# I959 State of Bihar v. Charusila Dasi S. J(. Da' ]. I959 April I5

- **Citation:** [1959] Supp. 2 S.C.R. 624
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Case number:** Civil Appeal No. 236 of 1954
- **Bench:** S. R. Das, s. K. DAS, P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i959-state-of-bihar-v-charusila-dasi-s-j-da-i959-april-i5-1710
- **Pages:** 18

## Headnote

Hindu Religiou.s 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 si<ch Trust-Bihar Hindn
Religious Trusts Act, r950 (Bihar I of r95r), ~s. 3, 4(5), 28, 29Code of Civil Procedure, r908 (Act 5 of r908), s. 92-Constitution of
India, Arts. r4, r9(r)(j), 25, 26, 27.
•
In respect of an ancient temple situate in the State of Bihar,
disputes arose in 1897 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 Burd wan 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 Higl1
Court.
After the corning 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 (r) that the Bihar
(2) S.C.R.
SUPREME COURT REPOR'l'S
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 t)lat the 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 ;
lvlahant Moti Das v. S. P. Sahi, [1959] Supp. 2 S.C.R. 503
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 Bihar v. Charusila Dasi, [1959] Supp. 2 S.C.R. 6or
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.

## Text

_Characters 0–39,912 of 40,358. This is a partial read: ask again with offset=39912 for what follows._

I959
State of Bihar
v.
Charusila Dasi
S. J(. Da' ].
I959
April I5.
624
SUPREME COURT REPORTS [1959] Supp.
The result is that the appeal succeeds and is allowed
with costs, the judgment and order of the High Court
dated October 5, 1953, are set aside and the petition
of Srimati Charusila Dasi must stand dismissed with
costs.
Appeal allowed.
THE STATE OF BIHAR & OTHERS
v.
BHABAPRITAN ANDA OJHA
(S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR,
K. N. WANCHOO and M. HIDAYATULLAH, JJ.)
Hindu Religiou.s 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 si<ch Trust-Bihar Hindn
Religious Trusts Act, r950 (Bihar I of r95r), ~s. 3, 4(5), 28, 29Code of Civil Procedure, r908 (Act 5 of r908), s. 92-Constitution of
India, Arts. r4, r9(r)(j), 25, 26, 27.
•
In respect of an ancient temple situate in the State of Bihar,
disputes arose in 1897 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 Burd wan 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 Higl1
Court.
After the corning 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 (r) that the Bihar
(2) S.C.R.
SUPREME COURT REPOR'l'S
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 t)lat the 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 ;
lvlahant Moti Das v. S. P. Sahi, [1959] Supp. 2 S.C.R. 503
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 Bihar v. Charusila Dasi, [1959] Supp. 2 S.C.R. 6or
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.
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 .. 0. Roy and R.R. Biswas, for the respondent.
1959. April 15. The Judgment of the Court was
delivered by
79
:c959
The State of
Bihar & Others
v.
Bhabapritananda
Ojha
I959
The State of
Biha1' &· Others
v.
Bhabapritananda
Ojha
S. K. Das j.
/
626
SUPREME COUH,T REPORTS [1959] Supp.
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 Santai 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 ju the Bihar District
Gazetteer relating to Santai 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 Santa] 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 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
(2) S.C.R. SUPREME COURT REPORTS
627
temple and earned their livelihood by assisting pilI959
grims in performing the various ceremonies connected
The State of
with the worship of the God.
When the British rule Bihar & Others
began, it was decided to take over the management of
"·
the temple, and with this object an establishment of Bhabapritananda
priests, collectors and watchmen was organised in
Ojha
1787 at Government expense. The revenue soon fell
off, as the chief priest beset the avenues to the terns. K. Das f.
ples with emissaries, who induced the pilgrims to make
their offerings before approaching the shrine. (See
the District Gazetteer, ibid, p. 383). In 1791 Gqvernment 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 " ghat,s " were frequently out of repair and
the high priest was charged with alienating villages
from the temple and treating his situation as a me(l>nS
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 a_ppointed, 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 SUPREME COURT REPORTS [1959] Supp.
I959
died in 1837 and Iswaranund Ojha, son of Sarbanand
Ojba, was subsequently elected Sardar Panda. IswaThe State of
d
Biha, .,, Others ranund was succeeded by bis grand-son, Sailajanun
v.
Ojha.
Bhabap,itananda
There were, however, frequent disputes between the
OJha
high priest and the "pandas" regarding the control
S. K. Das].
of the temple and in 1897 a snit 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 w bicb was decided by the learned Additional D,istrict Judge of Burd wan by bis judgment dated
July 4, 1901. Sailajanund Ojba was dismissed by the
order of the court, as be by bis conduct and behaviour
and by causing loss to the Debutter properties rendered himself unfit and disqualified to bold the post of
Sardar Panda and trustee of the temple of Baidyanatb. 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
W(IS
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. Orie of these three persons was to be elected from amongst the descendants of Ram Dutt Jba. ·
After this Umesbanund Dutt Jha, second son of Iswaranund Ojba, was elected Sardar Panda. On the death
of Umesbanund Dutt Jba, Bbabapritananda Ojba,
who was the petitioner in the High Court and is now
respondent before us,. was appointed Sardar Panda.
Bbabapritananda is the grand-son of Sailajanund
Ojba, 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) (1905) 2 C.L.J. 460.
(2J S.C.R.
SUPREME COUltT REPORTS
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
Commit.tee 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 refer.
cnce 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 an
annual budget of the income and expenditure; (2) that
provision must be rp.ade 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 U meshananda Dutta Jha v. Sir Ravaneswar Prasad
Singh (2).
vVe now come to more recent events which gave rise
to Miscellaneous Judicial Case No. 181 of 1953 in the
(I) (t906) I.L.R. 30 Mad. 138.
(2) (1912) I7 C.W.N. 87t.
1959
The State of
Bihar &- Others
v.
Bhabapritammda
Ojha
S. K. Das],
1959
The Slate of
Bifiar 6- Othe1s
v.
JJh11 b"prila11a11da
Ojha
S. K. Das].
630
SUPREME COURT REPORTS [1959] Supp.
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 :Febr.uary
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 Burd wan 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 riso
to Miscellaneous Judicial Case No. 181 of 1953. On
various grounds stated therein, the respondent contended 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 Burd wan
and approved by the Calcutta High Court both of
which are situate outside the territorial limits of
llihar.
The State of Bihar, the Bihar State Board of l{,eligious Trusts and the President thereof, now appellants
before us, contested the application. Relying on the
..
(2) S.C.R.
SUPREME COURT REPORTS
631
principles (1) that there should be as far as possible no
r959
conflict or clash of J'urisdiction between two equally
The State of
competent authorities and (2) that no intention to Bihar & Others
exceed its own jurisdiction can be imputed to the
v.
Bihar Legisfature and of two possible constructions of Bhabapritananda
the Act, the one that would make it intra vires should
Ojha
be preferred, the High Court came to the conclusion
s. K. Das 1.
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
13oard from taking any further proceedings against
the respondent under any of the provisions of the Act.
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 separately, 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
•959
The State of
Bihar & Others
v.
Bhabapritananda
Ojha
S. K. Das].
632
SUPREME COURT REPORTS [1959] Supp.
1955 (1), which fall in the first category, we have considered 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 Snit No. 18 of 1897. ln
Civil Appeal No. 230 of '1955 ('), 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 religions trusts, whether created before or
after the .Qommencement of the Act, any part of thr
property of which is situate in the State of Bihar. W L
have held therein that two conditions must be fulfilled
for the application of the Act-( a) the religions 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 Rihar 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 \Vest Bengal.
Now, we come to the points which have been
(r) Mahant Moti Das v. S. P. Saki, seep. 563, ante.
(2) Mahant Ram Saroop Dasji v. S. P. Saki, seep. 583, ante.
(3) State of Bihar v. Charusila Dasi, see p. 601, ante,
"'
.,. ....
. --~~ --.. ---
(2). $.C.R. SUPREME COURT. REPORTS
633
' \\
.
z959
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 8;;;, S::'~,~~ ..
error in relying on the doctrine of comity of jurisdicv.
tions anrl cutting down the scope of the Act on such Bhabapritananda
a doctrine. It has been submitted that the doctrine,
Ojha
of comity of jurisdictions has no application to the
facts of the present case and there is no possibility of s. K. Das f.
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 commenC(lment of the Act, in respect'
of religious trusts 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 tho 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
So
(
'
- \" '\
,.
'.\ .
634 . SUPREME COURT REPORTS [1959] Supp.
•
•959
statute should be so interpreted and applied, in so far·
as its language admits, as not to be inconsistent with
B~";, 5;,."
1
~,Z~rs the comity of nations or with the established rules of
v. -
international law, and has referred to certain decisions
Bhabap.itananda in support of that principle. Mr. P. R. Das has frankly
Ojha
.conceded before us that no question of any inconsistS. K. Das J.
•
•
ency with: the comity of nations or with the established
rules of international law arises in the present case
ar.d he does not contend that the Act or any of its
provisions violate any established rule ofinternational
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 SuitNo. · 18 of 1897 which
was instituted in the court of the District Judge of
Burd wan in respect of the Baidyanath temple and its
properties is still pending and the administratiop 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 iteni (a) of
the first proviso thereto.
That clause is in these
terms:-
" And 'Ve do further ordain that the jurisdiction
·of the High Court of Judicature at Fort 'Villiam in
Bengal in any matter 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 tho
former Court on that date in reference to any such
matter shall be transferred to tho latter Court :
Provided, first, that the High Court of Judicature
at Fort 'Villiam in Bengal shall continue to exercise
jurisdiction-
( a) in all proceedings pending in that Court on
(2) S.C.R.
SUPREME COURT REPORTS
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
that Court on the date- of the publication of these
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 -0r 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 Ualcutta 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
Burd wan 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
I
I959
The State of
Bihar 0- Others
v.
Bhabapritananda
Ojha
S. K. Das ].
1959
The State of
Bihar & Others
v.
Bkabapritananda
Ojha
S. K. Das],
636
SUPREME COURT REPORTS (1959] Supp.
on that ground; because under Art. 245 of the Con.
titution, 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 ha;s 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 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, Ci vii 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 thats. 92 of the Code of Civil
Procedure, 1908, shall not apply to any religious trust
(1) State of Bihar v. Charusila Dasi1 seep. 601, ante.
(2) S.C.R. SUPREME COURT REPORTS
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 situated in 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 Bi.har 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. '1:0£ 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 Burd wan 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 decllne to entertain a suit under that section regarding a private trust
of religious or charitable nature. Civil Procedure,
in6luding 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
I959
The State of
Bihar & Others
v.
Bhabapritananda
Ojha
S. K. Das].
1959
The State of
l:Jihut- &.. Oth1:,-rs
v.
1Jhabap1itananda
Ojha
S. ](. Das ].
638
SUPREME COURT REPORTS (1959] Supp.
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 been received to the Act, the law made by
the Bihar Legislature shall prevail in that State, under
Art. 254(2) of the Constitution, fo 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 aud 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 juri~diction 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 binding on all courts and
no question of any conflict of jurisdiction can arise.
Learned 9ounsel 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
(I) Mahant Moti Das v, S.P. Sahi, seep. 563, ante.
"(2) S.C.R.
SUPREME COURT REPORTS
639
there is nothing in these powers and duties which can
be said to have extra-territorial operation. Our attention has been drawn to cl. (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
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 fulfilment 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 functions satisfa.r;itorily 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:
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 tTudge on any
such application, the order of the Board shall be final
and binding upon the applicant and every person
interested in such trust.
The St•te of
Bihar & Others
v.
Bhabapritananda
Ojha
S. K. Das].
I959
The State of
Bihar & Others
v.
Bhabapritananda
Ojha
S. R. Das ].
640
SUPREME COURT REPORTS [1959] Supp.-
(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 cut down in the manner suggested by the High
Court.
It rs 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.
(2) S.C.R.
SUPREME COURT REPORTS
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
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 appertaining 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 must stand dismissed with
costs.
Appeal allowed.
MESSRS. R. C. MITTER & SONS
v.
THE COMMISSIONER OF INCOME-TAX,
WEST BENGAL, CALCUTTA
(B. P. SINHA, J. L. KAPUR and
M. HIDAYATULL~H, JJ.)
Income-tax-Registration of firm-Procedure-" Constituted
under an instrument of partnership", Meaning of-Indian Incometax Act, r922 (XI of r922), s. 26A, Rules 2 to 6B.
The question for determination in these two appeals was
whether the appellant firms were entitled to registration under
s. 26A of the Indian Income-tax Act and the common point of
law involved was the interpretation of the WOjds "constituted
under an instrument of partnership " occurring in that section.
In Appeal No.