Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 47 (ORI)

Shyamsundar Sahoo v. State of Odisha

2014-01-20

B.K.NAYAK

body2014
JUDGMENT B.K. NAYAK, J. : Order dated 25.09.2012 passed by the Additional Assistant Commissioner of Endowments, Cuttack constituting non-hereditary trust board in respect of Sri Jugal Kishore Jew at Badhei Sahi, Buxibazar, Cuttack has been assailed by the petitioners in both the writ petitions. The said order has been annexed Annexure-4 in W.P.(C) No.20079 of 2012. Additionally the petitioner in W.P.(C) No.20079 of 2012 has also challenged the consequential order No.1625 dated 06.10.2012 of the Additional Assistant Commissioner of Endowments, Cuttack (Annexure-5) directing the petitioner-Damodar Sahoo to handover charge of movable and immovable properties of the religious institution to the non-hereditary trustees appointed by order under Annexure-4. Petitioner No.2 in W.P.(C) No.20079 of 2012 presently is the person-in-management of the religious institution in question, whereas the petitioners in W.P.(C) No.4675 of 2013 are some successors of the recorded marfardars of the institution including the son of petitioner No.2 in W.P.(C) No.20079 of 2012. 2.Admittedly, the properties of the deity, Jugal Kishore Thakur stands recorded in the name of the deity under the marfatdarship of several persons of Mansinghpatna, Seikh Bazar, Ranihat, Cantonment Road, Kukuriapada etc. of Cuttack Town vide R.O.R. under Annexure-1 series in W.P.(C) No.20079 of 2012. It is also the undisputed position that previously a proceeding under Section 64 of the Old Orissa Hindu Religious Endowments Act, 1939 bearing O.A. No.30-C of 1945-46 was initiated by one Jugal Kishore Sahoo, one of the recorded marfatdars of the Institution wherein the Commissioner of Endowments passed order on 13.11.1945 declaring the institution as a ‘temple’ within the meaning of Sub-section (13) of Section 6 of the Orissa Hindu Religious Endowments Act, 1939 (in short the ‘1939’ Act) in which the entire ‘Teli’ community of Cuttack is interested. This order has been annexed as Annexure-6 to W.P.(C) No.4675 of 2013 as well as Annexure-A to the counter affidavit of opposite party Nos.3 to 19. It is also an admitted position that subsequent to formation of the impugned non-hereditary trust board for the institution, petitioner No.2 in W.P.(C) No.20079 of 2012 has initiated a proceeding under Section 41 of the OHRE Act, 1951 with prayer to declare the institution as ‘Math’ with hereditary trustee, which is still pending. It is also an admitted position that subsequent to formation of the impugned non-hereditary trust board for the institution, petitioner No.2 in W.P.(C) No.20079 of 2012 has initiated a proceeding under Section 41 of the OHRE Act, 1951 with prayer to declare the institution as ‘Math’ with hereditary trustee, which is still pending. 3.The contention of the petitioners in both the writ petitions is that Sri Jugal Kishore Thakur is the private family deity of Sahoo family and that the petitioners are the exclusive owners of the property recorded in the name of the dity and that they have been continuing in management since the time of their ancestors as hereditary trustees. There is however no assertion as to the manner of succession to the hereditary office of trusteeship. 4.Challenged to the impugned constitution of non-hereditary trust board of the institution by the Additional Assistant Commissioner of Endowments, Cuttack has been made on the grounds that there has been no due publication of notice as required under Section 27 of the OHRE Act 1951 and that the Additional Assistant Commissioner of Endowments, Cuttack has not been satisfied, nor there was material before him for his satisfaction that there is no hereditary trustee of the religious institution. 5.Some persons claiming to be the members of the ‘Teli’ Community of Cuttack have filed an intervention application stating that they, being the Hindu public of the locality, visit regularly the religious institution for darshan and take part in the religious ceremonies of the institution and that they are interested to be the members of the trust board and that since no public notice was duly served, they were unable to offer their views. Therefore, the constitution of the trust board under Section 27 of the Act with the present members is not valid. 6.The opposite parties/members of the non-hereditary trust board have filed a counter affidavit denying the status of the institution as the private deity of the recorded marfatdars and their hereditary right of trusteeship. Therefore, the constitution of the trust board under Section 27 of the Act with the present members is not valid. 6.The opposite parties/members of the non-hereditary trust board have filed a counter affidavit denying the status of the institution as the private deity of the recorded marfatdars and their hereditary right of trusteeship. It is also stated by them that the original recorded marfatdar-Jayakrishna Sahoo, the grandfather petitioner-Damodar Sahoo, filed application under Section 64 of the 1939 Act claiming that the institution is an ‘excepted temple’ and the petitioners’ family alone had the exclusive right to the temple and its properties, but it was decided by the Commissioner of Endowments vide order dated 13.11.1945 that the temple belonged to the entire ‘Teli’ community of Cuttack. It is stated that all the recorded marfatdars and their legal heirs requested through several applications to Cuttack Mahanagar Tailika Baisya Samaj Society to manage the temple by taking appropriate steps as there was mismanagement of the properties and the daily ‘seva puja’ of the temple. It is further stated that the Tailika Samaj Society in its 37th meeting under the presidentship of Dr. Uttam Charan Sahu decided to constitute a committee as per the request of the surviving heirs of the recorded marfatdars. The applications and the resolution passed in the meeting are annexed as Annexure-B and C series. It is also stated that most of the surviving heirs of the recorded marfatdars along with the members of the committee filed application before opposite party No.2-Additional Assistant Commissioner of Endowments, Cuttack on 22.2.2012 requesting to take over management of the temple in public interest. It is also stated that due public notice was given as per requirement of law for constitution of non-hereditary trust board. Notice was published on the notice board of the temple and that there was also publication by beat of drums inviting suggestions and objections to the proposal for appointment of non-hereditary trust board. Since no objection was filed, the Additional Assistant Commissioner of Endowments, Cuttack sent the proposal to the Government in Law Department for approval of non-hereditary trust board on 29.06.2012. The State Government having accorded approval the non-hereditary trust board was constituted on 25.09.2012 consisting of opposite party Nos.3 to 19. Since no objection was filed, the Additional Assistant Commissioner of Endowments, Cuttack sent the proposal to the Government in Law Department for approval of non-hereditary trust board on 29.06.2012. The State Government having accorded approval the non-hereditary trust board was constituted on 25.09.2012 consisting of opposite party Nos.3 to 19. The trust board in its 1st meeting unanimously elected opposite party No.4 as the managing trustee of the trust board and said resolution was forwarded to the Endowment authorities whereafter the election of the managing trustee was approved by opposite party No.2. It is contended by the learned counsel appearing for the opposite parties that since due notice was published as required under law and since there was no hereditary trustee of the institution, constitution of the non-hereditary trust board cannot be said to have been vitiated. It is also submitted that the predecessors of the recorded marfatdars of the institution who claimed the institution to be an ‘excepted temple’ and such claim has been negatived as back as 1945-46, the petitioners cannot be said to have hereditary right of trusteeship. It is also submitted that the petitioners are taking different stands at different points of time, such as claiming the institution as a private deity with hereditary right in the writ application whereas in the subsequent O.A. filed by the petitioner-Damodar Sahoo under Section 41 of OHRE Act, 1951 he claimed the institution as a ‘Math’, which are not acceptable. 7.The learned counsel appearing for the Commissioner of Endowments submits with reference to the records that there was due publication of notice under Section 27 of the OHRE Act, 1951 and that the institution having already been declared to be public temple in which the entire ‘Teli’ community of Cuttack are interested, the Additional Assistant Commissioner of Endowments, Cuttack has rightly constituted the non-hereditary trust board. 8.Two questions arise for determination in the writ petitions : (i)whether the Additional Assistant Commissioner of Endowments, Cuttack was satisfied before constitution of non-hereditary trust board in respect of the institution about the fact that there was no hereditary trustee; and (ii)whether there has been due publication of notice as required under Section 27 of the OHRE Act, 1951. 9.Before going to answer the questions, it is necessary to see the relevant provisions of OHRE Act, 1951 and the 1939 Act. OHRE Act, 1939 has been repealed by the 1951 Act. 9.Before going to answer the questions, it is necessary to see the relevant provisions of OHRE Act, 1951 and the 1939 Act. OHRE Act, 1939 has been repealed by the 1951 Act. However, orders passed and decisions taken under the 1939 Act have been saved. Section 27 of 1951 Act provides as under : “27. Non-hereditary trustees, their number and appointment-(1) The Assistant Commissioner shall, in cases where there is no hereditary trustee, [with the prior approval of the State Government] appoint non-hereditary trustee in respect of each religious institution other than maths and specific endowments attached thereto and in making such appointments, the Assistant Commissioner shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the said institution is chiefly maintained. [Provided that the Assistant Commissioner shall, before sending any proposal to the State Government for such prior approval, publish a notice in the Notice Board of the concerned religious institution and intimate the general public of the locality by beat of drum, inviting suggestions and objections on the proposal from all persons affected, to be made within a period of thirty days from the date of such publication, and forward to the State Government the suggestions and objections, if any, received, along with such proposal. (1-a) On receipt of a proposal made under Sub-section (1) for the appointment of a Non-hereditary Trustee, the State Government may either accord the required approval or reject or modify the proposal of the Assistant Commissioner as it may deem fit in the interest of the persons belonging to the religious denomination for whose benefit, the concerned religious institution is chiefly maintained.] [(2) A non-hereditary trustee shall, unless he is sooner removed or dismissed or otherwise ceases to be a trustee, hold office for a period of two years form the date of his appointment. Provided that the Assistant Commissioner may, for sufficient reasons to be recorded by him, from time to time, extend the aforesaid term of a trustee, so, however, that the total extension so granted shall in no case exceed six months in the aggregate. Provided that the Assistant Commissioner may, for sufficient reasons to be recorded by him, from time to time, extend the aforesaid term of a trustee, so, however, that the total extension so granted shall in no case exceed six months in the aggregate. (3) Every non-hereditary trustee holding office immediately prior to the date of commencement of the Orissa Hindu Religious Endowments (Amendment) Act, 1978 shall cease to hold office as such on the completion of a period of two years from the date of this appointment or on the expiration of three months from the date of commencement of the said Act, whichever is later.]” Section 8-B of the 1951 Act, which was introduced in the Act by way of amendment in 1978 reads as under : “8-B. Power of authorities to act without initiating proceedings under Section 41-(1) Notwithstanding anything contained in any other provision of this Act the Commissioner, [the Deputy Commissioner] and the Assistant Commissioners shall have power to take action under any of the provisions of this Act in respect of any institution, if on information received or otherwise, they are satisfied that such institution is a religious institution within the meaning of this Act. (2) For the removal of doubts, it is hereby declared that where any person disputes such action on the ground that the institution is not a religious institution within the meaning of this Act, he may raise a dispute as provided in Section 41.]” 10.Section 64 of the 1939 Act runs as under : “64. Settlement of dispute as to whether an institution is a math or temple as defined in this Act :- (1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the commissioner. (2) Any person affected by a decision under Sub-section (1) may, within one year, institute a suit in the Court to modify or set aside such decision; but subject to the result of such suit, the order of the commissioner shall be final.” 11.The whole procedure for appointment of non-hereditary trustees by the Assistant Commissioner of Endowments under Section 27 of 1951 Act has undergone change by virtue of amendments at different points of time. Prior to 1992, the State Government had no role to play in the formation of non-hereditary trust board by the Assistant Commissioner of Endowments. For the first time, by virtue of 1992 amendment prior approval of the State Government became a necessity before appointment of non-hereditary trustees. The expression “with the prior approval of the State Government” appearing in Sub-section (1) of Section 27 of the Act was inserted by way of amendment vide O.A. No.4 of 1992. The proviso to Sub-section (1) as also Sub-section (1-a) have been inserted by way of amendment vide O.A. No.13 of 2003 with effect from 31.05.2003. 12.With regard to the first question the Full Bench of this Court in the case of Khetramohan Rout and others v. Sri Sri Nageswar Mahadev and others : 1992 (II) OLR 330 (FB) have held as follows : “............ ...... The absence of a hereditary trustee being a condition precedent for exercise of the power under Section 27 of the Act, the Assistant Commissioner shall have to record, while exercising this power, as to why he is of the opinion that there is no hereditary trustee of the religious institution. This satisfaction may be arrived at on the basis of materials placed before the Assistant Commissioner for which purpose, he may go in for a summary inquiry only, as indicated in paragraph-27 of Bantala’s case by the Supreme Court. This satisfaction may be arrived at on the basis of materials placed before the Assistant Commissioner for which purpose, he may go in for a summary inquiry only, as indicated in paragraph-27 of Bantala’s case by the Supreme Court. This may be because of the fact that while exercising power under Section 27 of the Act, the Assistant Commissioner does not perform a quashi-judicial function; his action under this section may strictly speaking, be regarded as an administrative act, as opined in Rajkishore v. Commissioner of Endowments, AIR 1979 Orissa, 169, to which our attention is invited by Sri Naidu.” 13.The Full Bench in the aforesaid case was considering the question whether the Assistant Commissioner of Endowments can appoint non-hereditary trustee in respect of the religious institution other than ‘Math’ in exercise of power under Section 27 of the OHRE Act, 1951 without prior determination of the fact if there is a hereditary trustee or not in a disputed case visualized by Section 41 of the said Act, after the act was amended by inserting Section 8-B. In view of insertion of Section 8-B, the Full Bench answered the reference holding that before exercising power under Section 27 of the Act prior determination of the question as to the trustee as hereditary by taking recourse to Section 41 of the Act would not be necessary. 14.But then the Full Bench in the aforesaid case was considering the scope of Section 27 of 1951 Act as it stood prior to 1992 amendment. Prior to 1992 amendment the whole process of appointment of non-hereditary trustees in respect of an institution, starting from beginning of the proposal till passing of the final order of appointment was being conducted by the Assistant Commissioner alone and the Government had no role at all to play in such appointment. Although by virtue of 1992 amendment government approval to the proposal of the Assistant Commissioner became necessary, by virtue of 2003 amendment the whole gamut of procedure for appointment of non-hereditary trustees has undergone drastic change by way of insertion of a proviso to Sub-section (1) and a new Sub-section (1-a) in Section 27 of the Act. Although by virtue of 1992 amendment government approval to the proposal of the Assistant Commissioner became necessary, by virtue of 2003 amendment the whole gamut of procedure for appointment of non-hereditary trustees has undergone drastic change by way of insertion of a proviso to Sub-section (1) and a new Sub-section (1-a) in Section 27 of the Act. Prior to 2003 amendment any objection to the proposal for appointment of non-hereditary trustees including the question that there is no hereditary trustee was to be considered, though in a summary manner, by the Assistant Commissioner himself before taking a final decision for appointment of non-herediary trustees. Now by virtue of insertion of the proviso to Sub-section (1) of Section 27 of the Act, the power to consider any objection or suggestion to the proposal for appointment of non-hereditary trustees no more remains with the Assistant Commissioner, but vests with the State Government who shall on consideration of the proposal along with the objection and suggestion, if any received, shall pass orders in terms of Sub-section (1-a) either giving approval to the proposal or by rejecting or modifying the proposal. This means that the Assistant Commissioner has to act only as per the order of the Government passed under Sub-section (1-a) of Section 27 of the Act. If the proposal is approved as it is or in any modified form by the State Government, the Assistant Commissioner shall only act upon the same and issue order of appointment of non-herediary trustees accordingly. 15.Now, the question arises, if after publication of notice in terms of proviso to Sub-section (1) of Section 27 of the Act any objection is received by the Assistant Commissioner that the institution in question has hereditary trustees for which no non-hereditary trustee can be appointed, whether the Assistant Commissioner shall decide or make an enquiry to the objection and record a finding. The answer is a definite ‘no’ in view of the clear language of the proviso to Sub-section (1) of Section 27 of the Act. The answer is a definite ‘no’ in view of the clear language of the proviso to Sub-section (1) of Section 27 of the Act. 16.The observation of the Full Bench of this Court in paragraph-20 in the case of Khetramohan Rout and others (supra) as seen above has also been followed by a subsequent Full Bench of this Court in the case of Dhadi Parida (and after him) Sundari Parida and others v. Commissioner of Consolidation, Orissa and others : 81 (1996) C.L.T. 477 (FB) where it was held in paragraphs-10 to 12 as follows : “10. We have perused the judgment of the Full Bench in the case of Khetramohan Rout (supra) and carefully considered the rival contentions raised by learned counsel for the parties. As noted earlier, the area of dispute is very limited. It relates to the nature of inquiry to be held by the Assistant Commissioner for appointing non-hereditary trustee under Section 27 of the Act. There is no dispute that the inquiry contemplated is of summary nature since the appointment of a non-hereditary trustee for a temporary period subject to the final determination to be made after detailed enquiry in the proceeding under Section 41 of the Act. 11. The main purpose in investigating the power to appoint a non-hereditary trustee is to ensure proper management of the affairs of religious institution including its properties and to avoid mismanagement and misappropriation. In the context of things, the appointment of non-hereditary trustee is to be made with utmost expedition. Therefore, the Full Bench held that the enquiry in such proceedings should be of a summary nature. 12. Coming to the nature of enquiry and the procedure to be followed therefore, it is our considered view that the nature of enquiry will depend on the facts and circumstances of each case. Therefore, it is for the Assistant Commissioner to decide the nature of the enquiry to be held in the case since it is for him to be satisfied whether there is a hereditary trustee in the institution or not.” 17.With regard to the specific manner of enquiry to be held by the Assistant Commissioner for his satisfaction that there is no hereditary trustee, Khetramohan Rout and others (supra) did not lay down anything. Therefore, the latter Full Bench in Dhadi Parida (supra) instead of laying down any specific manner of enquiry to be held by the Assistant Commissioner of Endowments, only emphasized that the Assistant Commissioner is to state the reason for his satisfaction that there is no hereditary trustee in the institution. In this regard, the Full Bench in Dhadi Parida (supra) observed as follows in paragraph-13 of the judgment : “13. We would like to state here that the Full Bench in the case of Khetramohan Rout (supra) has not laid down any specific manner of enquiry to be held by the Assistant Commissioner, and, in our considered view, in the context of things, it will not be appropriate to do so. We hasten to add there that in the said Full Bench decision, it has not been laid down that the Assistant Commissioner will in no circumstance entertain an objection or give opportunity of hearing to the objector while deciding appointment of a non-hereditary trustee. Rather it has been laid down therein that the Assistant Commissioner is to state the reason for arriving at the satisfaction that there is no hereditary trustee in the institution. This, in our view, sufficiently safeguards against any arbitrary and whimsical action on the part of the authority. If the order of the Assistant Commissioner is vitiated on account of arbitrariness, then it is also open to the person concerned to move the Commissioner in revision. Thus, an aggrieved party is not without any remedy.” 18.In both the aforesaid Full Bench decisions, the Court was considering the power of Assistant Commissioner of Endowments under Section 27 of the 1951 Act as it is stood prior to 1992 amendment in which the State Government had no role at all to play in the matter of appointment of non-hereditary trustee. But, now the position has changed and particularly after 2003 amendment the State Government has greater role to play as because all objections and suggestions to the proposal of the Assistant Commissioner of Endowments for appointment of non-hereditary trustee for an institution are to be considered by the State Government before it decides to grant approval. That however does not mean that the Assistant Commissioner of Endowments is not required to be satisfied that the institution has no hereditary trustee. That however does not mean that the Assistant Commissioner of Endowments is not required to be satisfied that the institution has no hereditary trustee. Such satisfaction is necessary to be reached for initiation of the proposal and before publication of notice as required under the ‘proviso’ to Section 27(1) of the Act. The satisfaction can be reached from any material including the report of an Endowment Inspector or from documents evidencing prior determination under Section 64 of 1939 Act or under Section 41 of the 1951 Act with regard to the nature of institution as well as nature of the trustee or from any order of a competent authority showing that the hereditary trustee has either been removed or suspended. His satisfaction shall be based on the materials produced before him, which has a concrete bearing on the question whether the institution has or has not a ‘hereditary trustee’ within the meaning of the 1951 Act. The Assistant Commissioner shall have to record reasons about his satisfaction for proposing appointment of non-hereditary trustee, which must be before publication of notice as per provision to Section 27(1) of the Act. Once the Assistant Commissioner publishes the notice of his proposal as required under the proviso to Section 27 (1) of the Act he cannot again enter into any further enquiry on the basis of any objection that may be received after publication of notice. 19.In the instant case, I have perused the record of the Additional Assistant Commissioner of Endowments, Cuttack in relation to appointment of non-hereditary trustee in respect of the institution in question. The file reveals that the Inspector of Endowments, Cuttack submitted a report stating that the institution in question has no hereditary trustee and that the nature of institution has not been determined earlier. The report does not make any reference to the determination made by the Commissioner of Endowments in 1945 in the proceeding under Section 64 of 1939 Act which was initiated by the original record marfatdar of the deity. It appears from the records of the Additional Assistant Commissioner of Endowments that he only accepted the suggestion given by the dealing assistant to the effect that the Inspector of Endowments, Cuttack has suggested the names of some persons for appointment as non-hereditary trustee of the institution and that such proposed persons have no disqualification under Section 29 of the 1951 Act. There is no mention by the dealing assistant that the institution has no hereditary trustee, which is a pre-condition for making a proposal. The note put up by the dealing assistant has been only approved by the Additional Assistant Commissioner of Endowments, who has not recorded his satisfaction that the institution has no hereditary trustee, before directing for publication of notice. The Additional Assistant Commissioner has neither referred to the report of the Inspector nor to the order dated 13.11.1945 passed by the Commissioner of Endowments under Section 64 of the 1939 Act. 20.The State Government also appears to have mechanically approved the proposal sent by the Additional Assistant Commissioner of Endowments. The order passed by the government approving the proposal, however, has not been challenged before this Court. However, since the Additional Assistant Commissioner of Endowments has not recorded his satisfaction that the institution in question has no hereditary trustee, the impugned final order of appointment of non-hereditary trustee cannot be sustained. Sine on this ground alone the writ petition succeeds, this Court does not feel inclined to go into the further question of validity of notice published under the proviso to Section 27(1) of the 1951 Act. 21.The writ petitions are therefore allowed and the impugned order of Constitution of non-hereditary trust board vide Annexure-4 to W.P.(C) No.20079 of 2012 and subsequent consequential order directing the persons in management to handover charge to the non-hereditary trust board vide Annexure-5 are quashed. The Additional Assistant Commissioner of Endowments, Cuttack shall proceed afresh under Section 27 of the Act from the beginning. All pending misc. case stand disposed of. Petition disposed of.