A hereditary trustee's disqualification under Section 35 of the Orissa Hindu Religious Endowments Act requires a careful consideration of the facts and circumstances, and disqualification for five years may not be appropriate in cases where there is no misappropriation of funds and the laches are not grave.

N. K. DAS, J.

( 1 ) APPELLANT was the recognised Mahant of Khambakul Math, P. S. Balikuda in the District of Cuttack. The Commissioner of Endowments has recommended Under Section 35 of the Orissa Hindu Religious Endowments Act to the Government for approval to disqualify the appellant from continuing as Mahant for a period of five years. The appeal is directed against that order. The charges levelled against the appellant were that he sold away 7. 08 acres of land though permission had been obtained by him to execute permanent lease-deeds in respect of the said lands; he spent money for construction of the temple without plan and estimate being sanctioned by the Commissioner, he alienated some land of the institution either by himself or by his authorised agent without permission; he also alienated some Anabadi land without permission in his own name; he wilfully and persistently defaulted in discharging his duties and also defaulted in payment of contributions. He was asked to show cause and after causes were shown, the learned Commissioner of Endowments has held that the appellant has committed breach of trust in respect of funds of the institution and there has been persistent and wilful default in payment of contribution and was thus disqualified to continue as Mahant under Clauses (c) and (f) of Section 35 of the Orissa Hindu Religious and Endowments Act.

( 2 ) A preliminary objection was taken by the counsel for the respondents that this miscellaneous appeal is not maintainable. He contended that the present appellant had filed a writ petition vide O. J. C. No. 1546/79 which was dismissed on 27-11-79 and in that writ petition he had challenged the validity of the charges levelled against him as well as the order of the Commissioner recommending to Government to disqualify him. The following order was passed by this Court in the aforesaid writ petitions

"heard Mr. Misra (1 ). Dismissed. Hearing of M. A. 158/79 be expedited. Prayer for leave to appeal Under Article 134-A (b) of the Constitution is rejected. "

The question that arises for consideration is whether the present appeal filed Under Section 35 (3) of the Orissa Hindu Religious Endowments Act, 1951 is not maintainable in view of the aforesaid order in O. J. C. No. 1546/79. Apparently, the order is not a speaking one and no reason has been assigned for the order. It also does not appear that it is an order passed on merits. In Daryao \. State of U. P. , AIR 1961 SC 1457, the Supreme Court was considering a petition made under Article 32 of the Constitution before the Supreme Court after dismissal of a petition under Article 226 by the High Court. A Bench of five Judges of the Supreme Court held that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings. If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar. If the petition is dismissed in limine, without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. In the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and