ORISSA HIGH COURT: CUTTACK W. P.(C) NO. 22248 OF 2010 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Pratihari Nijog Annadana Bhog Committee, Bhitar Baikuntha Dham Shri Jagannath Temple, Puri. …… Petitioner -Versus- Rama Chandra Gochhikar …… Opp. Party For Petitioner : M/s. P.K.Rath, P.K.Satpathy, R.N. Parija, A.K. Rout, S.K .Pattnaik & D.P. Pattnaik. For Opp. Party : Mr. Dayananda Mohapatra. ----------------------- Decided on 05.04.2011. ----------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. DAS, J. The petitioner claiming to be a registered society under the Societies Registration Act, 1860 (for short, ‘the Act’) has filed the aforesaid writ petition challenging the order dated 17.12.2010 passed by the learned District Judge, Puri in F.A.O. No. 120 of 2010. 2. The facts involved in this writ petition in short are that the petitioner is one of the 36 Nijogs of Shree Shree Jagannath Temple, Puri, known as Pratihari Nijog Annadana Bhog Committee. The said Nijog has been registered as a society under the Act having its own bye-law to govern its management and administration. The petitioner claims that as per the bye-law, the management of the Nijog is entrusted to a committee consisting off 17 members which was duly elected by the general body on 13.12.2006. While the matter stood thus, on 15.10.2008, 9 (nine) out of the 17 members, resigned from the committee. Thereafter, three out of those nine withdrew their resignation. Therefore, the resigning members were only six in number, which did not affect the committee as per the bye-law. The petitioner has further contended that in terms of the provisions contained in the bye-law under Rule 6 , sub-rule (una), the President has the power of nominating members of the Executive Committee as against the vacant seats. Accordingly, six members were nominated by the President. The opp. party–defendant, who is stated by the petitioner to be a suspended member of the Nijog, filed an application before the Registrar of the Societies, i.e., Additional District Magistrate, Puri with a prayer to withdraw the affiliation from the Governing Body/Committee of the Nijog. The opp. party challenged the nomination of the six members to the Executive Committee by the President. The Registrar of Societies passed an order as at Annexure-5 on 25.9.2010 declaring the entire Governing Body/Committee so framed is not in consonance with 2 Rule 13 (cha) of the bye-law and is not in force from 15.10.2008 and any action taken therefrom by the Committee is void ab initio and allowing the application filed by the opp. party by issuing a direction to hold fresh general election. The petitioner challenging the said order passed by the A.D.M.-cum-Registering authority of the society has filed Civil Suit No. 526 of 2010 before the learned Civil Judge (Sr. Division), Puri. The opp. party, who is a defendant in the said suit after entering appearance, has filed a counter claim making a prayer for a decree to appoint an administrator to take charge of the management of the society to deal with the traditional Pratihari Seva of Lord Jagannath till a new committee is elected and takes charge of the management. The petitioner - plaintiff filed I.A. No. 252 of 2010 praying for an interim injunction as against the order passed by the Registrar of Societies and the opp. party – defendant filed I.A. No. 268 of 2010 seeking a mandatory injunction for appointment of an administrator as claimed in the counter claim during pendency of the suit. After hearing the parties, the learned trial court dismissed I.A. No. 252 of 2010 filed by the petitioner - plaintiff and allowed I.A. no. 268 of 2010. Challenging the order of dismissal of I.A. No. 252 of 2010, the petitioner has preferred FAO No. 121 of 2010 which is pending before the learned lower appellate court. So far as the order passed in I.A. No. 268 of 2010 3 is concerned, where the learned trial court directed both the parties to maintain status quo till fresh election is conducted by 17.12.2010, the petitioner – plaintiff challenged the said order by filing FAO No. 120 of 2010 along with an application for stay of operation of the order passed by the learned trial court. At the initial stage, by order dated 15.12.2010, the learned lower appellate court directed stay of operation of the order dated 6.10.2010 passed in I.A. No. 268 of 2010. The opp. party entered appearance in the said appeal on 16.12.2010 and filed a cross objection with a petition to dismiss the interim application for stay. The learned lower appellate court on 17.12.2010 modified the interim order of stay passed by him earlier directing that the administration of the Nijog shall be taken over by a third party for the time being for smooth management of the Nijog till the next election is held and, accordingly, directing the administrator (Niti) Shree Mandir Puri to take over the management of the said Nijog and to conduct its election by 17.1.2011 and hand over charge of the said Nijog to the elected office bearers soon-after the election. It was further directed in the said order that the members of the said Nijog shall co-operate the administrator (Niti) fully for smooth management of the Nijog and its election. The administrator (Niti) was also directed to inform the court after the election of the Nijog is over. Being aggrieved by the said 4 order, the petitioner has preferred the present writ petition for appropriate relief. 3. Mr. P.K. Rath, learned counsel appearing for the petitioner strenuously urged that the bye-law of the society is binding on the parties which specifically provided under Rule 6 that the management of the society shall vest with the working committee and the tenure of the said working committee shall remain valid till constitution of the new committee. In addition to the above, he submitted that Rule 13 (cha) of the bye-law mandates that at any point of time if there is no committee, the management shall vest with the President and Secretary of the Old committee, who will work as if the committee is in force. The responsibility of the election shall stand vested with the President of the society and the Secretary of the society shall continue to work till election of the new Secretary. He further submitted that in addition to the bye-law, the society has rules which are called Election Rules, 1994, which empowers only the President of the society to nominate an election officer who shall conduct the election. Mr. Rath, therefore, submitted that on the face of the aforesaid bye-law and the rules, the order passed by the lower appellate court being completely contrary to the same and further, having been passed without being given an opportunity of hearing to the petitioner by advancing the date, is liable to be 5 set aside. The basis of the impugned order as observed by the learned lower appellate court is the disturbance amongst the members of the Pratihari Nijog, which according to Mr. Rath is completely baseless and out-come of surmises and conjectures. He further submitted that the ad interim orders passed by the learned lower appellate court to hand over the management amounts to passing a final order allowing the counter claim of the opp. party. The said order, if allowed to stand, will have the effect of making the other appeal, i.e., FAO No. 121 of 2010 infructuous. With regard to the question of law involved, Mr. Rath submitted that the well founded proposition of law is that the final relief cannot be granted in the interim on an interim application. 4. Mr. D.Mohapatra, learned counsel appearing for the opp. party, on the contrary, submitted that the opp. party was the Secretary of the committee. In view of compelling circumstances, 9 members of the Executive Committee including the opp. party who was the Secretary along with the Joint Secretary, Assistant Secretary and Cashier resigned from the committee with effect from 15.8.2006. Nine members having resigned, as provided in Clause 13 (cha) of the bye-law, the same being more than 50% of the total members, the President could not have nominated and 6 selected a self styled Secretary to run the Executive Committee without going for election as required under the bye-law. The opp. party raised objection before the Temple Administration and subsequently before the Registering Authority, who after hearing both the parties held that the general election is appreciable. Mr. Mohapatra further submitted that the bye-law of the society annexed as Annexure-2 to the writ petition is not the registered bye-law available with the registering authority and which has been referred to in the proceedings before the courts below. The bye-law as at Annexure-2 has been brought to the notice of the opp. party for the first time in the writ petition. In gist, Mr. Mohapatra submitted that even referring to the by-law annexed, it would be seen that (i) as per Clause-6 of the bye-law, the term of the members of the Executive Committee is four years to be counted on and from the date of declaration of the election of members, (ii) the Executive Committee comprises of the members and once the term of the members expires, the Executive Committee automatically comes to an end, (iii) the Executive Body is authorized to appoint Election Officer as per provision in Clause-6 (O), (iv) any member who is subject to the rigor of Clause – 6 (Daa) shall be deprived of contesting election as provided in Clause – 6 (Raa), and (v) the power of President and Secretary is codified in the bye-law which does not specify the 7 power to appoint Election Officer. He also relied upon Clause – 13 (cha) and Clause-13 (una) and submitted that the election process as per the above clauses is to commence before 45 days of expiry of the period of the Executive Committee as referred to in Clause – 6, i.e. four years, which expired on 13.12.2010 and, accordingly, the committee spent its force and became non- existent on and from 13.12.2010. The term of the Executive Committee can be prematurely ended before expiry of the period of four years on resignation of 50% or more members and the Executive Committee can also be prematurely dissolved on receipt of the resolution by 2/3rd members of the said committee resolving to dissolve the committee. He, therefore, canvassed that in view of the above, conclusion should be drawn that in case of not holding election in contingencies as specified above, the only alternative is Clause – 13 (una) and the general body has the power to extend the period of the committee for six months in case the meeting is delayed before expiry of the term of the Executive Committee. But, however, once the tenure of the committee comes to an end and there is no scope on the part of any office bearers of the erst-while committee to take any step for election, no such steps can be taken by any of such office bearers for holding election as contended by the petitioner. Mr. Mohapatra, therefore, contended that the tenure of the Executive 8 Committee having ended on 13.12.2010 and the bye-law being silent, with regard to the steps to be taken in such circumstances, keeping in view the interest of the society, the learned District Judge appointed an independent body/person for holding election in exercise of powers conferred under section 94 read with section 151 and Order 39, Rules l and 2 C.P.C. and the impugned order does not call for any interference. He also brought to the notice of this Court the inter se rivalry and faction amongst the members of the Nijog which are tale tell on the record and from the pleadings of the parties. He drew attention of the Court to paragraphs 2 and 3 of the plaint filed by the petitioner and paragraph-10 of the written statement filed by the opp. party in support of his contention. He also relied upon the counter claim made by the opp. party as at Annexure-5 and the contentions in the interim application No. 268 of 2010 as well as the interim application filed by the petitioner. 5. This writ petition has been filed under Article 227 of the constitution. The power under Article 227 of the Constitution is a power of superintendence of this Court, which is to be exercised only in special circumstances in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The apex Court in the case of Baby v. Travancore Devaswom Board, AIR 1979 SC 519 held that in 9 spite of the revisional jurisdiction being not available to the High Court to interfere in a matter, the Court can exercise its power under Article 227 of the Constitution and quash an order passed by a court/Tribunal, if there is an apparent error or the findings of fact have been arrived at by non-consideration of the relevant and material documents. The Supreme Court in the case of Surya Dev Rai v. Ram Chander Rai, AIR 2003 SC 3044 held that a patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning and may be corrected by the High Court exercising its power under Article 227. However, such an error should be manifest and apparent on the face of the proceeding, i.e., when it is based on clear ignorance or utter disregard of the provisions of law and grave injustice or gross failure of justice has been occasioned thereby. While doing so, the High Court may not substitute its own order rather it should provide proper guidelines and issue suitable direction to the subordinate court as to the manner in which it would act or proceed thereafter or afresh. The Supreme Court, however, further held that the High Court may, in appropriate cases, itself make an order in supersession or substitution of the order of the subordinate court 10 as the court should have done it in the facts and circumstances of the case. 6. It is an admitted case that the tenure of the Executive Committee of the Nijog to which the parties belong, commenced from the date when it book charge of the management, i.e., on 13.12.2006 and as per bye-law, the same being for a period of four years, it came to an end on 12/13.12.2010. Considering the nature of dispute involved, the status of the parties, the duties cast upon the Nijog and its direct impact on the Hindu general public, who are devotees and darshanavilasees of Lord Jagannath, this Court is of the view that the dispute raised should not be dealt with like any other adversarial civil litigation, wherein parties are intending to exercise their right over the subject-matter of dispute. It has a very wide ramification as it involves the question of rendering Seva Puja to Lord Shree Jagannath at Puri, who is held in great loving adoration by the entire Hindu world. HE is not only adored but forms a part and parcel of the social, religious and cultural ethos of the people of the State of Orissa as well as the country, as a whole. Rummaging the pages of history, it would be seen that the affairs of Shree Jagannath Temple were looked after with great devotion and care by the successive Hindu ruling dynasties of Orissa for whom Shree 11 Jagannath was regarded as the family or the State deity. From the Article published in June, 2004 issue of Orissa Review written by Dr. J. Choudhury, it would be seen that in 1858 and 1863 some villages which constituted the Ekharajat Mahal were transferred to the Raja for the maintenance of the temple and all future cash payments by the Government were stopped. The Raja was also held responsible for the preservation of peace inside the temple and for maintaining such extra police as may be necessary outside the temple on the occasion of the great festivals. Raja Birakishore Deva of Puri died in 1859 and his widow Suryamani Pattamahadei was empowered by his will to manage the affairs of the temple during the minority of his adopted heir Dibyasimha Deva. During the superintendence of the dowager Ranee there was marked deterioration in the management of the temple and the temple properties. Things did not improve when Raja Dibyasingha Deva came of age also. The management of the temple was in utter confusion. This led the Government to institute a suit in 1885 for the purpose of declaring vacant the office of the Superintendent which was nominally held by the Raja for obtaining a decree to appoint new trustees for the management of the temple. This suit was hotly contested in which Utkal Gaurab Madhusudan Das, a renowned lawyer of Orissa, championed the cause of Ranee Suryamani 12 Pattamahadei. The Government finally decided to abandon the case under a deed of compromise. According to this compromise the Ranee had to engage a competent manager to manage the affairs of the temple till her grandson Mukunda Deva attained maturity. Complaints of negligence and mismanagement continued even after the Raja came of age. So a Deputy Magistrate was appointed as Manager during the life time of Mukunda Deva and on his death in 1926, the management of the temple was transferred to his successor Raja Ramachandra Deva. With the removal of senior government officers of gazetted rank from the management of the temple the administration of the temple fast deteriorated. After independence, it was felt necessary to take legislative measures to save this unique religious institution of national fame from utter confusion and ruin. While introducing the Sri Jagannath Temple (Administration) Bill in Orissa Legislative Assembly, the then Minister of Law and Home said, in the absence of any guidance from the Raja and sufficient contribution from him for the regular expenses of the Temple, the scheduled and disciplined performance of the Nitis has suffered beyond imagination and the Raja has practically lost all control over the different Sebaks and other temple servants. Specific endowments are regularly misapplied and misappropriated. For the better administration of 13 the temple and the temple properties, the Government of Orissa as a preliminary step towards undertaking a comprehensive legislation passed the Puri Sri Jagannath Temple (Administration) Act, 1952, providing for the appointment of a Special Officer to consolidate and prepare the record of rights and duties of Sebakas, Pujaris and such other persons connected with Seva, Puja and management of the temple and also to prepare record of rights of the endowments of the temple. A Special Officer of the rank of a District Judge was appointed , who submitted his report on the 15th of March, 1954, which disclosed serious mismanagement of the affairs of the Temple and in consequences Sri Jagannath Temple Act, 1954 (Orissa Act 11 of 1955) was passed. It forms the basis of the existing administrative pattern of the temple and its endowments. Section 5 of the Act states that “the administration and the Governance of the Temple and its endowments shall vest in a committee called Sri Jagannath Temple Managing Committee constituted as such by the State Government…….. It shall be a corporate body, having perpetual succession and a common seal, and by the said name, sue and be sued. Section 6 provides for the constitution of the committee with the Raja of Puri as the Chairman. No person who does not profess the Hindu religion shall be eligible for membership. The Collector of Puri district is an ex-officio member 14 and is designated as the Vice Chairman of the Committee. Sections 19 and 21 deal with the appointment, powers and functions of the Administrator of the temple who shall be the Secretary of the Committee and its Chief Executive Officer and shall subject to the control of the Committee, have powers to carry out the decisions in accordance with the provisions of the Act. The Administrator shall be responsible for the custody of all records and properties of the Temple. Raja Anangabhima Deva of the Ganga Dynasty is said to have introduced Chhatisanijoga or thirty-six categories of the attendants in the Temple of Shree Jagannath. Prior to the introduction of Chhatisanijoga, according to local traditions, there were only nine Sebakas, viz. Charu Hota, Patra Hota, Bramha Acharya, Pratihari, Puspalaka, Daitas, the washerman and the barber . In later years, the number of Nijogas in the temple increased considerably, though this organization of the Sebakas are still popularly known as Chhatisanijoga. Mr. C. Grome, the Collector of Puri, furnished a report in 1805 on the affairs of the temple of Jagannath in which he gave a list of about 250 categories of Sebakas. The record of rights prepared under Puri Sri Jagannath temple Act, 1952 gives a detailed account of the duties and the privileges enjoyed by about 150 Nijogas. The rights of the Sebaka in the temple are, in most cases, hereditary and whenever a Sebaka dies without an heir a new Sebaka of the 15 same class is appointed in his place on the payment of nominal fee. The Sebakas are given Khei or portions of the Kotha Bhoga as remuneration, some also enjoyed landed Jagirs. Mr. C. Grome also stated in his report that for negligence in duty, Sebaks were punished by stopping of their Khei, imposition of fines or in extreme cases of dismissal. When the affairs of the temple were under the immediate control and management of the Rajas of Khurda, even for slightest deviation from the prescribed duties, the Sebakas were severally punished either by imposing fine or corporal punishment, but from the time the Marathas took over the management of the temple, discipline was greatly relaxed. The unit of Chhatisanijoga is a well-knit system which is primarily responsible for carrying on the elaborate rites and rituals of the temple for centuries without any apparent interruption or break. (emphasis supplied) 7. The above Article clearly reveals the importance of maintaining discipline in the temple of Lord Jagannath at Puri and judicial notice can be taken of the fact that lakhs of people visit the temple daily in reverence to Lord Jagannath and unless proper discipline is maintained by the various Nijogs, who perform the Seva Puja of Lord Jagannath, a chaotic situation is bound to occur which is also not uncommon within the premises of the temple. Further, the settled position of law that while 16 dealing with an application under Order 39, Rules 1 and 2 C.P.C., which provides that the court hearing an application under the said provision filed by a party to the suit for an interim order of injunction of any nature, has the power to pass any order for preservation of the subject-matter of dispute till the legal rights are ascertained and also provides that the court may order grant of temporary injunction to restrain a party from committing the acts mentioned therein or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale , removal or dis-possession of property in dispute as the court thinks fit during the pendency of the suit, should be kept in view while dealing with the nature of dispute involved in this case. It is well settled that in an application under Order 39, Rules 1 and 2 C.P.C., the court has the power even to appoint a receiver with regard to the disputed property. (emphasis supplied) 8. The dispute involved in the present lis between the parties is with regard to the plaintiff holding over to the office of the Executive Committee of the Pratihari Nijog and Annadana Bhog Committee/Society. It has direct nexus with the Seva Puja of Lord Jagannath and, as enumerated above, it is directly linked with the interest of the general Hindu public.