LexHINDU RELIGIOUS ENDOWMENTS & ORS. versus B. SAMITRA & ORS.
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f ' 435 HINDU RELIGIOUS ENDOWMENTS & ORS. v. B. SAMITRA & ORS. February 20, 1976 [A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.] Orissa Hindu Religious Endowments Act, 1951-Secs. 27, 40, 44-Whether .appointment of tru_stees by Endown1ent Com1nissioner can be made under s. 27 without deterrnining the disputed points in sec. 40-Suo moto inquiry by Endow~ ments Comrnissioner under s. 40. Some villag~s made an applicat:on before the Assistant Commissioner of Endowments, Orissa, for appointment of non~hereditary trustees under s. 27 01 LU ... UL::.:.a H.nuu h,1,;ug1ou .. .bnuo,.,.ments A;;t, 1951, for Shiva temple which is more than 100 years old and possesses about 24 acres of land. A new temple was cons.ructed in place of the old dilapid<.ted 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 01 thi;; d~1ty. An enquiry v.·as ordered pur:::uant to which the lnspei..:tor submitted his report stating that the temple was a public temple and that res- pondents Nos. 1 to 3 did not show accounts to the Inspector and that, there- fore, names of 5 !~ersons were suggested for appointment of non-hereditary trustees. A proclama,i'- n in,,.itirg cbjections regarding the suit[b.lity of 5 per- son' \Vas issu ·rl. Af'er making a summary tnqui ·v in the presence of tbe villagers including respondents Nos. 1 to 3 the Additional Assistant Commis- sioner passed an order holding that the institution was a public one and appoint- ed 5 non-hereditary trustees under s. 27 of the Act. He, however, did not record any finding whether respondents Nos. 1 to 3 were hereditary trustees or not. A revision Appiication filed to the Commissioner of Hindu Religious Endowments failed. Respondents Nos. 1 to 3 filed a writ petiti'"'n in the High Court contending that the order of appointment of non-hereditary trustees under s. 27 of the Act rncroached upon the property rights of the respondents and were without jurisdiction and void having been passed without determining under s. 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 Hh!:h Court that the provision<; of s. 27 were independent and that it could be invoked without prior determination of the question under s. 41. The High Court allov•ed the writ petition holding that s. 27 should be applied only where in respect of the disputed in'ititution there had been a prior determination of the controversial rights mentioned in s. 41 and that before the Assistant Endowments Commissioner cou1d nro:eed under s. 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 tru<;tees thereof in existen-::e and in order to come to such a finding he ~hould have completf'd an enquiry under s. 41 which coupled with s. 44 provided for a judicial determination of these very questions. Under s. 41 in case of a dispute the Assistant Commissioner has power to enauire into and decide whether an institution is a public religious institution and whether a trustee holds office as a hereditary trustee. Under s. 27, the A'isistant Commissioner has power to appoint non-hereditary trustees in respect of each religious institution in cases v.'here there are no hereditary trustees. Dismissing the appeal, A B c D E F G HELD : 1. The Assistant Commissioner can appoint non-hereditary trustees under s. 27 of the Act only where two conditions are satisfied : H (i) that the religious institution is not an excepted one, and (ii) there are no hereditary trustees of the institution. 436 SUPREME COURT REPORTS [1976] 3 S.C.R. A For the exercise of the powers under s. 27. therefore, either there should~ be no dispute about the two conditions or if there is a dispute a prior determina- tion of such dispute under s. 41 of the Act has to be made. Without such preliminary determination an appointment of non-hereditary trustees under s. 41 since there is no specific prohibition. [4440-E] B 2. Under s. 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 ve1b.iiim. It is o
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