PRESIDENT OF BLHAR STATE BOARD OF HINDU RELIGIOUS TRUSTS PRESIDENT OF BIHAR STATE BOARD OF HINDU RELIGIOUS TRUST Vs. NALINI GHOUDHARI:MAHANT RAMANAND DAS

JUDGEMENT

(1.) 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 Miscellaneous 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. 2029 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 Section 67 of the Act claimed that he was the sole shebait of a temple in village Basgarhia 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 Basgarhia in the district of Purnea of which he was the sole shebait 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 appeals.

(2.) Section 67 (1) of the Act reads:

(3.) 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.