THE ODISHA HINDU RELIGIOUS ENDOWMENTS ACT, 1951

*THE ODISHA HINDU RELIGIOUS ENDOWMENTS ACT, 1951 An Act to provide for the better administration and governance of Hindu Religious Institutions and Endowments in the State of Odisha Whereas it is expedient to amend and consolidate the law relating the administration and governance of Hindu Religious Institutions and Endowments in the State of Odisha. It is hereby enacted as follows : CHAPTER – I PRELIMINARY 1. Short title, extent, application and commencement :– (1) This Act may be called the Odisha Hindu Religious Endowments Act, 1951. (2) It extends to the whole of the State of Odisha and applies to all Hindu Public Religious Institutions and Endowments. Explanation I – In this Sub-Section Hindu Public Religious Institutions and Endowments do not include Jain or Buddhist Public Religious Institutions and Endowments but include Sikh Public Religious Institutions and Endowments. Explanation II – 1[xxx] (3) It shall come into force on such date2 as the State Government may, by notification, direct. 2. Power to extend Act to Jain or Buddhist Institutions and Endowments :– The State Government may, by notification, extend to any Jain or Buddhist Public Religious Institution and Endowment or to any Public Endowments or a Charitable and Religious Institution all or any of the provisions of this Act and of any rules made thereunder and may declare such extension to be subject to such restrictions and modifications as they think fit : * Published vide Odisha Act 11 of 1952. For Statement of Objects and Reasons, see Odisha Gazette Ext./10.03.1951, p. 49; and for Report of Select Committee, see ibid, 17.9.1951, pp. 1-10, and for proceedings in the Assembly, see Proceedings of the Odisha Legislative Assembly, Vol. XIV, No. 23, pp. 8-11. 1. Omitted vide O.H.R.E. (Amendment) Act, 1954 (O.A. No. 18 of 1954). 2. The Act came into force with effect from the 1st January, 1955, vide Notification No. 7631-End./22.12.1055 - published vide Odisha Gazette, Part-III/31.12.1955. The Odisha Gazette EXTRAORDINARY PUBLISHED BY AUTHORITY Provided that before issuing such notification, the State Government shall, publish in the Gazette a notice of their intention to do so, fix a period not exceeding three months from the date of publication of the notice for the persons interested in the institution and endowment concerned to show-cause against the issue of such notification and consider their objections, if any. SYNOPSIS 1. Substituted vide Odisha Gazette Ext./7.10.1978-O.A. No. 29 of 1978. 2. Omitted vide O.H.R.E. (Amendment) Act, 1954 A. No. 18 of 1954. 3. Inserted vide Odisha Gazette Ext./7.10.1978-O.A. No. 29 of 1978. 4. Substituted vide O.A. No. 18 of 1954. Modes to Recognize Hereditary Trustee : A claim to the hereditary trustee can be recognized if the three modes as provided in the said section are proved, 61 (1986) Sn. 49 (Rama Chandra Misra Vs. Hadibandhu Panda and others) 3. Definitions :– In this Act unless there is anything repugnant in the subject or context– (i) “Assistant Commissioner” means an Assistant Commissioner appointed under Section 5; (ii) “Commissioner” means the Commissioner appointed under 1[Section-4]; (iii) “Collector” in any provision under this Act includes (a) any Deputy Collector who is specially empowered by the State Government to discharge any of the functions of a Collector under that provision; and (b) any Deputy Collector to whom the Collector may, by general or special order, transfer any of his functions under that provision; 2[xxx] 3[(iv) “Deputy Commissioner” means the Deputy Commissioner appointed under Section 5 :] 4[(v) “Endowment Fund” means the Odisha Hindu Religious Endowments Administration Fund constituted under Section 63;] (vi) “Hereditary Trustee” means the Trustee of a Religious institution succession to whose Office devolves by hereditary right since the time of the founder or is regulated by custom or is specifically provided for by the founder, so long as such scheme of succession is in force; 2[xxx] (vii) “Math” means an institution for the promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples and succession to whose Office devolves in accordance with the directions of the founder of the institution or is regulated by custom and includes places of Religious worship other than a temple and also places of instruction or places for the maintenance of Vidyarthis or places for rendering charitable or Religious services in general which are or may be appurtenant to such institution; (viii) “non-Hereditary Trustee” means a Trustee who is not a hereditary Trustee; (ix) 1[xxx] (x) “person having interest” means - (a) in the case of a math a disciple of the math or a person 2[at the Religious persuasion] to which the math belongs; (b) in the case of temple, a person who visits or who is entitled to visit the temple for darsan of the deity or attend at the performance of worship or service in the temple or who is in the habit of attending such performance or of partaking in the benefit of the distribution of gifts thereat and in the case of a specific endowment, a person who visits or who is entitled to attend at or is in the habit of attending the performance of the service or charity, or who is entitled to partake or is in the habit of partaking in the benefit of the charity; (xi) “prescribed” means prescribed by rules made by the State Government under this Act; (xii) “Religious Endowment” or “Endowment” means all property belonging to or given or endowed for the support of maths or temples or given or endowed for the performance of any service or charity connected therewith or of any other Religious charity and includes the institution concerned and the premises 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; Provided that gifts of immovable properties made as personal gifts to hereditary Trustee of a math or temple or the archaka, sevaka, service-holder or other employee of a Religious institution shall not be so included, if the donee has been possessing and enjoying the same as a separate and distinct identity all long; Explanation I :– Any jagir or inam granted to an archaka, sevaka, service- holder or other employee of a Religious institution for the performance of any service or charity in or connected with a Religious institution shall not be deemed to be a personal gift to the said archaka, service-holder or employee but shall be deemed to be a Religious endowment. 1. Omitted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 2. Substituted vide Odisha Gazette Ext. 7.10.1978-O.A. No. 29 of 1978, w.e.f. 7.7.1978. Explanation II :– Any property which belonged to or was given or endowed for the support of a Religious institution, or which was given or endowed for the performance of any service or charity of a public nature connected therewith or of any other Religious charity shall be deemed to be a “Religious endowment” or “endowment” within the meaning of this definition, notwithstanding that, before or after the commencement of this Act, the Religious institution has ceased to exist or ceased to be used as a place of Religious worship or inspection, or the service or charity has ceased to be performed; 1[Provided that this Explanation shall not be deemed to apply in respect of any property which is vested in any person before the commencement of this Act by the operation of the law of limitation;] Explanation III :– Where an endowment has been made or property given for the support of an institution which is partly of Religious and partly of a secular Character or where an endowment made or property given is appropriated partly Religious and partly to secular uses, such endowment or property or the income therefrom shall be deemed to be a Religious endowment and its administration shall be governed by the provisions of this Act. Explanation IV :– 2[xxx] (xiii) “Religious Institution” means a math, a temple and endowment attached thereto or a specific endowment and includes an institution under direct management of the State Government; (xiv) “Specific Endowment” means any property or money endowed. (a) for the performance of any specific service or charity in a math or temple, or (b) for the performance of any other Religious charity, but does not include any jagir or inam of the nature described in Explanation I to Clause (xii); (xv) “Temple” means 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 3[any class or section thereof,] as a place of public Religious worship and also includes any cultural institution or mandap or library connected with such a place of public Religious worship; (xvi) “Trustee” means a person by whatever designation known, in whom the administration of a Religious institution and endowment are vested and includes any person or body who or which is liable as if such person or body were a Trustee; (xvii) “year” means the financial year. 1. Added vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 2. Omitted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 3. Substituted ibid. SYNOPSIS 1. There cannot be a straight jacket formula to be a hereditary trustee. .................................................... 35 2. Installation of Idols is not enough to establish a Temple ....................... 35 3. Succession to the Heredi tary Trustee ....................................... 35 4. Meaning of the word “Trustee” . 35 5. Constituting Hereditary Trustee .. 35 6. Person having Interest ................ 36 7. Hereditary Trustee ...................... 36 8. De-jure and De-facto Trustee ...... 36 9. Meaning of the word “Temple” . 36 10. R.O.R. is not enough to establish claim of Trusteeship .................... 36 11. Onus to establish claim over the Property ...................................... 37 12. Powers to determine the status of trustees ........................................ 37 13. Whether temples of the Society registered under Society Registra- tion Act can be treated as a Public Temples ...................................... 37 1. There cannot be a straight jacket formula to be a hereditary trustee :– Whether a person is a hereditary trustee of a public religious endowment which includes matha and temple will depend upon the facts of each case and there cannot be a straight jacket formula applicable to all cases, 2012 (II) OLR 639 (Danardan Mohapatra and Others Vs. Pitamber Jena and Others) 2. Installation of Idols is not enough to establish a Temple :– Distinction between mathas and temples and its definition – Explained – Merely if same idols are installed in a matha and members of the public are offering worship to such idols would not make the same a temple. 2011 (II) CLR (SC) 958 (Parasamaya Kolerinatha Madam Tirunelveli Vs. P. Natesa Achari and others) 3. Succession to the Hereditary Trustee :– Succession to the office of hereditary trustee – the right being hereditary since the period of the founder duly regulated by custom and is specifically provided by the founder if the same remains in force is to be followed with regard to the succession to the office of hereditary trustee, 108 (2009) CLT 349, 2009 (II) CLR 409, 2009 (Supp. II) OLR 922 (Benudhar Hota and others Vs. Jagannath Nayak and others) 4. Meaning of the word “Trustee”:– Meaning of the word ‘Trustee’ – Explained – Usually a trustee is a person in whom the administration of religious institutions and endowment is vested, which may be any person or a body, 108 (2009) CLT 349, 2009 (II) CLR 409, 2009 (Supp. II) OLR 922 (Benudhar Hota and others Vs. Jagannath Nayak and others), 2012 (II) OLR 639 (Danardan Mohapatra and others Vs. Pitamber Jena and others) 5. Constituting Hereditary Trustee :– Constitution of the hereditary trustee as per Section 3 (vi). There are mainly three distinct ways by which the hereditary trustee can be constituted and approved when succession to the office devolves by hereditary right since the time of the founder. Secondly, succession to the hereditary trustee is regulated by customs and usages and thirdly, as per the scheme specifically laid down by or provided by the founder so long the said scheme is in force. 2007 (II) CLR 796, 2007 (Supp. II) OLR 1109 (Smt. Rukmini Mishra Vs. Sri Sri Radhakrushna Mahaprabhu and others) 6. Person having Interest :– Meaning of the term “person having interest” – Explained – means a disciple of the matha or a person professing the hindu religious or sikh faith to which the matha belongs, 61 (1986) CLT 189 (Mahanta Sri Raghunath Das and another Vs. Commissioner of Hindu Religious Endowment, Orissa, Bhubaneswar) 7. Hereditary Trustee :– The definition of the term hereditary trustee provides for three distinct ways by which a claim of hereditary trusteeships can be proved namely: (i) Firstly, when succession to such office devolves by hereditary right since the time of the founder. (ii) Secondly, when succession to the office is regulated by custom, and (iii) Thirdly, when it is specifically provided for by the founder according to the scheme of succession so long as such scheme is in force. The mere fact that a person was a trustee for a very long period will not be sufficient for a declaration that he is a hereditary trustee, 62 (1986) CLT 576 (Gopinath Das Adhikari and Others Vs. Sri Chaitanya Mahaprabhu and Others) Burden lies on the person who claimed right of hereditary trusteeship to establish that succession to the office devolved upon by hereditary right since the time of the founder of the institution, since the evidence being unsatisfactory it is difficult to establish the case of hereditary trusteeship. 67 (1989) CLT 829 (Maheswar Das and others Vs. Sri Nilakantheswar Mahadeb and others. Ingredience of the word hereditary trustee – explained – the person ascertaining such rights must establish and prove to show that he comes within the three categories, 73 (1992) CLT 303 (Hindu Public represented through Jadunath Das and others Vs. Sankarsan Das and others) 8. De-jure and De-facto Trustee :– Distinction between the term De-jure trustee and De-facto trustee – Explained – Further the meaning of the term trustee explained. A person having a legal right to hold the office of the trustee is a de-jure trustee whereas a de-facto trustee is one who is in possession of the endowment and exercises all the functions of the trustee though a legal title is lacking. The Odisha Hindu Religious Endowment Act defines the word “trustee” to mean a person by whatever designation known, in whom the administration of a religious institution and endowment are vested and includes any person or body who or which is liable as if such person or body were a trustee, thus the term trustee is a very wide one and would include a de-facto trustee who by his own action and conduct make himself liable as a trustee, 63 (1987) CLT 115 (Radhakrushna Dutta and others Vs. State of Orissa and Others) 9. Meaning of the word “Temple”:– Meaning of the word temple means a temple in common parlance. It is not enough that a deity installed in a building or the place would be the abode of the deity. The definition requires that it shall be a place of worship dedicated to the public or dedicated for the public or used as of right by the public, 63 (1987) CLT 223 (Kunja Bihari Parida Vs. Sri Narayani Thakurani and Others) 10. R.O.R. is not enough to establish claim of Trusteeship :– Principles of the backward and forward presumption – explained – merely because record of rights indicating a person as a ruler showing as a sebayat cannot be said that the institutions were founded by him or by any office ancestors, 72 (1991) CLT 277 (Raghunath Das after him Kamini Dei @ Krishna Kamini Dei and others Vs. Sri Grama Devati Ambica Thakurani and others) Categories of hereditary trust – defined – 72 (1991) CLT 530 (Sri Rama Chandra Rana and others Vs. Hindu Public and Shri Kaleswar Mahadev at Kalarapadar and others) Meaning of the term hereditary trustee means trustee of religious institution succession to whose office devolves to hereditary right since the time of the founder or is regulated by custom or is specifically provided for by the founder, so long as such scheme of succession is in force. 71 (1991) CLT 32 (Alekha Chandra Swain and others Vs. Nrusinghanath Thakur and others). If by the passage of time it is not possible to trace back to the time of founder, the principles of Lost grant and backward presumptions is available for the Courts to be drawn from the evidence available from the records backward presumption of lost grant theory cannot be drawn as there is paucity of materials to draw such presumption, 71 (1991) CLT 339 (Shyama Charan Pradhan and Others Vs. Naikhani Thakurani and others) 11. Onus to establish claim over the Property :– Onus lies on the plaintiff to prove that the mahanta who sold the properties to him was the absolute owner of the property – Inference cannot be drawn from the act or omission of the authorities under the Endowment Act and Collector to confer title of the property on the mahanta as a owner of the properties, 2004 (I) CLR 71, (Madhu Sudan Panda and after him Mukta Devi and others Vs. The Commissioner of Endowment, Orissa and others) Appointment of non-hereditary trustee by the Additional Assistant Commissioner of Endowment. The tenure of the order having been expired operating for more than 1½ yrs. The Hon’ble Court was not inclined to interfere the order, 98 (2004) CLT 221, 2004 (II) OLR 174, 2004 (II) CLR 657 (Dibyakanta Dash Vs. The Commissioner of Endowment, Orissa, Bhubaneswar and others) please also see 2004 (4) CCC 56, 98 (2004) CLT 357, 2004 (II) OLR 229, 2004 (II) CLR 418, (Shri Mahadev Bisi and others Vs. Niranjan Bisi) 12. Powers to determine the status of trustees :– The authorities under the Act are empowered to determine as to whether the institution is without hereditary trustee or not after appreciating the evidence available on record. AIR 1995 Orissa 197, 79 (1995) CLT 135 (Sri Kanteisuni Thakurani Vs. Sri Babudhar Rout) 13. Whether temples of the Society registered under Society Registration Act can be treated as a Public Temples :– Determination of the nature and character of the temples of the Society whether are public temples or temples confined only for the members of the society. It cannot be conceived that any charitable dispensary run by the members of the society can be said only confined to the members of the society and the Durga Pujas and other pujas organized in the temples by the said society are only for the members, 88 (1999) CLT 60 (SC) (Hindu Public and others Vs. Rajadhanee Puja Samithee and others) CHAPTER - II POWERS AND DUTIES OF COMMISSIONER AND OTHERS 1[4. Appointment of Commissioner :– The State Government may, by notification, appoint a person who professes the Hindu religion 2[and who is a member of the Odisha Superior Judicial Service, Senior Branch] to be the Commissioner of Endowments and he shall cease to hold Office as such when he ceases to processes that religion. 5. Appointment of 1[Deputy and] Assistant Commissioners :– (1) The State Government may appoint a 3[Deputy Commissioner] and such number of Assistant Commissioners as they deem necessary. (2) Appointment of the said Officers shall be from among persons who prefers the Hindu religion and who are members of the State Judicial Service. (a) in the case of the 3[Deputy Commissioner,] not below rank of a Subordinate Judge ; and (b) in the case of an Assistant Commissioner, of the rank of a Munsif or above and they shall cease to hold Office as such when they cease to profess that religion. 5-A. Officers and Servants to be appointed by the Commissioner :– The Commissioner of Endowments may, subject to the control of the State Government, from time to time, appoint such Sub-ordinate Officers and staff, as may be deemed necessary for the purpose of this Act and they shall, subject to the control of the Commissioner, discharge such functions and perform such duties as may be assigned to them by the Commissioner 1[Deputy Commissioner] or the Assistant Commissioners. 6. 4[Conditions of services of Commissioner, Deputy Commissioner, etc.] :– (1) The Commissioner, the Deputy Commissioner, the Assistant Commissioners, the Sub-ordinate Officers and staff appointed under this Act shall be the Servants of the State Government and they shall draw their pay pension, leave and other allowances from the Consolidated Fund of the State. The conditions of service of such Officers shall be such as may be prescribed from time to time. (2) There shall be paid out of the Endowment Fund and the State Government shall have power to direct the payment of, at such time as they may deem fit, such cost as the State Government may from time to time incur from out of the Consolidated Fund on account of pay, pension, leave and other allowances of the Commissioner, the 3[Deputy Commissioner] Assistant Commissioners, other Sub-ordinate Officers and staff appointed under this Act.] 1. Secs. 4, 5, 5-A and 6 substituted for original Sections 4, 5 and 6 vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 2. Substituted vide O.A. No. 29 of 1978. 3. Inserted vide O.A. No. 29 of 1978 - w.e.f. 7.6.1978. 4. Added vide O.A. No. 29 of 1973 - w.e.f. 7.6.1978. 7. Powers and Duties of Commissioner :– (1) Subject to the provisions of this Act, the general superintendence of all Religious institutions and endowments shall vest in the Commissioner. 1[ x x x ] 2[(2)] The Commissioner may do all things which are reasonable and necessary to ensure that the Religious institutions and endowments are properly administered and that their income is duly appropriated for the purposes which they were founded or exist. Explanation :– The Commissioner shall have power to pass such interim orders as he deems necessary for the proper maintenance of a Religious institution, or the proper administration of a Religious endowment including the power to pass such orders if and when necessary for the proper management of any institution when a dispute concerning the same is pending in a Court. SYNOPSIS 1. Powers of the Commissioner ...... 39 2. Appointment of Interim Trustee .................................................... 39 3. Principles of Natural Justice ....... 40 4. Notice under Order 1 Rule 8 (2) of C.P.C. is mandatory ..................... 40 5. Deities being not permanent whether appointment of interim trustees justi- fied .............................................. 40 1. Omitted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 2. Re-numbered ibid. 1. Powers of the Commis- sioner :– As per the provisions of the Sec- tion 35 of the Act if a hereditary trustee is found acting contrary to the provisions of the said section, then he can be declared disqualified after following due proce- dure, making due inquiry as provided under the said section, the Commissioner otherwise cannot suspend the hereditary trustee and constitute the interim trust board as provided U/s- 7 of the Act. (Raj Gopal Ramanuja Das Vs. Commissioner of Endowments, Orissa and others) 2011 (II) OLR 969. 2. Appointment of Interim Trustee :– Scope of the Section – Ex- plained – Validity of appointment of in- terim Trust Board for proper administra- tion of religious institution like Gopinath Jew and Sri Achyutananda Ashram of Nemalo challenged, 2009 (I) CLR 579 (Gangananda Goswamy and others Vs. State of Orissa and Others) Appointment of interim trustees by Commissioner – Duty of the Commis- sioner is to make due inquiry in the mat- ter when there is an objection, as the trust- ees so appointed are interested persons in view of the Section 29 of the Act – Ap- pointment of such trustees is void. Fur- ther distinction between Section 28 and 29 – Explained, 82 (1996) (I) OLR 529 (Anam Charan Mallick and others Vs. Commissioner of Endowment, Bhubaneswar and another) Proceeding U/s- 42 of the Act pending and as per the report of Additional Asssistant Commisioner the personal property of the petitioners which were in question did not belong to religious insti- tution. A Deputy Commissioner Endow- ment appointing the Opp. Parties as an interim trustee under the provision of Sec- tion 7 of the Act without extending due opportunity of hearing to the petitioner which was held to be illegal, 2004 (II) OLR 492, 2004 (II) CLR 513, (Sri Padmanav Giri Goswami Vs. Commis- sioner of Endowment and others) 3. Principles of Natural Jus- tice :– Inspector of Endowment submit- ting a report to form a non-hereditary Trust Board and the same having being sent to the Commissioner – Interim Trust Board can be formed if there is no hereditary trustee – However the Additional Com- missioner or the Commissioner is to make enquiry as to whether there was any he- reditary trustee or not, as the R.O.R. pre- pared in the name of the petitioner. Fur- ther the matter having being in dispute before the Consolidation Authorities, they have interest in the matter. But they have not been given an opportunity of hearing, as such the matter was remanded to the Commissioner to be dispose of after ex- tending due opportunity of hearing to the petitioner. AIR 1999 Orissa 175, 1999 (I) OLR 608 (Jasobanti Thakurani and oth- ers Vs. Commissioner of Endowment and others) 4. Notice under Order 1 Rule 8 (2) of C.P.C. is mandatory :– Assistant Commissioner appointed hereditary trustee which was challenged in appeal. However there being no notice issued un- der Order 1 Rule 8 (2) of C.P.C. The Or- der of the Trial Court is vitiated, 2005 (1) OLR 612, (2005) 1 CLR 702 (Jogiram Mohapatra and other Vs. Sibaram Pradhan and others) 5. Deities being not permanent whether appointment of interim trust- ees justified :– The Commissioner of En- dowment is empowered to appoint interim trustees of the deities who are prepared, worshipped and emerged every year by the Societies registered under the Society Registration Act. Such action of the au- thorities challenged on the ground that such institution are not Hindu Public Re- ligious Endowment, such question can be decided under the provisions of the Sec- tion 41 of the Act. Thus appointment of interim trustees is not illegal. 2007 (II) OLR 801, 2007 (II) CLR 769 (Haraparbati Thakurani and others Vs. Commissioner of Endowment and others) 8. Powers and Duties of the Deputy and Assistant Commissioners :– 1[(1) 2[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 himself exercise or discharge any power or duties so expected. 3(2)4[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.] 1. Re-numbered vide O.A. No. 29 of 1978. 2. Inserted ibid. 3. Added ibid. 4. Inserted ibid. SYNOPSIS 1. Application of the Provisions ..... 41 2. Upmost care is required for Appointment of Trustee .............. 41 3. Principles of Natural Justice ....... 42 4. Summary Inquiry before appointing non hereditary trustee ................. 41 5. Institution is to be a religious one .................................................... 42 1. Application of the Provisions:– Distinction between Sections 27 and 41 explains the question whether the religious institution is managed or not managed by the hereditary trustee is to be decided un- der Section 41, 69 (1990) CLT 213 (Baikunthanath Patjoshi and others Vs. Commissioner of Endowment of Orissa, Bhubaneswar and others) The provisions of the section vested powers on the Commissioner of Endowment to transfer any appeal to the Deputy Commissioner for disposal, 72 (1991) CLT 277 (Raghunath Das after him Kamini Dei @ Krishna Kamini Dei and others Vs. Sri Grama Devati Ambica Thakurani and others) 2. Upmost care is required for Appointment of Trustee :– Appointment of non hereditary trustee is to be made with utmost expedition in order to avoid mismanagement and misappropriation. While doing so the Assistant Commis- sioner is to make a summary inquiry which must be reasonable and satisfac- tory holding that whether there is a he- reditary trustee in the institution or not. If the order is arbitrary than the said order can be challenged in the revision. 81 (1996) CLT 477 (Dhadi Parida after him Sundari Parida and others Vs. Commis- sioner of Consolidation and others) Before exercising the powers un- der Section 8B of the Act, the Commis- sioner is required to form an opinion on the basis of the objective material. It can- not be his ipse dixit without any support- ing materials, whatsoever. Such power cannot be used arbitrarily. Thus whether a disputed matha is a public religious insti- tution is to be decided and adjudicated U/ s- 41 (1) (a) (d) of the Act, 94 (2002) CLT 30 (Jayaram Dash Jee Maharaj and after him Mahanta Premananda Dash Jee Vs. Commissioner of Endowment, Orissa and another) The Assistant Commissioner of Endowment can exercise its jurisdiction for appointment of non-hereditary trust- ees whether any proceeding under the pro- visions of Section 41 of the Act is pend- ing or not, 2006 (I) CLR 230 (Sri Chandi Thakurani Bije at Bakharabad, Jagatsinghpur Vs. State of Orissa and oth- ers) Whether order passed U/s-7 can be treated to have been passed U/s-8B of the Act because of the non-obstante clause contained. As per the provisions of Sec- tion 8-B, a summary enquiry is to be con- ducted with regard to the fact that the in- stitution is a religious one, 2004 (II) OLR 492, 2004 (II) CLR 513, (Sri Padmanav Giri Goswami Vs. Commissioner of En- dowment and others) 3. Principles of Natural Jus- tice :– It is an established principle of law that any person having interest in the dis- puted lands before passing an order is to be given an opportunity of hearing, 88 (1999) CLT 549 (Harihara Chatuari and others Vs. Commissioner of Endowment, Orissa and others) 4. Summary Inquiry before ap- pointing non hereditary trustee :– The Assistant Commissioner while appointing a non- hereditary trustee is to conduct a summary inquiry into the matter and he is to satisfied with regard to the necessity and also it is to be seen whether there is any hereditary trustee or not. However, the Commissioner is not debarred from ex- ercising the powers as provided U/s- 27 in case of any application pending U/s- 41 of the Act. In view of the amendment of 1973, thus any order passed by the As- sistant Commissioner is revisable, 1999 (1) OLR 163 (Sri Sri Raghunath Jew and another Vs. Commissioner of Endowment Orissa and others) 5. Institution is to be a religious one :– The Authorities are to be satisfied before taking any action under the provi- sions of the section prima facie that the institution is a religious one. 2004 (II) OLR 492, 99 (2005) CLT 117 ((Sri) Padmanav Giri Goswami Vs. Commis- sioner of Endowment and Others) 1[8-A. Delegation of Power by the Commissioner :– The Commissioner may transfer any appeal filed before him to 1[the Deputy Commissioner] for hearing and disposal and any appeal so transferred and disposed of by 4[the Deputy Commissioner] shall, for the purposes of this Act, be deemed to have been disposed of by the Commissioner. 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, 1[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 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.] 9. Power of Commissioner to call for Records and Pass Orders :– (1) The Commissioner may call for and examine 2[the record of any proceeding under this Act before the Deputy Commissioner 3[or before an Assistant Commissioner except under Sub-Section (1) of Section 27] to satisfy himself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order passed thereon; and if in any case it appears to the Commissioner that any such decision or order shall be modified, annulled, reversed or remitted for reconsideration, he may pass orders accordingly: Provided that the Commissioner shall not pass any order prejudicial to any party without hearing him or giving him a reasonable opportunity of being heard : 1. Inserted ibid. 2. Substituted vide O.A. No. 29 of 1978. 3. Sustituted vide O.A. No. 13 of 2003 (O.G.E. No. 825 dated 31.5.2003). 1[Provided further that in cases where an appeal lies under this Act, no proceedings by way of revision shall be entertained by the Commissioner at the instance of a person who could have appealed: Provided also that nothing in this Sub-Section shall apply to the proceedings in an appeal transferred by the Commissioner to the Deputy Commissioner for hearing and disposal. (2) The Commissioner may stay the execution of any such decision or order, pending the exercise of his power under Sub-Section (1) in respect thereof. Notes :– Revisional Power of the Commissioner not abridged or taken away 76 (1993) CLT 434 (Gouranga Jena Vs. Commissioner of Endowments and others) 10. 2[ x x x ] 11. 3[ x x x ] 12. Power to enter Religious Institutions :– (1) The Commissioner, 1[the Deputy Commissioner] and Assistant Commissioners and such other Officers professing Hindu religion as may be authorised by the Commissioner in this behalf shall have power to enter 4[subject to the local practice, customs or usages] 2[the premises of any Religious institution or] any place of worship at any reasonable hour for the purpose of exercising any power conferred, or discharging any duty imposed, by or under this Act. 2[ x x x ] (2) If any such Officer is resisted in the exercise of such power or discharge of such duty, the Magistrate having jurisdiction shall, on a written requisition from such Officer, direct any Police Officer not being below the rank of Sub-Inspector to render such help as may be necessary to enable the Officer to exercise such power or discharge such duty. (3) Nothing in this Section shall be deemed to authorise any person who is not a Hindu to enter the premises or place referred to in Sub-Section (1) or any part thereof. 13. Trustee bound to obey orders issued under the act :– The Trustee of a Religious institution shall be bound to obey all orders issued under the provisions of this Act by the State Government, the Commissioner, 1[the Deputy Commissioner] or 5[an] Assistant Commissioner. Notes :– Acts and omissions of the authorities not ground to prove the claim :– Onus lies on the plaintiff to prove that the mahanta who sold the properties to him was the absolute owner of the property – Inference cannot be drawn from the act or omission of the authorities under the Endowment Act and 1. Inserted vide O.A. No. 29 of 1978. 2. Omitted ibid. 3. Inserted ibid. 4. Inserted vide O.A. No. 18 of 1954. 5. Substituted vide O.A. No. 18 of 1954. Collector to confer title of the property on the mahanta as a owner of the properties, 2004 (I) CLR 71, (Madhu Sudan Panda and after him Mukta Devi and others Vs. The Commissioner of Endowment, Orissa and others) 14. Care required of Trustee and his Powers :– (1) The Trustee of every Religious Institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions which a competent authority may issue in respect thereof and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties as if they were his own. (2) A Trustee shall, subject to the provisions of this Act, be entitled to exercise all powers incidental to the provident and beneficial administration of the Religious institution and to do all things necessary for the due performance of the duties imposed on him. (3) A Trustee shall not be entitled to spend the funds of the Religious Institution for meeting any costs, charges or expenses incurred by him in any suit, appeal or application or other proceeding for, or incidental to, his removal from Office or the taking or any disciplinary action against him . Provided that the Trustee may reimburse himself in respect of such costs, charges or expenses if he is specifically permitted to do so by an order passed under Section 69. 15. Preparation of Register for all Institutions :– (1) For every Religious institution, there shall be prepared and maintained a register showing– (a) the names of past and present Trustees and particulars as to the custom, or the direction of the founder, if any, regarding succession to the Office of Trustee; (b) particulars of all endowments of the institution and all title deeds and other documents including the properties standing in the name of the hereditary Trustees relating thereto ; (c) particulars of the scheme of administration and of the scale of expenditure. (d) the names of all Officers to which any salary, emolument or perquisite is attached and the nature, time and conditions of service in each case ; (e) the jewels, gold, silver, precious stones, all vessels and other movables belonging to the institution with their estimated value ; (f) particulars of the idols and other images in or connected with the institution, whether intended for worship or for being carried in processions; (g) such other particulars as may be required by 1[the Commissioners]. 1. Substituted vide Odisha Act No. 18 of 1954. (2) The register shall be prepared, signed and verified by the Trustee of the institutions concerned or by his authorised agent and submitted by him to 1[the Commissioner], in duplicate through the Assistant Commissioner, within one year from the commencement of this Act or from the founding of the institution, as the case may be, or within such further period not exceeding one year as may be allowed by 1[the Commissioner]: Provided that each Trustee shall be required to swear an affidavit that the list of properties, both movable or immovable, owned by the institution and furnished, is exhaustive : Provided further that this Sub-Section shall not apply where a register so signed and verified has been submitted to 1[the Commissioner] before the commencement of this Act. (3) The Assistant Commissioner may, after such enquiry as he may consider necessary, recommend such alterations, omissions or additions in the register as he may think fit. (4) 1[The Commissioner] may, after receiving the register and the recommendations of the Assistant Commissioner with respect thereto and making such further inquiry, as he may consider necessary, direct the Trustee to make such alterations, omissions or additions in the register as he may deem fit. (5) The Trustee shall carry out the orders of 1[the Commissioner] and then submit the register to 1[the Commissioner] for approval. (6) A Copy of the register as approved by 1[the Commissioner] shall be furnished to the Trustee and to the Assistant Commissioner concerned. 16. Annual Verification of the Register :– (1) The Trustee or his authorised agent shall scrutinise the entries in the register every year, or after such interval, as may be prescribed and submit to the Commissioner for his approval, through the Assistant Commissioner, a verified statement showing the alterations, omissions or additions required in the register. (2) The Commissioner may, thereupon, after such inquiry as he may consider necessary, direct what alternations, omissions or additions, if any, should be made in the register. (3) A Copy of the order made under Sub-Section (2) shall be furnished to the Trustee and to the Assistant Commissioner concerned. (4) The Trustee shall carry out the alterations, omissions or additions ordered by the Commissioner in the Copy of the register kept by him. 17. Trustee to furnish accounts, returns, etc. :– The Trustee of every Religious institution shall furnish to the Commissioner, 2[the Deputy Commissioner] or the Assistant Commissioner such accounts, returns, reports or other informations relating to the administration of the institution in his charge, 1. Substituted vide Odisha Act No. 18 of 1954. 2. Inserted vide O.A. No. 29 of 1978. its funds, property or income or moneys connected therewith, or the appropriation thereof, as the Commissioner, 1[the Deputy Commissioner] or the Assistant Commissioner may require, and at such time and in such form as he may direct. 18. Inspection of Property and Documents :– The Commissioner, 1[the Deputy Commissioner] or Assistant Commissioner, or any Officer or other person deputed by the Commissioner, 1[the Deputy Commissioner] or Assistant Commissioner in this behalf, may inspect all movable and immovable property belonging to all records, correspondence, plans, accounts and other documents relating to any Religious, institution; and it shall be the duty of the Trustee of such institution and all Officers and Servants working under him, his agent and any person having concern in the administration thereof, to afford all such assistance and facilities as may be necessary or reasonably required in regard to such inspection, and also produce any such movable property or document for inspection if so required. 2[19. Alienation of immovable trust Property :– (1) Notwithstanding anything contained in any law for the time being in force no transfer be exchange, sale or mortgage and no lease for a team exceeding five years of any immovable property belonging to , or given or endowed for the purpose of, any Religious institution, shall be made unless it is sanctioned and no such transfer shall be valid or operative unless it is so sanctioned. 3[Explanation :– A lease for a term not exceeding five years but with a condition of renewal permitting continuance of the lease beyond five years shall, for the purpose of this Sub-Section, be deemed to be a lease for a term exceeding five years. (1-a) The fact of execution of a lease deed with a condition for renewal or renewal of such a deed shall be communicated to the Commissioner by the Trustee not later than fifteen days from the date of execution. (1-b) After expiry of the term of the lease the lessee shall deliver possession of the leasehold land to the lessor, failing which, the Commissioner may take action in accordance with the provision of Section 68: Provided that all structures, permanent or temporary, if any, constructed plants and machineries and other things installed and kept on the leasehold land, which is a subject-matter of a lease executed after commencement of the Odisha Hindu Religious Endowments (Amendment) Act 22 of 1989 by the lessee, his Servants or agents, shall become the property of the Religious institution unless removed from the land within such period, as may be prescribed, after expiry of the term of lease, in respect of which the Commissioner shall take action under the provision of Section 68. 1. Inserted vide O.A. No. 29 of 1978. 2. Substituted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 3. Inserted vide O.A. No. 22 of 1989. (1-c) Notwithstanding anything contained in the proviso to Sub-Section (1-b), no property belonging to a person other than the lessee shall be subjected to confiscation under the said proviso, unless such person fails to remove his property within a period of thirty days from the date of publication of a notice which shall be issued by the Trustee within such period as may be prescribed after the expiry of the term of lease : Provided that any person whose property is affected under Sub-Section (1-c), may file an application to the Commissioner claiming the property whose decision shall, subject to the decision of the Civil Court, be final.] (2) In according such sanction, the Commissioner may declare it to be subject to suc conditions and directions as he may deem necessary regarding the utilization of the amount raised by the transaction, the investment thereof and in the case of a mortgage, regarding the discharge of the same within a reasonable period. (3) A Copy of the order may by the Commissioner under this Section shall be communicated to the State Government and to the Trustee and shall be published in such manner as may be prescribed. 1(4) The Trustee may, within thirty days from the date of receipt of a Copy of the order and any person having interest may, within thirty days from the date of publication of the order, appeal to the State Government to modify the order or set it aside : Provided that appeals from the orders communicated or published prior to the date of commencement of the Odisha Hindu Religious Endowment (Amendment) Act, 1980 shall lie within a period of three months from the date of communication or, as the case may be, publication of the order or within a period of thirty days from the commencement of the said Act whichever period of expires earlier. (5) In any case where appeal has not been made to the State Government it appears to the State Government 2[that the alienation is not necessary or beneficial to the institution, or] that the consideration fixed in respect of the transfer by exchange, sale, mortgage or lease for a term exceeding five years of any immovable property is inadequate, they may, within ninety days from the date of the receipt of the order communicated to them under Sub-Section (3) or the date of the order communicated to them under Sub-Section (3) or the date of the publication of the order whichever date is later, call for the record of the case from the Commissioner and after giving an opportunity of hearing to the parties concerned, revise the order of the Commissioner. Provided that in any case where the transfer has not been effected in pursuance of the order of the Commissioner under Sub-Section (1), the State Government may exercise the aforesaid power even after the expiry of ninety days from the date of such order. 1. Inserted vide O.A. No. 22 of 1989. 2. Substituted vide O.A. No. 29 of 1978. (6) The State Government may, by order, stay execution of the deed of transfer in respect of the immovable property which form the subject-matter of an appeal or revision till the disposal of the appeal, or as the case may be, the revision. (7) The order of the Commissioner made under this Section shall, subject to orders, if any, passed in an appeal or revision, be final.] SYNOPSIS 1. Registering authority cannot insist upon “No Objection Certificate” .................................................... 48 2. Without permission permanent lease is void ......................................... 48 3. No transfer of property without per- mission. ....................................... 48 4. Locus Standi to intervene ........... 48 5. Provisions of Section 19 not appli- cable to the property of Lord Jagannath .................................... 49 6. Permission to be granted with much care .............................................. 49 7. Any alienation without permission is void ............................................. 49 8. Prior Permission for Transfer of Land .................................................... 50 9. Revisional Powers of State Govern- ment ............................................ 50 10. Order of Eviction ........................ 50 11. Fixation of upset price ................ 50 12. Circumstances in which the sanction for alienation of property can be granted ........................................ 50 1. Registering authority cannot insist upon “No Objection Certifi- cate”:– Any immovable property belong- ing to a religious trust cannot be trans- ferred or leased out for more than 5 years without according permission from the Commissioner of Endowment. There be- ing no procedure to be followed by the Commissioner in a case where an appli- cation is made U/s- 19 A of the Act and no specific form is prescribed as men- tioned in the section for granting a “No Objection Certificate”. A registering au- thority cannot insist upon production of a “No Objection Certificate” from the Com- missioner and as such the provisions of Section 19-A cannot operate in its present form, 2012 (I) OLR 922 (Sumit Kumar Bose and others Vs. State of Orissa and others) 2. Without permission perma- nent lease is void :– The provisions of the section lay down an embargo for trans- ferring or alienating or leasing out any property of the public religious endow- ment for over 5 years. A permanent lease without permission of the commissioner is ab initio void 108 (2009) CLT 657, 2009 (Suppl. II) OLR 855, 2009 (II) CLR 728 (Bijaya Ketan Brahma and others Vs. State of Orissa and others). 3. No transfer of property with- out permission :– It is the duty of the Court to protect the interest of the deity, the marfatdar cannot alienate the proper- ties of a deity in violation of its statutory provisions. Endowment Commissioner according permission fixing an offset price for sale of the land of Rs. 10 Lakhs per acre. The Hon’ble High Court directed to put the entire land of the deity to pub- lic auction by fixing the upset price afresh 108 (2009) CLT 61, 2009 (I) OLR 929, 2009 (II) CLR 63 (Lokesh Patro and an- other Vs. Commissioner of Endowment, Orissa and 6 others). 4. Locus Standi to intervene :– Locus Standi to intervene in the matter – Endowment Commissioner according permission to sale the lands of the deity in the Suo motu revision, application for intervention was filed which was disposed of and later on in the writ petition it was held that the appellants being never in- ducted as tenant and were not in posses- sion of the land, they has no locus standi challenging such sale in the writ appeal, it was held that the deity being a perpetual minor and disable person, the appellants being Hindu worshippers has got right and have locus standi to intervene in the mat- ter. 108 (2009) CLT 61, 2009 (I) OLR 929, 2009 (II) CLR 63, (Lokesh Patro and an- other Vs. Commissioner of Endowment, Orissa and 6 others). 5. Provisions of Section 19 not applicable to the property of Lord Jagannath :– The provisions of the Sec- tion 19 are not applicable to the property belonging to Lord Jagannath which are governed by the provisions of Section 16 of Shri Jagannath Temple Act, 1955 as the property has been dedicated to Lord Jagannath, Puri, direction issued to deal with the property as per the said provi- sions, 108 (2009) CLT 508, 2009 (Supp. II) OLR 238, 2009 (II) CLR 588 (Sri Siddha Matha represented by Mahanta Satya Narayan Ramanuj Das and two oth- ers Vs. Sri Jagannath Temple Managing Committee) 6. Permission to be granted with much care :– Powers of the Commis- sioner according permission for alienation of the lands belonging to a public religious endowment – explained – permission is to be granted with much care and caution. The Commissioner is to see and satisfy that the same is for the benefit of the reli- gious institution. 2008 (II) CLR193, 2008 (Suppl. II) OLR 709 (Uma Charan Jena Vs. State of Orissa and others) On an application U/s- 19 of the Act the Commissioner of Endowment is required to make an enquiry and will sanc- tion the transfer only if it is found to be necessary and beneficial to the institution. It is the satisfaction of the Commissioner as to the necessity and interest of the de- ity in justification of a transfer and not that of the trustee who merely files the application, as such the de-facto trustee as used in Rule-4 of the Orissa Hindu Religious Endowment Rules does not lead to a situation by which the de-facto trustee acquires and uncontrolled power which may be utilize against the interest of the deity in the matter of alienation of its prop- erties, 63 (1987) CLT 115 (Radhakrushna Dutta and others Vs. State of Orissa and Others) The period of limitation as pro- vided U/s- 19 (4) of the Act is 3 months from the date of receipt of the copy of the order in the case of a trustee and from the date of the publication of the order in the case of any person having interest in in- stitution, 63 (1987) CLT 115 (Radhakrushna Dutta and others Vs. State of Orissa and Others) The provision of Section 19 are to safeguard the interest of the deity and function of the sebayat or mahanta is that of a prudent owner who would not desire his property to be sold at a lesser price if higher price is available for the property. A fortiorari the Commissioner being the watch dog should not also desire the prop- erty belonging to the religious institution to be alienated for inadequate consider- ation, if there is a higher offer. The order of alienation being administrative in na- ture can be modified and altered for co- gent reason, 71 (1991) CLT 450 (Mahant Sri Pranab Kishore Bharati Vs. Commis- sioner of Endowment, Orissa and another) 7. Any alienation without per- mission is void :– The provisions of the section are mandatory in nature and any alienation made in contravention of the provisions is void, 81 (1996) CLT 571 (FB) (Smt. Basanti Kumari Sahoo Vs. State of Orissa and others) The Commissioner of Endowment while granting permission to sale away land belonging to deity for its benefit and permitting the sale in question by way of public auction not followed strictly and the process of auction sale was improper. 102 (2006) CLT 471, 2006 (II) CLR 316, 2006 (Supp. I) OLR 1061, (Sri Yedia Narasimhulu Vs. Commissioner of En- dowment, Orissa and others) There was no material available on record on the basis of which there was fixation of upset price of the land. Fur- ther there has not been any observation in this regard as to on what basis the price has been fixed. The order is liable to be quashed. 2006 (II) CLR 736 (K. Iswar Rao Vs. State of Orissa and others) Claim having been made for per- manent tenancy of the rooms which had been occupied under the leases granted by the hereditary trustees – the leases were granted without due procedure of law as there being no sanction of the Commis- sioner of Endowment and the leases were void in view of section 19, 2003 (I) OLR 145 (Surendra Babu Patra and Others Vs. Commissioner of Endowment Orissa, Bhubaneswar and Others) 8. Prior Permission for Transfer of Land :– Any transfer of land without permission given by the Commissioner for the transfer by the trustee is invalid, 88 (1999) CLT 712, 1999 (II) OLR 319, 1999 (4) CCC 259 (Orissa Natabar Behera Vs. Batakrushna Behera) 9. Revisional Powers of State Government :– After order is made for transfer of immovable trust property, any trustee or any person having interest may prefer appeal and further the provisions of the Section 19 (3) provides any order for sanction of transfer is to be communi- cated to the State Government as well as to the trustee and published as provided under the said section and in case the transfer has not been affected the State Government may exercise revisional power. Mahanta Sri Pranab Kishore Bharati Goswami and another Vs. The Government of Orissa through its Secre- tary Law Department, 1995 (II) OLR 118. 10. Order of Eviction :– Landed properties of a deity transferred by way of Registered Sale Deed in violation of the provision of this section. Order of eviction was passed. Though the proper- ties were in possession of the sebayat but they failed to prove that they supplied the balbhog in lieu of the rent of the land. Mere entry in R.O.R. cannot establish the claim of the petitioner, as such eviction order not to be interfered with, 2005 (II) CLR 409, 2005 (Suppl.) OLR 910 (Sabitri Sahu Vs. Commissioner of Endowment and two others) 11. Fixation of upset price :– A public religious institution making appli- cation for sale of the land by its non-he- reditary Trust Board, permission was granted fixing upset price which was again fixed by the Appellate Authority much more higher as fixed by the Com- missioner. Matter was challenged in the Writ Petition and it was found that there was no material to show to fixed the high price by the Appellate Authority, as such the matter was remanded for disposal afresh. 103 (2007) CLT 392, (2007) 1 OLR 6 (K. Iswar Rao Vs. State of Orissa and others) 12. Circumstances in which the sanction for alienation of property can be granted :– There are various factors which are to be taken into consideration before granting permission to alienate the properties of Hindu Religious Endow- ment. The dominant factor is whether the alienation of the property of the Religious Institution would be beneficial and are in the interest of the institution or not, when there are pressing and urgent legal neces- sity then only regard must be given for granting sanction. The properties should not be permitted to be sold at the whims and caprices of the persons who are in the management of the same. The legal ne- cessity is the sine qua non to accord per- mission for sale of the land of the deity. 2007 (II) CLR 733, 2007 (Suppl.II) OLR 1084 ((Sri) Jagnya Baraha Mahaprabhu Bije, Jharuapada and others Vs. State of Orissa through Secretary, Law Department and others) 1[19-A. Regulation of registration of documents :– Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under Section 17 of the Registration Act, 16 of 1908, purports to evidence transfer, by exchange, sale, mortgage or by lease for a term exceeding five years, of any immovable property belonging to or given or endowed for the purpose of any public Religious institution, no Registering Officer, appointed under that Act, shall register any such document unless the transfer or produces before such Registering Officer, the sanction order passed by the Commissioner under Section 19, or, as the case may be, no objection Certificate in the prescribed form granted by the Commissioner or any Officer authorised by him in that behalf. Provided that a no objection Certificate granted under this Sub-Section shall not be a bar to a dispute or abate any dispute, if pending under Section 41: Provided further that a no objection Certificate shall be deemed to have been granted, if the Registering Officer is satisfied that the transfer or having applied for grant of no objection Certificate to the Commissioner or the authorised Officer, as the case may be, has not received the same within three months from the date of the application under Section 19 is moved before the Commissioner and that the application has not been rejected before expiry of that period. 19-B. Restriction against money-lending :– Notwithstanding anything contained in any other law for the time being in force, no Religious institution shall lend or borrow money without the prior sanction of the Commissioner : Provided that no such sanction shall be necessary for borrowing such amount as may be prescribed for meeting the urgent expenses to carry on the daily rituals of a Religious institution.] 1. Inserted vide O.A. No. 22 of 1989. 1[19-C. Purchase of Trust property by the State Government :– (1) Where the commissioner has sactioned for transfere of immovable property, by way of sale, belonging to, or given or endowded for the propose of, any religious instition which become final under sub-section(7) of the section 19, notwithstanding anything contained in this Act or in any other law for the time being in force, the Trustee or the person in-charge of the immovable property of the religious institution,covered undered such order of sanction, shall be bound to first offer the said immovable property to the State Goverment for purchase of such immovable property for public purpose on payment of the amount which the Commisioner has fixed as adequate consideration for the purpose under Section19. (2) The State Government shall, within a period of forty-five days from the date of receipt of the offer under sub section (1) or such extended period not exceeding thirty days thereafter, intimate its intentionwether to purchase the said immovable property or not in such form and in such manner as may be prescribed. (3)Notwithstanding anything contained in any other law for the time being in force, no registering officer appointed under the Registration Act, 1908 shall registrar any document relating to transfor of immovable property by the way of sale, as mentioned in sub-section (1), unless certificate from the state Government to the effect that it has no intention to purchase such immovable property is furnished before the registering officer along with such document".] 20. Authority of Trustee to incur expenditure for securing the health, safety or convenience of pilgrims and worshippers :– (1) The Trustee of a Religious institution may out of the funds in his charge, after satisfying adequately the purposes of the institution, incur expenditure on arrangements for securing the health, safety or convenience of disciples, training of Vidyarthis or for securing the health and safety of pilgrims or worshippers resorting to the institution. (2) 2[ x x x ] 1. Inserted vide O.H.R.E. (Amendment) Act, 2012, O.G.E. No. 308, Dt. 22.02.2013. 2. Omitted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 21. Enforcement of service or charity in certain cases :– (1) Where a specific endowment attached to a Math or Temple consists merely of a charge on property and there if failure in the due performance of the service or charity, the Trustee of the Math or Temple concerned may require the person in possession of the property on which the endowment is a charge to pay the expenses incurred or likely to be incurred in causing the service or charity to be performed otherwise. In default of such person making payment as required, Assistant Commissioner may, on the application of the Trustee and after giving the person in possession a reasonable opportunity of stating his objections in regard thereto, by order, determine the amount payable to the Trustee. (2) Where the person in possession of the property on which the endowment is a charge is not the person responsible in law for the performance of the service or charity and any amount is paid by or recovered from the person in possession, the Assistant Commissioner may, on the application of the person in possession and after giving the person responsible in law a reasonable opportunity of stating his objections in regard thereto, by order, require the person responsible in law to pay to the person in possession the amount so said or recovered. (3) Against an order of the Assistant Commissioner under Sub-Section (1) or Sub-Section (2), the Trustee or the person affected may, within one month of the date of the receipt of the order by him, appeal to the Commissioner which may modify or cancel the same. (4) On application by the Trustee to the Collector of the district in which the property referred to in Sub-Section (1) is situated, or an application by the person in possession to the Collector of the district in which is situated any property of the person responsible in law, as the case may be, the Collector shall recover from the person in possession, or the person responsible in law as the case may be, the amount specified in the order of the Assistant Commissioner as modified by the order of the Commissioner, if any, and the expenses of such recovery, as if they were arrears of land revenue and pay to the Trustee or, as the case may be, to the person in possession, the amount due to him. 22. Power of Trustee of Math or Temple over Trustees of specific Endowments :– The Trustee of a specific endowment made for the performance of any service or charity connected with a Math or Temple shall perform such service or charity subject to the general Superintendence of the Trustee of the Math or Temple and shall obey all lawful orders issued by him. 23. 1[ x x x ] 24. Resumption and re-grant of inam granted for the performance of any charity or service connected with a Math or Temple in case of alienation of the inam or of failure to perform the charity or service :– (1) Any exchange gift, sale or mortgage and any lease for a term exceeding five 1. Omitted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. years, of the whole or any portion of any inam or jagir granted for the support or maintenance of a Religious institution or for the performance of a charity or service connected therewtih or of any other Religious charity made, confirmed or recognised by the State Government shall be null and void. (2) (a) The Collector may, on his own motion, or on the application of the Trustee of the Religious institution or of the Commissioner or the Assistant Commissioner or of any person having interest in the institution who has obtained the consent of such Trustee or the Commissioner, by order, resume the whole or any part of any such inam or jagir in one or more of the following grounds, namely : (i) that the Trustee of the institution or the holder of such inam of jagir or part, as the case may be, has made an exchange, gift, sale or mortgage of such inam or part or any portion thereof or has granted a lease of the same or any portion thereof for a term exceeding five years; or (ii) that the Religious institution has ceased to exist or the charity or service in question has in any way become impossible or incapable of performance; or (iii) that the holder of such inam or jagir or part has failed to perform or make the necessary arrangements for performing, in accordance with the custom or usage, the cahrity or service for performing which the inam had been made, confirmed or recognized as aforesaid, or any part of the said charity or service, as the case may be; or (iv) that such service is no longer required. When passing an order under this clause, the Collector shall determine whether such inam or jagir or the inam comprising such part, as the case may be, is a grant of both the landlord’s interest and the ryot’s interest or only of the landlord’s interest : Provided that in the absence of evidence to the contrary, the Collector shall presume that any minor inam is a grant of both the landlord’s interest and the ryot’s interest. (b) Before passing an order under Clause (a), the Collector shall give notice to the Trustee, to the Commissioner, to the Assistant Commissioner, to the inamdar concerned or where only a part of the inam is affected, to the holder of such part as well as to holders of the other part or parts and to the aliene, if any, of the inam, hear their objections, if any and hold such inquiry as may be prescribed. (c) A Copy of every order passed under Clause (a) shall be communicated to each of the persons mentioned in Clause (b) and shall also be published in the manner prescribed. (d) (i) Any party aggrieved by an order of the Collector under Clause (a) may appeal to the Collector of the district within such time as may be prescribed and on such appeal the Collector of the district may, after giving notice to the Commissioner and each of the persons mentioned in Clause (b) and after holding such inquiry as may be prescribed, pass an order confirming, modifying or cancelling the order of the Collector. (ii) The order of the Collector of the district on such appeal, or the order of the Collector under Clause (a) where no appeal is preferred under Sub- Clause (i) to the district Collector within the time prescribed, shall be final : Provided that where there has been an appeal under Sub-Clause (i) and it has been decided by the Collector of the district or where there has been no appeal to the Collector of the district and the time for preferring an appeal has expired, any party aggrieved by the final order of the Collector of the district or the Collector, as the case may be, may file a suit in the Civil Court for determining whether that inam comprises both landlord’s interest and the ryot’s interest or only the landlord’s interest. Such a suit shall be instituted within one year from the date of the order of the Collector of the district on appeal where there has been an appeal under Sub-Clause (i) or from the date of the expiry of the period prescribed under Sub-Clause (i) for an appeal to the Collector of the district in a case where there has been no appeal. (e) Except as otherwise provided in Clause (d), an order of resumption passed under this Section shall not be liable to be questioned in any Court of law. (f) Where any inam or part of any inam is resumed under this Section, the Collector or the Collector of the district, as the case may be, shall by order regrant such inam or part - (i) as an endowment to the Religious institution concerned, or (ii) in case of a resumption on the ground that the Religious institution has ceased to exist or that the charity of service in question has in any way become impossible or incapable of performance, as an endowment for appropriation to such Religious, educational or charitable institution as the Commissioner may recommend. (g) The order of regrant made under Clause (f) shall, on application made to the Collector within the time prescribed, be executed by him in the manner prescribed. (h) Nothing in this Section shall affect the operation of Section 23. 1[25. Recovery of immovable trust Property unlawfully alienated :– (1) In case of any alienation, in contravention of Section 19 of this Act or Section 51 of the Odisha Hindu Religious Endowment Act, 1939, or in case of unauthorised occupation of any immovable property belonging to or given or endowed for the purpose of any Religious institution, the Commissioner may, after summary enquiry as may be prescribed and on being satisfied that any such property has been so alienated or unauthorisedily occupied send requisition 1. Substituted vide O.A. No. 2 of 1981. to the Collector of the district to deliver possession of the same to the Trustee of the institution or a person discharging the function of the said Trustee. (2) The Collector in exercising his powers under Sub-Section (1), shall be guided by rules made under this Act. (3) Any person aggrieved by the action of the Collector may institute a suit in the Civil Court to establish his rights.] SYNOPSIS 1. Power of the Commissioner ........ 56 2. Order of Eviction ........................ 56 1. Power of the Commissioner :– Application made by the deity claiming that the lands belong to it and Opp. Party 2 to 4 occupied the lands unauthorisedly. Since the suit is filed and status quo has been passed in the said suit. The Com- missioner stayed the proceeding. 2008 (I) CLR 342 (Lord Lingaraj Mahaprabhu, Bhubaneswar, represented through its Executive Officer Vs. Commissioner of Endowment, Orissa and others) The provision of Section -25 (3) permits the aggrieved party to approach the Civil Court as the right of the respon- dent and his predecessor about the claim of the occupancy right had to be deter- mined and adjudicated by some compe- tent authority and as such it was directed the appellant should approached the Civil Court for appropriate relief, 80 (1995) CLT 275 (SC) (Lord Lingaraj Bije, Bhubaneswar and another Vs. Nityananda Mishra and others) Onus lies on the plaintiff to prove that the mahanta who sold the properties to him was the absolute owner of the prop- erty – Inference cannot be drawn from the act or omission of the authorities under the Endowment Act and Collector to con- fer title of the property on the mahanta as a owner of the properties, 2004 (I) CLR 71, (Madhu Sudan Panda and after him Mukta Devi and others Vs. The Commis- sioner of Endowment, Orissa and others) 2. Order of Eviction :– Landed properties of a deity transferred by way of Registered Sale Deed in violation of the provision of this section. Order of evic- tion was passed. Though the properties were in possession of the sebayat but they failed to prove that they supplied the balbhog in lieu of the rent of the land. Mere entry in R.O.R. cannot establish the claim of the petitioner, as such eviction order not to be interfered with, 2005 (II) CLR 409, 2005 (Suppl.) OLR 910 (Sabitri Sahu Vs. Commissioner of Endowment and two others) 26. 1[ x x x ] CHAPTER – III RELIGIOUS INSTITUTIONS OTHER THAN MATHS AND SPECIFIC ENDOWMENTS ATTACHED THERETO 27. Non-hereditary Trustees, their number and appointment :– (1) The Assistant Commissioner shall, in case where there is no hereditary Trustee, 2[with the prior approval of the State Government] appoint non-hereditary Trustee 1. Omitted vide O.A. No. 18 of 1954. 2. Inserted vide O.A. No. 4 of 1992. 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. 1[Provided that the Assistant Commissioner shall, before sending any proposal to the State Government for such prior approval, publish a notice in the Notice Board of the concerned Religious institution and intimate the general public of the locality by beat of drum, inviting suggestions and objections on the proposal from all persons affected, to be made within a period of thirty days from the date of such publication and forward to the State Government the suggestions and objections, if any received, alongwith such proposal. (1-a) On receipt of a proposal made under Sub-Section (1) for the appointment of a Non-hereditary Trustee, the State Government may either accord the required approval or reject or modify the proposal of the Assistant Commissioner as it may deem fit in the interest of the persons belonging to the Religious denomination for whose benefit, the concerned Religious institution is chiefly maintained.] 2[(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 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 Odisha 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 this appointment or on the expiration of three months from the date of commencement of the said Act, whichever is later.] SYNOPSIS 1. After expiry of term of Trust Board no writ lies .................................. 58 2. Powers of the Assistant Commissioner of the Endowment ....................... 58 3. Meaning of the term Religious Insti- tution ........................................... 58 4. Power of Assistant Commissioner to appoint non hereditary trustee ..... 58 5. Principles of Natural Justice ....... 59 6. Summary Inquiry before appointing non hereditary trustee .................. 59 7. Procedure to be followed before ap- pointment of non-hereditary trustee .................................................... 59 8. Notice under Order 1 Rule 8 (2) of C.P.C. is mandatory ..................... 59 1. Inserted vide O.A. No. 13 of 2003 (O..E. No. 825, dated 31.5.2003). 2. Substituted vide O.A. No. 29 of 1978. 1. After expiry of term of Trust Board no writ lies :– Writ petition filed challenging the appointment of the mem- bers of the trust board, however, the term of the trust board expired and as such there was no question of interfering in the or- ders and High Court was not inclined to quash the same. 2011 (Suppl.I) OLR 631. 2. Powers of the Assistant Com- missioner of the Endowment :– The As- sistant Commissioner of the Endowment can appoint the non hereditary trust board subject to approval of the State Govern- ment, but before forwarding any such pro- posal to the State Government a notice is to be published in the notice board of the concerned religious institution which is mandatory in nature, without such notice the order of appointment of trust board is illegal and as such liable to be quashed. 2011 (2) OJR 103, 2010 (II) OLR 754 (Sudarsan Nayak and another Vs. Com- missioner of Endowments and others) 110 (2010) CLT 869. Powers of the Deputy Commis- sioner of Endowment to constitute non he- reditary Trust Board. The Deputy Com- missioner of Endowment not following the procedure as prescribed and laid down in the provisions of Section 27 of the Act. The Order cannot be sustained constitut- ing the Trust Board under Clause 3 (a) of the scheme, the matter remanded to the Deputy Commissioner with certain direc- tions 108 (2009) CLT 169, 2009 (Supp. II) OLR 113, 2009 (II) CLR 585, (Pramod Behera and others Vs. Commissioner of Endowment and others) 3. Meaning of the term Religious Institution :– Meaning of the word the “Religious Institution” has been defined which means those religious institution in Section 27 of the Act, which are public in nature. The nature of the religious insti- tution may be public or private is to be decided by the Assistant Commissioner of Endowment, 69 (1990) CLT 213 (Baikunthanath Patjoshi and others Vs. Commissioner of Endowment of Orissa, Bhubaneswar and others) 4. Power of Assistant Commis- sioner to appoint non hereditary trustee:– The Assistant Commissioner can appoint non hereditary trustee to a re- ligious institution other than matha with- out determination of a dispute U/s- 41 of the Act, 74 (1992) CLT 969 (Khetramohan Rout and Others Vs. Sri Sri Mugeswar Mahadev and others) Appointment of Non Hereditary Trustee – Powers of Assistant Commis- sioner of Endowment – When there is no hereditary trustee, Assistant Commissioner is authorized to appoint non-hereditary trustee in respect of each religious institu- tion other than mathas with approval of the State Government. Such appointment can continue for 2 years from the date of appointment. Such appointment can be extended from time to time which cannot exceed 6 months. Further the meaning of the term “Sufficient” – Explained – Which means adequate, enough, as much as may be necessary to answer the purposes in- tended, 81 (1996) CLT 694 (Narayan Sahu and others Vs. The Commissioner of En- dowment of Orissa and others) Appointment of non hereditary trustee is to be made with utmost expedi- tion in order to avoid mismanagement and misappropriation. While doing so the As- sistant Commissioner is to make a sum- mary inquiry which must be reasonable and satisfactory holding that whether there is a hereditary trustee in the institution or not. If the order is arbitrary than the said order can be challenged in the revision. 81 (1996) CLT 477 (Dhadi Parida after him Sundari Parida and others Vs. Com- missioner of Consolidation and others) The Assistant Commissioner of Endowment can exercise its jurisdiction for appointment of non-hereditary trust- ees whether any proceeding under the pro- visions of Section 41 of the Act is pend- ing or not, 2006 (I) CLR 230 (Sri Chandi Thakurani Bije at Bakharabad, Jagatsinghpur Vs. State of Orissa and oth- ers) 5. Principles of Natural Jus- tice :– Inspector of Endowment submit- ting a report to form a non-hereditary Trust Board and the same having being sent to the Commissioner – Interim Trust Board can be formed if there is no hereditary trustee – However the Additional Com- missioner or the Commissioner is to make enquiry as to whether there was any he- reditary trustee or not, as the R.O.R. pre- pared in the name of the petitioner. Fur- ther the matter having being in dispute before the Consolidation Authorities, they have interest in the matter. But they have not been given an opportunity of hearing, as such the matter was remanded to the Commissioner to be dispose of after ex- tending due opportunity of hearing to the petitioner. AIR 1999 Orissa 175, 1999 (I) OLR 608 (Jasobanti Thakurani and oth- ers Vs. Commissioner of Endowment and others) 6. Summary Inquiry before ap- pointing non hereditary trustee :– The Assistant Commissioner while appointing a non- hereditary trustee is to conduct a summary inquiry into the matter and he is to satisfied with regard to the necessity and also it is to be seen whether there is any hereditary trustee or not. However, the Commissioner is not debarred from exercising the powers as provided U/s- 27 in case of any application pending U/s- 41 of the Act. In view of the amendment of 1973, thus any order passed by the As- sistant Commissioner is revisable, 1999 (1) OLR 163 (Sri Sri Raghunath Jew and another Vs. Commissioner of Endowment Orissa and others) 7. Procedure to be followed be- fore appointment of non-hereditary trustee :– Before appointment of non-he- reditary trustee of any religious institution, the Assistant Commissioner is to invite suggestion and objection from the public by publishing a notice in the Notice Board of the concerned religious institution and also by beat of drums, the said suggestion and objection are to be forwarded to the State Government alongwith the propos- als. A duty is cast upon the State Govern- ment to verify the suggestion and objec- tion and if it intends to modify the said proposal of the Assistant Commissioner then again it has to invite suggestion and objection from the local public through the Assistant Commissioner, State Govern- ment not following the procedure substi- tution of the new name is illegal. 2005 OLR 465, 2005 (1) CLR 391 (Ch.) Krisna Murty and others Vs. State of Orissa and others) 8. Notice under Order 1 Rule 8(2) of C.P.C. is mandatory :– Assistant Commissioner appointed hereditary trustee which was challenged in appeal. However there being no notice issued un- der Order 1 Rule 8 (2) of C.P.C. The Or- der of the Trial Court is vitiated, 2005 (1) OLR 612, (2005) 1 CLR 702 (Jogiram Mohapatra and other Vs. Sibaram Pradhan and others) 28. Power to Suspend, Remove or Dismiss Trustees :– (1) 1[The Commissioner, in the case of a hereditary Trustee, and the Assistant 1. Substituted vide O.A. No. 29 of 1978. Commissioner, in the case of a non-hereditary Trustee, may suspend, remove or dismiss the Trustee of a Religious institution referred to in Section 27] – (a) for persistent default in the submission of budgets, accounts, reports or returns or in payment of contribution or other dues payable to Government; (b) for wilful disobedience of any order issued under the provisions of this Act by the State Government or the Commissioner, 1[the Deputy Commissioner] or Assistant Commissioner; (c) for any malfeasance, misfeasance, breach of trust or neglect of duty in respect of the trust or alienation of the trust property in contravention of this Act, or the Odisha Hindu Religious Endowments Act, 1939 (Odisha Act IV of 1939); (d) for any misappropriation of, or improper dealing with, the properties of the institution of which he is Trustee; (e) for unsoundness of mind or other mental or physical defect or infirmity which makes him unfit for discharging the functions of a Trustee; or (f) 2[ x x x ] (2) When it is proposed to take action under Sub-Section (1), the Commissioner or the Assistant Commissioner, as the case may be, shall frame charges against the Trustee concerned and give him an opportunity of meeting such charge of testing the evidence adduced against him and of adducing evidence in his favour and the order of suspension, removal or dismissal shall state the charges framed against the Trustee, his explanation and the finding on each charge with the reasons therefor. (3) Pending the disposal of the charges framed against the Trustee, the Commissioner or the Assistant Commissioner, may place the Trustee under suspension and appoint a fit person to discharge the functions of the Trustee. (4) A Trustee, who is suspended, removal or dismissed by an Assistant Commissioner under Sub-Section (1), may within one month from the date of the receipt of the order of suspension, removal or dismissal, appeal to the Commissioner against such order in the prescribed manner and the Commissioner shall pass such orders on the appeal as he may thinks fit : Provided that no appeal shall be entertained unless the person affected by the order complies with it and makes over charges of his Office or unless such a condition is waived by the Commissioner at his discretion. 3[(5) Any hereditary Trustee aggrieved by an order passed by the Commissioner under Sub-Section (1) 2[ x x x ] may within thirty days from the date of receipt of the order, appeal to the High Court and the Court may either 1. Inserted vide O.A. No. 29 of 1978. 2. Omitted vide O.A. No. 29 of 1978. 3. Inserted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. summarily dismiss the appeal or after hearing the parties pass such orders as the Court may deem fit. (6) A hereditary Trustee so suspended, removed or dismissed may be allowed such maintenance allowance as may be fixed by the Commissioner considering the financial condition of the institution and the rules made in the behalf.] Notes :– Appointment of interim trustees by Commissioner – Duty of the Commissioner is to make due inquiry in the matter when there is an objection, as the trustees so appointed are interested persons in view of the Section 29 of the Act – Appointment of such trustees is void. Further distinction between Section 28 and 29 – Explained, 82 (1996) (I) OLR 529 (Anam Charan Mallick and others Vs. Commissioner of Endowment, Bhubaneswar and another) 1[29. (1) A person shall be disqualified for appointment as a Trustee if he– (a) is a minor; (b) has been convicted by a Criminal Court of any offence involving moral turpitude; (c) is of unsound mind and is so declared by a competent Court; (d) is an undischarged insolvent; (e) has directly or indirectly any interest in a lease or any other transaction relating to the property of the institution; (f) is a paid employee of the institution or has any share of interest a contract for the supply of goods to, or the execution of any works or the performance of any service undertaken by the institution; (g) has been found to be guilty of misconduct; or (h) does not profess the religion or does not belong to the Religious persuasion or determination to which the institution belongs. (2) A Trustee shall be disqualified to continue and shall cease to hold Office as such if he incurs any of the disqualifications specified in Clauses (b) to (h) of Sub-Section (1).] Notes :– Appointment of interim trustees by Commissioner – Duty of the Commissioner is to make due inquiry in the matter when there is an objection, as the trustees so appointed are interested persons in view of the Section 29 of the Act – Appointment of such trustees is void. Further distinction between Section 28 and 29 – Explained, 82 (1996) (I) OLR 529 (Anam Charan Mallick and others Vs. Commissioner of Endowment, Bhubaneswar and another) 30. Filing up of Vacancies in the Office of hereditary Trustee :– When a permanent vacancy occurs in the Office of the hereditary Trustee of such Religious institution the next in the line of succession shall be entitled to succeed to the Office. 1. Substituted vide O.A. No. 29 of 1978. (2) When a temporary vacancy occurs in such an Office by reason of the suspension of the hereditary Trustee under Sub-Section (1) of Section 28 or by reason of his ceasing to hold Office under the provisions of Section 29, the next in the line of succession shall be appointed to discharge the functions of the Trustee until his disability ceases. (3) When a permanent or temporary vacancy occurs in such an Office and there is a dispute respecting the right of succession to the Office, or when such vacancy cannot be filled up immediately or when a hereditary Trustee is minor and has no legally constituted guardian fit and willing to act as such or there is a dispute respecting the person who is entitled to act as such guardian, the 1[xxx] Commissioner may, 1[xxx] appoint a fit person to discharge the functions of the Trustee of the institution until the disability of the hereditary Trustee ceases or another hereditary Trustee succeeds to the Office or for such shorter term as the 1[xxx] Commissioner may direct. The Commissioner 1[xxx] shall have power to remove such interim Trustee for the reasons specified in Section 28. Explanation :– In making any appointment under this Sub-Section 1[xxx] the Commissioner, shall have due regard to the claims of members of the family, if any, entitled to the succession. 2[(4) Nothing in this Section shall affect the right of any person aggrieved by an order of the Commissioner under Sub-Section (3) to establish the right to hold Office of the hereditary Trustee in a Court of law : Provided that such Court shall have no power to stay the operation of the Commissioner, pending the disposal of the suit or other proceedings arising in relation thereto.] SYNOPSIS 1. Omitted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 2. Substituted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. 1. Power of Commissioner to determine status of Religious Institution ..... 62 2. Declaration of Hereditary Trustee .................................................... 62 1. Power of Commissioner to determine status of Religious Institu- tion :– An order made without proper en- quiry as to whether the institution is a pub- lic religious institution or not than the said order cannot have any binding effect. Re- ligious institution, the Commissioner is empowered to decide the nature and char- acter of the institution in accordance with law, 66 (1988) CLT 661 (Suryanarayan Das and others Vs. Mahanta Shri Chaitanya Das and others) 2. Declaration of Hereditary Trustee :– Powers of the Commissioner for appointment of hereditary trustee, the institution being a matha, one Guru Parankush Das executed a will appoint- ing Raghunath Ramanuja Das and after him Raghunath Ramanuja Das appointed a Chela, the said will having been held genuine by the Civil Court, as such Raghunath Das had acted as a hereditary trustee of the matha. Thus he duly ap- pointed the petitioner as a Chela who is to be declared as the hereditary trustee of the said matha, but the Commissioner having not done, the order is to be set aside, 1999 (1) OLR 428 (Sri Anil Kumar Das @ Ananta Ch. Ramanuja Das Vs. The Com- missioner of Hindu Religious Endowment, Orissa) Determination of the hereditary trustee by the Commissioner – its powers and functions – explained – commissioner accepting the Opp. Party No.3 as heredi- tary trustee did not commit any illegality, 2008 (I) CLR 555 (T.Kalyani Subudhi and others Vs. Commisioner of Endowments, Orissa Bhubaneswar and others) 31. Appointment of Office-holders and Servants in Religious Institutions :– (1) Vacancies, whether permanent or temporary, amongst the Office-holders or Servants of a Religious Institution shall be filled up by the Trustee in cases where the Office or service is not hereditary. (2) In cases where the Office or service is hereditary the next in the line of succession shall be entitled to succeed. (3) Where however there is a dispute respecting the right of succession, or where such vacancy cannot be filled up immediately, or where the person entitled to succeed is a minor without a legally constituted guardian fit and willing to act as such, or where the hereditary Office-holder or Servant is suspended from his Office under Sub-Section (1) of Section 32; the Trustee may appoint a fit person to discharge the functions of the Office of perform the service, until the disability of the Office-holder or Servant ceases or another person succeed to the Office or Service, as the case may be. Explanation :– In making any appointment under this Sub-Section, the Trustee shall have due regard to the claims of members of the family, if any, entitled to the succession. (4) Any person affected by an order of the Trustee under Sub-Section (3) may, within one month from the date of the receipt of the order by him, appeal against the order to the Assistant Commissioner whose order shall be final : Provided that no appeal shall be entertained unless the person affected by the order complies with it and makes over charge of his Office or unless such a condition is waived by the Commissioner at his discretion. 32. Punishment of Office-holders and Servants in Religious Institution :– (1) All Office-holders and Servants attached to a Religious Institution or in receipt of any emolument to perquisite from the institution shall, whether the Office or service is hereditary or not, be controlled by the Trustee and the Trustee may fine, suspend, remove or dismiss any of them for breach of trust, incapacity, disobedience of orders, neglect of duty, misconduct or other sufficient cause. (2) Any Office-holder or Servant punished by a Trustee under Sub-Section (1) may, within one month from the date of the communication of the order to him, appeal to the Assistant Commissioner whose order shall be final. (3) If any such Office-holder or Servant against whom an order, fine, suspension, removal or dismissal has been made by the Trustee or the Assistant Commissioner, as the case may be, disobeys such order, he shall, unless he shows reasonable cause to the satisfaction of the Commissioner to the contrary, be liable to pay to the 1[Endowment Fund] within such date as may be specified in the order such penalty not exceeding 1[two] hundred rupees and in case of default a daily fine not exceeding twenty rupees. The penalty to be paid by such person shall in no case be paid from the fund of the institution concerned. (4) If such penalty is not paid within the time fixed or within such further time as may be granted by the Commissioner, the Collector of the district, in which any property of the person against whom an order is made under Sub- Section (3) is situated, shall, on a requisition made to him by the Commissioner, recover the amount as if it were an arrear of land revenue. 33. Office-holders and Servants of temples, not to be in possession of jewels or other Valuable articles except under conditions :– 1[Without prejudice to the generality of the provisions of this Act no Office-holder or Servant of a temple shall have the right to be in possession of the jewels or other valuable belongings to the temple except under such conditions and safeguards as the Commissioner may by general or special order direct.] 34. Fixing of standard scales of expenditure :– (1) The Trustee of a Religious Institution may, from time to time, submit to the Assistant Commissioner proposals fixing the scale of expenditure in the institution and the amounts which should be allotted to the various objects or ceremonies connected with such institution or the proportion in which the income or other property of the institution may be applied to such objects or ceremonies. (2) The Trustee shall publish such proposals at the premises of the institution and in such other manner as the Assistant Commissioner may direct, together with a notice starting that, within one month from the date of such publication, any person having interest might submit his objections or suggestions to the Assistant commissioner. (3) After the expiry of the said period, the Assistant Commissioner shall, after considering any objections or suggestions received by him, pass such order as he thinks fit on such proposals having regard to the established usage of the institution and its financial position and communicate a Copy of the order to the Trustee. (4) The Trustee or any person having interest may, within one month from the date of the receipt of the order by the Trustee, appeal against it to the Commissioner. 1. Substituted vide O.H.R.E. (Amendment) Act, 1954-O.A. No. 18 of 1954. (5) The scale of expenditure for the time being in force in an institution shall not be altered by the Trustee except in accordance with the procedure laid down in this Section : Provided that the Assistant Commissioner may at any time on his own motion, for sufficient cause, direct the Trustee to modify the scale of expenditure. (6) The Trustee or any person having interest may within one month from the date of the receipt by the Trustee of any direction issued under the proviso to Sub-Section (5) appeal against such direction to the Commissioner. The order of the Commissioner shall be final. CHAPTER – IV MATHS 35. Disqualification of hereditary Trustees :– (1) A hereditary Trustee of a Math shall be declared disqualified and shall consequently cease to hold his Office if he – (a) is of unsound mind ; or (b) is suffering from any physical or mental disease or defect or infirmity which renders him unfit to be a Trustee; or (c) has ceased to profess and practise Hindu religion or tenets of the Math; or (d) is convicted for any offence involving moral turpitude 1[ x x x ]; or (e) has committed breach of trust in respect of any of the properties of the Religious Institution; or (f)