Akshaya Kumar Behera vs Commissioner Of Endowments
2023 Latest Caselaw 11885 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                               W.P.(C) No. 31346 of 2023

      Akshaya Kumar Behera                              ....                 Petitioner

                                          -versus-

      Commissioner of Endowments,                       ....         Opposite Parties
      BBSR and others



      Advocates appears in the case:

           For petitioner: Mr. Manmaya Kumar Dash, Advocate

           For Opp. Parties: Mr. A.K. Nath, Advocate
                             Mr. A.K. Sharma, AGA



                   CORAM:

                                 JUSTICE ARINDAM SINHA
                                 JUSTICE SANJAY KUMAR MISHRA

----------------------------------------------------------------------------------------------
                  Date of hearing and judgment: 3rd October, 2023
----------------------------------------------------------------------------------------------
ARINDAM SINHA, J.

1. Mr. Dash, learned advocate appears on behalf of petitioner and

submits, impugned is judgment dated 11th July, 2023 made by the

Commissioner in allowing the application under section 25 in Odisha

Hindu Religious Endowments Act, 1951 against his client and directing

// 2 //

the Collector to issue requisition for taking necessary steps to recover

possession. He demonstrates from the judgment that the Commissioner

purported to rely upon his client's admission of being in occupation of

the deity's land upon payment of rent till year 2020. He submits, for

purpose of adjudication under section 25, it could not be said his client

was in unauthorized occupation merely because he was defaulter. His

entry into the land was under authority.

2. Without prejudice he submits, the Tahsildar issued notice of

eviction dated 1st September, 2023. This is not permissible, as it is only

the Collector who is authorized to issue the requisition under section 25.

3. Mr. Nath, learned advocate appears on behalf of the

Commissioner and submits, petitioner did not take the box in the

proceeding let alone disclosing any document to show his claim of

authorized occupation. Impugned judgment is based on relevant

evidence including lack of it on side of petitioner. In the circumstances,

there should not be interference. On query from Court regarding whether

section 25 allowed for delegation of power by the Collector to the

Tahsildar Mr. Nath submits, the requisition ought to have been issued by

the Collector.

// 3 //

4. Mr. Sharma, learned advocate, Additional Government Advocate

appears on behalf of State. He submits, private opposite party no.4

(petitioner before the Commissioner) be noticed.

5. Impugned judgment mentions scheduled land, list of witnesses

examined by opposite party no.4, list of witnesses examined and

documents exhibited on behalf of said opposite party. There is also

mention that petitioner neither disclosed documents nor examined any

witness. In the circumstances, there was no documentary evidence before

the Commissioner, produced by petitioner, in support of assertion of

authorized occupation by paying rent up to year 2020. There was no rent

receipt disclosed.

6. We find petitioner has disclosed deposition of opposite party no.4

before the Commissioner as PW-1. We reproduce below the

cross-examination part of it.

"One Chandu Behera is also in occupation of the schedule plot no.662 of this case. Seven to Eight persons are in occupation of the lands of plot no.662 of the case. I cannot say exactly the extent of land under occupation of OP No.1 Akhaya Behera of this case. The OP No.1 Akhaya Behera is in occupation of 0.2 ½ decs. out of the schedule plot no.662. The OP No.1 had never paid rent to the petitioner Math at any point of time. No list of

// 4 //

tenants or rent received from different tenants in shape of cash and kind are being maintained in the Math. There is Property Register of the petitioner Math. It is not a fact that the OP No.1 is in possession of the schedule land as a tenant under the petitioner Math and that the OP. No.1 had tried to take away the deity from the temple forcibly and that when protested by the Supervisor he assaulted him. There is electric connection to the schedule land since 15-20 years back."

(emphasis supplied)

Mr. Dash submits, said opposite party (petitioner before the

Commissioner) could not say exactly the extent of land under the client's

possession. As such, there cannot be a decree when particulars of land

under his client's occupation could not be proved. This ground does not

appeal to us because the witness in cross-examination had also asserted

there is property register of the Math. The Commissioner in impugned

judgment clearly found petitioner had admitted to occupying the deity's

land. As such there cannot be any ground of vagueness regarding the

deity's land, found to be in unauthorized occupation of petitioner, as can

be urged in judicial review.

7. In the circumstances, we refuse to interfere with impugned

judgment. However, we set aside and quash requisition dated 1st

September, 2023 made by the Tahsildar. We make it clear that pursuant

// 5 //

to impugned judgment, requisition is to be duly issued in the prescribed

time, by the Collector.

8. The writ petition is disposed of.

(Arindam Sinha) Judge

(S.K. Mishra) Judge Sks

Signature Not Verified Digitally Signed Signed by: SISIR KUMAR SETHI Designation: PERSONAL ASSISTANT Reason: Authentication Location: ORISSA HIGH COURT Date: 03-Oct-2023 17:57:59