Raj Kishore Prasad, J.@mdashA rule was issued by the High Court on application of the petitioners under Article 226 of the Constitution of India, against the opposite party, to show cause why a writ should not be issued quashing the order dated the 14th November, 1953, passed by the then President of the Bihar State Board of Religious Trust, the predecessor of opposite party No. 1, u/s 33 of the Bihar Hindu Religious Trusts Act, 1950, (Bihar Act I of 1951), hereinafter referred to as "the Act", accepting opposite party No. 3, Rani Sonawati Kumari, as tile trustee and shebait of the Basukinath temple and its properties, in the district of Dumka.
2. It appears that when the Board, under the Act, began to function, it issued notices u/s 59 of the Act to Bameshwar Panda, petitioner No. 1, who is the Sardar Panda of Basukinath temple, and, to one Hari Prasad Kumar, who was the receiver of the Handwe Estate, of which opposite party No, 3 was the proprietress. The notice against petitioner No. 1 was served on the 28th January, 1953, while the notice against the receiver was served on the 18th February, 1953.
The Receiver on the. 23rd February, 1953 replied that he had got no concern with the temple and its properties in question, and, that they were solely in possession of Rani Sonawati Kumari, opposite party No. 3. The office of the President of the Board, thereafter, did not take any action on the letter received from the Receiver, and, therefore, did not write any letter, or send any notice to opposite party No. 3.
3. Petitioner No. 1, however, filed a return, as required by the notice u/s 59 of the Act, and, the accounts filed by him were accepted by the Board on the 15th February, 1953. After, receipt of the return u/s 59, assessment u/s 70 (2) (a) of the Act was made by the authority concerned on the 2nd June, 1953, against petitioner No. 1.
This assessment was subsequently transferred in the name of petitioner No. 2, who was looking after, and managing the temple and its affairs, owing to the old age of petitioner No. 1, On the 31st July, 1953, the petitioners also paid Rs. 51/-out of the amount of the fee assessed as required by Section 70 (1) of the Act.
4. On the 14th September, 1953, Rani Sonawati, opposite party No. 3, filed a petition before the Board stating that she was the shebait and trustee of Basukinath temple and all the properties belonging to it; and that petitioner No. 1 was only her agent, and, as such, the assessment of fee as required by Section 70 (1) of the Act in respect of the temple in question should be made in her name, according to the return, which was being filed by her, as required by Section 59 of the Act.
On this petition, the President on the 29th September, 1953, sent a letter to petitioner No, 1 stating the above facts, and asking him to show cause why assessment made on the return filed by him should not be cancelled, and the part payment made by him be returned to him and opposite party No. 3 be accepted as the shebait of the temple.
Thereafter, the then President of the Board, on the 14th November, 1953 after hearing the parties, passed an order, u/s 33 of the Act, accepting opposite party No. 3 as the trustee and the shebait of Basukinath temple and all the properties appertaining to it, till the question of shebaitship or trusteeship of the temple was not decided finally by the Civil Court. Against this order, the petitioners have moved this Court under Article 226 of the Constitution, and obtained the role under consideration.
5. The opposite party have shown cause, and counter-affidavits on behalf of the Board and opposite party No. 3 have also been filed.
6. Mr. Jagdish Narain Verma, who appeared in support of the rule, has put forward three grounds of attack against impugned order, dated the 14th. November, 1953, passed u/s 33 of the Act.
7. First, that the President had no authority to pass the order complained of, in that, an order u/s 33 of the Act could be passed only by the Board;
8. Second, that there was no "bona fide dispute", as contemplated by Section 33 (1) of the Act, when the petition was filed by opposite party No. 3, on the 14th September, 1953, before the Board, u/s 33 of the Act, and, as such, no order u/s 33 (1) could be passed, in the absence of any bona fide dispute, even if the President had authority to do so and
9. Third, that the President had no power to review its previous order, and, as such, the president could not review the previous assessment made by him u/s 70 (2) (a) of the Act against petitioner No. 1 on the 2nd June, 1953, and cancel it and make a fresh assessment against opposite party No. 3,
10. I propose to consider these contentions of Mr. Verma seriatim.
11. There is no substance in the first ground, and, as such, it cannot, be sustained. Section 39 of the Act is important, as it deals with delegation of powers of and by the Board. It is in these terms;
"39. The Board may delegate any of its powers and duties under this Act to the President, to be exercised and performed in such special circumstances as the Board may specify, and may likewise withdraw any such delegation."
Section 83, which deals with the power of the Board to make bye-laws is also important. Section 83 is as under:
"83. (1) The Board may make bye-laws not inconsistent with this Act and the rules made thereunder for any matter necessary for carrying into effect the object of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, the Board may make bye-laws with respect to--
Sub-clauses (a) to (r) are not material, and, therefore, they are not reproduced here.
(3) Such bye-laws shall be made after previous publication and shall not take effect until they are approved and confirmed by the State Government:
''Provided that if the State Government do not approve and confirm such bye-laws within four months from the date of receipts thereof by the State Government, the said bye-laws shall be deemed to have been approved and confirmed on the expiry of the said four months."
Section 82 deals with the power of the State Government to make rules, which are referred to in Section 83 (1).
12. It appears that the Board on the 17th March, 1952 at its meeting, appointed a sub-committee to frame bye-laws u/s 83 (1) of the Act. The bye-laws framed by the sub-committee were considered at a meeting of the Board on the 8th February, 1953, and, after discussions and considerations of objections, all the members finally accepted and adopted the bye-laws.
It was further resolved that fine bye-laws made by the Board should be sent to the State Government for their approval and confirmation as required by Section 83 (3) of the Act. The bye-laws were accordingly, forwarded to the State Government, for their approval and confirmation, on the 24th March, 1953, as will appear from Annexure H (1) annexed to the counter-affidavit, filed on behalf of the Board, opposite party No. 2.
The State Government did not approve and confirm within four months from the date of receipt thereof as required by proviso to Clause (3) of Section 83 of the Act. The bye-laws, however, were notified as required by Clause (3) of Section 83 of the Act on the 29th December, 1953, and, the said draft of bye-laws was published in the Bihar Gazette on the 3rd February, 1954.
In the bye-laws, Clause (44) specifies the powers-and duties of the Board which the Board delegated to be exercised and performed by the President. Under Clause (44) (q) is mentioned the power to appoint temporary trustee u/s 33 of the Act.
13. The argument put forward by Mr. Varma is that these bye-law by which the power to appoint temporary trustee u/s 33 of the Act was delegated by the Board to the President, were published in the Gazette on the 3rd February, 1954, but the -impugned order was passed by the President much earlier on the 14th November, 1953 when he had no power to pass an order u/s 33, because the power to appoint trustee u/s 33 of the Act/had not been delegated till then; and, as such, the argument runs, the impugned order passed by the President is without jurisdiction.
I am unable to accept this argument of Mr. Verma as sound. Section 39 gives power to the Board to delegate any of its powers and duties under the Act to the President. Section 39 is not hedged by any condition. It does hot provide any particular mode of delegation. It does not say that the Board may delegate any of its powers only under the bye-law to be framed by it u/s 83 (1) of the Act, and not otherwise.
We have to take the language of Section 39, as it is; and, taking the words as they are, the plain, and only, meaning of Section 39 is that the Board may delegate any of its powers and duties under the Act to the President either conditionally or unconditionally. The Board can delegate all its powers to the President unconditionally, and, such delegated power,-if uncontrolled and unconditioned, would be perfectly valid, and would confer on the President the same powers which the Act has conferred on the Board itself.
If, however, the Board desires to delegate any of its powers and duties to be exercised and performed by the President conditionally in certain cases and on certain conditions and in special circumstances only, then, in such a case, the Board shall specify the special circumstances in which the power conferred on the Board can be exercised, or the duty conferred oh the Board can be performed, by the President.
Section 39 cannot be construed in the manner sought to be construed by Mr. Verma. Section 39 cannot be read subject to Section 83 of the Act. Section 39 is not at all controlled by Section 83 of the Act. Therefore, if the Board delegates any of its powers, or duties under the Act, to the President, by a simple resolution, the delegation would be complete, in terms of Section 39 of the Act.
If, thereafter, the Board chooses to incorporate its decision, adopted by its resolution, in the bye-laws also, the delegation will not be nullified, or will not become inoperative and ineffective as long as the bye-laws are hot approved and confirmed by the State Government as required by Clause (3) of Section 83 of the Act.
14. In the present case, the Board delegated its power to appoint temporary trustee u/s 33 of the Act on the 8th February, 1953, when the Board unanimously approved and adopted the bye-laws which contained in Clause (44) (q) the power to appoint temporary trustee u/s 33 of the Act.
This resolution passed on the 8th February, 1953, made the delegation of the power to appoint temporary trustee u/s 33 to the President completes and operative from the date of its resolution that is, the 8th February, 1953. The mere fact that this delegated power was incorporated in the bye-laws, which, were published subsequent to the impugned order passed on the 14th November, 1953, will not make the order without jurisdiction.
15. There is another approach also to this question, and it can be considered from that aspect as well. Under the proviso to Clause (3) of Section 83, the bye-laws became effective after the expiry of four months from the date of the receipt of the bye-laws by the State Government, The bye-laws were forwarded to the State Government on the 24th March, 1953, and the State Government not haying approved and confirmed these bye-laws within four months from the date of the receipt thereof as required by the proviso to Clause (3) of Section 83 of the Act, the said bye-laws under the proviso became effective and operative from the 25th July, 1953, that is, after the expiry of four months from the 24th March, 1953, which must be considered to be the rate of the receipt of the bye-laws by the State Government in the absence of any evidence to the contrary.
The proviso to Clause (3) of Section 83 provides that the "bye-laws shall be deemed to have been approved and confirmed on the expiry of the said four months". Due to this deeming clause in the proviso to Clause (3) of Section 83 of the Act, the bye-laws became effective from, the 25th July, 1953, and, therefore, in this view of the matter also, the order passed toy the President subsequently on the 14th November, 1953, would be a perfectly valid order.
In my opinion, therefore, looked at from any point of view, the impugned order of the President cannot be attacked on the ground of want of authority in the President to pass the order complained of u/s 33 of the Act. The first objection of Mr. Verma is, therefore, overruled.
16. The second ground of attack is equally unsubstantial, and, it need not detain us long. It appears from Annexure ''D'' annexed to the counter-affidavit of the Board that on the 26th September, 1953, a proceeding u/s 144, Criminal Procedure Code, was started between petitioner No. 2 and the Manager of the Handwe Estate, of which the proprietress was Rani Sonawati Kumari, opposite party No. 3, due to a dispute over the income of the temple of Basukinath.
In the order dated the 14th November, 1953, the President mentions about the apprehension of breach of peace, as indicated by starting of Section 144, Criminal Procedure Code proceeding between Rani Sonawati Kumari and petitioner No. 2. There is, therefore, no doubt that on the date, when the impugned order u/s 33 of the Act was passed, there was a bona fide dispute as to the right of Sonawati to act as trustee.
The argument that there should have been a bona fide dispute as to her right to act as trustee on the date of the application made by Ram Sonawati Kumari on the 14th September, 1953, or, before it, and then alone the President could have passed an order, u/s 33 is not borne out by the language of Section 33 (1) of the Act. Section 33 (1) does not require any application to be made by any party for action toy the Board, or the President, u/s 33 of the Act. It would be advisable, at this stage, to reproduce Section 33 of the Act. Section 33 of the Act is in these terms:
"33. (1) Where there is a vacancy in the office of trustee of a religious trust and there is no one competent to be appointed as trustee under the terms of the deed of such trust or where there is a bona fide dispute as to the right of any person to act as trustee and in the opinion of the Board there is likelihood of a breach of the peace or serious Interference with the management of the property of such trust, or where there is a vacancy caused by the order of the Board passed under Clause (h) of Sub-section (2) of Section 28 of this Act the Board may, subject to any order of a competent Court, appoint any person to act as trustee of the said trust for such period and upon such conditions as it thinks fit.
(2) In appointing a person as a trustee under Sub-section (1), the Board shall, if possible, select a person of the section to which the last trustee belonged."
Section 33, therefore, gives power to the Board to appoint temporary trustee only in three cases and in none else. These three cases are that either there might have been a vacancy in the office of trustee, and, there is no one competent to be appointed as trustee under the terms of the deed of such trust, or, where there is a bona fide dispute as to the right of any person to act as trustee, and, in the opinion of the Board, there is likelihood of a breach of the peace, or serious Interference with the management of the property of such trust, or where there is a vacancy caused by the order of the Board passed u/s 28 (2) (h) of the Act.
The Board may, only in any such case, appoint a temporary trustee, subject to any order of a competent court, for such period and upon such conditions as it thinks fit. Section 33, therefore, does not provide either that any party should make any application for appointment as a temporary trustee, or, that there should be a bona fide dispute as to the right of any person to act as trustee at or before the date of making such application, if any,
Section 33 gives power to the Board to act even on its own motion, and to appoint a temporary trustee, if any of the three conditions envisaged in Section 33 (1) of the Act is satisfied. In my opinion, therefore, the fact that admittedly at the date of the Impugned order passed by the President u/s 33 of the Act, there was a bona fide dispute as to the right of opposite party No. 3, to act as trustee, and, there was likelihood of breach of the peace, or serious interference with the management of the property of such trust, was enough to give jurisdiction to the President to pass the order under Rule 33 (1) of the Act. In my opinion, therefore the order of the President cannot be attacked on this ground as well.
17. The last contention of Mr. Verma is also without any merit. The first assessment was made on the return filed by, and against the petitioner No. 1, in the absence of opposite party No. 3, and as such, that order could not be said to be binding on and against opposite party No. 3, The office of the Board through inadvertence, or otherwise, did not take any notice of the reply sent by the receiver that he had nothing to do with the temple and its properties, which appertained to the Handwe estate, and that the proprietress thereof was opposite party No. 3.
When the Board realised its mistake on the application made bv opposite party No. 3 on the 14th September. 1953, it passed an order, after hearing both the parties, u/s 33 of the Act in favour of opposite party No. 3, and, made an assessment against her u/s 70 (2) (a) of the Act on the basis of the return filed by her u/s 59 of the Act earlier.
The petition filed by opposite party No. 3 was not an application for review, nor, could it be treated as such. There was no question of any review by the president of its first order. It is true no appeal is provided against an order passed u/s 33 of the Act, nor, any power of review has been given to the Board, or the President, to review its own order.
But, in my opinion, the question of review does not arise, because the order which was passed u/s 33 of the Act was an administrative order, and, therefore, no question of any judicial review arises in this case. Even against an order passed u/s 70 (2) (a), an appeal is provided only in respect of the quantum of the assessment, and not otherwise. From the scheme of the Act, therefore, it is quite clear that an order passed by the Board, or the President, u/s 33 of the Act is an administrative order, and not a judicial order. This contention also, as such must be rejected.
18. All the contentions raised by Mr. Verma having failed, the application fails.
19. In the result, the rule is discharged, and the application is dismissed with costs, hearing fee Rs. 200/- to be paid by the petitioners to opposite party Nos. 2 and 3.
Ramaswami, C. J.
20. I agree.
