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PETITIONER: THE STATE OF BIHAR & OTHERS

       Vs.

RESPONDENT: BHABAPRITANANDA OJHA

DATE OF JUDGMENT: 15/04/1959

BENCH: DAS, S.K. BENCH: DAS, S.K. DAS, SUDHI RANJAN (CJ) GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M.

CITATION:  1959 AIR 1073            1959 SCR  Supl. (2) 624  CITATOR INFO :  RF         1963 SC 853  (11)

ACT: Hindu  Religious  Trusts-Constitutional  validity  of  Bihar Hindu Religious Trusts Act-Trust Properties situate  outside Bihar  Legislative  competence-Scheme framed  for  Trust  by Calcutta High Court-Applicability of Act to such Trust-Bihar Hindu  Religious Trusts Act, 1950 (Bihar 1 Of 1951), ss.  3, 4(5), 28,29Code of Civil Procedure, 1908 (Act 5 of 1908), s. 92-Constitution of India, Arts. 14, 19(1)(f), 25, 26, 27.

HEADNOTE: In  respect  of an ancient temple situate in  the  State  of Bihar,  disputes arose in I897 between the high  priest  and the  "  pandas " regarding the control of the  temple  which ultimately  led to a suit being filed under S. 539  (now  s. 92)  Of  the Code of Civil Procedure, in the  Court  of  the District  judge  of Burdwan and a decree was passed  by  the Additional  District judge, under which a scheme was  framed for  the  proper management of the temple.  The  decree  was confirmed  by the Calcutta High Court and the scheme  itself was later modified from time to time by the said High Court. After  the  coming into force of the Bihar  Hindu  Religious Trusts Act, 1950, the President of the Bihar State Board  of Religious  Trusts, acting under S. 59 of the Act,  served  a notice  on  the respondent, who had  been  appointed  Sardar Panda for the temple under the scheme, asking him to furnish a  statement  in respect of the temple  and  the  properties appertaining  thereto.  The respondent made  an  application under  Art.  226 of the Constitution to the  High  Court  of Patna  challenging the validity of the action taken  against him on the grounds (1) that the Bihar 625 Hindu Religious Trusts Act, 1950, was ultra vires the  Bihar Legislature,  (2)  that the Bihar Legislature did  not  have legislative  competence to deal with the temple in  question as  some of the properties appertaining to the  temple  were situate  outside Bihar, and (3) that, in any case,  the  Act did  not apply to the temple by reason of the fact that  the

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temple  and its properties were administered under a  scheme made  by  the  Court of the District Judge  of  Burdwan  and approved  by  the  Calcutta High Court both  of  which  were situate   outside  the  territorial  limits  of  Bihar,   as otherwise  the Act by some of its provisions would  seek  to interfere with the jurisdiction of courts which are  outside Bihar and thereby get extra-territorial operation. Held:     (1)  that  the Bihar Hindu Religious  Trusts  Act, 1950, is intra vires the Bihar State Legislature Mahant  Moti  Das v. S. P. Sahi, [1959] SUPP. 2  S.C.R.  563 followed. (2)  that  it  is  competent to  the  Bihar  Legislature  to legislate  in respect of religious trusts situate  in  Bihar though some of the properties belonging to the trust may  be outside Bihar; State of Bihay v. Charusila Dasi, [1959] SUPP. 2 S.C.R.  601 followed. (3)  that the provision of law in sub-s. (5) of s. 4 Of  the Act by which s. 92 Of the Code of Civil Procedure shall  not apply  to  any  religious trust in the State  of  Bihar,  is valid; and (4)  that  as under s. 4(5) Of the Act religious  trusts  in Bihar  are taken out of the purview of s. 92 Of the Code  of Civil  Procedure, the jurisdiction of the District judge  of Burdwan  or the Calcutta High Court to deal with the  temple in  question under s. 92 comes to an end;  consequently  the Act  and its several provisions do not suffer from the  vice of extra-territoriality and the Act applies to the temple in question and the properties appertaining thereto.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 236 of 1954. Appeal from the judgment and order dated October 9,1953,  of the  Patna-High  Court in Misc.  Judicial Case  No.  181  of 1953.  Mahabir  Prasad, Advocate-General for the State  of  Bihar, Bhagwat Prasad and S. P. Varma, for the appellants. P.   R. Das, A. C. Roy and R. R. Biswas, for the respondent. 1959.  April 15.  The Judgment of the Court was delivered by 79 615 S.   K.  DAS,  J.-This is an appeal from  the  judgment  and order  of the High Court of Patna dated October 9, 1953,  in Miscellaneous  Judicial Case No. 181 of 1953 of that  Court. It  relates  to a temple commonly known  as  the  Baidyanath temple  situate in the town of Deoghar within the limits  of Santal Parganas in the State of Bihar. For  the  purposes of this appeal it will  be  necessary  to refer  to  some earlier litigation about this  temple.   The history  ’of this temple, it is not disputed, goes  back  to remote antiquity.  According to Hindu tradition referred  to in  the Siva Purana and Padma Purana, extracts  from  which, with  translations, are given by Dr. Rajendra Lal  Mitra  in his  paper  on the Temples of Deoghar (see  Journal  of  the Asiatic Society of Bengal, Part 1, 1883, quoted in the Bihar District   Gazetteer  relating  to  Santal  Parganas,   1938 edition’ pp. 373-376), the origin of the temple is traced to the  Treta  Yuga, which was the second age of the  world  by Hindu  mythology.  Side by side with Hindu tradition,  there is  a Santal tradition of the origin of the temple given  by Sir William Hunter (see the Annals of Rural Bengal, p. 191 ; Satistical  Account  of Bengal, Vol.  XIV,,  p.  323).   But these  materials afford no evidence as to when and  by  whom

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the idol was established or the temple was built. The  temple  sheltering  the " lingam  "  and  dedicated  to Mahadeva  stands  in a stone-paved  quadrangular  courtyard. The courtyard contains eleven other temples, smaller in size and  of less importance than that of  Baidyanath.   Pilgrims visit  the  temples in large numbers and make  offerings  of flowers  and  money  in silver or gold;  rich  people  offer horses,   cattle,  palanquins,  gold  ornaments  and   other valuables  and sometimes, rent-free land in support  of  the daily  worship.   There is a high or  chief  priest  (Sardar Panda) who it appears used to pay a fixed rent to the  Rajas of   Birbhum   during  the  Muhammadan   regime,   and   the administration  of the temple was then left entirely in  the hands of the high priest.  It may be here stated that  about 300  families  of  " pandas ", who belong  to  a  branch  of Maithil Brahmins, were attached to the 627 temple and earned their livelihood by assisting pilgrims  in performing the various ceremonies connected with the worship of the God.  When the British rule began, it was decided  to take over the management of the temple, and with this object an  establishment of  priests, collectors and  watchmen  was organised  in 1787 at Government expense.  The revenue  soon fell off, as the chief priest beset the avenues to the  tem- ples with emissaries, who induced the pilgrims to make their offerings  before approaching the shrine. (See the  District Gazetteer,  ibid, p. 383).  In 1791 Government  relinquished its  claim  to a share of the offerings  and  entrusted  the management of the temple to the head priest on his executing an  agreement to keep the temples in repair and  to  perform all  the usual ceremonies.  This agreement was entered  into by  Ram Dutt (the ancestor of the present respondent),  then high  priest  of  the temple and Mr, Keating  who  was  then Collector  of  the district.  According to Mr.  Keating  the income  of the temple in 1791 consisted of the offerings  of the proceeds of 32 villages and 108 bighas of land which  he estimated  at Rs. 2,000 a year; some years later  the  total income was estimated at Rs. 25,000 a year.  Under the system introduced  by the agreement of 1791, the  mismanagement  of the  temple was a source of constant complaint;  the  temple and  "  ghats " were frequently out of repair and  the  high priest was charged with alienating villages from the  temple and  treating his situation as a means of enriching  himself and  his family.  On the death of the high priest in 1820  a dispute  over  the succession arose between an uncle  and  a nephew.  The nephew Nityanand was eventually appointed,  but neglected  to  carry  out  the  terms  of  his  appointment. Finally,  Nityanand  was charged with  malversation  of  the funds and the uncle Sarbanand was appointed in his stead  in 1823.  There was a faction which was opposed to  Sarbanand’s retention  in- office and asked for Government  interference in   the  internal  management  of  the  temple.   In   1835 Government  declined all interference in the matter and  the parties were left to have recourse to the established courts of law.  Sarbanand 628 died in 1837 and Iswaranund Ojha, son of Sarbanand Ojha, was subsequently elected Sardar-Panda.  Iswaranund was succeeded by his grand-son, Sailajanund Ojha. There  were,  however, frequent disputes  between  the  high priest  and  the  " pandas " regarding the  control  of  the temple and in 1897 a suit was filed under s. 539 (now s. 92) of the Code of Civil Procedure in the Court of the  District Judge  of Burdwan.  This was Suit No. 18 of 1897  which  was decided by the learned Additional District Judge of  Burdwan

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by  his judgment dated July 4, 1901.  Sailajanund  Ojha  was dismissed  by the order of the court, as he by  his  conduct and behavior and by causing loss to the Debutter  properties rendered himself unfit and disqualified to hold the post  of Sardar  Panda and trustee of the temple of  Baidyanath.   It was further ordered-by the learned Additional District Judge in the decree granted by him that some fit person be elected as Sardar Panda by the " pandas " of the temple and that the affairs  of the temple be managed under a scheme  which  was framed by the learned Additional District Judge and formed a part of the decree.  Under this scheme three persons were to be appointed to look after the temple and its properties and for a proper administration of the same.  One of these three persons  was to be elected from amongst the  descendants  of Ram Dutt Jha.  After this Umesbanund Dutt Jha, second son of Iswaranund Ojha, was elected Sardar Panda.  On the death  of Umeshanund  Dutt  Jha,  Bhabapritananda Ojha,  who  was  the petitioner  in the High Court and is now  respondent  before us,  was  appointed Sardar Panda.   Bhabapritananda  is  the grand-son  of  Sailajanund Ojha, and we.  shall  hereinafter refer to him as the respondent. The  scheme which was framed as a result of the decision  in Civil Suit No. 18 of 1897 was confirmed by the Calcutta High Court  and  the decision of the High Court  is  reported  in Shailajananda  Dut  Jha v. Umeshanunda Dut  Jha  (1).   This scheme was modified in a subsequent litigation in 1909, when one of the members of the committee applied to the  District Judge (1)  (19O5) 2 C.L.J. 460. 629 for a modification of the scheme.  The application was first dismissed,  but  the matter was taken to the  Calcutta  High Court, and on September 8, 1910, that Court on the authority of the decision of the Judicial Committee in Prayag Doss  v. Tirumala (1) and with the consent of counsel on both  sides, directed the insertion of two clauses in the decree ; by one of  these  clauses,  liberty  was  reserved  to  any  person interested  to apply to the District Court of  Burdwan  with reference  to  the  carrying out of the  directions  of  the scheme and by the other clause, liberty was reserved to  any person interested to apply from time to time to the Calcutta High  Court  for any modification of the scheme  that  might appear necessary or convenient.  Under these two clauses the members  of  the  committee  subsequently  applied  to   the District  Judge of Burdwan that certain directions might  be given  to  the  high priest ; the high  priest  opposed  the application  on  the  ground  that  it  was  in  essence  an application  for  modification of the scheme  and  could  be entertained  only by the High Court.  The  learned  District Judge overruled this objection.  The matter was again  taken to the Calcutta High Court and that Court directed (1)  that the  committee must prepare ail annual budget of the  income and  expenditure;  (2)  that  provision  must  be  made  for quarterly  audit and annual inspection of the accounts;  (3) that  provision  should  be made for joint  control  of  the temple funds after they have been realised ; (4) that  there must  be no undue interference on the part of the  committee with  the  high  priest in the internal  management  of  the temple;  and (5) that no one who has any pecuniary  interest in  the temple properties or is a creditor of the  endowment should  serve  on  the committee.  The  High  Court  further directed   that   clauses  embodying  the   aforesaid   five directions should be inserted in the scheme.  This  decision of  the High Court is reported in Umeshananda Dutta  Jha  v. Sir Ravaneswar Prasad Singh (2).

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We  now  come  to  more recent events  which  gave  rise  to Miscellaneous Judicial Case No. 181 of 1953 in the (1) (196) I.L.R. 3o Mad. 138. (2) (1912) 17 C.W.N. 871. 630 Patna  High  Court.  The Bihar Hindu Religious  Trusts  Act, 1950 (Bihar I of 1951), hereinafter referred to as the  Act, received  the President’s assent on February 21,  1951,  and came  into force on August 15. 1951.  This  Act  established the  Bihar State Board of Religious Trusts to discharge  the functions  assigned  to the Board by the Act.   Sometime  in August  1952  the  President of the  Bihar  State  Board  of Religious  Trusts  acting under s. 59 of the Act  asked  the respondent  to  furnish  a  statement  in  respect  of   the Baidyanath temple and the. properties appertaining  thereto. The respondent wrote back to say that the administration  of the  temple  and  its  properties was  in  the  hands  of  a committee  constituted under a scheme made by  the  District Judge  of Burdwan and approved by the Calcutta  High  Court, and these Courts being outside the jurisdiction of the Bihar Legislature,  the  Act did not apply to the temple  and  the respondent was not in a position to carry out the directions of  the  President  of the Bihar State  Board  of  Religious Trusts which might be in conflict with those of the Calcutta High  Court.   The Board, however, proceeded to  assess  and demand  payment  of  Rs. 1,684-6-6 as  fee  payable  by  the respondent  in respect of the Baidyanath temple to it  under s.  70 of the Act.  The respondent then made an  application under  Art.  226 of the Constitution to the  High  Court  of Patna, which application gave rise to Miscellaneous Judicial Case  No. 181 of 1953.  On various grounds  stated  therein, the respondent con. tended that the Act was ultra vires  the Bihar Legislature ; he further contended that even if  intra vires,  the  Act  properly construed did not  apply  to  the Baidyanath temple and the properties appertaining thereto by reason  of  the circumstance that the said  temple  and  its properties  were  administered under a scheme  made  by  the court  of the District Judge of Burdwan and approved by  the Calcutta  High Court both of which are situate  outside  the territorial ’limits of Bihar. The  State  of Bihar, the Bihar State Board of  Reli.  gious Trusts and the President thereof, now appellants before  us, contested the application.  Relying on the 631 principles  (1) that there should be as far as  possible  no conflict  or  clash  of  jurisdiction  between  two  equally competent  authorities and (2) that no intention  to  exceed its own jurisdiction can be imputed to the Bihar Legislature and  of two possible constructions of the Act, the one  that would  make  it intra vires should be  preferred,  the  High Court came to the conclusion that the expression " religious trust " as defined in s. 2 (1) of the Act must be  construed not in the plain and grammatical sense but must be cut  down so  as to exclude such religious trusts as are  administered under  a  scheme  made  by  a  court  situate  outside   the territorial limits of Bihar and, therefore, the Act did  not apply  to  the Baidyanath temple and the  President  of  the Bihar State Board of Religious Trusts constituted under  the Act had no jurisdiction to take any proceedings against  the respondent  under the provisions of the  Act.   Accordingly, the  High Court allowed the application of  the  respondent, quashed the proceedings taken against him by the Bihar State Board of Religious Trusts, and issued a writ prohibiting the said  Board from taking any further proceedings against  the respondent under any of the provisions of the Act.

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The  State  of  Bihar, the Bihar State  Board  of  Religious Trusts  and its President obtained a certificate under  Art. 132 of the Constitution from the High Court and the  present appeal  has  been  filed  by  them  in  pursuance  of   that certificate.    We   shall   hereinafter   refer   to   them compendiously as the appellants. We  have  had  before us a number of appeals  in  which  the validity  of the Act has been challenged on several  grounds and in some of these appeals, further questions were  raised as to the application of the Act to private religious trusts and  even  to  public trusts some properties  of  which  are situate outside the State of Bihar.  These appeals we put in four categories.  They have been heard one after another and though we are delivering judgment in each category separate- ly, it has been made clear that the reasons for the decision on  points  which are common to all or some of  the  appeals need not be repeated in each judgment. In Civil Appeals Nos. 225, 226, 228, 229 and 248 of 632 1955  (1),  which fall in the first category, we  have  con- sidered  the questions if the Act is bad on the ground  that its several provisions infringe the appellants’  fundamental rights  guaranteed  under Art. 14, Art. 19 (1)  (f),  and/or Arts.  25, 26 and 27 of the Constitution, or on  the  ground that it imposes an unauthorised tax.  We have given  reasons for  our  conclusion that the Act is not bad on any  of  the aforesaid  grounds.  These reasons we do not wish to  repeat here;  they govern the present appeal also in so far as  the Act is challenged on the self-same grounds.  In Civil Appeal No.  343  of 1955 (2), which is in the second  category,  we have  dealt  at  length with the definition  clause  of  the expression  "  religious  trust " in the  context  of  other provisions of the Act, and have come to the conclusion  that the  Act  does not apply to private trusts.  In  the  appeal under  consideration in this judgment the admitted  position is  that the Baidyanath temple is a public trust; so it  was held  in  the earlier litigation to which  we  have  already referred  and the scheme was formulated on that  footing  in Suit  No. 18 of 1897.  In Civil Appeal No. 230 of 1955  (3), which is the third category, we have considered the question if the Act suffers from the vice of extra-territoriality  by reason  of the provisions in s. 3, which says that  the  Act shall apply to all religious trusts, whether created  before or  after  the  commencement of the Act,  any  part  of  the property of which is situate in the State of Bihar.  We have held  therein that two conditions must be fulfilled for  the application   of   the  Act-(a)  the  religious   trust   or institution  itself  must be in Bihar and (b)  part  of  its property must be situated in the State of Bihar.  Those  two conditions are fulfilled in this case; the Baidyanath temple is in Bihar and it is admitted that the properties belonging to  the  temple lie mainly in Bihar though  there  are  some properties  in  the districts of  Burdwan,  Murshidabad  and Birbhum in the present State of West Bengal. Now, we come to the points which have been (1)  Mahant Moti Das v. S. P. Sahi, see p. 563, ante. (2)  Mahant  Ram  Saroop Dasji v. S. P. Sahi,  see  P.  583, ante. (3)  State of Bihar v.  Charusila Dasi, see p. 601, ante. 633 specially  raised in this appeal, which is in the fourth  or last category.  On behalf of the appellants it has been very strongly  contended  that  the High Court was  in  error  in relying  on  the  doctrine of comity  of  jurisdictions  and cutting  down the scope of the Act on such a  doctrine.   It

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has   been  submitted  that  the  doctrine  of   comity   of jurisdictions has no application to the facts of the present case and there is no possibility of any conflict or clash of jurisdiction between two equally competent authorities.   It is  pointed out that item 28 of the Concurrent List  in  the Seventh Schedule to the Constitution of India is " Charities and   charitable  institutions,  charitable  and   religious endowments  and religious institutions ". It is argued  that the  Bihar  Legislature  has,  therefore,  full  legislative competence to enact the statute in question, and it has been submitted  that if the Act does not suffer from the vice  of extra-territoriality,  then it is good and all  courts  must obey  it.  Under s. 4 (5) of the Act, s. 92 of the  Code  of Civil Procedure, 1908, has ceased to apply to any  religious trust as defined in the Act ; therefore, no action under  s. 92,  Code  of  Civil  Procedure, can  be  taken,  after  the commencement  of the Act, in respect of religious trusty  in Bihar  which  are governed by the Act and there  can  be  no question of any conflict of jurisdiction in respect of  such trusts as between the Bihar State Board of Religious  Trusts and a court in.Bihar on one side and the courts outside  the State of Bihar on the other.  On these submissions,  learned counsel for the appellants has argued that the real question for  decision is if the Act or any of its provisions  suffer from  the vice of extra-territoriality and if that  question is answered in favour of the appellants, then the High Court was in error in cutting down the scope and ambit of the  Act by invoking the doctrine of comity of Jurisdictions. At  this  stage  it is convenient to set out  in  brief  the argument  which  Mr.  P. R. Das,  learned  counsel  for  the respondent,  has advanced in support of the judgment of  the High Court.  In one part of its judgment, the High Court has referred to the principle that every 80 634 statute  should be so interpreted and applied, in so far  as its  language  admits, as not to be  inconsistent  with  the comity   of  nations  or  with  the  established  rules   of international law, and has referred to certain decisions  in support  of  that  principle.  Mr. P.  R.  Das  has  frankly conceded  before  us that no question of  any  inconsistency with,’  the comity of nations or with the established  rules of international law arises in the present case and he  does not  contend that the Act or any of its  provisions  violate any established rule of international law.  Therefore, it is unnecessary  to  consider this part of the judgment  of  the High  Court.   Before  us Mr. P. R. Das  has  developed  his argument in the following way.  He has first submitted  that Suit No. 18 of 1897 which was instituted in the court of the District  Judge  of  Burdwan in respect  of  the  Baidyanath temple   and  its  properties  is  still  pending  and   the administration  of  the temple and its properties  is  being carried  on by a committee appointed under a scheme made  by the  District  Judge  of  Burdwan  and  later  approved  and modified by the Calcutta High Court; therefore, the District Judge  of  Burdwan and the Calcutta High Court are  in  full seizin  of  the  trust and its  properties,  and  the  Bihar Legislature   cannot  take  away  or  interfere   with   the jurisdiction of either the District Judge of Burdwan or  the Calcutta High Court.  In this connection he has referred  to cl.  39  of  the Letters Patent of  the  Patna  High  Court, particularly to item (a) of the first proviso thereto.  That clause is in these terms:- " And We do further ordain that the jurisdiction of the High Court of Judicature at Fort William in Bengal in any  matter

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in which jurisdiction is by these presents given to the High Court  of Judicature at Patna’ shall cease from the date  of the publication of these presents, and that all  proceedings pending in the former Court on that date in reference to any such matter shall be transferred to the latter Court: Provided,  first, that the High Court of Judicature at  Fort William in Bengal shall continue to exercise jurisdiction- (a)  in all proceedings pending in that Court on 635 the  date of the publication of these presents in which  any decree  or order,’ other than an order of  an  interlocutory nature,  has been passed or made by that Court, or in  which the validity of any such decree or order is  directly     in question; and (b)  in all proceedings (not being proceedings referred  to in paragraph (a) of this clause) pending in presents  under  the  13th, 15th, 22nd,  23rd,  24th,  25th, presents under the 13th, 15th, 22nd, 23rd, 24th, 25th, 26th, 27th,  28th,  29th, 32nd, 33rd, 34th or 35th clause  of  the Letters Patent bearing date at Westminster the Twenty-eighth day of December, in the year of Our Lord One thousand  eight hundred and sixty-five, relating to that Court; and (c)  in,  all  proceedings instituted in that Court,  on  or after  the date of the publication of these  presents,  with reference  to  any decree or order passed or  made  by  that Court: Provided,  secondly,  that,  if any question  arises  as  to whether  any  case is covered by the first proviso  to  this clause, the matter shall be referred to the Chief Justice of the  High Court of Judicature at Fort William in Bengal  and his  decision  shall be final ". His argument  is  that  the scheme  made  by  the District Judge of  Burdwan  and  later approved by the Calcutta High Court can be modified only  by the  Calcutta  High Court and that High Court  continues  to exercise  jurisdiction in respect of the scheme  under  item (a) of the first proviso to clause 39 referred to above, and cl.  41  of the Letters Patent does not  empower  the  Bihar Legislature  to  amend  any of the clauses  of  the  Letters Patent.  He has also submitted that on February 9, 1917, the Calcutta  High  Court  decided  that  any  application   for enforcement of the scheme would lie to the District Judge of Burdwan and not to the Deputy Commissioner of Dumka.  It may be  stated here that Burdwan is in the State of West  Bengal and  Dumka  in  the  State of Bihar.   Mr.  P.  R.  Das  has contended  that  in  so far as the  provisions  of  the  Act interfere  with  the jurisdiction of courts  outside  Bihar, they have extra-territorial operation and must be held to be bad 636 on that ground; because under Art. 245 of the  Constitution, the  Bihar  Legislature may make laws for the whole  or  any part of the State of Bihar, but it cannot make any law which will  have  extra-territorial operation.  He has  drawn  our attention  to the provisions of ss. 3, 4 (5) and 28  of  the Act,  and has laid particular emphasis on the provisions  of s.  29 of the Act, which provisions, according to him,  have extra-territorial operation. Having set out in some detail the arguments which have  been advanced  before  us  on behalf of the  appellants  and  the respondent,  we proceed now to consider them on merits.   We agree with learned counsel for the parties that no  question arises  in this case of any conflict or  inconsistency  with the  doctrine of comity of nations or with  any  established rule of international law.  The question which really arises for  decision  is if any of the provisions of the  Act  have

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extra-territorial operation.  This question has two aspects. First,  there  is s. 3 which says inter alia  that  the  Act shall  apply  to  all  religious trusts,  any  part  of  the property  of which is situated in-the State of  Bihar.   The argument  is  that  the Bihar Legislature has  no  power  to legislate   about  trust  property  which  is  outside   the territorial limits of Bihar and s. 3 of the Act in so far as it  seeks to operate on trust property outside  Bihar  makes the  Act bad on the ground of  extra-territorial  operation. This  part  of the argument has been fully  dealt  with  and rejected  in the decision relating to the  Charusila  Trust, Civil  Appeal No. 230 of 1955 (1).  The second facet of  the argument  is  what Mr. P. R. Das  has  specially  emphasised before us in this appeal.  His argument in substance is that the  Act by some of its provisions seeks to  interfere  with the jurisdiction of courts which are outside Bihar, and this in  effect is the vice of extra-territorial  operation  from which, according to him, the Act suffers. We are unable to agree with him in this contention.  Section 3  we  have already referred to.  Sub-section (5)  of  s.  4 states inter alia that s. 92 of the Code of Civil Procedure, 1908, shall not apply to any religious trust (1)  State of Bihar v. Charusila Dasi, see p. 601, ante. 637 in  the  State  of Bihar as defined in  the  Act.   We  have considered  the effect of this sub-section in  the  decision relating  to the Charusila Trust (ibid) and have  held  that the  Act applies when the trust itself, temple or  deity  or math,  is situate in Bihar and also some of its property  is in Bihar.  We have pointed out therein that the trust  being situatedin  Bihar, that State has legislative power over  it and over its trustees and their servants or agents who  must be  in Bihar to administer the trust ; therefore,  there  is really  no  question  of the  Act  having  extra-territorial operation.  In our opinion, this reasoning is equally  valid in respect of the argument of Mr. P. R. Das.  If, as we have held,  it is open to the Bihar Legislature to  legislate  in respect  of  relgious  trusts situate in  Bihar,  then  that Legislature  can make a law which says, as in sub-s. (5)  of s.  4 of the Act, that s. 92 of the Code of Civil  Procedure shall  not  apply  to any religious trust in  the  State  of Bihar.  If sub-s. (5) of s. 4 of the Act is valid as we hold it  is, then no question really arises of  interfering  with the jurisdiction of the District Judge of Burdwan or of  the Calcutta  High  Court in respect of the  Baidyanath  temple, inasmuch  as those courts exercised that jurisdiction  under s.  92, Code of Civil Procedure, which no longer applies  to the  Baidyanath  temple  and  the  properties   appertaining thereto, after the commencement of the Act.  It is true that the  Act  does put an end to the jurisdiction under  s.  92, Code  of  Civil  Procedure, of all  courts  with  regard  to religious  trusts  situate  in Bihar, but that  it  does  by taking  these trusts out of the purview of s. 92.  In  other words,  the Act does not take away the jurisdiction  of  any court outside Bihar but takes the religious trusts in  Bihar out of the operation of s. 92 so that a court outside  Bihar in exercise of its jurisdiction under s. 92 will decline  to deal with a religious trust situate in Bihar just as it will decline  to entertain a suit under that section regarding  a private  trust  of religious or  charitable  nature.   Civil Procedure,  including  all matters included in the  Code  of Civil Procedure at the commencement of the Constitution,  is item  13 of the Concurrent List.  It has not  been  disputed before us that it is open to the Bihar 638

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Legislature  to  amend  the Code of  Civil  Procedure  while legislating in respect of religious endowments and religious institutions  in  Bihar, and the President’s  assent  having beep  received  to  the  Act, the  law  made  by  the  Bihar Legislature shall prevail in that State, under.  Art. 254(2) of  the  Constitution, in respect of  all  religious  trusts situate  in  Bihar.   In  this view of  the  matter,  it  is unnecessary to consider the further questions if Suit No. 18 of 1897 is still pending, the proper scope and effect of cl. 39 of the Letters Patent of the Patna High Court, and  which authority can amend the Letters Patent.  Even if Suit No. 18 of  1897 is deemed to be still pending, though we do not  so decide,  any further action under the scheme in  respect  of the Baidyanath temple and its properties can be taken either by the District Judge of Burdwan or the Calcutta High  Court only if the jurisdiction under s. 92, Civil Procedure  Code, is  still preserved in respect of it. If  that  jurisdiction has  come to an end in respect of the Baidyanath temple  and its  properties,  then  no  question  of  any  conflict   of jurisdiction  between  two  equally  competent   authorities arises  at  all, apart altogether from  the  more  debatable question as to whether the Bihar Legislature on one side and the  courts in Bengal on the other can be said at all to  be equally  competent  authorities in respect  of  a  religious trust  situate in Bihar.  The question really boils down  to this.   Is  the Act bad on the ground  of  extra-territorial operation, because it takes certain religious trusts situate in  Bihar  out  of  the purview. of s.  92,  Code  of  Civil Procedure  ?  If  the  answer to this  question  is  in  the negative,  then all the hurdles created by the  argument  of Mr. P. R. Das must disappear; because if the Act is good, it must be bindingonall courts and no question of any  conflict of jurisdiction can arise. Learned  counsel  for  the respondent  has  made  a  pointed reference  to  ss. 28 and 29 of the Act.  Section  28  deals with  the general powers and duties of the Board.   We  have examined  these  powers  and  duties  in  our  decision   in connected  Civil Appeals Nos. 225, 226, 228, 229 and 248  of 1955 (1) and have held that (1)  Mahant Moti Das v. S.P. Sahi, see P. 563, ante. 639 there  is  nothing in these powers and duties which  can  be said to have extra-territorial operation.  Our attention has been drawn to el. (j) of s. 28 (2) which empowers the  Board to  sanction  on the application of a trustee or  any  other person interested in the religious B trust the conversion of any  property  of such trust into another property,  if  the Board  is satisfied that such conversion is  beneficial  for the  said trust.  We have pointed out that these powers  and duties are really for the fulfillment of the trust and  they do  not  in any way contravene the rights of  the  trustees. Section 29 states :- "  29(1).   Where the supervision of a  religious  trust  is vested  in  any committee or association  appointed  by  the founder or by a competent Court or authority, such committee or association shall continue to function under the  general superintendence and control of the Board, unless  superseded by the Board under subsection (2). (2)  The  Board may supersede any committee  or  association referred  to in sub-section (1) which in the opinion of  the Board, is not discharging its funetions satisfactorily  and, if  the  Board does so, any decree or order of  a  Court  or authority  by  which  such  committee  or  association   was constituted   shall   be  deemed  to  have   been   modified accordingly:

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Provided  that  before  making any  order  under  this  sub- section,  the  Board shall communicate to the  committee  or association  concerned the grounds on which they propose  to supersede  it, fix a reasonable period for the committee  or association to show cause against the proposal and  consider its explanations and objections, if any. (3)  Such  committee  or  association or  any  other  person interested in the religious trust may, within thirty days of any  order  of  the Board under  sub-section  (2),  make  an application to the District Judge for varying, modifying  or setting  aside such order, but, subject to the  decision  of the District Judge on any such application, the order of the Board  shall  be final and binding upon  the  applicant  and every person interested in such trust. 640 (4)  Where such committee or association has been superseded under sub-section (2), the Board may  make such arrangements as may be necessary for the administration of the  religious trust  concerned."  It has been argued that s. 29  in  terms gives  the  Bihar State Board of Religious Trusts  power  to interfere with a committee appointed by the founder or by  a competent  court  or authority.  The argument  is  that  the Bihar State Board of Religious Trusts can now interfere with the  committee  appointed  under  the  scheme  made  by  the District Judge of Burdwan and approved by the Calcutta  High Court,  and  can  even supersede it.   The  answer  to  this argument  is the same as that given before.  Either the  Act is bad on the ground of extra-territorial operation or it is not.   If the Act is bad on the ground of  extra-territorial operation,  then there is good reason for cutting  down  the scope  and ambit of s. 29 of the Act so that it  will  apply only  to  committees  appointed  by  a  competent  court  or authority in Bihar.  If, however,’ in respect of a religious trust  in Bihar, the Bihar Legislature can amend  the  Civil Procedure  Code and take the trust out of the purview of  s. 92,  Civil Procedure Code, then there is no good reason  why the  ambit  of  s.  29 should be  out  down  in  the  manner suggested by the High Court. It  is  true that the legislation of a  State  is  primarily territorial  and the general rule is that extra  territorium jus  dicenti  impune  non paretur.  There  is,  however,  no departure from that general rule when the trust itself is in Bihar  and in legislating about that trust, the  legislature lays  down what should be done to fulfil the objects of  the trust   and  for  that  purpose  puts  an  end  to  an   old jurisdiction in the sense explained above and creates a  new one  in its place.  The doctrine of territorial nexus  which arises in this connection has been commented on before us at great  length by,-learned counsel for the respondent.   That doctrine *and the decisions bearing on it we have considered at  some  length in our decision relating to  the  Charusila Trust,  Civil  Appeal No. 230 of 1955.  We do  not  wish  to repeat what we have said therein. 641 The conclusion at which we have arrived is that the Act  and its several provisions do not suffer from the vice of extra- territoriality  in the sense suggested by B learned  counsel for  the  respondent  and  there  is  no  such  conflict  of jurisdiction  as  learned  counsel for  the  respondent  has suggested.  Accordingly, the Act is good and applies to  the Baidyanath temple and the properties a pertaining thereto. The  result, therefore, is that the appeal succeeds  and  is allowed  with  costs.  The judgment and order  of  the  High Court dated October 9, 1953, are set aside and the  petition under  Art. 226 of the Constitution made by  the  respondent

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must stand dismissed with costs. Appeal allowed.