Supreme Court Upholds Commissioner's Order That Emar Math Is a Public Religious Endowment Under Orissa Hindu Religious Endowments Act, 1939. Institution Satisfying Three Conditions of Math Under Section 6(7) Is Deemed a Hindu Public Religious Endowment, and Appellant Failed to Discharge Burden to Prove Properties Were Private.

Civil suit for setting aside the decision of the Commissioner of Hindu Religious Endowments under Section 64(1) of the Orissa Hindu Religious Endowments Act, 1939, and for a declaration that the Act did not apply to the properties described in Schedules Ka, Kha and Ga of the plaint.

Plaintiff sought a declaration that the Act did not apply to the properties in suit and setting aside of the Commissioner's order dated July 20, 1946.

The Commissioner demanded contribution under Section 49 and took steps to enforce other provisions of the Act against the plaintiff and properties; plaintiff claimed the premises were not a math as defined and properties were not public religious endowments.

Commissioner held on July 20, 1946 that Emar Math was a math and properties constituted a religious endowment; trial court (Additional Subordinate Judge, Puri) dismissed the suit; Orissa High Court dismissed First Appeal No. 63 of 1957 on November 30, 1961, confirming the trial court.

Whether Emar Math is a 'math' as defined under Section 6(7) of the Orissa Hindu Religious Endowments Act, 1939. Whether the properties in Schedules Ka, Kha and Ga are public religious endowments subject to the Act or private/personal properties. Whether the plaintiff bears the burden of proving that the Commissioner's order is wrong. Whether the gazetteer can be consulted as evidence on matters of public history.

Appellant argued that Emar Math is not a public math and therefore the Act does not apply. Appellant contended that properties in Schedule Ka were personal properties and properties in Schedules Kha and Ga were private debottar properties. Appellant asserted that the public had no free access or right of entry or worship in the premises, so the institution could not be a math under the Act. Respondent contended that the properties in suit were public debottar properties and public endowments to which the Act applied. Respondent asserted that Emar Math was a math as defined in the Act and the public had a right to go there and had been doing so from time immemorial.

An institution is a math under Section 6(7) of the Orissa Hindu Religious Endowments Act, 1939 if it satisfies three conditions: it is for promotion of Hindu religion; presided over by a person engaging in spiritual service or claiming spiritual headship; and succession devolves per founder's directions or usage. Under Section 6(12) and its Explanation, the premises of a math are deemed a religious endowment, and an institution within the definition of math ipso facto comes within 'Hindu public religious endowment' subject to the Act. Maths are generally public because their beneficiaries are members of the fraternity and persons of the faith, constituting a section of the public; no public access requirement exists unlike the definition of temple. A plaintiff challenging the Commissioner's order bears the initial onus to establish prima facie that the institution is not a math and the properties are not endowed.

An institution comes within the definition of 'Math' if it satisfies three conditions (i) that the institution be for the promotion of the Hindu religion; (ii) that it be 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 (iii) that the office of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage. The distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or some section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons. The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute, therefore, at least a section of the public. Maths, in general, consequently, are public maths. It follows that an institution which comes within the definition of math under the Act, ipso facto, comes within the expression 'Hindu public religious endowment' and therefore become subject to the provisions of the Act.

The Commissioner of Hindu Religious Endowments, Orissa, demanded contribution under Section 49 and took steps to enforce provisions of the Act. The plaintiff formally sought a decision under Section 64(1). The Commissioner decided against the plaintiff on July 20, 1946, holding that Emar Math was a math and the properties constituted a religious endowment. The plaintiff instituted a suit in the court of the Additional Subordinate Judge, Puri, which dismissed the suit. The plaintiff appealed to the Orissa High Court in First Appeal No. 63 of 1957, which was dismissed on November 30, 1961. The plaintiff then appealed to the Supreme Court by special leave in Civil Appeal No. 205 of 1964, which was dismissed on May 6, 1966.

• Orissa Hindu Religious Endowments Act, 1939: Section 2(a), Section 6(7), Section 6(10), Section 6(12) and Explanation, Section 6(13), Section 11, Section 12, Section 13, Section 46, Section 49, Section 64(1)