judgement:
Appeal No. 2881 of 1993.
From the Judgment are Order dated 16.1.85 of the Bombay High Court in W.P. No. 1755 of 1983 V.M. Tarkunde, R. Karanjawala, Rajesh Kumar and Ms. Suruchi Aggarwal for the Appellant.
S.B. Bhasme and A.S. Bhasme for the Respondent.
AHMADI, J. Special leave granted.
The appellant, landlord, filed an eviction suit No. 419 of 1968 for possession of the demised premises mainly on the ground of arrears of rent under section 12(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called 'the Act ').
That suit was settled between the parties, the relevant terms whereof read as under: (1) The possession of the suit premises is to be given by the defendant to the plaintiff by 10th October, 1970.
If the defendant does not give possession, then the plaintiff is to take possession by execution on the basis of this decree.
(2). . . . . (3)The defendant is given a concession that if the defendant paid the entire amount mentioned in clause (2) above, i.e., the amount involved in the suit, future mesne profits, electricity charges, water charges, the rent of the godown, expenses of the suit by 10th October, 1970, the plaintiff will not execute the decree for possession.
" Under clauses (2) and (4) of the compromise terms the rent in respect of the suit premises was to be calculated on the basis of standard rent of Rs. 30 per month, the rent of the store room (godown) was to be calculated at the standard rent of Rs. 9 per month and electricity and water charges at Rs. 3 per month and so calculated.
the entire arrears had to be paid on or before 10th October, 1970 to avail of the concession given in clause (3) of the compromise terms.
The Trial Court passed a decree in terms of the compromise.
733 The arrears so calculated worked out to Rs. 3353.
as on 10th October, 1970.
The tenant, however, paid a sum of Rs. 2040only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970.
Thereupon, the decree holder filed execution proceedings on 2nd November, 1970.
The tenant raised objections in regard to the executability of the decree.
The Executing Court rejected the objections raised by the tenant and issued a warrant for possession of the demised premises under order 21 Rule 35 of the Code of Civil Procedure, 1908 (hereinafter called 'the Code ').
The tenant preferred an appeal against the order of the Executing Court which came to be allowed.
The order of the Executing Court was set aside and the prayer for eviction was dismissed.
The decree holder moved the High Court under Article 227 of the Constitution.
The High Court set aside the order of the Appellate Court and remitted the matter to the Appellate Court with a direction to decide the character of the compromise terms on the basis of which eviction was sought.
After the matter went back to the Appellate Court that court reconsidered the matter and once again allowed the appeal setting aside the order of the Executing Court directing issuance of warrant under Order 21 Rule 35 of the Code.
The Appellate Court dismissed the execution proceedings altogether.
Against that order passed by the Appellate Court the decree holder once again moved the High Court under Article 227 of the Constitution.
The High Court considered the various submissions made before it by the rival parties and summarised the propositions emerging from the relevant provisions and the case law in paragraph 32 of the judgment as under "(1) If by a consent decree the status of a landlord and tenant is established between the plaintiff and the dependent, the Court in exercise of its equitable jurisdiction is not precluded from granting relief against forfeiture of a term contained in the consent decree.
(2)Where the question is not one of the creation of a tenancy or the continuation of a tenancy and where a decree passed either by consent or in invitum permits payment of the decrement amount in installments and provides that the decretal amount becomes payable at once in the event of failure in the payment of one or more installments, there is no question of granting relief.
The Courts are bound to execute the decree in accordance with its terms.
(3)Where.
however, the relationship of landlord and tenant is continued between the parties by a compromise decree.
the judo 734 ment debtor, who is a tenant.
would be entitled to relief against forfeiture resulting from his failure to pay the rent on the stipulated date.
(4)Where the consent decree provides for the continuance of the possession of the tenant up to a particular date beyond which he has no right to remain in possession at all and on which date the landlord is entitled to execute the decree for possession, the time given from the date of the decree till the other date is by way of concession and in such a case, there is no creation of new tenancy or continuation of the existing tenancy. ' ((5) If the consent decree provides possession for the continuation of ' the of the tenant on certain terms up to a particular date and also provides for the continuation of the tenant 's possession after the date if lie complies with certain conditions, then such a decree provides for the continuance of the possession of the tenant from the date of the consent decree itself.
In such a case, it cannot be said that the plaintiffs allowing the defendant to continue up to and beyond that specified date is by way of concession.
" The High Court, therefore, concluded that the refusal by the Appellate Court to exact the tenant on the basis of the consent decree was correct in law and hence it was not required to interfere with the order of the Appellate Court.
It came to the conclusion, on a true interpretation of the relevant clauses of the consent decree, that the clause by which eviction was permitted was penal in nature and, therefore, not enforceable.
Clause (3) of the compromise term was treated is granting relief ' against forfeiture.
In this view of the matter the judgment creditor, landlord, having failed to secure possession of the demised premises by putting the consent decree to execution, has approached this Court under Article 136 of the Constitution.
The Act was enacted to amend and consolidate the law relating to the control of rents and of evictions from demised premises.
It imposes certain restrictions on the right of the landlord from recovering possession so long as the tenant pays or is ready and willing to pay standard rent and permitted increases and observes and performs the other conditions of ' the tenancy which are consistent with the provisions of the Act.
If the tenant has failed to pay the rent and permitted increases due from him he can be evicted for that neglect in the manner set out in section 12 735 of the Act.
The other provision which confers a right of eviction is section 13 of the Act with which we are not concerned in this case.
The facts of the case clearly reveal that the landlord had sought eviction under section 12of the Act as the tenant had committed a breach of sub section ( 1) thereof, in that, he had failed to pay the rent to the landlord.
To comply with the requirement of sub section (2) of that provision the landlord had served the tenant with a notice prior to the institution of the suit seeking eviction under section 12(3) of the Act.
This sub section is in two parts and may be extracted for ready reference "12 (3) (a) Where the rent is payable by the month and there is no dispute regarding the amount of standard rent or permitted in creases, if such rent or increases are in arrears for a period of six months or more and the tenant neglects to make payment thereof until the expiration of the period of one month after notice referred to in sub section (2), the court may pass a decree for eviction in any such suit for recovery of possession.
12(3) (b) In any other case no decree for eviction shall be passed in any such suit if on the day of hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court.
" Clause (a) sets out the circumstances in which the tenant forfeits the protection of the statute and entitles and landlord to evict him.
If the case does not fall within the scope of clause (a) the question to be considered is whether eviction should be ordered under clause (b).
This is clear from the opening words, "in any other case," If, however, the tenant satisfies the conditions of the said clause, the law protects him from eviction as is clear from the words, "no decree of eviction shall be passed in any such suit".
The suit in the present case was filed under section 12(3) of the Act but before the court could adjudicate whether clause (a) or clause (b) was attracted the parties arrived at a settlement, the relevant terms hereof have been extracted hereinbefore.
It is well settled that a decree passed on the basis of a cc, promise by and between the parties is essentially a contract between the names which derives supporting by the court superadding its seal to the contract.
But all the same the consent terms retain all the elements of a contract to which the court 's imprimatur is affixed to give it the sanctity of an executable court 736 order.
We must, however, point out that the court will not add its seal to the compromise terms unless the terms are consistent with the relevant law.
But, if the law vests exclusive jurisdiction in the court to adjudicate on any matter, e.g. fixation of standard rent, the court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable.
In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court 's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata.
If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invitum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the Court to fix the standard rent.
Therefore, the character of the consent decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it.
Under clause (a) of section 12 (3) of the Act, if the conditions stated therein are satisfied, the court has to pass a decree to evict the tenant from the demised premises.
So also under clause (b) of that sub section, if the tenant fails to pay or tender in court the standard rent and permitted increases due on the first date of hearing of the suit or on or before such date as the court may fix, the court has to pass a decree for ejectment.
In the present case the suit was governed by section 12(3) of the Act and even if we assume that it fell within the purview of clause (b), the tenant was liable to be evicted as admittedly the tenant had failed to pay or tender in court the standard rent and permitted increases due to the landlord as is obvious from clause (2) of the consent terms.
It is for this reason that the tenant suffered a decree for eviction and agreed to deliver possession of the suit premises by 10th October, 1970.
By clause (2) of the consent terms the tenant further agreed to pay to the landlord by 10th October, 1970 the entire amount due including legal fees and expenses from the date of the suit till delivery of possession.
Clause (3) of the consent terms carries the crucial term that the tenant is given a concession, and that concession is that if he pays the entire amount mentioned in clause (2) by 10th October, 1970, the landlord will not execute the decree for possession.
That has given rise to the question whether clause (1) of the consent decree is in the nature of a penalty for non payment of the outstanding dues upto 10th October, 1970 or clause (3) of the consent decree is merely a concession given to the tenant if he complies with the terms or requirements of that provision.
Now as pointed out earlier the ejectment suit was filed on the allegation that the tenant had neglected to pay the rent and other charges in respect of the demised 737 premises.
The suit was, therefore, founded on the right to evict conferred by section 12(3) of the Act.
We will assume that it was a case to which clause (b) to that sub section was attracted.
It is evident from the terms of the compromise that even on the date of the compromise in July 1970 the tenant was in arrears of rent.
If the suit had gave to trial the landlord may have secured a decree in ejectment for the tenant 's failure to comply with the requirements of clause (b) of section 12(3) of the Act.
By clause (1) of the compromise decree it was, therefore, provided that the tenant will vacate and deliver possession of the demised premises by 10th October, 1970.
Failure to deliver peaceful possession by that date would entitle the landlord 'to take possession by execution ' of the decree.
Clause (2) indicates the rate at which the arrears will be calculated and clause (4) describes those rates as standard rent.
Clause (4) describes those rates as standard rent.
Clause (3) which is the crucial clause gives a concession.
What is that concession? It is that if the tenant pays up the entire amount of arrears, i.e., the amount involved in the suit meaning thereby the claim of arrears set out in the suit, future mesne profits, electricity and water charges, the rent of the godown, cost of the suit, by 10th October, 1970, the landlord will not execute the decree for possession.
Counsel for the appellant argued that as the tenant had failed to clear the arrears of rent and other charges payable under the terms of the lease, he was liable ton be evicted under clause (b) of section 12(3) of the Act.
That is reflected in clause (1) of the compromise terms.
However, the landlord gave a concession by clause (3) to the effect that if the entire arrears are cleared by 10th October, 1970, he would not execute the decree for possession.
This, counsel argued, does not show that the decree for possession was provided for as in terrorism to be construed as a penalty and not a concession.
Counsel contended that while a penal stipulation on cannot be enforced, a grant of a concession cannot undo the main operative part of the eviction decree unless it is shown that the tenant had done all that was necessary to avail of the concession.
Counsel for the tenant, however, insisted that the provision for delivery of possession is in the nature of a penalty and was, therefore, unenforceable.
He supported the judgment of the High Court and submitted that the appeal should be dismissed with costs.
It is settled law that unless the terms of contract are ambiguous the intention of the parties must be gathered from the terms themselves.
It is only where the terms are ambiguous and capable of more than one meaning that evidence aliunde can be permitted to gather the intention of the parties.
In our view, the terms forming the basis of the consent decree in the instant case are clear and unambiguous and do not call for extrinsic material to gather the intention of the parties.
Two questions, therefore, arise for consideration, namely, (i) did the parties to the compromise intend to create or continue the relationship of landlord and tenant? 738 and, (ii) is the Clause providing for eviction penal in character? Now.
as pointed out earlier by clauses (1) and (2) of the compromise terms, the tenant is required to deliver vacant possession of the demised premises to. ,ether with arrears of rent etc.
by 10th October, 1970.
It is further provided that if the tenant fails to deliver possession and defaults in paying the arrears due from him by 10th October, 1970, the landlord will be entitled to recover both possession and arrears of rent, etc., by executing the decree.
Thus by the first two clauses of the consent terms, the landlord secured a decree for possession as well as arrears of rent, etc. , giving a grace period to the tenant to comply therewith by 10th October, 1970.
Thereafter by clause (3) of the consent terms, the tenant is given a concession, in that, if he pays the entire arrears of rent, mesne profits, electricity and water charges, cost of the suit, etc.
by 10th October, 1970, the landlord agrees not to execute the decree for possession.
In other words on the fulfillment of the obligation to clear the entire arrears of rent and other charges by 10th October, 1970, the tenant is given a concession that the decree for possession passed against him will not be put to execution.
Such a clause cannot, in our opinion, be said to be penal in character.
It is necessary to understand when a clause in the contract can be described as penal in character.
Let us illustrate by taking two concrete situations.
A plaintiff files a suit to recover Rs. 20,000 with interest and costs from the defendant.
They enter into a compromise, the terms whereof are as under: Situation 1: The defendant shall pay to the plaintiff a sum of Rs. 15,000 and costs on or before 31st December, 1993.
If, however, he fails to pay the said amount of Rs. 15,000 with costs within the time stipulated, the plaintiff will be at liberty to recover the entire sum of Rs. 20,000 with interest and costs from the defendant by executing the decree.
The latter clause of such a decree will clearly be in terrorem and, therefore, penal in character.
No court will execute the same.
Situation 2: The decree provides that the defendant shall pay Rs. 20,000 with interest and costs to the plaintiff.
However, if the defendant pays Rs. 1 5,000 and costs on or before 3 1 st December, 1993 to the plaintiff, the plaintiff will treat the decree as fully satisfied and will not claim the balance amount from the defendant.
In such a case the latter clause operates as a concession and the 739 plaintiff waives his right to the balance amount.
Such a decree will be executable to the full extent if the defendant fails to avail of the concession by paying Rs. 15,000 and costs on or before 3 1 st December, 1993.
From the above two illustrations it should become clear that if the defendant is required to suffer the consequence for his failure to abide by the terms by a stipulated date such a consequence would be penal in nature but on the other hand if the defendant gets some benefit by complying with the requirement by the stipulated date such a clause granting benefit can never be treated as penal in character.
Applying this test to the decree in question, it is obvious that by the first two clauses of the consent terms a decree for possession of the demised premises as well as arrears of rent, etc.
is passed and the tenant.
is given a grace period upto 10th October, 1970 to comply with the same failing which the landlord is given the right to put the decree to execution and obtain possession of the premises and recover the arrears of rent, etc.
through court.
By clause (3) of the consent terms, however, the tenant is granted a concession that if he pays the entire rent etc.
due from him by 10th October, 1970, the landlord will not put the decree to execution for recovery of possession.
This stipulation is clearly to secure his dues i.e. arrears of rent, etc.
Depending on the situation in which a landlord is placed, he may grant the concession to the tenant to ensure that the huge amount of arrears is not lost.
If he grants such a concession and agrees that if the entire arrears is cleared by a. stipulated date he will not insist on possession that will not render the clause penal in nature.
In a given situation where the tenant is in financial difficulty and is not in a position to comply with the requirement of section 12(3) of the Act, he can request the landlord to grant him a concession in the nature of relief against forfeiture.
If such a concession is to be read as penalty rendering the decree nonexecutable even where the tenant fails to satisfy the requirements of availing the concession, no landlord will in future grant such a concession, thereby causing hardship in deserving cases.
We are, therefore, of the opinion that the First Appellate Court as well as the High Court were in error in treating clause (3) of the consent terms as penal in character and incapable of execution.
If the condition precedent for availing of the benefit or concession under clause (3) of the consent terms is satisfied, the relationship of landlord and tenant continues but if the tenant fails to comply with the condition precedent for availing of the benefit or concession the forfeiture operates and the tenant becomes liable for eviction under the decree.
The High Court has placed reliance on the Full Bench decision in Krishnabai vs Hari, 8 BLR 8 13 and Gajanand Govind vs Pandurang Keshav, 53 BLR 100.
in 740 taking the view that the Executing Court can rant relief against forfeiture on the strength of section 114 of the .
The High Court seems to think that in execution of a consent decree, such as the one with which we are concerned, it is open to the Executing Court to go behind the decree by invoking section 114, T.P.Act, notwithstanding section 12(3) of the Act.
In our view After the enactment of clause (b) to section 12(3) which is a special provision incorporating the equity provision contained in section 1 14,T.P.Act, in a modified form, cases governed under the Act must be resolved in accordance with section 12(3) of the Act and not under section 1 14, T.P.Act The landlord 's right to seek eviction has been drastically reduced and circumscribed by section 12 and 13 of the Act.
Similarly the tenant must also seek protection from eviction by complying with the requirements of the Act.
If such is not the legal position, section 12(3) (a) of the Act which mandates the Court to pass a decree for eviction if the requirements of that clause are satisfied would be rendered wholly nugatory.
Same would be the position in the case of application of section 12(3) (b) of the Act because that clause precludes the passing of the decree if the tenant satisfies the requirements of that provision.
It must be remembered that after the enactment of the Act the landlord 's right to reenter on expiry of the lease is curtailed by the provisions of the Act which has made special provisions granting protection from eviction if the tenant abides by his obligations under the Act.
Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if he abides by the provisions of the Act.
If he fails to abide by the requirement of section 12(3) of the Act, he must take the consequences flowing therefrom.
There is no question of granting him double protection.
That is what this Court clarified in Pradesh Kumar Bajpai vs Binod Behari Sharkar, ; That was a case arising under the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
The question which was seriously debated at the Bar before this Court was whether in addition to the safeguards provided to the tenant under the said Act, the tenant was also entitled to the benefit of section 1 14, T.P.Act.
The right of the landlord to have the tenant evicted was restricted under the said rent restriction legislation.
As that law had restricted the power of the landlord to evict the tenant except in accordance with the provisions therein contained, the terms of the contract and the provisions of the T.P.Act, it was urged, were no longer attracted.
Clause (a) of section 3(1) inter alia provided that the suit may be filed with the permission of the District magistrate when the tenant is in arrears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of the notice of demand.
Dealing with this contention this Court held that once the requirements of the rent legislation are satisfied, the tenant cannot claim the double protection of invoking the provisions of the T.P.Act or the terms of the contract and the provision of 741 section 114, T.P.Act, cannot be read into the rent legislation.
This Court concluded thus : "In the case before us, it is not indispute that after the Rent Act came into force, the landlord cannot avail himself of clause 12 which provides for forfeiture, even if the tenant neglected to pay the rent for over two months.
The landlord cannot enter into possession forthwith without notice.
The only remedy for him is to seek eviction under the provisions of the Rent Act.
In such circumstances the tenant cannot rely on section 114of the and claim that he should be given an opportunity to pay the arrears of rent, even though the requirements of section 3(1) had been fulfilled.
" It is, therefore, obvious that the tenant cannot avail of the benefit of section 114, T.P.Act since his case was governed by the provisions of section 12(3) (b) of the Act.
For the foregoing reasons, we are of the opinion that the executing court was right in issuing a warrant for possession under order 21 Rule 35 of the Code against the tenant since the tenant had failed to take advantage of the concession clause by clearing the arrears of rent, mesne profits, etc.
by 10th October, 1970.
The First Appellate Court as well as the High Court were in error in holding that the decree was not executable as clause (3) thereof was in the nature of a penalty.
We set aside the order of the First Appellate Court as well as the High Court and remit the matter to the executing court to proceed further in accordance with law.
We may, however, make it clear that if there have been subsequent developments between, the parties creating any de novo relationship that will not be affected by this order.
In the facts and circumstances of the case, we make no order as to costs.
U.R. Appeal allowed.

summary:
The appellant landlord filed an eviction suit for possession of the demised premises mainly on the ground of arrears of rent under Section 12(3) of the Bombay rent Act, 1947.
The suit was settled between the parties.
By the terms of the compromise, possession would be given by the tenant to the landlord by 10 October 1970, or the landlord may recover possession by execution based on this decree; but, if the tenant paid the entire arrears in full by 10 October 1970, the landlord would not execute the decree for possession.
The tenant failing to pay the entire arrears as stipulated the landlord decree holder filed execution proceedings.
The executing Court issued a warrant for possession but the Appellate Court set aside the order and dismissed the prayer for eviction.
The High Court remanded the matter to the Appellate Court to determine the character of the compromise terms.
That court again allowed the appeal and dismissed the execution proceedings altogether.
On appeal, the High Court agreed with the Appellate Court.
It found 730 that clause permitting eviction was penal in nature and therefore, not enforceable.
The questions before this court were:did the parties to the compromise intend to create or continue the relationship of landlord and tenant; whether the compromise terms in the consent decree were penal in nature or merely gave a concession; and whether Section 114 Transfer of Property Act could be invoked while executing a decree for possession, notwithstanding Section 12(3) of the Bombay Act.
Allowing the appeal, this Court, HELD: It is well settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract.
But all the same the consent terms retain all the elements of a contract to which the court 's imprimaturs is affixed to give it the sanctity of an executable court order.
The court will not add its seal to the compromise terms unless the terms are consistent with the relevant law.
(735 H) If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind to the question.
In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court 's adjudication which will stop the tenant from contending otherwise in any subsequent proceedings and operate as resjudicata.
(736 B) The character of the con sent decree will depend on the nature of the dispute resolved and the part played by the court while superadding its seal to it.
(736 C) (2) If a defendant is required to suffer the consequence of his failure to abide by terms stipulated, such consequence would he penal in nature.
But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character.
(739 B) (3) Admittedly the tenant had failed to pay or tender in court the 731 standard rent and permitted increases due to the landlord.
(736 E) The clause in the consent terms whereby, upon payment of the entire rent etc.
due from the tenant, by a stipulated date was dearly to secure his dues i.e. arrears of rent etc.
This is in the nature of a concession.
Where a landlord grants a concession and agrees that if the entire arrears is cleared by a stipulated date, he will not insists possession that will not render the clause penal in nature.
(739 E) (4) If the condition precedent for availing of the benefit of concession under clause (3) of the consent terms is satisfied, the relationship of landlord and tenant continues but if the tenant fails to comply with the condition precedent for availing (of the benefit or concession the forfeiture operates and the tenant becomes liable for eviction under the decree.
(739 G) (5) After the enactment of clause (b) to section 12(3) which is a special provision incorporating the equity provision contained in section 114, T.P. Act, in a modified form, cases governed under the Act must he resolved in accordance with section 12(3) of the Act and not under section 114, T.P. Act.
The landlord 's right to seek eviction has been drastically reduced and circumscribed by sections 12and 13 of the Act.
Similarly the tenant must also seek protection from eviction by complying with the requirements of the Act.
(740 B) If such is not the legal position, Sections 12 (3) (a) and 12 (3) (b) would be rendered wholly nugatory.
Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if the abides by the provisions of the Act.
If he fails to abide by the requirement of section 12(3) of the Act, he must take the consequences flowing therefrom.
There is no question of granting him double protection.
(740 C E) Krishnabai vs Hari, 8 BLR 813 and Gajanand Govind vs Pandurang Keshav, 53 B.L.R. 100, referred to.
(840 B) Pradesh Kumar Bajpai vs Binod Behari Sharkar, [1980] 3S.C.R. 93, relied on.
(840 H)


judgement:
Appeal No. 343 of 1955.
Appeal from the judgment and order dated September 13, 1954, of the Patna High Court in Misc.
Case No. 39 of 1954.
L. K. Jha, B. K. P. Sinha and R. C. Prasad, for the appellant.
Mahabir Prasad, Advocate General for the State of Bihar, Ishwari Nandan Prasad and section P. Varma, for the respondents.
April 1,5.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal on a certificate granted by the High Court of Patna is from a judgment of the said High Court dated September 13, 1954, in a writ proceeding numbered as Miscellaneous Judicial Case No. 39 of 1954 in that court, which the appellant had instituted on an application made under article 226 of the Constitution in the circumstances stated below.
It was alleged that one Mahatma Mast Ram" Hindu saint, owned and possessed considerable properties in the district of Monghyr in the State of Bihar.
About two hundred years ago, he built a small temple at Salouna in which he installed a deity called Sri Thakur Lakshmi Narainji.
This temple came to be known as the Salouna asthal.
Mast Ramji died near about the year 1802.
He was succeeded in turn by some of his disciples, one of whom was Mahant Lakshmi Dasji.
He built a new temple in 1916 into which he removed the deity from the old temple and installed two new deities, Sri Ram and Sita.
in 1919 Mahant Lakshmi Dasji died.
He left three disciples, Vishnu Das, Bhagwat Das and Rameshwar Das.
A dispute arose among these disciples about succession to the gaddi, which was settled sometime in February 1919.
By that settlement it was arranged that Vishnu Das would succeed Mahant Lakshmi Das as the shebait and would be succeeded by Bhagwat Das, and thereafter the ablest "bairagi " of the asthal, born of Brahmin parents, would be eligible for appointment as 585 shebait.
Bhagwat Das died sometime in 1935 and again a dispute arose between one Rameshwar Das, the youngest chela of Mahant Lakshmi Das, and Ram Saroop Das who is the present Mahant and appellant before us.
Rameshwar Das, it appears, filed an application under the Charitable and Religious Trusts Act (XIV of 1920) for a direction upon Mahant Ram Saroop Das to render an account of the usufruct of the asthal.
This application was contested by Mahant Ram Saroop Das, who said that the properties appertaining to the Salouna asthal did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act (XIV of 1920) and therefore he was not accountable to any person.
Mahant Ram Saroop Das also applied for and obtained permission under section 5 of the aforesaid Act to institute a suit for a declaration that the Salouna asthal and the properties thereof did not constitute a public trust.
Such a suit was brought in the court of the Subordinate Judge of Monghyr who, however, dismissed the suit.
Then, there was an appeal to the High Court of Patna and by the judgment and decree passed in First Appeal No. 10 of 1941 dated March 5, 1943, the High Court gave a declaration to the effect that the Salouna asthal and the properties appertaining thereto did not constitute a public trust within the meaning of the provisions of the Charitable and Religious Trusts Act, (XIV of 1920).
Some eight years later, the Bihar Hindu Religious Trust Act, 1950 (Bihar I of 1951), hereinafter referred to as the Act, was passed by the Bihar Legislature and received the President 's assent on February 21, 1951.
It came into force on August 15, 1951.
The Bihar State Board of Religious Trusts (one of the respondents before us) was constituted under this Act to discharge in regard to religious trusts other than Jain religious trusts the functions assigned to it under the several provisions of the Act.
On November 14, 1952, this Board, in exercise of the powers conferred on it under section 59 of the Act, asked the appellant to furnish to the Board a return of the income and expenditure of the asthol.
74 586 The appellant replied by a letter dated December 1, 1952, that the Salouna asthal was a private institution to which the Act did not apply, and also drew the attention of the Board to the judgment and decree of the High Court in First Appeal No. 10 of 1941.
The Board, however, gave a reply to the effect that it was not bound by the declaration made by the High Court and asked the appellant to obtain a declaration in respect of his claim under the provisions of the Act or to submit a return.
Thereafter ' on January 22, 1954, the appellant made his application under article 226 of the Constitution in which he averred (a) that the Salouna asthal was not a religious trust within the meaning of the Act; (b) that the properties appertaining thereto did not constitute a religious trust and the appellant was not a trustee within the meaning of the Act; (e) that the Act did not apply to private trusts; and (d) that the demand made by the respondent Board amounted to an interference with the appellant 's fundamental right to hold the asthal properties.
The appellant accordingly prayed for the issue of a writ quashing the order of the respondent Board requiring the appellant to submit a return of income and expenditure and also for an order directing the respondent Board and its officers to refrain from interfering with the appellant in his right of management of the Salouna asthal and the properties appertaining thereto.
The High Court of Patna by its judgment complained against dismissed the petition on the main ground that the language of section 2(1) of the Act, which defined a I religious trust ' for the purposes of the Act, was wide enough to cover within its ambit both private and public trusts recognised by Hindu law to be religious, pious or charitable and that the Salouna asthal did not come within any of the two exceptions recognised by the section, namely, (1) a trust created ac cording to Sikh religion or purely for the benefit of the Sikh community; and (2) a private endowment created for the worship of a family idol in which the public are not interested.
The High Court also held that the materials on the record were not sufficient to decide 587 the question whether the Salouna asthal and the properties thereof constituted a religious trust of a public character; but proceeding on the footing that the Act applied to private trusts, it expressed the view that the restrictions imposed on the trustee by the several provisions of the Act were not violative of the fundamental right guaranteed under article 19(1)(f) of the Constitution, inasmuch as there was no legal reason why the State should not exercise superintend ence and control over the administration of private trusts as in the case of public trusts.
In a judgment dated October 5, 1953, dealing with the same question in some earlier cases, the High Court had, however, expressed a somewhat different view.
It had then referred to the principle that when a legislature with limited power makes use of a word of wide and general import, the presumption must be that it is using the word with reference to what it is competent to legislate, and adopting that principle it said that section 2(1) of the Act should be read in a restricted sense so as to include only Hindu religious or charitable trusts of a public character and the provisions of the Act would accordingly apply to such trusts only.
The principal point urged before us on behalf of the appellant is one of construction do the provisions of the Act apply to private religious trusts? The contention of the appellant is that they do not.
It is necessary to refer at this stage to some of the relevant provisions of the Act.
In connected Civil Appeals Nos. 225, 226, 228, 229 and 248 of 1955 (1) in which also we are delivering judgment today, we have referred to the provisions of the Act in somewhat greater detail.
In this appeal we shall refer to such provisions only as have a bearing on the principal point.
We start with the definition clause in section 2 (1).
It says " religious trust ' means any express 6r constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable, but shall not include a trust created according to the Sikh religion or purely for the benefit of the Sikh (1) Mahant Moti Das vs S.P. Sahi, see P. 563 ante.
588 community and a private endowment created for the worship of a family idol in which the public are not interested The expression 'trust property ' in a. 2 (p) means the property appertaining to a religious trust and the expression 'trustee ' in section 2 (n) is defined in the following terms " I trustee ' means any person, by whatever designation known, appointed to administer a religious trust either verbally or by or under any deed or instrument or in accordance with the usage of such trust or by the District Judge or any other competent authority, and includes any person appointed by a trustee to perform the duties of a trustee and any member of a Committee or any other person for the time being managing or administering any trust pro perty as such; ".
The next important section for our purpose is section 4 as amended by Bihar Act, XVI of 1954, which gives effect to certain amendments and repeals.
Sub section (5) of section 4 is in these terms "The (XX of 1863), and section 92 of the Code of Civil Procedure, 1908 (V of 1908), shall not apply to any religious trust in this State, as defined in this Act." Chapter V of the Act contains a series of sections which delimit the powers and duties of the State Board of Religious Trusts.
Section 28, the opening section of the chapter, states the general powers and duties of the Board.
Section 29(1) has a bearing on the question at issue before us.
It states inter alia that 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 sub section (2) of the section.
If an order of supersensible is passed, the committee or association or any other person interested in the religious trust may within 30 days of the order of the Board under sub section
(2) make an application to the District Judge for varying, modifying or setting aside 589 the order of supersession.
Section 30, so far as it is relevant for our purpose, states " When any object of a religious trust has ceased to exist or has, in the opinion of the Board, become impossible of achievement, the Board may, of its own motion or on the application of any Hindu, after issuing notice in the prescribed manner, to the trustee of such trust and to such other person as may appear to the Board to be interested therein and after making such inquiry as it thinks fit, determine the object (which sfiall be similar or as nearly similar as practicable to the object which has ceased to exist or become impossible of achievement) to which the funds, property or income of the trust or so much of such fund, property or income as was previously expended on or applied to the object which has ceased to exist or become impossible of achievement, shall be a plied.
" Section 32 defines the power of the Board to settle schemes for proper administration of religious trusts.
It states: " 32(1).
The Board may, of its own motion or on application made to it in this behalf by two or more persons interested in any trust, (a) settle a scheme for such religious trust after making such inquiry as it thinks fit and giving notice to the trustee of such trust and to such other person as may appear to the Board to be interested therein; (b) in like manner and subject to the like conditions, modify any scheme settled under this section or under any other law or substitute another scheme in its stead: Provided that any scheme so settled, modified or substituted shall be in accordance with the law governing the trust and shall not be contrary to the wishes of the founder so far as such wishes can be ascertained.
(2) A scheme settled, modified or substituted instead of another scheme under this section shall, unless otherwise ordered by the District Judge on an application, if any, made under sub section (3) come into force on a day to be appointed by the Board in this behalf and shall be published in the official gazette.
590 (3) The trustee of, or any other person interested in, such trust, may within three months from the date of the publication in the official gazette of the scheme so settled, modified or substituted instead of another scheme, as the case may be, make an application to the District Judge for varying, modifying or setting aside the scheme; but, subject to the result of such application, the order of the Board under sub sections (1) and (2) shall be final and binding upon the trustee of the religious trust and upon every other person interested in such religious trust.
(4) An order passed by the District Judge on any application made under sub section (3) shall be final.
" It may be here stated that the expression " person interested in religious trust " is defined in section 2(g).
The definition is in these terms " " person interested in a religious trust " means any person who is entitled to receive any pecuniary or other benefit from a religious trust and includes, (1) any person who has a right to worship or to perform any rite, or to attend at the performance of any worship or rite, in any religious institution connected with such trust or to participate in any religious or charitable ministration under such trust; (ii) the founder and any descendant of the founder; and (iii) the trustee;".
The only other section which need be quoted in full is section 48 of the Act which is in these terms: " 48(1).
The Board, or with the previous sanction of the Board, any person interested in a religious trust may make an application to the District Judge for an order (a) removing the trustee of such religious trust, if such trustee (1) acts in a manner prejudicial to the interest of the said trust; or (ii) defaults on three or more occasions in the payment of any amount payable under any law for the time being in force in respect of the property or income of the said trust or any other statutory charge on such property or income; or 591 (iii) defaults on three or more occasions in the payment of any sum payable to any beneficiary under the said trust, or in discharging any other duty imposed upon him under it; or (iv) is guilty of a breach of trust.
(b) appointing a new trustee; (e) vesting any property in a trustee; (d) directing accounts and inquiries; or (e) granting such further or other relief as the nature of the case may require.
(2) The order of the District Judge under sub . section (1) shall be final ".
Now, the argument on behalf of the appellant is that on a true and proper construction of the aforesaid provisions of the Act, considered in the background of previous legislative history with regard to religious, charitable or pious trusts in India, the definition clause in section 2 (1) of the Act is confined to religious, pious or charitable trusts of a public nature recognised as such by Hindu law.
In order to appreciate this argument it is necessary to state first the distinction in Hindu law between religious endowments which are public and those which are private.
To put it briefly, the essential distinction is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description; in a private trust the beneficiaries are definite and ascertained individuals or who within a definite time can be definitely ascertained.
The fact that the uncertain and fluctuating body of persons is a section of the public following a particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a private trust (see the observations in Nabi Shirazi vs Province of Bengal) (1).
The distinction in this respect between English law and Hindu law has been thus stated by Dr. Mukherjea in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition, pp.
392 396): ,,In English law charitable trusts are synonymous (1) (1942) I.L.R. I cal.
211, 228.
592 with public trusts and what is called religious trust is only a form of charitable trust.
The beneficiaries in a charitable trust being the general public or a section of the same and not a determinate body of individuals, the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust.
In English law the Crown as parens patriae is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. .
One fundamental distinction between English and Indian law lies in the fact that there can be religious trust of a private character under Hindu law which is not possible in English law ".
On behalf of the appellant it has been pointed out that so far as public religious and charitable trusts are concerned, there are a number of legislative enactments, both general and local, which aim at controlling the management and administration of such trusts and provide for remedies in cases of maladministration, So far as private religious trusts are concerned, there are no specific statutory enactments and such trusts are regulated by the general law of the land.
The British Government, when it was first established in India, following the tradition of the former rulers, asserted by virtue of its sovereign authority the right to visit public religious and charitable endowments and to prevent and redress abuses in their management.
A Regulation for that purpose was passed in Bengal in 1810 (Regulation XIX of 1810) and one for Madras in 1817 (Regulation VII of 1817).
In Bombay also there was a Regulation (XVII of 1827) which related to endowments of the same character.
In 1863 was passed the (XX of 1863), which repealed the Bengal and Madras Regulations in so far as they related to purely religious institutions and their control was transferred from the Board of Revenue to non official committees constituted under the Act of 1863.
It is worthy of note, however, that the Act of 1863 also applied to public religious endowments only.
In course of time it was found that the Act of 1863 did not provide adequate protec.
593 tion to public religious trust against abuses which led to their control by the State and the remedies provided by that Act did not go far enough.
Then came the (VI of 1890), and the Charitable and Religious Trusts Act, 1920 (XVI of 1920), both of which related to public trusts ; the former related exclusively to public trusts for charitable purposes unconnected with religious teaching or worship while the latter related to trusts created for public purposes of a charitable or religious nature.
In the Civil Procedure Code of 1877 a specific section was introduced, viz., section 539, under which a suit could be instituted in case of any alleged breach of any express or constructive trust created for public religious or charitable purposes.
This section was later amended, and in this amended form it became section 92 of the present Civil Procedure Code, the first condition necessary to bring a case within its purview being the existence of a trust, whether express or constructive for public purposes of a religious or charitable nature.
It is clear beyond doubt that a private trust is outside the operation of section 92, Civil Procedure Code.
Of the local Acts, the earliest was that of the Bombay Presidency of the year 1863.
In more recent years were passed the Orissa Hindu Religious Endowments Act, 1939, the Bombay Public Trusts Act, 1950, and the Madras Hindu Religious and Charitable Endowments Act, 1951, all of which relate to public religious institutions and endowments.
No local Act has been brought to our notice which clearly or unmistakenly sought to include within its ambit private religious trusts.
On behalf of the appellant it has been submitted that though the definition clause in section 2 (1) of the Act is expressed in wide language, other provisions of the Act make it clear that it is confined to public trusts only.
Section 2 (1) of the Act, we have pointed out, recognises two exceptions: first, a trust created according to the Sikh religion or purely for the benefit of the Sikh community; and, second, a private endowment created for the worship of a family idol, in which the public are not interested.
It is not disputed 75 594 that the second exception is an instance of a private trust, in which the public are not interested.
The High Court has taken the view that inasmuch as the definition clause mentions by way of an exception only one instance of a private endowment, all private endowments created otherwise than for the worship of a family idol must be included within the definition Of the maxim of expression unius exclusio alterius.
We do not think that this view is quite correct.
First of all, let us examine some other provisions of the Act which specifically refer to the definition clause and see what the legislature has itself taken it to mean.
Take, for example, section 4 of the Act, as amended by Bihar Act, XVI of 1954.
This section amends and repeals certain earlier Acts like the , and the Charitable and Religious Trusts Act, 1920, both of which we have already pointed out related exclusively to public trusts.
Sub section
(5) of section 4 states that the , and section 92 of the Code of Civil Procedure, 1908, shall not apply to any religious trust in the State, as defined in this Act.
The , and section 92, Civil Procedure Code, both apply to public trusts; they have no application to private trusts.
If the definition clause was intended to include within its ambit private trusts (other than those created for the wor ship of a family idol), then it is difficult to understand why sub section
(5) of section 4 should be worded as it has been done.
That sub section in effect says that two earlier enactments which apply exclusively to public trusts shall not apply to any trust (we emphasise the word ' any ') as defined in the Act.
If private trusts created otherwise than for the worship of a family idol were included in the definition of religious trust, then sub section
(5) was entirely otiose or redundant so far as those private trusts were concerned for the earlier enactments never applied to them.
The obvious indication is that all trusts defined in the Act are public trusts and, therefore, it became necessary to exclude the operation of earlier enactments which but for the exclusion would have applied to such trusts.
If the intention of sub section (5) of section 4 was to exclude some, trusts 595 only out of many included within the definition clause from the operation of the earlier enactments, as is contended for by the learned Advocate General of Bihar, then the use of the word 'any ' appears to us to be particularly inapt.
Sub section (5) of section 4 was amended by Bihar Act XVI of 1954.
Before the amendment it read as follows: " section 4(5).
The , and section 92 of the Code of Civil Procedure, 1908, shall not apply to any Hindu Religious Trust in the State of Bihar." Prior to the amendment, sub section
(5) made no reference to the definition clause; it merely said that two of the earlier enactments shall not apply to any Hindu Religious Trust in the State of Bihar.
The amended subsection, however, specifically refers to the definition clause and states that two of the earlier enactments, which apply only to public trusts, shall not apply to any trusts, as defined in the Act.
In our opinion, by sub section
(5) of section 4 the Legislature itself has spoken and indicated the true scope and effect of the definition clause.
Secondly, it may be asked why the legislature having before it the earlier enactments which applied to public trusts only, failed to use the word 'public ' before the word 'purpose ' in the definition clause ? This is a pertinent question which must be faced.
The answer, we think, is this.
Charitable trusts are public trusts, both under the English and Indian law; in England a religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private.
But the most usual and commonest form of a private religious trust is one created for the worship of a family idol in which the public are not interested.
Any other pri vate religious trust must be very rare and difficult to think of. ' Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (11th edition) " Religious endowments are either public or private.
In a public endowment the dedication is for 596 the use or benefit of the public.
When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one ".
Obviously enough, the definition clause merely quotes the typical example of a private endowment mentioned above.
It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it, viz., " in which the public are not interested ".
In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law.
If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law.
It also shows that there may be a trust created for the worship of a family idol in which the public may be interested.
Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public.
This also indicates that the definition was intended to cover only public trusts.
We now turn to some of the other provisions of the Act, which we have earlier quoted.
Section 29(1) which talks of supervision of a religious trust being vested in any committee or association appointed by the founder or by a competent court or authority is ordinarily appropriate in the case of a public trust only.
Section 30(1) which embodies the doctrine of cypress permits any Hindu to make an application for invoking the power of the Board to determine the object to which funds, property and income of a religious trust shall be applied where the original object of the trust has ceased to exist or has become impossible of achievement.
This section is also inappropriate in the case of a private trust, the obvious reason being that any and every Hindu cannot be interested in a private trust so as to give him a locus stand to make the application.
Further, it is difficult to visualise that a Hindu private rebutter will fail, for a deity is immortal.
Even if the idol gets broken or is lost or stolen, another image may be consecrated and it cannot be said that the original object has ceased to exist.
Sec 597 tion 32 is an important section of the Act and confers power on the Board to settle schemes for proper administration of religious trusts.
Now, the section says that the Board may exercise the power of its own motion or on application made to it in this behalf by two, or more persons interested in any trust.
The language of the section follows closely the language of section 92, Civil Procedure Code, so far as the phrase " two or more persons interested in any trust " is concerned.
It is difficult to understand why in the case of a private trust, it should be necessary that two or more persons interested in the trust must make the application to settle a scheme for such a trust.
In a private or family rebutter the beneficiaries are a limited and defined class of persons, as for example, the members of a family.
If the trustee or shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can certainly be instituted for remedying these abuses of trust.
Under the general law of the land the founder of the endowment, or any of his heirs is competent to institute a suit for proper administration of the debutter, for removal of the old trustee and for appointment of a new one.
It is not necessary in such a case that two or more persons interested in the trust must join in order to institute the suit.
The condition of " two or more persons " is appropriate only to a public trust, the reason being that a public trust is a matter of public concern.
Section 48 of the Act is also analogous to section 92 of the Code of Civil Procedure and one of the reasons for excluding the operation of section 92 of the Code of Civil Procedure from trusts as defined by the Act is the existence of provisions in the Act which are analogous to section 92 of the Code of Civil Procedure.
This section is also more appropriate to public trusts than to private trusts.
In fact, the Act contains provisions, as the preamble states, for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts and for that purpose certain earlier enactments like the , the , 598 the Charitable and Religious Trusts Act, 1920 and the Civil Procedure Code, 1908, have either been amended or excluded from operation.
All those earlier enactments related only to public trusts and if the intention was that the Act would apply to private trusts as well, one would expect that intention would be made clear by the use of unambiguous lan guage.
We find, on the contrary, that though the definition clause in section 2(1) is expressed in somewhat wide language, sub section
(5) of section 4 makes clear what the true scope and effect of the definition clause is.
For the reasons given above, we hold that the definition clause does not include within its ambit private trusts and the Act and its provisions do not apply to such trusts.
Learned counsel for the appellant has in the alternative argued before us that if the Act applies to private trusts, several of its provisions will be violative of the fundamental right guaranteed to citizens under article 19(1)(f) of the Constitution inasmuch as the restrictions imposed thereby on trustees of private trusts, in which the public are not interested, cannot be justified as reasonable restrictions in the interests of the general public within the meaning of cl.
(5) of article 19.
The High Court negatived this argument by adopting the rule of English law that in the case of a charitable corporation where the founder is a private person, he and his heirs become visitors in law and where such heirs are extinct or incompetent, their powers devolve on the Crown or the State; therefore, it is in the interests of the general public that the State should exercise superintendence and control over the administration of private trusts as in the case of public trusts.
This view of the High Court has been seriously contested before us, and learned counsel for the appellant has submitted that there is no war.
rant for the adoption of the rule of English law in view of the fundamental distinction between English and Hindu law as to private religious trusts.
He has also drawn our attention to the following observations of Dr. Mukherjea (Hindu Law of Religious and Charitable Trust, 1952 Edition, p. 393) on this point: 599 ,,In English law there is a ' visitatorial ' power attached to all eleemosynary corporations.
A visitor has the right to settle disputes between members of the corporation, to inspect and regulate their actions and generally to correct all abuses and irregularities in the administration of charity.
The law allows to the founder of an eleemosynary institution full powers to make regulations for its creation and such powers include the right of nominating visitors.
Under the law of England as it stood before 1926, if a private person was the founder of a charitable corporation, then he and his heirs became automatically the visitors.
The descent of the rights of a visitor to heirs has now been abolished by the Administration of Estates Act, 1925, and it is not clear as to who would be visitor in default of appointment by the founder.
Most probably such rights would devolve upon the Crown as they did when the founder 's heirs became extinct or could not be found or the heir was a lunatic.
" He has further submitted that whatever be the position in English law, the guarantee of a fundamental right must depend on the terms of article 19 of the Constitution and such guarantee cannot be whittled down by importing artificial rules of English law.
In view of our finding on the question of construction of the definition clause read with section 4 (5) and other provisions of the Act, we consider it unnecessary to pronounce finally on the contentions referred to in the preceding paragraph, except merely to state that a serious question of the constitutional validity of several provisions of the Act would have undoubtedly arisen if the Act were held to apply to private trusts as well.
On our finding that, the Act does not apply to private trusts, the appellant is entitled to succeed in his appeal.
The High Court has said that the materials on the record of the case are not sufficient to decide the question whether the Salouna asthal and the properties of the mahant constitute a trust of a public character.
This question, however, was the subject of a contested litigation and the appellant had obtained a declaration in First Appeal No. 10 of 1941 that the Salouna asthal 600 and the properties appertaining there to did not constitute a public trust.
The respondents were not parties to that litigation and may not be bound by that judgment; but on behalf of the respondents no affidavit was filed nor were any materials placed to show that the position is different from what was declared by the High Court.
The High Court commented on the fact that the appellant did not produce before the court all the documents in his possession.
A petition has been filed before us for taking in evidence the documents which were considered by the High Court in First Appeal No. 10 of 1941.
We do not think that in the circumstances of this case it is necessary to consider that evidence afresh.
As long as the declaration made by the High Court in First Appeal No. 10 of 1941 stands and in the absence of some evidence to the contrary, the appellant is entitled to say that the Salouna asthal and the properties appertaining thereto do not 'Constitute a public trust and the Act and its provisions do not apply to it.
Our attention has been drawn to section 43 of the Act as amended by Act XVII of 1956.
That section says inter alia that all disputes as to whether any immovable property is or is not a trust property shall be inquired into, either on its own motion or on an application, by the authority appointed in this behalf by the State Government by notification in the official gazette.
Without.
expressing any opinion as to the constitutional validity of section 43 of the Act we merely point out that no decision has been given under section 43 of the Act (as it stood prior or after the amendment) against the appellant in respect of the Salouna asthal and the properties appertaining thereto.
It would be open to the respondents to take such steps as may be available to them in law to get it determined by a competent authority that the trust in question is a public trust.
We would accordingly allow this appeal, set aside the judgment and order of the High Court dated September 13, 1954, and direct the issue of an appropriate writ quashing the order of the respondent Board calling upon the appellant to file a statement of income and expenditure with regard to the properties of the Salouna 601 asthal and also prohibiting the respondents from interfering with the rights of the appellant in the management of the Salouna asthal and the properties appertaining thereto, unless and until the respondents have obtained the necessary determination that the Salouna asthal is a public trust.
The appellant will be entitled to his costs throughout.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant as the Mahant of the Salouna asthal made an application in the High Court under article 226 of the Constitution praying inter alia for the issue of a writ quashing the order of the Bihar State Board of Religious Trusts requiring the appellant to submit a return of income and expenditure under section 59 Of the Bihar Hindu Religious Trusts Act, 1950, on the grounds, inter alia, that the Salouna as that was a private institution and not a religious trust within the meaning of the Act and that the Act did not apply to private trusts.
The High Court took the view that the language of section 2(1) of the Act, which defined a " religious trust ", was wide enough to cover within its ambit both private and public trusts recognised by Hindu law and that the Salouna asthal did not come within any of the two exceptions recognised by the section.
Held, that on a true and proper construction of the provi sions of the Act, considered in the background of previous legislative history with regard to religious, charitable or pious trusts in India, the definition clause in section 2(1) of the Act does not include within its ambit private trusts and that the provisions of the Act do not apply to such trusts.
The essential distinction in Hindu law between religious endowments which are public and those which are private is that in a public trust the beneficial interest is vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it answering a particular description ; in a private trust the beneficiaries are definite and ascertained individuals or who within a time can be definitely ascertained.
The fact that the uncertain and fluctuating body of persons is a section of the public following as particular religious faith or is only a sect of persons of a certain religious persuasion would not make any difference in the matter and would not make the trust a 'private trust.


judgement:
ION: Criminal Appeal No. 66 of 1954.
Appeal from the judgment and order dated the 31st December, 1953 of the Punjab High Court in Criminal Appeal No. 540 of 1953, arising out of the judgment and order dated the 14th September, 1953, of the Court of Special Judge, Amritsar, in Corruption Case No. 13/1 10/3 of 1953.
Shaukat Hussain, for the appellant.
Gopal Singh and T. M. Sen, for the respondent.
October 25.
The following judgment of the Court was delivered by 763 KAPUR J.
The sole point in this appeal against the judgment and order of the Punjab High Court pronounced on December 31, 1953, is the validity and effect of the sanction given under section 6(1) of the Prevention of Corruption Act (Act 2 of 1947), hereinafter termed the Act.
The appellant was prosecuted for receiving illegal gratification and the charge against him was in the following terms: "That, you, Jaswant Singh, while employed as a Patwari, Fatehpur Rajputan habitually accepted or obtained for yourself illegal gratification and that you received in the sum of Rs. 50 on 19 3 1953 at Subzi Mandi Amritsar from Pal Singh P. W. as a reward for forwarding the application Es.
P. A. with your recommendation for helping Santa Singh father of Pal Singh in the allotment of Ahata No. 10 situate at village Fatehpur Rajputan and thereby committed an offence of Criminal misconduct in the discharge of your duty mentioned in section 5(1)(a) of the Prevention of Corruption Act, 1947, punishable under sub section 2 of section 5 of the aforesaid Act and within my cognizance.
" The Special Judge found that the appellant had accepted illegal gratification from Pal Singh, Hazara Singh, Harnam Singh, Joginder Singh, Atma Singh, Hari Singh and Ganda Singh and that he had received Rs. 50 from Pal Singh on March 19, 1953, at Subzi Mandi, Amritsar.
He then held: "The charge under section 5 (1)(a) of the Prevention of Corruption Act, 1947, has been established against him beyond reasonable doubt.
He is guilty of an offence punishable under sub section (2) of section 5 of the said Act.
" The appellant took an appeal to the High Court of the Punjab and Dulat J. held that taking into consideration the sanction which will be quoted hereinafter: " The appellant could neither have been charged nor convicted of what is probably a much graver offence of habitually accepting bribes.
" 97 764 But he held that sanction was valid qua the charge of accepting illegal gratification of Rs. 50 from Pal Singh.
The conviction was therefore upheld but the sentence was reduced to the period already undergone and the sentence of fine maintained.
The argument raised by the appellant in this court is that as the sanction was confined to illegal gratification of Rs. 50 paid by Pal Singh and the charge was for habitually accepting illegal gratification the trial was without jurisdiction and the appellant could not be convicted even for the offence which was mentioned in the sanction.
The sanction was in the following terms: " Whereas I am satisfied that Jaswant Singh Patwari son of Gurdial Singh Kamboh of village Ajaibwali had accepted an illegal gratification of Rs. 50 in 5 currency notes of Rs. 10 denomination each from one Pal Singh son of section Santa Singh of village Fatehpur Rajputan, Tehsil Amritsar for making a favorable report on an application for allotment of an ahata to section Santa Singh father of the said section Pal Singh.
And whereas the evidence available in this case clearly discloses that the said section Jaswant Singh Patwari had committed an offence under Section 5 of the Prevention of Corruption Act.
Now therefore, 1, N. N. Kashyap, Esquire I.C.S. Deputy Commissioner, Asr, as required by Section 6 of the Prevention of Corruption Act of 1947, hereby sanction the prosecution of the said section Jaswant Singh Patwari under section 5 of the said Act.
" Section 6(1) of the Act provides for sanction as follows: " No Court shall take cognizance of an offence punishable under Section 161 or Section 165 of the Indian Penal Code or under sub section (2) of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction.
" Section 5 (1)(a) relates to a case of a public servant if he habitually accepts illegal gratification and section 5(1)(d) 765 if he obtains for himself any valuable thing or pecuniary advantage.
The contention comes to this that as the sanction was only for receiving Rs. 50 as illegal gratification from Pal Singh and therefore an offence ' under section 5 (1)(d) the prosecution, the charge and conviction should have been under that provision and had that been so there would have been no defect in the jurisdiction of the court trying the case nor any defect in the conviction but as the appellant was tried under the charge of being a habitual receiver of bribes and the sanction was only for one single act of receiving illegal gratification the trial was wholly void as it was a trial by a court without jurisdiction.
The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness; Basque Agarwala vs King Emperor (1).
The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself tile evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.
In Gokulchand Dwarkadas Morarka vs The King (2) the Judicial Committee of the Privy Council also took a similar view when it observed: " In their Lordships ' view, to comply with the provisions of cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged.
It is plainly desirable that the facts should be referred to on the face of the Sanction, but this is not essential, since cl. 23 does not require the sanction to be in any particular form, nor even to be in writing.
But if the facts constituting the offence charged are not shown on the face of the sanction ' the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.
The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.
(1)[1945] F.C.R. 93,98 (2) [1948] L.R. 75 I.A.30, 37 766 It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case.
In Yusofalli Mulla Noorbhoy vs The King (1) it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge.
Without such sanction the prosecution would be a nullity and the trial without jurisdiction.
In the present case the sanction strictly construed indicates the consideration by the sanctioning authority of the facts relating to the receiving of the illegal gratification from Pal Singh and therefore the appellant could only be validly tried for that offence.
The contention that a trial for two offences requiring sanction is wholly void, where the sanction is granted for one offence and not for the other, is in our opinion unsustainable.
Section 6(1) of the Act bars the jurisdiction of the court to take cognizance of an offence for which previous sanction is required and has not been given.
The prosecution for offence under section 5(1)(d) therefore is not barred because the proceedings are not without previous sanction which was validly given for the offence of receiving a bribe from Pal Singh, but the offence of habitually receiving illegal gratification could not be taken cognizance of and the prosecution and trial for that offence was void for want of sanction which is a condition precedent for the courts taking cognizance of the offence alleged to be committed and therefore the High Court has rightly set aside the conviction for that offence.
In Hori Ram Singh vs The Crown(1) the charges against a public servant were under sections 409 and 477A, Indian Penal Code, one for dishonestly converting and misappropriating certain medicines entrusted to the public servant and the other for wilful omission with intent to defraud to record certain entries in the (1)(1949) L.R. 76 I.A.158 (2)[1939] F.C.R.159.
767 account books of the hospital where he was employed.
Thus two distinct offences were committed in the course of the same transaction in which the one, under section 477A, Indian Penal Code, required sanction under,s. 270(1) of the Government of India Act and the other under section 409, Indian Penal Code, did not.
But the bar to taking cognizance of the former offence was not considered a bar to the trial for an offence, for which no sanction was required and therefore the proceedings under section 477A were quashed as being without jurisdiction but the proceedings under section 409 Indian Penal Code were allowed to proceed.
Similarly the Supreme Court in Basir ul Huq vs The State Of West Bengal (1) held section 195, Criminal Procedure Code to be no bar to the trial for a distinct offence not requiring sanction although disclosed by the same facts if the offence is not included in the ambit of an offence requiring such sanction.
The want of sanction for the offence of habitually accepting bribes therefore does not make the taking of cognizance of the offence of taking a bribe of Rs. 50 from Pal Singh void nor the trial for that offence illegal and the court a court without jurisdiction.
The submission next raised is that the evidence in support of being habitually a receiver of bribes has caused serious prejudice to the defence of the appellant but no such prejudice has been shown nor does the judgment of the High Court which has proceeded on the evidence in support of the charge of Pal Singh 's transaction, indicate the existence of any prejudice and there was nothing indicated before us leading, to the conclusion of prejudice or to consequent failure of justice.
The High Court came to the conclusion that the trial for the offence of habitually accepting illegal gratification could not be validly tried and evidence led on that charge could not be considered but the conviction of receiving a bribe of Rs. 50 from Pal Singh is well founded and also that the appellant has not been prejudiced in the conduct of his defence.
(1) ; 768 No arguments were addressed to this court on the correctness of the finding of the High Court in regard to the conviction for receiving illegal gratification from Pal Singh.
We agree with the opinion of the High Court that the offence under section 5(1) (d) of receiving illegal bribe of Rs. 50 has been made out and would therefore dismiss this appeal.
Appeal dismissed.

summary:
Sanction was given under section 6 of the Prevention of Corruption Act, 1947, for the prosecution of the appellant for having received illegal gratification from one Pal Singh.
He was charged with and tried for two offences under section 5(1)(a) of the Act for habitually accepting or obtaining illegal gratification and under section 5(1)(d) for receiving illegal gratification from Pal Singh.
The Special judge found both charges proved and convicted the appellant.
On appeal, the High Court held that the appellant could neither be tried nor convicted of the offence under section 5(1)(a) as no sanction had been given in respect of it but upheld the conviction for the offence under section 5(1)(d) for which sanction had been given.
It was argued that the conviction even for the offence under section 5(1)(d) was illegal as the trial was wholly void and without jurisdiction : Held, that the contention that the trial for two offences requiring sanction is wholly void, where the sanction is granted for only one offence and not for the other, is unsustainable.
The want of sanction for the offence of habitually accepting bribes does not make the taking of cognizance of the offence of taking a bribe from Pal Singh void nor the trial for that offence illegal and the Court a Court without jurisdiction.
Hori Ram Singh vs The Crown, and Basirul Huq vs The State of West Bengal, ; , referred to.