President of The Bihar State Board of
Religious Trust & ANR Vs. Nalini Choudhari & Ors  INSC 147 (23
KHANNA, HANS RAJ
CITATION: 1973 AIR 2578 1974 SCR (1) 481 1973
SCC (2) 752
CITATOR INFO :
RF 1986 SC1794 (7)
Bihar Hindu Religious Trusts Act, 1950, ss.
43 and 67-Scope of.
Section 43(1) of the Bihar Hindu Religious
Trusts Act, 1950, as amended in 1956, provides, that all disputes as to whether
any immovable property is or is not a trust property shall be inquired into by
the authority appointed by the State Government; and s. 67 of the Act provides
that if a trustee fails without reasonable cause to comply with certain matters
or furnish certain particulars which he is required or called upon to furnish
under the Act, he shall be liable to punishment.
The respondents, who were called upon to
furnish certain particulars falling tinder s. 67, in relation to certain
temples, contended, that there was no trust, that s. 43 provides a machinery for
deciding whether there is a trust and who is the trustee of the trust, and that
a decision under the section was a condition precedent to the launching of a
prosecution under s. 67. The High Court accepted the contention.
Allowing the appeals to this Court,
HELD : Neither expressly nor by necessary
implication, s. 43 or any other provision of the Act bars the prosecution
tinder s. 67 without a decision under 43[486 B] In a prosecution under s. 67,
it is open to the persons prosecuted to contend that there is no trust and that
they are not trustees. It would then be for the prosecution to make out all the
ingredients of the offence and the two main ingredients are : (1) that there is
a trust and (2) that the person prosecuted is a trustee. In that case, it will
be for the Court before which the prosecution has been instituted to decide the
questions on the material placed before it. There is nothing preventing the
criminal courts from going into these questions. [484H-485C] Under s. 43, the
only question that can be decided is whether any immovable property is a trust
property or not.
Under the section as it originally stood, the
Board of religious trusts or any person interested in a religious trust may, at
any time, apply to the District Judge for a declaration that any immovable
property is trust property;
and under the section, as amended in 1956,
all disputes as to whether any immovable property is trust property, shall be
inquired into by the authority appointed. But, in either case, the only question
that can be decided under the section is whether any immovable property is or
is not trust property. The section, before or after amendment, does not provide
for a decision as to whether there is any religious trust or whether any person
is a trustee. [485G-486B] It is possible that, when a question is raised before
the authority under the section whether a certain immovable property is trust
property or not, the person interested might contend that the was no trust at
all. In such case.
the authority, for the purpose of deciding
whether the property is trust property. will have to decide whether there is a
trust at all. But such a decision is. only for the purpose of deciding whether
it has the jurisdiction to decide whether the property in question is trust
if it wrongly decides that there is a trust
and that it has jurisdiction. such a decision can be questioned in a civil
court. In any case, under the section, it cannot be decided whether anybody is
a trustee. Thus, the only question that can be decided under s. 43 is 482
irrelevant to the case of the prosecution in respect of many of the offences
mentioned in s. 67. [485D-G] Mahanth Ramdhan Purl v. President, S.B.R.T.
Pattna, 1955 B.L.J.R. 665, Bihar State Religious Trust Board v. Mahanth Jaleshwar
Gir & Ors., I.L.R. (1967) 46 Patna 23, B. S. Board of R.T. v. R. R. Gir,
1969 B.L.J.R. 63, S.S. Cloubey v. B.H.R.T. Board,  B.L.J.R. 74 and
Parmeshwari Pd. Singh v. The Bihar State Board of Hindu Religious Trusts, 1968
P.L.J.R. 386, approved.
Mahant Ram Saroop Dasji v. S. P. Salhi,
 Sup. 2 S.C.R.
Mst. Champa Sahu v. The Bihar Religious Trust
Board Patna, 24-8-1961 of the Patna High Court, overruled.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2029 of 1970.
Appeal from the judgment and decree dated
December 22, 1969 of the Patna High Court in C.W.J.C. No. 571 of 1969 and Civil
Appeals Nos. 41 & 42 of 1970.
Appeal from the judgment and order dated
December 22, 1969 of the Patna High Court in Criminal Miscellaneous Case Nos.
1181 and 1182 of 1969.
L.N. Sinha, Solicitor General of India and D.
Goburdliun, for the appellants (in all the appeals).
S.C. Sinha and Rathin Das, for respondent No.
1 (in C.A. 2029 of 1970).
S.K. Sinha, K. K. Sinha and B. B. Sinha, for
the respondent (in appeal No. 42 of 1970).
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. These three appeals arise out of the common judgment of the
High Court of Patna in Civil writ jurisdiction Case No. 571 of 1969 and
Criminal Miscellanceous Cases Nos. 1181 and 1182 of 1969. The question that
arises for decision in all the three appeals is the same: whether a decision
under section 43 of the Bihar Hindu Religious Trusts Act, 1950 (hereinafter to
be called the, Act) is a condition precedent to the, launching of a prosecution
under section 67 of that Act. The facts necessary may first be stated. The 1st
respondent in the Civil Appeal No. 2,029 of 1970 was called upon by the Bihar
State Board of Religious Trusts to submit a statement relating to the Giri Gobardhan
Mandir of Bana Nava Gram on pain of prosecution under section 67. Thereupon he
filed the writ, out of which this appeal arises, alleging that there was no
temple of Giri Gobardhan but only the idol of Giri Gobardhan which was his
family idol and the income of the land was not the income derived from the
properties of the idol. He further contended that there was no trust of any
kind relating to the Properties and that no member of the public had any access
to the idol nor was any offering made by them and prayed for the notices issued
by the Board to be quashed. The respondent in Criminal Appeal No. 41 of 1970
who was prosecuted under 483 section 67 of the Act claimed that he was the sole
she bait of a temple in village Basarhia in the district of Darbhanga. He also
did not submit the account demanded under the Act on the ground that the
property of which the return was sought was not trust property and that without
a declaration under section 43 of the Act he could not be prosecuted under
section 67. The respondent in Criminal Appeal No. 42 of 1970, who was similarly
prosecuted claimed that the temple in village Basarhia in the district of
Purnema of which he was the sole she bait was within the family dwelling house
with which the public have no concern and that he was, therefore, not liable to
render an account of the income and expenditure. His other contention was also
similar to the contention of the respondent in Civil Appeal No. 41 of 1970. The
High Court allowed the three petitions and quashed the notice issued as well as
the prosecutions. The Bihar Hindu Religious Trusts Board has filed these
Section 67(1) of the Act reads:
"If a tustee fails without reasonable
cause, the burden of proving which shall be upon him, to comply with any order
or direction made or issued under clause (i), (o) (q) of subsection (2) of
section 28 or under section 58, to comply with the provisions of sub-section
(1) of section 59, sub-section (1) of section 60, section 61 or section 62, or
to furnish any statement, annual account, estimate, explanation or other
document or information relating to the religious trust of which he is the
trustee, which he is required or called upon to furnish under any of the
provisions of this Act, he shall be punishable with fine which may extend, in
the case of the first offence, to two hundred rupees, and, in the case of the
second or any subsequent offence, to five hundred rupees and, in default of
payment of the fine, with simple imprisonment for a term which may extend to six
months or one year, as the case may be." Under section 59 of the Act,
within six months from the date of the publication in the Official Gazette of
the names of the President and members of the first Board, the trustees of
every religious trust existing on the said date should furnish to the Board a
statement in the prescribed form containing the prescribed particulars in
respect of the trust of which he is the trustee. Under section 60, the trustee
of every religious trust has to prepare a budget of such trust and send a copy
thereof to the Board. Under section 59 and 60 there is no obligation cast on
the Board to give a notice to the trustee calling upon him to furnish the
statement contemplated under s.59 or the budget under s.60. The duties cast
upon the trustee under those sections are irrespective of the fact whether a
notice has been issued or not. The fact that notices were issued does not make
any difference to this position. If for a failure to comply with the provisions
of sg. 59 and 60 a prosecution lies under s.67. the prosecution cannot fail, on
the ground that no notice was issued. of course, it is open to a person who
apprehends that action might be taken against him for his 844 failure to comply
with the provisions of either section 59 or 60, or on whom a notice is served
calling on him to comply with the provisions of those sections to approach the
ordinary civil court for a declaration that there is no trust and that he is
not a trustee and therefore he cannot be called upon to comply with the
provisions of ss. 59 and 60 or prosecuted for failure to do so. If without a
notice a prosecution is launched under section 67 it is open to the persons
prosecuted to contend before the court that there is no trust and that they are
not trustees. In that case it would be for the prosecution to make out all the
ingredients of the offence to the satisfaction of the court before which the
prosecution is launched. The two main ingredients would be: that there is a
trust and that the person prosecuted is a trustee. Under the Act no machinery
has been set up for deciding the question whether there is a trust and whether
any person is a trustee of such a trust.
The whole basis of the contention of the
respondents in these three appeals which has in substance been accepted by the
High Court of Patna is that section 43 provides such a machinery. It is to be
noticed that there is nothing in section 67 which bars a prosecution under that
Therefore, the question that would arise is
whether by necessary implication section 43 would bar any prosecution under
section 67. Section 43 as it stood originally read:
"43. (1) The Board or any person
interested in a religious trust may, at any time, apply in the prescribed
manner to the' District Judge for a declaration that any immovable property is
This section was amended in 1956 to read as
"43. (1) All. disputes as to whether any
immovable property is or is not a trust property shall be inquired into, either
on its own motion or on application, by the authority appointed in this behalf
by, the State Government, by notification, in the Official Gazette." It
would be noticed that under the original section as well as under the section
as amended in 1956 the only question that can be decided is whether any
immovable property is a trust property or not. It does not provide for a
decision as to whether there is any religious trust, as defined under clause
(1) of section 2 of the, Act, or whether any person is a trustee or not. It
does not even provide for a decision on the question whether any property is a
trust property. It provides only for decision on the question whether any
immovable property is a trust property. It is quite conceivable that a trust
has no immovable property at all but only movable property, or as happens more
often the trust Properly may consist of both movable and immovable property.
Therefore, a decision under section 43 will not be a final or a complete
adjudication as regards the question whether there is any trust or whether any
person is a trustee. It stands to reason, therefore, that under section 43
there cannot be a conclusive decision which Will provide an answer to a
prosecution under section 67.
Furthermore in any prosecution under every
one 485 of the sections mentioned in section 67 the question that arises is
whether the person prosecuted is a trustee. And section 43 does not provide for
a decision of that question.
The only question that can be decided 'under
that section is irrelevant to the case of prosecution in respect of many of the
offences mentioned ill section 67. Therefore, when a question arises in a
prosecution under section 67 whether any trust is a trust coming within the
ambit of the Act and whether the person prosecuted is a trustee, it is a question
which the court before which the prosecution has been instituted has to decide
on the material placed before it. of course the prosecution cannot succeed
unless both these propositions are established. There is nothing preventing the
criminal court from going into both these questions.
A decision under section 43 is not a decision
by a court.
It is only a decision by a tribunal and it is
subject to the results of a suit to be instituted under that section within 90
days of the decision of the tribunal, Though originally the tribunal consisted
of a District Judge, it was nonetheless only a tribunal. Normally when a power
is conferred on an ordinary court of the land to decide a question it attracts
all the procedure that attaches to the proceedings of the court on which the
power is conferred including right of appeal, revision etc. Such was not the
position even before 1956. That question no longer arises because of the
amendment made in 1956. The position is now beyond doubt that it is only a
tribunal that determines cases under section 43. When the question is raised
before the authority under section 43 whether a certain immovable property is
trust property or not the person interested might say that there is no trust
and the property is not the trust property. In such a case the authority may
for the purpose of deciding whether the property is trust property have to
decide whether there is a trust at all. But such decision is only for the
purpose of deciding whether it has the jurisdiction to decide whether the
property in question is trust property. It is true that a subordinate tribunal
cannot by a wrong decision on the question of jurisdiction assume jurisdiction
which it does not possess. If it wrongly decides that it has jurisdiction on
the ground that there is a trust, such a decision can be questioned before the
ordinary civil courts. But in many cases the person interested may be content
with merely saying that the property in question is not trust property and not
raise the other question whether there is a trust at all. In any case under
this section it cannot be decided whether anybody is a trustee.
The High Court seems to have thought that the
fact that under section 43, as it originally stood, the Board or any person
interested in a religious trust may at any time apply to the District Judge for
a declaration and under the section as amended in 1956 all disputes shall be
inquired into by the authority appointed in this behalf makes a difference to
the question whether a prosecution under s.67 was barred without a decision
under s. 43. It does no such thing. In either case the only question that can
be decided under that section is whether any immovable property is or is not
trust property. Even under the section as amended in 1956 questions as regards
any trust property, both movable and immovable, which includes the question 486
whether there is a trust at all cannot be decided. In any case the question as
to whether a person is a trustee or not cannot be decided either under the
original section or under the section as amended ill 1956. And that is the crux
of the question in a prosecution under section 67. We are clearly of the
opinion that the High Court was in error in proceeding on the basis that
without a decision under section 43 no prosecution can be launched under
Neither expressly nor by necessary
implication section 43 or any other provision of the Act bars the prosecution
under section 67 without a decision under section 43.
The Full Bench had taken a view contrary to
that taken by earlier decisions of the same court. in Manth Ramdhan Puri v.
President, S.B.R.T., Patna(1) it was observed:
"If in every case where a person raises
a claim that the property is not trust property the Board is bound to stay its
hands by reason of such denial, then the Act will be unworkable and
meaningless.... .. . Section 43 of the Act is merely an enabling section......
It should be obvious that section 43 can have no application if the trust--is
not a religious trust at all. Section 43 applies only when the Act applies. If
the Act does not apply, section 43 can have no application. It is, therefore,
unreasonable to infer from section 43 that any denial by a person that the
property is not trust property will at once oust the jurisdiction of the Board."
In Bihar State Religious Trust Board v. Mahanth Jaleshwar Gir & Ors.(.2) is
was pointed out :
"Under the provisions of section 43(1),
of the Bihar Hindu Religious Trusts Act, 1950, disputes as to whether a
particular property, and that too only when it is immovable, is or is not a
property appertaining to a public trust can be enquired into by the authority.
That is to say, if the dispute relates to any
particular immovable property or properties forming part of or appertaining to
a public trust, such a dispute shall be enquired into by the authority either
of its own motion or on application of any person. In terms, if a dispute,, is
in regard to the nature of the trust itself, section 43 is not attracted.
Nobody can approach the authority, either the
State Board of Religious Trusts, Bihar, or the trustee or any other person, for
a declaration that a particular endowment or trust or institution is not a
public trust but a private one. nor can anybody file an application before the
authority for a mere declaration that it is a public trust. It may well be that
when question is raised before the authority in regard to a particular
immovable property that it appertains to a public trust, by way of answer to
such a claim, the person or the trustee may raise a dispute that even though
the parti(1) 1955 B. L. J. R. 665.
(2) 1. L. R.  46 Patna 23 487 cular
property appertains to the trust, the trust is not a public one, and,
therefore, the property should be held as not appertaining to a public trust.
Incidentally and indirectly, in such a case the question may arise for the
determination, of the authority and, on determination of this question, the
ultimate declaration which the authority would be competent to give under
sub-section (3) of section 43 will be that the property is or is not trust
property. But unless the determination of the character of the trust is
involved incidentally, and indirectly, the authority, either within the terms
of subsection ( 1 ) or as made expressly clear by the, terms of subsection (3),
has got no jurisdiction to adjudicate purely in regard to the nature of the
trust and to give a declaration as to whether it is a public trust or a private
trust." and it was held that the non-determination of the, question as to
the nature of the trust by the authority under section 43 is not a bar to, the'
launching of the prosecution under section 67. In B.S. Board of R. T.v. R.R.
Gir(1) it was held that "the scope of Sec. 43 is that if a dispute was in
regard to the nature of the trust itself, Sec. 43 was not 'at all attracted and
that neither the Board nor the Trustees nor any other person could approach the
Authority for a I declaration that a particular endowment or trust or
institution was a public trust and not a private one or vice-versa. On the
scope and ambit of Sec. 43 it was neither open to the special officer, Bihar
Hindu Religious Trust Board, Patna, who approached the authority for any such
declaration or order, nor was it competent for the authority to make the impugned
order." In S. S. Choubey v. B.H.R.T. Board(2) a Divisiion Bench followed
the earlier decision in Mahanth Jaleshwar's case (supra). It is interesting to
note that Justice Choudhary, who was a member of this Bench was also the Judge
who decided the case in Cr. Revision No. 170 of 1.961 (Mosst.Champa Sahu v. The
Bihar Religious Trust Board, Patna) disposed of on 24th August, 1961, the only
decision of' that court which appealed to the Full Bench. We must point out,
however, that this decision is based on a plain misreading of the decision of
this Court in Mahant Ram Saroop Dasji v.S. P. Sahi(3). In that decision this
Court held that the Act does not apply to private trusts. There was an earlier
decision obtained in First Appeal No. 10 of 1941 that the properties under
consideration there did not constitute a public trust and this Court therefore
pointed out that as long as the declaration made by the High Court in First
Appeal No. 10 of 1941 stands and in the absence of some I evidence to the
contrary, the appellant was entitled to say that the properties did not
constitute a public trust and the Act and its provisions did not apply to it.
The further observations of this Court did not say that a decision under,
section 43 was a pre-requisite to a prosecution under section 67. This (1) 1969
B. L. J. R. 63. (2) 1969 B.
L, J. R. 74.
(3)  (Supp.) 2 S. C. R. 583 488 Court
left it open to the respondents therein, i.e. the Board, to take such steps as
may be available to them in law to get it determined by a competent authority
that the trust in question is a public trust. The decision in Parmeshwari Pd.
Singh v. The Bihar State Board of Hindu Religious Trusts(1) also followed the
earlier decisions of the Patna High Court. Thus all the earlier decisions are
in consonance with the view which we have taken. We hold that the Full Bench
was in error in the view it took.
All the appeals are allowed. The respondent
in Civil Appeal No. 2029 of 1970 will pay the appellant's costs.