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1987 Supreme(Ori) 236
IN THE HIGH COURT OF ORISSA
L. Rath, J.
SHRI BANABIHARI DEV AND ANOTHER - APPELLANT
Versus
ASSISTANT COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS AND OTHERS - RESPONDENT
First Appeal No. 139 of 1973
Decided On : 30-04-1987
R.K. Mohapatra and B. Routray, for the Appellant; K.C. Mohanty, for the Respondent
The jurisdiction of the Assistant Commissioner under Section 41 of the Orissa Hindu Religious Endowments Act, 1951, extends to the determination of property rights relating to religious endowments.
Headnote:
ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1951 - SECTION 41 - JURISDICTION OF ASSISTANT COMMISSIONER - DETERMINATION OF PROPERTY RIGHTS - MAINTAINABILITY OF SUIT - RES JUDICATA - LIMITATION.
Fact of the Case:
Plaintiffs filed a suit seeking a declaration that the Institution of Banabihari Dev in village Biratung and Biratung Math are adjuncts or part of Mulak Choura Math and as such outside the purview of the Orissa Hindu Religious Endowments Act, 1951 (1951 Act). They also sought a declaration that the orders passed by the Assistant Commissioner, Hindu Religious Endowments, declaring the institution of Banabihari Dev with its endowments as a public temple under the 1951 Act and the Appellant No. 2 as the hereditary trustee thereof are without jurisdiction.
Finding of the Court:
1. The application made by the Plaintiff-Appellant No. 2 u/s 64 (1) of the 1939 Act claiming declaration regarding the properties of Birtung Math as outside the scope of Section 64 (1) of the 1939 Act and the order passed thereon relating to such properties was beyond the authority of the Commissioner acting under that Section. 2. Since the order u/s 64 was without jurisdiction, the findings therein would not be res judicata and consequently the civil Court would have jurisdiction to decide the suit. 3. The suit is not barred by limitation. 4. On evidence, it appears that Birtung Math and Banabihari Dev are only part of the Mulak Choura Math and hence the findings cannot be sustained.
Issues: 1. Whether the application made by the Plaintiff-Appellant No. 2 u/s 64 (1) of the 1939 Act claiming declaration regarding the properties of Birtung Math as outside the scope of Section 64 (1) of the 1939 Act and the order passed thereon relating to such properties was beyond the authority of the Commissioner acting under that Section? 2. Whether the suit is barred by limitation? 3. Whether on evidence, it appears that Birtung Math and Banabihari Dev are only part of the Mulak Choura Math and hence the findings cannot be sustained?
Ratio Decidendi: 1. Section 64 (1) of the 1939 Act did not clothe the commissioner with a power to determine the property rights either as belonging to a public religious endowment or as a private property. 2. The decision in T. K. Thiruvengadam Pillai and Anr. v. Madras Hindu Religious Endowments Board, Madras, through its President2, applies with full force to the facts of the present case since so far as the order made u/s 64 (1) in 1946 (Ext. 6) is concerned it consisted of two parts; (1) a declaration that the Mulak Choura Math is neither a math or a temple as defined under the 1939 Act and hence outside its scope, and (2) that Birtung Math is a separate and independent one though it was managed by the Mahanta of Mulak Choura math. So far as the second part is concerned it was not declared that Birtung math is a math or not or whether it is a math or temple and if a temple whether it is an excepted one. It was only found that the Birtung institution presided over the deity by Banabihari Dev Thakur has 27 acres of land which originally belonged to a Karan family and subsequently was gifted away to the Mahanta of Mulak Choura Math. The finding was reached as it appears, on an enquiry by the inspector of endowments. Such a finding was plainly outside the scope of an enquiry u/s 64 (1). 3. The application u/s 64 (1) which was pending at the commencement of the 1951 Act was to be continued before the appropriate authority under the new Act. A determination of the kind sought for in the application (Ext. D) was fully covered by Section 41 of the 1951 Act which admittedly is of much wider scope than the Section 64 and expressly provides not only for determination whether the institution is a public religious institution and is a temple or math but also inter alia whether any property or money is of a religious endowment or specific endowment. 4. The decision of the Asst. Commissioner u/s 41 had become final. 5. The suit as such is not entertainable since the jurisdiction of the civil Court to try such a suit has been expressly taken away u/s 73.
Final Decision: Appeal dismissed.
JUDGMENT :
L. Rath, J. - The Plaintiff's suit to declare the Institution of Banabihari Dev in village Biratung and Biratung Math as adjucts or part of Mulak Choura Math and as such outside the purview of Orissa Hindu Religious Endowments Act, 1951 (for short 1951. Act') and for a further declaration that the orders passed by the Assistant Commissioner.. Hindu Religious. Endowments, Orissa in O. A. Case No. 92 of 1951/52 on 24-7-1957 declaring that the institution of Banabihari Dev with its endowments is a public temple under the 1951 Act and the Appellant No. 2 as the hereditary trustee thereof are without jurisdiction and for other reliefs having failed, this appeal has been preferred.
2. The short narration of facts leading to the institution of the suit are that the Plaintiffs-Appellants had filed a petition, u/s 64 of the Orissa Hindu Religious Endowments Act, 1939 (Orissa Act 4 of 1939) for short, (the 1939 Act', claiming the, Mulak Choura Math as neither a Math nor a temple as defined in that Act and that it was a branch of the main Math situated at Chicacola in the district of Vizag ( A.P. ). This application was disposed of by the order of the Commissioner of Endowments, Orissa on 23-2-1946 (Ext. C) finding that the institution of Mulak Choura Math had been founded at Vizag more than two hundred fifty years ago during the time of emperor Aurangzeb by Sri Mulak Das Babajee a highly reputed saint and had been endowed with large properties by Aurangzeb as atonement for his conduct against innocent and holy Sadhus.
In a proceeding before the Madras High Court the claim of the Math as being a secular and charitable institution outside the jurisdiction of the Madras Hindu Religious Endowments Act had been upheld. It was found that the institution at Puri was a branch of the Parent Math of Chicacola and hence was outside scope of the 1939 Act. As regards the Birtung Math, it was however found that it had an individual existence presided over by Shri Banabihari Thakur possessing about 27 acres of land which originally belonged to a Karan family and subsequently' passed to the hands of the Mahants of Mulak Choura Math by virtue of a gift deed. The Mulak Choura Math had no properties of its own but was maintained by subvention from the Math at Chicacola and also from the Math at Birtung. The Commissioner thus found that while Mulak Choura Math is outside the scope of 1939 Act yet the institution of the Birtung Math is a separate and independent one though at present it was managed by Mulak Choura Math.
3. While matters thus continued for some time the Guru of the second Plaintiff Mahant Sri Rajaram Das filed a fresh petition u/s 64 of the 1939 Act on 29-11-1951 before the Commissioner, Endowments with the pleadings that the Mulak Choura Math had landed properties in mouza-Birtung of which it is the owner and is managed by the income from those properties and claimed the relief for declaration that the properties of Banabihari Dev belong to Mulak Choura Math which is a private institution and to which the 1939 Act does not apply. Mahant Rajaram Das having died during pending of the application, tje Plaintiff No. 2 was substituted in his place. This application was registered as O. A. Case No. 92 of 1951/52 and was contested by the villagers of Birtung. While the application was pending the Orissa Hindu Religious Endowments Act, 1951 (for short, the 1951 Act) came into force on 1-5-1955 and the application was thereafter disposed of by the Assistant Commissioner, Endowments on 24-7-1957 declaring the institution as a public temple u/s 3 (15) of the 1951 Act with the Plaintiff No. 2 as its hereditary trustee with a right to nominate his own chela. An appeal carried before the Commissioner of Endowments which having failed the Plaintiff No. 2 preferred Miscellaneous Appeal No. 136 of 1958 in this Court. The Miscellaneous Appear was disposed of on 8-7-1958 remanding the case for fresh disposal by the appellate Court. The Commissioner of
