JUDGMENT

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 5, 1968, passed under Sections 27 and 68 of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act II of 1952) hereinafter referred to as the Act .

2. 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 non-hereditary trustees under Section 27 of the Act of Shiva Temple known as "Sri Lokenatheswar 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 1 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.

3. 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 temple was a public temple which had been recently constructed by the villagers and marfatdars; that the villagers of Bantala and 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.

4. 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.

5. 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 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.

6. Aggrieved by this order, respondents 1 to 3 preferred on May 15, 1967 a revision application under Section 9 of the Act before the 1061 Commissioner of Hindu Religious Endowments, Orissa, Bhubneswar. 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.

7. 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 5, 1968, the aforesaid revision application filed by respondents 1 to 3 was dismissed by the Commissioner of Hindu Religious Endowments and th