BHRAMARBAR SANTRA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE facts of the case may be stated in brief. In Tune 1966 an application was filed under Section 27 of the Orissa Hindu Religious Endowments Act 1951 (Orissa act II of 1952) (hereinafter referred to as the Act), by 40 villagers alleging that the temple of Sri Lokenath Iswar Deb installed in village Bantala, in Nayagarh Sub-Division of the district of Puri, is a public temple, of which the petitioners in this writ application are the marfatdars. The maifatdars were treating the properties of the temple as their private properties. The nitis of the Deity were almost on the point of being stopped. The applicants prayed that non-hereditary trustees should be appointed for the management, of the temple. On 31-7-66 the petitioners were directed to submit accounts. On 4-8-66 the Inspector of Endowments was directed to furnish a report as to whether the endowment was public or private. On 6-9-66, the Inspector, after a local enquiry, reported that the temple was constructed by the villagers and the marfatdars and that the petitioners were in management. It was further reported that the villagers of Bantala and the Marfatdars come from one family and the members of the public from different villages come to the deity for Darshan,, and do Puja as a matter of right. He came to the conclusion that the institution was a public temple and suggested the names of five persons for appointment as non-hereditary trustees. On 4-11-66 the Assistant Endowments commissioner invited objections by proclamation against the proposed personnel of the board of non-hereditary trustees. On 17-11-1966 the petitioners filed their objection claiming the institution to be private and that they were the hereditary trustees. On 28-1-67 the villagers filed a petition of complaint against the petitioners. On 2-5-67 the Additional Assistant Endowments Commissioner held that the institution was a public temple. He did not record any finding whether the petitioners were hereditary trustees or not; approving the suggestion of the inspector of Endowments he appointed five non-hereditary trustees. Opposite party No. 4 is one of the trustees representing the five non-hereditary trustees so appointed. A direction was given that the marfatdars (petitioners) would hand over charge of the Institution and its properties to the trust board within a week. On 15-5-67 the petitioners filed a revision, under Section 9 of the Act, against the order dated 2-5-67. On 27-5-67, the non-hereditary trustees filed an application under Section 68, for delivery of possession of the institution and its properties. By his order dated 22-7-68, the Assistant Endowments Commissioner directed delivery of possession as prayed for. In the meantime, on 10-11-67 the petitioners filed an application under Section 41 of the Act for a declaration that the institution was private and that they were the hereditary trustees thereof. On 5-12-68 the revision case was dismissed by the Endowments Commissioner, and the Inspector of Endowments was directed to execute the writ of delivery of possession. On 2512-68 the Inspector of Endowments submitted a report that the writ was executed on 11-12-68. The writ application was filed on 23-12-68, it was admitted on 2412-68 and interim stay of the operation of the order for delivery of possession was granted.

(2.) THE petitioner's case is that the order of the Additional Assistant Endowments commissioner dated 2-5-67, appointing non-hereditary trustees of the institution under Section 27 of the Act and the order passed by the Assistant Endowments commissioner on 22-7-63 directing delivery of possession of the institution and its properties to the non-hereditary trustees under Section 68, are without jurisdiction. Their stand is that without a determination under Section 41 of the act as to whether the institution is private or public and a further determination as to whether the petitioners are hereditary trustees, the order passed under Section 27 appointing non-hereditary trustees and the order directing deli-very of possession, passed under Section 68 encroach on the private rights of the petitioners and are without jurisdic-tion and void. The writ application has been filed under Articles 226 and 227 of the Constitution to quash the aforesaid two orders.

(3.) THE stand taken on behalf of the Endowments Commissioner is that it is open to him to pass an order under Section 27 and Section 68 without determination of the aforesaid questions under Section 41. Mr. Mohanty, however, conceded that the impugned orders in this particular case cannot be supported and are liable to be quashed inasmuch as there was no enquiry at all by the Endowments commissioner before appointing non-hereditary trustees under Section 27 of the act. He further conceded that an order passed under Section 27 encroaches on the property rights of the petitioners, and even a summary enquiry is to be made by observing the principles of Natural Justice and the petitioners should be given full opportunity to substantiate their case that the institution and its properties are private and that they are the hereditary trustees. He, however, seriously opposed the stand taken on behalf of the petitioners that such orders cannot be passed without first determining those questions in a proceeding under Section 41 of the act,