Dibyakanta Dash vs The Commissioner of Endowments and Others

A.K. Patnaik, J.—Heard Mr. S.P. Misra, learned counsel for the petitioner and Mr. A.K. Rath, learned counsel appearing for the Commissioner of Endowments.

The case of the petitioner in this writ petition is that he is the hereditary trustee-Marfatdar of Sri Hanuman Jew, Sri Astasambhu Mahadev, Maa Parbati, Sri Mangala Thakurani, Sri Maa Tarini. Sri Prinath Dev & Sri Radhakrishna Jew Temple. By order dated 27.8.2002, the Addl. Asst. Commissioner of Endowments, Cuttack has appointed Sri Rabinarayan Patra, Sri Birandra Pratap Swain, Sri Pravajan Pattanaik, Sri Bankim Behari Pattanaik and Sri Chiranjibi Datta as interim non-hereditary trustees of the aforesaid temple u/s 27 of the Orissa Hindu Religious Endowments Act 1951 for a period of two years from the date of this order. Aggrieved by the said order dated 27.8.2002 passed by the Addl. Asst. Commissioner of Endowments, Cuttack the petitioner has filed this writ petition under Article 226 of the Constitution with a prayer to quash the same.

Mr. S.P. Misra, learned counsel for the petitioner submitted that u/s 27(1) of the Orissa Hindu Religious Endowments Act, the Asst. Commissioner can appoint non hereditary trustees in respect of a religious institution only in case there is no hereditary trustee. But in this case, the petitioner is a hereditary trustee of the aforesaid temple and hence the Addl. Asst. Commissioner could not have exercised his power u/s 27(1) of the Act. He further submitted that law is now well settled by a series of decisions of this Court that the Asst. Commissioner can appoint a non-hereditary trustee only after conducting an enquiry for coming to the conclusion that there is no hereditary trustee of the religious institution. But, in this case no enquiry appears to have been conducted and, in any case, no opportunity has been given to the petitioner to participate in such enquiry, if any, in violation of principle of natural justice.

In view of the said submission of Sri Misra, learned counsel for the petitioner, we passed orders on 22.4.2004 calling upon Mr. A.K. Rath, learned counsel for the Endowments to produce the administrative file in which the impugned orders have been passed for the purpose of finding out as to whether any enquiry has been made that the concerned deity does not have a hereditary trustee and further directed that status quo as on date shall be maintained. Pursuant to the said order. Mr. Rath has produced before us the administrative file. Relying on the papers in the said administrative file Mr. Rath submitted that report No. 133, dated 16.6.2000 was furnished by the concerned Inspector of Endowments and the Addl. Asst. Commissioner of Endowments, Cuttack after perusing the said report and other papers in the file has endorsed in the file that he is satisfied that the institution is prima facie a public one without hereditary trustee. According to Mr. Rath, the papers of the administrative file would show that enquiry, in fact, has been conducted and in the enquiry it has been found that although the institution had hereditary trustees earlier, no hereditary trustee was functioning and only thereafter, the Addl. Asst. Commissioner passed the order u/s 27 of the said Act appointing the five non-hereditary trustees by the impugned order dated 27.8.2002. Finally, Mr. Rath submitted that the impugned order was passed for appointing the non-hereditary trustees as far back as on 27.8.2002 and the writ petition challenging the impugned order was filed one and half year thereafter on 27.2.2004. The writ petition, therefore, should be dismissed on the ground of delay and laches.

We find on a reading of the Full Bench judgment of this Court in Khetramohan Rout and Others Vs. Sri Sri Nageswar Mahadev and Others, on which reliance has been placed both by Mr. S.P. Misra and Mr. A.K. Rath that for exercising power u/s 27 of the Act the Asst. Commissioner of Endowments only has to be satisfied on the basis of materials placed before him that no hereditary trustee of the institution exists. In the said decision it has been clarified that u/s 27 of the Act, the Asst. Commissioner does not perform a quasi judicial function but only as an administrative act as has been held by this Court in Rajkishore Baral Vs. Commissioner of Endowment and Others, . From the administrative file produced before us we find that a report dated 16.6.2000 has been filed by the concerned Inspector of Endowments and thereafter various correspondences have been made and on the basis of the report and various materials in the administrative file, the Addl. Asst. Commissioner of Endowments was prima facie satisfied that the institution is a public institution without a hereditary trustee and only thereafter he passed the impugned order dated 27.8.2002 appointing the five persons named therein as non-hereditary trustees of the institution. We are, therefore, not inclined to interfere with the impugned order dated 27.8.2002, more particularly. When the said order appointing the non-hereditary trustees has become operational for more than one and half years.

It is, however, open to the petitioner to file a dispute u/s (1) of the Act before the Asst. Commissioner of Endowments claiming his rights as indicated in the said provision of the Act.

With the aforesaid observations the writ petition stands disposed of and the interim order of status quo passed by this Court on 22.4.2004 is vacated.

A free copy of this order be furnished to Mr. A. K. Rath, learned counsel appearing for the Commissioner of Endowments.

Urgent certified copy of this order be granted as per the rules.

A.K. Parichha, J.

I agree.