JUDGMENT
Ramaswami, J.
1. In this case the petitioner Sree Bhabaprita-nanda Ojha has moved this Court for a writ in the nature of certiorari against respondents 1 and 2 for calling up and quashing the proceedings started against the petitioner under the Bihar Hindu Religious Trusts Act (Bihar Act I of 1951).
2. The petitioner is the High Priest of a temple which is well-known as Baidyanath Dham and which is situated” in the town of Deoghar in the district of Santal Parganas. The history of the temple is lost in the mist of antiquity. According to Hindu tradition, the temple was built in “Treta Yuga” the age of the events narrated in the Ramayana. The popular belief is that the temple was established by Ravana, the King of Demons. It appears that in the year 1791 the ancestor of the petitioners Sree Ramdutta Jha executed an engagement with the then Collector Mr. C. Keating on behalf of the British Government. This engagement is dated 19-9-1791 and since that date the family of the petitioner is managing the affairs of the temple including the puja and other temple ceremonies. The properties of the temple are lying mostly in the State of Bihar but there are some properties located in the districts of ‘Burdwan’, Murshidabad and Bir-bhum in the State of West Bengal.
In the year 1897 the temple became the subject-matter of litigation. In that year a suit was filed under Section 539 (corresponding to the present Section 92), Civil P. C., in the Court of the District Judge of Burdwan. The suit was decided on 4-7-1901 and it was held by the Additional District Judge that the temple properties belonged to a public trust and the High Priest who held the office at that time should be removed on account of mismanagement. By the same judgment the Additional District Judge prepared a scheme for the better management of the trust properties and appointed a committee of three persons to supervise the management of the temple and of its properties and to give general directions for its proper administration. The Judge further held that according to the usage and custom of the temple, the petitioner being the eldest grandson of the then High Priest, was entitled to be appointed as High Priest of the temple; but on account of the petitioner’s minority-another person of the family was duly appointed as High Priest.
The judgment of the Additional District Judge was affirmed on appeal by the Calcutta High Court. The judgment of the Calcutta High Court is reported in — ‘Shilejananda Dut Jha v. Umesha Nunda Dut Jha’, 2 Cal LJ 460 (A).
Thereafter difference arose between (he High Priest and the committee. The matter was heard and decided by the District Judge of Burdwan and on appeal, by the Calcutta High Court. On 8-7-1910 a Bench of the Calcutta High Court modified the scheme and inserted two additional Clauses (1) “Liberty to any person interested to apply to the District Court with reference to the carrying out of the directions of the scheme”, and (2) “Liberty to any person interested from time to time to apply to the High Court for any modification of the scheme that may appear to be necessary or convenient”. In a later judgment dated 5-9-1912 the Calcutta High Court gave further directions to the committee (1) that the committee must prepare an annual budget of income and expenditure, and (2) that the committee should not be allowed to unduly interfere in the internal management by the High Priest. This judgment is reported in — ‘Umeshnanda Dut Jha v. Ravaneshwar Prasad’, 17 Calcutta Weekly Notes 841 (AD. The matter again came up before the Calcutta High Court on 9-2-1917 & it was held by Woodroffe and Beachcroft JJ. that an application for carrying out the directions of the scheme must be made not to the Deputy Commissioner of Nya Dhumka but to the District Judge of Burdwan.
3. The petitioner alleges that in August 1952 the President of the Bihar State Board of Religious Trusts acting under Section 59 of the Act required the petitioner to furnish a statement in respect of the properties under his charge. The petitioner made protest saying that the temple was already subject-matter of a scheme framed by the Calcutta High Court and that if the petitioner carried out the order of the President there might be conflict with the direction of the Calcutta High Court. The objection was overruled by the President who demanded from the petitioner a sum of Rs. 1,684 and odd as fee. The petitioner submits that it is impossible for him to comply with the demand of the President as this item of expenditure is not included in the scheme which had been framed by the District Judge of Burdwan and approved by the Calcutta High Court. The contention of the petitioner is that the Bihar Religious Trusts Act cannot apply to Baidyanath temple and that it could not have been the intention of the Bihar Legislature that the Act should apply to the case of a temple which was managed under the directions of a High Court situated outside the territorial limits of Bihar.
4. The question therefore which arises in this case is whether the Bihar Act I of 1951, properly construed, applies to Baidyanath temple which is administered under a scheme prepared by the District Judge of Burdwan and approved by the Calcutta High Court on appeal.
5. The Advocate-General submitted that the Act would apply to the Baidyanath temple which is located within the territorial limits of Bihar and which also possessed properties within those limits. Counsel based his argument on Sections 2(1), 3 and 4(5) of the Act. Section 2(1) defines ‘religious trust’ to mean any express or constructive trust created or existing for any purpose recognised by Hindu Law to be religious, pious or charitable. Section 3 declares that the Act shall apply to all religious trusts, whether created before or after the commencement of this Act, “any part of the property of which is situated in the State of Bihar”. Section 4(5) states that Section 92, Civil P. C., 1908, shall not apply to any Hindu Religious Trust in the State of Bihar. Counsel put forward the argument that if these sections are construed in a plain and grammatical sense, the Baidyanath temple would fall within the ambit of the Act and the proceedings started by the President against the petitioner under the Act were valid.
The opposite view point was presented by Mr. P.R. Das on behalf of the petitioner. It was argued on petitioner’s behalf that if the Act applied to his case there would be serious conflict of jurisdiction. The petitioner was on the one hand bound to obey the directions of the Calcutta High Court under the scheme. For instance, the petitioner cannot-lawfully pay the 5 per cent, contribution to the President of the Bihar Board without the sanction of the Calcutta High Court. If the petitioner makes payment without such sanction he would be liable to be punished for contempt by proceedings taken in the High Court,
On the contrary, if the petitioner makes default in carrying out the Board’s orders, he is liable to be prosecuted under Section 67 of the Act. His properties may be attached also in execution of certificate under Section 70(4). He may be even removed from the position of a trustee under Section 28 (h). Mr. P, R. Das submitted that the petitioner cannot be asked to serve two masters and the Court ought not to put such construction on the statute as would involve this consequence.
6. In my opinion the argument of Mr. P.R. Das is correct. If the statute is construed in its plain and grammatical sense, there would be conflicting orders between two jurisdictions. Complications and difficulties would arise if the two authorities hold conflicting views as to the proper way of dealing the trust properties. The petitioner cannot serve two masters at the same time and if there are conflicting orders the petitioner would be placed in an impossible situation. These results are so startling that I must reject the interpretation which leads to them. In a case of this description the rule of construction is well-settled. It is a matter of great public importance that there should be as far as possible no conflict or clash of jurisdiction between two equally competent authorities. The principle at stake is the principle of comity.
In — ‘Jopson v. James’, (1908) 77 LJ Ch 824 (B)’, Farewell, L. J. states :
“The existence of concurrent jurisdiction renders very necessary the observance of a comity between those jurisdictions the disregard of which would lead to most unfortunate friction. Two points appear to me to be usual on considering whether the Court should have regard and defer to a jurisdiction with which it may come in conflict, or whether the Court can fairly expect that other jurisdiction to defer to it. One is priority in time, and the other is the extent of the relief asked for or obtainable in the other jurisdiction. Now, in the present case there is really no question that the comity between two conflicting jurisdictions ought to have been exercised by the Vice-chancellor in favour of the Nova Scotian Court.”
That is the principle of comity of jurisdiction and in the matter of construction of a statute the presumption is that the Legislature did not intend that the statute should be inconsistent with the principle of comity or with the established principle of international law.
That is the rule of construction and in –‘Bloxam v. Favre’, (1883) 8 PD 101 (C), a will made according to the forms of English law, but not according to the law of her domicil, by a person who was domiciled abroad at the time of her death, was held not to be entitled to probate in England, though her domicil of origin was English. It was said that
“every statute should be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations or with the established rules of international law.”
The law is stated by Maxwell as follows :
“Under the same general presumption that the legislature does not intend to exceed its jurisdiction every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations, or with the established rules of international law. If, therefore, it designs to effectuate any such object, it must express its intention with irresistible clearness to induce a Court to believe that it entertained it, for if any other construction is possible, it would be adopted to avoid imputing such an intention to the Legislature.” (Maxwell — Interpretation of Statutes, 8th edition p. 130.)
Applying the principle to the present case it is manifest that the expression ‘religious trust’ in the title and preamble and in Sections 2(1) and 3 must be construed not in the plain and grammatical sense but must be cut down so as to exclude such religious trusts which are administered under a scheme prepared by Court outside the territorial limits of Bihar. If this view is correct it follows that Bihar Act I of 1951 does not apply to Baidyanath temple and the President has no jurisdiction to take any proceeding against the petitioner under any of the sections of the Act.
7. The question may be examined from another aspect. In the course of argument the Advocate-General laid much stress on Sections 29(1) and 29(2) of the Act. Section 29(1) states : "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)", Section 29(2) enacts:
“The Board may supersede any committee or association referred to in Sub-section (1) which, in the opinion of the Board, is not discharging its functions satisfactorily and, if the Board does so, ‘any decree or order of a Court or authority by which such committee or association was constituted shall be deemed to have been modified accordingly’.”
The Advocate-General put forward the argument that Sections 29(1) and 29(2) contemplate that even if the trust is administered under a scheme prepared by Court, the President of the Board of Trustees has authority to superintend and control the trust and even to supersede the committee in which case the decree of the Court “would be deemed to have been modified to that extent”. The argument was that the President had authority to take proceedings against the petitioner and the Legislature contemplated that the decree of the Calcutta High Court should be modified to corresponding extent. If this interpretation is correct, Section 29 would be extra-territorial in its effect and would be unconstitutional and void. The impugned Act
was enacted by the Bihar Legislature in exercise of the authority conferred by Article 245(1) of the Constitution.
‘Article 245(1) states:
“Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State”.
Article 245(2) is important. Article 245(2) de-clares that “no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation”. Reading Articles 245(1) and 245(2) together, it is plain that a State Legislature has no authority to legislate for territories outside its jurisdiction or to promulgate laws that may have extra-territorial application or affect a decree of a Court located beyond its jurisdiction. The general principle is that the exercise of civil jurisdiction is conditioned by territorial limits. The basis of civil jurisdiction is the principle of effectiveness — or to borrow the language of Holmes J. “the foundation of jurisdiction is physical power” — ‘McDonald v. Mabee’, (1917) 37 S. C. 343 CD).
The position was clearly stated by Lord gelbourne in the leading case of — ‘Sirdar Gurdyal Singh v. Maharaja of Faridkote’, (1894) A. C. 670 (E).
“All jurisdiction is properly territorial and ‘extra-territorium jus dicenti impune non-paretur’. Territorial jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the territory while they are within it; but it does not follow them after they have withdrawn from it; and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movable within the territory”.
The principle applies not merely to the jurisdiction of a judicial tribunal but to exercise of legislative jurisdiction.
It is relevant in this connection to quote a passage from the judgment of the Supreme Court of America in — ‘City of St. Louis v. Wiggins Perry Co.’, (1870) 11 Wall 423 at p. 430 (F) :
“If the legislature of a State should enact that the citizens or property of another State or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manlier whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action.”
In the light of this principle and specially in the light of Article 245(1) of the Constitution it must be held that the Legislature of the Bihar State has no power to make laws which would have extra-territorial application or which would affect the decree of a Court which is located outside its jurisdiction.
8. If this is the correct view, the wider interpretation of Section 29 for which the Advocate-General contends would make the operation of the Act unconstitutional. Mr. P.R. Das contends, on the contrary, that Section 29 must be construed to apply only to such religious trusts, the supervision of which is vested in a committee appointed by a competent Court located within the territorial limits of Bihar. If this restricted interpretation is adopted, the operation of the Act would be intra vires. In a situation of this kind the principle-to be applied is clear. The principle is that if two constructions of a statute are possible, one of which would make it intra vires and the other ultra vires, the Court must lean to that construction which would make the operation of the Act intra vires. The reason is that no intention can be imputed to the Legislature that it would exceed its own jurisdiction. On the contrary the Court must presume that the Legislature in en-acting the statute was dealing with things or persons within its own jurisdiction.
In — ‘Macleod v. Attorney General for New South Wales’, (1891) AC 455 (G), the Legislature of New South Wales had enacted a law providing that
“whosoever being married marries another persort during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years.”
The appellant who had during the life-time of his wife married another woman in the United States of America, contended that the Court had no jurisdiction to try him for the alleged offence, since the Act under which he was tried, according to its true construction was limited to offences committed within the jurisdiction of the local. Legislature by persons subject at the time of the offence to its jurisdiction; and that upon any other construction the Act would be ultra vires The Judicial Committee observed that if the statute was constructed as it stood and upon the bare words, any person, married to any other person, who married a second time anywhere in the habitable globe, was amenable to the criminal jurisdiction of New South Wales, if he could be caught in that Colony.
The Judicial Committee observed :
“It appears to their Lordships that the effect of giving the wider interpretation to this statute necessary to sustain this indictment would be to comprehend a great deal more than Her Majesty’s subjects; more than any persons who may be within the jurisdiction of the Colony by any means whatsoever; and that, therefore if that construction were given to the statute it would follow as a necessary result that the statute was ultra vires of the Colonial Legislature to pass. Their Lordships are far from suggesting that the Legislature of that Colony did mean to give to themselves so wide a jurisdiction. The more reasonable theory to adopt is that the language was used, subject to the well known and well considered limitation, that they were only legislating for those who were actually within their jurisdiction, and within the limits of the Colony.”
9. Applying the principle to the present case, it is plain that Section 29 must be read in a restricted sense and the Board of Religious Trusts has authority to exercise supervision and control only on such religious trusts of which supervision is vested in a committee appointed by a competent Court within the territorial limits of Bihar. It is admitted that Baidyanath temple is managed under a scheme prepared by the District Court of Burdwan and affirmed by the High Court of Calcutta on appeal. These courts are located outside the territory of Bihar, and the Bihar Legislature has no jurisdiction to enact legislation directly modifying the decrees of these Courts.
10. For the reasons expressed I think that Bihar Act 1 of 1951 has no application to Baidyanath temple and the President of the Board of Religious Trusts has no jurisdiction to proceed against the petitioner under any of the provisions of the Act. I hold that a writ in the nature of certiorari must be issued against respondents 1 and 2 quashing the proceedings drawn up against the petitioner under Sections 59 and 70 of Bihar Act I of 1951. I further hold that a writ in the nature of prohibition must be issued against respondents 1 and 2 commanding them not to take further proceedings against the petitioner under Bihar Act I of 1951.
11. I would accordingly make the rule absolute and allow the application. There will be no order as to costs of this application.
Sinha, J.
12 I agree.