P.C. Misra, J.
1. The petitioners in this writ application have challenged the revi-sional order passed by the Commissioner of Endowments, Orissa, Bhubaneswar Under Section 9 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the 'Act') holding that the Assistant Commissioner of Endowments had no jurisdiction to appoint non-hereditary trustees Under Section 27 of the Act in respect of the religious Institution in question.
2. The Assistant Commissioner of Endowments, Bhubaneswar by his order dated 15-3-1988 appointed the petitioners as non-hereditary trustees of the religious institution of Sri Madan Mohan Deb and Sri Radha-mohan Deb situated at village Somapur in the District of Puri. After being so appointed the petitioners elected petitioner No. 1 to function as the Managing Trustee which in due course got approval of the Assistant Commissioner of Endowments. The Assistant Commissioner of Endowments (O.P.No. 2) issued an order to the Inspector of Endowments, Khurda purporting to be one Under Section 12 read with Section 7 of the Act authorising the latter to enter into the premises of the Institution, make an inventory of the properties, records and funds in presence of some gentlemen of the locality and handover the same to the Managing Trustee and report compliance within a fortnight from the date of receipt of the order (vide Annexure 1). The present opposite parties claiming the aforesaid institution as a private one preferred a revision (R.C. No. 18/88) before the Commissioner of Endowments, Bhubaneswar Under Section 9 of the Act challenging the legality of the order. It was mainly contended that the order passed by the Assistant Commissioner of Endowments appointing non-hereditary trustees Under Section 27 of the Act in respect of the said Institution is without jurisdiction inasmuch as there has been no prior determination as to whether the Institution is one having no hereditary trustee. In the revision application it was also contended that the petitioners claim the institution as a private one and there having been no determination as to the nature of the institution before appointing of non-hereditary trustees, the order is liable to be vacated. The Commissioner of Endowments after hearing both parties did not accept the contention of the present opposite party No. 3 that the Assistant Commissioner had no jurisdiction to appoint a non-hereditary trustee. On the other hand, it was held by the Commissioner of Endowments that the Assistant Commissioner in exercise of powers Under Section 27 read with Section 8-B of the Act could appoint non-hereditary trustees. But while going through the management file the Commissioner of Endowments noticed that the institution in question has been described as a math and is to be managed by the hereditary trustees and, therefore, the Assistant Commissioner could not have appointed non-hereditary trustees Under Section 27 of the Act.
3. There appears to be some confusion in the correct interpretation of Section 27 read with Section 6-B of the Act which requires elicidation. Section 27 of the Act reads 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-herditary 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.
(2) A non-hereditary trustee shall, unless he is sooner removed or dismissed or otherwise ceases to be a trustee, hold office for a period of two years from the date of his appointment:
Provided that the Assistant Commissioner, may for, sufficient reasons to be recorded by him, from time to time, extend the aforesaid term of office of a trustee, so, however, that the total extension so granted shall in no case exceed six months in the aggregate.
(3) Every non-hereditary trustee holding office immediately prior to the date of commencement of the Orissa Hindu Religious Endowments (Amendment) Act, 1978 shall cease to hold office as such on the completion of a period of two years from the date of his appointment or on the expiration of three months from the date of commencement of the said Act, whichever is later.'
The language of the Section admits no scope for any confusion that the Assistant Comissioner of Endowments will have the jurisdiction to appoint non-hereditary trustees in respect of a religious institution where there are no hereditary trustees. 'Religious institution' has been defined in the Act in Section 3(xiii) to mean 'a math, a temple and endowments attached thereto or a specific endowments and includes an institution under direct management of State Government'. The definition of 'math' and 'temple' as defined in the said section in Clauses (vii) and (xv) respectively would mean religious institutions which are public in nature and do not include religious institutions which are private. Therefore the expression 'religious institution' in Section 27 of the Act would mean those religious institutions which are public in nature. The nature of religious institution may be public or private. Any dispute respecting the same is to be decided by the Assistant Commissioner' of Endowments Under Section 41 of the Act. So far as the management of a public religious institution is concerned, it may be managed by hereditary trustees or by non-hereditary trustees. Therefore, in order to exercise powers Under Section 27 of the Act for the purpose of appointing non-hereditary trustees riot only the religious institution is required to be public in nature but also it must be one without hereditary trustees. In the case of Bhramarbar Santra v. State of Orissa reported in (1970) 36 Cut LT 897 : (AIR 1970 Orissa 141) a Bench of this Court after analysing the scheme of the Act and interpreting various sections occurring therein held that before the Assistant Commissioner seizes jurisdiction to appoint non-hereditary trustees in respect of a religious institution he must have to come to a finding that:
(i) the institution is public in nature,
(ii) it has no hereditary trustees.
4. The question which arose for consideration in that case was whether the Assistant Commissioner can in a proceeding Under Section 27 of the Act determine the controversy as to whether the institution is public or private and whether there are hereditary trustees or not. In answering that question their Lordships held that Section 27 does not in terms lay down that the Assistant Commissioner should make an enquiry on these matters. It follows that there must have been a prior determination that the institution is public with no hereditary trustees. Their Lordships examined the scope of Section 41 and held that it would be reasonable to confine the application of Section 27 only to cases where in respect of the disputed institution there has been a prior determination of the controversial rights mentioned in Section 41 of the Act. It was further observed that to treat Section 27 as conferring power on the Assistant Commissioner to seize jurisdiction before determining the dispute Under Section 41 would, in fact, amount to trifling with the safeguards provided in the act against arbitrarily taking out private property rights of persons. The decision in the said was challenged in the Supreme Court and their Lordships confirmed the aforesaid view in the decision reported in AIR 1976 SC 1059 (Hindu Religious Endowments v. B. Samitra). Their Lordships further added that this view gains srength from the fact that there is a marked difference as regards the procedure to be followed in respect of proceedings u/ss. 27 and 41 of the Act. Whereas an enquiry, if any, in proceedings Under Section 27 of the Act because of the non-appealabiliiy of the order passed thereunder in view of Section 44 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 verbatim, it is otherwise in case of proceedings Under Section 41 where the enquiry has to be judicial and elaborate in view of the fact that the parties are entitled, as a matter of right, to be heard in support of the claim and to adduce evidence in proof thereof. The conclusion of their Lordships was that 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.
5. The law having thus been settled by the Supreme Court the State legislature amended the Orissa Hindu Religious Endowments Act, 1951 by Orissa act 29 of 1978 wherein among other things, a new Section was introduced as Section 8-B which reads as follows :--
'8-B. Power of authorities to act without initiating proceedings under Section 41:--(1) Notwithstanding anything contained in any other provisions of this Act, the Commissioner and the Assistant Commisioner shall have power to take action under any of the provisions of this Act in respect of any institution, if an information received or otherwise, they are satisfied that such institution is a religious institution wihin the meaning of this Act.
(2) For the removal of doubts, it is hereby declared that where any person disputes such action on the ground that the instutition is not a religious institution within the meaning of this Act he may raise a dispute as provided in Section 41.'
The new Section so added gave power to the Commissioner, the Deputy Commisioner and the Assistant Commissioner to take action under any of the provisions of the Act in respect of any institution of an information recieved or otherwise they are satisfied that such instutition is a religious instutution within the meaning of the Act. Sub-section (2) of the said Section further declares that where any person disputes such action on the ground that the institution is not a religious institution within the meaning of this Act, he may raise a dispute as provided in Section 41 of the Act. Though the said Section was intended to take away the effect of the decision of this Court in the case of Bhramarbar Santra v. State of Orissa (AIR 1970 Orissa 141) (supra) and confirmed by the Supreme Court as stated above, it does not really do so. On information received or otherwise, the Commissioner or the Deputy Commissioner or the Assistant Commissioner may assume that the institution in question is a religious institution within the meaning of the Act, but that would not be enough for the Assistant Commissioner to exercise jurisdiction Under Section 27 of the Act to appoint non-hereditary trustees unless he further assumes that the religious institution is not managed by hereditary trustees. Section 8-B introduced by way of amendment does not empower the Commissioner, the Deputy Commissioner or the Assistant Comissioner to proceed on the basis that the religious institution even though public is not managed by hereditary trustees and consequently the Assistant Commissioner would have no jurisdiction to appoint non-hereditary trustees unless he determines the said question in a properly constituted proceeding Under Section 41 of the Act.
6. The Commissioner while disposing of the revision perused the management file in respect of the institution and came across a report of the Inspector of Endowment, Khurda that the institution in question is a math and is managed by hereditary trustees. From the aforesaid report he jumped to a conclusion that it being an institution managed by the hereditary trustees, the Assistant Commissioner had no jurisdiction to appoint non-hereditary trustees in the said institution Under Section 27 of the Act. This inference of the learned Commissioner of Endowments would also be hit by the decision of this Court in Bhramarbar Santra's case (AIR 1970 Orissa 141) as the dispute, if any, as to whether the institution is a math or not is also to be decided by the Assistant Commissioner of Endowments Under Section 41 of the Act.
7. In view of the analysis of law made above, the revision was to be allowed by the Commissioner of Endowments which the learned Commissioner did but on erroneous approach to the matter.
8. In the result, we find no merit in this writ application, which is accordingly dismissed. There shall be no order as to costs.
A. Pasayat, J.
9. I agree.