K.B. Panda, J. - (1.)THIS is an application under Articles 226 and 227 of the Constitution for quashing the order (Annexure 5) of the Commissioner of Endowments, Orissa, Bhubaneswar (opposite party No. 1) (hereinafter referred to as the Commissioner) declaring opposite party No. 2 as the hereditary trustee of the Neuladas Math, in preference to the Petitioner.
(2.)THERE is a Math called Neuladas Math belonging to Shree Sampradaya at Puri of which one Ramratan Das was the Mahant. Admittedly he died on 21 -2 -1972. As is alleged, the late Mahant was in the habit of nominating one Chela after another to succeed him. So that as it may he had executed a registered deed in favour of the Petitioner on 23 -12 -1967. Subsequent to that he had also executed a registered deed, in favour of opposite party No. 2 on 1 -9 -1971. According to the Petitioner, besides the registered deed in his favour, there was Gadinashin ceremony for him by the late Mahant in presence of other Mahants of the same cult and intimation of the same had been sent to the Commissioner as required under Section 39 of the Orissa Hindu Religious Endowments Act, 1951 (hereinafter referred to as the Act). He also alleged that Sudhi ceremony of the Mahant was performed by him. According to the Petitioner, opposite party No. 2 is an imposter who managed to obtain registered deed in his favour from the late Mahant while he was extremely old. That document being during the sickness of the late Mahant and as such not a voluntary act opposite party No. 2 acquires no right thereunder. Besides it is said that opposite party No. 2 is unfit to be the head of the Math according to the custom and usage of the institution in as much as he is a married man.
The case of opposite party No. 2 is that he was duly appointed as Chela by the late Mahant by a registered deed dated 1 -9 -1971 intimation whereof had been given to the Commissioner under Section 39 of the Act. He also stated that he was so selected after he had renounced worldly life and had become a Satsisya of the Mahant whereas the Petitioner was never so. It is also alleged that the late Mahant had cancelled the registered will in favour of the Petitioner as well as the power -of -attorney executed in his favour by notice and paper publication on 26 -8 -1966. Thus in the counter affidavit it is stated that the Petitioner had no apparent claim to be recognised as the successor of the late Mahant to the said Math.

(3.)IN view of this contest for successorship to the hereditary trusteeship of the institution, a proceeding under - Section 39 of the Act was conducted by the Commissioner before whom besides documents the Petitioner examined nine witnesses and opposite party No. 2 ten. The learned Commissioner, by the impugned order dated 16 -9 -1974, held that the late Mahant, who was in the habit of selecting Chelas and cancelling the same during his life -time, had in fact cancelled the Chelaship of the Petitioner and the power -of -attorney executed in his favour by proper notice and paper publication dated 26 -8 -1966. He also held that the legality of this action on the part of the late Mahant Cannot be decided in that summary proceeding under Section 39 of the Act. He further held thus:
In this case, when late Ramaratan Das cancelled the chelaship of the Petitioner by notice published in the daily Samaj dated 26 -8 -1966 and again nominated the opposite party as his chella -successor vide Ext. A and also sent intimation of nomination vide Ext. D to the Commissioner, the formalities as required under Section 39 having been fulfilled the Commissioner is bound to recognise the opposite party as chella -successor of late Mohant Ramarathan Das, unless he is not satisfied with the genuineness of the intimation.

Accordingly he confined the inquiry to the genuineness of the Intimation sent to him under Ext. D regarding the appointment of opposite party No. 2 as the Chela by the late Mahant. On a detailed discussion, the Commissioner held that the intimation was genuine, and hence accepted the contention of the opposite party No. 2 and recognised him as the successor of the late Mahant.