1. This is a petition under Article 226 of the Constitution against the order of the commissioner Hindu Religious Endowments, Orissa, dated the 4-2-1956, passed under Section 36 of the Orissa Hindu Religious Endowments Act 1951 (Orissa Act II of 1952). (hereinafter referred to as the Orissa Act).
2. Mahant Sri Jagannath Ramanuj Das of Dakshina Parswa Math, Puri, died on the 7-9-1956. He did not give any intimation to the Endowments Commissioner about the nomination of his successor, as required by Section 39 of the Orissa Act. It is admitted that the said Math is a Maurasi Math following the Sri Sampradaya of the famous Vaishnavite Saint, Sri Ramanuja. Soon after the death of the said Mahant, the Endowments Commissioner purporting to act under Section 36 of the Act invited by public notice claims about the successor of the said Mahant. The petitioner was the only claimant before the Commissioner. He gave an intimation to the Commissioner, on the 10-10-1956, to the effect that he was the duly constituted and initiated Chela of the late Mahant, Sri Jagannath Ramanuja Das and that he succeeded to the Ma-hantship soon after the death of the last Mahant. He also stated that he duly performed the Sradh and Sudhi Kriya of the deceased Mahant and was functioning as the Mahant of the paid Math. The Endowments Commissioner however, by a proclamation invited all persons interested in the Math to give evidence before him as to who was the true successor or the deceased Mahant. He examined witnesses on the 15th and 16th November 1956 and held that the evidence adduced before him did not show that the petitioner was the duly initiated Chela of the said Mahant. He believed the evidence of the witnesses to the effect that the Upanayan of the petitioner was done by the deceased Mahant and that he performed his Kriyas, but an the petitioner was admittedly the brother's son of the deceased Mahant he thought that the performance of these ceremonies alone would not suffice to show that he was the duly appointed Chela. In coming to this conclusion he was very much influenced by the absence of evidence to show that any Biraja Homa was performed when the petitioner was said to have been initiated as Chela, or that Kanthi and Kowpin were given to him. He did not accept the evidence of the witnesses about the imprinting of the marks of Sankha and Chakra on the arms of the petitioner with heated dyes, by the deceased Mahant.
3. Mr. M. Mohanty on behalf of the petitioner. contended that the Endowments Commissioner went beyond his jurisdiction in making an enquiry under Section 36 of the Orissa Act when there was no rival claim to the Mahantship. According to him where there is a sole claimant to the office of trustee of a Math the Commissioner is bound to recognise him as the true successor of the previous Mahant and he had no jurisdiction to make an elaborate enquiry with a view to satisfy himself that the appropriate religious ceremonies for the initiation of the Chela were duly performed.
4. The relevant provisions of Sub-section (1) of Section 36 of the Orissa Act (omitting immaterial portions) are as follows:
'36(1) When a vacancy occurs in the office of the trustee of a Math........and there is a disputerespecting the right of succession to, such office........the Commissioner, after being satisfied that an arrangement for the administration of the Math and its endowment is necessary ......... shall make suchappointment and arrangements as he thinks fituntil the dispute is settled ........'
According to Mr. Mohanty the jurisdiction of the Endowments Commissioner to act under Section 36 (1) arises only when the following two conditions are fulfilled:
(1) The occurrence of a vacancy; and
(2) The existence of a dispute respecting the right of succession.
The expression 'dispute' occurring in the aforesaid section, according to Mr. Mohanty, conveys the idea that there must be rival contesting claimants before the Endowments Commissioner for succession to the Mahantship, but where there is a sole claimant there is no dispute at all. He further urged that it was not open to the Commissioner to raise a dispute himself and then conduct an enquiry with a view to ascertain whether the sole claimant was validly initiated as the Chela of the last Mahant in accordance with the usage of the Math.
5. The Orissa Act and its predecessor (The Orissa Hindu Religious Endowments Act, 1939) were both modelled on the Madras Hindu Religious Endowments Act 1927 (Madras Act II of 1927) subject, of course, to certain modifications and alterations necessary to suit the peculiar conditions of Orissa. Hence the decisions of the. Madras High Court on the corresponding provisions of the Madras Act will bo helpful in examining the correctness of the arguments raised by Mr. Mohanty. Section 36 of the Orissa Act corresponds to Section 42 of the Madras Act where also it is provided that if there is a vacancy in the office of the hereditary trustee and there is a dispute respecting the right of succession to such office the Madras Hindu Religious Endowments Board may make interim arrangements for the management of the endowment until another trustee succeeds to the office. Doubtless, there is no decision of the Madras High Court, regarding the construction of the expression 'dispute' occurring in that particular Section, but the same expression occurs in Section 84 of the Madras Act which is as follows :
'84(1) If any dispute arises as to (a) whether an institution is a math or temple as defined in the act ... .. .. .. such dispute shall be decided by the Board.''
There are several decisions of the Madras High Court to the effect that the expression 'dispute' occurring in the aforesaid Section does not necessarily imply that there must be two contestants and that even though no private party may raise a dispute as to whether a trustee is a hereditary trustee or not, the Endowments Board may itself raise such a dispute and may also decide the question, leaving it to the aggrieved party to apply to the Civil Court to set aside that decision as provided in Sub-section (2) of that section. See Unikantha v. Board of Commrs. for Hindu Religious Endowments Board AIR 1929 Mad 35 (A) and Rajagopala Chettiar v. Hindu Religious Endowments Board AIR 1934 Mad 555 (33). There is also a very recent decision of the Madras High Court reported in Ramaswamy v. Hindu Religious Endowments Board AIR 1951 Mad 473 (C) where, it was held, by the majority of the Judges as follows:
'Section 84(1) does not insist that the dispute should be brought before the Board by means ofan independent application or original petition, or that the dispute contemplated by the Section should be the only matter arising for the decision of the Board.'
There Is thus sufficient authority to show that a 'dispute' within the meaning of that expression occurring in Section 84(1) of the Madras Act may arise even though there are no two contesting parties before the Endowment Board. It is a well known rule of statutory construction that words and phrases should be given the same meaning throughout the Act unless there is something repugnant in the subject Or context. Hence the construction of the expression 'dispute' occurring in Section 64 of the Madras Act. given by the Madras High Court, would apply with equal force in construing the same expression occurring in Section 42 of that Act and there is nothing in the subject or context of Section 42, for Riving a different construction to that expression. I am therefore unable to accept the extreme contention put forward by Mr. Mohanty that'the 'dispute' contemplated in Section 36(1) of'the Orissa Act (corresponding to s. 42(1) of the Madras Act) would not arise unless there are rival claimants to the right to succeed to the office of Mahant. In the Orissa Act also, the Section corresponding to Section 84(1) of the Madras Act is Section 41(1) (corresponding to Section 64 of the Orissa Act of 1939). There is not much difference in the language of these sections. Hence, the Madras decisions referred to above may be followed in construing the expression 'dispute' occurring in the Orissa Act.
6. To cite an extreme case, by way of illustration if a Mahant dies without nominating his successor and if an impostor who has not even an arguable case to succeed to the Mahantship comes forward as his duly appointed Chela, it will not be proper to hold that the Commissioner of Hindu Religious Endowments has no jurisdiction at all to make an enquiry under Section 36(1) merely because no rival claimant appears on the scene. The preservation of the endowment is the paramount duty of the Commissioner and his jurisdiction to make interim arrangements for the preservation of the endowment until valid succession to the office of Mahant is decided by a properly constituted Court cannot be easily taken away. But at the same time any attempt by the Endowments commissioner to clutch at jurisdiction with a view to take over the administration of the Math, even though a claimant who has. prima facie, a good claim to succeed to the office has come forward and there is no other claimant to challenge his right, should be deprecated: and where it appears to this Court, on the facts of a particular case that the Commissioner has acted either capriciously or unreasonably, it will have to interfere in exercise of its extraordinary jurisdiction under Article 226 of the Constitution.
7. It will be fantastic to say that the petitioner is a mere impostor with not even an arguable case to succeed to the Mahantship. Admittedly, the Unanayan of the petitioner was performed by the previous Mahant and in the printed invitation for that ceremony the petitioner was clearly described as the Chela of the previous Mahant. He has been living in the Math as his Chela and in some of the papers of the Endowments Department also he was described as the Chela Maharaj see Annexures B and C. He performed the Sradh of the deceased Mahant and the other Mahants of Puri attended his Installation Ceremony and duly recognised him as the successor of the previous Mahant. No other person has yet come forward to challenge the right of the petitioner. In such circumstances the proper course for the Endowments Commissioner would be to recognise the petitioner as the successor of the deceased Mahant, leaving It to anv future rival claimant to challenge his right in the Civil Court. Any elaborate enquiry as to whether all the formalities required for the due initiation of a Chela, in accordance with the usages of the Math, have been strictly complied with was not called for in the peculiar circumstances of this case.
8. I would, therefore allow this petition, set aside the order of the Endowments Commissioner, dated the 4-12-1956 and direct that the petitioner be recognised as the successor of the late Mahant Shri Jagannath Ramanuja Das of Dakshinaparswa Math Puri, until the right of succession to the Mahantship is finally decided in the Civil Court if the dispute is taken to that Court by any party. The petitioner will be entitled to costs. The hearing fee is fixed at Rs. 100/- (Rupees one hundered only).
P.V.B. Rao, J.
9. I agree with the order proposed by my Lord that the order of the Endowments Commissioner dated 4-12-1956 be set aside and this petition allowed with costs.
10. I am not convinced that in this case the conditions that there should be a vacancy in the office of the trustee of a Math and a dispute respecting the right of succession to such office under Section 36 of the Orissa Act to enable the Endowments Commissioner to appoint an interim trustee are satisfied. A dispute respecting the right of succession to such office contemplates the existence of rival claims. The endowments commissioner himself by not recognising the right of a Chela to succeed cannot be said to raise a dispute regarding the right of succession to such office.
11. No doubt, there are decisions of the Madras High Court which go to show that under Section 84. of the Madras Act Clause (1) the word 'dispute' in the expression if any dispute arises as to' (sic) arises if the Endowments Board does not accept the claim of the applicant that the institution is a math or a temple or that he is hereditary trustee or that any endowment is a specific endowment. The decisions clearly show that there should be a claim made by a person with regard to the subject enumerated in Sub-clause (a) to (c) of Section 84 (1) when the Endowments Board by not acpepting the claim put forward raises a dispute which shall be decided by the Board. In my opinion, under Section 84, the Endowments Board cannot act unless there is an applicant before it. In the case of AIR 1929 Mad 85. (A), the learned Judge Mr, Kumaraswaml Sastri. J. held that.
'Even where the Board denies in its written statement the allegation that the suit-temple was a private temple and states that it was a public temple, it does not preclude itself from exercising the functions of a tribunal and deciding the question whether the temple was public or private.
Where some members of the Board after making inquiries, stated in the written statement of the Board that the suit temple was not private but public, the other members of the Board are not debarred from acting as tribunal to decide the same question under jurisdiction given to the Board by Section 84.'
This, therefore, is a decision which is an authority for the position that the other members of the Board are not precluded from deciding the case if some of members deny the applicant's claim. According to the learned Judge it is the very nature of Section 84 that may lead to think that there is a dispute if the claim put forward under Section 84 is not accepted by the Board. The learned Judge observed at page 86,
'Section 84 therefore presupposes that the Endowments Board on the one side should affirm that the temple is a public temple and the Dharmakartha on the other that it is a private temple.'
and it is for that reason, he held,
'It is only then that a dispute will arise under Section 84 ... .... '
In the case of AIR 1934 Mad 555 (B) it was held,
'Where the question of the status of the temple is raised by the trustee for the purpose of getting the decision of the Board, there is a dispute which the Board is competent to decide under Section 84 (1).'.
This decision clearly contemplates an application claiming that the institution is a private endowment or that the applicant is a hereditary trustee, and if the Endowments Board does not accept it, there is a dispute which the Board is competent to decide. At page 555, the learned Judge observed:
'Apparently the question of the status of the temple was raised by the present trustee-petitioner for the purpose of getting the decision of the Board.'
The learned counsel Mr. Rajah Ayyar in that case conceded that the Board can initiate a dispute by challenging the status of a temple and can decide the question against the trustee who asserts that it is not a public temple or that it is an excepted temple. But he contended that in the circumstances of that case there was no dispute within the contemplation of Section 84. In the case of AIR 1951 Mad 473 (C), it was held,
'When, the Board decides a dispute as to whether an institution is a 'temple' as denned in the Act. whatever be the nature or stage of the proceeding in which such dispute arises or decision is given, the Board acts under Section 84 (1) of the Act. Section 84 (1) does not insist that the dispute should be brought before the Board by means of an independent application or original petition or that the dispute contemplated by the section should be the only matter arising for the decision of the Board.'
It was also held
'The only preliminary fact or condition that must exist in order to attract the Board's Jurisdiction under Section 84 (1) is the existence of a dispute as to whether an institution is a 'temple' as defined in the Act.'
The facts of the case clearly show that Ramaswami Servai filed a petition before the Board alleging that there should be a declaration by the Board that the trust created by Venkataswami was outside the scope of the Act and then the Board considered that application. These three decisions under Section 84 of the Madras Hindu Religious Endowments Act, in my view, proceed on the nature and amplitude of Section 84. This section deals with the functions of the Board under that Act and Section 2 of the said Act says that the Act extends to the whole of the Presidency of Madras and applies, save as hereinafter provided, to all Hindu public religious endowments. It is necessary that under Section 84 the Board should decide, by virtue of its powers and superintendence, whether it is a public endowment.
12. It is significant to note that as far as I am aware, there is no decision of the Madras High Court on the interpretation of the expression 'and there is a dispute respecting the right of succession to such office' in Section 42 of the Madras Act -corresponding to Section 36 of the Orissa Act. It may be that the Madras Endowments Board never acted under Section 42 of the Madras Act suo motu without applications by rival claimants. Though the word 'dispute' used in various places in the same Act generally should receive the same interpretation, yet taking into account the expression used in Section 36 of the Orissa Act I think, the interpretation received for the word 'dispute' in Section 84 of the Madras Act should not be applied in construing the expression 'there is a dispute respecting the right of succession to such office' used in Section 36 of the Orissa Act.
13. Even assuming that these decisions are authorities for the position that the Endowments Board can raise a dispute itself, in my opinion, there is a distinction between the expressions in which the word 'dispute' arises in Section 84 of the Madras Act and Section 42 of the same Act corresponding to Section 36 of the Orissa Act. It is enough for the purposes of Section 84 as the expression shows 'if any dispute arises' for the purpose of the Board acting if It simply does not recognise the right claimed whereas under Section 36 of the Orissa Act corresponding to Section 42 of the Madras Act, there should be a dispute respecting the right of succession to such office before the Endowments Commissioner can proceed to act under Section 36.
In this view of the matter, in my opinion, unless there are claims by rival claimants, the Endowments Commissioner cannot act by simply not recognising the duly constituted Chela who succeeded to the Mahantashlp, simply by saying that he is not the duly constituted Chela. If the Endowments Commissioner under Section 36 is given that power, it would work a great hardship, because the Endowments Commissioner may. if he so likes, dispossess a rightful Mahant by merely saying that he does not recognise him to be the Chela. I think, this is not what Section 36 contemplates.
Under Section 36, the Endowments Commissioner can appoint an interim trustee or make any arrangement for the management of the trust oniy when a vacancy occurs in the office of the hereditary trustee and there is a dispute respecting the right of succession to such office and there can be a dispute under this section only when there are rival claimants to succeed.