Anurag Krishna Sinha vs The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.7940 of 2015 ====================================================== Anurag Krishna Sinha S/o Late Gopal Krishna Sinha, P.S.- Kotwali, P.O.- G.P.O. Patna, District- Patna.

... ... Petitioner/s Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.

2. The Secretary, Department of Law, Government of Bihar, Patna.

... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Sunil Kumar, Sr. Advocate Mr. Abhay Shankar, Advocate Mr. Shayameshwar Kumar Singh, Advocate For the Respondent/s : Mr. P. K. Shahi, AG Mr. Ajay Behari Sinha, GA-8 Mr. Sanjiv Kumar, Advocate Mr. Amish Kumar, Advocate Mr. Neeraj Raj, AC to GA-8 Mr. Suryakant, AC to GA-8 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 29-02-2024

The challenge is to a legislation which took

over the Smt. Radhika Sinha Institute and Sachidanand

Sinha Library (for short ''the Institute & Library'') from its

Trustees for better management and development. Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 2/37

2. Learned Senior Counsel Sri. Sunil Kumar

appeared for the petitioner, who is the Trustee/Honorary

Secretary and the Chief Executive Officer of the Institute

and the Library. Learned Advocate General, Sri. P.K. Shahi,

appeared for the State.

3. The learned Senior Counsel appearing for

the petitioner referred to the earlier similar action of the

State to take over 'the Institute & Library' for which two

ordinances were brought out in the year 1983, which got

lapsed. On a challenge raised, a Division Bench of this

Court, despite the lapse, held that the vesting under the

ordinance will have an enduring effect. The Hon'ble

Supreme Court reversed the decision of the Division Bench

expressing surprise at the rejection of the writ petition after

taking note of the fact of both the ordinances having lapsed

without any legislative measure having been taken during

the currency of the ordinances. The vesting was adjudged to

be life-less by the Hon'ble Supreme Court. The judgment of

the Hon'ble Supreme Court was in the year 1996 and the

State did not attempt any action for long years. In the year

2015, again, the State came with the present legislation. Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 3/37

4. The impugned legislation does not disclose any

public interest on which the acquisition is made. Further

there is no compensation awarded to the trustees; the

legislation having provided for a maximum of a measly one

rupee for the legacy of a great son of Bihar, who was the

Chairman of the Constituent Assembly. The learned Senior

Counsel also graphically described the life of Dr.

Sachidanand Sinha and the history behind the formation of

the Trust; which completes a century as on this year. The

terms of the deed were specifically read over to impress

upon us the ownership vested on the Trustees, who are also

in the line of succession of Dr. Sachidanand Sinha and his

wife Smt. Radhika Sinha. They were continuously in

management of the affairs of 'the Institute & Library' for

the entire period in which the Trust was in existence and

had complied with every condition of the agreement entered

into with the State, which is produced as Annexure-2.

5. On the challenge to the Act, it is argued that it is

confiscatory in nature for reason of and compensation being

totally absent and there being no public interest disclosed,

which are necessary ingredients for enforcing the States Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 4/37

eminent domain under Article 300A of the Constitution of

India. The Act, as has been brought out, is violative of

Article 14 and Article 19(1)(g) of the Constitution.

6. The State lacks legislative competence to

enact a law on a trust and the trustees. 'the Institute &

Library' is covered under the Indian Trust Act brought out

under Entry 10 of the Concurrent list (List III) of Schedule

VII of the Constitution of India. An Act of the State

legislature, for acquisition of property, cannot impinge upon

the legislation brought out by the Union Parliament.

Reliance is placed on Hari Krishna Mandir Trust v. State

of Maharashtra & Others reported in (2020) 9 SCC 356,

wherein the essential ingredients for exercising the power of

eminent domain was laid out. Existence of public purpose

and adequate compensation are imperative in the State

action of an acquisition, both absent in the impugned

legislation.

7. Section 7 of the Act makes the compensation

illusory and renders the enactment confiscatory and

expropriate especially since the building was constructed with

the personal funds of the original settlor and the huge Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 5/37

collection of books, publications and periodicals also

belonged to the settlor. T.M.A. Pai Foundation & Other v.

State of Karnataka & Others reported in (2002) 8 SCC 481

is relied on to contend that the library and the access

provided therein is a systematic activity carried on by the

Trustees which they have a right to continue and cannot be

deprived of, unless there is overwhelming public interest

and adequate compensation paid. Reliance is also placed on

B.P. Sharma v. Union of India reported in (2003) 7 SCC

309.

8. Learned Advocate General on the other hand

points out that the Trust formed in 1926 was subject to a

metamorphosis when Annexure-A2 agreement was entered

into with the State in the year 1955. The State had been

funding 'the Institute & Library' till date, but the activities

have become defunct. The Library is kept open, but there

are no foot-falls therein. The activity of the Trust and the

objectives with which the Trust is formed has become

defunct for all practical purposes. The State which is

financing 'the Institute & Library' by grants-in-aid, intends

to infuse new life into the activities of 'the Institute & Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 6/37

Library', thus ensuring enduring recognition to the memory

of the original settlor. The preamble specifically speaks of

better management and development of 'the Institute &

Library', which is the public purpose with which the Act is

enacted.

9. The Bihar State Public Library and

Information Centre Act, 2008, was enacted in which Section 3

specifically speaks of State Libraries; which the Institute &

Library is, as per the agreement entered into in the year 1955.

Insofar as the contention, with respect to special enactment

having precedence above the general enactment, it is argued

that the principle has no application insofar as the Indian Trust

Act and the subject Act is concerned. The ownership of the

properties is sought to be taken over and since the enactment

itself in its Preamble speaks of development and better

management of 'the Institute & Library', this is the public

interest and there is no question of any digression from the

objectives of the trust.

10. Indian Trust Act is one to regulate the

activities of Trusts, its formation, its conduct, its revocation

and so on and so forth and does not affect the acquisition of Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 7/37

the property which is relatable to the ownership and not the

obligation of the trust; which is attached to such ownership.

Reliance is placed on Ishwari Khetan Sugar Mills (P) Ltd.

and Other v. State of Uttar Pradesh and Others reported in

(1980) 4 SCC 136 and Shri Krishna Gyanoday Sugar Ltd.

and Another v. State of Bihar reported in (2003) 4 SCC

378. While asserting that there is no question of

compensation, since the Institute had been run with the

funds of the State all through, the learned Advocate General

submits that they are open to any valid claims made by the

Trustees. It is also pointed out that the ownership of the

property in any event, is with the State since 'the Institute &

Library' is situated in a property given on lease, by the

State, for the establishment of 'the Institute & Library';

which would be continued after the State takes over the

Trust.

11. Learned Senior Counsel for the petitioner

would specifically refer to the interim order passed in the

above case and inform us that while the English version

speaks of a requisition, the Hindi version speaks of

acquisition. It is pointed out that the consequence of vesting Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 8/37

results in the deed of trust, deed of agreement and deed of

lease being deemed to be replaced and dissolved. There is

no question of the Trust being dissolved since it can only be

under Section 79 of the Indian Trust Act.

12. Learned Advocate General, on the other

hand, points out that the vernacular version of the

enactment has to be relied on and what was intended was an

acquisition of 'the Institute & Library' for a public purpose,

which is for its development and better management. As far

as the consequences of vesting, though the same is not

happily worded, it only intended that the Management

would be taken over by the State and all Committees and

Sub-Committees under the deed of trust would seize to have

any powers of administering the affairs of 'the Institute &

Library' after the enactment.

13. In controverting the ground raised of

impinging upon a Union legislation, the learned Advocate

General has placed before us the decision in Ishwari

Khetan Sugar Mills (P) Ltd. (supra) wherein the State of

Uttar Pradesh by a legislation, attempted to acquire

industrial undertakings involved in manufacture of sugar, in Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 9/37

larger public interest. One of the grounds of attack was that

the State legislature had no legislative competence; which

had two distinct limbs of argument. The first limb was that

under Entry 52, List-I, the Parliament enacted the Industries

(Development and Regulation) Act, 1951 (for brevity 'IDR

Act') wherein a declaration was made in Section 2 and

sugar industries were included in the First Schedule of the

Act. Hence it goes out of Entry 24, List-II; wherein the

State legislature has control over industries, only subject to

the provisions of Entries-7 and 52 of List-I. The learned

Judges, by a majority compared the declaration under

Section 2 of the IDR Act to Section 2 of the Mines and

Minerals (Regulation and Development) Act, 1957 (for

brevity 'M & M Act') under Entry 54, List-I. It was held

that the expression in the declaration under the M & M Act:

'to the extent hereinafter provided'(sic) and the absence of

such expression under the IDR Act was inconsequential. It

was held by majority that though Parliament was entitled to

make a declaration in respect of industry or industries under

Entry-52, List-I, in public interest, the control exercised is

not abstract and has to be concrete and specific. It was held Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 10/37

that the absence of the expression; 'to the extent herein

provided', while assuming control of the sugar industries,

would not lead to the conclusion that the control assumed

was something in abstract, total and unfettered de hors the

provisions of the IDR Act. In addition to this, the learned

Judges also delineated the trite principle of examining the

pith and substance of a legislation, when its validity is

challenged on the ground of absence of legislative

competence.

14. Reliance was placed on Union of India v.

H.S. Dhillon; (1971) 2 SCC 779, Kerala State Electricity

Board v. Indian Aluminium Co.; (1976) 1 SCC 466 and

State of Karnataka v. Ranganatha Reddy; (1977) 4 SCC

471 and the principle of examining the pith and substance

of an enactment was reaffirmed to find an incidental

trespass, incapable of invalidating the law. It was held: "If

in pith and substance a legislation falls within one entry or

the other but some portion of the subject-matter of the

legislation incidentally trenches upon and might enter a

field under another List, the Act as a whole would be valid

notwithstanding such incidental trenching." (sic paragraph Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 11/37

13). Looking at the provisions of the IDR Act, it was held

that it does not deal with the ownership of industrial

undertakings and is primarily concerned with the

development and regulation of the declared industries. The

power of the Central Government to assume direct

management or control of industrial undertakings would

survive even after the acquisition of scheduled undertakings

under the State Act, was the finding.

15. It was held that in pith and substance the

Act was one enacted under Entry 42, List-III and was not an

incidental power exercised under Entry 24, List-II. We

specifically extract Paragraph 25 of Ishwari Khetan Sugar

Mills (P) Ltd. (supra): -

"25. There is thus a long line of decisions which clearly establishes the proposition that power to legislate for acquisition of property is an independent and separate power and is exercisable only under Entry 42 List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists. This power of the State Legislature to legislate for acquisition of property remains intact and untrammelled except to the extent where on assumption of control of an industry by a declaration as envisaged in Entry 52 List I, a further Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 12/37

power of acquisition is taken over by a specific legislation."

16. In the minority judgment of two learned

Judges, they opined that the terms of the declaration under

the IDR Act limiting the control exercised by the Central

Government could be dealt with in an appropriate case;

which issue was not "sufficiently covered" before them in

the instant case. Still, there was concurrence insofar as the

impugned legislation; acquiring sugar industries, falling

within Entry 42 of List-III, not possible of being related to

either Entry 52 of List-I or Entry 24 of List-II. Looking at

the pith and substance of the enactment, it was held that the

legislation was one for acquisition of the undertaking and it

was not the exercise of an incidental power under an Entry

in the State list. In Shri Krishna Gyanoday Sugar Ltd.

(supra) the contention raised that Synthetics & Chemicals

Ltd. V. State of U.P (1990) 1 SCC 109 overruled Ishwari

Khetan Sugar Mills (P) Ltd. (supra) was negatived.

17. Likewise, the subject legislation, impugned

in the present writ petition, is one under Entry 42 of List-III,

in pith and substance. It is clearly the exercise of power of Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 13/37

acquisition, which does not even incidentally trench upon

the Indian Trust Act, as enacted under Entry 10 of List-III of

the VIIth Schedule. The arguments were addressed on an

assumption that the institution which is a Trust is a private

trust governed by the Indian Trust Act. We have our own

reservations, about such assumption, looking at the deed of

Trust authored by the settlor; but, for the moment, for the

sake of argument, we will assume it to be a private trust and

deal with the contention regarding the impugned legislation

trenching upon the power of the Parliament as exercised by

enacting the Indian Trust Act under Entry 10 of List-III of

the Seventh Schedule.

18. We have to immediately notice the statement of

Objects & Reasons of the Trust Act, which speaks of

codifying the law relating to Trusts. Hence, even a private

trust cannot be assumed to be one statutorily created under

the Indian Trust Act but all the same the creation and

functioning, would be regulated by the law as codified

under the enactment. We also have to specifically notice the

definition of Trust which is "an obligation annexed to the

ownership of property" (sic). Hence, the obligation travels Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 14/37

with the ownership of the property. Even if there is

acquisition of the property, as in the present case, for the

better administration of the Trust, the obligation travels with

such acquisition and annexes itself to the entity which has

acquired the property; which in the present case is the State.

19. As we observed above, we are not convinced

that the settlor intended the Trust to be a private trust and it

was not in fact, a private trust. The settlor was Dr.

Sachidanand Sinha and in Annexure-1, the deed of

declaration of trust, the trustees were stated to be the settlor

and those holding different public offices like, the Chief

Justice of the High Court of Patna, Member of the Executive

Council, Minister of Education of the Government of Bihar

and so on and so forth.

20. Pausing here, we have to state that the Bench

being comprised of the Chief Justice, we queried to both the

parties as to whether there is any objection in this Bench

hearing the matter; despite the fact that in the last nine

months of the Chief Justice assuming office there was not

even one meeting of the trustees convened. Both the learned

Senior Counsel categorically submitted that there is Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 15/37

no objection.

21. Coming back to the deed, the settlor first

recorded the cherished desire of his wife Smt. Radhika

Sinha to establish an institute with the object of "providing

the public of Patna and its neighbourhood with a place for

intellectual and social intercourse by founding an institute

comprising a library, reading room, a hall for public

meetings and social gatherings and also by providing

sufficient recreation grounds for healthy sports and games"

(sic). It is to give effect to the said desire of the settlor's

wife; the settlor wrote a letter to the first Governor of Bihar

and Orissa offering a sum of Rs. 50,000/- out of the sale

proceeds of the ancestral property of his wife for the

establishment of the institute. The Governor on being

requested by the settlor, accepted the office of Patron of the

said institute and on 28.03.1922 the foundation stone of the

Institute was laid and the settlor erected and completed

buildings for the Institute with the said sum of Rs. 50,000/-.

22. The settlor in addition to the aforesaid

amounts also made over to the said Institute the collection

of books, made by himself, numbering about 10,000 Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 16/37

volumes, of the approximate value of Rs. 1,00,000/-. 'the

Institute & Library' was thus opened at the inaugural

gathering on 09.02.1924 and the Trustees were declared as

having been appointed to hold and possess the said Institute

& Library upon the trust hereinbefore created. There was a

further sum of Rs. 50,000/- made over to the Trustees by

way of bank deposit for the maintenance and upkeep of the

said Institute & Library. The Trustees were also to hold and

possess the said messuages and premises as also the money,

books, furniture and appurtenances and any other property,

movable and immovable, for all or any of the purposes of

the presents. Hence, the dedication made by the settlor was

in favour of the public of Patna and its neighbourhood, an

unascertainable collective of people; the general public.

23. . Whether a trust is public one or a private

one, as held in Deoki Nandan v. Murlidhar AIR 1957 SC

133, is essentially a mixed question of law and fact. The

cited case, a classic case, decided the question whether a

Thakurdwara, a religious institution, was an endowment for

the public at large or a private one. The dedication, as in this

case, was admitted and the dispute was confined to the Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 17/37

scope of such dedication, to decide which, it was held, first

the principles of law are to be stated and the scope

determined on the application of the stated law. The

principles of law were stated thus; extracted from paragraph

5: -

5. ... The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. The position is thus stated in Lewin on Trusts, 15th Edn., pp. 15-16: "By public must be understood such as are constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description. To this class belong all trusts for charitable purposes, and indeed public trusts and charitable trusts may be considered in general as synonymous expressions. In private trusts the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained...." Vide also the observations of Mitter J. in Nabi Shirazi v. Province of Bengal [ILR (1942) 1 Cal 211, 227, 228] . Applying this principle, a religious endowment must be Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 18/37

held to be private or public, according as the beneficiaries thereunder are specific persons or the general public or sections thereof.

24. Even in the case of a temple, though the

idol installed therein has the status of a juristic person, it

was found that the established law is that the endowed

properties are owned by the idol only in an ideal sense. The

idol cannot use, enjoy, dispose of or even protect its

properties and hence has no real beneficial interest in the

endowment. Quoting from the authoritative religious texts,

it was found that the deity has no beneficial enjoyment of

the properties and its ownership is only in a figurative sense

and the true purpose of a religious endowment is not to

confer any benefit on the Gods, but to felicitate spiritual

benefit to the devotees. The dedication to a deity, thus is a

compendious expression of the pious purpose for which the

dedication is designed. Once the dedication to an idol is

understood in that perspective, then the question to be

decided is as to who are the beneficiaries, or in the case of a

temple, whether the intention of the settlor was to confer the

benefit of worship to specified individuals, the general Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 19/37

public or any specified portion thereof. The established

principle, based on the above theory, was held to be that, if

the dedication is for the worship of a family idol, then it is a

private endowment; for the benefit of an ascertained group

of individuals comprising only of the family members and

when the dedication is not to a family or a specified

individual or a group of individuals and is in favour of a

general body of worshippers, then the endowment can only

be regarded as public.

25. In Deoki Nandan (supra), to understand

the true nature of dedication, (i) the Will, which speaks of

the intention of the testator and the scope of dedication, (ii)

the user of the temple (iii) the ceremonies of consecration

and (iv) other facts were examined. The testator had two

wives and no issues and the construction of the

Thakurdwara was to install the idol. The income from the

properties were to be divided equally; one half going to the

two wives jointly and the other half to the Thakurdwara,

which after the death of the wives, was in its entirety, to be

used by the Thakurdwara. It provided for a contingency of a

son being born to the testator, in which event the properties Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 20/37

were to be divided equally between the son and the

Thakurdwara, which contingency never occurred. The

wives were to maintain accounts and the surplus, after

meeting the expenses, were to be deposited in a fixed

deposit, to be utilized as and when possible, for purchase of

properties in the name of the deity. A Committee of four

persons were appointed, of whom two were not the relatives

of the settlor, nor even from the same caste. After death of

the wives the Committee was given the option to appoint a

nephew, the defendant in the suit, as Mutawalli, but not

mandatory and only on unanimous opinion of the

Committee. There was also a clause specifically disentitling

any near or remote heir from raising any claim on the

property and any suit filed was stated to be improper on the

face of the deed. The recitals of the Will were held to reveal

indubitably, an intention to dedicate the Thakurdwara to the

public and not merely to the family members of the settler.

26. The Will, distinguished from a deed of

endowment; in the absence of the latter, the user was

established by way of evidence. The villagers examined,

deposed on their worship carried out freely and without any Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 21/37

interference and it was also stated that the construction was

made by the testator, at the instance of the villagers. Though

a dedication to a deity would survive even without any

ceremonies of consecration, in the cited case the dedication

and the ceremonies, made with great solemnity and in

accordance with the sastras were admitted by both sides.

The attendant facts, supporting an endowment in favour of

the public, were noticed as, (i) the idols having been

installed on a pedestal, (ii) that too in premises separate

from the residential quarters, (iii) the pujari being appointed

from time to time and (iv) the fact that there was no other

temple in the village, which supports the deposition

regarding the construction having been made at the request

of the villagers.

27. We are quite conscious of the fact that, the

present proceedings are not, one in which oral evidence is

led, but only on affidavit. However, we have to notice the

admitted facts as coming out from the deed. In Deoki

Nandan (supra) the evidence was looked into since there

was no deed of dedication as such; which in the present

case is available. As we noticed, the intention is clear and Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 22/37

the beneficiaries are the general public, 'the public of Patna

and its neighbourhood' (sic); an unascertainable mass

constituting the general public, for whom a place is

facilitated for 'intellectual and social intercourse' (sic), by

founding an 'Institute comprising a Library, Reading room

and a Hall for public meetings and social gathering' (sic).

The provision is also intended to be used as 'recreation

ground for healthy sports and games' (sic).

28. The Trustees are also four at (a) ex-officio

Trustees; the Chief Justice, the Prime Minister, Bihar,

(succeeded by the Chief Minsiter, Bihar) the Minister of

Education and the Vice-Chancellor of the Patna University.

The other trustees are, (b) two to be nominated by the

settlor or his representative, to be made within six months

of vacancy and on failure by the other Trustees, (c) eight to

be nominated initially by the settlor, for life, and on death

by the other Trustees and (d) the settlor; and after his death,

his legal heir. Hence the Trustees are not the family

members of the settlor and the settlor himself retains only

for himself a trusteeship which after his death devolves on

his legal heir. The character and status of the Trustees is Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 23/37

another pointer to the indubitable presumption that the

dedication was one for a public purpose and not a private

one; conferring on it all the characteristics of a public trust

and not a private trust. Thus, there is no application of the

Indian Trust Act; which even if applicable, we already held,

there arises no impingement on the legislative power of the

Parliament and there is not even an incidental trenching by

the impugned enactment.

29. In Union of India v. Nareshkumar

Badrikumar Jagad (2019) 18 SCC 586 (2019) 18 SCC 586

review filed by the Union of India was allowed finding

locus to file a review despite being a third party. A Trust

property was leased out to a mill which was taken over by

the National Textile Corporation Ltd. The lessor Trust filed

a suit for eviction which was decreed and it travelled up to

the Hon'ble Supreme Court wherein the Civil Appeal of the

NTPC was dismissed. The review was on account of a

Vesting Act by which the textile undertaking vested in the

Union. It was held that the statutory or protected tenancy

rights of the Mill stood transferred and vested in the Union.

The landlord Trust was required to take appropriate Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 24/37

recourse against the Union to get back possession of the

property. Hence, it cannot be the position at all that the

Trust property is absolved from any statutory vesting or

acquisition by reason only of its character.

30. The assertion that the Trust is a private one

covered under the Indian Trust Act also arises from Clause

12 of the deed, which reads as under: -

"(12). If for any reason whatsoever the trust under these presents shall fail, the entire trust property including the said Smt. Radhika Sinha Institute and Sachchidanand Sinha Library building, books, furniture, trust once given or settled by the settler together with all income accumulation and interest thereof shall revert back to and be vested in the settler or his legal representative."

31. This is also the provision based on which

the petitioner claims that the lack of compensation vitiates

the enactment as expropriate and one invalid. Answering

the ground of inadequate compensation, in the teeth of our

finding that the trust is a public one; the beneficiaries are

the public, an unascertainable group of people, the members

of which would be in the state of a constant flux. The legal Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 25/37

heirs of the original settlor derive no benefit from the

dedication, neither proprietary rights, on nor monetary

benefits from, the property, which is on a lease from the

Government. The buildings constructed, though with the

sale proceeds of the ancestral properties of the wife of the

settlor, clearly is dedicated in furtherance of the object of

the trust, as is the case with the books acquired by the

settlor in his lifetime for himself, but dedicated

unconditionally. B.P. Sharma (supra) has no application

since there is no professional activity involved in managing

the trust, which in any case is with the Committee of

Trustees and not the individual Trustee, the petitioner

herein.

32. In so far as the validity of the aforesaid

clause of reversion and vesting of all properties on the legal

heirs of the settlor, we need only refer to Radha Sundar

Dutta v. Mohd. Jahadur Rahim AIR 1954 SC 24. It was

held so in Paragraph 11 & 13: -

11. ... Now, it is settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein, while the other will render one or Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 26/37

more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim' ut res magis valeat quam pereat'.

xxx xxx xxx

13. ... If, in fact , there is a conflict between the earlier clause and the latter clause and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the latter clauses and not 'vice versa.'

Both these extracts apply squarely. The general purport of

the dedication being to constitute a public trust, the

extracted clause of reversion, would frustrate the very

object of dedication. In any event, the extracted clause (12)

being later to the earlier recitals; clearly demonstrating the

intention of the settlor, the objects and purpose would

prevail over the reversion to legal heir; which later clause

would be rendered nugatory.

33. We have also to pertinently notice that the

Trustees had substantially changed the management of the

affairs of the Trust, the nomination of the Trustees and the

manner in which the affairs of the Trust are carried out, by

bringing in the State Government as a major contributor in Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 27/37

furtherance of the objects of the Trust itself. This is evident

from Annexure 2, a deed of agreement executed on

20.04.1955

by the Trustees and the Governor of Bihar; who

executed it in the status of representing the Government of

Bihar. The agreement was executed pursuant to the

Government expressing an intention to raise 'the Institute &

Library' to the status of a Central Library for the State of

Bihar. The ownership and management of the land,

buildings, furniture, fixtures, books, and periodicals, as well

as other properties and assets, were to remain as, then

presently vested in the Trustees.

34. The Institute & Library were to be treated at

par with a Government aided educational institution of the

State and the Government was permitted the use of the

same as a State Central Library for the implementation of

any governmental scheme of Library reorganisation in the

State, subject to the restrictions as may be imposed by the

Trustees, which restrictions were also confined to external

circulation of the books and periodicals belonging to 'the

Institute & Library'. By the said agreement the Trustees

conceded to the Government the right to audit the accounts Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 28/37

of income and expenditure, especially for reason of the

financial assistance offered to cover the expenses, as

approved in the budget or supplementary budgets of 'the

Institute & Library'. The Trustees also conceded a set of

rooms in the Institute building, free of rent, for the

accommodation of the Office of the Superintendent of

Library, Bihar, who would also act as ex-officio Chief

Librarian of the Institute and the Library, responsible for the

general supervision of the working and administration of

'the Institute & Library', subject to the general control and

direction of the Trustees.

35. The Trustees were required to frame a set of

rules for regulating the employment and service conditions

of the staff, which had to be approved by the Government.

In addition to the ex-officio Trustees, four of the life-

Trustees were to be appointed from among the nominees of

the State Government. The disbursement of grants for any

structural improvements of fresh constructions to be made,

as sanctioned by the Government could further impose

conditions as the Government desires.

36. It was also specifically stated that on breach Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 29/37

of the terms of the agreement, the Government may, at their

discretion, stop all further grants to 'the Institute & Library'.

For all intend & purpose, the management of 'the Institute &

Library' stood transferred to the Government; who as

submitted by the learned Advocate General, has been

financing 'the Institute & Library' from that date. The

subject enactment was only to vest the Trust and its

properties, in the Government for better functioning and also

for furtherance of the objects of the Trust, for which the

dedication was made by the settlor, as evidenced from the

original deed of dedication. It has to be immediately noticed

that the State on takeover cannot digress from the objects of

the Trust and the same has to be followed through.

37. The only right retained with the Trustees,

after Annexure-2 agreement were; (i) ownership and

management of the land, buildings, furniture, fixtures, books,

and periodicals, as well as other properties and assets then

vested in the Trustees, (ii) restrictions as may be imposed by

the Trustees of external circulation of the books and

periodicals belonging to 'the Institute & Library' and (iii) the

general control and direction of the Trustees, which Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 30/37

by the subject enactment cease to exist in the Trustees.

38. The petitioner herein, the Executive Officer,

as we have already found, had neither proprietary interest

nor monetary benefits flowing to him from the Institute &

Library nor was it a professional activity, which he in any

case is demonstrably, not qualified to undertake. As evident

from Annexure-2 one qualified so to do, the Superintendent

of Libraries, Bihar, was appointed as the ex-officio Chief of

the Library; even earlier to the vesting and with consent of

the Trustees.

39. The learned Senior Counsel appearing for

the petitioner had placed considerable reliance on Hari

Krishna Mandir Trust (supra), in which the proprietary

rights of a Trust relating to an immovable property was

considered in the teeth of Article 300(A) of the Constitution

of India, which was found to include proprietary/hereditary

interest in the right of management of a religious

endowment. The deprivation of such property, though

possible under a legally initiated acquisition proceedings in

public interest, would necessarily have to be compensated,

irrespective of the purpose for which the acquisition is Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 31/37

made. Failure of payment of compensation would result in

deprivation of property without specific legal authority.

40. There was no question dealt with in the said

case of whether the Trust was a private one or a public one.

The Trust had acquired the property by way of a valid sale

effected by the owner. Contiguously lying properties

included in one plot assigned by the Municipal Corporation

(for brevity, 'the Corporation') were divided into four, two

of which remained with two individuals, the third with the

Trust, and the fourth, a private road, which was shown in

the records as being in the name of the two persons

managing the Trust, who had purchased it from the original

owner. There was no question of acquisition of the Trust

property, since 'the Corporation' records also showed the

property in the name of two individuals; the father and

daughter. Despite repeated communications issued by 'the

Corporation' that the private road was in the name of the

two individuals, who were running the Trust in the said

property, the authorities found that 'the Corporation' is the

owner in respect of the land, and there is no reason to

assume that the Trust would permit the other two property Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 32/37

owners, the user of the road.

41. The reliance placed on Section 88 of the

Regional and Town Planning Act 1966 to assert vesting of

the land in 'the Corporation', was held to be not possible,

only on reading the said provision in isolation. It was found

that there was a provision for compulsory acquisition of

land for the purposes of a regional plan, development plan,

or town planning scheme which had not been done in the

proper manner. It was found that the proper consideration of

Section 88 enables vesting only when the land is acquired

for the purposes of a development scheme. Further, it was

held that 'the Corporation' cannot be considered to have any

right over the land, and in any event, the holder of the land

had conceded easementary rights to the owners of the other

two lands. 'the Corporation' was never shown as the owner

of the private road, and the road was held jointly by the

three property owners. It was in that context that it was held

that, though the right to property is not a fundamental right,

it is still a constitutional right under Article 300(A) and a

human right; deprivation of which can only be by legally

permissible measures enabling due compensation to be paid Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 33/37

to the person who is deprived of such rights. The vesting, as

per the impugned enactment, divests the Trustees of the

minimal authority that remained with them after Annexure-

2 and vests the complete obligation of the Trust, on the

Government of Bihar.

42. In the present case, we have already found

that the beneficiaries are an unidentified, unascertained

group of persons comprised of the public in Patna and its

neighbourhood; making the Trust a Public Trust. The

petitioner herein, who was the Executive Officer, we

reiterate, did not have proprietary rights, nor could he draw

any monetary benefits from his office as Executive Officer.

He had not been carrying on any professional activity, and

for all purposes, 'the Institute & Library' was financed by

the State Government and the State Librarian was acting as

the ex-officio Chief Librarian of the Library who was all

entrusted with the responsibility of the general supervision

of the working and administration of 'the Institute &

Library' subject only to the general conduct and direction of

the Trustees.

43. The Trustees themselves had given over the Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 34/37

reins of the administration to the State Government for the

purpose of financing the functioning of 'the Institute &

Library'. The acquisition now made is only one step further

in taking over the entire control of 'the Institute & Library',

which is a public Trust. The public interest is clear from the

recitals 'for better management and development' in the

Preamble of the enactment. It also indicates the intention of

the State Government to carry on the objects of the Trust,

the intention behind the dedication made; to further such

intention of the settlor and fulfil the desire of the settlor's

wife.

44. Shri Krishna Gyanoday Sugar Ltd. (supra)

was also a challenge to the enactment of the State

legislature providing for the acquisition and transfer of

certain sugar undertakings in the State of Bihar. As noticed

from Ishwari Khetan Sugar Mills (P) Ltd. (supra), the

acquisition impugned falls under Entry 42 of List III, which

was reaffirmed, finding that an examination of the mutually

competing claims of Entry 7 and Entry 52 of List I and

Entry 24 of List II is not at all necessary. Rustom Cavasjee

Cooper (Banks Nationalisation) v. Union of India; (1970) Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 35/37

1 SCC 248 was relied on and the following extracts was

made;

..."in its normal connotation "property" means "the highest right a man can have to anything, being that right which one has to lands or tenements, goods or chattels which does not depend on anothers' courtesy; it includes ownership, estates and interests in corporeal things, and also rights such as trademarks, copyrights, patents and even rights in personam capable of transfer or transmission, such as debts; and signifies a beneficial right to or a thing considered as having a money value, especially with reference to transfer or succession, and to their capacity of being injured".

45. The expression undertaking in the impugned

Act was found to be clearly meaning a going concern with

all its rights, liabilities, and assets. As already held by us, in

the present case, the Trust as such has been acquired by the

State, the beneficiaries of which is the general public of

Patna and its neighbourhood, and the petitioner, who is only

the Chief Executive Officer, is not deprived of any right

which has a monetary value. There is no injury caused to

him insofar as the object of the Trust, as intended by his Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 36/37

predecessor, who was the settlor, would be carried on

further by the State Government. The mere difference in the

terms employed in English and in the vernacular,

respectively, being requisition and acquisition, is

inconsequential.

46. The vesting occurs of 'the Institute &

Library' on the State Government for the purpose of better

management and development of 'the Institute & Library'.

The objects of the Trust cannot be digressed from by the

State Government nor is it intended to be, as is disclosed

from the impugned enactment. Whatever rights, powers and

duties that remained with the Trustees, in the management

of 'the Institute & Library' as was available after Annexure-

2 agreement was entered into, would also vest completely in

the State Government by the impugned enactment.

47. We find absolutely no reason to entertain the

writ petition and dismiss the same but hasten to add that the

vesting does not absolve the State Government from

carrying on the objects of the Trust; which obligation

attaches itself to the Trust taken over by the State

Government, who has the responsibility to further the Patna High Court CWJC No.7940 of 2015 dt.29-02-2024 37/37

intention of the original settlor.

48. The writ petition stands dismissed without

any order on costs.

(K. Vinod Chandran, CJ)

Rajiv Roy, J. I agree

( Rajiv Roy, J) Sharun/PKP-

Aditya/-

AFR/NAFR AFR CAV DATE 08.01.2024 Uploading Date 29.02.2024 Transmission Date