JUDGMENT
G.B. Pattnaik, J.
1. The order of the Assistant Commissioner of Endowments dated 13.7.1993 appointing a Non-Hereditary Trust Board of Upaleswari Thakurani and Upaleswari Narayani Thakurani in exercise of power Under Section 27 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the “Act”) is under challenge in this writ application. The said order has been annexed as Annexure-3 to the writ application.
2. The petitioner’s case in nut shell is that an application had been filed by them on 24-11-1992 Under Section 41 of the Act to declare them, as the Hereditary Trustees. They also filed an application Under Section 8(2) of the Act praying therein that a sum of Rs. 2,000/- is being granted to the deity but is going to be disbursed to some Non- Kereditary Trustees likely to be appointed on the pressure of the local M. L. A. and the said sum be kept in abeyance till the application Under Section 41 is disposed of. On 4-12-1992, another application was filed praying that no Non-Hereditary Trustees be appointed since at no point of time any such Non-Hereditary Trustees had been appointed, until the Assistant Commissioner disposes of the application Under Section 41. Without disposing of the application filed Under Section 8(2), the Assistant Commissioner passed the impugned order appointing a Non-Hereditary Trust Board represented by opposite parties 4 to 10 for a period of two years. The petitioners then moved the Commissioner of Endowments praying that the order passed Under Section 12 of the Act be recalled or stayed until the petitioners’ application Under Section 41 is finally disposed of. No order having been passed thereon, the petitioners approached this Court.
3. The petitioner’s counsel Mr. S. Misra-2 raises to contentions in assailing the validity of the order of appointment of a Non-Hereditary Trust Board Under Section 27 of the Act.
(i) An application Under Section 41 having been filed much prior to the appointment of Non-Hereditary Trust Board seeking declaration that the petitioners are the Hereditary Trustees and during the continuance of the said application, appointment of Non- Hereditary Trust Board in exercise of the extraordinary power Under Section 27 of the Act is invalid and illegal and is without jurisdiction ; and
(ii) Even if the Assistant Commissioner can be said to have jurisdiction in strict sense, but the condition precedent for such appointment not having been satisfied, inasmuch as there being no finding that there is no Hereditary Trustee, the appointment is illegal and cannot be sustained.
4. A counter affidavit has been filed on behalf of the Assistant Commissioner and it has been stated therein that the fact of pendency of an application Under Section 41 had not been brought to the notice of the Assistant Commissioner since the order Under Section 27 is passed on the administrative file and, therefore, the said order cannot be said to be mala fide in any manner. The allegation of exercise of pressure by local M.L.A. has been denied and it has been stated that in a meeting of the villagers in the premises of the institution, the villagers demanded that valuable landed properties belonging to the deities are being wasted and the Sevapuja is being neglected and petitioners are not the Hereditary Trustees but are Sevaits and had been given certain lands for performing the Sevapuja and on being satisfied after due enquiry, the Assistant Commissioner thought it fit to appoint the Non-Hereditary Trust Board. It was also contended that in view of the Full Bench decision of this Court reported in 74 (1993) CLT 969, the Assistant Commissioner has the power to appoint a Non-Heredit3ry Trust Board in respect of the religious institution other than a Math, without prior determination of a dispute Under Section 41 of the Act and consequently, there is no error of law or jurisdiction.
5. In view of the rival submissions at the Bar, two questions arise for consideration :
(a) Has the Assistant Commissioner jurisdiction to appoint a Non- Hereditary Trust Board in exercise of power Under Section 27 during the pendency of an application Under Section 41 before him : and
(b) Is the order of the Assistant Commissioner vitiated on account of non-compliance of the pre-conditions for exercise of power Under Section 27 ?
6. Before appreciating the aforesaid contentions, it would be appropriate to notice the two sections. Section 27 of the Act is extracted hereinbelow in extenso:
“27. Non-hereditary trustees, their number and appointment:
(1) The Assistant Commissioner shall, in case where there is no hereditary trustee, with the prior approval of the State Government, appoint non-hereditary trustee 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.
(2) A non-hereditary trustee shall, unless be sooner removed or dismissed or otherwise ceases to be a trustee, hold office for a period of two years from the date of his appointment: Provided that the Assistant Commissioner may, for sufficient reasons to be recorded by him. from time to time extend the aforesaid term of office of trustee, so, however, that the total extension so granted shall in no case exceed six months in the aggregate.
(3) Every non-hereditary trustee holding office immediately prior to the date of commencement of the Orissa Hindu Religious Endowments (Amendment) Act, 1978 shall cease to hold office as such on the completion of a period of two years from the date of his appointment or on the expiration of three months from the date of commencement of the said Act, whichever is later.” Section 41 of the Act is extracted hereinbelow in extenso :
“41. Assistant Commissioner to decide certain disputes and matters :
(1) Incase of a dispute the Assistant Commissioner shall have power to enquire into and decide the following disputes and matters :
(a) whether sin 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 a religious endowment or specific endowment ;
(e) whether any person is entitled, by custom or otherwise, to any honour, emolument or perquisite in any religious institution and what the established usage of a religious institution is in regard to any other matter ;
(f) whether any institution , or endowment is wholly or partly of a religious or secular character and whether any property or money has been given wholly or partly for religious or secular uses ; and
(g) where property or money has been given for the support of an institution or the performance of a charity, which is partly of religious and partly of a secular character or when any property or money given is appropriated partly to religious and partly to secular uses, as to what portion thereof shall be allocated to religious uses:
Provided that the burden of proof in all disputes or matters covered by Clauses (a) and (d) shall He 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 ‘2) omitted.”
7. So far as the first question namely jurisdiction of the Assistant Commissioner to exercise power Under Section 27 without deciding a dispute Under Section 41 is concerned, the question has been answered recently in a Full Bench decision of this Court in the case of Khetramohan Rout and Ors. etc. v. Sri Sri Mugeswar Mahadev and Ors., etc., *74 (1992) CLT 969 (FB). The learned Chief Justice speaking for the Court and after analysing sections 27, 41 as well as Section 8-B of the Act which was inserted by Orissa Act 29 of 1978, came to hold
“…the Assistant Commissioner, before exercising power under that section (Sec. 27), need not await a determination of this question in a proceeding initiated or to be initiated Under Section 41 of the Act…” (underlining is ours)
In view of the aforesaid authoritative pronouncement of the Full Bench of this Court, it is not possible for us to hold that the Assistant Commissioner had no jurisdiction to appoint a Non-Hereditary Trust Board as an application Under Section 41 was pending. The first contention of Mr. Misra. therefore, cannot succeed.
8. So far as the second contention of Mr. Misra is concerned, notwithstanding the sweeping powers of the Assistant Commissioner Under Section 27 to appoint a Non-Hereditary Trust Board, the absence of a Hereditary Trustee is a condition precedent for exercise of such power Under Section 27. Therefore, the Assistant Commissioner has to be satisfied and has to record a finding that there is no Hereditary Trustee of the religious institution and therefore, he is empowered to appoint a Non-Hereditary Trust Board and he is making such appointment. The satisfaction of the Assistant Commissioner has to be arrived at on the basis of the materials placed before him and he may also hold a summary enquiry for the aforesaid purpose. This being the position of law which position of law was also affirmed by the aforesaid Full Bench decision, on examination of the management file that was produced, before us. by Mr. Naidu appearing for the Commissioner, we find that there is no such finding by the Assistant Commissioner. In the absence of any finding that there does not exist any Hereditary Trustee, the appointment of a Non-Hereditary Trust Board is without jurisdiction, as the pre-conditions for exercise of power Under Section 27 have not been satisfied.
It is in this connection important to notice that in the case in hand, an application for declaring the petitioners as Hereditary Trustees had been filed much before the appointment of the Non-Hereditary Trust Board and the petitioners had also filed an application under Sec 8(2) praying therein that the subsidy or the grant by the Government may not be handed over to anybody also other than the Hereditary Trustees. Therefore, the Assistant Commissioner was duty- bound to hold a prima facie enquiry and be satisfied that there is no Hereditary Trustee of the institution in question. The pendency of the application Under Section 41 as well as application Under Section 8(2) assumes significance in the aforesaid context. Consequently, we have no hesitation to conclude that the impugned order of the Assistant Commissioner is invalid, inoperative and is without jurisdiction for the reasons, already stated and as such the said order under Annexure-3 is quashed. As a necessary corollary the order under Annexure-5 also cannot be sustained and is accordingly quashed.
9. By order dated 6-12-1993, we had injuncted opp. parties 4, to 10 from entering upon the premises of the institution and the lands of the Deities on the basis of their appointment under Annexure-3. We do not know if they had assumed management prior to the said order and at any rate, though they are represented by counsel, but no such contention has been raised. At any rate in view of our conclusion that Annexure-3 is illegal, opp. parties 4 to 10 have no jurisdiction to interfere with the management of the institution by the petitioners. The Assistant Commissioner is directed to dispose of the application filed by the petitioners Under Section 41 of the Act as expeditiously as possible.
The writ application is accordingly allowed. There will,’ how- ever, be no order as to costs.