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Narayana Padhi Vs. Executive Officer, Uttarparswa Muth and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jurn. Case No. 373 of 1977
Judge
Reported inAIR1983Ori6
ActsOrissa Hindu Religious Endowments Act, 1952 - Sections 25; Constitution of India - Article 226
AppellantNarayana Padhi
RespondentExecutive Officer, Uttarparswa Muth and ors.
Appellant AdvocateR.C. Patnaik, ;P.K. Misra and ;M. Mohanty, Advs.
Respondent AdvocateS. Mohanty, ;A.S. Naidu, ;P.N. Mohapatra, ;S.K. Patnaik, Advs. and ;Addl. Govt. Adv.
DispositionPetition allowed
Cases ReferredMadurai v. Somu Transport Ltd.
Excerpt:
.....and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in fact, the consequence of such an order has been clearly indicated in subsequent decisions of the supreme court......the hands of the commissioner of endowments against the alienations. some ofthe alienees carried a writ application to this court, being o. j. c. no. 124 of 1970. this court by order dated 27th april. 1972 quashed the order of the commissioner as a result of which the proceeding under section 25 of the act revived. the petitioner's father died during the pendency of the proceeding but there was no substitution. without bringing the petitioner on record, under orders covered by annexures 2 and 3 the proceeding was again disposed of against the dead man and the alienation was vacated so far as original opposite party no. 10 is concerned. the petitioner as heir of opposite party no. 10 in the original proceeding has appllied to this court for quashing of annexures 2 and 3 so far as the.....
Judgment:

R.N. Misra, Ag. C.J.

1. The petitioner's predecessor-in-interest and certain others were transferees of endowment property belonging to the Uttar-parswa Muth at Puri. Its Executive Officer initiated a proceeding under Section 25 of the Orissa Hindu Religious Endowments Act, 1951 against the alienees. That proceeding ultimately terminated in the hands of the Commissioner of Endowments against the alienations. Some ofthe alienees carried a writ application to this Court, being O. J. C. No. 124 of 1970. This Court by order dated 27th April. 1972 quashed the order of the Commissioner as a result of which the proceeding under Section 25 of the Act revived. The petitioner's father died during the pendency of the proceeding but there was no substitution. Without bringing the petitioner on record, under orders covered by Annexures 2 and 3 the proceeding was again disposed of against the dead man and the alienation was vacated so far as original opposite party No. 10 is concerned. The petitioner as heir of opposite party No. 10 in the original proceeding has appllied to this Court for quashing of Annexures 2 and 3 so far as the interest of opposite party No. 16 which was inherited by the petitioner is concerned.

2. The Executive Officer has taken the stand that the writ application had been filed by some of the alienees. Opposite party No. 10 had not joined. Therefore, even if this Court had quashed the order of the Commissioner under Section 25 of the Act no benefit is available to the petitioner or his predecessor-in-interest. So far as opposite party No. 10 is concerned, the order of the Commissioner remained and no grievance ran, therefore, be made at this stage against the final order on the ground that there was no substitution and the petitioner had not been brought on record and afforded an opportunity of being heard before the final order was made. In support of this proposition reliance is placed on the observations of the Supreme Court in the case of Cumbum Roadways (P.) Ltd., Madurai v. Somu Transport Ltd. (AIR 1966 SC 1366).

3. It may not be irrelevant to mention here that during the pendency of the earlier writ application before this Court, aggrieved by the order of eviction under Section 25 of the Act, the petitioner's father had filed a suit and had lost. While the appeal was pending, the decision of this Court in the earlier writ application came. He, therefore, moved the appellate court for leave to withdraw the appeal as also the suit. Annexure 8 shows that such leave had been granted. Therefore, the decision of the Civil Court is no more there standing in the way of the petitioner in the matter of claiming relief.

4. Mr. Mohanty for the Commissioner of Endowments has fairly staled that the net effect of the decision of this Court in O. J. C. No. 124 of 1970 is that the order of the Commissioner as a whole was vacated and on that footing the proceeding under Section 25 of the Act was conducted by the Commissioner after remand. All the opposite parties were given a hearing and the final order under Annexure 2 related to all. The facts of the case before the Supreme Court were peculiar, and. in fact, the consequence of such an order has been clearly indicated in subsequent decisions of the Supreme Court. We are inclined to think that where a superior court intervenes, may be at the instance of one of the parties, and the net result is that the entire order is vacated without confining it to one or more of the parties, the existence of the entire order goes and it cannot be sustained for some and be treated as having been vacated for others. In that view of the matter, the Commissioner was correct in dealing with the proceeding as against all after remand, pursuant to the decision of this Court in O. J. C. No. 124 of 1970. The Executive Officer's stand that it had become final for some including opposite party No. 10 cannot, therefore, be sustained.

5. Admittedly, opposite party No. 10 was dead before the final orders were passed and there has been no substitution. Since it was a leasehold right which was in issue and the petitioner succeeded to the properties of his father, unless he was heard, the final order would not bind him. We would, therefore, accept the writ application and vacate the operation of Annexures 2 and 3 to the extent they relate to the interest of opposite party No. 10. It is expressly made clear that the final order under Annexures 2 and 3 so far as it relates to others would not be touched by our decision. The Commissioner of Endowments is directed to proceed with the case so far as the interest of the petitioner is concerned, if he is moved, in accordance with law.

6. No costs.

B.N. Misra, J.

I agree.


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