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HIGH COURT OF ORISSA
G. K. Misra, C. J. And R. N. Misra, J.
BHRAMARBAR SANTRA - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 1759 Of 1968
Decided On : SEPTEMBER 19, 1969
HINDU RELIGIOUS ENDOWMENTS ACT - SECTION 27 - APPOINTMENT OF NON-HEREDITARY TRUSTEES - JURISDICTION OF ASSISTANT COMMISSIONER - DETERMINATION OF PUBLIC OR PRIVATE INSTITUTION AND EXISTENCE OF HEREDITARY TRUSTEES - SECTION 41 - ENQUIRY AND DECISION - SECTION 74 - PROCEDURE FOR ENQUIRIES AND APPEALS - SECTION 76 - RULE MAKING POWER - RULE 43 - APPLICABILITY OF CIVIL PROCEDURE CODE AND INDIAN EVIDENCE ACT - SECTION 68 - DELIVERY OF POSSESSION - WRIT APPLICATION - QUASHING OF ORDERS - WRIT OF CERTIORARI AND MANDAMUS.
Fact of the Case:
A dispute arose regarding the nature of a temple, whether it was public or private, and the existence of hereditary trustees. The petitioners, claiming to be hereditary trustees, filed an application under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act II of 1952) for a declaration that the institution was private and that they were the hereditary trustees thereof. The Assistant Endowments Commissioner, without determining these questions, appointed non-hereditary trustees under Section 27 of the Act and directed delivery of possession of the institution and its properties under Section 68. The petitioners filed a writ application challenging the orders.
Finding of the Court:
The Court held that the Assistant Endowments Commissioner had no jurisdiction to appoint non-hereditary trustees under Section 27 of the Act without first determining the questions of whether the institution was public or private and whether there were hereditary trustees, as these matters were to be determined in a proceeding under Section 41. The Court further held that Section 68, which deals with putting the trustee or the executive officer in possession, could only be invoked after a valid appointment of trustees under Section 27.
Issues: 1. Whether the Assistant Endowments Commissioner had jurisdiction to appoint non-hereditary trustees under Section 27 of the Act without first determining the questions of whether the institution was public or private and whether there were hereditary trustees? 2. Whether Section 68, which deals with putting the trustee or the executive officer in possession, could be invoked after a valid appointment of trustees under Section 27?
Ratio Decidendi: 1. The Court held that the Assistant Endowments Commissioner had no jurisdiction to appoint non-hereditary trustees under Section 27 of the Act without first determining the questions of whether the institution was public or private and whether there were hereditary trustees, as these matters were to be determined in a proceeding under Section 41. The Court reasoned that Section 27 did not expressly confer jurisdiction on the Assistant Commissioner to determine these matters, and that such a construction would be unreasonable in light of the elaborate enquiry provided for in Section 41, with right of appeal under Section 44. The Court also noted that Section 28, which deals with the power to suspend, remove or dismiss trustees, provided for a right of appeal and second appeal, while Section 27 did not, which further supported the conclusion that the Assistant Commissioner did not have jurisdiction to determine these matters under Section 27. 2. The Court held that Section 68, which deals with putting the trustee or the executive officer in possession, could only be invoked after a valid appointment of trustees under Section 27. The Court reasoned that Section 68 was more or less ancillary to Section 27, and that if the order passed under Section 27 was without jurisdiction, the order for delivery of possession passed in pursuance of that order could not also be sustained.
Final Decision: The Court allowed the writ application, quashed the impugned orders passed under Sections 27 and 68 of the Act, as also the order passed in revision by the Endowments Commissioner, and issued a writ of certiorari and mandamus.
G. K. MISRA, C. J.
( 1 ) THE facts of the case may be stated in brief. In Tune 1966 an application was filed under Section 27 of the Orissa Hindu Religious Endowments Act 1951 (Orissa act II of 1952) (hereinafter referred to as the Act), by 40 villagers alleging that the temple of Sri Lokenath Iswar Deb installed in village Bantala, in Nayagarh Sub-Division of the district of Puri, is a public temple, of which the petitioners in this writ application are the marfatdars. The maifatdars were treating the properties of the temple as their private properties. The nitis of the Deity were almost on the point of being stopped. The applicants prayed that non-hereditary trustees should be appointed for the management, of the temple. On 31-7-66 the petitioners were directed to submit accounts. On 4-8-66 the Inspector of Endowments was directed to furnish a report as to whether the endowment was public or private. On 6-9-66, the Inspector, after a local enquiry, reported that the temple was constructed by the villagers and the marfatdars and that the petitioners were in management. It was further reported that the villagers of Bantala and the Marfatdars come from one family and the members of the public from different villages come to the deity for Darshan,, and do Puja as a matter of right. He came to the conclusion that the institution was a public temple and suggested the names of five persons for appointment as non-hereditary trustees. On 4-11-66 the Assistant Endowments commissioner invited objections by proclamation against the proposed personnel of the board of non-hereditary trustees. On 17-11-1966 the petitioners filed their objection claiming the institution to be private and that they were the hereditary trustees. On 28-1-67 the villagers filed a petition of complaint against the petitioners. On 2-5-67 the Additional Assistant Endowments Commissioner held that the institution was a public temple. He did not record any finding whether the petitioners were hereditary trustees or not; approving the suggestion of the inspector of Endowments he appointed five non-hereditary trustees. Opposite party No. 4 is one of the trustees representing the five non-hereditary trustees so appointed. A direction was given that the marfatdars (petitioners) would hand over charge of the Institution and its properties to the trust board within a week. On 15-5-67 the petitioners filed a revision, under Section 9 of the Act, against the order dated 2-5-67. On 27-5-67, the non-hereditary trustees filed an application under Section 68, for delivery of possession of the institution and its properties. By his order dated 22-7-68, the Assistant Endowments Commissioner directed delivery of possession as prayed for. In the meantime, on 10-11-67 the petitioners filed an application under Section 41 of the Act for a declaration that the institution was private and that they were the hereditary trustees thereof. On 5-12-68 the revision case was dismissed by the Endowments Commissioner, and the Inspector of Endowments was directed to execute the writ of delivery of possession. On 2512-68 the Inspector of Endowments submitted a report that the writ was executed on 11-12-68. The writ application was filed on 23-12-68, it was admitted on 2412-68 and interim stay of the operation of the order for delivery of possession was granted.
( 2 ) THE petitioner's case is that the order of the Additional Assistant Endowments commissioner dated 2-5-67, appointing non-hereditary trustees of the institution under Section 27 of the Act and the order passed by the Assistant Endowments commissioner on 22-7-63 directing delivery of possession of the institution and its properties to the non-hereditary trustees under Section 68, are without jurisdiction. Their stand is that without a determination under Section 41 of the act as to whether the institution is private or public and a further determination as to whether the petitioners are hereditary trustees, the order passed under Se
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