Bauribandhu Mangaraj vs State Of Orissa & Others

Dr. D.P. Choudhury, J.

Challenge has been made to the order dated 2.6.1992 passed by the learned O.E.A. Collector, Nimapara in OEA Case No.307 of 1989.

FACTS

The adumbrated facts of the petitioner is that the case land is recorded as Debottar Lakhraj Bahel estate in the name of Lord Shri Jagannath Bije,

Puri, through the Marfatdar of Mahanta Shri Ram Prakash Das, Bada Akhada Math, Puri. The Collector, Puri and Mahanta Shri Ram Prakash Dash

filed Misc. Case No.543 of 1963 and Misc. Case No.1369 of 1965 under Section 13 (D) of the unamended provision of Chapter-11-A of the Orissa

Estate Abolition Act, 1951 (hereinafter called as „OEA Act‟) before the Tribunal for declaration that the suit property is trust estate. On the basis

of the application, the Tribunal allowed the suit property as trust estate. It is further alleged inter alia that Lord Jagannath being exintermediary after

vesting of the estate applied through petitioner for settlement of the case land in their favour under Sections 6 and 7 of the Orissa Estate Abolition Act

(in short „the Act‟). After due procedure being followed, the case land was settled in favour of Lord Shri Jagannath through Marfatdar Mahanta

Ram Prakash Dash of Bada Akhada Math. The entire income of the case land is spent for religious purposes. After the land was settled, the

petitioner used to pay the rent and same has been accepted by the State. The settlement took place on 21.1.1984 and rent schedule was issued in

favour of Shri Jagannath Mahaprabhu Bije, Puri Marfatdar Shri Ram Prakash Dash, Bada Akhada Math. Accordingly rent was paid.

Be it stated that, pursuant to the issuance of rent schedule, the suit land was recorded by Assistant Settlement Officer. While the matter stood thus,

the opposite party being the Managing Committee Shri Jagannath Mahaprabhu, Puri filed O.E.A. Case No.370 of 1989 under Sections 6 and 7 of the

Act. In that proceeding the O.E.A. Collector again passed order to record the suit land in favour of Shri Jagannath Mahaprabhu marfat Managing

Committee on the ground that under Section 5 of the Jagannath Temple Act (in short “the J.T. Actâ€) the Managing Committee is the rightful

intermediary to the property. The petitioner challenged such order stating that once the property has been already settled in favour of the Marfatdar

petitioner, the O.E.A. Collector has no jurisdiction to resettle the same with the Management of the Templeopposite party. On the other hand, the

O.E.A. Collector has no jurisdiction to decide the lease afresh. Hence, the writ petition is filed to quash impugned order of the O.E.A. Collector, Puri.

Traversing the averments made in the writ petition, a counter affidavit has been filed on behalf of Shri Jagannath Mahaprabhu, opposite party no.3

and in the said counter affidavit, it is averred that Lord Shri Jagannath Mahaprabhu of Puri is the owner in possession of the case land. Since it was

not physically possible to possess all the properties personally and manage the same effectively, as per the practice the Marfatdars were looking after

the property for and on behalf of the Lord Shri Jagannath Mahaprabhu, who is perpetual minor. Accordingly, the case land was kept under the

Marfatdarship of the petitioner.

Be it stated that, Lord Shri Jagannath Mahaprabhu was an intermediary and when the intermediary vested in the year 1962-1963, a set of

Marfatdars filed application under Chapter II-A of the Orissa Estate Abolition Act, 1951 for declaration that the estate of Lord Shri Jagannath

Mahaprabhu was a Trust Estate. The Mahanta of Bada Akhada Math, the petitioner filed such an application and the applications were allowed in

favour of the Deity. In 1972-1973, when Chapter II-A of the O.E.A. Act was repealed, all intermediary‟s interest vested with the State Government

with effect from 1974. So, the Mahanta of Bada Akhada Math filed an application under Section 8-A(3) of the O.E.A. Act for fixation of fair and

equitable rent for its settlement under Sections 6 and 7 of the said Act. As the Mahanta Ram Prakash Das was looking after the property on behalf of

the Deity, the temple administration did not make any application independently. However, the settlement vide OEA Act Case No.460/1974 filed by

the petitioner has been settled in favour of Lord Shri Jagannath Mahaprabhu under the Marfadarship of Mahanta Shri Ram Prakash Das and as the

order was passed in favour of Lord Shri Jagannath Mahaprabhu, the petitioner cannot claim better title than a Marfatdar or a tenant.

As the Jagannath Temple Managing Committee was constituted under the provisions of Shri Jagannath Temple Act, 1955 (in short „SJT Act‟)

and the Government in Revenue Department extended time for filing claim under Sections 6 and 7 of the O.E.A. Act in 1989 vide notification dted

18.04.1989, the temple administration made an application for fixation of fair and equitable rent in respect of the case land vide OEA Case No.317 of

1989 and it was allowed in 1992. It is asserted in the counter affidavit that even if there are two orders passed by the O.E.A. Collector, Nimapara, the

petitioner-Ram Prakash Das cannot have any grievance against the order of settlement made in favour of the temple administration as the orders

were passed in favour of the Deity and none has any personal interest in it.

As the ex-intermediary was Shri Jagannath Mahaprabhu, the claim of Bada Akhada Math over the case property to have settlement of the property

in his favour is a falsehood. Neither the Mahanta nor the Math can claim any personal interest over the suit property which admittedly belongs to Lord

Shri Jagannath Mahaprabhu.

So far as the allegation of recording of land in favour of the petitioner-Math in the consolidation operation is concerned, the opposite party no.3

denied such assertion as no document is filed by the petitioner to prove the same. Since the case land belongs to Lord Shri Jagannath Mahaprabhu and

it vests absolutely in the name of Shri Jagannath Mahaprabhu represented through the Temple Managing Committee by virtue of Section 5 of SJT

Act, the petitioner-Mahanta or Marfatdar was neither intermediary nor in Khas possession of the disputed property as claimed. So, the reliefs prayed

in the writ petition should be disallowed.

Mr.Sougat Das, learned Additional Standing Counsel for the State-opposite parties submits that the State is supporting the counter affidavit filed on

behalf of Lord Shri Jagannath Mahaprabhu-opposite party no.3.

SUBMISSIONS

Mr.N.K.Sahu, learned counsel for the petitioner urged that since under Section 13-D of Chapter-11-A of the OEA Act, the Trust Estate has been

declared at the instance of Mahanta-Ram Prakash Das in respect of the suit land and there is no appeal against such decision of the Tribunal, such

finding of the Tribunal has attained finality. Such decision was made on 28.10.1965. Thereafter, the Bada Akhada Math, being the ex-intermediary,

applied through the Mahanta Ram Prakash Das by filing a petition under Sections 6 and 7 of the OEA Act for settlement of the land in favour of the

Math. After observing due procedure, on 28.05.1983, the OEA Collector, Nimapara has settled the disputed land in favour of exintermediary Math

under the Marfatdarship of Ram Prakash Das vide OEA Case No.460 of 1974. According to him, since the settlement of the case land has been

made under the provisions of the OEA Act and revised ROR was issued accordingly in the name of the petitioner-Math, the case property is endowed

to Math but not to the temple administration.

Mr.Sahu, learned counsel for the petitioner further submitted that the petitioner-Math has acquired property for offering Seva to Lord Shri

Jagannath Mahaprabhu and offerings were being distributed between the devotees. So, the Mahanta, being the Marfatdar of Lord Shri Jagannath

Mahaprabhu, is the actual ex-intermediary and being in Khas possession of the case land, has got the ownership in possession over the case land. In

consolidation operation also, the ROR was published in favour of the Math, Marfatdar-Ram Prakash Das.

Mr.Sahu, learned counsel for the petitioner further contended that the Administrator of Shri Jagannath Temple, Puri filed another OEA Case

No.370 of 1989 before the OEA Collector, Nimapara under Sections 6 and 7 of the OEA Act for settlement of the case land in favour of Lord Shri

Jagannath Mahaprabhu represented through the temple administration and the same was also settled in their favour. Since the case land has already

been settled in favour of the Mahanta of Math, the subsequent settlement by the O.E.A. Collector, Nimapara is without jurisdiction. On the other

hand, the case land is not the property of Lord Shri Jagannath Mahaprabhu but it was endowed to Math for various religious purposes. In this regard,

he relied on the Constitution Bench decision of the Hon‟ble Supreme Court in the case of Mahanta Shri Shrinivas Ramanuj Das â€"V- Suryanarayan

Das and another; AIR 1967 SC 256 where Their Lordships, at paragraphs-40 and 41, have observed that the lands known as Amruta Manohi is under

the superintendence of the Raja but the lands other than Amruta Manohi are endowed to the Math of petitioner but not merely gifted to the plaintiff or,

as had been suggested, to Lord Shri Jagannath Mahaprabhu. Since the Constitution Bench of the Hon‟ble Supreme Court has made such observation

in similar matter of Mahanta Shri Shrinivas Ramanuj Das â€"V- Suryanarayan Das and another (Supra), such ratio of the Constitution Bench is also

applicable to this case and as such, the case land recorded in the name of Lord Shri Jagannath Mahaprabhu Marfatdar Mahanta Shri Ram Prakash

Das is to be exclusively property of Math and not the property of Lord Shri Jagannath Mahaprabhu represented by the temple administration. Not only

this but also the Math is in possession of the case land for last thirty years and paying rent regularly for the same to the State for which the ownership

over the case land is also vested with the Math but not with the temple administration. 13. It has been further submitted by Mr.N.K.Sahu, learned

counsel for the petitioner that the subsequent settlement of the case land vide OEA Case No.370 of 1989 is a nullity because before that the same

land has already been settled under the OEA Act. If the opposite party no.3 was to object the settlement made under Sections 6 and 7 of the OEA

Act, they could have participated in the proceeding or they could have preferred an appeal under Section 9 of the OEA Act challenging the finding of

the OEA Collector but cannot file another case for settlement as the OEA Collector has become functous officio in subsequent application to settle

the case land in favour of Shri Jagannath Mahaprabhu Bije Puri. Therefore, the order passed under Annexure-7 by the OEA Collector is invalid and

illegal.

Mr.Sahu, learned counsel for the petitioner further submitted that not only the petitioner-Math has got stitiban status over the case land but also

being in possession of the same for more than 12 years, he is settled raiyat as per the provisions of Section 23 of the Orissa Tenancy Act, 1913

(hereinafter called as “OT Actâ€). Further, he submitted that under Section 28 of OT Act, by acceptance of rent from the petitioner-Math, the

occupancy tenancy in favour of the petitioner-Math has also been created.

Mr.Sahu, learned counsel for the petitioner further submitted that the decision of the Hon‟ble Supreme Court in the case of Shri Jagannath Temple

Managing Committee â€"V- Siddha Math and others; 2016 (I) OLR (SC) 209 is not applicable to the facts and circumstances of the present case and

the decision rendered by the Constitution Bench of the Hon‟ble Supreme Court in the case of Mahanta Shri Shrinivas Ramanuj Das â€"V-

Suryanarayan Das (Supra) always to be followed. The decision rendered by two members Bench of the Hon‟ble Supreme Court in the case of Shri

Jagannath Temple Managing Committee â€"V- Siddha Math and others (Supra) decided the principle decided the principle against the ratio decided in

the Constitution Bench case. Since the ratio of Shri Jagannath Temple Managing Committee â€" V- Siddha Math and others (Supra) is contrary to the

view taken by the Constitution Bench, as per principle of precedent, the decision of two members Bench of the Hon‟ble Supreme Court is per

incuriam. So far as the applicability of Sections 5 and 6 of the OEA Act is concerned, he submitted that provisions of SJT Act have no application to

the fact and circumstances of the case because the operation of the provisions of law in SJT Act is different than the operation of the law under the

OEA Act. Section 5 of the SJT Act refers to constitution of Managing Committee to look after the affairs of the Shri Jagannath Mahaprabhu but the

OEA Act is meant for settlement of land after the property are vested with the State. So, the ratio decided by the Division Bench of the Hon‟ble

Supreme Court that the provisions of OEA Act are not applicable on the ground that OEA Act is general principle of law and the SJT Act as a special

law is not correct. Therefore, he submitted to quash the settlement of land made in favour of Shri Jagannath Mahaprabhu.

Mr.B.H.Mohanty, learned Senior Advocate for the Shri Jagannath Mahaprabhu-opposite party no.3 submitted that Annexures-1, 2, 3, 4 and 5

would go to show that the case land has been settled in favour of Shri Jagannath Mahaprabhu through the Marfatdarship of Ram Prasad Das, Bada

Akhada Math, Puri. According to him, the property was never settled in favour of the Math but it was settled in favour of Lord Shri Jagannath

Mahaprabhu and the Mahanta used to look after the property of Deity by staying in Math. So, the Math has no relationship with the property except

using the same on behalf of the Deity for religious purposes and distributing the Bhog offered to the Deity between the devotees. Therefore, the

settlement of land on the application of the Math does not go to show that the Math is the owner of the property superseding the right of Lord Shri

Jagannath Mahaprabhu, who is admittedly exintermediary and possessing the suit property.

Mr.Mohanty, learned Senior Advocate for the opposite party no.3 further submitted that the temple administration was not made party to the

settlement proceeding under Sections 6 and 7 of the OEA Act. But, however, on the application of the Collector, Puri and the petitioner-Math, the

Trust Estate was declared in favour of Lord Shri Jagannath Mahaprabhu.

Since the ROR was issued with the status of Lakharaj Bahel vide Annexure-5, opposite party no.3 filed petition to settle the land. “Lakharaj

Bahel†means right to enjoy the property without payment of revenue. So after the case land being vested with the State, application was made by

the opposite party no.3 to settle the land in favour of Lord Shri Jagannath Mahaprabhu representing through temple administration. Under the SJT Act,

the Temple Managing Committee was constituted to look after the movable and immovable property of Lord Shri Jagannath Mahaprabhu and by

virtue of the statutory power, the temple administration made application under the provisions of the OEA Act and it was settled. Since Lord Shri

Jagannath Mahaprabhu is always the owner of the property either through Marfadari right of the petitioner or through the temple administration, the

question of bequeath of the ownership of Deity does not arise.

Mr.Mohanty, learned Senior Advocate for the opposite party no.3 submitted that in the case of Mahanta Shri Shrinivas Ramanuj Das â€"V-

Suryanarayan Das (Supra), the Constitution Bench of the Hon‟ble Supreme Court did not take into account the operation of SJT Act but went ahead

to decide the case in respect of other Math. That decision also has been cited by the Hon‟ble Supreme Court in the subsequent judgment in the case

of Shri Jagannath Temple Managing Committee â€"V-Siddha Math and others (Supra). Although Their Lordship in that case took note of the

observation of the Constitution Bench but did not opine anything to distinguish the same. On the other hand, in the judgment of the two members

Bench of the Hon‟ble Supreme Court, it is clearly observed that as the SJT Act is a Special Act and OEA Act is a general law, the principle that the

General provisions of law would pave the way to the Special Act, the provisions of the OEA Act is not applicable to the properties of Lord Shri

Jagannath Mahaprabhu. Hence, the ratio decided in Shri Jagannath Temple Managing Committee â€"V- Siddha Math and others (Supra) is absolutely

applicable to the facts and circumstances of the present case. Accordingly, Annexuer-7 has been passed by the OEA Collector rightly.

In reply, Mr.N.K.Sahu, learned counsel for the petitioner turned down his argument or narrowed down his argument to the effect that the Math

admits the ownership of Lord Shri Jagannath Mahaprabhu and temple administration also admit the ownership of Lord Shri Jagannath Mahaprabhu

over the suit property but the Math, being in possession of the case land, should not be divested of its right to possess and the temple administration

should not interfere with the management of the property by Math over the case land.

POINT FOR DETERMINATION

The main points for considerations are as follows:

I. Whether the petitioner Ram Prasad Das of Bada Akhada Math is the owner of the case land or Lord Shri Jagannath Mahaprabhu continues to be

Landlord of suit property? And

II. Whether Annexure-7 is liable to be quashed?

DISCUSSION 22. POINT No.(I)

It is the admitted fact that the suit property comprising of an area of Ac.123.336 decimals was part of Debottar Lakharaj Bahel estate of Lord Shri

Jagannath Mahaprabhu. It is not in dispute that Mahanta Shri Ram Prakash Das of Bada Akhada Math was looking after the suit property on behalf

of Lord Shri Jagannath Mahaprabhu. It is also admitted fact that the Collector and Mahanta Ram Prakash Das made petition before the Tribunal to

declare as Trust Estate of Lord Shri Jagannath Mahaprabhu Bije Puri.

Annexure-1 shows that two misc. Cases, i.e., Misc. Case No.543 of 1963 and Misc. Case No.1369 of 1965 were filed by the Collector and

Mahanta Shri Ram Prakash Das to declare the case land as Trust Estate and it is clearly mentioned in the order that the entire income is to be spent

for religious purpose. Annexure-2 shows that OEA Case No.460 of 1974 was filed by Shri Jagannath Mahaprabhu, Marfat Mahanta Shri Ram

Prakash Das. It is clearly mentioned in that order that Mahanta Ram Prakash Das preferred claim consequent upon vesting of Trust Estate that the

State Government by Revenue Department notification made on 18.3.1974. Thus, due to such vesting under the provisions of the OEA Act, the

Mahanta preferred the claim. In that case, the properties were settled with Lord Shri Jagannath Mahaprabhu Bije Puri Marfatdar Mahanta Ram

Prakash Das of Markandaswarsahi of Bahda Akhada Math. Annexure-3 shows that the land schedule was issued where name of tenant with address

is written as Shri Jagannath Mahaprabhu Marfatdar Mahanta Ram Prakash Das, Bada Akahada Math. Annexure-4 series shows that in pursuance of

the disposal of such OEA case, the Marfatdar of Lord Shri Jagannath Mahaprabhu has been paying the rent to the State Government. In Annexure-

4/A and Annexure-4/D, the name of Mahanta is only written as tenant. However, Annexure-5 shows that settlement ROR was issued on 24.03.1982

in the name of Lord Shri Jagannath Mahaprabhu Bije Puri Marfatdar Mahanta Ram Prakash Das, Bada Akhada Math, Puri. That ROR shows that it

was earlier bebandobasta or lakharaj bahel. Annexure-6 shows that Orissa Hindu Religious Endowment Department, Bhubaneswar has received

Rs.2000/- from Mahanta Ram Prakash Das as arrear dues on 20.03.1996. But that receipt relates to Bada Akhada Math where Mahanta Ram

Prasad Das used to reside. Then Annexure-7 comes where OEA Case No.370 of 1989 filed by the opposite party no.3 before the OEA Collector,

Nimapara. From Annexues-1 to 5, it appears that Lord Shri Jagannath Mahaprabhu Bije Puri is the landlord and ex-intermediary but represented

through the Marfatdar Shri Ram Prakash Das, who used to reside at Bada Akhada Math, which is situated at Markandaswarsahi, Puri. The claim of

the petitioner that Trust Estate property of Lord Shri Jagannath Mahaprabhu is endowed to Math but not to temple is not established by such

documents because the settlement of claim was made in favour of Lord Shri Jagannath Mahaprabhu, of course with the Marfatdari of Mahanta of

Bada Akhada Math. What is the difference between “Math†and “Temple� In Orissa Hindu Religious Endowments Act, 1951, the words

“Mathâ€​ and “Templeâ€​ have been described as under:

math"" means an institution for the promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or

who exercises or claims to exercise spiritual headship over a body of disciples and succession to whose office devolves in accordance with the

directions of the founder of the institution or is regulated by custom and includes places of religious worship other than a temple and also places of

instruction or places for the maintenance of Vidyarthis or places for rendering charitable or religious services in general which are or may be

appurtenant to such institution.â€​

temple"" means a place by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as

of right by, the Hindu community, or any class or section thereof, as a place of public religious worship and also includes any cultural institution or

mandap or library connected with such a place of public religious worship.â€​

After going through the above definition, it is clear that “Math†is an institution where spiritual service is performed by spiritual head. In the

O.H.R.E. Act, 1951, the definition of “trusteeâ€​ is given as under:

trustee"" means a person by whatever designation known, in whom the administration of a religious institution and endowment are vested, and includes

any person or body who or which is liable as if such person or body were a trusteeâ€​

From a perusal of the aforesaid definition, it appears that Math is neither the temple, nor the temple is a Math and both have got separate

existence. Trustee is related to religious institutions. Math and temple both are religious institutions.

The contention of Mr.N.K.Sahu, learned counsel for the petitioner has focussed to show that since Bada Akhada Math, under the trusteeship of

Marfatdar Shri Ram Prakash Das, is taking care and management of the case land, the Math is the owner of the property. The opposite party no.3

has opposed the move stating that the Mahanta is simply a Marfatdar that means the trustee but cannot be a Landlord as Lord Shri Jagannath

Mahaprabhu is the Landlord of the case land. The contention of Mr.B.H.Mohanty, learned Senior Advocate for the opposite party no.3 has got force

for the simple reason that the documents, as described above, clearly show that Lord Shri Jagannath Mahaprabhu Bije Puri is the Landlord and the

settlement was made in the name of Deity, which is perpetual minor but represented through the Marfatdar Shri Ram Prakash Dash. The duty of

Mahanta is to manage the property and utilize the usufructs of the property for religious purposes and distribute them between the devotees.

Therefore, learned counsel for the petitioner, in the last part of his argument, admitted that Lord Shri Jagannath Mahaprabhu is the owner of the

property but the Mahanta, being in charge of the affairs of the case land, is to succeed to acquire the title thereto, which is very unnatural

phenomenon.

However, Mr.N.K.Sahu, learned counsel for the petitioner stressed on the decision of Constitution Bench of the Hon‟ble Supreme Court in the

case of Mahanta Shri Shrinivas Ramanuj Das â€"V- Suryanarayan Das and another (Supra) and he took us to paragraphs40 and 41 of the said

judgment, which are placed in the following manner:

“40.We may now consider the properties in schedule Kha said to be the Amrut Manohi properties of Lord Jagannath and held by the plaintiff as

marfatdar. The plaintiff alleges that these properties were acquired either by purchase or 'krayadan' or by way of gift subject to a charge of some

offering to Lord Jagannath which depended upon the individual judgment and discretion of the plaintiff, and that the public had no concern with the

enjoyment or management of the usufruct thereof. The Gazetteer makes a reference to such properties and states:--

Both Saiva and Vaishnava Maths exist in Puri. The lands of the latter are known as Amruta Manohi (literally nectar food), because they were given

with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be

distributed among pilgrims, beggars and ascetics, they are distinct from the Amruta Manohi lands of the Temple itself which are under the

superintendence of the Raja. This statement makes it clear that lands endowed to the temple of Lord Jagannath are distinct from the lands or property

endowed to the Vaishnava Maths for the purpose of utilizing the proceeds of those properties for offering bhoga before Lord Jagannath and the

subsequent distribution of that Mahaprasad among pilgrims, beggars and ascetics, presumably visiting the Math, or approaching its authorities for a

portion of the Mahaprasad. The mere fact that the proceeds of the properties were to be so used, would not justify the conclusion that these properties

were not endowed to the Maths but were endowed to the temple of Lord Jagannath. Properties endowed to the temple of Lord Jagannath were,

according to this statement, in the Gazeteer, not under the superintendence of any Math or Mahant but under the superintendence of the Raja of Puri

himself.

As already stated, these Amrit Manohi properties are properties which are endowed to the Math by the devotees for a particular service, which is

done to Lord Jagannath by the Mahant on behalf of the Math. The properties are therefore properties endowed to the Math and not merely gifted to

the Math and not merely gifted to the plaintiff or, as had been suggested to Lord Jagannath.â€​

With due regard to the aforesaid decision, it appears that Their Lordships, under the Constitution Bench, have been pleased to decide the case in a

Civil Appeal arising out of a suit filed before the Additional Subordinate Judge, Puri dismissing the suit instituted by Mahanta Gadadhar Ramanuj Das

against the Endowment Commissioner. In that suit, Endowment Commissioner was the defendant. In that decision, the concept of Amruta Manohi

property of Lord Jagannath as per Gazeteer was discussed to find out the nature of property involved in suit as Amruta Manohi. In the present case,

there is nothing found from the writ petition that the petitioner claims Amruta Manohi property. Apart from this, in the case of Mahant Shri Shrinivas

Ramanuj Das â€"V- Suryanarayan Das and another (Supra), the property has been acquired in the name of Mahanta, usufructs of the same are

dedicated to the offerings of Lord Shri Jagannath Mahaprabhu and then distributed between the Sisyas, Chelas and devotees. In that decision, it is

decided that such property cannot be acquired for the personal enjoyment of the Mahanta but it may belong to Math or Temple of Lord Shri Jagannath

Mahaprabhu. In that decision, there was no discussion about application of the SJT Act, which was enacted in 1955 although the said decision was

rendered in 1967. On further perusal, it appears that the original suit was filed in 1946, which culminated with the decision in the Constitution Bench in

the above referred case. Since the suit was filed before enactment of SJT Act, Their Lordships have no occasion to consider about the

implementation of the SJT Act, 1955. Moreover, such plea of applicability of SJT Act did not arise for consideration. Hence, the argument of the

learned counsel for the petitioner that the issues raised in this case exactly similar to the issues raised before the Constitution Bench decision of the

Hon‟ble Supreme Court in the case of Mahant Shri Shrinivas Ramanuj Das â€"V- Suryanarayan Das and another (Supra) is not correct because the

property, in this case, is admittedly in the name of Lord Shri Jagannath Mahaprabhu, represented by Marfatdar Shri Ram Prakash Das, who resides at

Bada Akhada Math, Puri and the case properties are not specifically arrayed as Amruta Manohi property in writ petition and the settlement of claims

or any other documents are prepared in this case after implementation of SJT Act, 1955. Therefore, with due regard to the aforesaid Constitution

Bench decision of the Hon‟ble Supreme Court, although same has binding effect but the present issue being not raised in that decision, said decision

does not apply to the case at hand.

Shri Jagannath Temple Act was enacted in 1955 with the following avowed objects and reasons:

“Whereas the ancient Temple of Lord Jagannath of Puri has ever since its inception been an institution of unique national importance in which

millions of Hindu devotees from regions far and wide have reposed their faith and belief and have regarded it as the opitome of their tradition and

culture;

And whereas long period to and after the British concquest the superintendence, control and management of the affairs of the Temple have been the

direct concern of successive Rulers, Governments and their officers and of the publisher exchequer; And whereas by Regulation IV of 1809 passed

by the Governor-General in Council on 28th April, 1809 and thereafter by other laws and regulations and in pursuance of arrangement entered into

with the Raja of Khurda, later designated the Raja of Puri, the said Raja came to be entrusted hereditary with the management of the affairs of the

Temple and its properties as Superintendent subject to the control and supervision of the ruling power; And whereas in view of grave and serious

irregularities thereafter Government had to intervene on various occasions in the past; And whereas the administration under the Superintendent has

further deteriorated and a situation has arisen rendering it expedient to reorganize the scheme of management of the affairs of the Temple and its

properties and provide better administration and governance therefor in supersession of all previous laws, regulations and arrangements, having regard

to the ancient customers and usage and the unique and traditional nitis and rituals contained in the Record-of-Rights prepared under Puri Shri

Jagannath Temple (Administration) Act, 1952 (Odisha Act XIV of 1952) in the manner hereinafter appearing: It is hereby enacted by the Legislature

of the State of Odisha in the Sixty Year of the Republic of India as follows Xx xx xx xxâ€​

From the aforesaid avowed objects of the above Act, it appears that SJT Act has a special identity for all human beings. Lord Shri Jagannath

Mahaprabhu is Universal and the law pertaining to Him and his property have separate space in all norms. The crores of devotees around the work

assembled to see world famous CAR FESTIVAL of Lord Shri Jagannath Mahaprabhu. When we are sitting in the temple of justice, we are not

emotional but at the same time, we are with the sentiment of the public to safeguard and protect the properties of Lord Shri Jagannath Mahaprabhu,

who is perpetual minor. Taking the importance of the Deity Lord Shri Jagannath Mahaprabhu and his Temple at Puri, the SJT Act, 1955 was enacted

to take out the management and other affairs of the Deity from the purview of the O.H.R.E. Act, which were taking care of the affairs of the Shri

Jagannath Temple Bije at Puri. The aforesaid conclusion is based upon two members Bench decision of the Hon‟ble Surpeme Court in the case of

Shri Jagannath Temploe Managing Committee â€"V- Siddha Math and others (Supra). Mr.B.H.Mohanty, learned Senior Advocate for opposite party

no.3 relied upon the decision of the Hon‟ble Supreme Court but Mr.Sahu, learned counsel for the petitioner opposed the move. In that decision, Their

Lordships, at paragraph-6 of the judgment, have categorically held as follows:

6.A Constitution Bench of this Court had the occasion to examine the provisions of the Temple Act, 1955 in detail, while adjudicating upon its

constitutional validity in the case of Raja Bira Kishore Deb v. State of Orissa, AIR 1964 SC 1501. Wanchoo, J, speaking for the bench observed as

under:

This review of the provisions of the Act shows that broadly speaking the Act provides for the management of the secular affairs of the Temple and

does not interfere, with the religious affairs thereof, which have to be performed according to the record of rights prepared under the Act of 1952 and

where there is no such record of rights in accordance with custom and usage obtaining in the Temple. It is in this background that we have to consider

the attack on the constitutionality of the Act."" After adverting to the history of the administration of the Temple, it was also held:

Finally the preamble says that the administration under the superintendent has further deteriorated and a situation has arisen rendering it expedient to

reorganize the scheme of management of the affairs of the Temple and its properties and provide better administration and governance therefore in

supersession of all previous laws, regulations and arrangements, having regard to the ancient customs and usages and the unique and traditional nitis

and rituals contained in the record of rights prepared under the 1952 Act. So for all these reasons the appellant was removed from the sole

superintendence of the Temple and a committee was appointed by s. 6 of the Act for its management."" A perusal of the provisions of the Act and the

decision of this Court in the case of Raja Bira Kishore Deb referred to supra clearly shows that as far as Shri Jagannath Temple of Puri is concerned,

the position of law is that all the endowments and properties belonging to the Temple vest in the Shri Jagannath Temple Managing Committee.

With due regard to the aforesaid decision, it appears that from the commencement of the SJT Act, 1955, all the endowment properties belong to

Shri Jagannath Temple vested with the Shri Jagannath Temple Management Committee with the avowed object, as discussed above. In the said

judgment, Their Lordships have discussed about the OEA Act, 1951 vis-a-vis the SJT Act, 1955. After threadbare discussion, Their Lordships have

taken note of the Constitution Bench decision of the Hon‟ble Suprem Court in the case of Mahant Shri Shrinivas Ramanuj Das â€"V- Suryanarayan

Das and another (Supra). But, at the same time, took note of another judgment of the Hon‟ble Supreme Court in the case of Lord Jagannath through

Jagannath Singri Narasingh Das Mahapatra Shridhar Panda and others â€"V- State of Orissa; 1989 (1) Suppl. SCC 553 where the Hon‟ble Supreme

Court has taken view that since 1974 the property of Lord Shri Jagannath Mahaprabhu vests with the State. Their Lordships in Shri Jagannath Temple

Managing â€"V- Siddha Math and others (Supra) have taken view that the decision in the case of Lord Jagannath through Jagannath Singri Narasingh

Das Mahapatra Shridhar Panda and others â€"V- State of Orissa (Supra) is per incuriam as it has not taken care of implementation of SJT Act, 1955.

Further after discussing in detail, Their Lordships, at paragraphs-23, 24 and 25, have observed in the following manner:

“23. In the instant case, there is a clear conflict between the proviso of Section 2(oo) of the OEA Act, 1951 and Sections 5 and 30 of the Temple

Act, 1955.It is also clear that both the above statutory provisions of the Acts cannot survive together. While the rule of harmonious construction must

be given effect to as far as possible, when the provisions of two statutes are irreconcilable, it needs to be decided as to which provision must be given

effect to. In the instant case, Section 2(oo) proviso in its entirety is not violative of the provisions of the Temple Act. At the cost of repetition, we

reproduce the relevant part of Section 2(oo) of the OEA Act, 1951 as under:

Provided that all estates belonging to the Temple of Lord Jagannath at Puri within the meaning of the Shri Jagannath Temple Act, 1955 and all

estates declared to be trust estates by a competent authority under this Act prior to the date of coming into force of the Orissa Estate Abolition

(Amendment) Act, 1970 shall be deemed to be trust estates.

It is only the first part of the proviso which is in contravention of the Temple Act, 1955. If that part of the proviso continues to be given effect,

Sections 5 and 30 of the Temple Act, 1955, by which the estates of Lord Jagannath Temple at Puri are vested in the Temple Committee will lose their

meaning. By striking down Section 2(oo) proviso to that extent, both the provisions will be able to operate. In Commercial Tax Officer v. Binani

Cements Ltd; (2014) 8 SCC 319 this Court held as under:

It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule

adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This

principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same

field on same subject."" In J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P.; (1961) 3 SCR 185, a three judge bench of this Court held

as under:

...We reach the same result by applying another well known rule of construction that general provisions yield to special provisions. The learned

Attorney-General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act

and the special provision in another Act, the rule cannot apply in resolving a conflict between general and special provisions in the same legislative

instrument. This suggestion does not find support in either principle or authority. The rule that general provisions should yield to specific provisions is

not an arbitrary principle made by lawyers and Judges but springs from the common understanding of men and women that when the same person

gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions

should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly (quoted in Craies on Statute Law

at p.m. 206, 6th Edn.) Romilly, M.R., mentioned the rule thus:

The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most comprehensive

sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts

of the statute to which it may properly apply. The rule has been applied as between different provisions of the same statute in numerous cases some

of which only need be mentioned: De Winton v. Brecon, Churchill v. Crease, United States v. Chase and Carroll v. Greenwich Ins. Co.

Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over

the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that Clause

5(a) has no application in a case where the special provisions of Clause 23 are applicable."" It becomes clear from a perusal of the above mentioned

two judgments of this Court that while provisions of different statutes must be harmoniously constructed as far as possible, in cases where it is not

possible, the Court needs to examine as to which provision must be given effect to.

24.In the case in hand, the first part of the proviso of Section 2(oo) of the OEA Act, 1951 cannot be allowed to sustain. Clearly, the intention of the

legislature could not have been to render virtually the entire Temple Act, enacted on the specific subject, meaningless, by way of enacting a proviso to

Section 2(oo) of the OEA Act, 1951 as an amendment in 1974, which is the general legislation in the instant case. Section 2(oo) of the OEA Act,

1951, thus, to that extent requires to be struck down so that both the OEA Act, 1951 as well as the Temple Act, 1955 can be given due effect in their

respective field of operation. In exercise of the powers conferred under Article 142 of the Constitution, this Court can pass any order as may be

necessary for doing complete justice"" in a case before it. In the instant case, great injustice will be caused to the appellant Temple if the rights

conferred upon it by the Temple Act are allowed to be taken away by operation of the proviso to Section 2(oo) of the OEA Act. Therefore, we have

to strike down the proviso to Section 2(oo) of the OEA Act and also quash the notification dated 18.03.1974 in so far as it relates to the property of

Lord Jagannath Temple at Puri.

25.Further, it is a settled principle of law that once a property is vested by an Act of legislature, to achieve the laudable object, the same cannot be

divested by the enactment of any subsequent general law and vest such property under such law. Similarly, if in the instant case, we were to accept

the contentions advanced by the learned senior counsel appearing on behalf of the respondent Math, then Sections 5 and 30 of the Temple Act, 1955

will be rendered useless and nugatory and thereby the laudable object and intendment of the Temple Act will be defeated and the interest of the public

at large will be affected. Thus, the notification dated 18.03.1974 issued by the State Government under Section 3-A of the OEA Act, 1951, whereby

the estate of Lord Jagannath Mahaprabhu Bije, Puri vested in the State Government (in terms of Point (ii) of the notification), is liable to be quashed to

that extent. As a consequence, the order dated 30.09.1981 passed by the OEA Tahsildar, who falls within the inclusive definition of Collector in terms

of Section 2 (d) of the OEA Act, 1951, settling the land in favour of the Mahantas of various Maths as Marfatdars of the Shri Jagannath Mohaprabhu

Bije, Puri is in violation of the provisions of the Temple Act, 1955 and is thus, liable to be set aside.â€​

With due regard to the aforesaid decision, it appears that Their Lordships have clearly observed that since the SJT Act, 1955 is a special statute, it

will override the general enactments, i.e., OEA Act and as such proviso to Section 2(oo) of the said Act was struck down. Section 2(oo) of the OEA

Act is placed below for better reference: “2(oo) „trust estate‟ means an estate the whole of the net income whereof under any trust or other

legal obligation has been dedicated exclusively to charitable or religious purposes of a public nature without any reservation of pecuniary benefit to any

individual: Provided that all estates belonging to the Temple of Lord Jagannath at Puri within the meaning of the Shri Jagannath Temple Act, 1955 and

all estates declared to be trust estates by a competent authority under this Act prior to the date of coming into force of the Orissa Estates Abolition

(Amendment) Act, 1970 shall be deemed to be trust estates.â€​

While stricking down the proviso of Section 2(oo) of the OEA Act, Their Lordships quashed the vesting of the land in favour of Mahanta of

various Maths or Mahants as Marfatdar of Shri Jagannath Temple Bije Puri for their violation of Section 5 of the SJT Act. Finally, at paragraph-34 of

the said judgment, Their Lordships have answered in the following manner:

“34.For the foregoing reasons, we pass the following order :-

i)C.A. Nos.7729 of 2009, 7730 of 2009,142 of 2010, 221 of 2010, 2981 of 2010, 3414 of 2010,3415 of 2010 and 3446 of 2010 are allowed. The

impugned judgment and order dated 07.07.2009 passed in Original Jurisdiction Case No. 2421 of 2000 by the High Court of Orissa at Cuttack is

hereby set aside.

ii)We strike down the first part of the proviso of Section 2(oo) of the OEA Act, 1951, which pertains to the properties of Lord Jagannath Temple at

Puri.

iii)The notification dated 18.03.1974 issued by the State Government under Section 3A of the OEA Act, 1951 in so far as point No. (ii) is concerned, is

also quashed by this Court, to the extent, it applies to the lands and estate of Lord Jagannath Temple at Puri.

iv)We make it very clear that the striking down of the first part of the proviso to Section 2(oo) of the OEA Act, 1951 as mentioned above and

quashing of the notification referred to supra will be prospective and this judgment shall not be applicable to the settled claim of the claimants hitherto

under the provisions of the OEA Act of 1951 in so far as the lands of the Lord Jagannath Temple at Puri are concerned.

v) In view of the disposal of appeals above-mentioned in favour of the Temple Managing Committee, C.A. Nos. @ SLP (C) Nos. 91679168 of 2010

(filed by Shri Raghab Das Math) and C.A. No. 9627 of 2010 (filed by Bauli Math) are hereby dismissed; and

v) No costs are awarded in these proceedings.â€​

The observation of the Hon‟ble supreme Court at Clause-IV, as postulated above, does not arise for consideration since vide Annexure-7, the

case land has been settled in favour of Shri Jagannath Mahaprabhu represented through Temple Managing Committee.

With due regard to the concluding paragraph of the aforesaid judgment, it appears that the said judgment is absolutely applicable to the facts and

circumstances and issues raised in the present case. Now, applying the ratio decided in the case of Shri Jagannath Temple Managing Committee

â€"V- Siddha Math and others (Supra), it appears that properties have been vested in favour of Lord Shri Jagannath Mahaprabhu because he is the

ex-intermediary and after implementation of the SJT Act, the OEA Act has paved the way to SJT Act for vesting of the property with the

Management of Shri Jagannath Temple Committee and it did not remain with the Marfatdari of any Mahanta or Math basing on the principle of Latin

Maxim of “generalia specialibus non-derogantâ€​. Not only this but also Annexure-7 shows that Shri Jagannath Mahaprabhu represented by Temple

Committee filed the case under Sections 6 and 7 of the OEA Act before the OEA Collector and rent was fixed in favour of Lord Shri Jagannath

Mahaprabhu Temple represented by the Managing Committee. From the above order under Annexure-7, it appears that the Managing Committee of

the Temple, the record of right earlier prepared in the name of Shri Jagannath Mahaprabhu Marfatdar Shri Ram Prakash Das, Bada Akhada Math

was in bebandobasta status.

Once it is Bebandobasta status, as submitted by the learned counsel for the opposite party no.3, it is the land without having fixation of any rent. So,

for fixation of rent, the Temple Managing Committee filed application by virtue of the power under Section 5 of the SJT Act and it was settled in

favour of Lord Shri Jagannath Mahaprabhu Bije Puri represented through Managing Committee. So, the settlement of land when remained under

Bebandobasta status, it cannot be said that there is settlement of claim in favour of Mahanta Shri Ram Prakash Das or Math. When it is again settled

in favour of Lord Shri Jagannath Mahaprabhu represented through Temple Administration as per the provisions of SJT Act, which is to govern the

field, the Court is of the view that Lord Shri Jagannath Mahaprabhu is the sole owner in possession of the case land and the management of case land

has now been changed to Temple Managing Committee by virtue of operation of law. Moreover, Section-2 of SJT Act clearly shows that OHRE Act

will not apply the properties of Lord Shree Jagannath Mahaprabhu Bije at Puri. On the other hand, due to enactment of SJT Act, neither OHRE Act

nor OEA Act hold field to decide the management of movable and immovable properties of Lord Shree Jagannath Mahaprabhu. It is also clear that

when Lord Shree Jagannath Mahaprabhu is the owner and the petitioner-Math or Marfatdar claims as Marfatdar of deity, they are only caretaker.

Can a caretaker take the plea of ownership of deity? It is not at all. It is reiterated that SJT Act gives the authority of vesting of land with Lord Shree

Jagannath Mahaprabhu represented through the Managing Committee of the Temple.

The Point No.(I) is answered accordingly.

POINT NO.(II)

Mr.Sahu, learned counsel for the petitioner has argued that since there is judgment of the Hon‟ble Supreme Court passed in the case of Mahant

Shri Shrinivas Ramanuj Das â€"V- Suryanarayan Das and another (Supra), the same would be followed and the judgment of Division Bench of the

Hon‟ble Supreme Court in the case of Shri Jagannath Temple Managing Committee â€"V- Siddha Math and others (Supra) will have no precedent to

be followed. The question of precedent is well discussed by the Hon‟ble Supreme Court in the case of N.Meera Rani â€"V- Government of Tamil

Nadu and another; AIR 1989 SC 2027 and Their Lordships, at paragraph-13 of the said judgment, have observed in the following manner:

“13. We may now refer to the decisions on the basis of which this point is to be decided. The starting point is the decision of a Constitution Bench

in Rameshwar Shaw â€"v- District Magistrate, Burdwan & Anr; (1964) 4 SCR 921 : AIR 1964 SC 334. All subsequent decisions which are cited

have to be read in the light of this Constitution Bench decision since they are decisions by Benches comprised of lesser number of Judges. It is

obvious that none of these subsequent decisions could have intended taking a view contrary to that of the Constitution Bench in Rameshwar Shaw's

case (supra).â€​

With due regard to the aforesaid decision, it is undisputed that the decision of the Constitution Bench is to prevail over the decision of Bench

having lesser number of judges but the question arises if ratio decidendi as decided by the Constitution Bench is on the same issue raised before the

Bench of lesser number of Judges. In the instant case, it is reiterated that the issue in Mahant Shri Shrinivas Ramanuj Das â€"V- Suryanarayan Das

and another (Supra), is not on the issue raised and decided in the case of Shri Jagannath Temple Managing Committee â€" V- Siddha Math and others

(Supra)..

Mr.Sahu, learned counsel for the petitioner further submitted that Annexure-7 is liable to be set aside because of the fact that once the claim is

settled under Sections 6 and 7 of the OEA Act, further claim cannot be settled against same land under Sections 6 and 7 of the OEA Act. In the

aforesaid paragraphs, it has been well discussed that the Temple Managing Committee, representing Lord Shri Jagannath Mahaprabhu Bije Puri, has

filed the claim as the case land was of bebandobasta status. So, the claim of the Temple Managing Committee filed subsequently cannot be said as

repetition of earlier claim but a fresh claim and there is no reason to differ from the contention of the learned counsel for the Managing Committee to

file such case. However, the contention of Mr.N.K.Sahu, learned counsel for the petitioner that subsequent settlement made under Sections 6 and 7 of

the OEA Act is without jurisdiction is indefensible. Hence, Annexure-7 is not liable to be quashed.

Learned counsel for the petitioner argued that under Sections 23 and 28 of the Orissa Tenancy Act, the petitioner-Mahanta has become a settled

Raiyat. Since Lord Shri Jagannath Mahaprabhu Bije at Puri is the Landlord continuing as Landlord, the question of applicability of OT Act does not

arise. He further urged that the operation under Section 9 of the OEA Act could have been filed by the Shri Jagannath Temple Managing Committee

to set aside the order passed by the OEA Collector under Sections 6 and 7 vide Anenxure-2. Since the earlier claim made under Sections 6 and 7 of

the OEA Act vide Annexure-2 was not final, and further claim is filed by the Shri Jagannath Temple Managing Committee upon operation of law,

question of applicability of appeal against Annexure-2 does not arise. Here, only conclusion arrived is that the argument of the petitioner is otiose one

because if the appeal under Section 9 of the OEA Act is applicable, then the petitioner could have filed such appeal instead of filing the present writ

petition.

In terms of the above discussion, the Court is of the view that Annexure-7 is not liable to be quashed but it is a valid document in favour of Lord

Shri Jagannath Mahaprabhu, who has been continuing as owner in possession of the case land throughout. The Point No.(II) is answered accordingly.

CONCLUSION

In the writ petition, it has been prayed to quash Annexure-7, the order dated 02.06.1992 passed by the O.E.A. Collector, Nimapara in O.E.A.

Case No.370 of 1989.

In terms of the discussions made hereinabove, it has been already observed that Lord Shri Jagannath Mahaprabhu is the Landlord of the case land

and continued to be as such. It has been already held that under Annexure-7, the rent has been fixed payable by Lord Shri Jagannath Mahaprabhu

represented by Temple Managing Committee. As the Hon‟ble Supreme Court in Shri Jagannath Temple Managing Committee â€"V- Siddha Math

and others (Supra), have also directed in a similar facts, circumstances and issues that the Temple Managing Committee is the sole authority to

manage the properties of Lord Shri Jagannath Mahaprabhu, thus, the Court is of the view that the case land, by facts and law, did not remain under

the care of the petitioner-Mahanta Shri Ram Prakash Das and his successor or Bada Akhada Math, Puri and they are all to continue to remain in the

name of Shri Jagannath Mahaprabhu Bije Puri represented by the Shri Jagannath Temple Managing Committee. The Writ Petition is disposed of

accordingly.