JUDGMENT
D.P. Mohapatra, A.C.J.
1. On being referred by Division Bench, these cases have been placed before us to consider the question as to whether the decision of the Full Bench of this Court reported in 1992 (II) OLR 330 (Khetramohan Rout and Ors. v. Sri Sri Nageswar Mahadev and Ors.) requires “rethinking”, it goes without saying that if the question is answered in the affirmative, the matter is to be placed before a larger Bench.
2. The relevant portion of the reference order reads as follows :
“In our view. Section 8-B merely empowers the named authorities therein to exercise powers under any of the provisions of the Act on being satisfied that the institution in question is a public religious institution. While exercising such powers under any specific provision of the Act, the authority exercising the power has to examine whether power under that particular povision is available to be exercised. Section 8-B cannot afford any further power or lend any assistance to the named authorities for exercise of powers under any other provisions of the Act, if the same is not permissible in accordance with the provisions of that Section. We, therefore, feel that the decision in the Full Bench case deserves a rethinking. The matter, therefore, be placed before the Hon’ble Chief Justice for appropriate steps to be taken for referring the matter to a Larger Bench.”
3. We may briefly trace the history. A Bench of this Court in Bhramarbar Santra and Ors. v. The State of Orissa and Ors. reported in Vol. 36 (1970) CLT 897, had the occasion to analyse the legal position as regards the appointment of trustees in respect of a religious institution in exercise of powers under Section 27 of the Orissa Hindu Religious Endowments Act, 1951, (for short, “the Act”). It was conceded in that case that without first recording a finding that a prima facie case was established that the institution was public and the petitioners were not the hereditary trustees, the order for appointment of non-hereditary trustees under Section 27 of the Act and the direction for delivery of possession under Section 68 are without jurisdiction. The Court recorded the aforesaid concession with approval. Their Lordships also observed that marfatdari right itself is a property right and they cannot be divested of the same without a finding that the institution is public and they are not hereditary trustees thereof. The moot question which arose for consideration in that case was whether the Assistant Commissioner in a proceeding under Section 27 of the Act could determine the question as to whether the institution is public or private and whether there are hereditary trustees or not. Their Lordships observed that Section 27 does not in terms lay down that the Assistant Commissioner should make an inquiry on these matters.Their Lordships, therefore, concluded that there must have been a prior determination that the institution is public in nature with no hereditary trustees before appointment of trustees is made under Section 27 of the Act.
4. The aforesaid decision came to be challenged before the Supreme Court. The apex Court in its judgment reported in AIR 1976 SC 2059 (Hindu Religious Endowments and Ors. v. B. Samantra and Ors.) observed as follows :
“…For the exercise of the power by the Assistant Commissioner under this Section (Section 21), it is therefore, absolutely necessary that either there should be no dispute about the public nature of the institution and the non-existence of hereditary trustees or in case, there is a dispute about any of these matters, a prior determination of such dispute under Section 41 of the the Act has been made. With such preliminary determination if an appointment of non-hereditary trustee is made under Section 27 of the Act and a direction is given regarding delivery of possession of the institution etc. under Section 68 of the Act, it would be manifestly illegal and without jurisdiction. A careful scrutiny of the provisions of the Act makes this position amply clear. As pointed out by the High Court, Section 27 does not in terms provide that an Assistant Commissioner should make an enquiry as to whether the institution is public or private and whether there are hereditary trustees of the institution or not. These questions have to be gone into under Section 41 of the Act which specifically deals with the investigation and decision of disputes in respect thereof. Consequently, a prior determination under Section 41 that the institution is public and has no hereditary trustee is a sine qua non for appointment of trustees under Section 27 of the Act.”
The conclusion on the point was stated in the following words :
” There can, therefore, be no manner of doubt that the Assistant Endowments Commissioner has no jurisdiction to appoint a non-hereditary trustee of a religious institution under Section 27 of the Act, without prior determination of the question that the institution is a public one and has no hereditary trustees.”
5. After the pronouncement of the judgment of the apex Court, the Act came to be amended by Orissa Act 29 of 1978. By the said amending Act, Section 8-B was inserted, which reads as follows :
“Section 8-B (1). Notwithstanding anything contained in any other provision of this Act the Commissioner, the Deputy Commissioner and the Assistant Commissioner shall have power to take action under any of the provisions of this Act in respect of any institution, if on information received or otherwise, they are satisfied that such institution is a religious institution within the meaning on this Act.
(2) For the removal of doubt, it is hereby declared that where any person disputes such action on the ground that the institution is not a religious institution within the meaning of this Act he may raise a dispute as provided in Section 41.”
6. The question that arises for consideration is whether the ratio of the decision of the Supreme Court reported in AIR 197C SC 1959 {supra) continues to hold the field after introduction of Section 8-B in the Act by aendment by Orissa Act 23 of 1978.
7. In Khetrarnohan Rout’s case (supra) the Full Bench considered the point whether the Assistant Commissioner can appoint a non-hereditary trustee in respect of a religious institution other than a Math in exercise of his powers under Section 27 of the Act without prior determination of the fact if there is a hereditary trustee or not in a dispute case visualised by Section 41 of the Act, after the Act had been amended by insertion of Section 8-B by the Orissa Act 29 of 1978. Considering the respective arguments of the counsel appearing for the parties, the Court observed :
“As we have to assign meaning to every part of a statute, vm cannot ignore the fact that Section 8-B (1) starts with a non obstante clause. The headings of Section 8-B also may be noted, though the headings do not conclusively decide the sweep of the section; but then, that is one of the internal aids of interpretation. The heading of the section is ‘power of authorities to act without initiating proceedings under Section 41’. The word used in the heading is not ‘proceeding’ but “proceedings’. So, all types of proceedings under Section 41 of the Act were intended to be taken care of by Section 8-B of the Act
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Now if anything laid down In Section 41 of the Act were to control the power of the Assistant Commissioner under Section 27 of the Act despite the non obstante clause, the result would be that the former provision which woukS continue to provait over the latter would make the non obstante clause nugatory, which effect has to be avoided. May we point out that Section 8-B (1) permits the named authorities to take action tinder “any of the provisions of the Act, which would take within its fold taking of action under Section, 27. So, Section 41 cannot override Section 27 power.”
Paragraph 20 of the Judgment which is very relevant for the present purpose reads as follows :
” Because of the above. Section 8-B (I) of the Act, containing the non obstante clause and having stated that the named authorities shall have power to take action under any of the provisions of this Act, would empower, according to us, an Assistant Commissioner to take under Section 27 of the Act, once the Assistant Commissioner is satisfied that such an institution is a religious institution. To hedge this power with the further requirement that the Assistant Commissioner must also be satisfied that there is no hereditary trustee would be adding words to Section 8-B, which is not permissible. This statement of ours may not be understood to read that the power under Section 27 can be exsrcised even if there be a hereditary trustee. This cannot be. But then, the Assistant Commissioner, before exercising power under that section, need not await a datermination of this question in a proceeding initiated or to be initiated under Section 41 of the Act, The absence of a hereditary trustee being a condition precedent for exercise of the power under Section 27 of the Act, the Assistant Commissioner shall have to record, while exercising this power, as to why he is of the opinion that there is no hereditary trustee of the religious institution. This satisfaction may be arrived at on the basis of materials placed before the Assistant Commissioner, for which purpose, he may go in for a summary inquiry only, as indicated in paragraph 27 of Bantala’s case by the Supreme Court. This may be because of the fact that while exercising power under Section 27 of the Act, the Assistant Commissioner does not perform a quasi-judicial function; his action under this section may, strictly speaking, be regarded as an administrative act, as opined in Rajkishore v. Commissioner of Endowments: AIR 1979 Ori. 169, to which our attention is invited by Shri Naidu.”
Further clarifying the position, it was observed in paragraph 21 of the judgment :
“We may make it clear that the view taken by us could not in any way adversely affect the interest of a hereditary trustee because it is admitted at all hands that despite an order passed under Section 27 of the Act, it would be open to the trustee is question to raise a dispute about his being so under Sec, 42 of the Act, which proceeding, if it terminates in favour of the trustee, would override the order passed under Section 27 of the Act appointing a non-hereditary trustee. It would also be permissible, according to us, an approach being made to an Assistant Commissioner under Section 41 of the Act, to pass such interim or er as would be deemed necessary by him in exercise of the power conferred by Section 8 (2) of the Act. There is no dispute before us that a dispute under Section 41 of the Act has to be treated as a ‘proceeding’ of which mention has been made in Section 8 (2) of the Act.”
In paragraph 22 of the judgment, the Full Bench observed thus :
” While on the question of remedy available to a person claiming to be a hereditary trustee despite appointment as non-hereditary trustee in exercise of power under Section 27 of the Act, we may state that apart from Section 41 being there to help him, he can also approach the Commissioner in revision against the Commissioner’s order by invoking the power of the former under Section 9 of the Act.
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It is apparent that to enable the revisional authority to examine these aspects of the order, the Assistant Commissioner must give reasons, may be short and precise, in support of his order. As such, the view we have taken would not confer an uncontrolled or uncontrollable power on the Assistant Commissioner.”
8. Shri R. K. Mohapatra, learned counsel appearing for the petitioners, did not seriously dispute the position that finding of the Fuli Bench in the case of Khetramohan Rout (supra) that deternrination of the question whether the institution is an excepted one or not and whether there is hereditary trustee in the institution under Section 41 of the Act, cannot be held to be a sine qua non for exercising of power before appointing a non-hereditary trustee under Section 27 of the Act in view of the provisions in Section 8-B of the Act. He, however, strenuously urged that the observation in paragraph 20 of the Full Bench decision that “this satisfaction may be arrived at on the basis of materials placed before the Assistant Commissioner, for which purpose he may go in for a summary inquiry only, as indicated in paragraph 27 of Bantala’s case by the Supreme Court” is erroneous which needs reconsideration. According to Shri Mohapatra perusal of paragraph 27 of Bantala’s case would show that there was practically no inquiry held before the Assistant Commissioner exercising power under Section 27 of the Act. Such a position cannot be envisaged in view of the fact that by appointment of a non-hereditary trustee, a marfatdar of the institution who claims to be a hereditary trustee will be deprived of the right of the management of the property of the institution. Shri Mohapatra further contends that the inquiry, though summary in nature should be quasi-judicial. In other words, the Assistant Commissioner, should call for objection, give opportunity of hearing and if necessary, ask the objector to adduce evidence.
9. The learned Advocate-General appearing for the State submitted that Section 27 read with Section 8-B contemplates that the Assistant Commissioner should be satisfied that the institution is a public one and further that there is no hereditary trustee in the institution. After arriving at the satisfaction regarding the two conditions for appointment of a non-hereditary trustee, the Assistant Commissioner is to hold such summary Inquiry as he considers nacessary m the facts and circumstances of the case.
10. We have perused the judgment of the Full Bench in the case of Khetramohan Rout (supra) and carefully considered the rival contentions raised by learned counsel for the parties. As noted earlier, the area of dispute is very limited. It relates to the nature of inquiry to be held by the Assistant Commissioner for appointing non-hereditary trustee under Section 27 of the Act. There is no dispute that the inquiry contemplated is of summary nature since the appointment of a non-hereditary trustee is for a temporary period subject to the final determination to be made after a detailed enquiry in the proceeding under Section 41 of the Act.
11. The main purpose in investing the power to appoint a non-hereditary trustee is to ensure proper management of the affairs of religious institution including its properties and to avoid mismanagement and misappropriation. In the context of things, the appointment of non-hereditary trustee is to be made with utmost expedition. Therefore, the Full Bench held that the enquiry in such proceedings should be of a summary nature.
12. Coming to the nature of enquiry and the procedure to be followed therefor, it is our considered view that the nature of enquiry will depend on the facts and circumstances of each case. Therefore, it is for the Assistant Commissioner to decide the nature of enquiry to be held in the case since it is for him to be satisfied whether there is a hereditary trustee in the institution or not.
13. We would like to state here that the Full Bench in the case of Khetramohan Rout (supra) has not laid down any specific manner of enquiry to be held by the Assistant Commissioner, and, in our considered view, in the context of things, it will not be appropriate to do so. We hasten to add here that in the said Full Bench decision, it has not been laid down that the Assistant Commissioner will in no circumstance entertain an objection or give opportunity of hearing to the objector while deciding appointment of a non-hereditary trustee. Rather it has been laid down therein that the Assistant Commissioner is to state the reason for arriving at the satisfaction that there is no hereditary trustee in the institution. This, in our view, sufficiently safeguards against any arbitrary and whimsical action on the part of the authority. If the order of the Assistant Commissioner is vitiated on account of arbitrariness, then it is also open to the parson concerned to move the Commissioner in revision.
Thus, an aggrieved party is not whithout any remedy.
14. For the reasons stated above, we are of the considered opinion “after rethinking” that the decision rendered by the Full Banch in the case of Khetramohan Rout need not be referred to a larger Bench.
The reference is answered accordingly.
S. Chatterji, J.
15. I agree.
R.K. Patra, J.
16. I agree.