BIHAR HINDU RELIGIOUS TRUST Vs. KEDAR NATH SHARMA

JUDGEMENT

(1.) THIS appeal has been preferred under Section 95 (the Act) against the order dated 30.3.1989 passed by the then Judicial Commissioner, Ranchi, in Miscellaneous Case No. 81 of 1984, whereby the petition filed by the appellant for recalling the order dated 5.10.1982 in M.J.C No. 125 of 1981 has been dismissed.

(2.) THE facts are simple.Vishwakanta Debutter Charitable Trust is situated at 84, Hazaribagh Road, Ranchi. This Trust had got 0.95 decimals of land. It was having income of Rs. 6,000/ per year as rent from the different tenants of hutments standing on the land of the trust but expenditure for maintaining the trust property was higher then the income and, therefore, it was decided by the trustees to sell 0.72 decimals of land of the said trust which would fetch the income of Rs. 2,65,000/ and from that amount, Rs. 25,000/ may be spent for construction of the building adjacent to the temple for using the same as residence of sevaits and the remaining amount would be kept in deposit in F.D.R. which would fetch sufficient interest for the purpose of maintaining balance of the trust property in proper way. In this back ground, an application was made on 3.12.1980 to accord permission for sale of 0.75 decimals of land in Municipal Plot No. 1373. Holding No. 382, Ward No. VII of the then Ranchi Municipality. The said proposal was submitted under the signature of Kalidas Mullick, Sudhir Kumar and Bimal Kumar Mallick posing themselves to be the trustees. On such application being submitted, the Bihar Hindu Religious Trust Board (the Board) which was constituted under the Act, after due enquiry had given permission to sell the land, subject to the approval of the District Judge /Judicial Commissioner, Ranchi, as per the provisions of the Act. On such permission being accorded, a petition was filed before the Judicial Commissioner, Ranchi, under Section 28 (2) (j) of the Act for approval which had been registered as M.J.C. No. 125 of 1981. Notices were served on the Board through its Secretary and it appears that the Secretary simply filed a petition (Annexure 1) dated 28.9.1981 that the permission which had been granted by the Board has been with drawn but without considering that petition on the ground of non appearance of the Board, the approval was accorded by the judicial Commissioner, Ranchi, on 5th October, 1982, vide order as contained in Annexure 3. It appears that the learned Judicial Commissioner, Ranchi, in the order dated 5th October, 1982, had considered the accord granted by the Board which was marked as Ext. 1 and on consideration of the facts and circumstances and for the benefit of the trust, permission to sell was approved. After that no objection was raised either from the Board or from any person interested fora long time. If the Board as really interested then they should have filed objection for recalling the order or should have pressed their petition before the Judicial Commissioner, Ranchi, but that was not done. Now after two years, in the year 1984, one Kedar Nath Sharma filed a petition for recalling of the order of approval granted by the Judicial Commissioner, Ranchi, making the alleged so called trustees as parties. Objections were filed on the ground that there was no scope to entertain such petition at such belated stage as sale had already been effected in the meantime and also challenging the locus standi of the appellant. There is no provision under the Act for making such application for recalling of the earlier order and the learned court below considered the petition under Section 151 of the Code of Civil Procedure read with Section 28 (2) (h) of the Act but it was found that no power has been available to the Court under Section 28 (2) (h) of the Act for such a petition as provisions are quite foreign to the prayers made for recalling of the order. Section 28 (2) (h) of the Act provides for the procedure regarding removal of the trustees.

(3.) THERE might be some grounds regarding withdrawal of the approval by the Board before it was accorded, although Mr. P.K. Sinha, appearing for and on behalf of the respondents submitted that there is no provision under the Act for withdrawal of the permission by the Board once granted and that there is no resolution produced before the court by the Board regarding withdraw of the accord. A simple petition filed by the Secretary of the Board who had no statutory power under the Act cannot be considered by the Court and rightly it has not been taken notice of by the learned Judicial Commissioner while granting approval. These are matters of dispute. whether the permission was granted can be withdrawn or whether the Secretary of the Board had got authority to make such application or not. The fact remains that the petition filed can be at best under Section 151 of the Code of Civil Procedure although I am not convinced whether Section 151 of the Code of Civil Procedure can be applicable in such procedure under the Special Act or not. Even if the same is maintainable then also the same cannot be entertained after more than two years of passing of the order for recalling the same that too by a person who was not a party in the earlier proceeding and the disputed facts as mentioned earlier cannot be adjudicated under Section 151 of the Code of Civil Procedure. In that view of the matter, I am totally in agreement with the observations made by the learned Judicial Commissioner in the impugned order.