Orissa High Court
Superintending Engineer vs Grievance Redressal Forum on 10 March, 2023
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 16602 of 2021
An application under Articles 226 and 227 of the Constitution of India
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Superintending Engineer, Paradeep
Electrical Circle, TPCODL,
Jagatsinghpur and Another ...... Petitioners
-versus-
Grievance Redressal Forum,
Paradeep and others ...... Opposite Parties
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For Petitioners :Mr. P.K. Sahoo, Advocate
For Opposite Party No.3 : Ms. Sumitra Mohanty, Advocate
For Opposite Party No.4 : Ms. Mamata Mishra, Advocate
For Opposite Party No.5 : Mr. Amit Kumar Nath, Advocate
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CORAM:
HONOURABLE MR. JUSTICE S. TALAPATRA
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
10th March, 2023
S. Talapatra, J By means of this writ petition, the order dated
21.12.2020 delivered in C.C. Case No.GRF/KED-II/778/2020
by the Grievance Redressal Forum (GRF, in short), Annexure-
5 to the writ petition and the order dated 06.04.2021 delivered
in Consumer Representation Case No.OM(I)-55 of 2021,
Annexure-8 to the writ petition by the Ombudsman-I OERC,
Bhubaneswar have been challenged. By the order dated
21.12.2020, the GRF has observed as follows:
"In the instant case when the complainant fulfills his
lawful occupation over the premises to which power
supply required as per Regulation 7(a) of OERC Code-
2019 then there is no further requirement of approval
from Endowment as sought by O.P. No.1. So we are
inclined to direct the O.P. No.1 to approve the estimate
forthwith without insisting any approval from Endowment.
However, as the premises occupied through the meaning
of Hereditary Trustee of Shri Baladevjew Bije Icchapur,
this forum feels it proper to direct the complainant to
execute an indemnity bond in view of Regulation 14 of
OERC Code, 2019. That apart the O.P. No.2 also directed
to supply electricity to the complainant after completion of
all formalities but not exceeding 15 days from the date of
this order."
2. The Opposite Party No.4 [the complainant] filed a
Consumer Representation Case, as referred, before the
Ombudsman-I OERC, Bhubaneswar for compliance of the
order of the GRF dated 21.12.2020, Annexure-5, to the writ
petition. By the impugned order dated 06.04.2021, Annexure-
8 to the writ petition, the said Consumer Representation Case
was disposed of with direction to enforce the order of the
GRF. It has been contended by the Petitioner that the
Ombudsman is not authorized to direct enforcement the order
of the GRF under the Electricity Act, 2003.
3. It is noticed that in terms of the delegation made by
the Odisha Electricity Regulatory Commission (OERC, in
short) by an administrative order vide the letter
No.OERC/IO/PR/TrD/04/59 dated 13.01.2006, the
Ombudsman has been authorized to redress "the grievance of
the Petitioner in such type of cases. It has been observed
therein as follows:
"Hence, the O.Ps are directed to comply with the
aforesaid order of the GRF passed on dtd.21.12.2020 in
C.C. Case No.778/2020 within a month hence, failing
which the Petitioner would be at liberty to approach the
Hon'ble OERC for necessary redressal of his grievance by
resorting the provisions of the Section 142 of the
Electricity Act 2003."
4. According to the Petitioners, the Opposite Party No.4
made an application before the Executive Engineer (Electrical)
to avail power supply for 23KW load by a three-phase electric
line under GPS category with installation of 63 KVA Sub-
Station over Plot No.896, Khata No.07, Mouza Kalabuda,
Tahasil, Garadpur under Kendrapara district. Having received
the said application, the Petitioner No.2, the Executive
Engineer (Electrical) processed the said application. While the
application was under consideration, the Petitioner No.2
received a communication from the Executive Officer, Shree
Baladevjew Endowment, Kendrapara requesting him not to
allow power supply without obtaining prior permission of the
Endowment Board or of the Addl. Asst. Commissioner of
Endowment, Cuttack. The said communication was made on
18.12.2020 by the Opposite Party No.3 in this proceeding
which has been marked as Annexure-1 in the writ petition.
The Superintending Engineer, the Petitioner No.1 while
scrutinizing the application for approval found that in the land
document it is clearly mentioned that Shree Baladevjew Bije
Ichhapur is the owner of the land. As it was found that the
Opposite Party No.4 has applied to get electricity connection
in his name without approval of the Endowment Authorities,
the Petitioner No.1 directed the Petitioner No.2 by the letter
dated 6.11.2020, Annexure-2 series to the writ petition to
obtain the approval from the appropriate Endowment
Authority and it was further directed that such approval should
be submitted in the office for further course of action.
Simultaneously, the Petitioner No.1 had made communication
to the Collector, Kendrapara for further clarification by his
letter dated 31.12.2020 as regards the power supply to the
proposed premises and requested him for issuing necessary
instructions in the matter. It was also brought to the notice of
the Collector that the Opposite Party No.4 has filed one
affidavit wherein it has been claimed that one Nabaghan Rout
has authorized him to get the power supply. The said
authorization is not apparent from the owner of the property.
The owner of the property, as recorded in the Record of Right
(ROR), is Shree Baladevjew Bije, Ichhapur.
5. In that stage, the Opposite Party No.4 approached the
GRF by filing the said complaint case on 18.11.2020 making
an allegation against the Petitioner No.1 that, he had been
harassing the Opposite Party No.4 in violation of Clause 32 of
OERC Regulation, 2019. The Petitioners having received the
notice from the GRF had appeared and contended that the land
belongs to Shree Baladev Jew, which is a juristic person and
as such, no power supply can be extended in the name of the
Opposite Party No.4 [the complainant] without approval either
from the said Endowment Board or from the Addl. Asst.
Commissioner of Endowment, Cuttack. In this regard, the
Petitioner No.1 had communicated the Petitioner No.2 for
apprising the said view to the Opposite Party No.4. By the
impugned order dated 21.12.2020, the GRF allowed the
complaint case and directed the Petitioner No.2 to supply the
electricity connection to the Opposite Party No.4 on
completion of formalities within a period not exceeding 15
days. The Petitioners were asked to submit the compliance
report before the GRF, failing which that shall be treated as
non-compliance of the order. As already stated, since the said
order was not complied by the Petitioners, the Opposite Party
No.4 approached the Ombudsman, the Opposite Party No.2 in
this proceeding for directing the Petitioners to comply the
order of the GRF. The Petitioners appeared before the
Ombudsman and placed their views that without permission
either from the Endowment Board or from the Addl. Asst.
Commissioner, Endowment, Cuttack they cannot extend the
electricity under the extant rules. Notwithstanding that legal
position, the Ombudsman directed to comply the order dated
21.12.2020 as passed by the GRF.
6. Mr. P.K. Sahoo, learned counsel appearing for the
Petitioners has contended that the Deity is a perpetual minor
and its property is being managed by the Endowment Board
constituted under Odisha Hindu Religious Endowments Act,
1951. That apart, the Opposite Party No.4 even in terms of his
own version has no direct right over the property under
reference, but according to his affidavit he has been
representing another person purported to be the son and
successor of the original hereditary trustee. When the Deity's
land is being utilized for a commercial purpose viz,
construction of Kalyan Mandap, the interest of the Deity can
best be taken care of by the Endowment Authority irrespective
of the fact whether the land is occupied by the hereditary
trustee or not. In accordance with the requirement of the rule,
the Opposite Party No.4 was asked to get approval/permission
from the Opposite Party No.3, Shree Baladevjew Endowment
Board represented by the Executive Officer. But the Opposite
Party No.4 without obtaining such permission from the said
Endowment Board filed a Consumer Complaint Case before
the GRF. In Paragraph-16 of the writ petition, the Petitioners
have crystallized their objection as follows:
"16. That the Opposite Party No.4 is not the
hereditary trustee, but he has claimed to have been
authorized by the successor of the original hereditary
trustee, but he has applied to get electric connection in
this name for commercial purpose. Since these facts are
disputed and the occupancy/possession of the land of the
Deity is disputed, it was in the interest of the Deity to take
approval from the Addl. Asst. Commissioner of
Endowment, Cuttack under which the management of the
Deity is being done, hence, the impugned order is illegal
and liable to be set aside."
Mr. Sahoo, learned counsel has further stated that the
Opposite Party No.3 had serious raised objection in the matter
of extending the electricity line in the name of the Opposite
Party No.4. In this perspective, the GRF's direction to extend
the electricity line on filing of an Indemnity Bond as provided
under Regulation 14 of the OERC, Code, 2019 is
unsustainable, in as much as that Regulation is in respect of a
domestic consumer. But, when the occupancy of the land is in
serious dispute, it is not expected that the connection would be
provided in the name of the Opposite Party No.4. In the case
in hand, surprisingly, the applicant is a third party who has
applied for getting 23 KW three-phase commercial
connection. The applicant is not the occupier, as he himself
has claimed to be an authorized person of the successor of the
original hereditary trustee. Neither for the occupancy nor for
the electricity line to the premises, as described before, the
management or Endowment Board has accorded any consent
or approval. The ROR relating to the land in question has been
submitted before the GRF by the Opposite Party No.4. It is
evident from the ROR that the land has been recorded in the
name of the Deity and the recorded Marfatdar are Braja
Sundar Rout and Nabaghana Rout in the joint status. There is
no paper that Nabaghana Rout had consented for drawing the
electricity line on the land of the Deity. According to Mr.
Sahoo, learned counsel, under Section 41 of the Odisha Hindu
Religious Endowments Act, 1951, a person claiming any
hereditary right over the property of the Deity must have the
approval or declaration from the Trust Board as constituted by
the Endowment Authority under the said Act. Mr. Sahoo,
learned counsel has also pointed out that the Ombudsman does
not have any authority to execute the order of the GRF.
7. Before we proceed to refer the contention of the
Opposite Parties, it would be beneficial to reproduce the
provision of Regulation 14 of Odisha Electricity Regulatory
Commission Distribution (Conditions of Supply) Code, 2019.
The said Regulation reads as follows:
"14. An applicant, who is not the owner of the
premises occupied by him, shall execute an indemnity
bond, indemnifying the licensee/supplier against any
damages payable on account of any dispute arising out of
supply of power to the premises."
8. The Opposite Parties No.3 and 4 have filed their
respective counter affidavits. We would first like to deal with
the contention of the Opposite Party No.4 for obvious reasons
as he is claiming his right over the said land. In the counter
affidavit filed by the Opposite Party No.4 it has been admitted
that, the real owner of the property is Shree Baladevjew Bije,
Ichhapur and its name has been recorded in the ROR. But, it
has been contended that the Deity is represented by the
Marfatdars, namely, Brajasundar Rout and Nabaghana Rout,
both are the sons of Arjun Charan Rout. According to the
Opposite Party No.4, the other averments are matters relating
to the records. In response to Paragraph-14 of the writ petition,
it has been asserted by the Opposite Party No.4 that it is not
true, that the land is being utilized for commercial purpose by
construction of a Kalyan Mandap or that the interest of the
Deity can best be taken care of by the Endowment Authority,
irrespective of the fact whether the land is occupied by the
hereditary trustee or not. It has been categorically denied that
there is any requirement to take approval from the Addl. Asst.
Commissioner of Endowment, Cuttack under which the
management of the Deity is being done. The interpretation of
Regulation 14 of Odisha Electricity Regulatory Commission
Distribution (Conditions of Supply) Code, 2019, as referred
before, has been seriously contested by the Opposite Party
No.4. It has been also denied that the Opposite Party No.4 is a
third party and not the occupier and only claiming to be an
authorized person of the successor of the original hereditary
trustee and that it is highly illegal to ask the Opposite Party
No.4 to obtain the approval or permission either from the
Trust Board or from the Addl. Asst. Commissioner of
Endowment, Cuttack for getting the electricity line over the
said land. It has been contended that authorisation from the
son of Brajasundar Rout is not sufficient to have the electricity
connection over the land in question. It has been strongly
denied that the Opposite Party No.4 is a third party and he
does not have any right to apply for the electricity connection
under unauthorisation. But, what is evident is that the fact of
authorisation has not been challenged. According to the
Opposite Party No.4, as his ancestors viz, father and uncle are
the hereditary trustees, so the Opposite Party No.4 himself is
one of the trustees having inherited that status. He had
submitted all the required documents to avail 23 KW load
three-phase GPS category line with instalation of 63 KVA
Sub-station over the said property. The Opposite Party No.4
has asserted that, he is the son of late Brajasundar Rout and
the nephew of Nabaghana Rout (alive) [the recorded
Marfatdars]. A copy of the formatted application had been
filed. The said application is available at Annexure-A/4 to the
counter affidavit filed by the Opposite Party No.4, wherefrom
it is evident that the Opposite Party No.4 has claimed to be the
son of Brajasundar Rout. The Opposite Party No.4 has
categorically stated that the other Marfatdar has by filing an
affidavit given his no-objection to take the electricity against
the scheduled land. The no objection has been given also by
the concerned persons. Thereafter, the survey had carried out
in respect of the questioned land and the surveyor has
prepared a map, Annexure-E/4 to the counter affidavit filed by
the Opposite Party No.4. The Opposite Party No.4 has also
contended that, he has deposited the charges to the extent of
Rs.1800/- for having the said electricity connection. It has
been asserted that without any sanction of law, the Petitioner
No.2 had asked the Opposite Party No.4 to take permission
from the Endowment Board, which according to the Opposite
Party No.4, is not at all necessary. From the ROR, it is evident
that the father of the Opposite Party No.4 and his uncle are the
hereditary trustees. According to the Opposite Party No.4, the
Kalyan Mandap is made to increase the financial capacity of
the Deity. According to Clause 7 of the OERC Code, 2004
and Clause 14 of the OERC Code, 2019 there is no need for
approval from the Endowment Board when the Marfatdars are
the occupiers for 102 years or more. The Petitioners,
according to the Opposite Party No.4, did not comply with the
order of the GRF, even not with the order of the Ombudsman.
According to the Opposite Party No.4, the Petitioners are
bound to supply the electricity to his premises, as Regulation
32 of the OERC Code, 2019 provides as follows:
"32. Every Distribution Licensee/supplier shall, on
receipt of an application from the owner or occupier of
any premises give supply of electricity to the premises
within the time stipulated in Regulation 33, subject to the
payment of fees, charges and security and the due
fulfilment of other conditions to be satisfied by such owner
or occupier of the premises."
Thus, the entire action which had been challenged by the
Opposite Party No.4 before the GRF was grossly illegal and in
contrast to the prospective consumer's right. There is no
prohibition that the hereditary trustee cannot claim such
facility being the assigns of the Deity.
9. Ms. M. Mishra, learned counsel appearing for the
Opposite Party No.4 has quite emphatically submitted that the
Petitioners did not have any business nor any obligation to ask
the Collector of the district to make an inquiry over the issues
as noted before. As the entire action is illegal, such action
cannot get affirmation from this Court. She has urged that the
Petitioners be directed to extend the electricity line and to set
up the 63KVA Transformer as per the application of the
Opposite Party No.4 within a period, as would be stipulated by
this Court.
10. The Opposite Party No.3, the Executive Officer,
Shree Baladevjew Endowment Board Kendrapara has filed a
separate counter affidavit and contended that the management
of the Deity, namely, Shree Baladevjew is controlled
absolutely by the Trust Board. It has been stated by the
Opposite Party No.3 that Marfatdars, namely, Brajasundar
Rout and Nabaghana Rout had not separated their interest as
inherited. The Opposite Party No.4 claims to be son of
Brajasundar Rout. He has filed one application before the
Tahasildar, Garadpur being OLR Case No.14/2018 for
changing Kisam of the land from agricultural to homestead. It
is settled principle of law that Marfatdar has no right to file
any petition in any Court without impleading the Deity as a
party. The Deity is a perpetual minor and as per Section 19 of
the Odisha Hindu Religious Endowments Act, 1951, the
Opposite Party No.4 cannot take any action in respect of the
land or any properties of the Deity unless the permission or
the No Objection Certificate is obtained from the Endowment
Commissioner. It has been also contended that the other
Marfatdar has not been impleaded as the party in the said
proceeding. Tahasildar by the order dated 29.08.2018 changed
the Kisam of the land to homestead behind the back of the
Opposite Party No.3. According to the Opposite Party No.3,
without knowledge of the Deity, the Opposite Party No.4 has
illegally constructed a building over the Deity's land. After the
said illegal construction, he had applied for a new electricity
connection to the said premises to use the said building
commercially as a Mandap. The order of conversion came to
the knowledge of the Opposite Party No.3 only when the
Opposite Party No.4 had applied for a new electricity
connection before the Petitioners. Immediately thereafter, the
Deity filed objection on 18.12.2020 and also filed OLR
Appeal No.17/2021 in the Court of the Sub-Collector,
Kendrapara challenging the order of the Tahasildar converting
the land to homestead. Based on the objection raised by the
Opposite Party No.3 before the Petitioners, they have rightly
denied to grant the electricity connection, unless the
permission from the owner i.e. the Deity is obtained. The
Opposite Party No.3 has also filed the intervention petition in
OLR Appeal No.17/2021. It has been further asserted that the
Opposite Party No.4 has constructed the said 'Mandap' for his
own benefit, not for the benefit of the Deity, as claimed. It has
been further asserted that Nitikanti of Deity is purely
dependent on the usufructs of the agricultural land. If the
electricity line is provided to the said 'Mandap' which has
been constructed on the land without permission of the Trust
Board or the authorized person, it will create such right which
cannot be legally granted. As such, the action of the
petitioners cannot be questioned on the touch stone of law.
11. Ms. S. Mohanty, learned counsel having appeared for
the Opposite Party No.3 has submitted that Shree Baladevjew
is a public Deity and its affairs are managed under Odisha
Hindu Religious Endowments Act, 1951. It has its own Trust
Board which looks after the management of the Deity. The
Deity is the real owner of the land in question. In the ROR,
names of Brajasundar Rout, the father of the Opposite Party
No.4 and Nabaghana Rout have been recorded as Marfatdars
and Kisam of the disputed land as "sarad-2" have been
entered. One of the Marfatdars, Brajasundar Rout is no more.
In the year 2018, the Opposite Party No.4 claiming to be the
son of the said Marfatdars filed one application being OLR
Case No.14/2014 before the Tahasildar Garadpur for changing
Kisam of the land from agricultural to homestead. It is the
settled principle of law that the Marfatdars do not have any
right to file any petition in any Court without impleading the
Deity as the party. The Deity is a perpetual minor and as per
Section 19 of the Odisha Hindu Religious Endowments Act,
1951, the Opposite Party No.4 should have taken permission
or No Objection Certificate (NOC) from the Endowment
Commissioner before filing the application for changing
Kisam of the land belonging to the Deity. It has been further
stated by the Opposite Party No.2 that the Opposite Party No.4
did not obtain any permission from the Endowment
Commissioner nor from the Trust Board formed by the State
Government. Moreover, the other Marfatdar has not been
impleaded as party to the said proceeding. Ultimately, the
Tahasildar by the order dated 29.08.2018 changed the Kisam
of the land to homestead behind the back of the Opposite
Party No.3. It has been further claimed by the Opposite Party
No.3 that without knowledge of the Deity, a building over the
Deity's land has been illegally constructed. After the
construction was over, the Opposite Party No.4 applied for a
new electricity connection to the said premises to use the said
building commercially as a 'Mandap'. As stated before, the
order of the conversion came to the knowledge of the
Opposite Party No.3 only when the Opposite Party No.4 had
applied for a new electricity connection before the Petitioners.
The Deity filed the objection on 18.12.2020 claiming that the
new electricity connection should not be given to the Opposite
Party No.4, in as much as, the Opposite Party No.3 will not
permit the property belonging to the Deity to squander away
by illegal means. The order of conversion of the Tahasildar
has been challenged by filing an appeal to the Sub-Collector,
Kendrapara being OLR Appeal No.17/2021. The Opposite
Party No.3 has further stated that the rejection is the right
course in law. If the new electricity connection is extended to
the Mandap for commercial purpose, it will affect the Deity in
the multiple ways.
Section 19 of the Odisha Hindu Religious
Endowments Act, 1951 provides that, "notwithstanding
anything contained in any law for the time being in force no
transfer be it exchange, sale or mortgage and lease for a term
exceeding five years of any immovable property belonging to,
or given or endowed for the purpose of, any Religious
institution, shall be made unless it is sanctioned and no such
transfer shall be valid or operative unless it is so sanctioned".
12. Even though the said provision of law has been
referred by Ms. Mohanty, learned counsel appearing for the
Opposite Party No.3, but there is not even ostentatious transfer
involved in the present controversy.
13. The question whether the Marfatdar has any right to
take decision regarding the properties, including the transfer
has been well settled in Sairendri Devi & Ors. V. Kamuna @
Kamrunisha & Ors.:2018 (II) OLR 850: 2018 AIR CC 1551
(Ori.). It was held in Sairendri Devi that since there was no
evidence on record that the Commissioner of Endowment
accorded permission for sale of the land, the so-called
alienation by the person styling herself as the Marfatdar shall
not be valid or operative. The Marfatdar can have no title over
the properties of Deity.
14. The Opposite Party No.4, in the case in hand, has
claimed that he is the hereditary trustee through one
Brajasundar Rout since deceased. The status of Brajasundar
Rout and Nabaghana Rout as Marfatdars have not been
questioned. Nabaghana Rout has authorized the Opposite
Party No.4 to take new electricity connection in respect of the
land as referred before. The Opposite Party No.4 has taken No
Objection Certificate (NOC) from the Sarapanch of Kalabuda
Gram Panchayat also, even though the same may be essential
for determination of death and hereditary rights. Moreover,
subject to the decision of the appeal, the said land stands in the
ROR in the name of two Marfatdars. It is also not the case of
the Petitioners that, except those two hereditary trustees, there
are other hereditary trustees in respect of the land in question.
Section 39 of the Odisha Hindu Religious Endowments Act,
1951 provides that "when the hereditary trustee of a Math
nominates his successor he shall give intimation in writing to
the Commissioner. Subsequent changes in the nomination may
also be intimated within three months of the nomination. For
purpose of succession, the last nominee so intimated shall be
recognised by the Commissioner. If no appointment is made
during life-time of the trustee, the Commissioner shall have
full power to appoint an Executive Officer and the trust shall
be brought under the direct control of the Commissioner and
shall be treated as an institution under Chapter VII. In making
this appointment, the Commissioner shall have due regard to
the custom and usage and tenets of the Math. Any person
aggrieved by the decision may within ninety days from the
date of the decision institute a suit in a competent Court of law
to establish his right to the Office of the hereditary Trustee but
pending the result of such suit, if any, the order of the
Commissioner shall be final."
15. The Opposite Party No.4 did not claim that he was
nominated by the Marfatdar, Brajasundar Rout. We are also
alive of the provision contained in Section 28 of the Odisha
Hindu Religious Endowments Act, 1951, which provides that,
the power to the Commissioner to suspend, remove or dismiss
hereditary trustee when sudden misconduct as provided under
the said Section is approved. There is no dispute that property
in question is being managed in terms of the Odisha Hindu
Religious Endowments Act, 1951.
16. Section 3 (XII) of the Odisha Hindu Religious
Endowments Act, 1951 has defined the Religious
Endowments. While explaining it has been clearly provided
under Explanation II that, "any property which belonged to or
was given or endowed for the support of a religious
institution, or which was given or endowed for the
performance of any service or charity of a public nature
connected therewith or of any other religious charity shall be
deemed to be a "religious endowment" or "endowment"
within the meaning of this definition, notwithstanding that,
before or after the commencement of this Act, the religious
institution has ceased to exist or ceased to be used as a place
of religious worship or inspection, or the service or charity
has ceased to be performed." But the definition as provided
under Section 3 (xii) has brought all the properties belonging
to or given or endowed for the support of maths or temples or
given or endowed for the performance of any service or
charity connected therewith or of any other religious charity
and includes the institution concerned and the premises
thereof and also all properties used for the purposes or benefit
of the institution and includes all properties acquired from the
income of the endowed property. Therefore, there is no
separate existence of any property which can be alienated by
the Marfatdar. Hereditary trustee has been defined under
Section 3 (vi) of the Odisha Hindu Religious Endowments
Act, 1951 as the trustee of a religious institution, succession to
whose Office devolves by hereditary right since the time of
the founder or is regulated by custom or is specifically
provided for by the founder, so long as such scheme of
succession is in force. As such, after a Hindu Religious
institution, math, temple or any other institution is brought
under the Odisha Hindu Religious Endowments Act, 1951, the
hereditary trustee cannot take decision even though the
hereditary right may continue subject to the provision of the
Odisha Hindu Religious Endowments Act, 1951. Even, if the
status of the father of the Opposite Party No.4 as the
Marfatdar is not questioned, but, when Shree Baladevjew Bije,
Ichhapur has come under purview of the Odisha Hindu
Religious Endowments Act, 1951, the Marfatdar/s cannot take
any decision without the permission of the Trust Board or the
Commissioner of the Hindu Endowment. As we have already
discussed, Section 39 of the Odisha Hindu Religious
Endowments Act, 1951 has provided how succession of the
hereditary trustee may operate. No mode, save and except the
said mode as provided under Section 39 of the Odisha Hindu
Religious Endowments Act, 1951 shall be valid. If there was
no nomination, the Commissioner may take the appropriate
decision, even by appointing an Executive Officer.
Ms. Mohanty, learned counsel has in the final lap of
her submission drawn our attention to Rule 66 of the Odisha
Hindu Religious Endowments Rules, 1959, which provides
that, for the improvement and increase in the income of an
institution, the trustee, with the previous permission of the
Commissioner, may construct rented houses inside the
premises of the institution or a temple, provided such
construction does not in any way obstruct or inconvenience
the free entrance of the public into the temple or in any way
affect the decorum of the institution or temple. Rule 65 of the
said Rules requires the trustee of a religion institution to take
the prior consent as regards any construction over the Trust
properties and it has been clearly provided that no
construction or alteration etc, shall be undertaken without
obtaining the previous sanction in writing from the
Commissioner. Ms. Mohanty, learned counsel has submitted
that the construction that has come up is illegal and
unauthorised for non-compliance of Rules 65 and 66 of the
Odisha Hindu Religious Endowments Rules, 1959. Extension
of electricity connection to such illegal construction would be
against the land and the public interest and that also will
adversely affect the interest of the Deity, a perpetual minor
guided by the Endowment Trust or the Endowment
Commissioner.
17. In a series of decisions this High Court has
recognized the power of the Commissioner in determining the
succession of the hereditary trustee in absence of any
nomination. In Ramaballav Das v. Dhyan Chandra Das:
2006 (Supp.-II) OLR 357, this High Court has unequivocally
laid down that the reigning Mahant has to make a nomination
of his successor and give intimation of such nomination to the
Commissioner and on being satisfied about the genuineness of
the nomination, the Commissioner has to accept such
nomination and recognize the nominee. The Commissioner
has power to make an inquiry into genuineness of the
intimation only and in doing so, he may verify the authenticity
of the nomination from the Mahant himself and in case, the
Mahant is dead or is not available then by taking independent
evidence. But without nomination, interest of the hereditary
trustee cannot devolve to his legal heir or the natural
successor. The Opposite Party No.4 did not place any such
document. The GRF has decided the occupation of the
Opposite Party No.4 on Plot No.896 in Khata No.07 of
Mouza-Kalabuda measuring 0.72 dec. and has observed that
under Section 43(1) of the Electricity Act, 2003, the Opposite
Party No.4 has right to get the electricity connection. The
word 'occupier' as appearing in Section 43(1) has not been
defined in the Electricity Act, 2003. But, in the Odisha
Electricity Regulatory Commission Distribution (Conditions
of Supply) Code, 2019, the said word has been defined as the
person in occupation of the premises. But, Regulation 7 (f) of
the Odisha Electricity Regulatory Commission Distribution
(Conditions of Supply) Code, 2019 provides that an applicant,
who is not an owner, but an occupier of the premises shall,
along with any one of the documents required to be filed, also
furnish a No Objection Certificate from the owner of the
premises. In the case in hand, it cannot be disputed that owner
of the properties is the Deity managed by a Trust under the
Odisha Hindu Religious Endowments Act, 1951. It has been
categorically stated by the Petitioners that, the distribution
licensee has received no such NOC from the Opposite Party
No.4 or from the Trust Board or from the Endowment
Commissioner.
18. In Abhimanyu Das v. Assistant General Manager
(Electrical) (judgment dated 20.07.2018 delivered in W.P.(C)
No.7340 of 2016) this Court had occasion to observe inter alia
as under:
"According to the considered view of this court, since
as per the provision as referred herein above, the consent
of the lawful owner is required to be given for getting
electricity connection and in its absence it cannot be
provided, admittedly in this case the lawful owner has not
given consent, hence the reason expressed by the licensee
in not providing the electricity connection cannot be said
to be unjust and improper."
In absence of such consent of the owner of the property, the
indemnity bond cannot be made the substitute, in as much as
such practice is not recognized by law. That apart, we have
seen how the hereditary right in absence of any nomination
can only be determined by the Commissioner. As such, the
order dated 21.12.2020 passed by the GRF in C.C. Case
No.GRF/KED-II/778/2020, Annexure-5 to the writ petition
and the subsequent order dated 06.04.2021 passed by the
Ombudsman-I in C.R. Case No.OM(I) 55 of 2021, Annexure-
8 to the writ petition are liable to be set aside. It is ordered
accordingly.
19. The Opposite Party No.4 may seek the permission or
no objection from the Commissioner or the Trust Board for
the said electricity connection. If the Trust Board or the
Commissioner of Endowment, permits the Opposite Party
No.4 on due consideration to have the electricity connection,
as prayed, as the occupier of the premises, the Petitioners shall
be under legal obligation to provide the electricity connection
to the Opposite Party No.4 subject to compliance of the other
requirement, as prescribed by law.
20. In the result, this writ petition stands allowed.
However, in the circumstances, there shall be no order as to
costs.
...............................
(S. Talapatra, J)
[
. I agree.
...............................
(Savitri Ratho, J)
Orissa High Court, Cuttack.
The 10th day of March, 2023.
L. Murmu, Senior Stenographer.
