Hindu Religious Endowments & Ors Vs.
B. Samitra & Ors [1976] INSC 32 (20 February 1976)
SINGH, JASWANT 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]
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 along with 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 deemed 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 appoint 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 there under 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.
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