Mahant Awadhesh Kumar Das v. Bihar State Religious Trust Board Vidyapati Marg, Patna

Patna High Court CWJC No.442 of 2012 (5) further decision to constitute a new Trust Committee in future vide order as per Memo No. 1643 dated 16.12.2011. Subsequently, during the pendency of the writ application, the aforesaid Trust was re-constituted as per Memo No. 1604 dated 1st of December 2012, as contained in Annexure-8 to the Interlocutory Application No. 118 of 2003, whereby, the petitioner assailed the re-constitution as well. It is submitted on behalf of the petitioner that his removal as a trustee of the aforesaid Trust, was passed by the President of the Respondent – Board, exercising the power under Section 28(2)h (iii, v and vi) of the Bihar Hindu Religious Trust, Act (hereinafter referred to as the, Act), whereas; power of removal of a trustee is vested in the Board and as such, the order, as contained in Annexure -2, passed by the President of the Board, removing the petitioner is absolutely illegal and without jurisdiction besides being in violation of the Principles of Natural Justice. Reliance is placed on a decision of this court in the case of Mahanth Vijay Das Vs. The State of Bihar & Ors. Reported in 2003(4) PLJR 710 and in the case of Prem Shankar Bharatee Vs. State of Bihar as reported in 2007 (2) PLJR 443. It has further been contended that reconstitution of the aforesaid Trust, as per Annexure- 8, is equally bad in law as the same was done for ulterior purpose and without any valid justification during the pendency of the writ application and as such, the same deserves to be quashed. Patna High Court CWJC No.442 of 2012 (5) Counter affidavit has been filed on behalf of the respondent – Board and a reply, thereof, has also been filed on behalf of the petitioner. Mr. Ganpati Trivedi, learned counsel appearing on behalf of the respondent-Board submits that the order, removing the petitioner was passed in the interest of the Trust after seeking his explanation twice as mentioned in the order considering, specifically, the misutilization of fund of the trust by the petitioner and as well as the ground that the petitioner was appointed as a temporary trustee. The tenure of such trustee is for a maximum period of one year in terms of the amended provisions of Section 33 of the Act (Amending Act 1 of 2007), as such, on both counts, the petitioner cannot validly claim to continue as a trustee. It is further submitted that the decision removing the petitioner in terms of Annexure - 2 was approved by the Board, as specifically stated in Paragraph-17 of the counter affidavit which is not denied by the petitioner. As regards, re-constitution of the Trust, it is submitted that the same was in terms of the provisions of Section 32 (1) of the Act in the interest of the trust for its smooth functioning by the President of the Board, who was competent under bye laws 43 framed under Section 83 of the Act. Notwithstanding the above, it is submitted that the writ application is filed without exhausting the statutory Patna High Court CWJC No.442 of 2012 (5) remedy against the order of removal available before the concerned District Judge under Sub- Section (3) of Section 28 of the Act and for redressal of grievances against reconstitution the remedy is again available before the concerned District Judge under Sub- Section (3) of Section 32 of the Act without any valid justification. The writ application as such deserves to be dismissed. Considering the rival submissions of the parties and their respective pleadings/affidavit, it would appear that the controversy is with regard to the power of the President in removing a trustee. The petitioner’s case is that the power vests with the Board in terms of Section 28(h) of the Act whereas the respondent’s case is that the President is competent to pass the order in appointing a temporary trustee under bye-laws 43(s). As regards the removal of the petitioner specific statement is made in paragraph -17 of the counter affidavit that the order of removal of the petitioner as per Annexure-2 has been approved by the Board in its meeting held on 27th of November 2012. Petitioner challenges the above action on the part of the respondent-Board, as the same was done during the pendency of the writ application. However, there is no denial that such approval was accorded by the Board. Similarly, with respect to the re-constitution of the trust, petitioner assails the re- constitution as per Annexure- 8 on the similar ground that Patna High Court CWJC No.442 of 2012 (5) trust has been constituted during the pendency of the writ application for ulterior purposes. In my opinion, the removal of the petitioner, as a trustee, is basically on two grounds: Firstly, that petitioner was temporary trustee and misutilizing the funds of the trust and secondly, the period of temporary trustee cannot exceed beyond the period of one year after coming into force of the amendment in the aforesaid Act vide Amending Act 1 of 2007. It would further appear that the aforesaid order was passed after seeking explanation from the petitioner twice. Admittedly, on being aggrieved by his removal, statutory remedy was available to the petitioner by making an appropriate application before the concerned District Judge in terms of Sub Section (2) of Section 28 of the Act who is competent either to varying or modifying the order or even setting aside the order of removal on the ground of misutilization of fund and other dispute, if any. As regards the constitution of the trust committee, the allegation of the petitioner is that the same was done for ulterior purposes, as it was done during the pendency of the writ application. But, in my opinion, that itself cannot be a ground to declare the decision as illegal or malice on the part of the Board without any foundational facts on the record nor the decision of the Board is under challenge and as such, the decision relied by the petitioner could not be of any help to the petitioner since the action of the Board is not in dispute unlike Patna High Court CWJC No.442 of 2012 (5) the aforesaid case of Prem Shankar Bharatee. Here, again anyone interested in the welfare of the trust, could challenge the re-constitution by making an appropriate application before the concerned District Judge under Sub-Section (3) of Section 32 of the Act for appropriate orders. In the result, for the reasons and discussions made above, I do not find any merit in this writ application. It is accordingly, dismissed. Jagdish/- (Shailesh Kumar Sinha, J)