ANDHARI MANGALA THAKURANI AND ANR. AND PURUSOTTAM JENA Vs. GOPINATH PANDA AND ORS. AND SRI SRI RADHA GOBINDA JEW THAKUR

JUDGEMENT

(1.) In these two appeals while the application for interim direction had been listed for orders, the learned single judge being of the opinion that the High Court has no power to pass any order either by way of appointment of receiver or injunction during the penency of the Second Appeal in this Court in view of Sub -section (3) of sec 74 of the Orissa Hindu Religious Endowments Act (hereinaftei to as the Act') referred the matter for decision of a larger Bench as another learned single Judge in Misc. Case No. 177/90 arising out of Misc. Appeal No. 88/90 had taken the view that the High Court has the power to grant such interim relief. The question that arises for consideration therefore, is that whether during the pendency of an appeal in the High Court under Sub -section (2) of Section 44 of the Act against an order of the Commissioner in exercise of power under Sub -section (1) of Section 44, the High Court can pass any interim order by way of appointment of receiver or injunction because of the embargo contained in Sub -section (3) of Section 74 of the Act. For better appreciation of the point in issue. Section 44 and Sub -section (3) of Section 74 are quoted hereinbelow in extenso : 'Section 44 (1) : Any person aggrieved by any order passed by the Assistant Commissioner Under Section 41 or Sub -Sections (1) and (6) of Section 42 or Section 43, may, within thirty days from the date of receipt of the order Under Section 41 or Section 43 or from the date of the publication of the order Under Section 42, as the case may be, appeal to the Commissioner. (2) Any party aggrieved by the order of the Commissioner under Sub -section (1J or under Sub -section (1) or (6) of Section 42 may appeal to the High Court within thirty days from the date of the order of publication therreof, as the case may be.' 'Section 74 (3) : The Court hearing an appeal from the order of the Commissioner may direct further enquiry or modify or set aside such order as the Court may deem fit and unless the appeal is summarily dismissed the Commissioner shall be given an opportunity of being heard before the order passed by him is interfered with in any manner : provided that the operation of the order of the Commissioner shall not be stayed pending the disposal of the appeal.'

(2.) A bare perusal of Section 44 (1) of the Act indicates that an appeal lies to the Commissioner against any order passed Under Section 41 or Sub -section (1) and (6) of Section 42 or Section 43 and a Second Appeal lies to the High Court under Sub -section (2) of Section 44 against the appellate order of the Commissioner passed under Sub -section (1) of Section 44. Section 74 of the Act deals with procedure at enquiries and appeals and under SubSection (3) of Section 74, the Court has been given the power to direct further enquiry or modify or set aside such order as the Court may deem fit and if the appeal is not dismissed summarily, then the Commissioner will be given an opportunity of being heard before the final order is passed. Proviso to Sub -section (3) of Section 74, however, puts an embargo on the Second appellate authority to the effect that the operation of the order of the Commissioner shall not be stayed during the pendency of the appeal. Our brother Justices. C. Mohapatra, J. while referring the matter to a larger Bench has entertained a view that in view of the restriction on the power of this Court with regard to the granting of any stay of the Commissioner's order, the Court will not be justified in passing an order for appointment of receiver or injunction which would have the effect of staying the operation of the order of the Commissioner and, therefore, disagreed with the view expressed by our brother Jagdeb Roy, J., in Misc. Case No. 177/90. Justice Mohapatra, however,has not given any detailed reasonings for his disagreement but all the same referred the matter for decision of a larger Bench as this question would crop up in all Second Appeals before the High Court where the appeals are directed to this Court under Sub -section (2) of Section 44 of the Act. The power of the High Court in an appeal under Sub -section (2) of Section 44 is very wide and is in general terms. The appeal can be both on facts and on law and though it is a Second Appeal against the appellate order of the Commissioner but the restrictions contained in Section 100 C. P. C. would not apply.

(3.) THE Supreme Court in the case of (Sadasib Prakash Brahmchari, Trustee of Mahiparakash Math etc. v. The State of Orissa etc.) (AIR 1956 SC 432) white considering the constitutional validity of several provisions of the Act including Sections 44(2) and 74(3) thereof came to the conclusion that the right of appeal is given in very wide and general terms. Obviously the appeal can be both on facts and on law and would relate not merely to the merits of the scheme but also to all basic matters whose determination is implicit in the very framing of a scheme. Applying their mind to the provisions contained in Section 74(3) of the Act it was observed that though by virtue of the said provision operation of the order of the Commissioner framing a scheme is not to be stayed pending disposal of the appeal but that by itself cannot be taken to be an unreasonable restriction. They cannot, there - fore, be any two opinions on the question that the order of the Commissioner cannot be stayed during the pendency of the appeal in this Court. But when an application for appointment of receiver is made and a receiver is appointed of an application for injunction is filed and certain prohibitory orders are passed, does it amount to staying the operation of the order of the lower Court and that is the question which we have to answer.