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2015 DIGILAW 260 (ORI)

Jayaprakash Mishra v. Commissioner of Endowment

2015-04-17

D.DASH

body2015
JUDGMENT D.DASH, J. - This writ application has been filed challenging an order dated 03.09.2012 passed by the learned Commissioner of Endowment, Odisha, Bhubaneswar in O.A. No. 126 of 1999 in the matter of and during pendency of a proceeding under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 (in short called ‘the Act’). 2.Facts necessary for the purpose are as under:- A proceeding under Section 25 of the Act was initiated at the instance of Sri Sri Lord Lingaraj Mahaprabhu represented through the Trust Board by its Executive Officer (opp. party no.2 in the present writ application). The proceeding was initially against one Purusottam Mishra and the present petitioner with others have been substituted on account of his death and are defending the said proceeding. Said Purusottam Mishra, the original opp. party before the Commissioner of Endowment receiving the notice of the proceeding under Section 25 of the Act, filed a civil suit numbered as T.S. No. 452 of 2000 in the Court of Civil Judge (Sr. Divn.), Bhubaneswar. Thereafter, a petition was filed by the present petitioner before the Commissioner of Endowment to stay further proceeding- of that original application till disposal of T.S. No. 452 of 2000. The learned Commissioner of Endowment having refused to stay the proceeding, the same is now under challenge. 3. Learned counsel for the petitioner submits that when in the civil suit the claim of the petitioner with regard to his right, title and interest over the suit land and confirmation of possession is pending for decision as also the legality of the order passed by the learned Member, Board of Revenue in O.A. No. 23 of 1983 which is the basis of the claim of the opp. party no. 1, the learned Commissioner ought to have stayed the proceeding and unless that is done the present petitioner’s right as claimed cannot get protected at least till the final decision by the competent Court. Therefore, she contends that the order of the learned Commissioner is patently illegal and as such is liable to be quashed. Learned counsel for opp. party no. Therefore, she contends that the order of the learned Commissioner is patently illegal and as such is liable to be quashed. Learned counsel for opp. party no. 2 refuting the above submission contends that the provision of Section 25 of the Act has been brought in the special statute with particular intent and to serve in achieving the objective in order to immediately catch hold the mischief and if pendency of a civil suit would stall the proceeding under Section 25 of the Act, then practically the provision Section 25 of the Act would become nugatory and meaningless. Therefore, according to him, the learned Commissioner has rightly refused to stay the proceeding till disposal of the suit and there being no error of law on the face of the said order is not liable to be interfered with. 4. Section 25 of the Act reads as under:- “Recovery of immovable trust property unlawfully alienated- (1) In case of any alienation, in contravention of Section 19 of this Act or Section 51 of the Orissa Hindu Religious Endowments Act, 1939, or in case of unauthorized occupation of any immovable property belonging to or given or endowed for the purpose of any religious institution, the Commissioner may, after summary enquiry as may be prescribed and on being satisfied that any such property has been so alienated or unauthorisedly occupied send requisition to the Collector of the District to deliver possession of the same to the trustee of the institution or a person discharging the function of the said trustee. (2) The collector in exercising his powers under Sub-Section (1), shall be guided by rules made under this Act. (2) The collector in exercising his powers under Sub-Section (1), shall be guided by rules made under this Act. (3) Any person aggrieved by the action of the Collector may institute a suit in the Civil Court to establish his rights,” The Section envisages that in case of any alienation of any immovable trust property in contravention of Section 19 of the Act or in case of unauthorized occupation of any immovable property belonging to or given or endowed for the purpose of any religious institution in contravention of the Act, the Commissioner after holding summary enquiry as prescribed in the Rules 13 read with Rule 43 of the Rules and on being satisfied that such property has been so alienated or is in unauthorized occupation may send requisition to the Collector of the district to deliver possession of the same to the trust or the institution or person discharging the function of the said trustee. The Collector thereafter has to act in accordance with Rule 14 of the said rules and cause delivery of possession of the immovable property after giving reasonable notice to the person in possession and to the trustee/s concerned. Sub-Section-3 of said Section 25 gives a right to the person who is aggrieved by such action of the Collector i.e. the action of delivery of possession. In other words upon recovery of possession of the immovable property from the person concerned I he has been given the liberty to institute a suit if he so likes in the civil Court to establish his right. 5. A careful reading of Section 25 of the Act thus leads to conclude that the dispute as to whether the person concerned is in unauthorized occupation of the property belonging to or endowed for the purpose of the religious institution would be so adjudicated and decided in a summary manner by the Commissioner for necessary action. In case of unauthorized occupation there would be delivery of the possession of the immovable property to the religious institution by the Collector. So the decision in that regard being the outcome of a summary enquiry is not final and conclusive and that is the reason, the person who is only aggrieved by such action of the Collector has been given the right to file the suit for declaring his right, if any. So the decision in that regard being the outcome of a summary enquiry is not final and conclusive and that is the reason, the person who is only aggrieved by such action of the Collector has been given the right to file the suit for declaring his right, if any. This right has been conferred only at the end on conclusion of the proceeding before the Commissioner and after the execution of the said order. Thus, a person by filing a suit either in anticipation of initiation of a proceeding under Section 25 of the Act or even before or during pendency cannot stall the proceeding under Section 25 of the Act and thus cause to defer the delivery of possession if would be so requisitioned by the Commissioner to the Collector. But certainly in the ultimatum, the judgment of the Civil Court would be holding the field and in case the person’s right is established therein, this order of the learned Commissioner of Endowment in the proceeding under Section 25 of the Act and its execution by Collector would then not stand to the further sufferance of the person concerned being entitled to possession of the said immovable property as of right if so declared by the Civil Court. 6.In view of aforesaid, the learned Commissioner of Endowment having refused to stay the proceeding under Section 25 of the Act in going to answer the issue of unauthorized occupation of the petitioner and others, if any, in deciding whether to send necessary requisition to the Collector for delivery of possession is found to be free from illegality or infirmity and the learned Commissioner of Endowment is not found to have committed any error of law so as to call for interference. 7.The writ petition stands dismissed. No order as to cost.