RAGHAVACHARYA Vs. SALIGRAMCHARYA

JUDGEMENT

(1.) Under Section 113 of the Code ot Civil Procedure the Additional District Judge of Bhagalpur has stated a case for the opinion o the High Court on the question whether the provisions of Section 48 of the Bihar Hindu Religious Trusts Act, 1950 (Bihar Act 1 of 1951), are void and inoperative.

(2.) Section 48 of the Bihar Hindu Religious Trusts, Act, 1950 (Bihar Act 1 of 1951) is in the following terms :

(3.) The view taken by the Additional District Judge is that the provisions of Section 48 of the Act are unconstitutional because the order of the District Judge upon the application has been made final by Section 48 (2) of the Act and there is no right of appeal to the aggrieved party from the decision of the District Judge to any higher authority. When the reference was heard in this Court, Mr. C.P. Das on behalf of the opposite party supported the view taken by the learned Additional District Judge and contended that the provisions of Section 48 of the Act are ultra vires for the reason that no right of appeal is provided against the order of the District Judge to any higher judicial authority. In our opinion, the opinion expressed by the learned Additional District Judge is erroneous, and the provisions of Section 48 of Bihar Act 1 of 1951 must be held to be constitutionally valid and operative. It is true that no right of appeal is provided from the order of the District Judge made under Section 48 (1) on the application of the Board or with the previous sanction of the Board by any person interested in a religious trust. The mere fact that the Act does not provide a right of appeal to an aggrieved party is not sufficient to show that from a procedural point of view there is an unreasonable restriction imposed on the fundamental right of the trustee of a religious trust under Article 19 (1) (f) of the Constitution. The reason is that the power of removing a trustee or appointing a new trustee under Section 48 (1) of the Act is conferred upon a high judicial officer of the status of a District Judge and not upon any executive authority. It is also to be noticed that the power of removing a trustee conferred by Section 48 (1) is not an unrestricted and; unfettered power. The statute specifies the circumstances in which the power of removal should be exercised by the District Judge. For instance, Section 48 (1) (a) provides that the power of removal may be exercised if a trustee acts in a manner prejudicial to the interest of the said trust, or defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property of the trust or any other statutory charge on such property. It is manifest, therefore, that the statute contains the principle on which the power of removal of the trustee can be exercised, and, as we have already said, the power is to be exerciesd by an officer of the rank of a District Judge. We, therefore, hold that in the context of the object and purpose of the Act the absence of the provision of the right of appeal against the order of the District Judge under Section 48 does not constitute any infringement of the fundamental right guaranteed under Article 19 (1) (f) of the Constitution. Reference was made by Mr. G.P. Das on behalf of the opposite party to the decision of the Supreme Court in Sri Jagannath Ramanuj Das v. State of Orissa, 1954 SCR 1046: (AIR 1954 SC 400). In that case a question arose whether sections 38 and 39 of the Orissa Hindu Religious Endowments Act, 1939, as amended by the Amending Act II of 1952, were constitutionally valid. These two sections related to the framing of a scheme for the due administration of the endowed property. The objection was taken on behalf of the appellant that the Act provided for the framing of a scheme not by a civil court or under its supervision but by the Commissioner, who was a mere administrative or executive officer. It was also objected that there was no provision for an appeal against the order of the Commissioner to the civil court, and it was pointed out that under Sub-section (4) of Section 39 the order passed by the Commissioner with regard to the framing of a scheme was final and conclusive. In these circumstances, it was observed by the Supreme Court that Sections 38 and 39 of the Act were invalid and those sections required redrafting. It was pointed out by the Supreme Court that the settling of a scheme in regard to a religious institution by an executive officer without the intervention of any judicial tribunal amounted to an unreasonable restriction upon the right of property of the superior of the religious institution which is blended with his office. It should be noticed that the gist of the Supreme Court decision is that the sections were invalid not because of the absence of the right of appeal but because the scheme was settled by an executive officer without the intervention of any judicial tribunal. We think that this line of reasoning of the Supreme Court does not apply to the present case because Section 48 of the Bihar Act specifically provides that the application is to be made to the District Judge and it is the District Judge who makes an order, after hearing the evidence of the parties, for removing a trustee oi a religious trust or for appointing a new trustee. In our opinion, the principle of the decision of the Supreme Court in 1954 SCR 1046: (AIR 1954 SC 400), has no application to the present case. On behalf of the opposite party Mr. G.P. Das also referred to the decision of this Court in Jugal Kishore Bhadani v. Labour Commissioner, Bihar, 1958 Pat LR 93: (AIR 1958 Pat 442), in which it was decided that sub-sections (2) and (3) of Section 26 of the Bihar Shops and Establishments Act 1953 (Act VIII of 1954) were unconstitutional as there was an infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution. But this case is also distinguishable and it has no bearing on the decision of the present case. The question for decision in Jugal Kishore Bhadani's case 1958 Pat LR 93: (AIR 1958 Pat 442), was whether Sub-sections (2) and (3) of Section 26 of Bihar Act VIII of 1954 were constitutionally valid. Section 26 (1) of the Act states as follows :