P.C. Misra, J.
1. The petitioner in this Writ application challenges the proceeding under Section 42 of the Orissa Hindu Religious Endowment Act, 1951 (for short, the 'Act'.') initiated for framing of a scheme and seeks to quash the said proceeding and the orders passed therein in which, the Commissioner of Endowments has decided that a scheme should be framed though the actual scheme has not yet been framed.
2. The Additional Assistant Commissioner of Endowments is said to have visited the Institution in question and submitted a report on 15. 3.1977 indicating that there are some alienations and other defaults by the person in management and recommended for a scheme to be settled in respect of the Institution. After submission of the report by the Additional Assistant Commissioner, the Commissioner of Endowments passed an order on 5. 4. 1977 to the following effect:-
'Perused the preliminary report submitted by A. A. C. Issue notice for publication through the I. E. inviting representa. tions from Trustees and persons interested against the proposal to frame a scheme as recommended by the A. A. C. fixing 17. 5. 1977.'
In the order sheets of the subsequent dates it has been indicated that no representation was received except that of the Mahant of the Institution, which was considered by the Commissioner and the order dated 16. 11. 1977 was passed directing that a scheme should be framed for the proper administration of the institution.
3. This being an Institution managed by a hereditary trustee, the proceeding under section-42 of the Act for framing of a scheme should be by the Commissioner of Endowments. The provision in Section 42 of the Act is to the effect that the Assistant Commissioner of Endowments shall submit a report to the Commissioner of Endowment who shall hold an enquiry in the manner prescribed and if he is satisfied after enquiry that in the interest of the proper administration of such Institution a scheme of administration should be settled, he shall consult the trustee and the persons having interest in the prescribed manner and by order settle a scheme of administration for the-Institution. The language of Section 42 of the Act is clear that on receipt of a report from the Assistant Commissioner, the Commissioner is to make an enquiry for the purpose of deciding as to whether a scheme for proper administration of the Institution shall be framed or not. Once the Commissioner comes to a conclusion that a scheme should be framed in the interest of proper administration of the Institution, he shall then proceed to consult the Trustees as also the persons having interest in the matter and draw out the scheme containing necessary details.
4. In this case the Commissioner after receipt of the report submitted by the Additional Assistant Commissioner issued notice by publication inviting the representations from the Trustees as also from the persons interested in the Institution, as if he has already reached a conclusion that a schema shall be settled. Such a stage would have come only after the Commissioner holds anenquiry giving due opportunity to the Trustees who are directly affected by the forming of a scheme and not earlier. At any rate, it appears that the Mahanta of the Institution who is the Trustee of the Institution has filed a representation denying the allegations made in the notice. The Commissioner without holding any enquiry passed an order on 16. 11. 1977 merely on the basis of the report of the Additional Assistant Commissioner and rea hed at some conculsion for which we do nor, find sufiicient basis on record.
5. As already stated the enquiry envisaged under section 42 of the Act by the Commissioner should be in conformity with the provisions of the Code of Civil Procedure giving adequate opportunity to the persons who are likely to be affected thereby. The ruport of the Additional Commissioner could not be utilised against the present petitioner without giving an opportunity of meeting the observations made therein either by cross examining the person reporting or by any other means known to law. After giving our anxious consideration to the said order we find no justification to support the same. Accordingly, the order passed in the proceeding from 5. 4. 1977 onwards are quashed and the proceeding is sent back to the Deputy Commissioner of Endowments who has now the authority to hold the enquiry after the amendment of the Act. The proceeding shall proceed from the stage of issue of notice after receipt of the report of the Additional Assistant Commissioner of Endowments.
6. Opposite party No.5 has been appointed as an interim Trustee by the Commissioner of Endowments in exercise of the powers conferred on him under Section 7 of the Act. Mr. Misra appearing for the petitioner contends that the said order appointing opposite party No. 5 as an Interim Trustee should be varrid and it is he who should be appointed an Interim Trustee either under Section-7 or under Section 42 (5) of the Act. It is open for Mr. Misra to make an appropriate representation before the Deputy Commissioner who will be in Session of the matter and in the event such a representation is made, the same shall be disposed of by the Deputy Commissioner in accordance with law. Mr. Ranjit Mohanty, appearing for opposite party No. 5 submits that this proceeding Under Section 42 of the Act may be unnecessary in as much as a scheme has already been settled in respect of the main Institution of which the disputed Institution is a branch. In course of hearing of the proceeding under Section 42 of the Act, it is open for opposite party No. 5 to raise such a question to be decided by the Deputy Commissioner of Endowment, and therefore, we need not dispose of the said contention.
7. In the result the writ application is allowed, the proceeding under Section 42 of the Act is remanded to the Deputy Commissioner of Endowment who will dispose of the same in accordance with law keeping in view the direction made above, No costs.
G.B. Patnaik, J.
8. I agree.