RAGHUNATH JEW Vs. COMMISSIONER OF ENDOWMENTS ORISSA

JUDGEMENT

(1.) Petitioner No. 2 who claims to be the hereditary trustee of Sri Raghunath Jew, a public temple of village Totapada in the district of Bhadrak, challenges the order of the Addl. Asst. Commissioner of Endowments, Cuttack Zone in Annexure 3 appointing opp. parties 4 to 8 as interim non-hereditary trustee of the temple under Section 27 of the Orissa Hindu Religious Endowments Act, 1961 (hereinafter referred to as the "O.H.R.E. Act").

(2.) Petitioner No. 1 is the public deity, Sri Raghunath Jew, bije Totapada, P.S. and Tahasil Chandbali in the district of Bhadrak and petitioner No. 2 claims to be its hereditary trustee said to have been founded by his ancestors and the petitioner's family members have been in management and Seba Puja of the deity by hereditary succession. The Endowment authorities have recognised petitioner No. 2 as the person in management of the institution and in the year 1982 when the dispute arose, the then Raje of Manika had instituted a case under Section 43 of the O.H.R.E. Act for a declaration that he is the heriditary trustee of the case institution along with 500 and odd such institutions of Kanika estate. The Raja of Kanika was declared as heriditary trustee in O. A. No. 15 of 1982 under Section 41 of the Act by the Additional Assistant Commissioner of Endowments, Cuttack. But however, in an appeal filed by some outsiders the order was set aside and case was remanded for fresh disposal by the Asst. Commissioner. However, the case after remand was dismissed for default but nothing was decided on merit. It is stated that later petitioner No. 2 was appointed as interim trustee of certain institutions including the case institution by the learned Commissioner of Endowments under Section 7 of the Act and thus, the Management of the institution solely vested on petitioner No. 2. It is the case of the petitioners that in absence of judicial determination under Section 41 of the Act regarding the nature and character of the case institution, petitioner No. 2 instituted a fresh proceeding under Section 41 of the Act for a declaration that the institution is a public temple within the meaning of the Act and that he is the heriditary trustee thereof. The petitioner also filed an application under Section 8(2) of the Act for appointing him as an interim trustee till final decision in the application under Section 41 of the Act, which was registered as O.A. No. 14 of 1995. But during pendency of such proceedings, the learned Addl. Asst. Commissioner of Endowments under a misconception of law and with a mala fide intention, in his administrative capacity, appointed opposite parties, 4 to 8 as non-hereditary trustees or the case institution, knowing fully well that petitioner No. 2 is continuing with uninterrupted management of the institution which is contrary to the decisions of this Court and therefore the present writ petition.

(3.) Opposite parties 4 to 8 have filed a common counter affidavit refuting the claims of the petitioners, inter alia, on the ground that a writ petition is not maintainable since an efficacious alternative remedy by way of a revision is available to the petitioners under Section 9 of the Act before the Commissioner against the impugned order. The claim is resisted on the grounds that petitioner No. 2 filed O.A. No. 14 of 1982 under Section 41 of the Act claiming hereditary trusteeship of 608 institutions which was allowed by an ex parte order dated 7-7-1984, but the same was set aside in First Appeal No. 7 of 1985 remanding the case for retrial. The petitioner having not appeared and prosecuted the case after remand, the same was dismissed for default for which a Misc. Case to restore the original case was filed. The Misc. Case also was dismissed for default and therefore the second application under Section 41 of the Act for the self same relief was not maintainable. It is also asserted that there is no provision for enquiry under the Act and the Rules before appointment of non hereditary trustees and since the petitioner's claim for hereditary trusteeship has been dismissed, he is not entitled to any relief. If is further stated that the petitioner's appointment as interim trustee under Section 7 is subject to Section 27 of the Act and the interim order becomes non -existent after passing of an order under Section 27 thereof. An appeal is provided against the order of the Commissioner in the High Court as against the order setting aside the declaration of a hereditary trustee and since the petitioner did not prefer any appeal against the order of setting aside such declaration and the order of remand remitting the matter for fresh disposal, inasmuch as the original case having been dismissed for default so also the Misc. Case for restoration of the original application, a second application under Section 41 of the Act and was not maintainable and hence misconceived.