R.N. Misra, J. -
(1.) THE Petitioner is aggrieved by the order of the Commissioner of Hindu Religious Endowments Opp. party No. 1) dated 9 -4 -1970, made under Section 25 of the Orissa Hindu Religious Endowments Act (Orissa Act of 2 of 1952)(hereinafter referred to as the "Act") directing a requisition to be sent to the Collector of Puri for effecting delivery of possession of lands included in a lease hold granted in favour of the Petitioner by the ex. Mahant of Khaki Akhada Math, Puri. On receipt of the requisition of the Commissioner, the Collector of Puri (Opp. party No. 2) called upon the Petitioner to deliver possession of the property to opposite party No. 3, the interim trustee of the said Math. The Petitioner, therefore, has asked us to quash Annexure -4 (the order under Section 25) and Annexure -6 (the order of the Collector dated 5 -8 -1970) by issuing a writ of certiorari.
(2.) ON 25 -1 -1950, the Petitioner claims to have taken a permanent lease in respect of Ac. 1.610 of land in Kundheibenta Sahi in the town of Puri on a premium of Rs. 5,500/ - and rental of Rs. 100/ - per annum. The land is claimed to have been recorded in the Settlement Record -of -Rights as Amrutmonohi and the predecessor -in -interest of opposite party No. 3, a mahant was the marfatdar thereof. The Petitioner claims that after the lease was taken, he obtained permission from the Municipality for construction and has raised a pucca residential building on the property and has improved the land generally. But when suo motu, action was taken under Section 25 of the Act, the Petitioner came with an application under Section 19 thereof for obtaining sanction. No action was taken in the suo motu, proceedings nor was the application under Section 19 of the Act filed by the Petitioner disposed of. While both these applications were pending before the Commissioner, the opposite party No. 3 applied again under Section 25 of the Act and opp. party No. 36 of 1969 -70 was registered before the Commissioner On 9 -4 -1970, under Annexure -A the Commissioner arbitrarily held:
It has been proved on behalf of the interim Trustee -Petitioner, and not denied by the opposite party, that the land in question had been leased by the previous hereditary trustee on 25 -1 -1950 without obtaining sanction from the Commissioner as contemplated under Section 19 of the Act. No doubt, the opposite party has been paying rent for the land and seems to have improved the sites to some extent. But that would not give him any authority to retain the land, particularly when the alienation is unlawful. So, the present proceeding under Section 25 is competent.
Issue requisition to the Collector, Puri to effect delivery of possession of the lands in favour of the interim Trustee.
The Petitioner who is the lessee has asked us to quash the said order and the consequential orders both of the Commissioner as will as the Collector.
Mr. Mohapatra for the Petitioner contends that:
(1) the property in question being Amrutmonohi, THE Act has no application and the Commissioner had, therefore, no jurisdiction to make the order under Section 25 of the Act. It is contended, on the other hand, that Sri Jagannath Temple Act (Act 11 of 1955) is to apply.
(2) the Petitioner has acquired right, title and interest in the property by continuous adverse possession for more than 12 years and as such the impugned, order could not be made.
(3) the subsequent order made by the Commissioner on the application made by the Petitioner under Section 19 of the Act is also assailed as being an. order without any basis. The order is also labelled as arbitrary and clearly vitiated.
(3.) CONTENTION No. 1 : There is no dispute that the property in question has been recorded as Amrutamanohi : The Record -of -rights of the Provincial Settlement (1899) has been produced in support of the said allegation (vide Annexure -l). Reliance is also placed on the order of the Tribunal under the Orissa Estates Abolition Act dated 21 -12 -1967 (Annexure -8 A). Miscellaneous Case No. 2874 of 1967 was registered on a reference made by the Collector under Chapter II -A of the Estates Abolition Act and the Tribunal Judge recorded the following finding:
As seen from the particulars furnished by the Collector, the estate stands recorded in the name of Lord Jagannath and is managed by a Math. I am satisfied that the estate is a trust estate and hereby declare it to be so....
While the Petitioner claims that the property belongs to Lord Jagannath of puri and there was no finding in the order under Section 25 of the Act, in paragraph 5 of the counter affidavit filed by the Commissioner of Endowments in this proceeding, it has been claimed:
That although property recorded in the name of Jagannath Mohaprabhu one Ramanarayan Das has been shown to be marfatdar in the Record -of -Rights of the year 1899, In fact the presiding Deity of the Khaki Akhada Math is also Sri Jagannath Mohaprabhu. It cannot be said that Lord Jagannath of Puri is the owner of the lands or that it is the Amrutmonohi property as stated in para 3 of the writ petition.
We are not impressed with this contention in the Court affidavit. The presumption arising from the Record -of -rights about the character of the land further supported by the subsequent order of the Tribunal under the Estates Abolition Act has not been rebutted and we must, therefore, proceed on the assumption that the property is really Amrutmonohi. From the Settlement reports particularly Dalziel 's report, "Amrutmonohi"has been referred to as property of Lord Jagannath. To the same effect is the decision of the Supreme Court in the case of Mahant Sri Srinivas Ramanuj Das v. Surjanarayan Das and Anr. : A.I.R. 1967 S.C. 256. In G.C. Praharaj 's Bhasakosh, 'Amrutmonohi ' has also been referred to as the property dedicated for the seva of Lord Jagannath of Puri. We, therefore, hold that the property in dispute is Amrutmonohi of Lord Jagannath of Puri.
The next question for consideration is as to whether because the property is Amrutmonohi of Lord Jagannath, the Endowment Act or the Sri Jagannath Temple Act of 1954 (Act of 1955) (hereinafter referred to as the 'Temple Act") would apply to the property. Under Section 2(1) of the Temple Act, it has been provided thus:
The provisions of the Orissa. Hindu Religious Endowments Act; 1955 shall cease to apply toe the said temple except with respect to actions taken, things done and contributions levied and the same shall be deemed to have been validly taken, done and levied as if this Act had not been passed:
"Endowment" has been defined under Section 2(a) of the Puri Sri Jagannath Temple (Administration) Act, 1952 (hereinafter referred to as the "Administration ' Ace ') as meaning:
...all 'property ' belonging to or given or endowed for, the support of the Temple or given or endowed for the performance of any service including the service of offerings to the deity or charity connected therewith and includes the institution concerned and also the premises thereof, but does not include gifts of property made as personal gifts to the Sevak, Pujari or other employee of the Temple;
Explanation -Any gift, inam or Maufi or Shebait or Jagir, granted to a Sevak, Pujari or other employee of the Temple or to any other person for the performance of and service including the service of offerings to the deity or charity in or connected with the Temple shall not be deemed to be a personal gift to the said Sevak, Pujari or other employee but ' shall be deemed to bean endowment.
Section 3 of the Temple Act provides:
The Puri Sri Jagannath Temple (Administration) Act, 1952 shall be deemed to be a part of this Act.
The definition of 'Endowment"in the Administration Act, therefore, is applicable to the Temple Act.
Section 33 of the Temple Act provides:
(1) The Committee shall be entitled to take and be in possession of all movable and immovable properties including the Ratna Bhandar and funds and jewelleries, records, documents and other assets belonging to Temple.
(2) If in obtaining such possession, the Committee or any person authorised in this behalf of the Committee is resisted or obstructed by anyone it may make a requisition in the prescribed form to any Magistrate of the first class within whose jurisdiction any such property is situated to deliver its possession to the Committee, on receipt of the requisition the Magistrate shall hold a summary enquiry into the facts of the case and if satisfied that the resistance or obstruction was without any just cause shall comply with the said requisition; and in exercising the powers under this section the Magistrate shall be guided by the rules made under this Act.
A provision in the pattern of Section 25 of the Act has thus been made in the Temple Act.
The Petitioner 's contention is that the property in question is covered by the definition of "Endowment"in the Temple Act and, therefore, the revisions of the Act have no application In regard to such property. The impugned order of the Commissioner is, therefore, an act without jurisdiction.;