COMMISSIONER AND ASSISTANT COMMISSIONER WHILE EXERCISING FUNCTIONS UNDER SECTIONS 41 AND 44 OF THE ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1951, FUNCTION AS 'COURTS' AND NOT AS QUASI-JUDICIAL TRIBUNALS.

R. L. NARASIMHAM, C. J.

( 1 ) THIS is an appeal under Clause 10 of the Letters Patent of the Patna High Court (which is applicable to Orissa by virtue of the Orissa High Court Order 1948)against the judgment (in appeal) of a single Judge of this Court in Miscellaneous appeal No. 81 of 1956. That appeal was filed against the appellate judgment of the Commissioner of Hindu Religious Endowments, Orissa (hereinafter referred to as the Commissioner) passed under Section 44 of the Orissa Hindu Religious endowments Act 1951 (Orissa Act No. II of 1952 --hereinafter referred to as the new Act) dismissing an appeal against the order of the Assistant Commissioner of hindu Religious Endowments Orissa (hereinafter referred to as the Assistant commissioner) passed under Section 41 of that Act declaring a particular religious institution to be a public one and one Ramesh Chandra Das and his agnates to be the hereditary trustees of the same. A preliminary objection was taken to the entertainability of this appeal on the ground that the judgment of the single Judge was passed in second appeal and that consequently by virtue of clause 10 of the Letters Patent a further appeal to a division Bench of this Court will not lie in the absence of a certificate of fitness from the Judge concerned. This point is of considerable importance affecting many decisions of the Commissioner pending in appeal in this Court and it is desirable to give an authoritative decision.

( 2 ) THE material clauses of the Letters Patent of the Patna High Court may now be referred to.

( 3 ) CLAUSE 10 (omitting immaterial portions) is as follows : --

"an appeal shall lie. . . . . from the judgment (not being a judgment passed in the exercise of appellate jurisdiction in respect ot a decree or, order made in exercise of the appellate jurisdiction by a court subject to the superintendence of the High Court. . . . . . .) of one Judge of the said high Court, and. . . . . notwithstanding anything hereinbefore provided an appeal shall lie to the said High Court from a Judgment of one Judge of the said High Court. . . . . . . made on or after the first day of February, 1929 in, the exercise of appellate jurisdiction by a court subject to the superintendence of the said High Court, where the Judge who passed the judgment declares that the case is a fit one for appeal. "The aforesaid clause makes it clear that if the judgment of a single Judge of this court is passed in exercise of appellate jurisdiction "in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court" an appeal shall lie only if the single Judge concerned declares that the case is a fit one for appeal.

( 4 ) IN the present case the Commissioner's order was passed in exercise of his appellate jurisdiction over the order of the Assistant Commissioner conferred by the new Act and the judgment of the single Judge of this Court was also passed in exercise of the High Court's appellate jurisdiction. If the Commissioner be held to be A "court subject to the superintendence" of this High Court while passing the appellate order in question, it is apparent that a further appeal will not lie except under a certificate of fitness from the single Judge concerned. It was however, urged that the Commissioner was not a "court subject to the superintendence" of this High Court and that consequently, the earlier part of Clause 10 of the Letters Patent would apply and the party had a right of appeal to a Division Bench of this Court against the judgment of a single Judge, without any such certificate.

( 5 ) THE order of the Assistant Commissioner was passed under Section 41 of the new Act; the order of the Commissioner on appeal was passed under Sub-section (1) of Section 44; and the order of single Judge of this Court was passed under sub-section (2) of Section 44 of the new Act. Can it be said that the Commissioner while exercising his appellate jurisdict