PETITIONER:
HINDU RELIGIOUS ENDOWMENTS & ORS.
Vs.
RESPONDENT:
B. SAMITRA & ORS.
DATE OF JUDGMENT20/02/1976
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
CITATION:
1976 AIR 1059 1976 SCR (3) 435
1976 SCC (2) 277
ACT:
Orissa Hindu Religious Endowments Act, 1951-Secs. 27,
40, 44-Whether appointment of trustees by Endowment
Commissioner can be made under s. 27 without determining the
disputed points in sec. 40-Suo moto inquiry by Endowments
Commissioner under s. 40.
HEADNOTE:
Some villages made an application before the Assistant
Commissioner of Endowments, Orissa, for appointment of non-
hereditary trustees under s. 27 of the, Orissa Hindu
Religious Endowments Act, 1951, for Shiva temple which is
more than 100 years old and possesses about 24 acres of
land. A new temple was constructed in place of the old
dilapidated temple by the money contributed by the
villagers. It was alleged that respondents Nos. 1 to 3 were
mismanaging the affairs of the temple and were not regularly
performing the puja or the duty. An enquiry was ordered
pursuant to which the Inspector submitted his report stating
that the temple was a public temple and that respondents
Nos. 1 to 3 did not show accounts to the Inspector and that,
therefore, names of 5 persons were suggested for appointment
of non-hereditary trustees. A proclamation inviting
objections regarding the suitability of 5 persons was
issued. After making a summary enquiry in the presence of
the villagers including respondents Nos. 1 to 3 the
Additional Assistant Commissioner passed an order holding
that the institution was a public one and appointed 5 non-
hereditary trustees under s. 27 of the Act. He, however, did
not record any finding whether respondents Nos. 1 to 3 were
hereditary trustees or not. A revision Application filed to
the Commissioner of Hindu Religious Endowments failed.
Respondent Nos. I to 3 filed a writ petition in the
High Court contending that the order of appointment of non-
hereditary trustees under s. 27 of the Act encroached upon
the property rights of the respondents and were without
jurisdiction and void having been passed without determining
under s. 41 of the Act as to whether the institution was a
private or a public one and without further determining as
to whether the respondent were hereditary trustees.
The appellants contended before the High Court that the
provisions of s. 27 were independent and that it could be
invoked without prior determination of the question under s.
41. The High Court allowed the writ petition holding that s.
27 should be applied only where in respect of the disputed
institution there had been a Prior determination of the
controversial rights mentioned in s. 41 and that before the
Assistant Endowments Commissioner could proceed under s. 27
of- the Act to assess non-hereditary trustees it was
necessary for him to come to a finding that the institution
was a public one and there were no hereditary trustees
thereof in existence and in order to come to such a finding
he should have completed an enquiry under s. 41 which
coupled with s. 44 provided for a judicial determination of
these very questions.
Under s. 41 in case of a dispute the Assistant
Commissioner has power to enquire into and decide whether an
institution is a public religious institution and whether a
trustee holds office as a hereditary trustee. Under s. 27,
the Assistant Commissioner has power to appoint non-
hereditary trustees in respect of each religious institution
in cases where there are no hereditary trustees,
Dismissing the appeal,
^
HELD: 1. The Assistant Commissioner can appoint non-
hereditary trustees under s. 27 of the Act only where two
conditions are satisfied :
(i) that the religious institution is not an excepted
one, and
(ii) there are no hereditary trustees of the
institution.
436
For the exercise of the powers under. s. 27, therefore,
either there should be no dispute about the two conditions
or if there is a dispute a prior determination of such
dispute under s. 41 of the Act has to be made. Without such
preliminary determination an appointment of non-hereditary
trustees under s. 41 since there is no specific prohibition.
[444D-E]
2. Under s. 27. the enquiry is of a summary character
in which the affected person does not get a reasonable
chance of presenting his entire case and evidence is not
required to be recorded verbatim. It is otherwise in case of
Proceedings under s. 41 where the enquiry has to be judicial
and elaborate. [442H. 443A]
3. It is also not correct that a duly verified
application on a proper court fee is necessary for the
determination of the questions enumerated in s. 41 of the
Act. An enquiry can be made suo moto by the Assistant
Endowments. Commissioner for determination of any of the
disputes enumerated in s. 41 since there is no specific
prohibition. [444D-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 128 of
1971.
Appeal by special leave from the judgment and order
dated the 19th September, 1969 of the Orissa High Court in
O.J.C. No. 1759 of 1969.
Govind Das, for the appellants.
Ex-parte for the respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J. This appeal by special leave is
directed against the judgment and order dated September 19,
1969, of the Orissa High Court in o.J.C. No. 1759 of 1968
allowing the writ petition filed by respondents 1 to 3
herein and quashing the orders. dated May 2, 1967, July 22,
1968, and December S, 1968, passed under sections 27 and 68
of the Orissa Hindu Religious Endowment Act 1951 (Orissa Act
II of 1952) hereinafter referred to as ‘the Act;.
Briefly stated, the facts giving rise to this appeal
are: on June 23, 1966, about 40 villagers of village Bantala
in Nayagarh Sub Division of Puri District filed an
application before the Assistant Commissioner of Endowments
Orissa, for appointment of nonhereditary trustees under
section 27 of the Act of Shiva Temple known as “Sri
Lokenatheshwar Mahadev” situate in the said village alleging
that villagers from 11 villages worshipped and offered
‘bhog’ to ‘`Lokenatheshwar Deb’ installed in the temple
which is more than hundred years old and possessed about 24
acres of land endowed by The ancestors of the villagers;
that a new temple in place of the old one which was in a
dilapidated condition had been constructed with the labour
and money contributed by the villagers. that marfatdars,
respondents l to 3 herein, were mismanaging the affairs of
the institution and were not regularly performing the seva
and puja etc. of the said deity. On July 31, 1966. the said
respondents were directed to submit returns as required
under section 17 of the Act.
On August 4, 1966, the Inspector of Endowments was
directed to make an enquiry and to submit a report regarding
the allegations made by the said villagers; Pursuant to the
said directions, the Inspector submitted his report on
September 6, 1966, stating inter alia that the.
437
temple was a public temple which had been recently
constructed by the villagers and marfatdars; that the
villagers of Bantala an marfatdars came from one family and
the persons managing the institution did not receive notice
from him nor showed him the accounts and suggesting the
names of five persons for appointment as trustees.
On November 4, 1966, a proclamation inviting objections
regarding the suitability of persons suggested by the
Inspector for appointment as non-hereditary trustees was
issued to which the aforesaid respondents objected claiming
that the institution was a private one and even if it be
held to be a public religious institution, they were the
hereditary trustees.
After making a summary enquiry in the presence of the
villagers including respondents 1 to 3, the Additional
Assistant Commissioner of Religious Endowments passed an
order on May 2. 1967, holding C that the institution was a
public one and appointing five non-hereditary trustees under
section 27 of the Act. The Additional Assistant Endowments
Commissioner did not, however, record any finding whether
the respondents 1 to 3 were hereditary trustees or not.
Aggrieved by this order, respondents 1 to 3 preferred
on May 15. 1967 a revision application under section 9 of
the Act before the 1 Commissioner of Hindu Religious
Endowments, Orissa, Bhubaneswar. On May 27, 1967, the
appointed trustees filed a petition under section 68 of the
Act for obtaining possession of the institution and its
endowments from respondents 1 to 3. On November 10. 1967,
respondents 1 to 3 filed a petition under section 41 of the
Act claiming that the institution was a private one. It was
alternatively claimed by the said respondents that even if
the temple be held to be a public one they could not but be
held to be hereditary trustees.
On July 22, 1968, an order directing delivery of
possession of the institution and its endowments to the
appointed trustees was passed under section 68 of the Act by
the Assistant Commissioner of Endowments, Orissa. On
December S, 1968, the aforesaid revision application filed
by respondents 1 to 3 was dismissed by the Commissioner of
Hindu Religious Endowments and the Inspector of Endowments
was directed to execute the writ of delivery of possession.
On December 26, 1968, the Inspector of Endowments made a
report saying that the writ had been executed and possession
as directed had been delivered to the appointed trustees on
December 11, 1968.
On December 23, 1968 respondents 1 to 3 filed a
petition under Articles 226 and 227 of the Constitution,
being O.J.C. No. 1759 of 1968, before the High Court of
Judicature, Orissa, challenging the aforesaid orders dated
May 2, 1967, July 22, 1968 and December S, 1968 and praying
that the said orders be quashed. on the said writ petition,
it was contended by respondents 1 to 3 that the aforesaid
orders dated May 2, 1967 passed by the Additional Assistant
Endowments Commissioner appointing non-hereditary trustees
of the institution under section 27 of the Act and order
dated July 22. 1968 passed by the Assistant Endowments
Commissioner directing delivery of possession of the
institution and its properties to the non-hereditary
438
trustees under section 68 of the Act encroached upon the
property rights of the respondents and were without
jurisdiction and void having been passed without determining
under section 41 of the Act as to whether the institution
was a private or a public one and without further
determining as to whether the respondents were hereditary
trustees.
The said writ petition was contested on behalf of the
appellants on the grounds that the scheme of the Act showed
that provisions of section 27 of the Act were independent;
that the exercise of` the power under section 27 was subject
to final decision m appropriate proceedings under section 41
of the Act and that it was erroneous to contend that the
provisions of section 27 could not be invoked without prior
determination of the aforesaid questions under section 41 of
the Act. lt was, however, conceded on behalf of the
appellants at the hearing of the writ petition before the
High Court that the impugned orders could not be supported
and were liable to be quashed as even a summary enquiry had
not been made before appointment of non-hereditary trustees
under section 27 of the Act. It was also conceded on behalf
of the appellants that as an order under section 27
encroached upon the property rights of respondents 1 to 3-
and even a summary 1) enquiry is required to be made by
observing the principles of natural justice, the said
respondents should have been given a full opportunity to
substantiate their case to the effect that the institution
and its properties were private and they were hereditary
trustees. It was, however, strongly contested on behalf of
the appellants that the stand of respondents 1 to 3 that the
orders dated May 2, 1967 and July 22, 1968 could not be
passed without prior determination of the aforesaid
questions under section 41 of the Act was not correct.
After examining the relevant provisions of the Act and
the Rules and taking into account the , fact that
respondents 1 to 3 had not been afforded an opportunity to
substantiate their case and no evidence had r been taken by
the Assistant Endowments Commissioner which might have prima
facie gone to show that the institution was a public one and
the said respondents were not hereditary trustees, the High
Court held that the concession made on behalf of the
appellants herein was well bounded; that it would be
reasonable to confine the application of section 27 only to
cases where in respect of the disputed institution, there
had been a prior determination of the controversial rights
mentioned in section 41 and that before the Assistant
Endowments Commissioner could proceed under section 27 of
the Act to appoint nonhereditary trustees in respect of the
religious institution, it was necessary for him to come to a
finding that the institution was a public one and there were
no hereditary trustees thereof in existence and in order to
come to such a finding, he should have completed an enquiry
under section 41 which coupled with section 44 provided for
a judicial determination of these very questions. The High
Court further held that since marfatdari right was itself
property and the Act had no application to private
endowments and respondents 1 to 3 were admittedly in
possession of the institution and its properties, they could
not be divested of the same without a finding that the
institution was public and they were not hereditary.
trustees,
439
It would be advantageous at this stage to reproduce the
ultimate conclusions arrived at by the High Court:-
“Before the Assistant Endowments Commissioner
proceeds under section 27 to appoint non-hereditary
trustees in respect of a religious institution, he must
first come to a finding that there are no hereditary
trustees already in existence. In order to come to such
a finding he must first make an enquiry under section
41, which taken alongwith section 44, provides for
judicial determination of this very question, involving
the property rights of a citizen, by the Assistant
Commissioner himself, after notice to the parties and
taking evidence. If no determination of this question
is made, it will be open to the Assistant Commissioner
to start an enquiry under section 41 suo motu. It is
only after the completion of the enquiry under section
41 that he can come to a finding about the existence or
otherwise of hereditary trustees and only thereafter he
can proceed to appoint non-hereditary trustees. It is
also open to him, in the course of the proceeding under
section 41, to pass interim orders for preserving the
institution and its properties and also for safe-
guarding the rights of the aggrieved party pending
final determination of the controversy. Any order
passed straightaway under section 27 which has the
effect of dispossessing the hereditary trustees of
their property without first resorting to an enquiry
under section 41, would be illegal and contrary to the
scheme of the Act.”
At the hearing of this appeal, counsel for the
appellants has re- iterated the stand taken by his clients
in the High Court.
The short question that arises for determination in
this case is whether the Assistant Endowments Commissioner
had jurisdiction to proceed under section 27 of the Act
without a prior decision of the disputes about the nature of
the institution and the existence or other wise of the
hereditary trustees.
For a proper determination of the aforesaid question.
it is necessary to refer to a few provisions of the Act and
the rules made there under in so far as they are relevant
for the purpose of this appeal.
Section 1 (2) makes the Act applicable to all Hindu
Public religious institutions and endowments. It excludes
from its purview Hindu private religious institutions and
endowments.
Section 3 (xiii) of the Act defines ‘Religious
Institution’ as under:-
“3(xiii). ‘religious institution’ means a math, a
temple and endowments attached thereto or a specific
endowment and includes an institution under direct
management of the State Government .
A ‘religious endowment’ is defined in section 3(xii) as
follows:-
“3(xii). ‘religious endowment’ or endowment’ means
all property belonging to or given or endowed for
440
the support of maths or temples or given or endowed for
the performance of any service or charity connected
there with or of any other religious charity, and
includes the institution concerned and the permises
thereof and also all properties used for the purposes
or benefit of the institution and includes all
properties acquired from the income of the endowed
property.”
…………………………..
Section 27 of the Act provides as under :-
“27 (1) . The Assistant Commissioner shall, in
cases where there is no hereditary trustee, appoint
non-hereditary trustees in respect of each religious
institution other than maths and specific endowments
attached thereto, and in making such appointments the
Assistant Commissioner shall have due regard to the
claims of persons belonging to the religious
denomination for whose benefit the said institution is
chiefly maintained.”
Section 41 of the Act runs thus:-
“41. (1) In case of a dispute the Assistant
Commissioner shall have power to enquire into and
decide the following disputes and matters:-
(a) whether an institution is a public religious
institution;
(b) whether an institution is a temple or a math;
(c) whether a trustee holds or held office as a
hereditary trustee;
(d) whether any property or money is of religious
endowment or specific endowment;
(e) ……………….
(f) ……………….
(g) ……………..
Provided that the burden of proof in all disputes or
matters covered by clauses (a) and (d) shall lie on the
person claiming the institution to be private or the
property or money to be other than that of a religious
endowment or specific endowment as the case may be”.
Section 44 which makes provision for appeals runs
thus:-
“44. (1) Any person aggrieved by any order passed
by the Assistant Commissioner under section 41 or sub
sections (1) and (6) of section 42 or section 43 may,
with in thirty days from the date of receipt of the
order under section 41 or section 43 or from the date
of the publication of the order under section 42 as the
case may be, appeal to the Commissioner.
“(2) Any party aggrieved by the order of the
Commissioner under sub-section (1) or under sub-section
(1) or
441
(6) of section 42 may appeal to the High Court within
thirty days from the date of the order or publication
there of as the case may be.”
Section 68 deals with delivery of possession of a
religious institution, its record, accounts and properties
to its trustee or executive officer.
Section 73 which bars the jurisdiction of ordinary
courts lays down that no suit or other legal proceeding in
respect of the administration of a religious institution or
in respect of any matter or dispute for determining or
deciding which provision is made in the Act shall be
instituted in any court of law, except under, and in
accordance with, the provisions of the Act.
Section 74 which relates to the procedure at enquiries
and appeals and service of notice is in these terms:- C
“74(1) In relation to all proceedings before the
Commissioner or the Assistant Commissioner, the orders
in pursuance of which are under the provisions of this
Act appealable to the High Court, the Commissioner or
the ., Assistant Commissioner as the case may be, shall
have the powers vested in a court under the Code of
Civil Procedure, 1908, when trying a suit in respect of
the following matters:-
(a) discovery and inspection;
(b) enforcing the attendance of witnesses, and
requiring the deposit of their expenses;
(c) compelling the production of documents; E
(d) examining witnesses on oath,
(e) granting adjournments;
(f) reception of evidence taken on affidavit; and
(g) issuing commissions for the examination of
witnesses.
and may summon and examine suo motu any person
whose evidence appears to him to be material and shall
be deemed to be a Civil Court within the meaning of
sections 480 and 482 of the Code of Criminal Procedure,
1898,
(2) The Commissioner and the Assistant
Commissioner shall with resect to all such
proceedings be deem ed to be persons acting
judicially within the meaning of the Judicial
officers Protection Act, 1 850. G
(3) The Court hearing on appeal from the order of
the Commissioner may direct further enquiry
or modify or set aside such order as the
Court may deem fit; and unless the appeal is
summarily dismissed the Commissioner shall be
given an opportunity of being heard before
the order passed by him is interfered with in
any manner; provided that the operation of
the order of the Commissioner shall not be
stayed pending the disposal of the appeal”.
442
76(1) confers on the State Government general power of
making rules to carry out all or any of the purposes of the
Act. Sub-section (2) of the section specifically enumerates
the matters with respect to which the rules can be made and
clause (d) thereof enables the State Government to make
rules regarding holding of enquiries, summoning and
examination of witnesses and production of documents.
Rule 43 of the Rules framed under section 76(d) of the
Act provides: –
“In relation to all proceedings before the
Commissioner or the Assistant Commissioner against
whose orders an appeal lies to the High Court under the
provisions of the Act, the Commissioner or the
Assistant Commissioner as the case may be shall follow
the provisions of the Civil Procedure Code, the Indian
Evidence Act and the G.R.C.O. Of the Orissa High Court
as far as practicable and in so far as y they are
consistent with the Act and the Rules. In every other
case the enquiry will always be of a summary nature and
shall be conducted as in respect of suits of small
cause nature with due notice to persons affected by the
enquiry”.
It is important to note that the Assistant Commissioner
can ap point non-hereditary trustees under section 27 of the
Act only where two conditions are satisfied viz. (1) that
the religious institution is not an excepted one and (2)
that there is no hereditary trustee of the institution. For
the exercise of the power by the Assistant Commissioner
under this section, it is, therefore, absolutely necessary
that either there should be no dispute about the public
nature of the institution and the non-existing 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 Act has been made. Without such preliminary
determination if an appointment of a 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 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 of 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.
This view also gains strength from the fact that there
is a marked difference as regards the procedure to be
followed in respect of proceedings under sections 27 and 41
of the Act. Whereas an enquiry, if- any, in proceedings
under section 27 of the Act because of the non-appealable
nature of the order passed thereunder in view of section 44
of the Act is of a summary character in which the affected
443
person does not get a reasonable chance of presenting his
entire case and evidence is not required to be recorded
verbatim, it is otherwise in case of proceedings under
section 41 of the Act where the enquiry has to be judicial
and Elaborate in view of the fact that the parties are
entitled as a matter of right to be heard in support of the
claim and to adduce evidence in proof thereof. (See
Ramakrishna Padhy v. Ramesh Chandra Das & Ors(1). In the
latter case, because of the complicated nature of the
questions involved and the appealable character of the
orders that may be passed thereunder, the Commissioner or
the Assistant Commissioner has to act like a Court and is
required to follow, as far as practicable, the provisions of
the Code of Civil Procedure, the Indian Evidence Act and the
G.R.C.O. Of the Orissa High Court in so far as they are
consistent with the Act and the Rules. This becomes clear
from a conjoint reading of section 74 of the Act and Rule 43
of the Rules framed under the Act. It would also be relevant
to notice that there is no Provision in section 27 of the
Act identical to the one contained in order 21, Rule 63 of
the Code of Civil Procedure to the effect that the summary
decision given thereunder would be subject to the decision
that may be given under section 41 of the Act. It has also
to be pointed out that successive determination of questions
under section 27 and 41 of the Act is not possible in view
of the doctrine of res Judicata. It is also significant that
the safeguard relating to appeal both on a point of fact and
law (See Sri Sadasib Prakash Brahmachari Trustee of
Mahiprakash & Ors. v.`The State of Orissa(2) and the
intervention of the High Court which is available in respect
of orders made under section 41 of the Act is not available
in case of orders under section 27 of the Act. The non-
availability of the valuable right of an appeal in respect
of an order under section 27 of the Act is of fundamental
importance and leads to the irresistible conclusion that
section 27 cannot exist in isolation and determination of
the aforesaid questions is necessary under section 41 of the
Act before non-hereditary trustees can be appointed.
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 questions that the institution is a public one and has
no hereditary trustees.
We are fortified in our view by the decision of this
Court in Sri Jagannnth Ramanuja Das & Anr. v. State of
Orissa.(9) . In that case, the Bihar State Board of
Religious Trusts constituted under the Bihar Hindu Religious
Trusts Act, 1950 (I of 1951) passed an order in exercise of
the powers conferred on it under section 59 of the Act
asking the appellant to furnish to the Board a return of
income and expenditure of the temple known as ‘Salouna
Asthal’. The appellant replied saying that the Asthal was a
private institution and not a religious one within the
meaning of the Act; that the properties appertaining to the
temple did not constitute a religious trust and the
appellant H
(1) A.I.R. 1959 Orissa 98. (2) 22 (1956) C.L.T. 235.
(3) A.I.R. 1954 S.C. 400.
444
was not a trustee within-the meaning of the Act. On getting
unfavorable answer, the appellant made an application to the
High Court of Patna under Article 226 of the Constitution
challenging the demand which was dismissed. On the matter
being brought. before this Court by the appellant, the
aforesaid order of the Board was quashed and the respondent
was directed not to interfere with the properties
appertaining to the ‘Salouna Asthal’ without obtaining the
necessary declaration under section 43 of the Act.
Before concluding we would like to observe that we are
not at all impressed by the submission made on behalf of the
appellants that if the interpretation placed on the
provisions of sections 27 and 41 of the Act by the Orissa
High Court is taken as correct, it would become difficult to
exercise effective control on public religious institutions
as proceedings under section 41 take long time. As rightly
observed by the High Court, the courts are meant to
interpret the law as it stands. It is not their function to
legislate and to imagine difficulties. The argument cannot
also be countenanced as it overlooks the explanation
appended to section 7 whereunder the Commissioner has been
given power to pass such interim orders as he may deem
necessary for the proper maintenance, administration and
management religious institutions and endowments when a
dispute concerning the same is pending.
We also find it difficult to accept the submission made
by counsel for the appellants that in view of the fact that
a duly verified application on proper court fee is necessary
for determination of the questions enumerated in section 41
of the Act, no enquiry under the said pro visions of the Act
can be held suo motu by the Assistant Endowments
Commissioner. The fact that it may be necessary for a
private individual to make an application on proper court
fee to the Assistant Commissioner for determination of any
of the disputes enumerated in section 41 cannot, in the
absence of a specific prohibition, debar the said authority
from taking action suo motu under the said provisions of the
Act. This is, however, a matter with which we are not
concerned in the present appeal as respondents 1 to 3 had
made an application under section 41 of the Act in which
unfortunately no proceedings were taken by the Assistant
Commissioner.
For the foregoing reasons, we are satisfied that the
High Court was right in holding that it was only after
completion of the enquiry under section 41 of the Act and
determination of the questions that the religious
institution was not public and there were no hereditary
trustees thereof that the Assistant Commissioner could
appoint non-hereditary trustees and pass orders regarding
delivery of possession to them of the institution.
In the result the appeal fails and is hereby dismissed.
P.H.P. Appeal dismissed.
445