The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) Nos.27935 & 19843 of 2023 (An application under Articles 226 & 227 of the Constitution of India) Rabindra Mohapatra & others (In W.P.(C) No.27935 of 2023) … Petitioners -versus- State of Orissa & others … Opposite Parties AND Bhagirathi Mahapatra & others (In W.P.(C) No.19843 of 2023) … Petitioners -versus- State of Orissa & others … Opposite Parties For Petitioners : Mr. M.K.Dash, Advocate (In W.P.(C) No.27935 of 2023) Mr. S. Mishra, Advocate (In W.P.(C) No.19843 of 2023) For Opposite Parties : Mr. A.K. Nath, Advocate (for OPNo.2 in both the writ petitions) Mr. S. Mishra, Advocate (for OPNos.5-13 in W.P.(C) No.27935 of 2023 Mr. A.P. Bose, Advocate (for Intervener) CORAM: HON’BLE MR. JUSTICE D. DASH HON’BLE MR. JUSTICE G. SATAPATHY DATE OF HEARING :13.02.2024 DATE OF ORDER :13.05.2024 G. Satapathy, J. 1. The relief claimed in both the writ petitions is contingent upon the effective resolution of W.P.(C) Nos.27935 & 19843 of 2023 Page 1 of 33 dispute concerning recommendation for constitution of Non-Hereditary Trust Board (NHTB) and Managing Trustee for the Religious Institution namely Gandharbanath Mahadev Bije at Chitreswara, Daulatabad, Choudwar, Cuttack (In short, the Religious Institution) and both the writ petitions are accordingly disposed of by this common order with the consent of learned counsel for the parties. 2. The petitioners in W.P.(C) No.27935 of 2023 claiming themselves to be Marfatdars and Hereditary Trustees of the Religious Institution by filing the writ petition have invoked the jurisdiction of this Court under Article 226 & 227 of the Constitution of India seeking to quash/set-aside the orders dated 15.07.2023 and 10.08.2023 at Annexure-10 & Annexure-11 respectively passed by the learned Additional Assistant Commissioner of Endowments, Cuttack appointing OPNos.5 to 13 as Non-Hereditary Trustees(NHT) with OPNo.5 as Managing Trustee of the Religious Institution. W.P.(C) Nos.27935 & 19843 of 2023 Page 2 of 33 On the other hand, OPNos.5 to 8 and 10 & 11 along with four others have filed the writ petition i.e. W.P.(C) No.19843 of 2023 against the State by impleading the Commissioner, Additional Assistant Commissioner and Collector, Cuttack as OPs praying therein to issue direction to the State to grant approval to the recommendation of Additional Assistant Commissioner of Endowments, Cuttack for formation of NHTB and NHT for the Religious Institution. 3. The factual matrix as unraveled are, the petitioners in W.P.(C) No.27935 of 2023 claim that they along with OPNo.5 are the Hereditary Trustees and Sebaks of the public deity of the Religious Institution and the petitioners and their ancestors are the recorded Marfatdars of said Religious Institution as per the ROR of Khata No.626 & 627 and the petitioners are in possession of Gharabari land including Debasthali of Khata No. 627, but Bhagirathi Mohapatra, who being the son of late recorded Marfatdar Ganeswar Mohapatra and staying at W.P.(C) Nos.27935 & 19843 of 2023 Page 3 of 33 Bhubaneswar forcibly constructed a temple of Lord Ram in the said Gharabari land and put a lock in the said temple as his private temple and said Bhagirathi Mohapatra also constructed a room by putting RCC structure near the said Ram temple as if the land is his private property and when the petitioners objected to the said construction, the dispute between them surfaced leading to institutions of proceeding under Section 144(2) of the Cr.P.C. and, thereafter, Bhagirathi Mohapatra with his political and financial influence indexed the Religious Institution and thereafter, OPNo.4 by enclosing a false report in letter No.12 dated 25.01.2023 addressed to OPNo.3 recommended the names of OPNos.5 to 13 to be appointed as members of NHTB and in such letter, he has apprised OPNo.3 that due publication has been made in terms of Section 27 of Hindu Religious
Legal Reasoning
Endowments Act, 1951 (In short the “Act”) and Mr. Dibakar Nayak, the drummer has intimated the general public of locality by beat of drum inviting suggestions and objections regarding appointment of W.P.(C) Nos.27935 & 19843 of 2023 Page 4 of 33 OPNos.5 to 13 as NHT. The petitioners, however, allege in the writ petition that none of the general public was intimated by way of beat of drum and said Dibakar Nayak has sworn an affidavit to state that he has not intimated the public by way of beat of drum and at the instance of private OPs, the local MLA, Choudwar without any authority has written letter to the Law Minister requesting for formation of NHTB for the Religious Institution. According to the petitioners, they are in the management of the institution since the time of its foundation by doing Seva Puja for generation, but for the unauthorized and illegal occupation of some of the lands of Religious Institution by one Dhirendra Beura, some of the Marfatdars including petitioner No.6 has filed OA No.13 of 2021 before OPNo.2 U/S. 25 of the Act for recovery of possession of lands of the Religious
Decision
Institution. It is claimed by the writ petitioners that in terms of Section 27 of the Act, where there is no Hereditary Trustee, the Assistant Commissioner of Endowments shall appoint NHT for the Religious W.P.(C) Nos.27935 & 19843 of 2023 Page 5 of 33 Institution, but in the present case, OPNo.3 has relied on the report of OPNo.4 while recommending the names of OPs as NHT by his letter dated 15.02.2023 to the State Government for approval, but since the procedure provided under Section 27 of the Act has not been followed by OPNo.3 with regard to publication of notice in notice board and intimating the general public by beat of drum, the petitioners had no scope to file their objection within the stipulated period of thirty days. After knowing such illegal act of OPNos.3 and 4, the recorded Marfatdars along with the villagers of Chitreswar and Daulatabad, Cuttack, however, have filed objection to the formation of NHTB on 08.06.2023 before OPNo.3, but without considering their objections and without complying the provisions of Section 27 of the Act, the State Government has approved the proposal for formation of NHTB by order No.988 dated 15.07.2023 with appointment of OPNos.5 to 13 as NHT (Annexure-10) and thereafter, OPNo.3 by his order No.1215 dated 10.08.2023(Annexure-11) has W.P.(C) Nos.27935 & 19843 of 2023 Page 6 of 33 approved the appointment of OPNo.6 as Managing Trustee of the Religious Institution, but OPNo.6 Ramakanta Behera for land in Plot No.789, OPNo.8 Parikshita Sahoo for land in Plot No.789, OPNo.9 Narendra Behera for land in Plot No.423 and OPNo.11 Ashok Kumar Muduli for land in Plot No.433, are in unauthorized and forcible possession of the land in respective plots of Khata No.627. On these averments, the petitioners claiming Annexures-10 and 11 to be illegal and arbitrary have filed W.P.(C) No.27935 of 2023 praying to quash these two orders. 4. In response to the notice in W.P.(C) No.27935 of 2023, only OPNos.5 to 13 by entering appearance through their counsel have filed a joint counter affidavit denying allegations made against them and inter alia averring that the petitioners are not the Hereditary Trustee or Sebaks of the Religious Institution, but when there was renovation of the Religious Institution by erstwhile Zamindar, the villagers engaged some members of Mohapatra and Panda family of the village including the respective W.P.(C) Nos.27935 & 19843 of 2023 Page 7 of 33 fathers and grand fathers of the petitioners to look after the Seva Puja of the deity and taking advantage of such situation, the petitioners have got their names entered in the ROR in the settlement as Marfatdars of the deity and although such appointment was made with sole objective of proper management of the Religious Institution to safeguard its vast landed property, but the said persons named as Marfatdars in the ROR caused great mismanagement in the affairs of the deity and went on illegally alienating vast extent of landed property of the Religious Institution to outsiders including to M/s. Titlagarh Paper Mill in the year 1960 in gross violation of the Act and after providing an opportunity to such Marfatdars by issue of notice to explain the alienation, which they did not respond, the then Commissioner of Endowments by order No.39/574- C(M), dated 04.05.1962 suspended the persons (Marfatdars) from the management of the Religious Institution and appointed Inspector of Endowments, Kendrapara as a interim trustee and thereafter, such W.P.(C) Nos.27935 & 19843 of 2023 Page 8 of 33 suspended Marfatdars continued to do Seva Puja in haphazard and irregular manner, and the villagers and the devotees, thereafter, looked after the affairs of the Religious Institution by raising funds. It is claimed in the counter affidavit that after being apprised by the local public and the devotees about the illegal and unauthorized alienation made by the persons recorded in the ROR as Marfatdars and for gross management in the deity’s affair, OPNo.3 took steps by formation of NHTB after causing publication of notice in adherence to the procedure prescribed under Section 27 of the Act. Although, the ROR indicates about recording of seventeen(17) families as Marfatdars, but the present writ petition has been filed by only eight(08) of such families and many of the Marfatdars including the members of Mohapatra and Panda family are supporting the formation of NHTB for proper management and restoration of property of the Religious Institution. In support of their claim for unauthorized alienation by some of the Marfatdars, OPNos.5 to 13 have indicated about such W.P.(C) Nos.27935 & 19843 of 2023 Page 9 of 33 alienation by Marfatdars in their counter affidavit by claiming the Lord Ram temple to have been constructed in the year 2010 by the villagers including Marfatdars upon raising funds through public collection and substantial contribution by Bhagirathi Mohapatra for completion of the temple. It is also claimed by OPNos. 5 to 13 that the additional room constructed as an annexed to the temple of Lord Ram is only meant to facilitate preparation of Prasad, but during November, 2022 when some of the petitioners demanded money from villagers, who refused to satisfy such demand, the petitioners obstructed the construction work of annexed room and the said annexed room is now lying half constructed. Supporting the constitution of NHTB and recommendation for appointment of NHT including Managing Trustee by OPNo.3 under Annexures-10 and 11, the OPs have prayed in their counter to dismiss the writ petition. 5. It is, however, clarified that in W.P.(C) No.19843 of 2023, only learned AGA has entered W.P.(C) Nos.27935 & 19843 of 2023 Page 10 of 33 appearance for the State and Mr. A.K. Nath, learned counsel has entered appearance for Commissioner of Endowments, but none has filed any counter affidavit. 6. In the course of hearing of both the writ petitions, Mr. M.K. Dash, learned counsel for the petitioners in W.P.(C) No.27935 of 2023 submitted that the learned Additional Assistant Commissioner neither conducted any enquiry nor recorded any satisfaction regarding existence or non-existence of Hereditary Trustee of the Religious Institution prior to issuance of public notice for the purpose of appointment of Trust Board or Trustees and the action taken by learned Additional Assistant Commissioner is contrary to the provisions of Section 27 of the Act and as is evident from the letter dated 15.02.2023, the learned Additional Assistant Commissioner proceeded on the basis of Inspector’s report which is directly in gross violation of Section 27 of the Act and therefore, the orders impugned in the writ petition suffer from fundamental error and thereby, such orders cannot sustain in the eye of law. W.P.(C) Nos.27935 & 19843 of 2023 Page 11 of 33 It was also submitted by him that the statutory objection as raised by the petitioners, which was forwarded by learned Additional Assistant Commissioner, was never considered by the State Government before according approval for such proposal for formation of NHTB and appointment of NHT of the Religious Institution. Further, Mr.Dash has submitted that in addition to such illegality, it is also quite evident from the document that the general public has not been intimated by way of beat of drum as mandatorily required under Section 27 of the Act and fake drummer receipt was appended to show compliance of Section 27 of the Act which is quite evident from the affidavit voluntarily sworn in by the drummer as produced by the petitioners in the writ petition and therefore, the order passed by the authority without complying the statutory and mandatory provisions of law do not have sanctity of law and thereby, the petitioners have filed a proceeding before the learned Additional Assistant Commissioner in OA No.3 of 2024 under Section 41 W.P.(C) Nos.27935 & 19843 of 2023 Page 12 of 33 of the Act to get a declaration as Hereditary Trustee, but such proceeding is now pending for adjudication. It is further submitted that Hereditary Trustee is a Trustee of the Religious Institution, succession to whose office devolves by a hereditary right and the petitioners being the Hereditary Trustee, the order for formation of NHTB with appointment of NHT for the Religious Institution is manifestly illegal, arbitrary and unsustainable. Mr. Dash has further submitted that due to internal dispute amongst the Marfatdars, OPNo.6 in connivance with Marfatdar Bhagirathi Mohapatra by influencing the Inspector of Endowments got the impugned orders passed for constitution of NHTB with NHT, but said Marfatdar Bhagirathi Mohapatra was in conflict with other Marfatdars for constructing a room inside the temple premises for his own occupation and he being the real mischief monger, the illegal orders under Annexures- 10 and 11 have been passed at his influence and the claim of the OPs that due to mismanagement and unauthorized alienation of the deity property, some of W.P.(C) Nos.27935 & 19843 of 2023 Page 13 of 33 the Marfatdars were suspended was not only untrue, but also the private OPs have miserably failed to establish such facts and they have utterly failed to reveal as to who was in the management of the temple from 1960 onwards till date and it is quite clear and evident that pursuant to the notice issued on 30.08.1960 under Section 13 of the Act (Annexure-J/5) to the counter affidavit and another letter dated 04.05.1962, the learned Commissioner of Endowments on enquiry subsequently found that the alienation was required for renovation of the temple which was completely washed out in high flood in the river Mahanadi and therefore, no further proceeding was initiated under Section 28 of the Act against the deceased Marfatdar of the temple for dismissal of the trustees. In summing up his argument, Mr. Dash in order to buttress his submission has relied upon the decisions in (i) Hindu Religious Endowments and others Vrs. B.Samitra; AIR 1976 SC 1059, (ii) Khetramohan Rout and others Vrs. Sri Sri Nageswar Mahadev and others; 1992 (II) OLR W.P.(C) Nos.27935 & 19843 of 2023 Page 14 of 33 330, (iii) Jasobanti Thakurani and others Vrs. Commissioner of Endowments Orissa and others; 1999(I) OLR 608 and (iv) Shyamasundar Sahoo and others Vrs. State of Orissa and others; 2014 (Supp.-I) OLR-552. 7. Mr. A.K. Nath, learned counsel appearing for OPNo.2 in both the writ petitions supporting the impugned orders vide Annexures-10 and 11 submitted that since the learned Additional Assistant Commissioner has complied the provision of Section 27 of the Act, Annexures-10 and 11 cannot held to be illegal and contrary to the law and since the claim of the petitioners being a disputed question of fact cannot be adjudicated upon in writ petitions. 8. Mr. S. Mishra, learned counsel appearing for OPNos.5 to 13 in W.P.(C) No.27935 of 2023 and for the petitioners in W.P.(C) No.19843 of 2023 submitted that the petitioners by their representation to learned Additional Assistant Commissioner of Endowments under Annexure-8 have never raised objection to the formation of Trust Board, but their W.P.(C) Nos.27935 & 19843 of 2023 Page 15 of 33 claim therein was that it should not be formed to satisfy few greedy people who have an eye to grab the immovable property of the Religious Institution and it is on that score, the claim of the petitioners is untenable to hold that public notice was not issued and on the contrary, many of the affidavits sworn in by the very family members of recorded Marfatdars have acknowledged about publication of public notice on 22.12.2022 by beat of drum and therefore, the claim of the petitioners that no public notice was issued nor the general public of the locality were intimated by beat of drum is untenable and therefore, the writ petition by the petitioners merits no consideration. It was further submitted that mere reflection of name of persons of Mohapatra and Panda family in the ROR under Annexures-1 and 2 which has been published in the year 1973 does not indicate that such persons were the Hereditary Trustees of the Religious Institution and in order to establish the claim of Hereditary Trustees, one has to satisfy that he has succeeded to the office by way of W.P.(C) Nos.27935 & 19843 of 2023 Page 16 of 33 hereditary right, but the same having not been done in this case by the petitioners producing any material or document, their claim to the office of the Religious Institution as Hereditary Trustees cannot sustain in the eye of law. It was also submitted that Annexures- A/5 and J/5 to the counter affidavit clearly indicate that some of the Marfatdars had been suspended from the management of Religious Institution on 04.05.1962 by the then Commissioner of Endowments in exercise of power under Section 7 of the Act and the Inspector of Endowments, Kendrapara was appointed as a interim trustee which can go a long way to say that the petitioners are not the Hereditary Trustees. It was also advanced by Mr.S.Mishra that neither there is any pleadings nor any document is being produced by the petitioners to show any account of income or expenditure of Religious Institution to suggest that they are the Hereditary Trustees of the Religious Institution. It was further submitted by Mr. Mishra that unless it was proved that the hereditary right is devolved W.P.(C) Nos.27935 & 19843 of 2023 Page 17 of 33 continuously and uninterruptedly from the time of the founder of the Religious Institution, the trustee cannot be considered to be a Hereditary Trustee and in this regard, he has relied upon the decision in the case of Mitrabhanu Naik vs. Jaleswar Panigrahi; 1989(II) OLR 69. It was also submitted by Mr.Mishra that the petitioners are unable to establish that they are the Hereditary Trustees of the Religious Institution and therefore, the constitution of NHTB and appointment of NHT to such Religious Institution cannot be said to be arbitrary or illegal and the Additional Assistant Commissioner of Endowments, Cuttack has followed due procedure of law to constitute NHTB and to appoint NHT for the Religious Institution vide Annexures-10 and 11, which should not be interfered with by exercise of writ jurisdiction and many of the Marfatdars including some of the present writ petitioners by taking undue advantage of their names as Marfatdars in the settlement ROR, have acted in a manner highly unbecoming of a Marfatdar and they have made unauthorized W.P.(C) Nos.27935 & 19843 of 2023 Page 18 of 33 alienation of vast extent of landed properties of the Religious Institution in favour of the outsiders for their personal gain and therefore, the writ petitioners are not at all entitled to be considered as Hereditary- Trustees. In summing up his argument, Mr. Mishra has prayed to reject the claim of the writ petitioners by dismissing the writ in W.P.(C) No.27935 of 2023. 9. Mr. A.P. Bose, learned counsel appearing for the Intervener-petitioners in I.A. No.16985 of 2023 arising out of W.P.(C) No.27935 of 2023 submitted that the writ petitioners are neither Hereditary Trustees nor were holding any posts to deal with the affairs of the Religious Institution nor have they maintained/submitted any account of income and expenditure of the Religious Institution to the Endowment Authorities and the money collected by them out of the sale proceeds from the land of the Religious Institution has not been shown in any account by the writ petitioners, but the Interveners are the villagers and the devotees of the deity and they are concerned with the development of the W.P.(C) Nos.27935 & 19843 of 2023 Page 19 of 33 deity. It is further submitted by him that the learned Additional Assistant Commissioner of Endowments, Cuttack has properly followed the procedure before formation of the Trust Board for the smooth management of the Religious Institution and there being no illegality committed in appointing the NHT with O.P. No.6 as Managing Trustee of the Religious Institution, the writ petitioners deserves no relief and accordingly, the writ petitions may kindly be dismissed. 10. Undeniably, whether the writ petitioners in W.P.(C) No.27935 of 2023 are the Hereditary Trustees or not, which is advanced by the rival parties in the writ is a disputed question of fact, which can be gone into in an appropriate proceeding, but following the rival submissions upon meticulous and careful perusal of materials produced on record by the parties, the poignant question emerges for consideration to the dispute between the parties in this case is whether the constitution of NHTB together with the appointment of O.P. Nos.5 W.P.(C) Nos.27935 & 19843 of 2023 Page 20 of 33 to 13 as the members of NHTB and O.P. No.6 as the Managing Trustee of the Religious Institution by the Additional Assistant Commissioner of Endowments, Cuttack is unsustainable in the eye of law for not following the mandatory procedure prescribed U/s. 27 of the Act for such purpose? 11. For just and correct decision in the matter to answer the question as formulated above, it is, however, considered necessary to refer some relevant provisions of Sec.27 of the Act which has been provided in Chapter-III of the Act which reads as under:- CHAPTER-III Religious Institutions other than Maths and specific endowments attached thereto Sec. 27. Non-Hereditary Trustees, their numbers 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 the Asst. Commissioner shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the said institution is chiefly maintained. such appointments, W.P.(C) Nos.27935 & 19843 of 2023 Page 21 of 33 Provided that the Asst. 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. for (1) Sec. 27(1-a);-On receipt of a proposal made under Sub-section 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.” xx xx xx xx xx 12. A plain reading of the aforesaid provisions of Section 27 of the Act makes it ample clear that the Additional Assistant Commissioner of Endowments, Cuttack can appoint Hereditary Trustee U/S 27 of the Act on fulfillment of two mandatory conditions which are, firstly; the Religious Institution is a public institution and secondly; there is no Hereditary Trustee of the institution. Section 3(xiii) of W.P.(C) Nos.27935 & 19843 of 2023 Page 22 of 33 the Act defines Religious Institution as, a math, a temple and endowments attached thereto or a specific endowment and includes an institution under direct management of the State Government, but Section 27(1) of the Act stipulates Religious Institution as other than maths and specific endowments attached thereto. Hence, it is very clear that for exercise of the power by the Additional Assistant Commissioner of Endowments under this Section, it is just absolutely necessary and mandatory that either there should be no dispute about the public nature of the institution and the non-existence of Hereditary Trustees or in case, there is a dispute in any of these matters, a prior determination of such dispute is highly imperative, but without determination of such preliminary issue about the nature of Religious Institution and non-existence of Hereditary Trustees of such Religious Institution, if an appointment of a Non-Hereditary-Trustee is made, the same has to be considered as a violative of Section 27 of the Act and such appointment cannot W.P.(C) Nos.27935 & 19843 of 2023 Page 23 of 33 confer any legal status to the Non-Hereditary- Trustees so appointed. Since when a statute, while conferring power, prescribes the mode of exercise of that power, the power has to be exercised in that manner or not at all, which is the fundamental principle of law as settled long way ago in the case of Nazir Ahmad vs. King Emperor; AIR 1936 PC 253. It is accordingly, quite clear that for appointment of Non-Hereditary-Trustees U/S. 27 of the Act, the authority concerned has to make a prior determination as to the questions that the institution is a public one and has no Hereditary Trustee. In this case, a casual reference to Annxures-10 & 11 would go to disclose about the appointment of O.P. Nos.5 to 13 as Non-Hereditary-Trustees and O.P. No.6 as Managing Trustee in accordance to Section 27 of the Act, but it does not disclose as to the procedure followed by the Additional Assistant Commissioner of Endowments, Cuttack, but Annexure-4 to the writ petition, which is the information obtained under RTI Act by the petitioners discloses that the Additional W.P.(C) Nos.27935 & 19843 of 2023 Page 24 of 33 Assistant Commissioner of Endowments, Cuttack has written a letter to the Deputy Secretary to Government of Odisha in Law Department, Bhubaneswar for formation of NHTB in respect of Religious Institution on the basis of report of the Inspector of Endowments, Cuttack. The letter under Annexure-4 series further discloses that the Additional Assistant Commissioner of Endowments, Cuttack has recommended the names of O.P. Nos.5 to 13 suggested by the Inspector of Endowments, Cuttack to be appointed as the members of NHTB U/S 27 of the Act as there is no Hereditary Trustee of the above institution. Therefore, the statutory requirement of conducting a preliminary enquiry/ pre- determination U/S. 27 of the Act as to the nature of Religious Institution and the non-existence of Hereditary Trustees for the Religious Institution has not been made, which is contrary to the provision of the Act. 13. It is, however, seriously contended and challenged by O.P. Nos.5 to 13 that the writ W.P.(C) Nos.27935 & 19843 of 2023 Page 25 of 33 petitioners by way of Annexure-8 to the writ petition, which is the representation of the petitioners, raised no objection to the formation of NHTB, but are aggrieved to the manner of formation to satisfy few greedy people, those who have an eye to grab the immovable property of the Religious Institution. It is, however, considered that such contention of O.P. Nos.5 to 13 would no manner establish the primary requirement of Section 27 of the Act. Even otherwise, O.P. Nos. 5 to 13 do not constitute the entire villagers, since Section 27 requires intimation to the general public of the locality by beat of drums in 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. A careful consideration of rival contentions makes it very clear that there is dispute relating to determination of Hereditary Trustees of the Religious Institution, since the writ petitioners claim themselves to be the Hereditary Trustees, whereas O.P. No.5 to 13 refuse to acknowledge such claim by W.P.(C) Nos.27935 & 19843 of 2023 Page 26 of 33 asserting that the writ petitioners are not the Hereditary Trustees. What is most important is that the status of the Religious Institution is a public Religious Institution which is not at all in dispute, but whether the petitioners are the Hereditary Trustees or not is a factual question, which this Court does not wish to appreciate or go into detail and considered the same to be within the domain of appropriate authority under the Act. 14. One thing is clear that the claim of the writ petitioners have been subterfuged by O.P. Nos.5 to 13 and there appears allegation and counter allegation by each group against each other and therefore, before appointing the Hereditary Trustee for the Religious Institution, the Competent Authority under the Act was supposed to decide the dispute as to the existence or non-existence of Hereditary Trustee as a condition precedent to proceed further U/s. 27 of the Act within the scope and ambit of the same, but the same has not been done by the authority. However, the rival parties albeit have W.P.(C) Nos.27935 & 19843 of 2023 Page 27 of 33 produced documents in support of their respective pleadings with regard to claim of existence and non- existence of Hereditary Trustees for the Religious Institution, but this Court does not wish to consider such pleadings or documents purely on the principle of law that this Court is neither sitting in an appeal against determination of Hereditary Trustees of Religious Institution nor is it required to decide as to who is/are the Hereditary Trustee in the present writ petitions and this Court, therefore, refrains from making any comment upon such pleadings and documents. 15. In support of their claim about the status of the petitioners to be not the Hereditary Trustees, O.P. Nos. 5 to 13 by drawing attention of the Court to the facts has relied upon the decision in Mitrabhanu Naik & 6 others vs. Jaleswar Panigrahi & 7 others (supra). But the same is not applicable to the present case inasmuch as the decision relied on is in the matter of determination of Hereditary Trustee in an appeal against the decision W.P.(C) Nos.27935 & 19843 of 2023 Page 28 of 33 of Commissioner of Endowments reversing the decision of Additional Assistant Commissioner of Endowment, Cuttack, whereas in the given case, this Court is called upon to see the legality of Annexures- 10 &11 which pertains to appointment of Non- Hereditary-Trustees. On the other hand, the decision as relied on by the writ petitioners in Hindu Religious Endowments (supra) is applicable to the present case, since the appointment of Non- Hereditary-Trustees in statutory violation of Section 27 of the Act was issue therein and the same has been answered by the Apex Court in paragraph-26 and 32 as under: “26. It is important to note that the Assistant Commissioner can appoint non-hereditary trustees under Section 27 of the Act only where two conditions are satisfied viz. (1) that the Religious Institution is not an excepted one and (2) that there is no hereditary trustee of the institution. For the exercise of the power by the Assistant Commissioner under this section, it is, therefore, absolutely necessary that either there should be no dispute about the public nature of the institution and the non-existence of hereditary trustees or in case, there is a dispute about any of these matters, a prior determination of such dispute under Section 41 of the Act has been made. Without W.P.(C) Nos.27935 & 19843 of 2023 Page 29 of 33 if is given preliminary determination such an appointment of a non-hereditary trustee is made under Section 27 of the Act and a direction regarding delivery of possession of the institution etc. under Section 68 of the Act, it would be manifestly illegal and without jurisdiction. A careful scrutiny of the provisions of the Act makes this position amply clear. As pointed out by the High Court, Section 27 does not in terms provide that Assistant Commissioner should make an enquiry as to whether the institution is public or private and whether there are hereditary trustees of the institution or not. These questions have to be gone into under Section 41 of the Act which specifically deals with the in investigation and decision of disputes respect a prior thereof. Consequently, determination under Section 41 that the institution is public and has no hereditary trustee is a sine qua non for appointment of trustees under Section 27 of the Act. 32. For the foregoing reasons, we are satisfied that the High Court was right in holding that it was only after completion of the enquiry under Section 41 of the Act and determination of the Religious Institution was not public and there were no hereditary trustees thereof that the Assistant Commissioner could appoint non- hereditary trustees and pass orders regarding delivery of possession the institution.” the questions them of that to 16. Further, a Full Bench decision in the case of Khetramohan Rout and Others vs. Sri Sri Nageswar Mahadev and Others; 1992(II) OLR W.P.(C) Nos.27935 & 19843 of 2023 Page 30 of 33 330 (FB) is considered a relevant to guide this Court in the matter and this Court in paragraph-20 of the aforesaid decision has held as follows:- of the trustee “20. Xx xx xxx The absence of a hereditary trustee being a condition precedent for exercise of the power under Sec. 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 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 may be because of the fact that while exercising power under Sec. 27 of the Assistant the Act, Commissioner does not perform a quasi- 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.” Moreover, what has been laid down by the Full Bench of this Court in paragraph-20 of the decision in Khetramohan Rout(supra) has been subsequently followed by another Full Bench of this Court in the case of Dhadi Parida (and after him) Sundari Parida and Others vs. Commissioner of W.P.(C) Nos.27935 & 19843 of 2023 Page 31 of 33 Consolidation, Orissa and Others; 81(1996) C.L.T. 477 (FB), wherein a Full Bench of this Court at paragraph-10 has held as under:- "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 off the Act. There inquiry contemplated is of summary nature since the appointment of a non-hereditary trustee for a temporary period final determination to be made after detailed enquiry in the proceeding under Section 41 of the Act. is no dispute subject that the the to 17. In view of the discussion made hereinabove and on a conspectus of material placed on record, this Court being cognizant of the failure of the Additional Assistant Commissioner of Endowment, Cuttack to follow the provision of Section 27 of the Act while forming NHTB and appointing NHT, is of the considered opinion that Annexures-10 & 11 cannot sustain in the eye of law and are liable to be quashed and thus, Annexures-10 & 11 are accordingly quashed. Hence, the matter is remitted to the W.P.(C) Nos.27935 & 19843 of 2023 Page 32 of 33 concerned Authority for proceeding in accordance with law. Since Annexures-10 & 11 are quashed by this Court, the relief as claimed by the writ petitioners in W.P.(C) No.19843 of 2023 does no more survive for consideration. 11. Both the writ petitions i.e. W.P.(C) No.19843 of 2023 & W.P.(C) No. 27935 of 2023 are accordingly disposed of on contest, but no order as to costs. The learned Additional Assistant Commissioner of Endowments, Cuttack would now proceed with the matter in accordance with law on production of the copy of this order or its communication whichever is earlier. (G. Satapathy) Judge D.Dash, J. I Agree (D.Dash) Judge Orissa High Court, Cuttack, Dated the 13th day of May, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 15-May-2024 20:56:41 W.P.(C) Nos.27935 & 19843 of 2023 Page 33 of 33