SHRI BALUNKESWAR MAHESH Vs. STATE OF ORISSA
LAWS(ORI)-1973-12-4
HIGH COURT OF ORISSA
Decided on December 17,1973

BALUNKESWAR MAHESH Appellant
VERSUS
STATE OF ORISSA Respondents

JUDGEMENT

- (1.) PETITIONER No. 1 is Shri Balunkeswar Mahesh, a deity, the management of whose temple is, by an order issued by the Commissioner of Orissa Hindu Religious endowments, vested in petitioner No. 2. Lands measuring 100. 55 acres pertaining to Khewat No. 2 and Khata No. 14 in mouza Hatia Tangara and more fully described in para. 3 of the writ petition belong to petitioner No. 1 who has been recorded as a Malguzar in respect of those properties in the current settlement record-of-Rights. In exercise of the powers conferred by Section 13 (k) (b) and sub-section (1) of Section 3 of the Orissa Estates Abolition Act, 1951 (hereinafter, referred to as the Act), the State, by issuing Notification No. S. R. O. 22/70 dated 3rd January, 1970 (Annexure 4) declared that the trust estate of Hatia Tangara of the deity Shri Balunkeswar Mahesh in the district of Keonjhar has passed to and become vested in the State free from all encumbrances. The petitioners have filed this application for quashing the impugned notification.
(2.) IT is stated in para 3 of the petition that the lands mentioned in the schedule to the petition are in the nature of waste lands lying in the heart of Keonjhar town. It is, however, admitted in para. 10 of the petition that as the deity has intermediary interest in the lands, a notification was issued by opposite party No. 1 under section 3-A of the Act for vesting the said lands in the State. Subsequent to this notification, the deity preferred a claim under Section 13-D of the Act before the estates Abolition Tribunal for a declaration that the aforesaid lands of the deity form a trust estate. The Tribunal by its order Annexure 2 dated 3-2-1967 allowed the application and declared that it is a trust estate. The effect of the order of the tribunal, as provided in Section 13-I of the Act is that the trust estate shall be deemed to have been excluded from the operation of the vesting notification and never to have vested : in the State in pursuance thereof. But under the powers reserved in the State by Section 13-K (b) of the Act, the State was not debarred from vesting any trust estate by issue of a notification under Section 3. It is in pursuance of this power that Government issued the impugned notification.
(3.) IT is alleged in the petition that as the disputed lands are situated in the heart of Keonjhar town and are fit for being used as homestead lands, different departments of Government had at different times constructed their buildings on parts of the lands without paying the price to the petitioners, and consequently, the petitioner No. 2 on behalf of the deity had issued notices calling upon the authorities concerned to pay the appropriate price. It is alleged that with a view to avoid such payment, the State Government mala fide issued the impugned notification. There are no rai-yats on the disputed lands. As the aim of this notification is to abolish the intermediary interest between the raiyat and the state, and as in the case of disputed properties there are no raiyats, the impugned notification under the circumstances has not been issued to achieve the aims and objects of the Act and consequently the impugned notification is invalid.;


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