M.M.DAS, J. W.P.(C ) NO.11915 OF 2011 (Decided on 05.08.2011) RAJ GOPAL RAMANUJA DAS ………Petitioner. Vrs. COMMISSIONER OF ENDOWMENTS ORISSA & ORS. ……...Opp.Parties. ORISSA HINDU RELIGIOUS ENDOWMENTS ACT, 1951 (ACT NO.11 OF 1952) – S. 7 & 35(2). For Petitioner - M/s. Bikram Pratap Das, S.Rath & S.K.Mishra. For Opp.Parties - Dr. A.K.Rath (for O.P.1) M/s. M.K.Mishra, P.K.Das & S.Senapati (for O.P.6) [ M. M. DAS, J. Exercise of jurisdiction under Section 7 of the Orissa Hindu Religious & Endowments Act, 1954 (hereinafter referred to as ‘the Act’) by the Commissioner of Endowments in suspending the petitioner from his Mahantaship of Emar Math, Puri is the subject matter of dispute in the present writ application. 2. The brief facts leading to the present case are that the police seized a silver slab from a person at Dhenkanal sometime in February, 2011 and basing on the disclosure made by the said person that it was stolen from the premises of the Emar Math, Singhadwar P.S. Case No.16 of 2011 was registered on 26.02.2011 on an F.I.R. being lodged by the I.I.C. of the said Police Station alleging theft of silver slabs by some labourers, who were doing repair works in the Emar Math premises under a contractor engaged by Archaeological Survey of India. The labourer from whom the silver slab was seized led to discovery of a large number of such silver slabs from inside a completely closed room in the Math premises having no entry to the said room. As per the investigation made, it is disclosed that the theft was committed by entering into the closed room through a hole in the roof of the said room. The petitioner, who is the Mahanta of the said Math, has been implicated in the case basing on the statements of co-accused persons. He was arrested on 24.03.3011 and has been released on bail on 27.04.2011, pursuant to the orders passed by this Court on 22.04.2011 in BLAPL No.7091 of 2011. The Commissioner of Endowments issued the impugned order dated 25.03.2011 suspending the petitioner from the Mahantaship of the Math and appointed the opposite parties as members of an interim trust board for management of the Math and to safeguard its properties. The said order was passed soon-after the petitioner was arrested and was in custody. 3. It is stated by the petitioner that the hidden treasure to a huge magnitude found in the Math premises, received widest media attention and has been sensitized. The silver slabs numbering more than five hundred were initially kept in the Math premises guarded by the police and thereafter pursuant to the order passed by this Court in a writ application, have been shifted to the police armory for its safe custody. The petitioner feigned innocence with regard to his involvement with the theft and claims that he had no knowledge of existence of such large cache of silver slabs inside the Math premises. The silver slabs seized indicate that they are century old slabs and according to the petitioner, it might have been kept in the closed room without any opening therein by some of his predecessors’ Mahantas. 4. Learned counsel for the petitioner urged that in a “Math” the Mahanta is the head and under no circumstances, the Commissioner of Endowments can suspend him from Mahantaship of the Math by exercising power under Section 7 of the Act, as the petitioner has not earned any disqualification as provided under Section 35 of the Act. 5. Before delving into the legal question, it would be apt to state that as already vividly discussed by this Court in the decision rendered in the case of Sri Siddha Math, represented by Mohanta Satya Narayan Ramanuj Das and two others v. Sri Jagannath Temple Managing Committee and another, 108 (2009) CLT 508, the Hindu Mathas for the first time were established by Adi Shankara (Shankaracharya), who founded four Mathas at four corners of India and made them institutions for his vendantic teachings. Such Math founded by Adi Shankaracharya at Puri is known as “Gobardhan Math”. The galaxy of Vaishnaba teachers and philosophers, have founded different sects of Vaishnavism. The first amongst them was Ramanujacharya, whose followers were known as Sri Vaishnabas. Thereafter, various other Mathas, like Ramanandi Matha etc., were established, which admits Sudras in their brotherhood and obey no caste rules. According to 1929 Edition of the Puri Gazettor, Mathas are Monastic houses originally founded with the object of giving religious instructions to “Chellas or disciples” and generally to encourage a religious life. At that time, as many as seventy Mathas existed in Puri. The Maths surrounding the Lord Jagannath Temple, Puri, sprouted and flourished under the religious rulers of Puri. The various Mathas in course of time, have become involvement with the ritual worship in the Jagannath Temple. The Mathas are affiliated with and espoused the teaching of different sects. The Emar Math was established by Sri Ramanujacharya, who was one of the first Vaishnabas and whose followers are known as Sri Vaishnabas. The Emar Math provides “Chandrika” and “Chausara” fashioned from flowers for Lord Jagannath’s “Bada Singhara Besa” and “Chula” for the Nabanka ritual. The Emar Matha offers “Pana Bhoga” during the time of “Anasara” and “Bala Bhoga” during the month of “Kartika”. 6. In this background and considering the history of the Mathas established in and around Sri Lord Jagannath Temple, Puri, it would be evident that the Mahanta, who is considered to be the leader of the Math is to propagate the philosophy of its founder by holding religious discourses and in the instant case, the petitioner, who is the Mahanta, is to propagate the teachings and philosophy of Ramanujacharya, whose followers are known as Sri Vaishnabas. 7. Admittedly the petitioner was the managing hereditary trustee of the Emar Math. Section 35(1) of the Act deals with disqualification of hereditary trustees in a Math, which is as follows :- 2 “35. Disqualification of hereditary trustees – (1) A hereditary trustee of a math shall be declared disqualified and shall consequently cease to hold his office if he – (a) is of unsound mind ; or (b) is suffering from any physical or mental disease or defect or infirmity which renders him unfit to be a trustee; or (c) has ceased to profess and practice Hindu religion or tenets of the math; or (d) is convicted for any offence involving moral turpitude [x x x]; or (e) has committed breach of trust in respect of any of the properties of the religious institution; or (f) persistently and willfully defaults in discharging his duties or functions under this Act or any other law for the time being in force or in payment of contribution or other dues payable to Endowment Fund.” Sub-section (2) thereof provides that the Commissioner shall, after enquiry in accordance with the provisions of the Act and so far as may be, of the Code of Civil Procedure, 1908 (V of 1908) relating to trial of suits and with the prior approval of the State Government, declare by an order in writing whether a trustee is disqualified either temporarily or for the life-time under this section. (emphasis supplied) 8. There is no provision under the Act to suspend a hereditary trustee. The power of the Commissioner under Section 35 (2) of the Act to temporarily disqualify a hereditary trustee can only be exercised after due enquiry is conducted in accordance with the said provision. Section 35 (1) of the Act, as quoted above, prescribes amongst other grounds, that only if a person is convicted for any offence involving moral turpitude or has committed breach of trust in respect of any of the properties of the religious institution, shall be declared disqualified and consequently cease to hold his office. On 25.03.2011, the Commissioner of Endowments registered O.A. No.1 of 2011 under Section 35 of the Act basing on a report submitted on the same day by the Inspector of Endowments, Part – I suo motu, and issued a notice to the petitioner framing the charges against him, which are as follows :- “1. Whereas the above named Mahant (Hereditary Trustee) of Emar Math, Puri concealed valuable properties of the Math by not giving information to the office of the Commissioner of Endowments or entering the same in the property Register and thereby willfully defaulted in discharging his duties and functions under the provisions of the Act. 2. Whereas the above named Mahant has committed criminal breach of Trust in respect of the valuables like silver bricks for which he has been booked for the offences U/Ss. 120-B, 457, 380, 381, 406, 411 & 34 I.P.C. in Singhadwar P.S. Case No.16/2011.” 3 9. By the said notice, the petitioner was called upon to file a show cause by 28.04.2011. At the time of issuance of said notice, the petitioner was in custody. It appears from the impugned order under Annexure – 2 that the Commissioner again referring to the report of the Inspector of Endowments dated 25.03.2011 immediately passed an order before receipt of the show cause notice by the petitioner holding that the charge against the petitioner is serious and to safeguard the interest of the institution and smooth administration, in exercise of his power under Section 7 of the Act, the Mahanta is put under suspension pending disposal of the charges framed against him and during the period of suspension, the Mahanta is allowed to reside in the Math and he is to get maintenance as per the provisions of the OHRE Act, 1951. In view of suspension of the Mahanta (petitioner), the Commissioner by the said order also appointed the opposite parties 2 to 6 as members of the interim trust board and directed that they shall assume the charges of the institution immediately. On 04.06.2011, the Deputy Commissioner again referring to the report of the S.I. of Endowments, Bhubaneswar dated 25.04.2011, directed the petitioner to hand over the complete charge of the institution to the newly appointed interim trustees of the institution and report compliance. It appears that except the Superintending Inspector of Endowments, all the other persons included in the interim trust board, are Mahantas of various Mathas situated at Puri. The said Mahantas propagated the philosophy of the founders of their respective Mathas and, by no stretch of imagination, can be considered to be competent to discharge the duties of the petitioner – Mahanta. It further appears that before the charges levelled against the petitioner have been proved and the proceeding has been completed as per Section 35 of the Act, the Commissioner of Endowments in a hasty manner has exercised power under Section 7 of the Act, which provides that subject to the provisions of the Act, the general superintendence of all religious institutions and endowments shall vest in the Commissioner and the Commissioner may do all things, which are reasonable and necessary to ensure that the religious institutions and endowments are properly administered and that their income is duly appropriated for the purposes, which they were founded or exist. The Commissioner is also authorized under the said section to pass such interim orders as he deems necessary for the proper maintenance of the religious institution or proper administration of a religions endowment. Taking a holistic approach of the case, it is amply clear that the Commissioner without due application of mind has constituted the interim trust board by including Mahantas of various other Maths, who belong to different sects other than the sect of the founder of Emar Math and such trustees can never discharge the duties of the petitioner as the Mahanta of the Emar Math. Further, the rider to exercise power under section 7 of the Act is that such power can be exercised subject to the provisions of the Act and when section 35 (2) of the Act clearly stipulates that the Commissioner is duty bound to conduct an enquiry following the provisions of the Act and that of the Code of Civil Procedure and, thereafter, take approval of the State Government to declare by an order disqualifying a trustee either temporarily or for life time, the Commissioner could not have exercised jurisdiction under section 7 of the Act by constituting the interim trust board and suspending the petitioner from the Mahantaship of Emar Math. (emphasis supplied) 10. Dr. A.K. Rath, learned counsel for the Commissioner of Endowments, however, submitted that for smooth management of the Emar Math, the Commissioner can 4 exercise power under section 7 of the Act to see that the Math and its properties are properly administered. 11. This Court, therefore, finds that the Commissioner can take steps under section 7 of the Act to ensure that the religious institution is properly administered and its income is duly appropriated for the purposes which they were founded or exist. However, inclusion of the Mahantas of various Maths in the interim trust board discloses non-application of mind on the part of the Commissioner in constituting the said interim trust board, as the said Mahantas do not belong to the denomination of the founder of Emar Math. 12. As this Court has already held above that the order of suspension of the petitioner is not legally sustainable and the constitution of the interim trust board is a result of non-application of mind, this Court quashes the order suspending the petitioner from the Mahantaship of the Emar Math as well as the constitution of the interim trust board. However, the matter is remanded back to the learned Commissioner to constitute another interim trust board by taking members from well known Hindu public of the locality and Government officials in the said interim trust board to manage the affairs of the Emar Math , i.e., to manage its properties and income. However, the petitioner shall continue to function as the Mahanta of the said Math and discharge his duties as such, which he is required to do including the Seva Puja of the deity/deities existing in the Math premises as well as the functions to be performed in relation to Lord Shri Jagannath Temple. The Mahanta, however, shall not deal with the properties of the math in any manner until the proceeding initiated against him under section 35 of the Act is completed by the Commissioner. It is further directed that as the Mahanta was in custody when the notice to file show cause was issued, the Commissioner shall afford an opportunity to the petitioner – Mahanta by giving him reasonable time to file show cause to the charges and proceed with the said enquiry strictly in accordance with law. The Commissioner, if ultimately in the said proceeding, finds that the Mahanta – petitioner, who is the hereditary trustee, is to be disqualified either temporarily or for life – time, he shall appoint the ‘Chella’ or the next person in line of succession, as per the Act, as the hereditary trustee for the interim period of disqualification on permanently, as the case may be, and dissolve the interim trust board constituted by him in the meantime. 13. With the aforesaid observation and direction, the writ application is allowed. Writ petition allowed. 5