his finding must be accepted that the idol was genuinely excavated and was not planted by the Hindus.

The building which was proposed to be erected by the Municipal Board to house the idol was to be 12 × 12 ft. in dimensions, in a park of 86 × 46 ft. in dimensions, and it was to be constructed practically underground with a door on one side not facing the mosque. Mr. Lynch who has given evidence at the trial has described the nature of the building and its object in the following words:

“This order of mine has the approval of the Collector and the Commissioner of Benares. The main reason which led to the construction of the park was that a park would be a distinct improvement in the locality. The underground construction that is proposed to be made is a shrine. I would not call it a temple. The main construction will be underground. Only a part of the roof will be above the ground. The weight of the opinion was that the idol could not be removed and had to be left there. I am referring to the official opinion. Hence it was decided to construct the shrine. The building is going to be constructed primarily with the idea of housing the idols that were discovered. The difference between a shrine and a temple is this, so far as I understand, that a shrine is a place where an object of veneration is kept and where people may come for worship. A temple is a building in which large numbers of persons may come for common worship. Common worship in large numbers will not be permissible in the proposed building owing to its dimension. Four or five persons may go together for worship in this building subject to my orders. The Hindus will have a right to go into the contemplated shrine at all times for common worship. I do not think that I or my successor will have any right to convert this construction to any other use. I will not say that the Hindus will have absolute rights of worship in this shrine. In view of the conditions imposed they will have restricted right. The restrictions are those referred to in my orders. The building will be constructed out of the general municipal funds. The allotment for this building was made, in the budget of 1934–1935, so far as I remember.”

The Municipal Board claims the idol, the site, the park and the proposed building as their property and there is no evidence to show its dedication to the temple or to Hindus as a community. The Municipal Board further claims to exercise full control over the building and to allow a limited and restricted use of the building for restricted worship.

The reasons for which the Municipal Board of Benares decided to convert the market of Naya Chowk into a park and to erect a building to house the idol, though challenged, are not open to any serious criticism. The market and the mosque happen to be in a very congested part of Benares and in close proximity of each other. Benares is a sacred city of Hindus. In the midst of an excavation an ancient idol was found lying buried. The Municipal Board could not prevent Hindus from going to the market and a free and unrestricted worship of the idol close to the mosque in a congested locality was bound to bring into frequent clashes the two communities with the result of great disturbance of public peace. The district authorities, the Collector and the Commissioner and the Administrator of the Board all unanimously came to the conclusion, in the interest of public safety and public convenience, to convert the market into a park and to house the idol in a small building so that worship and traffic could be controlled.

Some of the legal questions which were debated before the trial court are not open to any serious challenge. It cannot be disputed that the Municipal Board can apply its funds only for such purposes as the statute authorises it. It also cannot be disputed that if the Muncipal Board applies or intends to apply its fund for purposes not authorised by the statute, an action will lie at the instance of the rate-payers to restrain it from doing so. It is also not disputed before us that under section 8, sub-section (1) clause (b) of the U.P Municipalities Act II of 1916 the Municipal Board is empowered to make provisions for constructing a park and that no suit would lie against the Municipal Board for compelling them to remove the idol from the new market or to restore the market to its old condition, or to remove the idol from the place where it has been discovered. But what is strongly pressed before us is that the Municipal Board has no authority to apply municipal funds for founding or maintaining a Hindu temple and under the colour of making provisions for a park and for a building to house the idol the Municipal Board is in fact founding a place of religious worship for Hindus.

This raises a question of the interpretation of certain provisions in sections 7 and 8 of the U.P Municipalities Act which are as follows:

“Section 7. (1) It shall be the duty of every Board to make reasonable provisions within the municipality for—(q) maintaining and developing the value of property vested in, or entrusted to the management of, the Board:

“Section 8. (1) A Board may make provision, within the limits of the municipality and with the sanction of the Commissioner outside such limits, for—(b) constructing, establishing or maintaining public parks, gardens, libraries, lunatic asylums, halls, offices, dharamshalas, rest houses, encamping grounds, poorhouses, dairies, baths, bathing ghats, washing places, drinking fountains, tanks, wells, dams, and other works of public utility; (m) adopting any measure, other than a measure specified in section 7 or in the foregoing provisions of this section, likely to promote the public safety, health, or convenience.”

The trial Judge has expressed the view that the idol excavated was the property of the Municipal Board and in order to improve their property the Municipal Board was entitled to erect a building for the housing of the idol under section 7, sub-section (1), clause (q) of the Municipalities Act. No doubt the Municipal Board is entitled to apply municipal funds for maintaining and developing the value of property vested in it and it may also be true that a buried idol which had been excavated has ceased to be a juristic person and may be regarded as a piece of stone and as such the property of the Municipal Board. But we do not think that erecting a house for the accommodation of the idol can be regarded as “maintaining or developing the value of the property vested in the Board.” The idea involved in maintenance and developing the value of the property relates to some increase in value or utility and it cannot apply to a case where the property has been burdened with some obligation which might lead to a deterioration of the property in value or in its general utility.

Section 8, sub-section (1), clause (b) of the U.P Municipalities Act authorises the Board to make provisions for “constructing, establishing or maintaining other works of public utility”; and the question was mooted before us whether this would give authority to the Board to found and maintain a temple or a mosque or a place of religious worship purely for the use of one community to the exclusion of others. The word “public” in Indian Statutes in relation to charity is sometimes used in a narrower sense as applicable to a class or community and not embracing all classes and communities. It is also used, for instance, in matters relating to nuisances, highways etc., in a wider sense as including all classes of His Majesty's subjects. We drink that the work of public utility within the meaning of section 8(1) clause (b) has to be for the benefit of the public in a wider sense and we do not think that under the provisions of the statute the Municipal Board has got any power to apply municipal funds for founding or maintaining places of worship for the use of one community to the exclusion of others. But it does not follow from this that in the interest of public safety or public convenience the Municipal Board cannot erect a building which may incidentally or indirectly be used as a place of worship exclusively by one community, provided the dominant intention of the Municipal Board in erecting the building is to make a provision for public safety and public convenience, and the idea for the place of worship comes in the scheme incidentally and indirectly and in absolute subordination to the dominant intention of public safety or convenience. Whether a particular building is being erected with the dominant idea of public safety or convenience, or whether it has been erected with the dominant idea of providing a place of worship for a particular community to the exclusion of others is a question of fact in each case, and whether a particular building is required in the interest of public safety or convenience or not is primarily a matter for the Board to determine; but the Municipal Board under the statute are not empowered under the colour of making provisions for public safety or convenience to found a place for religious worship of particular communities.

Mr. Khwaja contends that the Municipal Board of Benares in this case are trying to found and maintain a Hindu temple, and alternatively that under colour of a scheme for public safety they are founding a place for worship exclusively for Hindus. There is no justification for any one of these contentions. The evidence is all one way that the proposed building where the idol is to be housed, including the idol, will be treated as a private property of the Municipal Board and the scheme for constructing the park and erecting the building to house the idol was devised with the concurrence of Mr. Dible, Kr. Jasbir Singh and Mr. Lynch, all in the interest of public safety and convenience.

In the circumstances mentioned above we, therefore, think that the action of the Municipal Board was justified under section 8(1), clause (m) of the U.P Municipalities Act, and for this reason the decree of the trial Judge is correct and should be affirmed. But as we have affirmed the decree upon different grounds than those adopted in the trial court there will be no orders as to costs in this appeal and it is hereby dismissed.