ANAM CHARAN MALLICK Vs. COMMISSIONER OF ENDOWMENTS

JUDGEMENT

(1.) There is a famous deity, namely; Sri Radhakanta Jew situated at village Danduo, P. O. Baijanga, District, Jagatsinghpur having its temple and considerable properties. The nature of the said temple has not yet been determined and a proceeding under Section 41 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as 'the O. H. R. E. Act') is pending for determination of the nature of the said institution. It appears that the said institution belongs to Madhab Gaudeswar Sampradaya and was all allong being managed by Nihangi Baishnabas. The last person in management of the institution was one Mahanta Harmohan Das. Mahanta Harmohan Das died on November 2, 1990 without nominating any chella and without indicating any line of succession. After death of said Mahanta the Commissioner of Endowment (in short 'Commissioner') in exercise of powers conferred upon him under Section 7 of the O. H. R. E. Act appointed the Inspector of Endowment, Jagatsinghpur as an interim trustee for proper administration of the institution and its property. By order dated May 6, 1993 the Commissioner constituted an interim Trust Board consisting of nine persons for management of the institution for a period of one year. By order dated June 2, 1995 a new interim Trust Board consisting of 7 persons was constituted by the Commissioner in exercise of the power under Section 7 of the O. H. R. E. Act (Annexure -2). The petitioners being residents of some of the adjoining villages have filed this writ application challenging the said order dated June 2, 1995 on the ground that almost all the members of the interim Trust Board are persons disqualified under Section 29 (1) of the O.H.R.E. Act inasmuch they have direct or indirect interest and that the Commissioner acted unreasonably and unfairly in not including persons from all the adjoining villages in the Trust Board. It appears from the writ petition that on June 16, 1995 the petitioners submitted a representation before the Commissioner alleging that the members of the Board of Trust were persons disqualified to become member of the Board. Admittedly, no action has been taken by the Commissioner on the said representation.

(2.) IT has been submitted by Mr. Naidu, learned counsel appearing on behalf of the Commissioner that after appointment of a member of the Trust Board in exercise of the power under Section 7 of the O. H. R. E. Act, the Commissioner has no power or authority to replace or change any person from the Trust Board and the only remedy available for any aggrieved person is to initiate a proceeding in accordance with Section 28 of the O.H.R.E. Act.

(3.) IT is clear from the language of Section 28 of the O. H. R. E. Act that the said section envisages a post -appointment situation. There is no question of invoking the power under Section 28 for the purpose of determination of pre -appointment disqualification within the meaning of Section 29 of the Act. A comparison between the two Sections 28 and 29 will make it clear that while Section 29 refers to pre -appointment disqualification Section 28 deals with post -appointment contingencies.