Orissa High Court
Khetramohan Rout And Ors. vs Sri Sri Nageswar Mahadev And Ors. on 31 July, 1992
Equivalent citations: 1992(II)OLR330
Author: B.L. Hansaria
Bench: B.L. Hansaria, D.P. Mohapatra
JUDGMENT B.L. Hansaria, C.J.
1. The point for determination in these references is is whether the Assistant Commissioner can appoint non- hereditary trustee in respect of a religious institution other than math in exercise of his power Under Section 27 of the Orissa Hindhu Religious Endowments Act, 1951 (for short, 'the Act'), without prior determination of the fact if there is a hereditary trustee or not in a dispute case visua- lised by Section 41 of the Act, after the Act had been amended by inserting Section 8-B by Orissa Act 29 of 1.978.
2. We may note the relevant portions of the aforesaid sections at the very outset, "8-B. Power of authorities to act without .initiating proceedings Under Section 41.
(1) Notwithstanding anything contained in any other provision of this Act the Commissioner, the Deputy Commissioner and the Assistant Commissioners shall have power to take action under any of the provisions of this Act in respect of any institution, if on information received or otherwise, they are satisfied that such institution is a religious institution within the meaning of this Act.
(2) For the removal of doubts, it Is hereby declared that where any person dispute 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.
27. Non-hereditary trustees, their number and appointment.
(1) The Assistant Commissioner shall, in cases where there is no hereditary trustee, appoint non-hereditary 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) xx xx xx.
(3) xx xx xx.
41. Assistant Commissioner to decide certain disputes and matters.
(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 public or religious institution ;
(b) xx xx xx (c) whether a trustee holds or held office as a hereditary trustee ; (d) xx xx xx (e) xx xx xx (f) xx xx xx (g) xx xx xx
Provided that the burden of proof in all disputes or matters covered by CIs. (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."
3. This apart, Section 8 may also be noted, whose Sub-section (2) had also been inserted by the aforesaid Act of 1978 :
"8. Powers and duties of the Deputy and Assistant Commissioners (1) The Deputy Commissioner and the Assistant Commissioners shall exercise such powers and discharge such duties as are assigned to them by or under this Act, either generally or in respect of any particular area ;.
Provided that the Commissioner may, subject to the other provisions of this Act, by order in writing, declare that the exercise of all or any of such powers and discharge of all or any of such duties shall be subject to such exceptions, limitations and conditions as may be specified in the order and he may him- self exercise or discharge any power of duties so excepted.
(2) The Deputy Commissioner and the Assistant Commissioners shall, for the proper management of the institution, have power to pass such interim orders as they deem necessary in the course of proceedings pending before them."
4. Before Section 8-B had found place in the statute book, the question as to whether the Assistant Commissioner could appoint a new- hereditary trustee in exercise of his power Under Section 27 of the Act without a prior determination of the question if there was hereditary trustee or not had come up for consideration before a Bench of this Court in the case of Bhramarbar Samantray v. State of Orissa, 36 (1970) CLT 897, in which it was held that without prior determination of the question whether a trustee is hereditary trustee in a dispute case contemplated by Section 41 of the Act, power Under Section 27 could not be exercised. This view was affirmed by the Supreme Court in Hindhu Religious Endowments v. B.Samantra, AIR 1976 SC 1059 (commonly known as 'Bantala case' in this State). In so doing, the apex Court pointed out in para 26 that the power Under Section 27 of the Act could be exercised only when two conditions are satisfied, Wz.(i)that the religious institution is not an excepted one ; and (II) that there is no hereditary , trustee of the institution. It was then pointed out that for the exercise of this power, it is absolutely necessary that either there should be no dispute about the public nature of the institution and the non-existence of hereditary rustee or, In case there is a dispute about any of these matter, a prior determination of such dispute Under Section 41 of the Act has been made. The Court further stated that without such preliminary determination if an appointment of a non-hereditary trustee is made Under Section 27 of the Act, and thereafter the Act is allowed to operate- further, it would be manifestly illegal and without jurisdiction. As Section 27 does not in terms require the Assistant Commissioner to make an innquiry to determine the existence of the two pre-conditions of exercise of power, it was opined that in case of dispute, these questions have to be gone into Under Section 41 of the Act, which specifically provides for investigation and decision of the dispute, and so, in case of dispute, a prior determination Under Section 41 is a sine qua non for appointment of non-hereditary trustee Under Section 27.
5. After the aforedesaid judgment was rendered in 1976, the Act came to be amended by the Orissa Act 29 of 1978 which Inserted, inter alia, Sections 8(2) and 8-B in the Act. The point for consideration is what is the effect of these insertions ?
6. A Bench of this Court had occasion to examine this aspect of the matter in Bairagi Pradhan v. Commissioner of Hindu Religious Endowments, 1988 (I) OLR 6, and it felt that Section 8-B was introduced to facilitate interim arrangements for- smooth management of religious institutions, as a case Under Section 41 of the Act takes a long time for its decision inas- much as after the order is passed by the Assistant Commissioner, an appeal lies to the Commissioner and thereafter a second appeal to this Court. On the language of Section 8-B(1) of the Act, the Bench held that the named authorities would have jurisdiction to take action and pass orders under any of the provisions of the Act in respect of the institution once they are satisfied that such institution is a religious institution; and this jurisdiction embraces in its sweep the power of appointing non- hereditary trustee Under Section 27 of the Act subject to the condition that the pre-requisites of that section are satisfied, It was further opined that in view of Section 8-B of the Act, it was incumbent, on the Assistant Commissioner first to make determination of a dispute Under Section 41 the Act and then pass an order Under Section 27. The amendment was thus held to have reversed the principle enunciated in Bantala case.
7. Another Bench of this. Court, however, took a different view in Baikunthanath v. Commissioner of Endowments, 69(1990) CLT 213. That Bench-held that though Section 8-B was intended to. take away the effect of the Bantala case, it does not really do so. It was opined that though on information received or otherwise, the named authority 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 and to appoint non-hereditary trustee unless he further assumes that the religious institution is not managed by hereditary trustees. The Bench further observed as below in para 5:
"Section 8-B introduced by way of amendment does not empower the Commissioner, the Deputy Commissioner or the Assistant Commissioner 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 determination of the said question in a properly constituted proceeding Under Section 41 of the Act."
8. It is the aforesaid conflict in the views which has necessitated these references to decide which one merits acceptance.
9-10. Before we express our view in the matter, we may make an observation relating to what was stated in paragraph 5 of Bairagi's case, wherein after acknowledging that the position in the case was that the institution was a religious institution, it was observed : "This being the position, there could be no hereditary trustee in respect theirof". Though this observation may suggest that, according to that Bench, in a religious institution there could be no hereditary trustee, we do not think if this was intended to be said in the aforasaid sentence (which has to be read in the context of the facts of that case as found established) in- asmuch as the definition of 'hereditary trustee' as given in Section 3(vi) of the Act would clearly show that there could be hereditary trustee of a religious institution. Indeed, from what has been stated in paragraph 26 of Bantala's case, it clearly follows that before exercising power Under Section 27 of the Act, two conditions, namely, (i) that the religiousl institution is not an excepted one, and (ii) that there is no hereditary trustee of the institution, must exist.
11. Let us now see what is the effect of Section 8-B. Shri S. P. Mist a contends that the Statement of Objects and Reasons accompanying the Bill would show that the amendment was deemed necessary to effect amongst others the following purpose, namely, "specially authorirising the authorities to initiate proceedings under the various provisions of the law in respect of institutions which in their opinion appear to be of a public nature without waiting for a regular proceeding for declaration as to the nature of the institution, i.e., whether it is public or not'', as stated in Clause (a) of the Objects and Reasons. A reference to that Statement further shows that need for amendment was felt as there had come to tight certain lacunea in the law as pointed out by the Courts of law and as experienced by the authorities charged with the administration of religious institutions in the State, apart from the need to insert additional provisions for better and more efficient administration of the institutions and their funds as well as speedier disposal of cases arising from time to time.
12. Relying on what was stated in the Statement of Objects and Reasons, Shri S.P. Misra states that the legislature did not intend to do away with the inquiry as to whether the trustee is hereditary or not. which can be a subject-matter of dispute Under Section 41 of the Act, as can be the question as to whether an institution is a religious institution or not. It is, therefore, contentded that Section 8-B only wanted to take care of the first requisite for invoking power Under Section 27 of the Act. which is that the institution in question must be a religious institution, leaving intact the position which was prevailing earlier relating to the question whether the trustee is hereditary or not.
13. Shri S. Misra-2, however, contends that if from the records available to the Assistant Commissioner he is satisfied that there is no hereditary trustee, it would be open to him to exercise his power Under Section 27 of the Act on reaching the satisfaction that the institution is a religious institution. But then, for this purpose, according to the learned counsel, if a trustee of the religious institution appears claiming himself to be hereditary trustee, the Assistant Commissioner shall examine the strength of the merit of his claim, and if he be of the view that the claim evidenced is absolutely untenable or is mala fide, he could proceed to exercise his power Under Section 27 of the Act.
14. According to Shri Naidu, however, after Section 8-B found Place in the Act, the Assistant Commissioner need not wait for any determination of the dispute relating to the trustee being hereditary or not, if he is satisfied that the institution in question is a religious insti- tution. This conclusion follows, according to the learned counsel because of the non-obstante clause with which Section 8-B (1) starts. Before we take note of this part of Section 8-B (1), it may be pointed out that the Baikunthanath Bench has not dealt with the effect of the non obstante clause finding place in Section 8-B (1) of the Act. Indeed, there is no mention about this clause of Sez. 8-B (1) in the judgment ; who does not commit mistake ?
15. As we have to assign meaning to every part of a statute, we cannot ignore the fact that Sec 8-B (1) starts with a non obstante clause. The heading of Section 8-B also may be noted, though the headings do not conclusively decide the sweep of .the section ; but then, that is one of the internal aids of interpretation. The heading of the section is "power of authorities to act without initiating proceedings Under Section 41". The word used in the heading is not 'proceeding' but 'proceedings'.. So, all types of proceedings Under Section 41 of the Act were intended to be taken care of by Section 8-B of the Act.
16. Coming to the non-obstante clause, it is wall known that this clause, when used in a statute, permits the section in which it is used to override other provisions of the statute in case of conflict. Such a clause is usually used in the provision to indicate that the said provision shall prevail, despite anything to the contrary in other parts of the statute. We have not deemed it necessary to burden the judgment with the case law enunciating this principle, as what we have stated is a well settled position in law. We may only refer to the latest decision on this point-the same being R. S. Raghunath v, State of Karnataka, (1392) 1 SCC 331.
17. Now, if anything laid down in Section 41 of the Act were to control the power of the Assistant Commissioner Under Section 27 of the Act despite the non-obstante clause, the result would be that the former provision which would continue to prevail over the letter would make the non obstante clause nugatory, which effect has to be avoided. May we point out that Section 8-B (1) permits the named authorities to take action under "any of the provisions" of the Act, which would take within its fold taking of action Under Section 27. So, Section 41 cannot override Section 27 power.
18. Shri S. P. Misra took pains to satisfy us that the conten- tion he is advancing is sound, as the same finds support from Sub-section (2) of Section 8-B of the Act. The learned counsel submits that this sub-section has permitted a person concerned to raise-a dispute as provided by Section 41 of the Act only on the ground that the institution is not a religious institution. According to Shri Misra, this indicates that the question relating to there being a hereditary trustee or not, was not intended to be covered by Sub-section (1) of Section 8-B. According to us, there is no such sequitur. Sub-section (2) has to confine itself to the dispute about an institution being not a religious institution, because Sub-section(1) speaks about satisfaction on this aspect of the matter only. So, a need was felt to remove the doubt as to whether after the satisfaction contemplated by Sub-section (1) is arrived at, the concerned person could invoke the provisions of.Section 41 of the Act; and it is because of this that Sub-section (2) has confined itself to the dispute relating to the nature of the institution, and not to the character of the trustee.
19. We may also state that though Shri S. P. Misra referred us to the Statement of Objects and Reasons, and we have noted the relevant part of that, it deserves to be pointed out that reference to Statement of Objects and Reasons is made by Courts in case there is some ambiguity in the provision of the statute. If the provision be unambiguous, its width cannot be curtailed by anything stated in the Statement of Objects and Reasons. This is for the reason that such a Statement is taken to be a key to open the mind of the law-maker, but then, while enacting a provision, something more than what provides the spring-board may find place in the statute. It is because of this that only when there is ambiguity in the language of the statute, recourse to this internal aid is taken to find out as to whether, in fact, the legislature intended to enact what finds place in the statute. If, however, the language of the statute be clear and unequivocal, what is stated in the Statement of Objects and Reasons cannot be pressed into service to contend that a restricted meaning should be given to the clear language of the provision of the statute. In the case at hand, we do not find any ambiguity needing reference to the Statement of Objects and Reasons to throw light.
20. Because of the above. Section 8-B (1) of the Act, containing the non obstante clause and having stated that the named authorities shall have power to take action under any of the provisions of this Act, would empower, according to us, an Assistant Commissioner to take Under Section 27 of the Act, ones the Assistant Commissioner is satisfied that such an institution is a religious institution. To hedge this power with the further requirement that the Assistant Commissioner must also be satisfied that there is no hereditary trustee would be adding words to Section 8-B, which is not permissible. This statement of ours may not be understood to mean that the power Under Section 27 can be exercised even if there be a hereditary trustee. This cannot be. But then the Assistant Commissioner, before exercising power under that section, need not await a determination of this question in a proceeding initiated or to be initiated Under Section 41 of the Act. The absence of a hereditary trustee being a condition precedent for exercise of the power Under Section 27 of the Act, the Assistant Commissioner shall have to record, while exercising this power, as to why he is of the opinion that there is no hereditary trustee of the religious institution. This satisfaction may be arrived at on the basis of materials placed before the Assistant Commissioner, for which purpose, he may go in for a summary inquiry only, as indicated in paragraph 27 of Bantala's case by the Supreme Court. This may be because of the fact that while exercising power Under Section 27 of the Act, the Assistant Commissioner does not perform a quasi-judicial function; his action under this section may,strictly speaking, be regarded as an administrative act, as opined in Rajkishore v. Commissioner of Endowments, AIR 1979 Orissa. 169, to which our attention is invited by Shri Naidu.
20-A. Power Under Section 27 of the Act being available when "there is no hereditary trustee", we may state that once a hereditary trustee is removed or dismissed by the Commissioner in exercise of his power Under Section 28 of the Act, it would be open to the Assistant Commissioner Under Section 27 to appoint non-hereditary trustee, because of a hereditary trustee, has been removed or dismissed, it would be a case where there is no hereditary trustee, by reason of which Section 27 could available in the case of a religious institution which is not an excepted one. Of course, in such a case the order Under Section 27 shall lest, so long as the order passed Under Section 28 would hold good.
21. We may make it clear that the view taken by us would not in any way adversely affect the interest of a hereditary trustee because it is admitted at all hands that despite an order passed Under Section 27 of the Act, it would be open to the trustee in question to raise a dispute about his being so Under Section 41 of the Act, which proceeding, if it terminates in favour of the trustee, would override the order passed Under Section 27 of the Act appointing a non-hereditary trustee. It would also be permissible, according to us, on approach being made to an Assistant Commissioner Under Section 41 of the Act, to pass such interim order as would be deemed necessary by him in exercise of the power conferred by Section 8 (2) of the Act. There is no dispute before us that a dispute under Sec 41 of the Act has to be treated as a 'proceeding' of which mention has been made in Section 8(2) of the Act. For the case at hand, it is not necessary to express any opinion as to whether the order passed by an Assistant Commissioner Under Section 27 of the Act could also be said to be an order in a proceeding. We may observe that colloquially though one could say that the word 'proceeding' indicates conducting of "juridical business before a Court or judicial officer', as would appear from what has been stated in Black's Law Dictionary, this word also refers to "administrative proceedings before agencies, tribunals, bureaus or the like', as mentioned in that dictionary, itself Indeed, the word "proceeding" is not a technical expression with any definite meaning attached to it, but one, the ambit of whose meaning will be governed by the statutes, as stated in Babu Lal v. Hazari Lal, (1982)1 SCC 525.
22. While on .the question of remedy available to a person claiming to be a hereditary trustee despite appointment as non- hereditary trustee in exercise of power Under Section 27 of the Act, we may state that apart from Sac. 41 being there to help him, he can also approach the Commissioner in revision against the Commissioner's order by invoking the power of the former Under Section 9 of the Act. Though revisional power is not as wide as appellate power, which cannot be invoked in the case of an order Under Section 27 of the Act, it is settled law that even a revisional authority can set aside an order if the same be based on no materials, or be arbitrary, or if the conclusion of the subordinate authority be perverse. It is apparent that to enable the revisional authority to examine these aspects of the order, the Assistant Commissioner must give reasons, may be short and precise, in support of his order. As such, the view we have taken would not confer an uncontrolled or uncontrollable power on the Assistant Commissioner. Though in this connection Shri S. Misra has drawn our attention to the proviso to Section 41 of fie Act, which, according to the learned counsel, stands in the way of the person concerned from invoking that section, as, according to the proviso, the , burden lies on the person who files the dispute case, that proviso would not apply to the matter at hand as the proviso refers to disputes or matters covered by Cluses (a) and (d) whereas in a case of the present nature it would be Clause (c) which would get attracted and, therefore what has been laid down in the proviso would not dampen the spirit of the concerned person.
23. Before concluding, we may say that we have not at all felt persuaded to accept the submission of Shri S. P. Misra that the purpose of insertion of Section 8-B in the Act was only to, facilitate "interim arrangement" for smooth management of religious institutions, as observed in Bairagi's case. We would not regard the arrangement made pursuant to the order under Sic. 27 of the Act as interim, and, if it has to be regarded as interim, the same could only be in the sense that if a dispute is subsequently raised Under Section 41 of the Act by a trustee claiming himself to. be a hereditary trustee, the order to be passed Under Section 41 proceeding would be final and in that sense the arrangement made pursuant to Section ~7 order could be regarded as interim.
24. In the aforesaid premises, we hold that the present position of law is that before exercising power Under Section 27 of the Act, prior determination of the question as to whether a trustee is hereditary by taking recourse to Section 41 of the Act, which power may also be invoked suo motu as we understand from the bar, would not be necessary.
D.P. Mohapatra, J.
25. I agree.
S.K. Mohanty, J.
26. I agree.