JUDGMENT
R.N. Biswal, J.
1. The case of the petitioner, as per his pleading is that there is no any Naga Math @ Radhakrushna Jew and Laxmi Narayan Jew in village Raitundi. in the record of rights of the year 1930 late Harekrishna Giri Goswami, his Guru was recorded as intermediary in respect of Ac.21.13 decs, of land appertaining to Sabik Khata No. 168 situated in village Raitundi. After vesting of the Estate in 1963 the homestead land of his Guru was only settled in his name since the former had already expired by then. In the, finally published record of rights under the provision of the Consolidation Act dated 24.4.1988 Ac.11.322 decs. Of land was recorded in the name of petitioner as per Annexure-1 in respect of which he has been paying rent. Opp. Party No. 2 and some local unemployed youths forming an unholy union demanded illegal “Chanda” from time to time from the petitioner and when he refused to give the same, Opp. Party Nos. 2, 3, 6 and 7 filed Title Suit No. 26 of 1994 in the Court of Sub-Judge, Kendrapara to restrain him from alienating his property. A Misc. case filed therein to temporarily injunct the petitioner from alienating any property was dismissed for default on 19.6.1995. Again the father of Opp. Party No. 7 and two others filed another suit bearing Title Suit No. 5 of 1995 in the Court of Munsif, Kendrapara with similar prayer.
2. In the meantime, Opp. Party Nos. 2 to 8 filed a proceeding under Section 42 of the Orissa Hindu Religious Endowments Act (hereinafter referred to as “the Act”) before the Deputy Commissioner of Endowment in O.A. No. 6 of 1994 for settlement of a scheme for proper administration of the Naga Math @ Radha Krishna Jew and Laxmi Narayan Jew at Raitundi. A report was called for from the Addl. Asst. Commissioner of Endowments, Cuttack. Accordingly, he submitted his report clearly stating that the petitioner claimed the land and house in question as his personal property and that there was no any document to show that the said land and house belonged either to a Math or Temple. In spite of pendency of the proceeding in O.A. No, 6 of 1994 the Commissioner of Endowments (Opp. Party No. 1) at the instance of the then local M.L.A. and on the basis of a report of Addl. Asst. Commissioner appointed Opp. Party Nos. 2 to 8 as interim trustee under Section 7 of the Act behind the back of the petitioner on 4.11.1995 as per Annexure-5. On 24.11.1995, he approved Opp. Party No. 2 as Managing Trustee as per Annexure-6 on the strength of which Opp. Party No. 2 issued notice to the petitioner to hand over all his movable and immovable properties within seven days from the date of receipt of the said notice dated 29.11.1995 as per Annexure-7. On receipt of Annexure-7 petitioner filed objection before Opp. Party No. 1 (Endowment Commissioner) stating inter alia that when the Deputy Commissioner in the pending proceeding under Section 42 of the Act is conferred with jurisdiction to pass interim orders, an administrative order under Section 7 is wholly arbitrary and without jurisdiction. On 5.12.1995 petitioner filed O.J.C. No. 8790 of 1995 before this Court taking the same stand as taken before Opp. Party No. 1. The Court directed the petitioner to file a petition before Opp. Party No. 1 for recalling the order dated 4.11.1995. Accordingly, he filed a fresh petition before him to recall the order dated 4.11.1995. But Opp. Party No. 1 rejected the same on 8.8.1996 as per order, Annexure-10. According to the petitioner this order is not a reasoned one and even though he applied for a certified copy of the said order it was not granted on the ground that the order was passed in Management file. Again on 23.8.1996 petitioner filed a petition before Opp. Party No. 1 as per Annexure-11 with a prayer not to take coercive action against him under Sections 7 and 12 of the Act without granting him reasonable time to move this Court. In spite of it, Opp. Party No. 1 passed Order on 3.9.1996 purporting to be under Sections 7 and 12 of the Act authorising the Inspector of Endowment, Kendrapara to enter into the premises, make inventory of the properties and records and hand over the same to Opp. Party No. 2 within 15 days. Annexure-12 is said to be the true copy of it. On the basis of Annexure-12, Opp. Party Nos. 2 to 8 with the help of police and Inspector of Endowment forcibly ousted the petitioner from his house on 11.9.1996. Under such premises, the petitioner filed this case to quash the orders passed in Annexures-5, 10 and 12.
3. The impugned order passed as per Annexure-5 was effective only for one year. So it lost its force by 4.11.1996. Consequently, the orders passed under Annexures-10 and 12 are rendered infructuous. However for academic interest the following order is passed.
4. Learned Counsel for the petitioner submitted that Section 7 being subject to Section 42(5) of the Act the order dated 4.11.1995 of Opp. Party No. 1 a copy of which is Annexure-5 and the subsequent orders thereto are illegal. Section 7 of the Act reads as follows :
“Powers and duties of Commissioner : (1) Subject to the provisions of this Act, the general superintendence of all religious institutions and endowments shall vest in the Commissioner.
(2) The Commissioner may do all things, which are reasonable and necessary to ensure that the religious institutions and endowments are properly administered and that their income is duly appropriated for the purpose, which they were founded or exist.
Explanation : The Commissioner shall have power to pass such interim orders as he deems necessary for the proper maintenance of a religious institution, or the proper administration of a religious endowment including the power to pass such orders if and when necessary for the proper management of any institution when a dispute concerning the same is pending in a Court.”
“Subject to the provisions of this Act” implies that the Commissioner may exercise the power in regard to matters not provided in this Act. But Section 42(5) of the said Act provides that the Deputy Commissioner or Asst. Commissioner as the case may be, may pending the framing of scheme for a temple or a specific endowment discharge all or any of the functions of the trustee thereof. There is no denying of the fact that O.A. No. 6 of 1994 was pending before the Deputy Commissioner of Endowment to frame a scheme with regard to the management under Section 42 of the Act. When the Deputy Commissioner was in session of the matter and a report in connection with it had already been submitted by the Asst. Commissioner, Opp. Party No. 1 ought not have passed the order, Annexure-5.
5. Again even though the order, Annexure-5 was an administrative order still then when the petitioner was said to be in possession of the disputed property, the said impugned order should not have been passed behind his back and without giving him an opportunity of hearing and that is how, the principle of natural justice was violated.
6. Learned Counsel appearing for the opp. parties submitted that if the impugned order (Annexure-5) is beyond the scope of Section 7 of the Act there is no bar to treat the said order to have been passed under Section 8-B of the Act. After insertion of this provision to the Act, because of the non-obstante clause contained therein the Commissioner or any other authority as mentioned there in can pass any order despite similar provision contained in the Act. But in our view the authority must prima facie be satisfied that the institution is a religious institution within the meaning of the Act by conducting a summary enquiry before passing any order under Section 8-B(1). In the present case, as it appears, no such enquiry was made by Opp. Party No. 1 to be prima facie satisfied that the disputed properties are part of a Math or any religious institution. Learned Counsel for the opp. parties submitted that in Sub-section (2) of Section 8-B of the Act there is provision for raising dispute challenging that the institution is not a religious institution. So the authorities under Section 8-B are not required to be prima facie satisfied that the institution is a religious institution. But in our view despite of the provision contained under Sub-section (2) of Section 8-B of the Act before taking any action under Section 8-B(1) the authorities mentioned therein are to be prima facie satisfied that the institution in question is a religious institution. In the case at hand before passing the impugned order, Annexure-5 the Opp. Party No. 1 has not given any such finding thereon. Moreover, as mentioned earlier, he did not provide an opportunity of hearing to the petitioner even though he was in possession of the property. We find that on merit, the order, Annexure-5 was very much assailable.
In the result, even if the order, Annexure-5 and the subsequent orders, Annexures-10 and 12 have lost their force due to afflux of time, but for the reasons resolved herein above, we find such orders to be illegal. With the said finding and observation, we dispose of the Writ Petition since it has become infructous. Parties shall be regulated by the decision of competent authorities in the above noted other proceedings.
P.K. Tripathy, J.
7. I agree.
