P.K. Mohanti, J.
1. Challenge in these two writ applications is to an order of the learned Commissioner of Endowments deciding a dispute regarding succession to hereditary trusteeship of a temple under the provisions of Section30 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the 'Act'). Both the writ applications have been heard together and will be disposed of by this common judgment.
2. Admittedly, the institution of Shri Jagannath and Shri Gopinath Mahaprabhu at Mathura under Kodala Tahasil in the district of Ganjam is a temple managed by hereditary trustees. One Rama Krushna Das was the hereditary trustee of the temple and after his death, his chela Banamali Das became the hereditary trustee, Banamali Das by a document dated 18-3-1971 nominated the petitioner as his chela. But by a subsequent document dated 5-3-1973 he cancelled the nomination. He died on 21-12-1974. After his death, a dispute arose between the petitioner and O. P. Nos. 1 and 2 as to the succession to the hereditary trusteeship of the temple. The petitioner filed a petition for declaration that he was entitled to succeed to the hereditary trusteeship. O. P. No. 1 Baishnab Charan Das and O. P. No. 2 Ramananda Das also filed similar petitions. The learned Commissioner of Endowments, after hearing the parties, accepted the claim of O. P. No. 1 Baishnab Charan Das to succeed to the office of the hereditary trustee of the institution. Aggrieved by this order, the petitioner has come up to this Court.
3. It is urged on behalf of the petitioner that under Sub-section (3) of Section 30 of the Act when a permanent vacancy occurs in the office of the hereditary trustee and there is a dispute regarding right of succession to the office, the Commissioner is empowered only to appoint a fit person to discharge the functions of the trustee of the institution until another hereditary trustee succeeds to the office and that he has no jurisdiction to decide the claim of hereditary trusteeship. Thus, the order of the learned Commissioner is attacked as being contrary to law and without jurisdiction.
4. The stand taken by O. P. No. 1 Baishnab Charan Das is that under Section 30 (1) of the Act, the Commissioner is entitled to determine and recognize, on the death of a hereditary trustee, who is next in the line of succession and as such entitled to succeed to the office of hereditary trustee O. P. No. 2 Ramananda Das took the stand that a person claiming to be the hereditary trustee can establish his right in a Civil Court by a civil suit and the writ application is not maintainable.
5. The question that arises for consideration in both the writ applications is whether the Commissioner in exercise of his jurisdiction under Section 30 of the Act can decide the individual claim of hereditary trusteeship.
6. Section 30 of the Act runs as follows :--
'30. Filling up of vacancies in the office of hereditary trustee:--
(1) When a permanent vacancy occurs in the office of the hereditary trustee of such religious institution, the next in the line of succession shall be entitled to succeed to the office.
(2) When a temporary vacancy occurs in such an office by reason of the suspension of the hereditary trustee under Sub-section (1) of Section 28 or by reason of his ceasing to hold office under the provisions of Section 29, the next in the line of succession shall be appointed to discharge the functions of the trustee until his disability ceases,
(3) When a permanent or temporary vacancy occurs in such an office and there is a dispute respecting the right of succession to the office, or when such vacancy cannot be filled up immediately or when a hereditary trustee is minor and has no legally constituted guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act assuch guardian, the Commissioner may, appoint a fit person to discharge the functions of the trustee of the institution until the disability of the hereditary trustee ceases or another hereditary trustee succeeds to the office or for such shorter term as the Commissioner may direct. The Commissioner shall have power to remove such interim trustee for the reasons specified in Section 28.
Explanation:-- In making any appointment under this sub-section the Commissioner, shall have due regard to the claims of members of the family, if any entitled to the succession.
(4) Nothing in this section shall affect the right of any person aggrieved by an order of the Commissioner under Sub-section (3) to establish the right to hold office of the hereditary trustee in a Court of law: Provided that such Court shall have no power to stay the operation of the order of the Commissioner, pending the disposal of the suit or other proceedings in relation thereto.'
7. The legal position is well settled that a right to succeed to a hereditary office is a right to property. A claim to such a right is normally cognizable by a civil Court unless that jurisdiction is taken away by statute either expressly or by necessary implication.
8. Section 73 of the Act provides:
'73. Bar of suits in respect of administration of religious institution :--
(1) No suit or other legal proceeding in respect of the administration of a religious institution or in respect of any other matter on dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act.
(2) Nothing contained in this section shall affect the right of the trustee appointed under the Act of a religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights or such institution as a beneficiary.'
9. The bar imposed by Section 73 would, thus, apply for determination by a civil Court of any dispute for determining and deciding which a provision has been made in the Act.
10. Section 41 of the Act specifies the disputes which can be decided by the authorities under the Act. According to Subsection (1) (c) of this section the Asst.Commissioner is empowered to inquire into and decide a dispute as to whether a trustee holds or held office as a hereditary trustee. It does not expressly or impliedly provide for the determination of a dispute of the kind raised before the learned Commissioner, that is, the claim to succeed to the office of hereditary trustee. If Section 41 had been meant by the legislature to include a dispute of the present nature also that is, a dispute respecting the right to the succession of office, the language of Section41 would have been different.
11. If the dispute is whether the office of a trustee of a given religious institution is hereditary it would certainly come within the ambit of Section 41 (1) (c). But a dispute between rival claimants to succeed to the office of the hereditary trustee is, in our opinion, outside the scope of Section 41 (1) (c). The Asst. Commissioner can decide only whether the trusteeship in relation to a temple is hereditary or not. But neither the Commissioner nor the Asst. Commissioner has any jurisdiction to decide whether a particular person is entitled to succeed to the hereditary trusteeship. Since it is accepted that the office itself is hereditary, the real dispute between the parties is who is entitled to hold that office.
12. The jurisdiction of the Commissioner under Section 30 of the Act is only to make interim arrangement for the preservation of the endowment until the dispute regarding succession to the office of the hereditary trustee is decided in a properly constituted civil suit. No doubt, Subsection (1) of Section30 provides that when a permanent vacancy occurs in the office of the hereditary trustee of a religious institution, the next in the line of succession shall be entitled to succeed to the office. In our opinion, this is only declaratory of the hereditary right. It does not invest the Commissioner with the power to decide the individual claim of hereditary trusteeship.
13. Two essential conditions are to exist before the jurisdiction under Section 30 (3) is invoked by the Commissioner. These are: (1) a vacancy must occur in the office of the hereditary trustee and (2) there must be a dispute respecting the right of succession to such office. Admittedly the vacancy that arose in this case was a permanent one and there was a dispute as to which of the rival claimants was entitled to succeed. The Commissioner was not competent to go into the question as to which one of the rival claimants is entitled to succeed. There is no dispute that the office is hereditary but the dispute is who should succeed to that office. Section 30 provides for interim arrangement being made by the Commissioner till the dispute over succession is decided. The appointment of a fit person is made under Section 30 of the Act only to safeguard the interests of the institution. The learned Commissioner of Endowments acted without jurisdiction in deciding the individual claims of the rival claimants to succeed to the office of the hereditary trustee. In our opinion, such a dispute could not be entertained by the Commissioner. Instead of appointing a fit person to discharge the functions of a trustee, the Commissioner proceeded to decide the dispute as to who was entitled to succeed to the trusteeship.
14. Mr. S. Mohanty, the learned counsel appearing on behalf of the opp. parties submitted in course of his argument that the Commissioner while deciding the fitness of the person to be appointed under Section 30 has to consider whether such person is the next in the line of succession and accordingly in the present case the Commissioner has merely recognized the O. P. No. 1 as the next in the line of succession. It may well be that the Commissioner before appointing a fit person under Section30 may have to tentatively decide whether the person to be appointed is a stranger or is the next in the line of succession. But in this case the Commissioner appears to have decided the competing claims and arrived at the conclusion that the petitioner is entitled to succeed. Instead of appointing a fit person to discharge the functions of a trustee, the Commissioner has accepted the claim of O. P. No. 1 to succeed to hereditary trusteeship. Since there is a dispute regarding the right of succession wherein question regarding validity of the deed of cancellation executed by Banamali Das has to be decided the Commissioner has no power to decide that question. We make it clear that the jurisdiction to decide the dispute regarding succession is with the ordinary civil Court of the land and not with the Commissioner.
15. In view of our foregoing conclusions, we quash the order of the learned Commissioner and call upon him to appoint a fit person to discharge the functions of a trustee until another hereditary trustee succeeds to the office. Both the writ applications are allowed with costs against O. P. No. 1 only. Hearing fee is assessed at Rs. 100/-.