GOURANGA JENA Vs. COMMISSIONER OF ENDOWMENTS

JUDGEMENT

(1.) THE point for consideration is whether the power conferred on the Commissioner by Section 9 (1) of the Orissa Hindu Religious Endowment Act, 1951 (shortly called the Act') to call for records and pass orders has in any way been abridged or taken away because of the amendment in Section 27 of the Act dealing with appointment of nonhereditary trustee by Orissa Act 4 of 1992 which requires prior approval of the State Government before the Assistant Commissioner exercises his power. The Commissioner has taken the view that in such a case revision before him Under Section 9 would not be maintainable which has been assailed in this petition

(2.) SHRI Mukherjee for the petitioner submits that despite the amendment, the order remains as one of Assistant Commissioner and Section 9 (1) being widely worded has empowered the Commissioner to call and examine the records of any proceeding under the Act, inter alia, before the Assistant Commissioner, and so, the mere fact that the Assistant Commissioner had passed the order with the prior approval of the State Government would not make the order of appointment of non -hereditary trustee as the order of the State Government in which case alone Section 9 (1) could not have been available to the petitioner. Shri Naidu appearing for the Commissioner, however, urges that as the order of the Assistant Commissioner can be passed, in view of the amendment, only with the prior approval of the State Government, in reality it is the order of the the State Government which would be assailed before the Commissioner. This may be so, as Section 9 (1) was not amended pari passu Orissa Act 4 of 1992, the Legislature did not put any curb on the revisional power of the Commissioner as conferred by Section 9 (1) of the Act, despite the amendment effected in Section 27.

(3.) THE impugned order is, therefore, set aside. The Commissioner is directed to take back the case to his file and dispose of the same within two months of appearance of the parties. Let the petitioner and opposite party Nos. 3 to 7 appear before the Commissioner on 20th April, 1993 when the Commissioner shall fix a date of hearing and dispose of the revision within the time indicated above. Tilt the Commissioner disposes of the matter, the order of status quo as passed by this Court on 7 -9 -1992 shall continue.