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 section V Gupte Solicitor General and R N Sachthey for respondent No 1
in both the appeals
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 section 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 section 641 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 section 65 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 section 642 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 01 r 8 of the Civil Procedure Code
The High Court took the view that the omission to implied the public in a suit under section 642 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 vs Commissioner Hindu Religious Endowments Orissa1 The question of law involved in this appeal is whether the High Court is right in its view that in a suit brought under section 64 2 of the Act the public should be impleaded as necessary parties under 0 1 r 8 of the Civil Procedure Code
Section 613 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 65 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 section 642 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 01 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 section 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 section 641 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 section 641 of the Act there 1 ILR 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 section 642 of the Act In our opinion the suit brought under section 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 section 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 vs Brown1 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 vs 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 section 642 of the Act the members of the public were necessary parties and it was incumbent on the plaintiff to follow the provisions of 01 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 PW M 103


Summary:
The Commissioner of Hindu Religious Endowments the respondent herein acting under section 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 section 641 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 section 65 of trustees
Thereafter the appellant s father filed a suit under section 642 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 section 642 of the Act is not a suit of the nature contemplated by 01 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