RAMA CHANDRA PALO Vs. KALA PALO

JUDGEMENT

(1.) THIS appeal has been preferred under Section 44 (2) of the Orissa Hindu religious Endowments Act, 1951 (hereinafter to be referred to as the Act) against an order of the Endowment Commissioner under Section 42 (6) of the Act.

(2.) THE facts, in brief, giving rise to this appeal are as follows: The appellant and respondents are the hereditary trustees of the institution known as Sri Radhakanta swamy temple. On 15-10-1928, a scheme was framed for the management of the said institution by the Board of Commissioners under the Madras Hindu Religious endowments Act of 1927. As the hereditary trustees were excluded from the scheme, a suit was filed in the Court of the District Judge. Ganjam by the representatives of the three branches Madan Palo, Kalu Palo and Brundaban Palo. The District Judge disposed of the suit agreeing with the findings of the Board of commissioners by his iudgment dated 4-8-1931. The plaintiffs therein preferred as appeal Case to the Madras High Court which was registered as Appeal Case No. 61 of 1932. The Madras High Court held that the first appellant Madan Palo, was entitled to be the trustee and that the family possessed the hereditary right of appointment and directed that the scheme should provide for the same. Accordingly, the case was remanded to the District Judge for re-settlement of the scheme in the light of their observation. After remand, the District Judge. Ganiam by the decree dated 14-31938 modified the scheme framed by the Board of Commissioners directing constitution of a Board of three trustees, two of whom, were to be appointed by the Ganiam Temple Committee and the third being Madan Palo, the first plaintiff as hereditary trustee. The actual management should be done by the first plaintiff in his capacity as managing trustee. The two other hereditary trustees Brundaban palo and Kalu Palo thus being excluded from the Board of trustees preferred an appeal before the Patna High Court which was registered as F. A. No. 38 of 1938. The First Appeal was disposed of by modifying the decree passed by the District judge, so far as Brundaban Palo and Kalu Palo are concerned. The Court directed that the management should vest in five trustees instead of three, out of whom, three were to be outsiders appointed by the Ganjam Temple Committee, the fourth will be the first appellant Madan Palo, the fifth was to be filled up by appellant Nos. 2 and 3 Brundaban and Kalu by potation of three years for each. Thus, the Patna High Court decree was confined to the claim of Brundaban and kalu and the orders of the District Judge that the actual management of the institution was to be done by Madan Palo were not interfered with. Thereafter, the then Endowment Commissioner framed a scheme in accordance with the decree of the Patna High Court by order No. C-50 dated 25-6-1942. Subsequently, however, with consent of parties, the scheme was modified by his order dated 23-6-1943 to this extent that the three hereditary trustees were given the right of management by rotation of three years each. The appellant, who is a descendant of Madan Palo, was a minor at that time. This latter scheme as framed by Mr. Nair, the then Endowment Commissioner by Order No. 5 dated 23-6-1943 was subsequently adhered to by successive Endowment Commissioners like P. C. Das, Mr. B. K. Patra end Mr. L. Panda. Stating that this scheme was in substantial variance with the decree of the Patna High Court, the appellant filed an application on 29-1-1954 on attaining majority before the Endowment Commissioner to modify the scheme and bring it in accord with the decree of the Patna High Court. This application was disposed of on 10-3-1965 by the Endowment Commissioner who held that the application wag incompetent and the appellant was directed to make a proper application under Sec-tion 42 (6) of the Act. This order was challenged in O. J. C. No. 217 of 1965 alleging that the commissioner was bound to implement the decree of the Patna High Court but was subsequently withdrawn on 14-11-1969 as the matter could be agitated before the Commissioner. Accordingly the appellant filed a petition under Section 42 (6) of the Act before the Commissioner which was registered as O. P. No. 40 of 1969 The Commissioner of Endowments by the impugned order modified the scheme by providing seven trustees instead of five and the management was taken from the appellant and given to the Executive Officer to be appointed by the commissioner. The order of the Commissioner is challenged on the ground that he had no jurisdiction to modify the scheme in the manner it has been done and that it has been passed in clear contravention of the provisions contained in Section 42 of the Act.

(3.) THE following contentions are urged by learned Counsel for appellant: (1) Under the scheme settled by the Decree in O. S. No. 10 of 1929 after remand by the madras High Court, the management of the institution was vested in Madan Palo alone. The decision of the Patna High Court in F. A. No. 38 of 1938 was confined to the claim of Brundaban and Kalu, the other two branches who were allowed to serve in the Board of trustees by rotation of three years. The scheme thus settled could not nave been modified in any manner by the Endowment Commissioner. Therefore, the order Of Mr. Nair dated 23-6-1943 by vesting the actual management by rotation of three years in each of the three hereditary trustees was without jurisdiction and consequently the said unauthorised modification should be rectified and the same brought in accord with the one settled by the court and (2) by the impugned order, the Commissioner purports to modify the scheme in material particulars In clear contravention of the requirements of the provisions of the Act. Mr. Mohanti, learned Counsel appearing for the Endowment commissioner on the other hand, contends that the order of Mr, Nair dated 23-643 does not amount to a modification of the scheme but is an arrangement in working out the scheme as settled by the Court. Even if it amounts to a modification in any manner, as the said modification was with consent of the parties and has been in operation since 1943 and it is not open to the appellant to question it