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PETITIONER: HINDU RELIGIOUS ENDOWMENTS & ORS.

       Vs.

RESPONDENT: B. SAMITRA & ORS.

DATE OF JUDGMENT20/02/1976

BENCH: SINGH, JASWANT BENCH: SINGH, JASWANT RAY, A.N. (CJ) BEG, M. HAMEEDULLAH

CITATION:  1976 AIR 1059            1976 SCR  (3) 435  1976 SCC  (2) 277

ACT:      Orissa Hindu  Religious Endowments  Act, 1951-Secs. 27, 40,  44-Whether   appointment  of   trustees  by   Endowment Commissioner can be made under s. 27 without determining the disputed points  in sec.  40-Suo moto  inquiry by Endowments Commissioner under s. 40.

HEADNOTE:      Some villages  made an application before the Assistant Commissioner of  Endowments, Orissa, for appointment of non- hereditary  trustees  under  s.  27  of  the,  Orissa  Hindu Religious Endowments  Act, 1951,  for Shiva  temple which is more than  100 years  old and  possesses about  24 acres  of land. A  new temple  was constructed  in place  of  the  old dilapidated  temple   by  the   money  contributed   by  the villagers. It  was alleged that respondents Nos. 1 to 3 were mismanaging the affairs of the temple and were not regularly performing the  puja or  the duty.  An enquiry  was  ordered pursuant to which the Inspector submitted his report stating that the  temple was  a public  temple and  that respondents Nos. 1 to 3 did not show accounts to the Inspector and that, therefore, names of 5 persons were suggested for appointment of  non-hereditary   trustees.   A   proclamation   inviting objections  regarding  the  suitability  of  5  persons  was issued. After  making a  summary enquiry  in the presence of the  villagers   including  respondents  Nos.  1  to  3  the Additional Assistant  Commissioner passed  an order  holding that the  institution was  a public one and appointed 5 non- hereditary trustees under s. 27 of the Act. He, however, did not record  any finding whether respondents Nos. 1 to 3 were hereditary trustees  or not. A revision Application filed to the Commissioner of Hindu Religious Endowments failed.      Respondent Nos.  I to  3 filed  a writ  petition in the High Court  contending that the order of appointment of non- hereditary trustees  under s.  27 of the Act encroached upon the property  rights of  the respondents  and  were  without jurisdiction and void having been passed without determining under s.  41 of  the Act as to whether the institution was a private or  a public  one and without further determining as to whether the respondent were hereditary trustees.      The appellants contended before the High Court that the

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provisions of  s. 27  were independent  and that it could be invoked without prior determination of the question under s. 41. The High Court allowed the writ petition holding that s. 27 should  be applied  only where in respect of the disputed institution there  had been  a Prior  determination  of  the controversial rights  mentioned in s. 41 and that before the Assistant Endowments  Commissioner could proceed under s. 27 of-  the  Act  to  assess  non-hereditary  trustees  it  was necessary for  him to come to a finding that the institution was a  public one  and there  were  no  hereditary  trustees thereof in  existence and in order to come to such a finding he should  have completed  an  enquiry  under  s.  41  which coupled with  s. 44 provided for a judicial determination of these very questions.      Under  s.  41  in  case  of  a  dispute  the  Assistant Commissioner has power to enquire into and decide whether an institution is  a public religious institution and whether a trustee holds  office as  a hereditary trustee. Under s. 27, the  Assistant   Commissioner  has  power  to  appoint  non- hereditary trustees in respect of each religious institution in cases where there are no hereditary trustees,      Dismissing the appeal, ^      HELD: 1.  The Assistant  Commissioner can  appoint non- hereditary trustees  under s.  27 of  the Act only where two conditions are satisfied :      (i)  that the  religious institution is not an excepted           one, and      (ii) there  are   no   hereditary   trustees   of   the           institution. 436      For the exercise of the powers under. s. 27, therefore, either there  should be  no dispute about the two conditions or if  there is  a dispute  a prior  determination  of  such dispute under  s. 41 of the Act has to be made. Without such preliminary determination  an appointment  of non-hereditary trustees under s. 41 since there is no specific prohibition. [444D-E]      2. Under  s. 27.  the enquiry 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 s. 41 where the enquiry has to be judicial and elaborate. [442H. 443A]      3.  It  is  also  not  correct  that  a  duly  verified application on  a proper  court fee  is  necessary  for  the determination of  the questions  enumerated in  s. 41 of the Act. An  enquiry can  be made  suo  moto  by  the  Assistant Endowments. Commissioner  for determination  of any  of  the disputes enumerated  in s.  41 since  there is  no  specific prohibition. [444D-E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 128 of 1971.      Appeal by  special leave  from the  judgment and  order dated the  19th September,  1969 of the Orissa High Court in O.J.C. No. 1759 of 1969.      Govind Das, for the appellants.      Ex-parte for the respondents.      The Judgment of the Court was delivered by      JASWANT SINGH,  J. This  appeal  by  special  leave  is directed against  the judgment and order dated September 19,

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1969, of  the Orissa  High Court  in o.J.C. No. 1759 of 1968 allowing the  writ petition  filed by  respondents  1  to  3 herein and  quashing the orders. dated May 2, 1967, July 22, 1968, and  December S, 1968, passed under sections 27 and 68 of the Orissa Hindu Religious Endowment Act 1951 (Orissa Act II of 1952) hereinafter referred to as ’the Act;.      Briefly stated,  the facts  giving rise  to this appeal are: on June 23, 1966, about 40 villagers of village Bantala in  Nayagarh   Sub  Division   of  Puri  District  filed  an application before  the Assistant Commissioner of Endowments Orissa, for  appointment  of  nonhereditary  trustees  under section 27  of  the  Act  of  Shiva  Temple  known  as  "Sri Lokenatheshwar Mahadev" situate in the said village alleging that villagers  from  11  villages  worshipped  and  offered ’bhog’ to  ’‘Lokenatheshwar Deb’  installed  in  the  temple which is  more than hundred years old and possessed about 24 acres of  land endowed  by The  ancestors of  the villagers; that a  new temple  in place  of the  old one which was in a dilapidated condition  had been  constructed with the labour and money  contributed by  the villagers.  that  marfatdars, respondents l  to 3  herein, were mismanaging the affairs of the institution  and were  not regularly performing the seva and puja  etc. of the said deity. On July 31, 1966. the said respondents were  directed to  submit  returns  as  required under section 17 of the Act.      On August  4, 1966,  the Inspector  of  Endowments  was directed to make an enquiry and to submit a report regarding the allegations  made by the said villagers; Pursuant to the said directions,  the  Inspector  submitted  his  report  on September 6, 1966, stating inter alia that the. 437 temple  was   a  public   temple  which  had  been  recently constructed  by  the  villagers  and  marfatdars;  that  the villagers of  Bantala an marfatdars came from one family and the persons  managing the institution did not receive notice from him  nor showed  him the  accounts and  suggesting  the names of five persons for appointment as trustees.      On November 4, 1966, a proclamation inviting objections regarding  the  suitability  of  persons  suggested  by  the Inspector for  appointment as  non-hereditary  trustees  was issued to  which the aforesaid respondents objected claiming that the  institution was  a private  one and  even if it be held to  be a  public religious  institution, they  were the hereditary trustees.      After making  a summary  enquiry in the presence of the villagers including  respondents  1  to  3,  the  Additional Assistant Commissioner  of Religious  Endowments  passed  an order on  May 2.  1967, holding C that the institution was a public one and appointing five non-hereditary trustees under section 27  of the  Act. The Additional Assistant Endowments Commissioner did  not, however,  record any  finding whether the respondents 1 to 3 were hereditary trustees or not.      Aggrieved by  this order,  respondents 1 to 3 preferred on May  15. 1967  a revision  application under section 9 of the  Act  before  the  1  Commissioner  of  Hindu  Religious Endowments,  Orissa,  Bhubaneswar.  On  May  27,  1967,  the appointed trustees  filed a petition under section 68 of the Act for  obtaining possession  of the  institution  and  its endowments from  respondents 1  to 3.  On November 10. 1967, respondents 1  to 3 filed a petition under section 41 of the Act claiming  that the institution was a private one. It was alternatively claimed  by the  said respondents that even if the temple  be held to be a public one they could not but be held to be hereditary trustees.      On July  22,  1968,  an  order  directing  delivery  of

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possession of  the institution  and its  endowments  to  the appointed trustees was passed under section 68 of the Act by the  Assistant   Commissioner  of   Endowments,  Orissa.  On December S,  1968, the  aforesaid revision application filed by respondents  1 to  3 was dismissed by the Commissioner of Hindu Religious  Endowments and  the Inspector of Endowments was directed  to execute the writ of delivery of possession. On December  26, 1968,  the Inspector  of Endowments  made a report saying that the writ had been executed and possession as directed  had been delivered to the appointed trustees on December 11, 1968.      On December  23,  1968  respondents  1  to  3  filed  a petition under  Articles 226  and 227  of the  Constitution, being O.J.C.  No. 1759  of 1968,  before the  High Court  of Judicature, Orissa,  challenging the  aforesaid orders dated May 2,  1967, July 22, 1968 and December S, 1968 and praying that the  said orders be quashed. on the said writ petition, it was  contended by  respondents 1  to 3 that the aforesaid orders dated  May 2, 1967 passed by the Additional Assistant Endowments Commissioner  appointing non-hereditary  trustees of the  institution under  section 27  of the  Act and order dated July  22. 1968  passed  by  the  Assistant  Endowments Commissioner  directing   delivery  of   possession  of  the institution and its properties to the non-hereditary 438 trustees under  section 68  of the  Act encroached  upon the property  rights   of  the   respondents  and  were  without jurisdiction and void having been passed without determining under section  41 of  the Act  as to whether the institution was  a   private  or   a  public  one  and  without  further determining as  to whether  the respondents  were hereditary trustees.      The said  writ petition  was contested on behalf of the appellants on  the grounds that the scheme of the Act showed that provisions  of section  27 of the Act were independent; that the exercise of‘ the power under section 27 was subject to final decision m appropriate proceedings under section 41 of the  Act and  that it  was erroneous  to contend that the provisions of  section 27 could not be invoked without prior determination of the aforesaid questions under section 41 of the  Act.  lt  was,  however,  conceded  on  behalf  of  the appellants at  the hearing  of the  writ petition before the High Court  that the  impugned orders could not be supported and were  liable to be quashed as even a summary enquiry had not been  made before appointment of non-hereditary trustees under section  27 of the Act. It was also conceded on behalf of  the  appellants  that  as  an  order  under  section  27 encroached upon  the property  rights of respondents 1 to 3- and even  a summary  1) enquiry  is required  to be  made by observing  the  principles  of  natural  justice,  the  said respondents should  have been  given a  full opportunity  to substantiate their  case to  the effect that the institution and its  properties were  private and  they were  hereditary trustees. It  was, however,  strongly contested on behalf of the appellants that the stand of respondents 1 to 3 that the orders dated  May 2,  1967 and  July 22,  1968 could  not be passed  without   prior  determination   of  the   aforesaid questions under section 41 of the Act was not correct.      After examining  the relevant provisions of the Act and the  Rules   and  taking   into  account  the  ,  fact  that respondents 1  to 3  had not been afforded an opportunity to substantiate their  case and no evidence had r been taken by the Assistant Endowments Commissioner which might have prima facie gone to show that the institution was a public one and the said  respondents were not hereditary trustees, the High

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Court held  that  the  concession  made  on  behalf  of  the appellants  herein  was  well  bounded;  that  it  would  be reasonable to  confine the application of section 27 only to cases where  in respect  of the  disputed institution, there had been  a prior  determination of the controversial rights mentioned in  section  41  and  that  before  the  Assistant Endowments Commissioner  could proceed  under section  27 of the Act  to appoint nonhereditary trustees in respect of the religious institution, it was necessary for him to come to a finding that the institution was a public one and there were no hereditary  trustees thereof in existence and in order to come to  such a finding, he should have completed an enquiry under section  41 which coupled with section 44 provided for a judicial  determination of  these very questions. The High Court further  held that  since marfatdari  right was itself property  and   the  Act   had  no  application  to  private endowments  and  respondents  1  to  3  were  admittedly  in possession of the institution and its properties, they could not be  divested of  the same  without a  finding  that  the institution  was   public  and  they  were  not  hereditary. trustees, 439 It would  be advantageous  at this  stage to  reproduce  the ultimate conclusions arrived at by the High Court:-           "Before  the   Assistant  Endowments  Commissioner      proceeds under  section 27  to  appoint  non-hereditary      trustees in respect of a religious institution, he must      first come  to a  finding that  there are no hereditary      trustees already in existence. In order to come to such      a finding  he must  first make an enquiry under section      41, which  taken alongwith  section  44,  provides  for      judicial determination of this very question, involving      the property  rights of  a citizen,  by  the  Assistant      Commissioner himself,  after notice  to the parties and      taking evidence.  If no  determination of this question      is made,  it will be open to the Assistant Commissioner      to start  an enquiry  under section  41 suo motu. It is      only after  the completion of the enquiry under section      41 that he can come to a finding about the existence or      otherwise of hereditary trustees and only thereafter he      can proceed  to appoint  non-hereditary trustees. It is      also open to him, in the course of the proceeding under      section 41,  to pass  interim orders for preserving the      institution and  its  properties  and  also  for  safe-      guarding the  rights of  the  aggrieved  party  pending      final  determination  of  the  controversy.  Any  order      passed straightaway  under section  27  which  has  the      effect of  dispossessing  the  hereditary  trustees  of      their property  without first  resorting to  an enquiry      under section  41, would be illegal and contrary to the      scheme of the Act."      At  the   hearing  of  this  appeal,  counsel  for  the appellants has  re- iterated  the stand taken by his clients in the High Court.      The short  question that  arises for  determination  in this case  is whether  the Assistant Endowments Commissioner had jurisdiction  to proceed  under section  27 of  the  Act without a prior decision of the disputes about the nature of the institution  and the  existence or  other  wise  of  the hereditary trustees.      For a  proper determination  of the aforesaid question. it is  necessary to refer to a few provisions of the Act and the rules  made there  under in  so far as they are relevant for the purpose of this appeal.      Section 1  (2) makes  the Act  applicable to  all Hindu

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Public religious  institutions and  endowments. It  excludes from its  purview Hindu  private religious  institutions and endowments.      Section  3   (xiii)  of   the  Act  defines  ’Religious Institution’ as under:-           "3(xiii). ’religious  institution’ means a math, a      temple and  endowments attached  thereto or  a specific      endowment and  includes  an  institution  under  direct      management of the State Government .      A ’religious endowment’ is defined in section 3(xii) as follows:-           "3(xii). ’religious endowment’ or endowment’ means      all property belonging to or given or endowed for 440      the support of maths or temples or given or endowed for      the performance  of any  service or  charity  connected      there with  or of  any  other  religious  charity,  and      includes the  institution concerned  and  the  permises      thereof and  also all  properties used for the purposes      or  benefit   of  the   institution  and  includes  all      properties acquired  from the  income  of  the  endowed      property."      ................................      Section 27 of the Act provides as under :-           "27 (1)  . The  Assistant Commissioner  shall,  in      cases where  there is  no hereditary  trustee,  appoint      non-hereditary trustees  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."      Section 41 of the Act runs thus:-           "41. (1)  In  case  of  a  dispute  the  Assistant      Commissioner shall  have  power  to  enquire  into  and      decide the following disputes and matters:-           (a)  whether an  institution is a public religious                institution;           (b)  whether an institution is a temple or a math;           (c)  whether a  trustee holds  or held office as a                hereditary trustee;           (d)  whether any property or money is of religious                endowment or specific endowment;           (e)  ...................           (f)  ...................           (g)  .................      Provided that  the burden  of proof  in all disputes or matters covered  by clauses  (a) and  (d) shall  lie on  the person  claiming  the  institution  to  be  private  or  the property or  money to  be other  than that  of  a  religious endowment or specific endowment as the case may be".      Section 44  which  makes  provision  for  appeals  runs thus:-           "44. (1)  Any person aggrieved by any order passed      by the  Assistant Commissioner  under section 41 or sub      sections (1)  and (6)  of section 42 or section 43 may,      with in  thirty days  from the  date of  receipt of the      order under  section 41  or section 43 or from the date      of the publication of the order under section 42 as the      case may be, appeal to the Commissioner.           "(2) Any  party aggrieved  by  the  order  of  the      Commissioner under sub-section (1) or under sub-section      (1) or 441

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    (6) of  section 42  may appeal to the High Court within      thirty days  from the  date of the order or publication      there of as the case may be."      Section 68  deals with  delivery  of  possession  of  a religious institution,  its record,  accounts and properties to its trustee or executive officer.      Section 73  which bars  the  jurisdiction  of  ordinary courts lays  down that  no suit or other legal proceeding in respect of  the administration of a religious institution or in respect  of any  matter or  dispute  for  determining  or deciding which  provision  is  made  in  the  Act  shall  be instituted in  any  court  of  law,  except  under,  and  in accordance with, the provisions of the Act.      Section 74  which relates to the procedure at enquiries and appeals and service of notice is in these terms:- C           "74(1) In  relation to  all proceedings before the      Commissioner or  the Assistant Commissioner, the orders      in pursuance  of which are under the provisions of this      Act appealable  to the  High Court, the Commissioner or      the ., Assistant Commissioner as the case may be, shall      have the  powers vested  in a  court under  the Code of      Civil Procedure, 1908, when trying a suit in respect of      the following matters:-           (a)  discovery and inspection;           (b)  enforcing the  attendance of  witnesses,  and                requiring the deposit of their expenses;           (c)  compelling the production of documents; E           (d)  examining witnesses on oath,           (e)  granting adjournments;           (f)  reception of evidence taken on affidavit; and           (g)  issuing commissions  for the  examination  of                witnesses.           and may  summon and  examine suo  motu any  person      whose evidence  appears to him to be material and shall      be deemed  to be  a Civil  Court within  the meaning of      sections 480 and 482 of the Code of Criminal Procedure,      1898,           (2)  The   Commissioner    and    the    Assistant                Commissioner shall  with resect  to all  such                proceedings be  deem ed  to be persons acting                judicially within the meaning of the Judicial                officers Protection Act, 1 850. G           (3)  The Court hearing on appeal from the order of                the Commissioner  may direct  further enquiry                or modify  or set  aside such  order  as  the                Court may  deem fit; and unless the appeal is                summarily dismissed the Commissioner shall be                given an  opportunity of  being heard  before                the order passed by him is interfered with in                any manner;  provided that  the operation  of                the order  of the  Commissioner shall  not be                stayed pending the disposal of the appeal". 442      76(1) confers  on the State Government general power of making rules  to carry out all or any of the purposes of the Act. Sub-section  (2) of the section specifically enumerates the matters  with respect to which the rules can be made and clause (d)  thereof enables  the State  Government  to  make rules  regarding   holding  of   enquiries,  summoning   and examination of witnesses and production of documents.      Rule 43  of the Rules framed under section 76(d) of the Act provides: -           "In  relation   to  all   proceedings  before  the      Commissioner  or  the  Assistant  Commissioner  against      whose orders an appeal lies to the High Court under the

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    provisions  of   the  Act,   the  Commissioner  or  the      Assistant Commissioner  as the case may be shall follow      the provisions  of the Civil Procedure Code, the Indian      Evidence Act  and the G.R.C.O. Of the Orissa High Court      as far  as practicable  and in  so far  as y  they  are      consistent with  the Act  and the Rules. In every other      case the enquiry will always be of a summary nature and      shall be  conducted as  in respect  of suits  of  small      cause nature with due notice to persons affected by the      enquiry".      It is important to note that the Assistant Commissioner can ap point 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-existing of hereditary trustees 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.  A   careful  scrutiny  of  the provisions of  the Act  makes this  position amply clear. As pointed out  by the High Court. section 27 does not in terms provide that  Assistant Commissioner  should make an enquiry as to  whether the  institution is  public  or  private  and whether there  are hereditary trustees of the institution or not. These  questions have  to be gone into under section 41 of  the   Act  which   specifically  deals   of   with   the investigation and  decision of  disputes in respect thereof. Consequently, a  prior determination  under section  41 that the institution is public and has no hereditary trustee is a sine qua non for appointment of trustees under section 27 of the Act.      This view  also gains strength from the fact that there is a  marked difference  as  regards  the  procedure  to  be followed in  respect of proceedings under sections 27 and 41 of the  Act. Whereas  an enquiry,  if- any,  in  proceedings under section  27 of  the Act  because of the non-appealable nature of  the order passed thereunder in view of section 44 of the Act is of a summary character in which the affected 443 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  of the  Act 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.  (See Ramakrishna Padhy  v. Ramesh  Chandra Das  & Ors(1).  In the latter case,  because  of  the  complicated  nature  of  the questions involved  and  the  appealable  character  of  the orders that  may be  passed thereunder,  the Commissioner or the Assistant  Commissioner has  to act  like a Court and is required to follow, as far as practicable, the provisions of the Code of Civil Procedure, the Indian Evidence Act and the G.R.C.O. Of  the Orissa  High Court  in so  far as  they are consistent with  the Act  and the  Rules. This becomes clear from a conjoint reading of section 74 of the Act and Rule 43 of the Rules framed under the Act. It would also be relevant

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to notice  that there  is no  Provision in section 27 of the Act identical  to the  one contained in order 21, Rule 63 of the Code  of Civil  Procedure to the effect that the summary decision given  thereunder would  be subject to the decision that may  be given  under section 41 of the Act. It has also to be pointed out that successive determination of questions under section  27 and  41 of the Act is not possible in view of the doctrine of res Judicata. It is also significant that the safeguard relating to appeal both on a point of fact and law  (See   Sri  Sadasib   Prakash  Brahmachari  Trustee  of Mahiprakash  &  Ors.  v.‘The  State  of  Orissa(2)  and  the intervention of the High Court which is available in respect of orders  made under section 41 of the Act is not available in case  of orders  under section  27 of  the Act.  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.      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.      We are  fortified in  our view  by the decision of this Court in  Sri Jagannnth  Ramanuja Das  & Anr.  v.  State  of Orissa.(9)  .  In  that  case,  the  Bihar  State  Board  of Religious Trusts constituted under the Bihar Hindu Religious Trusts Act,  1950 (I of 1951) passed an order in exercise of the powers  conferred on  it under  section 59  of  the  Act asking the  appellant to  furnish to  the Board  a return of income and  expenditure of  the  temple  known  as  ’Salouna Asthal’. The  appellant replied saying that the Asthal was a private institution  and not  a  religious  one  within  the meaning of  the Act; that the properties appertaining to the temple  did   not  constitute  a  religious  trust  and  the appellant H      (1) A.I.R. 1959 Orissa 98.    (2) 22 (1956) C.L.T. 235.                  (3) A.I.R. 1954 S.C. 400. 444 was not  a trustee within-the meaning of the Act. On getting unfavorable answer, the appellant made an application to the High Court  of Patna  under Article  226 of the Constitution challenging the  demand which  was dismissed.  On the matter being brought.  before this  Court  by  the  appellant,  the aforesaid order  of the Board was quashed and the respondent was  directed   not  to   interfere  with   the   properties appertaining to  the ’Salouna  Asthal’ without obtaining the necessary declaration under section 43 of the Act.      Before concluding  we would like to observe that we are not at all impressed by the submission made on behalf of the appellants  that   if  the   interpretation  placed  on  the provisions of  sections 27  and 41  of the Act by the Orissa High Court is taken as correct, it would become difficult to exercise effective  control on public religious institutions as proceedings  under section  41 take long time. As rightly observed  by  the  High  Court,  the  courts  are  meant  to interpret the  law as it stands. It is not their function to legislate and  to imagine  difficulties. The argument cannot also  be   countenanced  as  it  overlooks  the  explanation appended to  section 7  whereunder the Commissioner has been given power  to pass  such interim  orders as  he  may  deem necessary for  the proper  maintenance,  administration  and

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management religious  institutions  and  endowments  when  a dispute concerning the same is pending.      We also find it difficult to accept the submission made by counsel  for the appellants that in view of the fact that a duly verified application on proper court fee is necessary for determination  of the questions enumerated in section 41 of the Act, no enquiry under the said pro visions of the Act can  be   held  suo   motu  by   the  Assistant   Endowments Commissioner. The  fact that  it  may  be  necessary  for  a private individual  to make  an application  on proper court fee to  the Assistant  Commissioner for determination of any of the  disputes enumerated  in section  41 cannot,  in  the absence of  a specific prohibition, debar the said authority from taking action suo motu under the said provisions of the Act. This  is, however,  a matter  with  which  we  are  not concerned in  the present  appeal as  respondents 1 to 3 had made an  application under  section 41  of the  Act in which unfortunately no  proceedings were  taken by  the  Assistant Commissioner.      For the  foregoing reasons,  we are  satisfied that the High Court  was right  in holding  that it  was  only  after completion of  the enquiry  under section  41 of the Act and determination  of   the   questions   that   the   religious institution was  not public  and there  were  no  hereditary trustees  thereof  that  the  Assistant  Commissioner  could appoint non-hereditary  trustees and  pass orders  regarding delivery of possession to them of the institution.      In the result the appeal fails and is hereby dismissed. P.H.P.                                     Appeal dismissed. 445