ORDER
Navin Sinha, J.
Page 1763
1. Heard Shri Y.V. Giri, learned Senior Counsel on behalf of the petitioner and Shri A.P. Jittu, learned Counsel on behalf of the respondent Board.
2. The petitioner questions the actions of the respondent Board culminating in order dated 26.6.2006 at Annexure 4. The impugned order states that the Administrator cum Special Officer of the Board by order dated 6.6.2006 has appointed the District Magistrate, Bhagalpur as the temporary Trustee of the Ajgabi Nath Mahadeo Mandir Trust, under Section 33 of the Bihar Hindu Religious Trust Act 1950 (hereinafter referred as ‘the Act’). The charge having been assumed by the District Magistrate, the petitioner was required to hand over all records before the SDO Bhagalpur so that the same may be examined.
3. The short facts of the case are that the Ajgabi Nath Mahadeo Temple is a public trust registered under the Act. The Mahanth died on 27.6.1992. The petitioner was appointed as a Mahanth on 8.12.1994. The Chairman/President of the respondent Board on 16.2.2004 issued a show cause notice to the petitioner to show cause as to why he should not be removed for financial mismanagement under Section 28(2)(h)(iii) of the Act so that a fresh Committee be not constituted for the smooth functioning of the Trust in exercise of powers under Section 32 of the Act. The petitioner replied to the same when the Chairman/President of the Board by his order dated 23.7.2004 in anticipation of the approval of the Board removed the petitioner in exercise of powers under Section 28(2)(h)(iii) for alleged financial mismanagement and appointed the District Magistrate, Bhagalpur as the temporary Trustee. A copy of this order was forwarded to the petitioner also. The orders of the Chairman/President was ratified by the Board at its meeting on 7.8.2004. On 6.6.2006 the Administrator cum Special Officer wrote to the District Magistrate, Bhagalpur that the latter by an order dated 23.7.2004 had been appointed as a Temporary Trustee under Section 33 of the Act and in view of the forthcoming Shrawani Mela the District Magistrate was required to assume possession and charge of the Trust immediately under intimation to the Administrator. The impugned order dated 26.6.2006 is the corrolary and conclusion of the aforesaid.
4. Learned Senior Counsel Shri Y.V. Giri urged that before invocation of powers under Section 33 of the Act for appointment of a temporary Trustee, there must be a vacancy of the office of Trustee inter alia for reasons of an order of the Board passed under Section 28(2)(h). Presently there was no order for removal of the petitioner passed under the aforesaid provision. In any event, no such order was communicated to the petitioner. It was next urged that the Chairman/President cannot usurp the powers of the Board. The show cause was not given by the Board but by the Chairman/President. The reply to the show cause was not considered by the Board but by the Chairman. The act of ratification by the Board was therefore arbitrary and violative of basic principles of natural justice as the Board never had the occasion to apply its independent mind to the matter but acted on basis of materials placed before it by the Chairman/President. Section 38 of the Act vested the powers of the Board in the President only in cases of extreme urgency calling for Page 1764 immediate action when the reasons for the urgency must also be placed by the President/Chairman before the Board at the time of ratification. The very fact that orders under Section 28(2)(h)(iii) were purportedly passed on 23.7.2004 when admittedly till 6.6.2006 the same had not been given effect to, was per se evidence of lack of any emergency situation to invoke the provisions of Section 38 of the Act. Learned Counsel [placed reliance on a Bench decision of this Court in 2003 (4) PLJR 710 (Mahanth Vijay Das v. The State of Bihar and Ors.) and 1988 PLJR 212 (Agrawal Dharmshala and Ors. v. The Bihar State Board of Religious Trust and Ors.).
5. Shri A.P. Jittu appearing on behalf of the respondent Board relied heavily on Section 38 of the Act to support the actions of the Chairman/President in issuance of show cause and passing final orders under Section 28(2)(h)(iii) which came to be ratified by the Board. In view of the statutory delegation permissible from a joint reading of Sections 38 & 39 of the Act there was no occasion for this Court to interfere in the matter. The order under Section 28(2)(h)(iii) dated 23.7.2004 was amenable to challenge in a statutory alternative remedy before the District Judge under Section 28(3) of the Act. The writ petition was therefore not maintainable especially in absence of any challenge to the same even ever having been made by the petitioner. By law 43(S) specifically empowered the President/Chairman to exercise the powers of the Board inter alia to appoint a temporary Trustee. Shri Jittu lastly submitted that the judgment in the case of Mahanth Vijay Das (Supra) has no application in the facts of the present case as unlike the present case the actions of the Chairman/President therein was not the subject of ratification by the Board, as was the case presently.
6. This Court has considered the submissions on behalf of the parties and the materials on record. In the given facts of the case, there is an order of removal of the petitioner passed under Section 28(2)(h)(iii) after hearing him and duly communicated to him albeit by the President Chairman. To that extent the judgment relied upon by the petitioner in 1988 PLJR 212 has no application to the facts of the present case. The validity of the same however is an entirely different matter.
7. In the case of Mahanth Vijay Das (Supra) this Court considered Sections 28, 32, 33, 38 and 39 along with by-law 43 of the Act. In that case the Chairman/President of the respondent Board directed the removal of the petitioner therein from the office of the Trustee and directed constitution of a Trust Committee in exercise of powers under Section 28(2)(h)(iii). This Court held in paragraph 6 of the judgment that the Act provides that the power to remove a Trustee vests in the Trust Board and not in the Chairman. Framing the question in paragraph 8 of the judgment the Court held:
8. The power to remove a Trustee as observed earlier in accordance with Section 28 is not vested in the Chairman but is vested in the Board. The question still would be whether the Board has conferred such power or has delegated such powers in favour of the Chairman. If the answer is yes, then the present matter will have to be appreciated from a different angle.
8. On a consideration of Section 38 & 39 of the Act with regard to exercise by the President/Chairman of the powers of the Board and delegation of powers by the Board this Court held that such power could be exercised by the President/Chairman only in cases of urgency/emergency looking to the exigency of the situation. It was not a generalised power carte blanche to be exercised at the whims of the President Page 1765 but in circumstances extraordinary. The President/Chairman was then obliged to place before the Board the exigency or urgency which propelled him to exercise the powers of the Board. On the issue of delegation of powers by the Board, it was held that the Board was not a rubber stamp but was made to be a live body generally exercising its powers and not merely rubber-stamping the decisions of its Chairman/President to confer legal sanctity on what were essentially individual acts. The Board cannot abdicate its powers and assume a role subordinate to the Chairman. Moreover, delegation of power has to be specific especially in view of By-law 43. There is no power under the By-law 43 for the Chairman to exercise the powers of the Board for removal of a Trustee. The powers not delegated cannot be assumed by the President. By-law 43(s) would operate only in the event of vacancy in the position of the Trustee and not otherwise. It was therefore held that the ouster of the Trustee by the Chairman/President in exercise of purported delegated powers from the Board was clearly illegal and the order of removal was set aside.
9. In the present case, no doubt there has been a ratification by the Board. But there is nothing on record brought by the Board that the President placed before the Board the urgency and exigency of the situation and circumstances extraordinary which propelled him to exercise the powers of the Board for removal of a Trustee. There is also nothing on record brought by the Board of any order of the Board delegating its powers to the President. The law stands well settled that if a statute prescribes a particular mode or procedure for exercise of the power, the same can be done only in the manner prescribed and other modes are forbidden on pain of invalidation.
10. In the present case, the petitioner was purportedly removed under Section 28(2)(h)(iii) by the President in exercise of powers of the Board purported to be under Section 38 in anticipation of approval. Admittedly, till 6.6.2006 the petitioner was not removed and was occupying the seat of the Trustee. Following the analogy in paragraph 10 of the judgment of Mahanth Vijay Das (Supra) it can be safely concluded that in the present case there was in fact no urgency or situation extraordinary or/and also that the urgency of the situation if any, lapsed. The facts speak for themselves.
11. On a consideration of the entire matter and the law as laid down by this Court in the case of Mahanth Vijay Das (Supra), this Court is satisfied that the impugned orders dated 23.7.2004 and the consequential orders dated 6.6.2006 and 26.6.2006 are illegal as being contrary to law and unurpation of powers. The same are accordingly set aside. In the totality of the matter, the records are remanded back to the Board which shall, if it so desires, proceed against the petitioner strictly in accordance with law as considered aforesaid.
12. The writ application is allowed to the extent indicated with the observations and directions contained therein.
13. No costs.