TaxTMI 
TaxTMI 
2015 (12) TMI 1848
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.... jurisdiction. 3. As the facts in all the appeals are common, for the sake of convenience, we refer to the facts of Civil Appeal No. 7729 of 2009, which are stated in brief hereunder: The present case revolves around the ancient temple of Lord Jagannath of Puri. The lands in question have been accorded the status of 'amrutamanohi' properties. On 18.03.1974, the State Government of Orissa issued a notification Under Section 3A of the Orissa Estate Abolition Act, 1951 (hereinafter referred to as the "OEA Act, 1951"), whereby the estate of Lord Jagannath Mahaprabhu Bije, Puri vested in the State Government. The vesting notification was challenged by the Temple before the High Court of Orissa in Original Jurisdiction Case No. 233 of 1977. The High Court rejected the claim of the Temple. The same was upheld by this Court vide its judgment in the case of Lord Jagannath through Jagannath Singri Narasingh Das Mahapatra Sridhar Panda and Ors. v. State of Orissa 1989 (1) Suppl. SCC 553. We will advert to this judgment in detail at a later part of this judgment. The State Government of Orissa subsequently issued a notification dated 18.04.1989 and extended the time for fil....
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....state" as defined in Section 2(oo) of the O.E.A. Act and vested in the State Government pursuant to the notification made Under Section 3A of the O.E.A. Act issued on 18.03.1974. It is also an admitted position that upon such vesting, the intermediary had a right to make an application Under Sections 6 and 7 of the O.E.A. Act. As a matter of fact, as stated earlier, such application was made by the marfatdar of the property, i.e. Mahanta of Siddha Math and the land was settled in the name of Shri Jagannath Mohaprabhu Bije, Puri marfat Mahanta Siddha Brundaban Ramanuj Das. Hence there was no scope for the administrator of Shri Jagannath Temple to make a subsequent application Under Sections 6 and 7 of the O.E.A. Act for re-settlement of the land and the impugned order dated 30.11.1992 having been passed without jurisdiction cannot be sustained and the said order is accordingly quashed. Hence, the present appeals have been filed by the Appellant Temple and State Government and others. 4. We have heard the learned senior Counsel for both the parties. We have also heard Mr. Vinoo Bhagat, the learned Counsel appearing on behalf of the Math in the C. As. @ Special Leave Petition (C....
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....under the Superintendent has further deteriorated and a situation has arisen rendering it expedient to reorganize the scheme of management of the affairs of the Temple and its properties and provide better administration and governance therefore in supersession of all previous laws, Regulations and arrangements, having regard to the ancient customs and usages and the unique and traditional nitis and rituals contained in the Record-of-Rights prepared under the Puri Shri Jagannath Temple (Administration) Act, 1952 (Orissa Act XIV of 1952).... (Emphasis laid by this Court) Section 2 of the Temple Act, 1955 bars the operation of the Orissa Hindu Religious Endowments Act, 1951 on the Temple, and reads as follows: 2(1): The provisions of the Orissa Hindu Religious Endowments Act, 1951 (Orissa Act 2 of 1952) shall cease to apply to the said Temple except with respect to actions taken, things done and contributions levied and the same shall be deemed to have been validly taken, done and levied as if this Act had not been passed: (2) All laws, Regulations and other enactments passed for the purpose of providing for the management of the affairs of the Temple an....
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....rding to the record of rights prepared under the Act of 1952 and where there is no such record of rights in accordance with custom and usage obtaining in the Temple. It is in this background that we have to consider the attack on the constitutionality of the Act. After adverting to the history of the administration of the Temple, it was also held: Finally the preamble says that the administration under the superintendent has further deteriorated and a situation has arisen rendering it expedient to reorganize the scheme of management of the affairs of the Temple and its properties and provide better administration and governance therefore in supersession of all previous laws, Regulations and arrangements, having regard to the ancient customs and usages and the unique and traditional nitis and rituals contained in the record of rights prepared under the 1952 Act. So for all these reasons the Appellant was removed from the sole superintendence of the Temple and a committee was appointed by Section 6 of the Act for its management. (Emphasis laid by this Court) A perusal of the provisions of the Act and the decision of this Court in the case of Raja Bira Kishore Deb re....
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....e validity of the notification was challenged, which came for consideration before a Division Bench of this Court in the case of Lord Jagannath referred to supra. This Court upheld the validity of the notification declaring the estate of Lord Jagannath as 'trust estate' after giving the reasons as follows: It is true that an order was passed Under Section 13G declaring the Petitioner's estate as a trust estate" and further by the insertion of Clause (oo) in Section 2 the Petitioner's estate continued to be a 'trust estate", but the question is as to what is the legal effect flowing from such a declaration This aspect is dealt within Section 13I, which is quoted as under (omitting Sub-section (2) which is not relevant in the present context): "13-1. Effect of orders passed Under Section 13G: (I) All estates declared under this Chapter to be trust estates by the Tribunal or the High Court, as the case may be, shall be deemed to have been excluded from the operation of the vesting notification and never to have vested in the State in pursuance thereof." It is manifest from the language of the Section that it saves a "trust estate" so decl....
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....n the individual judgment and discretion of the Plaintiff, and that the public had no concern with the enjoyment or management of the usufruct thereof. The Gazetteer makes a reference to such properties and states: Both Saiva and Vaishnava Maths exist in Puri. The lands of the latter are known as Amruta Manohi (literally nectar food), because they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims, beggars and ascetics; they are distinct from the Amrut Manohi lands of the Temple itself which are under the superintendence of the Raja. This statement makes it clear that lands endowed to the temple of Lord Jagannath are distinct from the lands or property endowed to the Vaishnava Maths for the purpose of utilising the proceeds of those properties for offering bhoga before Lord Jagannath and the subsequent distribution of that Mahaprasad among pilgrims, beggars and ascetics, presumably visiting the Math, or approaching its authorities for a portion of the Maha Prasad. The mere fact that the proceeds of the properties were to be so used, wo....
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.... Lords from its own previous decisions, states it to be desirable as 'it would permit the House (of Lords) to abrogate previous decisions which were arrived at in different social conditions and which are no longer adequate in present circumstances. This view has been succinctly advocated by Dr. Goodhart who said: "There is an obvious antithesis between rigidity and growth, and if all the emphasis is placed on absolutely binding cases then the law looses the capacity to adapt itself to the changing spirit of the times which has been described as the life of the law". This very principle has been well stated by William O' Douglas in the context of constitutional jurisprudence. He says: "So far as constitutional law is concerned, stare decisis must give way before the dynamic component of history. Once it does, the cycle starts again". The learned senior Counsel further places reliance on the judgment of this Court in the case of R. Unnikrishnan v. V.K. Mahanudevan (2014) 4 SCC 434, wherein it was held as under: 19. It is trite that law favors finality to binding judicial decisions pronounced by Courts that are competent to deal with the subject matter. Public int....
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....te or a provision thereof is declared ultra vires, it would have the result of reopening of the decided matters within the period of limitation following the date of such decision. 12. The learned senior Counsel contends that the decision rendered by this Court in the case of Lord Jagannath referred to supra cannot be wished away by branding it as per incuriam. It is an extremely serious matter to contend that a judgment is per incuriam. It is contended that in order to render a judgment per incuriam, it must be first shown that the oversight or inadvertence is a glaring and obtrusive omission. 13. Mr. Harin P. Raval, the learned senior Counsel appearing on behalf of the Appellant Temple Committee, on the other hand, contends that the decision of this Court in the case of Lord Jagannath referred to supra is per incuriam as it was passed in ignorance of the Temple Act, 1955. The learned senior Counsel contends that the judgment does not even notice Section 5 of the Temple Act, 1955. The judgment was passed only on considering the provisions of the OEA Act, 1951. The judgment held that it cannot be said that the estate of Lord Jagannath could not be vested in the State governme....
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....indal Exports Ltd. (2001) 6 SCC 356 wherein this Court examined the prior decisions on the issue of per incuriam at length and arrived at the following conclusion: 23. A prior decision of this Court on identical facts and law binds the Court on the same points of law in a latter case. This is not an exceptional case by inadvertence or oversight of any judgment or statutory provisions running counter to the reason and result reached. Unless it is a glaring case of obtrusive omission, it is not desirable to depend on the principle of judgment 'per incuriam'. It is also not shown that some part of the decision based on a reasoning which was demonstrably wrong, hence the principle of per incuriam cannot be applied... 14. The learned senior Counsel contends that in the Lord Jagannath case, not only did the Court ignore the provisions of the Temple Act, 1955, it also ignored the decision of the Constitution Bench in the case of Raja Kishore Deb referred to supra, wherein this Court has held that the Lord Jagannath Temple occupies a unique position in the State of Odisha and is a temple of national importance and no other temple in that state can be compared with it. I....
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.... can be divested by operation of another legislation. Since the subject matter of the two cases is not identical, the bar of res judicata does not operate on the proceedings in the instant case. Further, it is well settled law that a question of law can be raised at any time during the proceedings. In the case of National Textile Corporation Ltd. v. Naresh Kumar Badrikumar Jagad (2011) 12 SCC 695, it was held as under: 19. There is no quarrel to the settled legal proposition that a new plea cannot be taken in respect of any factual controversy whatsoever, however, a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings. 16. We agree with the contention advanced by the learned senior Counsel appearing on behalf of the Appellant Temple Committee. Most respectfully, we opine that the decision of this Court in the case of Lord Jagannath referred to supra, wherein this Court upheld the validity of the notification dated 18.03.1974 in so far as it pertains to the estate of Lord Jagannath is per-incuriam for non-consideration of the provisions of Sections 5 and 33 of the Temple Ac....
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....of Odisha and thus overrides any general law enacted. The learned senior Counsel contends that by Section 5 of the said Act, the property vested in Temple Committee. The vesting of the property in the Temple Committee is statutory in nature by virtue of Section 5 of the Temple Act, 1955. He further contends that once land has been vested with the State, the same is not available for vesting again merely on the application of the amended provisions inserted later in another Act. The learned senior Counsel further contends that the Temple Act, 1955 is a special law enacted by which the properties and endowments of Lord Jagannath Temple, Puri stood statutorily vested in the Temple Committee. The OEA Act, 1951, on the other hand, was enacted for the purpose of abolishing all rights of 'intermediaries' between the raiyats and the State by whatever name known and for the vesting of the same in the State. Thus, the provisions of the OEA Act, even by way of insertion of Section 3A and the issue of a subsequent notification cannot divest the absolute ownership of the endowments of the Temple. The learned senior Counsel contends that the endowments vested in the Temple Committee, and....
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....o find out whether the specific provision excludes the applicability of the general ones. Once we come to the conclusion that intention of the legislation is to exclude the general provision then the rule "general provision should yield to special provision" is squarely attracted. 47. Having noticed the aforesaid, it could be concluded that the rule of statutory construction that the specific governs the general is not an absolute rule but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction. This rule is particularly applicable where the legislature has enacted comprehensive scheme and has deliberately targeted specific problems with specific solutions. A subject specific provision relating to a specific, defined and descriptable subject is regarded as an exception to and would prevail over a general provision relating to a broad subject. 19. Mr. M.L. Varma, the learned senior Counsel appearing on behalf of the Respondent Math, on the other hand, contends that Section 5 of the Temple Act, 1955 only pertains to the administration and governance of the Temple and its endowments that vest in the c....
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.... thus meant to abolish the interest of the intermediaries in the land. A Constitution Bench of this Court, upholding the constitutional validity of the Act in the case of K.C. Gajapati Narayan Deo and Ors. v. State of Orissa AIR 1953 SC 375 held as under: The primary purpose of the Act is to abolish all zamindari and other proprietary estates and interests in the State of Orissa and after eliminating all the intermediaries, to bring the ryots or the actual occupants of the lands in direct contact with the State Government. It may be convenient here to refer briefly to some of the provisions of the Act which are material for our present purpose. The object of the legislation is fully set out in the preamble to the Act which discloses the public purpose underlying it. Section 2(g) defines an "estate" as meaning any land held by an intermediary and included under one entry in any of the general registers of revenue-paying lands and revenue-free lands prepared and maintained under the law for the time being in force by the Collector of a district. The expression "intermediary" with reference to any estate is then defined and it means a proprietor, sub-proprietor, landlord, lan....
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....zetteer makes a reference to such properties and states: Both Saiva and Vaishnava Maths exist in Puri. The lands of the latter are known as Amruta Manohi (literally nectar food), because they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims, beggars and ascetics; they are distinct from the Amruth Manohi lands of the Temple itself which are under the superintendence of the Raja. This statement makes it clear that lands endowed to the temple of Lord Jagannath are distinct from the lands or property endowed to the Vaishnava Maths for the purpose of utilising the proceeds of those properties for offering bhoga before Lord Jagannath and the subsequent distribution of that Mahaprasad among pilgrims, beggars and ascetics, presumably visiting the Math, or approaching its authorities for a portion of the Maha Prasad. The mere fact that the proceeds of the properties were to be so used, would not justify the conclusion that these properties were not endowed to the Maths but were endowed to the temple of Lord Jagannath. Properties endowed to th....
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....tates are vested in the Government...... and that any land or building (being part of a trust estate) vested in the Government maybe settled in certain circumstances with the person who immediately before such vesting was an intermediary in respect of such land or building. (Emphasis laid by this Court) A perusal of the aforementioned objects and reasons makes it clear that the said amendment clearly encroaches upon the field of the Temple Act, 1955. The said amendment has been enacted with a view to ensuring the proper performance of traditional rites and rituals in the religious institutions. As far as the Lord Jagannath Temple at Puri is concerned, the State Legislature had already enacted the Temple Act, 1955 and vested the land belonging to the Temple in the Temple Management Committee by virtue of Sections 5 and 33 of the Act of 1955. The object of the said Act was to provide for better administration and governance of the affairs of the Temple and its properties. Thus, proviso to Section 2(oo) of the OEA Act, 1951, by which the estates belonging to the Temple of Lord Jagannath at Puri within the meaning of the Temple Act, 1955 are deemed to be Trust Estates is....
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....and adjudication upon industrial disputes. It also provides the necessary machinery for enforcement of awards and settlements. From alpha to omega the ID Act has one special mission-the resolution of industrial disputes through specialised agencies according to specialised procedures and with special reference to the weaker categories of employees coming within the definition of workmen, therefore, with reference to industrial disputes between employers and workmen, the ID Act is a special statute, and the L.I.C. Act does not speak at all with specific reference to workmen. On the other hand, its powers relate to the general aspects of nationalisation, of management when private businesses are nationalised and a plurality of problems which, incidentally, involve transfer of service of existing employees of insurers. The workmen qua workmen and industrial disputes between workmen and the employer as such are beyond the orbit of and have no specific or special place in the scheme of the L.I.C. Act. And whenever there was a dispute between workmen and management the ID Act mechanism was resorted to. Further, on the point of a subsequent legislation taking precedence over a prior le....
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....ority under this Act prior to the date of coming into force of the Orissa Estate Abolition (Amendment) Act, 1970 shall be deemed to be trust estates. (Emphasis laid by this Court) It is only the first part of the proviso which is in contravention of the Temple Act, 1955. If that part of the proviso continues to be given effect, Sections 5 and 30 of the Temple Act, 1955, by which the estates of Lord Jagannath Temple at Puri are vested in the Temple Committee will lose their meaning. By striking down Section 2(oo) proviso to that extent, both the provisions will be able to operate. In Commercial Tax Officer v. Binani Cements Ltd. (2014) 8 SCC 319 this Court held as under: It is well established that when a general law and a special law dealing with some aspect dealt with by the general law are in question, the rule adopted and applied is one of harmonious construction whereby the general law, to the extent dealt with by the special law, is impliedly repealed. This principle finds its origins in the latin maxim of generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on same subject. (Emphasis....
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....s Court that while provisions of different statutes must be harmoniously constructed as far as possible, in cases where it is not possible, the Court needs to examine as to which provision must be given effect to. 24. In the case in hand, the first part of the proviso of Section 2(oo) of the OEA Act, 1951 cannot be allowed to sustain. Clearly, the intention of the legislature could not have been to render virtually the entire Temple Act, enacted on the specific subject, meaningless, by way of enacting a proviso to Section 2(oo) of the OEA Act, 1951 as an amendment in 1974, which is the general legislation in the instant case. Section 2(oo) of the OEA Act, 1951, thus, to that extent requires to be struck down so that both the OEA Act, 1951 as well as the Temple Act, 1955 can be given due effect in their respective field of operation. In exercise of the powers conferred Under Article 142 of the Constitution, this Court can pass any order as may be "necessary for doing complete justice" in a case before it. In the instant case, great injustice will be caused to the Appellant Temple if the rights conferred upon it by the Temple Act are allowed to be taken away by operation of the pr....
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....ction 6, 7 and 8 and dispute relating thereto-(1) The Intermediary shall file his claim in the prescribed manners for settlement of fair and equitable rent in respect of lands and building which are deemed to be settled with him Under Section 6 or Section 7 before the Collector within 6 (six) months from the date of vesting. 27. Mr. M.L. Varma, the learned senior Counsel appearing on behalf of the Respondent Math contends that Section 2(oo) of the OEA Act, 1951 was amended in the year 1974, in terms of which all estates belonging to the temple of Lord Jagannath were deemed to be trust estates. Thus, the same vested in the State Government after notification of 18.03.1974. Thus, the provisions of Section 8A of the OEA Act, 1951 come into play, and accordingly an intermediary had the right to file its claim before the Collector within six months. The learned senior Counsel contends that the lands of the Respondent Math were recorded in the Record of Rights, and the Tahsildar issued an inquiry report which stated that the said Respondents were in possession of the lands. The lands were accordingly settled in favour of the Respondent Math vide order dated 30.09.1981. The learned sen....
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....d before the Collector. Mr. L. Nageshwar Rao, the learned senior Counsel appearing on behalf of the Tahsildar contends that the definition of Collector in the OEA Act, 1951 is an inclusive one, and therefore he had the authority to determine the rights of the Respondent. We cannot agree with this legal contention advanced by the learned senior Counsel. The proceedings Under Section 8A, OEA Act, 1951 are quasi judicial in nature. The Orissa High Court in the case of Bharat Bihari Mishra v. State of Orissa 2012 (II) OLR 968, has held as under: All the above provisions of the Act and the Rules go to indicate that the proceeding Under Section 8A(1) is quasi judicial in nature. The procedure for conduct of the proceeding has been provided in the Act and the different Rules as noted above. 30. It is well settled in law that a quasi judicial function cannot be delegated and therefore, the inclusive reading of the definition of Collector Under Section 2(d) of the OEA Act, 1951 to also include Tahsildar can be applied only as far as it pertains to the discharge of administrative powers of the Collector. In reference to the role of the Tahsildar under the OEA Act, 1951, this Cour....
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....Court and this Court in the matter of constructing the entries. The power to legislate is given to the appropriate Legislatures by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation; they demarcate the area over which the appropriate Legislatures can operate. It is also well settled that widest amplitude should be given to the language of the entries. But some of the entries in the different List or in the same List may overlap and sometimes may also appear to be in direct conflict with each other. It is then the duty of this Court to reconcile the entries and bring about harmony between them. When the question arose about reconciling entry 45 of List I, duties of excise, and entry 18 of List II, taxes on the sale of goods, of Government of India Act, 1935, Gwyer, C.J., in In re The Central Provinces and Berar Act No. XIV of 1938, observed: A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; but it may be qualified by other express provisions in the same enactment, by the implication of the context, and even by considerations arising out of what appears t....
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....der construction of entry 1 would deprive entry 2 of all its content and reduce it to useless lumber." This rule of construction has not been dissented from in any of the subsequent decisions of this Court. It may, therefore, be taken as a well settled rule of construction that every attempt should be made to harmonize the apparently conflicting entries not only of different Lists but also of the same List and to reject that construction which will rob one of the entries of its entire content and make it nugatory. (Emphasis laid by this Court) In the light of the reasons assigned by us in answer to Point No. 1 and held in favour of the Temple, there was no need for the Temple Committee to file claim proceedings Under Section 8A of the OEA Act, 1951, in respect of its own lands which were already vested in it Under Section 5 of the Temple Act, 1955. The suit lands vest in the Temple Committee itself. Thus, in view of the provisions of the Temple Act, 1955, the settlement of the suit lands in favour of the Respondent Math cannot be sustained, as it is bad in law. Answer to Point No. 3 32. In view of the findings and reasons recorded on Point Nos. 1 and 2 in favour o....