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PETITIONER: PARMANANDA MAHAPATRA

       Vs.

RESPONDENT: COMMISSIONER OF HINDU RELIGIOUS ENDOWMENTS,ORISSA AND OTHERS

DATE OF JUDGMENT: 10/09/1965

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K. WANCHOO, K.N. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR 1544            1966 SCR  (1) 791

ACT: Orissa Hindu Religious Endowment Act (Orissa 2 of 1952),  s. 64(2) suit under s. 64(2)-Public if necessary under 0.1,  r. 8 of Civil Procedure Code.

HEADNOTE: The   Commissioner  of  Hindu  Religious   Endowments,   the respondent  herein, acting under s. 49 of the  Orissa  Hindu Religious   Endowments  Act,  realised  a  sum   as   annual contribution in respect of a temple of which the appellant’s father was the manager and shebait.  The appellant’s  father claimed that his ancestor had constructed the temple out  of his  own  funds  and established a  family  deity  and  made endowments  for  its maintenance.   The  appellant’s  father filed  an  application  under  s. 64(1) of  the  Act  for  a declaration  that the temple in question was a  private  one and  did not fall within the purview of the Act,  which  was rejected by the respondent the Act and appointed members  of the  appellant’s family as heredity who declared the  temple as  a  "public excepted temple" under s. 6(5)  of  trustees. Thereafter  the  appellant’s father filed a  suit  under  s. 64(2) of the Act    for a declaration that the order  passed by the respondent was illegal and should be set aside.   The Trial Court decreed the suit.  The appeal of the  respondent was  allowed by the High Court by accepting his  preliminary ground  that the suit was not maintainable as in  the  suit, the  public  were  not  impleaded  in  accordance  with  the requirements  of 0. I r. 8 of the Code of  Civil  Procedure. In appeal by certificate to this Court; HELD  :  A suit brought under s. 64(2) of the Act is  not  a suit  of  the nature contemplated by 0.1 r. 8 of  the  Civil Procedure Code. Having  regard to the scheme and object of the Orissa  Hindu Religious Endowment Act it is manifest that the Commissioner represents  the  interest of the public and he is  the  only person who is entitled to take proceedings on behalf of  the religious  and charitable trust, and individual  members  of the public have no locus standi in the matter. [794 B] Case law referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 310/ of 1963 and 121 of 1964. Appeals  from the judgments and decrees, dated November  22, 1960 and November 16, 1961 of the Orissa High Court in First Appeals Nos. 53 of 1956 and 78 of 1958 respectively. B.   P.  Maheshwari, for the appellant (in C. A. No. 310  of 1963). P.   K. Chatterjee, for the appellants (in C. A. No. 121  of 1964). 792 S.   V.  Gupte, Solicitor-General, and R. N.  Sachthey,  for respondent No. 1. (in both the appeals). The Judgment of the Court was delivered by                Civil Appeal No. 310 of 1963. Ramaswami,  J.  This appeal is brought by a  certificate  on behalf  of the plaintiff against the judgment and decree  of the Orissa High Court, dated November 22, 1961. In  the suit which is the subject-matter of this appeal  the plaintiff alleged that his ancestor-Dayanidhi Mahapatra-con- structed  a  temple out of his own funds and  established  a family  deity  and made endowments for  the  maintenance  of Seba-Puja  of the deity.  After the death of  Dayanidhi  the plaintiff  became  the  Manager and Shebait  of  the  family deity.   The case of the plaintiff was that the  temple  and the  endowments were never dedicated to the public  nor  had the  public any kind of right in the temple or  the  endowed properties,  but  that respondent No. 1,  acting  under  the provisions of s. 49 of the Orissa Hindu Religious  Endowment Act (hereinafter referred to as the ’Act’) realised a sum of Rs.  386  as  the annual contribution  from  the  plaintiff. Consequently Sri Baman Mahapatra filed an application  under s.  64(1)  of the Act for a declaration that the  temple  in question  was  a  private one and did not  fall  within  the purview  of the Act.  On November 1, 1953 respondent  No.  1 rejected  the contention of the plaintiff and  declared  the temple as a "’public excepted temple" within the meaning  of s. 6(5) of the Act and appointed members of the  plaintiff’s family  as  the hereditary trustees.  Thereafter  Sri  Baman Mahapatra  filed a suit in the Court of  Subordinate  Judge, Puri  under s. 64(2) of the Act for a declaration  that  the order  passed by respondent No. 1 was illegal and should  be set  aside.  Respondent No. 1 filed a Written  Statement  in that  suit and after hearing the evidence on behalf of  both the parties the Subordinate Judge held that the temple was a private temple belonging to the family of the plaintiff  and defendants  2  and  3 and not a public  excepted  temple  as erroneously  held  by respondent No. 1 in his  order,  dated November  1, 1953.  Aggrieved by this  judgment,  respondent No.  1  filed an appeal before the Orissa High  Court  which allowed  the appeal on the preliminary ground that the  suit was not maintainable as the plaintiff had not impleaded  the public  in accordance with the requirements of 0.1 r.  8  of the Civil Procedure Code.  The High Court took the view that the omission to implied the public in a suit under S.  64(2) of the Act was fatal and the suit as framed was,  793 therefore,  not  maintainable and should be  dismissed.   In taking  this  view  the High  Court  followed  its  previous decision  in Padma Charan v. Commissioner,  Hindu  Religious Endowments, Orissa.(1) The  question of law involved in this appeal is whether  the

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High Court is right in its view that in a suit brought under s.  64  (2)  of the Act the public should  be  impleaded  as necessary  parties  under 0. 1 r. 8 of the  Civil  Procedure Code. Section 6(13) of the Act defines a "temple" as "a place,  by whatever  designation  known,  used as  a  place  of  public religious  worship and dedicated to, or for the benefit  of, or used as of right by, the Hindu community, or any  section thereof,  as  a place of religious worship".   Section  6(5) defines  an "excepted temple" to mean and include "a  temple the  right  of succession to the office of  trustee  or  the offices  of all the trustees (where there are more  trustees than one) whereof has been hereditary, or the succession  to the  trusteeship whereof has been specially provided for  by the founder". Section 64 of the Act states               "64.  (1) If any dispute arises as to  whether               an institution is a math or temple as  defined               in this Act or whether a temple is an excepted               temple,  such dispute shall be decided by  the               Commissioner.               (2)   Any person affected by a decision  under               subsection (1) may, within one year, institute               a  suit  in the Court to modify or  set  aside               such  decision; but subject to the  result  of               such suit, the order of the Commissioner shall               be final." The right of instituting a suit conferred by s. 64(2) on any person  affected  by the decision of the Commissioner  is  a statutory  right and there is nothing in that section  which makes it incumbent upon the plaintiff to make the public  as party-defendants  to  the suit or to take  recourse  to  the procedure  prescribed under 0.1 r. 8, Civil Procedure  Code. It  was  conceded  by the Solicitor  General  on  behalf  of respondent  No.  1 that there is also nothing in  the  rules framed under s. 52 of the Act requiring the Commissioner  to give public notice and invite objections from the members of the public interested in the temple in a proceeding under s. 64(1)  of the Act.  If the Commissioner is not  required  to give  public notice or to grant a hearing to members of  the public  before  making an order under s. 64(1) of  the  Act, there (1)  I.L.R. 1961 Calcutta 183. 794 is no reason why the person affected by the decision of  the Commissioner  should be compelled to implead members of  the public as party-defendants in a suit brought under s.  64(2) of the Act In our opinion, the suit brought under s. 64  (2) is not a suit of the nature contemplated by 0. I r. 8 of the Civil  Procedure  Code.   Having regard to  the  scheme  and object  of  the  Act it is manifest  that  the  Commissioner represents  the  interest of the public and he is  the  only person who is entitled to take proceedings on behalf of  the religious and charitable trust and individual members of the public have no locus standi in the matter.  Reference may be made in this connection to s. 54 of the Act which states :               "54. (1) The Commissioner or any person having               interest  and having obtained the  consent  of               the  Commissioner may institute a suit in  the               Court to obtain a decree-               (a)   to   recover  possession   of   property               comprised in a religious endowment;               (b)   appointing or removing the trustee of  a               math  or  excepted  temple or  of  a  specific               endowment  attached  to  a  math  or  excepted

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             temple;               (c)   vesting any property in a trustee;               (d)   declaring what proportion of the endowed               property  or of the interest therein shall  be               allocated  to  any particular  object  of  the               endowment;               (e)   directing account and enquiries; or               (f)   granting such further or other relief as               the nature of the case may require.               (2)   Sections 92 and 93 and rule 8 of Order 1               of  the  First Schedule of the Code  of  Civil               Procedure, 1908, shall have no application  to               any suit claiming any relief in respect of the               administration  or management of  a  religious               endowment  and  no  suit in  respect  of  such               administration   or   management   shall    be               instituted, except as provided by this Act.               (3)   All suits or other legal proceedings  by               or  against  the Commissioner under  this  Act               shall  be instituted by or against him in  his               name." The  principle  underlying  the section is  based,  to  some extent, upon the principle of English law for enforcement of charitable  trusts  in the interest of general  public.   In English law the Crown  795 as  parens  patriae is the constitutional protector  of  all property,  subject to charitable trusts, such  trusts  being essentially  matters of public concern-A.  G.  v.  Brown(1); and  the Attorney General, who represents the Crown for  all legal  purposes,  is accordingly the proper person  to  take proceedings on this behalf and to protect charities-Eyre  v. Countess of Shaftsbury (2). Whenever an action is  necessary to enforce the execution of a charitable purpose, to  remedy any  abuse  or  misapplication of charitable  funds,  or  to administer  a  charity, the Attorney General is  the  proper plaintiff,  whether  he is acting alone  ex-officio  as  the officer of the Crown and as such the protector of charities, or  ex relation that is to say at the request of  a  private individual who thinks that the charity is being or has  been abused.  The same principle is, to some extent, the basis of different legislative enactments in our country with  regard to  enforcement of public religious and  charitable  trusts. We  are,  therefore, of opinion that the High Court  was  in error  in holding that in the suit brought by the  plaintiff under  S.  64(2) of the Act the members of the  public  were necessary  parties and it was incumbent on the plaintiff  to follow the provisions of 0.1 r. 8, Civil Procedure Code  and the  view  of  the  High  Court  on  this  point  should  be overruled. For the reasons expressed we hold that this appeal should be allowed  and  the judgment and decree of the High  Court  of Orissa  in First Appeal No. 53 of 1956, dated  November  22, 1961  should be set aside and the appeal should be  remanded to  the  High  Court for being dealt  with  and  decided  in accordance  with law.  Both the parties will bear their  own costs up to this stage           Civil Appeal No. 121 of 1964. This appeal is brought by a certificate against the judgment and  decree of the High Court of Orissa, dated November  16, 1961  and  the question of law involved in  this  appeal  is identical  with the one involved in Civil Appeal No. 310  of 1963.   For  the reasons given in that case  we  allow  this appeal set aside the judgment and decree of the Orissa  High Court  in  First Appeal No. 78 of 1958, dated  November  16,

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1961  and order that the appeal should go back in remand  to the  High  Court  for being dealt  with  and  determined  in accordance  with law.  Both the parties will bear their  own costs up to this stage. Appeals allowed. (1) (1818) 1 Swan 265. (2) (1724) 2 P.W. M 103. 796