# HINDU RELIGIOUS ENDOWMENTS & ORS v. B. SAMITRA & ORS

- **Citation:** [1976] 3 S.C.R. 435
- **Court:** Supreme Court of India
- **Decided:** 1976-02-20
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hindu-religious-endowments-ors-v-b-samitra-ors-6753
- **Pages:** 10

## Headnote

Orissa Hindu Religious Endowments Act, 1951-Secs. 27, 40, 44-Whether
.appointment of tru_stees by Endown1ent Com1nissioner can be made under s. 27
without deterrnining the disputed points in sec. 40-Suo moto inquiry by Endow~
ments Comrnissioner under s. 40.
Some
villag~s made an applicat:on before the Assistant Commissioner of
Endowments, Orissa, for appointment of non~hereditary trustees under s. 27
01
LU ... UL::.:.a H.nuu h,1,;ug1ou .. .bnuo,.,.ments A;;t, 1951, for Shiva temple which
is more than 100 years old and possesses about 24 acres of land.
A new
temple was cons.ructed in place of the old dilapid<.ted 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 01 thi;; d~1ty. An enquiry v.·as ordered pur:::uant to which the lnspei..:tor
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 !~ersons were suggested for appointment of non-hereditary
trustees.
A proclama,i'- n in,,.itirg cbjections regarding the suit[b.lity of 5 person' \Vas issu ·rl.
Af'er making a summary tnqui ·v in the presence of tbe
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 Appiication filed to the Commissioner of Hindu Religious
Endowments failed.
Respondents Nos. 1 to 3 filed a writ petiti'"'n in the High Court contending
that the order of appointment of non-hereditary trustees under s. 27 of the
Act rncroached 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 Hh!:h Court that the provision<; of s. 27
were independent and that it could be invoked without prior determination of
the question under s. 41.
The High Court allov•ed the writ petition holding
that s. 27 should be applied only where in respect of the disputed in'ititution
there had been a prior determination of the controversial rights mentioned in
s. 41 and that before the Assistant Endowments Commissioner cou1d nro:eed
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 tru<;tees thereof in existen-::e and in order to come to such
a finding he ~hould have completf'd 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 enauire 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
A'isistant Commissioner has power to appoint non-hereditary trustees in respect
of each religious institution in cases v.'here there are no hereditary trustees.
Dismissing the appeal,
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HELD : 1. The Assistant Commissioner can appoint non-hereditary trustees
under s. 27 of the Act only where two conditions are satisfied :
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(i) that the religious institution is not an excepted one, and
(ii) there are no hereditary trustees of the institution.
436
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
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 u

## Text

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435
HINDU RELIGIOUS ENDOWMENTS & ORS.
v.
B. SAMITRA & ORS.
February 20, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
Orissa Hindu Religious Endowments Act, 1951-Secs. 27, 40, 44-Whether
.appointment of tru_stees by Endown1ent Com1nissioner can be made under s. 27
without deterrnining the disputed points in sec. 40-Suo moto inquiry by Endow~
ments Comrnissioner under s. 40.
Some
villag~s made an applicat:on before the Assistant Commissioner of
Endowments, Orissa, for appointment of non~hereditary trustees under s. 27
01
LU ... UL::.:.a H.nuu h,1,;ug1ou .. .bnuo,.,.ments A;;t, 1951, for Shiva temple which
is more than 100 years old and possesses about 24 acres of land.
A new
temple was cons.ructed in place of the old dilapid<.ted 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 01 thi;; d~1ty. An enquiry v.·as ordered pur:::uant to which the lnspei..:tor
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 !~ersons were suggested for appointment of non-hereditary
trustees.
A proclama,i'- n in,,.itirg cbjections regarding the suit[b.lity of 5 person' \Vas issu ·rl.
Af'er making a summary tnqui ·v in the presence of tbe
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 Appiication filed to the Commissioner of Hindu Religious
Endowments failed.
Respondents Nos. 1 to 3 filed a writ petiti'"'n in the High Court contending
that the order of appointment of non-hereditary trustees under s. 27 of the
Act rncroached 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 Hh!:h Court that the provision<; of s. 27
were independent and that it could be invoked without prior determination of
the question under s. 41.
The High Court allov•ed the writ petition holding
that s. 27 should be applied only where in respect of the disputed in'ititution
there had been a prior determination of the controversial rights mentioned in
s. 41 and that before the Assistant Endowments Commissioner cou1d nro:eed
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 tru<;tees thereof in existen-::e and in order to come to such
a finding he ~hould have completf'd 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 enauire 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
A'isistant Commissioner has power to appoint non-hereditary trustees in respect
of each religious institution in cases v.'here there are no hereditary trustees.
Dismissing the appeal,
A
B
c
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F
G
HELD : 1. The Assistant Commissioner can appoint non-hereditary trustees
under s. 27 of the Act only where two conditions are satisfied :
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(i) that the religious institution is not an excepted one, and
(ii) there are no hereditary trustees of the institution.
436
SUPREME COURT REPORTS
[1976] 3 S.C.R.
A
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. [4440-E]
B
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 ve1b.iiim.
It is otheivvise in case of
proceedings under s. 41 where the_ enquiry has to be judicial and elabJrate.
[442H, 443Al'
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 m-:::de suo nioto by the A5sistant En1owments
Conimissioner for determination of any of the d;sputes enumerated in s. 41
s'.ncc there is no specific prohibition. [4440-E]
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Civ1L APPELLATE JURISDICTION: Civil Appeal No. 128'of 1971.
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Apeal 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 allowine the writ
petition filed by respondents 1 to 3 herein and quash;ng the crders.
dated May 2, 1967, July 22, 1968, and December 5, 1968, passed
under sections 27 and 68 of the Orissa Hindu Rellg'ous Endowments
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 SubDivision 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" s·tuate in the said village
alleging that villagers from 11 villages worshipped and offered 'bhog'·
to 'Lokenatheshwar Deb' installed in the temole 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 aud money contributed by the villa~ers: that marfatdars,
respondents 1 to 3 herein, were mismanaging the affairs of the insftution and were not regularly performing the seva and puia etc. of the
said deity.
On July 31, 1966. the said responc!ents were directed tosubmit returns as required under section 17 of the Act.
On Ammst 4, 1966, the Inspector of Ernlowinents 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 ou September 6, 1966, stating inter alia that the·
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HINDU RELIGIOUS ENDOWMENTS v. B. SAM!TRA (Jaswant Singh, J.) 43 7
temple was a public temple which had been recently constructed by
the villagers and marfatdars; that the villagers of Banlala and marfatdars came from one family and the persons managing the insftution did not receive notice from h;m nor showed h;m the accounts
and suggesting the names of five persons for appointment as trustees.
011 November 4, 1966, a proclamation inviting obiectons regarding the suitability of persons suggested by the Inspector for appo'ntment as non-hereditary trustees was issued to wb:ch
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
that the institution was a public one and appointing five non-hereditary trustees under section 2 7 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
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 possess;on of the insftution 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 hy 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
instituticn and its endowments to the appointed trustees was passed
under section 68 of the Act by the Assistant Commissioner of Endowments, Orissa.
On December 5, 1968, the aforesaid revision applicaA
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tion filed by respondents 1 to 3 was dismissed by the Commissioner of
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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
G.
Articles 226 and 227 of the Constitution, being O.J.C. No. 1759 of
1968, before the H;gh Court of Judicature, Orissa, challenging
the
aforesaid orders dated May 2, 1967, July 22, 1968 and December 5,
1968 and praying that the said orders be quashed. In 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 appo;nting non-hereditary trustees of the instituH
tion 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
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SUPREME COURT REPORTS
[1976] 3 S.C;R.
trustees under section 68 of the Act encroached upon the property
ngncs oi the responoents and were w1thout junsd1ction and vo,d hav,ng
beeu passecl w1mout oetenruruug unaer secuon 41 of the Act as to
whemer rne tnstltutJon was a pnvate or a pubilc one and w1thout
fur,ner clecenrumng as to whetner the respondents were hereditary
trustees.
The said writ petition was contested on behalf of the appellants
on the grouncts ma, the scheme ol the Act showed that provisions of,
sect10n 27 of the Act were independent; that the exercise oi the power
unuer section 2 7 was subject to final dec.sion rn appropriate proceeding; unoer secuon 41 of the Act and that it was erroneous to contend
that the provisions of section 27 could not be invoked without prior
deterrninat,on of the aforesaid questions under section 41 of the Act.
It was, however, conceded on behalf of the appellants at the hearing
of the wnt petition before the High Court that the impugned orders
could not be supported and were l1able 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
enquiry is required to be made by observing the principles of natural
just,ce, the sa:d 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 ev'dence had
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 H'gh Court
held that the concession made on beha!E of the appellants herein was
well founded; that it would be reasonable to confine the application
of section 27 only to cases where in respect of the di<puted institution,
there had been a prior determination of the controversial rights men~
tioned 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 relig;ous 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 ex'stence 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.
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lIINDU RELIGIOUS ENDOWMENTS v. B. SAMITRA (Jaswant Singh, J.)439
It would be advantageous at this stage to reproduce the ultimate
A
-conclusions arrived at by the High Court :-
"Before the Assistant Eudowments Commissioner proceeds under section 27 to appoint non-hereditary trustees in
respect of a reLg,ous institution, he must first come to a finding that there are no hereditary trustees already in ex,stcnce.
In order to come to such a finding he must first make an
B
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, 1t
will be open to the Assistant Commissioner to start
an
enquiry under section 41 suo motu.
It is only alter the
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completion of the enquiry under section 41 that he can
come to a finding about the existence or otherw:se 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 r'ghts of the aggr'eved party pending final
D
determination of
the
controversy.
Any
order
passed
stra'ghtaway under section 27 which has the effect of dispossessing the hereditary trustees of their prop
0 rty without
first re<ort;ng to an enauiry 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 reE
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 iurisdiction to
proceed under section 27 of the Act without a nrior decision of the
disputes about the nature of the institution and the existence or otherwise of the hereditary trustees.
For a proper determination of the aforesaid auestion, it is necessary to refer to a few provisions of the Act and the rules made thereunder 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 un-
'der :-
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"3 (xiii). 'religious institution' means a math, a temple
and endowments attached thereto or a specific endowment
and inclu<les an institution under direct management of the
State Govsrnment".
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
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440
SUPREME COURT REPORTS
[1976] 3 S.C.R'.-
the support of maths or temples or given or endowed for
the performance of anv service or charitv connected therewith or of any other re-ligious charity, anct' 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 subsections (1) and (6) of section 42 or sectioh 43 may, within 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
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lf!NDU RELIGIOUS ENDOWMENTS v. B. SAMITRA (Jaswant Singh, J.) 441
(6) of section 42 may appeal to the High Court within
A
thirty days from the date of the order or publication thereof as the case may be."
1
Section 68 deals with delivery of possession of a religious institu-
•
tion, its record, accounts and properties to
its trustee or executive
officer.
Section 73 which bars the jurisdiction of ordinary conrts 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 :-
"7 4 ( 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
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powers vested in a court under the Code of Civil Procedure,
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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;
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(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)
(3)
The Commissioner and the Assistant Commissioner
shall with respect to all such proceedings be deemed to be persons acting judicially within the meaning of the Judicial Officers Protection Act, 1850.
The Court hearing on appeal from tl_ie order ?f
the Commissioner may direct further enqmry or modify
or set aside such order as the Court may deem
fit· and unless the appeal is summarily dismissed
th~ Commissioner shall be given an opportunity of
being heard before the order pas.sed 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".
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SUPREME COURT REPORTS
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Section 76(1) confers on the State Government general power
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of making ruk's 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 Cou·t as far as practicable and in so far as
they are consistent with the Act and the Rules.
In every
other case the enouirv will always be 0f a summarv natnre
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 appoint non-hereditary trustees under section 27 of the Act only where
two conditions are satisfied viz. (1) that the relieious institntion is
not an excepted one and (2) that there is no hereditary trustee of the
institution.
For the exercise of the power bv the Assistant Commissioner under this section, it is, therefore, absolutely necessary that
either there should be no dispute about the public natnre 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
aPoointment of a non-hereditary
trustee is made under section 27 of the Act and a direction is given
regarding delivery of Possession of the institntion etc. under section
6lr of the Act, it would be manifestly illegal and without inrisdiction.
A careful scrutinv of the Provisions of the Act makes this Position
amply clear.
As. Pointed out bv the HiQh 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 hereditarv trustees of the institution or not.
These auestions have
to be gone into under section· 41 of the Act which speCificallv deals
with the investigation and decision of disputes in resnect
thereof.
Consequentlv. a nrior determinat;nn under section 41 that the institn·
tion 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 strenQth from the fact that there is a marked
difference as regards the orocedure to be followed in respect of proceedings under sections 27 and 41 of the Act.
Whereas an enauiry,
if any, in proceedings under section 27 of the Act because of the
non-appealable natnre of the order passed thereunder in view of section 44 of the Act is of a summary character in which the affected
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HINDU RELIGIOUS ENDOWMENTS v. B. SAMITRA (Jaswant Singh,!.) 443
person does not get a reasonable chance of presenting his entire case
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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('). In the latter case, because of the
complicated nature of the questions involved and
the
appealable
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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.0. 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
7 4 of the Act and Rule 43 of the Rules framed under the Act. It
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would also be relevant to notice that there is no orovision 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
ia respect of an order under section 27 of the Act is of fundamental
E
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 nonF
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
Jagannath Ramanuja Das & Anr. v. State of Orissa.('). In that case,
the Bihar State Board of Religious Trusts constituted under the Bihar
G
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
(!) A.LR. 1959 Orissa 98.
(2) 22 (1956) C.L.T. 235.
(3) A.I.R. 1954 S.C. 400.
444
SUPREME COURT REPORTS
(1976] 3 S.C.R
A
was not a trustee within the meaning of the Act.
On getting an unfavourable answer, the appellant made an application to tne High
Court of Patna under Amclc 226 of the Consnrntion 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 neces8
sary 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 eftective control on public religious institutions as
c
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 of religious instiD
tutions and endowments when a dispute concerning the same is pending.
F
G
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 deterrninatiou of the questions
enumerated in section 41 of the Act, no enquiry under the said provisions 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.