CHANDI THAKURANI BIJE Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONERS have filed this Writ Petition to quash the order Nos. 1608 (13)/142 -CC (M) dated 20.10.2004 and 1870 (2)/142 -CC (M) dated 22.12.2004 passed by learned Additional Assistant Commissioner of Endowments, Cuttack (in short, 'A.A.C.E., Cuttack') appointing non -hereditary trustees in respect of the deity Sri Chandi Thakurani -Bije -at Bakhrabad (hereinafter called as 'the deity') and directing the petitioners and others who are Marfatdars in management of the deity to hand over the complete charge of the institution and its properties, both movable and immovable, to the non -hereditary trustees.

(2.) PETITIONERS claim that they are the recorded Marfatdars of the deity and in possession of the deity's property from the time of their forefathers in lieu of performance of Sevapuja. They further state that they have filed O.A. No. 10 of 2003 before the A.A.C.E., Cuttack under Section 41 of the Orissa Hindu Religious Endowments Act, 1951 (in short 'the Act') for declaration that Sri Chandi Thakurani -Bije -at Bakhrabad is a private deity of the petitioners and the other recorded Marfatdars and the properties standing in the name of the deity are their private Debottar properties and the said institution is not a temple. In that proceeding written statement has already been filed by the Opposite Party members disputing to the claim of the petitioners. When the matter stood thus, learned A.A.C.E., Cuttack, as per orders Annexures 2 and 3, appointed Opposite Party Nos. 1 to 7 as non -hereditary trustees for a period of two years giving them the authority and liberty to manage the affairs of the deity, take charge of the movable and immovable properties of the deity and render statement of accounts, etc. to the authorities. Petitioners pray to quash the orders Annexures 2 and 3 mainly on the ground that such orders were passed without issuing the statutory notice and proclamation inviting objections and suggestions and also without making a proper enquiry. Petitioners also state that when the proceeding under Section 41 of the Act is pending and the character of the endowment is yet to be determined, whether it is a hereditary trustee or not, the A.A.C.E. could not have appointed the Opposite Parties 1 to 7 as the non -hereditary trustees.

(3.) IN their counter affidavit Opposite Parties 1 to 7 denied to the claim of the petitioners that they are the hereditary trustees and the deity is a private deity. They put forth their claim that the deity is a public deity. They also asserted that before passing of the orders Annexures 2 and 3, procedure as contemplated under Section 27 of the Act relating to publication of the notice and inviting objections, etc. were duly performed by the A.A.C.E. after an enquiry and the names of the Opposite Party Nos. 1 to 7 were recommended by him being not opposed by the general public. Mr. Srinibash Mishra -2, learned Senior Counsel appearing far Opposite Parties 1 to 7 and Mr. A.K. Rath, learned Counsel appearing for the Commissioner of Endowments, Orissa, argued on the legal issue that after the decision of this Court and the Supreme Court, as referred to above in 36 (1970) CLT 897 and : [1976]3SCR435 , the State Government made amendment of Section 8 of the Act by inserting Sub -section 2 of Section 8 and Section 8 -B; therefore, the aforesaid decision in the case of Bhramarbar Santra (supra) has become a matter of history without any enforceability. In support of such contention they relied on the cases of Bairagi Pradhan and Ors. v. The Commissioner of Hindu Religious Endowments and Ors., 1988 (I) OLR 6, Khetramohan Rout and Ors. v. Sri Sri Nageswar Mahadev and Ors., 1992 (II) OLR 330 and Dhadi Parida (and after him) Sundari Parida and Ors. v. Commissioner of Consolidation, Orissa and Ors., 1996 (I) OLR 345. The later two decisions (supra) are the decisions of the Full Bench of this Court.