Parmananda Mahapatra Vs. Commissioner of
Hindu Religious Endowments [1965] INSC 180 (10 September 1965)
10/09/1965 RAMASWAMI, V.
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.
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).
792 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, 793 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.
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