The repeal of Chapter II-A of the Orissa Estates Abolition Act, 1951, did not debar the State Government from issuing a fresh notification of vesting in respect of declared trust estates under Chapter II-A which had been saved from vesting.

MISRA, C. J.

( 1 ) THREE persons claiming to be sevaks of the celebrated temple of Lord jagannath at Puri have filed this application under Article 226 of the constitution for a declaration that certain provisions of the Orissa Estates abolition Act are ultra vires the Constitution and are not applicable to the properties endowed in the name of the Lord and notifications in exercise of powers vested under the Act abolishing certain estates already declared as 'trust estates' under the Act and directing their vesting in the State of Orissa are incompetent. Several contentions were raised in the writ application, but mr. Das for the petitioners has focused his submissions at the hearing for a declaration that the Notification dated 18th March, 1974 (Annexure-1) issued by the State Government in purported exercise of powers conferred under section 3-A (1) of the Abolition Act is liable to be set aside. The impugned notification reads as hereunder:-

"revenue DEPARTMENT notification the 18th March. 1974 s. R. O. No. 184/74 --In exercise of the powers conferred by Subsection (1) of Section 3-A of the Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952), the State Government do hereby declare that (i) the intermediary interests of all intermediaries whose estates have been declared as trust estates under Chap. II-A of the said Act, and (ii) those in respect of which claims and references made under the said Chapter were pending on the date of commencement of the orissa Estates Abolition (Amendment) Act, 1970 (Orissa Act 33 of 1970) and (iii) the intermediary interests of all intermediaries in respect of all estates other than those which have already vested in the State have passed to and become vested in the State free from all encumbrances. (No. 13699-EA-I-ND-1/74-R.)By order of the Governor s. M. Pattnaik commissioner-cum-Secretary to government. "

The main ground of attack is that the estates of Lord Jagannath had already been declared as 'trust estates' under Chap. II-A (since repealed) of the Act and had been saved from vesting. The same cannot vest by the impugned notification because the repealing Act 33 of 1970 in terms of Section 7 (2) by way of removal of doubt declared that the State Government shall not be deemed to have been debarred from issuing fresh notification under Section 3 or 3-A vesting any estates in respect of which claims and references were made under Chapter II-A and were pending adjudication on the date of commencement of the repealing Act 33 of 1970, i. e. 7-12-1970 and the said section did not refer to powers of the State Government to issue a fresh notification of vesting in respect of declared trust estates under Chapter II-A which had been saved from vesting. There is no dispute that certain estates in respect of which the intermediary interest vested in Lord Jagannath had already been declared as trust estates in appropriate proceedings taken under Chapter ii-A of the Abolition Act. Under Section 13-I of Chapter II-A, it had been provided:-

"all estates declared under this Chapter to be trust estates by the tribunal or the High Court, as the case may be, shall be deemed to have been excluded from the operation of the vesting notification and never to have vested in the State in pursuance thereof. "

This provision was a deeming one because under the scheme in Chapter II-A after a vesting notification was made, it was open for a declaration of trust estate to be asked for and notwithstanding the fact that there was an earlier vesting notification. Section 13-1 (1) provided that upon declaration of trust estate, the same would be deemed to have never vested. Section 13-K made provision for removal of doubts and Clause (b) ran thus:--

"nothing in this Chapter shall be deemed to debar the State government from vesting any trust estate by the issue of a notification under Section 3. "

By Orissa Act 33 of 1970, Chapter II-A was repealed from the principal Act and section 7 thereof made the following pro