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 OJC 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
JC 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 OJC 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 alongwith 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 3xiii 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 3xii as follows 3xii 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 741 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 deem ed 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
442 761 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 76d 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 GRCO
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 ap point 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 thereunder 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 vs Ramesh Chandra Das  Ors1
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 GRCO
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
The State of Orissa2 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
vs State of Orissa9 
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 AIR 1959 Orissa 98
2 3  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
PHP Appeal dismissed


Summary:
Some villages made an application before the Assistant Commissioner of Endowments Orissa for appointment of non hereditary trustees under section 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 section 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 section 27 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 respondent were hereditary trustees
The appellants contended before the High Court that the provisions of section 27 were independent and that it could be invoked without prior determination of the question under section 41
The High Court allowed the writ petition holding that section 27 should be applied only 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 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 section 41 which coupled with section 44 provided for a judicial determination of these very questions
Under section 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 section 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 section 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
section 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 section 41 of the Act has to be made
Without such preliminary determination an appointment of non hereditary trustees under section 41 since there is no specific prohibition
444D E 2
Under section 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 section 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 section 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 section 41 since there is no specific prohibition
444D E