PETITIONER: PARMANANDA MAHAPATRA Vs. RESPONDENT: COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS,ORISSA AND OTHERS DATE OF JUDGMENT: 10/09/1965 BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K. WANCHOO, K.N. SHAH, J.C. SIKRI, S.M. CITATION: 1966 AIR 1544 1966 SCR (1) 791 ACT: Orissa Hindu Religious Endowment Act (Orissa 2 of 1952), s. 64(2) suit under s. 64(2)-Public if necessary under 0.1, r. 8 of Civil Procedure Code. HEADNOTE: The Commissioner of Hindu Religious Endowments, the respondent herein, acting under s. 49 of the Orissa Hindu Religious Endowments Act, realised a sum as annual contribution in respect of a temple of which the appellant's father was the manager and shebait. The appellant's father claimed that his ancestor had constructed the temple out of his own funds and established a family deity and made endowments for its maintenance. The appellant's father filed an application under s. 64(1) of the Act for a declaration that the temple in question was a private one and did not fall within the purview of the Act, which was rejected by the respondent the Act and appointed members of the appellant's family as heredity who declared the temple as a "public excepted temple" under s. 6(5) of trustees. Thereafter the appellant's father filed a suit under s. 64(2) of the Act for a declaration that the order passed by the respondent was illegal and should be set aside. The Trial Court decreed the suit. The appeal of the respondent was allowed by the High Court by accepting his preliminary ground that the suit was not maintainable as in the suit, the public were not impleaded in accordance with the requirements of 0. I r. 8 of the Code of Civil Procedure. In appeal by certificate to this Court; HELD : A suit brought under s. 64(2) of the Act is not a suit of the nature contemplated by 0.1 r. 8 of the Civil Procedure Code. Having regard to the scheme and object of the Orissa Hindu Religious Endowment Act it is manifest that the Commissioner represents the interest of the public and he is the only person who is entitled to take proceedings on behalf of the religious and charitable trust, and individual members of the public have no locus standi in the matter. [794 B] Case law referred to. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 310/ of 1963
and 121 of 1964.
Appeals from the judgments and decrees, dated November 22,
1960 and November 16, 1961 of the Orissa High Court in First
Appeals Nos. 53 of 1956 and 78 of 1958 respectively.
B. P. Maheshwari, for the appellant (in C. A. No. 310 of
1963).
P. K. Chatterjee, for the appellants (in C. A. No. 121 of
1964).
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S. V. Gupte, Solicitor-General, and R. N. Sachthey, for
respondent No. 1. (in both the appeals).
The Judgment of the Court was delivered by
Civil Appeal No. 310 of 1963.
Ramaswami, J. This appeal is brought by a certificate on
behalf of the plaintiff against the judgment and decree of
the Orissa High Court, dated November 22, 1961.
In the suit which is the subject-matter of this appeal the
plaintiff alleged that his ancestor-Dayanidhi Mahapatra-con-
structed a temple out of his own funds and established a
family deity and made endowments for the maintenance of
Seba-Puja of the deity. After the death of Dayanidhi the
plaintiff became the Manager and Shebait of the family
deity. The case of the plaintiff was that the temple and
the endowments were never dedicated to the public nor had
the public any kind of right in the temple or the endowed
properties, but that respondent No. 1, acting under the
provisions of s. 49 of the Orissa Hindu Religious Endowment
Act (hereinafter referred to as the ‘Act’) realised a sum of
Rs. 386 as the annual contribution from the plaintiff.
Consequently Sri Baman Mahapatra filed an application under
s. 64(1) of the Act for a declaration that the temple in
question was a private one and did not fall within the
purview of the Act. On November 1, 1953 respondent No. 1
rejected the contention of the plaintiff and declared the
temple as a “‘public excepted temple” within the meaning of
s. 6(5) of the Act and appointed members of the plaintiff’s
family as the hereditary trustees. Thereafter Sri Baman
Mahapatra filed a suit in the Court of Subordinate Judge,
Puri under s. 64(2) of the Act for a declaration that the
order passed by respondent No. 1 was illegal and should be
set aside. Respondent No. 1 filed a Written Statement in
that suit and after hearing the evidence on behalf of both
the parties the Subordinate Judge held that the temple was a
private temple belonging to the family of the plaintiff and
defendants 2 and 3 and not a public excepted temple as
erroneously held by respondent No. 1 in his order, dated
November 1, 1953. Aggrieved by this judgment, respondent
No. 1 filed an appeal before the Orissa High Court which
allowed the appeal on the preliminary ground that the suit
was not maintainable as the plaintiff had not impleaded the
public in accordance with the requirements of 0.1 r. 8 of
the Civil Procedure Code. The High Court took the view that
the omission to implied the public in a suit under S. 64(2)
of the Act was fatal and the suit as framed was,
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therefore, not maintainable and should be dismissed. In
taking this view the High Court followed its previous
decision in Padma Charan v. Commissioner, Hindu Religious
Endowments, Orissa.(1)
The question of law involved in this appeal is whether the
High Court is right in its view that in a suit brought under
s. 64 (2) of the Act the public should be impleaded as
necessary parties under 0. 1 r. 8 of the Civil Procedure
Code.
Section 6(13) of the Act defines a “temple” as “a place, by
whatever designation known, used as a place of public
religious worship and dedicated to, or for the benefit of,
or used as of right by, the Hindu community, or any section
thereof, as a place of religious worship”. Section 6(5)
defines an “excepted temple” to mean and include “a temple
the right of succession to the office of trustee or the
offices of all the trustees (where there are more trustees
than one) whereof has been hereditary, or the succession to
the trusteeship whereof has been specially provided for by
the founder”.
Section 64 of the Act states
“64. (1) If any dispute arises as to whether
an institution is a math or temple as defined
in this Act or whether a temple is an excepted
temple, such dispute shall be decided by the
Commissioner.
(2) Any person affected by a decision under
subsection (1) may, within one year, institute
a suit in the Court to modify or set aside
such decision; but subject to the result of
such suit, the order of the Commissioner shall
be final.”
The right of instituting a suit conferred by s. 64(2) on any
person affected by the decision of the Commissioner is a
statutory right and there is nothing in that section which
makes it incumbent upon the plaintiff to make the public as
party-defendants to the suit or to take recourse to the
procedure prescribed under 0.1 r. 8, Civil Procedure Code.
It was conceded by the Solicitor General on behalf of
respondent No. 1 that there is also nothing in the rules
framed under s. 52 of the Act requiring the Commissioner to
give public notice and invite objections from the members of
the public interested in the temple in a proceeding under s.
64(1) of the Act. If the Commissioner is not required to
give public notice or to grant a hearing to members of the
public before making an order under s. 64(1) of the Act,
there
(1) I.L.R. 1961 Calcutta 183.
794
is no reason why the person affected by the decision of the
Commissioner should be compelled to implead members of the
public as party-defendants in a suit brought under s. 64(2)
of the Act In our opinion, the suit brought under s. 64 (2)
is not a suit of the nature contemplated by 0. I r. 8 of the
Civil Procedure Code. Having regard to the scheme and
object of the Act it is manifest that the Commissioner
represents the interest of the public and he is the only
person who is entitled to take proceedings on behalf of the
religious and charitable trust and individual members of the
public have no locus standi in the matter. Reference may be
made in this connection to s. 54 of the Act which states :
“54. (1) The Commissioner or any person having
interest and having obtained the consent of
the Commissioner may institute a suit in the
Court to obtain a decree-
(a) to recover possession of property
comprised in a religious endowment;
(b) appointing or removing the trustee of a
math or excepted temple or of a specific
endowment attached to a math or excepted
temple;
(c) vesting any property in a trustee;
(d) declaring what proportion of the endowed
property or of the interest therein shall be
allocated to any particular object of the
endowment;
(e) directing account and enquiries; or
(f) granting such further or other relief as
the nature of the case may require.
(2) Sections 92 and 93 and rule 8 of Order 1
of the First Schedule of the Code of Civil
Procedure, 1908, shall have no application to
any suit claiming any relief in respect of the
administration or management of a religious
endowment and no suit in respect of such
administration or management shall be
instituted, except as provided by this Act.
(3) All suits or other legal proceedings by
or against the Commissioner under this Act
shall be instituted by or against him in his
name.”
The principle underlying the section is based, to some
extent, upon the principle of English law for enforcement of
charitable trusts in the interest of general public. In
English law the Crown
795
as parens patriae is the constitutional protector of all
property, subject to charitable trusts, such trusts being
essentially matters of public concern-A. G. v. Brown(1);
and the Attorney General, who represents the Crown for all
legal purposes, is accordingly the proper person to take
proceedings on this behalf and to protect charities-Eyre v.
Countess of Shaftsbury (2). Whenever an action is necessary
to enforce the execution of a charitable purpose, to remedy
any abuse or misapplication of charitable funds, or to
administer a charity, the Attorney General is the proper
plaintiff, whether he is acting alone ex-officio as the
officer of the Crown and as such the protector of charities,
or ex relation that is to say at the request of a private
individual who thinks that the charity is being or has been
abused. The same principle is, to some extent, the basis of
different legislative enactments in our country with regard
to enforcement of public religious and charitable trusts.
We are, therefore, of opinion that the High Court was in
error in holding that in the suit brought by the plaintiff
under S. 64(2) of the Act the members of the public were
necessary parties and it was incumbent on the plaintiff to
follow the provisions of 0.1 r. 8, Civil Procedure Code and
the view of the High Court on this point should be
overruled.
For the reasons expressed we hold that this appeal should be
allowed and the judgment and decree of the High Court of
Orissa in First Appeal No. 53 of 1956, dated November 22,
1961 should be set aside and the appeal should be remanded
to the High Court for being dealt with and decided in
accordance with law. Both the parties will bear their own
costs up to this stage
Civil Appeal No. 121 of 1964.
This appeal is brought by a certificate against the judgment
and decree of the High Court of Orissa, dated November 16,
1961 and the question of law involved in this appeal is
identical with the one involved in Civil Appeal No. 310 of
1963. For the reasons given in that case we allow this
appeal set aside the judgment and decree of the Orissa High
Court in First Appeal No. 78 of 1958, dated November 16,
1961 and order that the appeal should go back in remand to
the High Court for being dealt with and determined in
accordance with law. Both the parties will bear their own
costs up to this stage.
Appeals allowed.
(1) (1818) 1 Swan 265.
(2) (1724) 2 P.W. M 103.
796