Orissa High Court
Shri Radha Damodar Swamy Bije vs Commissioner Of Endowment on 24 July, 2023
Author: Arindam Sinha
Bench: Arindam Sinha
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.9043 of 2023
Shri Radha Damodar Swamy Bije, .... Petitioners
Ganjam and others
-versus-
Commissioner of Endowment, .... Opposite Parties
Odisha, Bhubaneswar and others
Advocates appeared in this case:
For Petitioners : Mr. M.K. Dash, Advocate
For Opp. Party nos.1 & 2 : Ms. P. Naidu, Advocate
For Opp. Party no.3 : None
CORAM:
JUSTICE ARINDAM SINHA
JUSTICE SANJAY KUMAR MISHRA
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Dates of hearing : 10.04.2023, 30.06.2023 and 24.07.2023
Date of judgment : 24.07.2023
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ARINDAM SINHA, J.
1. The writ petition was moved on 10th April, 2023.
2. Mr. Dash, learned advocate appears on behalf of petitioners and had submitted earlier, impugned is judgment dated 4th January, 2023 made by the Commissioner, pursuant to restoration of the revision by our order dated 4th November, 2022 in WP(C) no.25987 of 2022 (petitioners' own case).
3. He submitted, there was liberty granted by impugned judgment, which is illegal. Relevant sentence from impugned order is extracted and reproduced below.
"xx xx xx If at all, the OP claims to be having some right over the schedule land, at least over the schedule plot No.1265/2952 then he can take recourse of the relevant law in the Civil Court to establish that he has a better right or title over the schedule plot No.1265/2952 of khata No.444 of mouza Gamja, than that of the deity. xx xx xx"
4. He submitted, there was finding in our aforesaid order dated 4th November, 2022 that opposite party no.3 had said on oath, he is in occupation in entire temple premises along with kitchen area. Relied upon sentence, from our said order is extracted and reproduced below.
"Opposite party no.3 has filed counter pursuant to the direction. In it, said opposite party has said on oath, he is in occupation in entire temple premises along with kitchen area."
In the circumstances, the eviction is to take place under provisions in section 68 of Odisha Hindu Religious Endowments Act, 1951.
5. On query from Court Mr. Dash relied on section 73. The WP(C) no.9043 of 2023 Page 2 of 7 section is quoted below.
"73. Bar of suits in respect of administration of Religious Institutions:- (1) No suit or other legal proceeding in respect of the administration of a Religious institution or in respect of any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of law, except under, and in conformity with, the provisions of this Act.
(2) Nothing contained in this Section shall affect the right of the Trustee appointed under the Act of a Religious institution to institute a suit to enforce the pecuniary or property rights of the institution or the rights of such institution as a beneficiary."
(emphasis supplied)
6. He submitted sub-section (3) under section 25, regarding recovery of immovable trust property unlawfully alienated, provides for the person aggrieved by the action of the Collector as may institute a suit in the Civil Court to establish his rights. In this case, where the encroacher's unauthorized occupation of entire temple premises stand recorded in our aforesaid order, it is a case falling under section 68, regarding recovery of the premises from the unauthorized occupant. No question arises of establishing right, title or interest of a person in unauthorized occupation, by separate suit under scheme of the Act.
WP(C) no.9043 of 2023 Page 3 of 7
7. The writ petition was called on and heard on 30th June, 2023 when noticed opposite party was represented. Paragraphs 2 and 3 from our order dated 30th June, 2023 are reproduced below.
"2. Petitioners and the Commissioner will be heard on capacity of petitioners' in seeking eviction of opposite party no.3 as coming within the meaning of clauses (a) or (b) or (c) in section 68 of Odisha Hindu Religious Endowments Act, 1951. They will also be heard on the capacity of opposite party no.3 in inviting an order of eviction, whether he is a servant, dismissed. This is because Mr. Sahoo submits, his client has been serving for last forty years.
3. On satisfaction rendered regarding the above, we will proceed to adjudicate on whether the observation made regarding civil suit requires interference."
8. The writ petition was again called on for hearing on 7th July, 2023 but could not be heard and disposed of on absence of opposite party no.3. We adjourned the hearing on observation made in paragraph 3 of order made that day, reproduced below.
"3. We adjourn the hearing on making it clear that when next the writ petition is called, it will be heard and disposed of irrespective of appearance by or on behalf of opposite party no.3. Mr. Dash is requested to communicate this order to recorded learned advocate for opposite party no.3."WP(C) no.9043 of 2023 Page 4 of 7
Mr. Dash submits, he informed Mr. A.K. Sahoo, learned advocate engaged by opposite party no.3 that the matter was due to be listed for hearing and disposal. We also note that earlier on 7th July, 2023 and this day, the writ petition was listed reflecting name of Mr. Sahoo. However, said opposite party continues to go unrepresented.
9. Ms. Naidu demonstrates from paragraphs 5, 6 and 8 in impugned judgment that father of opposite party no.3 had been appointed as priest. Opposite party no.3 never got any appointment and admittedly he was in occupation of the temple premises.
10. Section 68 (1) is reproduced below.
"68. Putting Trustee or Executive Officer in possession- (1) Where a person has been appointed-
(a) as trustee or Executive Officer of a religious institution; or
(b) to discharge the functions of a trustee of a religious institution in accordance with the provisions of this Act; or
(c) as the Executive Officer in any scheme settled under the provisions of the Odisha Hindu Religious Endowments Act, 1939 (Odisha Act IV of 1939) and such person is resisted in, or prevented from, obtaining possession of the religious institution or of the record, accounts and properties thereof, by a trustee, office-holder or servant of the religious institution who has dismissed or suspended from his WP(C) no.9043 of 2023 Page 5 of 7 office or is otherwise not entitled to be in possession, or by any person claiming or deriving title from such trustee, office-holder or servant, other than a person claiming in good faith to be in possession of his own account or on account of some person not being such trustee, office-holder or servant.
the Assistant Commissioner concerned shall, on application by the person so appointed, direct delivery of possession of the religious institution and its endowments or the records, accounts and properties thereof, as the case may be, to him in the prescribed manner.
Explanation- A person claiming under an alienation contrary to Sub-section (1) of Section 19 and Section 24 shall not be regarded as a person claiming in good faith within the meaning of this Section."
(emphasis supplied)
11. Undisputed facts are that opposite party no.3 never got appointment as servant, priest or pujari in the temple. In the circumstance, said opposite party is otherwise not entitled to be in possession of the temple premises. As such in the working of section 68 for administration of the temple and its property, is covered under bar of suits in respect of administration of religious institutions provided under section 73.
12. Petitioners' contention is accepted. Liberty granted under WP(C) no.9043 of 2023 Page 6 of 7 paragraph 9 of order dated 4th January, 2023 in R.C. Case no.13 of 2013 is set aside and quashed. It is made clear rest of the order remains as made.
13. The writ petition is disposed of.
(Arindam Sinha) Judge (S.K. Mishra) Judge P.Pradhan Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Personal Assistant WP(C) no.9043 Reason:
of 2023 Location:
Authentication High Court of Orissa, Cuttack Page 7 of 7 Date: 24-Jul-2023 18:06:25