MAHANTA SRIKRUSHNA CHANDRA DAS Vs. RAJKISHORE MOHANTY

JUDGEMENT

(1.) Appellant was the recognised Mahant of Khambakul Math, P.S. Balikuda in the District of Cuttack. The Commissioner of Endowments has recommended Under Section 35 of the Orissa Hindu Religious Endowments Act to the Government for approval to disqualify the appellant from continuing as Mahant for a period of five years. The appeal is directed against that order. The charges levelled against the appellant were that he sold away 7.08 acres of land though permission had been obtained by him to execute permanent lease-deeds in respect of the said lands; he spent money for construction of the temple without plan and estimate being sanctioned by the Commissioner, he alienated some land of the institution either by himself or by his authorised agent without permission; he also alienated some Anabadi land without permission in his own name; he wilfully and persistently defaulted in discharging his duties and also defaulted in payment of contributions. He was asked to show cause and after causes were shown, the learned Commissioner of Endowments has held that the appellant has committed breach of trust in respect of funds of the institution and there has been persistent and wilful default in payment of contribution and was thus disqualified to continue as Mahant under Clauses (c) and (f) of Section 35 of the Orissa Hindu Religious and Endowments Act.

(2.) A preliminary objection was taken by the counsel for the respondents that this miscellaneous appeal is not maintainable. He contended that the present appellant had filed a writ petition vide O.J.C. No. 1546/79 which was dismissed on 27-11-79 and in that writ petition he had challenged the validity of the charges levelled against him as well as the order of the Commissioner recommending to Government to disqualify him. The following order was passed by this Court in the aforesaid writ petitions

(3.) Mr. Misra, the learned counsel for the respondents, has relied on Collector of Customs v. East India Commercial Co. Ltd., Calcutta, AIR 1963 SC 1124; Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1; and Gojer Brothers (P.) Ltd. v. Ratan Lal Singh, AIR 1974 SC 1380. Relying on these decisions, he contends that the order of the Commissioner of Endowments has already merged in the order of the High Court in the writ petition and there is no order available to be considered in the present appeal. In the aforesaid decisions, statutory appeals or statutory revisions had been filed and had been disposed of and the decisions were on merits. If an appeal or revision, as provided under law, is filed against a decision, and the appeal or revision is disposed of on merits, undoubtedly the decision appealed against or sought to be revised merges in the judgment or order of the higher forum. It has also been held in Daryao's case (AIR 1961 SC 1457 referred to above) that if the order appealed against merges in appeal, then that can operate as a res judicata. There cannot be any doubt about the well-settled proposition that the order of the lower forum merges in the decision in appeal or revision. But that principle is not applicable in the present case. In my opinion, the principles laid down by the Supreme Court in Daryao's case (supra) are squarely applicable to the present case. There has been no decision on merits in O.J.C. No. 1546 of 1979 and thus it cannot operate as a bar to the present appeal.