S.K. Ray, Actg. C.J.
1. This writ application has been filed under Articles 226 and 227 of the Constitution of India for quashing the order of the Assistant Commissioner of Endowments dated 18-7-1974 (Annexure-2) and the order of the Commissioner of Endowments dated 6-2-1975 (Annexure-3) passed in revision confirming the aforesaid order of the Assistant Commissioner of Endowments.
2. The petitioner's case is that his ancestor, Arta Dev Acharya, had constructed a temple and installed Shri Dadhibaman Jew therein in a part of his residential premises and had endowed 15 acres of his Bramhottar Inam lands to the deity. The said Arta Dev Acharya and his successors looked after the management of the institution of Shri Dadhibaman Jew and its endowed properties. Thus, Arta Dev Acharya and after him his successors-in-interest constituted hereditary trustees of the said institution.
3. One of the co-sharers of the petitioner. Nilakantha Acharya, commenced a proceeding under Section 41 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as the 'Act') numbered as O. A. No. 104 of 1972 -before the Assistant Commissioner of Endowments for a declaration that the deity Shri Dadhibaman Jew is a private deity or in the alternative, for a declaration that the petitioner and his co-sharers are hereditary trustees in respect of the said institution, as Opposite Parties 3 to 7 had moved the Assistant Commissioner (Opposite Party No. 2) for appointment of a non-hereditary trustee in respect thereof. Subsequently, he filed a petition under Order 23, Rule 1, Civil Procedure Code for withdrawing the proceeding (O. A. No. 104/72) with permission to file a fresh one. This was allowed on 6-3-1974 (Annexure-1).
4. One of the co-sharer hereditary trustees, on his own initiation and without knowledge of other co-sharer trustees, started a proceeding under Section 130 of the Orissa Estates Abolition Act for a declaration that the properties dedicated to the deity, Shri Dadhibaman Jew, was a trust estate The Tribunal by its order dated 20-12-1966 (Annexure-A/1) declared the endowed lands of the deity to be trust estate as its income was spent for charitable and other public beneficial purposes. As soon as the petitioner and other co-sharers were apprised of this order (Annexure-A/1), they filed a suit in the court of the Munsif, Dendrapara for Declarations that Shri Dadhibaman Jew was their private deity and that the properties had been partially dedicated to him. That suit is pending in C. R. No. 66 of 1974 on the point of maintainability, in this High Court.
5. Subsequently, on 18-7-1974 the Assistant Commissioner of Endowments (O. P. No. 2) in purported exercise of his jurisdiction under Section 27 of the Act passed the impugned order (Annexure-2) which runs as follows:--
'Perused the note of D/A. The petitioners Nilakantha Acharya and others who had filed O. A. 104/72 under Section 41 of the Act claiming the institution to be their private one in the alternative to declare them as H/T. have withdrawn the case with permission to file fresh case under Order 23, Rule 1 Civil Procedure Code. Hence now a non-hereditary trustee Board can safely be framed. The persons suggested are provisionally appointed as N. H. Ts. under Section 27 of the Act, subject to modification if any on receipt of objection within one month. Issue appointment order and notice of publication.'
6. The correctness of this order was questioned by one of the co-sharer hereditary trustees in revision before the Commissioner of Endowments, numbered as R. C. No. 17 of 1974. The Commissioner of Endowments passed his impugned order dated 6-2-1975 (Annexure-3) dismissing the revision and upholding Annexure-2. In passing his order, the Commissioner of Endowments has recorded, inter alia, the following findings:--
(a) The Assistant Commissioner after enquiry was satisfied that the institution was a public one without any hereditary trustee;
(b) The petitioners have not established their claim as to their private ownership of the institution nor their right as hereditary trustees of the institution; and (c) When the Assistant Commissioner has appointed a non-hereditary trust board for the institution, it pre-supposes that he was satisfied that there was no hereditary trustee for the institution.
7. The petitioner has raised the following contentions:--
(a) The condition precedent to exercise of jurisdiction under Section 27 of the Act is that the Assistant Commissioner of Endowments should first determine that the institution is a public one and that there are no hereditary trustees in respect thereof, and there is no prior determination of such condition precedent;
(b) The finding of the Commissioner in para. 4 of his order that the Assistant Commissioner after enquiry was satisfied that the institution is a public one without any hereditary trustee is an error of record. Further such an enquiry cannot be presupposed from the mere fact of constitution of a non-hereditary trust board; and
(c) Even though the petitioner and his co-sharers have not established their claim to hereditary trusteeship of the institution in a proceeding under Section 41 of the Act, the Assistant Commissioner of Endowments should have suo motu initiated a proceeding thereunder to reach his prior determination that the institution is a public one and that there are no hereditary trustees in respect thereof.
8. Sub-section (1) of Section 27of the Act runs as follows:--
'27. Non-hereditary trustees, their number and appointment:-- (1) The Assistant Commissioner shall, in cases where there is no hereditary trustee, appoint non-hereditary trustee 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. XX XX XX XX'
On a plain reading of this provision it is clear that the conditions precedent for exercise of the jurisdiction thereunder are (a) that the institution should be public and (b) that there should be no hereditary trustees. Without prior determination of existence of these two conditions an order of appointment of non-hereditary trustees would be illegal and without jurisdiction. For satisfaction of these conditions precedent the Assistant Commissioner may suo motu start a proceeding under Section 41 of the Act. This position of law has been recognised by this Court as also by the Supreme Court.
In the case of Bhramarbar Santra v. State of Orissa, (1970) 36 Cut LT 897 = (AIR 1970 Ori 141), their Lordships held that there must be a prior determination that the institution is public with no hereditary trustees before appointing any non-hereditary trustee in pursuance of Section 27 of the Act. If there is a proceeding under Section 41 of the Act, the Assistant Commissioner of Endowments cannot arbitrarily exercise jurisdiction under Section 27 thereof by deferring the enquiry under Section 41. If there is no proceeding under Section 41 pending at the instance of private parties, it will be open to the Assistant Commissioner to start an enquiry under Section 41 suo motu. An appeal was carried from this decision to the Supreme Court and failed (See the case of Hindu Religious Endowments v. B. Samitra, AIR 1976 SC 1059). Their Lordships of the Supreme Court in upholding- the decision of this Court said as follows:--
'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.
It is important to note that the Assistant Commissioner can appoint 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-existence of a hereditary trustee 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.
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.'
9. As conceded by Mr. Mohanty, the learned counsel for the opposite parties, there was, in fact, no enquiry held by the Assistant Commissioner of Endowments for prior determination of the two pre-conditions envisaged in Section 27 of the Act. No records have been produced to show that there was any such enquiry. Thus, the finding of the Commissioner in para. 4 of his order that there was such an inquiry is undoubtedly an error of record. There is also no scope for presupposing of holding of such an enquiry from the mere fact of constitution of a non-hereditary trust board. The Assistant Commissioner of Endowments should have started a suo motu proceedings under Section 41 of the Act before exercising his jurisdiction in constituting a non-hereditary trust board, as has been held by this Court in Bhramarbar Santra's case (AIR 1970 Ori 141) (supra), in the absence of any such proceeding having been initiated at the instance of the parties. All the contentions of the petitioner, therefore, succeed.
10. In result, Annexures-2 and 3 cannot be upheld and are hereby quashed by issuing a writ of certiorari. The entire matter is remitted back to the Assistant Commissioner of Endowments who is to start an enquiry under Section 41 of the Act suo motu, if a proceeding thereunder has not, in the meantime, been instituted, and determine the two preconditions as envisaged under Section 27 of the Act before exercising his jurisdiction thereunder for appointment of non-hereditary trust board, namely, that the institution is a public one and that it had no hereditary trustees. If he finds that the institution is a public one and that it has no hereditary trustees, he may then proceed to appoint a non-hereditary trust board.
11. The writ application, accordingly, succeeds and is allowed; but in the circumstances of the case there will be no order for costs.
12. Writ application is allowed, but without costs.
13. I agree.