The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK MSA No.4 of 2022 In the matter of an application under Section 44(ii) of the Orissa Hindu Religious Endowment Act, 1951. ……………… Benudhar Another Paikaray & …. Appellants -versus- Sri Nilakantheswar Mahadev Bije Sunakhala & Others …. Respondents For Appellants :M/s. S.C. Choudhury, Advocate For Respondents :M/s. Ashok Ku. Mohapatra,Adv. (for respondent Nos.2 & 3) Mr. S.S. Mohapatra, Advocate (for Respondent Nos.4 & 5) Mr. Ambika Prasada Rath,Adv. along with Mr. A.K. N ath, Advocate (for Respondent No.1) PRESENT: THE HONBLE JUSTICE BIRAJA PRASANNA SATAPATHY -------------------------------------------------------------------------------- Date of Hearing: 08.02.2023 and Date of Order: 10.03.2023 ------------------------------------------------------------------------------- Biraja Prasanna Satapathy, J. This appeal under Sub- section(ii) of Section 44 of the Orissa Hindu Religious Endowment Act, 1951 (In short, “The Act”) has been filed challenging the judgment dated 19.05.2022 passed by the // 2 // Deputy Commissioner of Endowments, Odisha,
Legal Reasoning
Bhubaneswar in First Appeal No.20 of 2010. 2. The appellants are the Respondent Nos.8 & 9 before the learned First Appellate Court and challenge the judgment passed by the learned Deputy Commissioner in First Appeal No.20 of 2010 on various grounds. 3. It is contended by the learned counsel appearing for the appellants that the Respondent Nos.1,2 & 3 initially moved an application under Section 41 of the Act before the Assistant Commissioner of Endowment, Bhubaneswar in O.A. No.13 of 2004 inter alia with the following prayer. “Let the appeal be admitted, records from the Court below be called for Respondent be noticed and after hearing the parties the impugned judgment dated 19.05.2022 by the learned of Endowments, Odisha, Bhubaneswar in F.A. No.20/2010 be set aside and the judgment dated 19.5.2022 passed by the learned Asst. Commissioner of Endowments, Bhubaneswar in O.A. NO.13 of 2004 be confirmed. Commissioner Deputy 3.1. Learned Assistant Commissioner after due consideration of the materials placed before him dismissed the O.A vide his judgment dated 28.09.2010. The relevant portion of the order so passed by the Assistant Commissioner is reproduced hereunder. “The case be and
Legal Reasoning
is dismissed on contest against ops but in the circumstances without any cost. The case institution of Sri Nilakantheswar Deb and the same Page 2 of 11 // 3 // Sri Bahuti Thakurani both bije At/Po- Sunakhala, P.S-Banapur, Dist-Khurda is a public temple within the meaning of O.H.R.E. Act without any hereditary trustee and the case schedule properties were public religious endowments & the petitioner as well as Op. No.1 & 2 has no hereditary right over the properties of the deity. 3.2. It is contended that challenging the judgment dated 28.09.2010 so passed in O.A. No.13 of 2004, the Respondents No.1, 2 & 3 herein moved the Deputy Commissioner of Endowment in F.A No.20 of 2010. The learned Deputy Commissioner on the face of the order passed by the learned Assistant Commissioner and in absence of any fresh materials, while setting aside the order passed by the learned Assistant Commissioner allowed the appeal with the following order. “In the result, the appeal
Decision
is partly allowed on ex parte against the respondent No.1 to 7 and contest against respondent No.8,9 & 10. The case institution is hereby declared as temple, and the properties are all religious endowments. The appellant No.3 along with respondent No.1 & 2 are declared as hereditary institution. Accordingly, the appeal is disposed of with the above findings.” trustee of the case 4. Mr. S.C. Choudhury, learned counsel appearing for the appellants contended that the present appellants though were not party to the original proceeding before the learned Assistant Commissioner in O.A. No.13 of 2004, but during pendency of the matter before the learned Deputy Page 3 of 11 // 4 // Commissioner, their application for intervention was allowed and they participated in the proceeding. Since the learned Deputy Commissioner in absence of any fresh material set aside the order passed by the learned Asst. Commissioner by allowing the prayer of the Respondent Nos.1,2 & 3/Petitioners in O.A. No.13 of 2004, the appellants are before this Court in the present appeal challenging the judgment of the learned Deputy Commissioner of Endowment so passed on 19.05.2022. 4.1. Learned Counsel for the appellants contended that the lower appellate Court arrived at a wrong conclusion that the Respondent Nos.1,2 & 3 herein and his family members are the hereditary trustee of the deity in question. It is also contended that the learned First Appellate Court also did not take into consideration, the fact that the Hindu public were not represented properly and the paper publication made under order/Rule 8 of the C.P.C is a defective one. Learned First Appellate Court also did not take into consideration the stand of the present appellants regarding constitution of non-hereditary trustee Board by the Commissioner of Endowment vide his order dated 21.7.2012 by appointing the present appellants as the non-hereditary trust members and Page 4 of 11 // 5 // the fresh order passed by the self-same Commissioner of Endowment vide order dated 17.3.2022. 4.2. It is contended that since the Respondent Nos.1,2 & 3 are not the hereditary trustee of the deity in question, non-hereditary trust Board was constituted by the Commissioner of Endowments vide order dated 21.07.2012 and during pendency of the appeal, an interim Trust Board was also constituted vide order dated 17.3.2022 pending constitution of a non-hereditary Trust Board as provided under Section 27 of the Act. But the learned First Appellate Court never take into consideration the said aspect while deciding the appeal in favour of respondent Nos.1,2 & 3. 4.3. It is also contended that the Hindu Public who were arrayed as Opp. Parties before the learned Assistant Commissioner never took part in the proceeding and they were set ex parte. However, when the Respondent Nos.1,2 & 3 failed to get an order in their favour before the learned Assistant Commissioner in the proceeding in O.A. No.13 of 2004, they challenged the same before the learned Deputy Commissioner in First Appeal No.20 of 2010. Learned First Appellate Court without having any cogent reason and without proper appreciation of the stand taken by the present appellants reverse the judgment of the learned Page 5 of 11 // 6 // Assistant Commissioner by allowing the appeal. Accordingly, it is contended that the judgment of the learned First Appellate Court is not sustainable in the eye of law and liable to be interfered with by this Court. 5. Mr. Ashok Kumar Mohapatra, learned counsel appearing for the Respondents Nos.2 & 3 on the other hand while supporting the judgment passed by the learned First Appellate Court contended that even though in support of their claim, the Respondent Nos.1,2 & 3 filed various documents showing their status as the hereditary trustee of the deity in question and exhibited various documents vide Exts.1 to 13, but in absence of any contrary evidence, when the learned Assistant Commissioner dismissed the matter vide his judgment dated 28.09.2010, Respondents No.1,2 & 3 moved the learned Deputy Commissioner in FA No.20 of 2010. 5.1. Learned Deputy Commissioner after due perusal of the materials available on record and the documents produced by the Respondent Nos.1 ,2 & 3 vide Ext. 1 to Ext.13 and other materials available on record was pleased to reverse the judgment passed by the learned Assistant Commissioner while allowing the prayer vide its judgment dated 19.5.2022. Accordingly, it is contended that learned Page 6 of 11 // 7 // Deputy Commissioner has rightly allowed the claim vide the impugned judgment dated 19.5.2022 and it needs no interference by this Court while exercising the power of second appellate Court. 6. Learned Counsel appearing for the Respondent Nos.4 & 5 as well as Respondent Nos.7 to 12 also did not dispute the judgment passed by the learned Deputy Commissioner of Endowment and instead, supported the stand taken by the Respondent Nos.1,2 & 3. 7. However, Mr. A.K. Nath, learned counsel appearing for the Commissioner of Endowments contended that the dispute arose when some part of the landed property of the deity was acquired by the National Highway Authority for the purpose of expansion of N.H.-5. It is contended that the entire award amount of Rs.67,791/- so received from the NH authority has been kept in a fixed deposit in Indian Overseas Bank, Nandapur (Banapur) branch vide receipt No.96/DR-H- 0642106 dated 03.01.2004 for a period of 10 years and the said fixed deposit is lying in the name of the Inspector of Endowments, who is continuing as an interim trustee. 8. I have heard Mr. S.C. Choudhury, learned counsel appearing for the appellants, Mr. Ashok Kumar Mohapatra, learned counsel appearing for the Respondent Nos. 2 & 3, Page 7 of 11 // 8 // Mr. S.S. Mohapatra, learned counsel appearing for the Respondent Nos.4 & 5 and Mr. Ambika Prasad Rath, learned Counsel appearing for Respondent Nos.7 & 12 along with Mr. A.K. Nath, learned counsel appearing for the Commissioner of Endowment- Respondent No.1. On the consent of the learned counsel for the parties, the matter was heard at the stage of admission and disposed of by the present order. 9. Having heard learned counsel for the Parties and after going through the materials available on record, it is found that even though in support of their claim, Respondent Nos.1,2 & 3 moved the application under Section 41 of the Act before the learned Assistant Commissioner in O.A. No.13 of 2004, but the learned Assistant Commissioner without proper appreciation of the claim, so raised by the present Respondent Nos.1,2 & 3 and without proper appreciation of the documents exhibited by the Respondent Nos.1,2 & 3 vide Ext. 1 to 13, dismissed the claim vide his judgment dated 28.09.2010. Respondent Nos.1,2 & 3 being aggrieved by the said judgment when approached the learned Deputy Commissioner in F.A. No.20 of 2010, learned Deputy Commissioner after going through the materials available on record and the documents exhibited by the Respondent Nos.1,2 & 3 vide Ext. 1 to 13 as well as the evidence so laid Page 8 of 11 // 9 // allowed the claim vide its judgment dated 19.05.2022. The view expressed by the learned 1st Appellate Court in Paragraph 44 to 49 of the impugned judgment is reproduced hereunder:- for learned counsel “44. The the contesting respondents heavily relied on the evidence of the I.E (C.W-1). ON perusal of evidence of C.W-1, he has stated in para-5 of his cross-examination that none of the villagers have stated before him during inquiry that the villagers are managing the case institution. It is admitted by him in Para-7 of his evidence that the family members of the Petitoner-3 are managing the seba puja and niti kanti of the case deities properly. 45. The order dated 24.01.1975 in Misc. Case No.235/73 of the Court of Munsif, Khurda shows that the N.H.T Board which was formed by the order of the Asst. Commissioner of Endowments, Bhubaneswar vide order dated 11.12.1964 in O.A. No.89/64 was not taken effect due to non-fulfilment of the conditions for deposit of security money of Rs.200/- or property security worth of Rs.500/-. When the condition of the order has not been fulfilled, then it can safely hold that the order has not taken into effect. It is seen in Para-8 of the said order that the so-called managing trustee Surendranath Routray had initiated the Commissioner of Endowments, Odisha, Bhubaneswar vide his letter dated 04.12.1972 stating that he has not taken charge of the properties of the deity from the hereditary trustee Ananta Rana. The order was made for three years from 11.12.1964 to 31.11.1967. When the period of trust board was for three years from 11.12.1964 to 31.11.1967 and the so-called trustee intimated the Commissioner of Endowments, Odisha, Bhubaneswar in the above letter regarding non taking of charge from the hereditary trustee-Ananta Rana, then it can conclusively hold that the trust board formed by the said order was not implemented. When the trust board was not functional, then question of interruption with regard to hereditary trusteeship of the petitioner’s family cannot be questioned. So, the submission of the learned counsel for the contesting respondents takes rear seat. 46. trustee enshrined under section 3 (iv) of the OHRE Act, 1951, it is well discernible that the claimant has to prove hereditary The documentary evidence to prove the hereditary trustee the definition of hereditary trusteeship by three modes. From Page 9 of 11 // 10 // filed by as per the definition keeps more weight-age than oral evidence. Therefore, this Court considers all the the petitioner-3 documentary evidence minutely. Thirteen documents have been filed which are considered below. 47. Ext.1,2,3,4,5 & 6 are the RORs of different settlements which stand recorded int he name of Nilakantheswar Dev, Bije-Sunakhala. Ananta Rana, S/O-Bhikari Rana has been noted as marfatdar of the properties under Ext-1 & 2. Bula Rana, S/O- Pankaj Rana, Pabana Rana, Katu Rana, S/O-Ananta Rana have been described as marfatdar of the properties under Ext-3 & 4. Bula Rana, S/O-Pankaj Rana, Pabana Rana, Kalu Rana, S/O-Ananta Rana have been described as marfatdar of the properties. All are described as marfatdar in the remarks column of the respective RORs. 48. on bare reading of Ext-1 to 6, it is crystal clear that the ancestors of the petitioner-3 and OP No.1 & 2 have been possessing the properties of the deity from generation to generation. 49. Next, this Court takes Ext-7,7/1,7/2,7/3 and 7/4. On perusal of all the five documents, it is seen that all the documents have been issued from the office of the Commissioner of Endowments, Odisha, Bhubaneswar and I.E Puri to Ananta Rana and Pankaj Rana for the payment of contribution on behalf of the deity Nilakantheswar Dev, Sunakhala. The date of issuance of all the documents are 23.09.1952, 30.09.1958, 12.02,1980, 21.01,1982 and 12.02.1980 respectively. On analysis of Ext-8,8/1,8/2,8/3 and 8/4, it is ascertained that contributions of the property of the case deity have been received by the Inspector of Endowments from Ananta Rana & Bula Rana on the dates as mentioned thereon.” 9.1. This Court after going through the judgment so passed by the learned Deputy Commissioner finds no illegality or irregularity in the said judgment. It is also the view of this Court that the present appellants being not party to the original proceeding and were only impleaded as Respondents at a belated stage, after rejection of their application for intervention on two occasions, are not Page 10 of 11 // 11 // supposed to challenge the judgment so passed by the learned Deputy Commissioner in absence of any materials placed by them or by the Respondent Nos.8 & 9/Opp. Party Nos.6 & 7 before the Assistant Commissioner, who have entered appearance after due publication of the notice under Order 1 Rule 8 C.P.C. Accordingly, this Court is not inclined to interfere with the impugned judgment and dismiss the appeal. However, taking into account the affidavit filed by the Inspector of Endowment, Khurda, In-charge, Banapur and Nayagarh, it is observed that the amount so received by way of compensation from the NH authority which has been kept in a fixed deposit in the name of the Inspector of Endowment shall continue to remain in his name and the Respondents No.1,2 & 3 will not be permitted to use the same save and except for the benefit of the deity and with prior permission of the Inspector of Endowment. The appeal is accordingly dismissed with the aforesaid observation. (Biraja Prasanna Satapathy) Judge Orissa High Court, Cuttack Dated the 10th March, 2023/sangita Page 11 of 11