Orissa High Court
Tarini Charan Sahu vs Commissioner Of Endowments on 12 September, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P. (C) No. 15171 of 2009
1. Tarini Charan Sahu, aged about 65 years,
Son of Late Krushna Ch. Sahu.
2. Laxminarayan Sahu, aged about 37 years,
Son of Tarini Charan Sahu.
3. Biswanath Sahu, aged about 34 years,
Son of Tarini Charan Sahu.
All are Hindu Raja Street,
P.O-Berhampur, P.S-Bada Bazar,
District-Ganjam.
(Respondent/Petitioners in courts below)
...Petitioners.
-Versus-
1. Commissioner of Endowments, Orissa, Bhubaneswar,
At/P.O-Bhubaneswar, Dist-Khurda.
2. Addl. Asst. Commissioner of Endowments, Berhampur,
At/P.O-Berhampur, Dist-Ganjam.
3. Sri Sri Balabhadra Mahaprabhu @ Sundaram Math
Bije Sankarpur Street, Berhampur,
represented by Udayanath Behera, Son of Late Trinath Behera,
Executive Officer of the deity appointed by the Endowment
Commissioner, Bhubaneswar. (Petitioner/Opposite Party No.3 in
court below)
W.P.(C) No. 15171 of 2009 Page 1 of 13
...Opposite Parties
Advocates appeared in the case:
For the Petitioners: Mr. Samir Kumar Mishra, Senior
Advocate along with Mr. J. Pradhan,
P.S. Mohanty, S. Sahoo & S. Sethi,
Advocates
For Opposite Party No.3: M/s. S.N. Mohapatra, P.K. Panda &
R.K. Routaray, Advocates
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
12.09.2024 Chakradhari Sharan Singh, CJ.
1. The petitioners in the present writ petition have put to challenge the order dated 04.09.2009 passed by the Commissioner of Endowments, Bhubaneswar in R.C. No. 4/04, confirming the order dated 09.01.2004 passed in O.A. No. 1/02 by the Additional Assistant Commissioner of Endowments, Berhampur, Ganjam.
2. We have heard Mr. Samir Kumar Mishra, learned Senior Counsel appearing for the Petitioners and Mr. S.N. Mohapatra, learned counsel appearing for opposite party no.3.
3. The brief facts relevant for the present adjudication are that opposite party no.3, i.e. Sri Sri Balabhadra Mahaprabhu @ Sundaram Math Bije Sankarpur Street, Berhampur, represented by Udayanath W.P.(C) No. 15171 of 2009 Page 2 of 13 Behera, Executive Officer of the deity appointed by the Endowment Commissioner (opposite party no.3) had filed an application under Section 68 of the Orissa Hindu Religious Endowment Act, 1961 (in short 'Act') with a plea that the petitioners were in unauthorized possession of the properties belonging to opposite party no.3. A prayer was made for eviction of the petitioners from the properties in question. Opposite party no. 3 claimed that the property in question belonged to the deity and after coming to know about the fact that the petitioners were in occupation by raising a double storeyed building, they were asked to vacate, but as they did not vacate, the said application under Section 68 of the Act was filed.
4. The petitioners upon notice, filed a reply to the said application before the Additional Assistant Commissioner of Endowments asserting that the property was in their possession which was purchased by them through registered sale deed executed by one Krushna Patra. The Additional Assistant Commissioner of Endowments, after considering the respective stands of the parties directed the petitioners to vacate the case schedule lands in favour of opposite party no.3 within a month failing which opposite party no.3 shall be at liberty to get the order executed through the Court as per the procedure laid down under the Act.
5. Against the said order of the Additional Assistant Commissioner of Endowments, the petitioners approached this Court by filing a writ petition giving rise to W.P.(C) No. 2042 of 2004. This Court disposed of the said writ application with a liberty to challenge the order of the Additional Assistant Commissioner of Endowments W.P.(C) No. 15171 of 2009 Page 3 of 13 under Section 9 of the Act by filing a revision application. Accordingly, the petitioners filed the revision application, which has been dismissed by the Commissioner of Endowments (opposite party no.1) which is under challenge in the present writ application.
6. Learned Senior Counsel appearing on behalf of the petitioners assailing the orders of opposite party nos.1 and 2 has submitted that opposite party no.3 wrongly invoked Section 68 of the Act as the petitioners were admittedly neither the trustee, nor the office holder nor servants of the concerned religious institution, dismissed or suspended from such office nor they claimed or derived title from any trustee or, office holder or servant within the meaning of Sub-Section 1 of Section 68 of the Act and, therefore, the application filed by the opposite party no.3 under Section 68 of the Act was not at all maintainable. He has submitted that it was not the case of the opposite party no.3 that the vendor of the petitioners was in any way associated with the trust in question. He has accordingly submitted that the original order passed by the Additional Assistant Commissioner of Endowments is wholly beyond jurisdiction. He argues that the Revisional order passed by the Endowment Commissioner is equally unsustainable for the same reason.
7. Learned counsel appearing on behalf of opposite party no.3 defending the impugned orders has submitted that as a matter of fact the property in question belongs to the deity of Sri Sri Balabhadra Mahaprabhu @ Sundaram Math Bije Sankarpur Street, Berhampur and in such view of the matter, opposite party no.3 had rightly invoked the provisions under Section 68 of the Act. He has submitted that the W.P.(C) No. 15171 of 2009 Page 4 of 13 opposite party no.3 had choice to invoke either Section 68 or Section 25 (2) of the Act for evicting the petitioners, who were in unauthorized occupation of the land belonging to opposite party no.3.
8. We have carefully gone through the pleadings on record and we have given our anxious consideration to the rival submissions advanced on behalf of the parties. In order to address rival submissions made on behalf of the parties, it would be appropriate to notice Section 68 of the Act, at the outset, which reads as under:-
"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 Officer 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.
W.P.(C) No. 15171 of 2009 Page 5 of 13the 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.
(2) The Assistant Commissioner and any person authorised by him or acting under his written instructions in the prescribed form, may, for the purpose of delivery of possession under Sub-Section (1), take or cause to be taken such steps and use or cause to be used such force as may, in his opinion, be reasonably necessary and may also enter upon any land or other property whatsoever and in the event of any apprehension of breach of peace in the course of such delivery of possession, the Superintendent of Police shall, on a requisition from the Assistant Commissioner in the prescribed manner, provide such Police aid as may be necessary for the purposes.
(3) (a) The Commissioner may also make a requisition to the Collector of the district in which the property of the math or temple or endowment is situated, in the prescribed form to deliver its possession to the Trustee.
(b) On receipt of a requisition under Clause (a) the Collector shall serve a notice on the person reported to be in occupation or his agent to vacate the said property within such time as the Collector may specify in the said notice. If such notice is not obeyed, the Collector shall remove him or depute a Subordinate Officer to remove such person or agent. In the case of any resistance or obstruction the Collector shall hold a summary enquiry into the facts of the case and if satisfied that the W.P.(C) No. 15171 of 2009 Page 6 of 13 resistance or obstruction was without any just cause and that such resistance or obstruction still continues, may issue a warrant for the arrest of the said person and on his appearance may send him with a warrant in such form as may be prescribed for imprisonment in the civil jail of the district for a period not exceeding thirty days as may be necessary to prevent the continuance of such resistance or obstruction.
(4) No suit, prosecution or other legal proceedings shall lie against the Assistant Commissioner or any person acting under his instruction or authorised by him for anything done in good faith under Sub-Sections (1) and (2).
(5) Every person authorized by the Commissioner or acting under his instructions in pursuance of this Section shall be deemed to be a 'Public Servant' within the meaning of Section 21 of the Indian Penal Code (XLV of 1860).
(6) The provisions contained in this Section shall mutatis mutandis apply to cases -
(a) for delivery of possession of a Religious institution alongwith its endowments or recorded, accounts and properties thereof to a succeeding hereditary Trustee; and
(b) for recovery of pension of leasehold land belonging to a Religious institution after expiry of the term of the lease.
Notes :- The property belongs to the deity - the non hereditary trustee intend to retain the same for the purpose of improvement of the religious institution cannot directly approach the Hon'ble High Court. Rather they should have approached the Commissioner of Endowment U/s- 9 against the order of Additional Commissioner of Endowment passed the order for recovery of possession in favour of the religious institution. 106 (2008) CLT 150, 2008 (II) CLR 117, W.P.(C) No. 15171 of 2009 Page 7 of 13 2008 (Supp. I) OLR 737 (Sri Janmajaya Das and another Vs. State of Orissa and others) Claim having been made for permanent tenancy of the rooms which had been occupied under the leases granted by the hereditary trustees - the leases were granted without due procedure of law as there being no sanction of the Commissioner of Endowment and the leases were void in view of section 19, 2003 (I) OLR 145 (Surendra Babu Patra and Others Vs. Commissioner of Endowment Orissa, Bhubaneswar and Others."
9. On careful scrutiny of the said provision it can be discerned that an application under Section 68 can be maintained against 'such person' who :
(i) is a Trustee, Office-holder;
or Servant of the Religious institution who has dismissed or suspended from his Officer;
or is otherwise not entitled to be in possession;
(ii) 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;
(iii) or on account of some person not being such Trustee, Office-holder or Servant;
if he resists in obtaining possession of properties of a religious institution attempted by a person who is a trustee or executive officer or religious institution etc. Unless an applicant under Section 68 of the W.P.(C) No. 15171 of 2009 Page 8 of 13 Act is in a position to demonstrate that 'such person(s)' as noted above resists any attempt in obtaining the possession by a Trustee or Executive Officer of the religious institution, an application under Section 68 of the Act cannot be maintained. The class of persons fall within the definition of "such person" as has been delineated hereinabove,
10. Learned counsel appearing on behalf of the petitioners has rightly placed reliance on a decision of this Court in case of Radha Mohan Mohapatra and another v. Commissioner of Endowments, Orissa and another, reported in (39) 1973 CLT 796, paragraph-3 of which reads thus:-
"So far as the applicability of Section 68 of the Act to the case of the Petitioners is concerned, the language of the section clearly shows that a proceeding under Section 68 can only be instituted against a trustee who has been dismissed, suspended or is otherwise not entitled to be in possession when he prevents the newly appointed trustee from taking possession of the endowment properties. Further, Section 68 of the Act has no application against, a person who claims the property in good faith on his own account. The Explanation to Section 68 of the Act says that a person claiming under an alienation contrary to Section 19 or Section 24 of the Act shall not be regarded as a person claiming in good faith. In the present case, the alienations in favour of the Petitioners being prior to the commencement of the Act it cannot be said that the alienations in favour of the Petitioners are contrary to either Section 19 or 24 of the Act. Secondly, the alienations in favour of the Petitioners being in the year 1927 and the proceeding under Section 68 of the Act having been started in the year 1966, the claim of the Petitioners that they have perfected their title by W.P.(C) No. 15171 of 2009 Page 9 of 13 adverse possession cannot be lost sight of Section 68 of the Act does not empower the Assistant Commissioner or the Commissioner to forcibly take possession of land by evicting a person who has been in possession for more than the statutory period and has acquired title by adverse possession. Regarding the plea of limitation, the further question which arises for consideration is as to what would be the period necessary to perfect title of the person claiming adversely to the deity. Under Article 96 of the Limitation Act, for a suit by a manager of a Hindu religious or charitable endowment to recover possession of the property comprised in the endowment which has been transferred by a previous manager for a valuable consideration is twelve years from the date of death, resignation or removal of the transferor or the date of appointment of the Plaintiff as manager of the endowment whichever is later. If this Article would apply to the case of the Petitioners, opp. party No. 2 having been appointed in the year 1962 as the managing trustee, for a suit to be instituted by him to recover possession of the aforesaid two plots from the Petitioners, the period of limitation would be twelve years from 1962. There are also authorities which say that a person being in possession of the property belonging to a religious endowment, by asserting a hostile title, begins to prescribe his title against the endowment from the date of his possession. There is no dispute that a proceeding under Section 68 of the Act is summary in nature. It cannot therefore be said that questions of law regarding limitation would not be decided in such a proceeding. The impugned order does not decide what would be the period of limitation in the present case and what provision of Limitation Act would govern the case. That apart, when there is special section, viz : Section 25 under the Act which is more appropriate to the present case, a proceeding under Section 68 of the Act, in our opinion, is misconceived. On the aforesaid analysis of the legal position, we are of the view that in the case before us W.P.(C) No. 15171 of 2009 Page 10 of 13 where alienations in favour of the Petitioners are about half a century old and when the Petitioners have been in possession of the aforesaid two plots since the year 1927 till the date of commencement of the proceeding under Section 68 of the Act in the year 1966 asserting a hostile title in themselves, they cannot be evicted in a summary proceeding under Section 68 of the Act without even deciding if the Petitioners have perfected their title by adverse possession. The proper course for the managing trustee in a case of this nature is to take recourse to either a regular suit or a proceeding under Section 25 of the Act for recovery of possession of the properties belonging to the endowment of Shri Jagannath Swami. The question of limitation and of adverse possession which has a great bearing in the present case cannot be left undecided before an eviction order can be passed against the Petitioners."
11. Learned counsel appearing on behalf of opposite party no.3 has not been able to demonstrate, even prima facie, that the petitioners fell within the definition of such person as noted above under Section 68 of the Act, which could have entitled opposite party no.3 to maintain an application under Section 68 of the Act against them.
12. It would be beneficial at this juncture to notice Section 25 of the Act which reads thus:-
"25. 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 Odisha Hindu Religious Endowment Act, 1939, or in case of unauthorised occupation of any immovable property belonging to or given or endowed for the purpose of any Religious institution, the Commissioner may, W.P.(C) No. 15171 of 2009 Page 11 of 13 after summary enquiry as may be prescribed and on being satisfied that any such property has been so alienated or unauthorisedily 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.
(3) Any person aggrieved by the action of the Collector may institute a suit in the Civil Court to establish his rights."
13. Section 25 of the Act confers upon the Commissioner within the meaning of the Act to entertain a dispute relating to any alienation or unauthorised occupation of any immovable property belonging to or given or endowed for the purpose of any religious institution, after summary inquiry. If the Commissioner is satisfied that such property has been so alienated or unauthorisedly occupied, has the authority to send requisition to the Collector of the district to deliver possession of such property to the Trustee of the institution or a person discharging the function of the said Trustee. Sub Section 3 permits a person aggrieved by the action of the Collector to institute a suit in the Civil Court to establish his rights.
14. After having gone through the records, we are convinced that opposite party no.3 wrongly invoked Section 68 of the Act and opposite party no.2 acting beyond jurisdiction entertained the said application filed by the opposite party no.3. The order passed by opposite party no.2, in our opinion is unsustainable for this reason and W.P.(C) No. 15171 of 2009 Page 12 of 13 is accordingly quashed, being without jurisdiction. Consequently, the order of the Revisional Authority, i.e. opposite party no.1 also stands quashed.
15. Learned Senior Counsel appearing on behalf of the petitioners has submitted that in the facts and circumstances of the case, even an application under Section 25 (2) of the Act cannot be maintained. It will not be proper for us to comment upon such submission as that will amount to prejudging an issue which has not arisen.
16. This writ application is, accordingly, allowed with the aforesaid observations. There shall be no orders as to costs.
(Chakradhari Sharan Singh) Chief Justice (Savitri Ratho) Judge Arun Mishra, APS Signature Not Verified Digitally Signed Signed by: ARUN KUMAR MISHRA Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Sep-2024 13:25:25 W.P.(C) No. 15171 of 2009 Page 13 of 13