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Lord Sakhi-gopinath Mohaprabhu and anr. Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 1260 of 1980
Judge
Reported inAIR1982Ori7; 52(1981)CLT455
ActsOrissa Hindu Religious Endowments Act, 1952 - Sections 19(5); Constitution of India - Article 226; Orissa Hindu Religious Endowments (Amendment) Act, 1980
AppellantLord Sakhi-gopinath Mohaprabhu and anr.
RespondentState of Orissa and anr.
Appellant AdvocateS. Misra, Adv. No. 2, ;B. Das and ;N.K. Acharya, Advs.
Respondent AdvocateAddl. Govt. Adv.
Excerpt:
.....banik, 1996 (2) glt 246, are not good law]. - section 19 of the act, prior to its amendment by orissa hindu religious endowments amendment act of 1980, clearly provided that the order of the commissioner made under that section was final subject to an appeal under sub-section (4). in view of the provision in sub-section (5), short of an appeal and an appellate order which could be made by exercising power under sub-section (4), the state government had no authority to interfere with the order of the commissioner. it the amendment had not been brought about certainly the action of the state government whs bound to be struck down as contrary to sub-section (5) of section 19. 3. it is one of the well settled principles of law that if during the pendency of a dispute power is vested in the..........rate of premium as also the other conditions under which the alienation had to be made. the state government, opposite party no. 1, entertained a suo motu revision and directed that the alienation shall not operate and steps shall not be taken to execute any document in furtherance of the order of the commissioner of endowments until the state government disposed of the revision.section 19 of the act, prior to its amendment by orissa hindu religious endowments amendment act of 1980, clearly provided that the order of the commissioner made under that section was final subject to an appeal under sub-section (4). in view of the provision in sub-section (5), short of an appeal and an appellate order which could be made by exercising power under sub-section (4), the state government.....
Judgment:

R.N. Misra, C.J.

1. A Hindu religious endowment, represented: by its trustee, seeks to challenge in this writ application under Article 226 of the Constitution the several orders passed by the State Government staying the operation of the order of the Commissioner of Endowments under Section 19 of the Orissa Hindu Religious Endowments Act II of 1952 (hereinafter referred to as the 'Act') in a purported suo motu revision.

2. The Commissioner of Endbwments. In exercise of his powers vested under Section 19 of the Act, by order dated 7-1-1980 accorded sanction for alienation of certain lands belonging to the deity. The order indicatedthe rate of premium as also the other conditions under which the alienation had to be made. The State Government, opposite party No. 1, entertained a suo motu revision and directed that the alienation shall not operate and steps shall not be taken to execute any document in furtherance of the order of the Commissioner of Endowments until the State Government disposed of the revision.

Section 19 of the Act, prior to its amendment by Orissa Hindu Religious Endowments Amendment Act of 1980, clearly provided that the order of the Commissioner made under that section was final subject to an appeal under Sub-section (4). In view of the provision in Sub-section (5), short of an appeal and an appellate order which could be made by exercising power under Sub-section (4), the State Government had no authority to interfere with the order of the Commissioner. There is no dispute that the State Government have taken power to themselves of looking into the validity and propriety of alienations sanctioned under Section 19 of the Act by amendment Act of 1980. Subsection (5) of the amending Act provides :--

'if in any case where an appeal has not been made to the State Government it appears to the State Government that the consideration fixed in respect of the transfer by exchange, sale, mortgage or lease for a term exceeding five years of any immovable property is inadequate they may, within ninety days from the date of the receipt of the order communicated to them under Sub-section (3) or the date of the publication of the order whichever date is later, call for the record of the case from the Commissioner and after giving an opportunity of hearing to the parties concerned, revise the order of the Commissioner.

XXXXXX'

The impugned interference with the order of the Commissioner in the absence of a provision prior to incorporation of Sub-section (5) with the aforesaid text into the Statute by the amending Act of 1980 ran counter to Sub-section (5) of the unamended section. It the amendment had not been brought about certainly the action of the State Government WHS bound to be struck down as contrary to Sub-section (5) of Section 19.

3. It is one of the well settled principles of law that if during the pendency of a dispute power is vested in the authority whose orders are under challenge and the authority is capable of maintaining the action in exercise of such power following its vesting, the order impugned may not be struck down as one without jurisdiction. The learned Additional Government Advocate is right in hissubmission that even if the initial action was without jurisdiction, now that a revision has been entertained, being suo motu Revision Case No. 6 of 1981, and power to entertain such a revision is available under the amended provision, we should not interfere in the entertaining of the revision. The proviso to Sub-section (5) of the amended provision authorises the State Government to exercise jurisdiction even after expiry of 90 days from the date of the impugned order in appropriate cases.

In the circumstances, while declining to interfere with the order passed by the State Government with reference to the sanction of alienation, we direct that the revision which is pending before the State Government should be disposed of by end of November. 1981 and the order to be passed therein should he communicated to the petitioner within 10 days therefrom.

4. Undoubtedly, it would be for the State Government to fix up the appropriate rate at which the alienation has to be sanctioned. Since the Commissioner in exercise of his statutory powers has come to find as to what the appropriate rate would be, it is for the State Government, in case it is of the opinion that the rate determined is low, to fix up the appropriate rate on the basis of reasonable material available to it. Keeping the guideline in view, the revisional authority must dispose of the revision entertained by it within the time indicated by us.

5. No costs.

Patnaik, J.

6. I agree.


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