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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7729 OF 2009

SRI JAGANNATH TEMPLE MANAGING COMMITTEE …………APPELLANT

Vs.

SIDDHA MATH & ORS. ……RESPONDENTS

WITH

CIVIL APPEAL NO.7730 OF 2009

CIVIL APPEAL NO.142 OF 2010

CIVIL APPEAL NO.221 OF 2010

CIVIL APPEAL NO.2981 OF 2010

CIVIL APPEAL NO.3414 OF 2010

CIVIL APPEAL NO.3415 OF 2010

CIVIL APPEAL NO.3446 OF 2010

CIVIL APPEAL NOS.14631-14632 OF 2015

(Arising Out of SLP (C) Nos.9167-9168 of 2010)

AND

CIVIL APPEAL NO.9627 OF 2010

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted in the Special Leave Petitions.

Page 2 2

2.The present appeals arise out of the impugned

judgment and order dated 07.07.2009 passed in Original

Jurisdiction Case No. 2421 of 2000 and other Writ

Petitions which were disposed of in terms of the

judgment dated 07.07.2009 by the High Court of Orissa at

Cuttack, whereby the High Court allowed the Writ

Petitions filed by the respondents herein and held that

as the disputed land was earlier settled in the name of

Shri Jagannath Mahaprabhu Bije Puri, Marfat Siddha

Brundaban Ramanuj Das and thus, the subsequent

settlement made in favour of the Temple Managing

Committee in OEA Claim Case No. 68/90 was without

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 3-A of the Orissa Estate

Page 3 3

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

1

. 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

filing claims under Section 8-A of the OEA Act, within

which the Temple filed Claim Case No. 68 of 1990 for

recording the lands in question in favour of Shree

Jagannath Mahaprabhu Bije, Puri, Marfat Shree Jagannath

Temple Managing Committee. Vide order dated 30.11.1992,

the OEA Collector and Tahsildar, Puri observed that the

suit lands in question have been recorded in the name of

11989 (1) Suppl.SCC 553

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Shri Jagannath Mahaprabhu Bije, Srikhetra, and

accordingly settled the suit lands in favour of the

Temple. In the year 2000, the respondent-Math filed a

Writ Petition before the High Court of Orissa at Cuttack

in Original Jurisdiction Case No. 2421 of 2000,

challenging the order of the Tahsildar dated 30.11.1992

on the ground that the lands in question have been

accorded the status of ‘ amrutamanohi’ and that they were

recorded as Trust Estate as defined under Section 2(oo)

of the OEA Act, 1951 and that lands had wrongly been

settled in favour of the Temple. The High Court by the

impugned judgment dated 07.07.2009 set aside the order

of the Tahsildar dated 30.11.1992 and held as under:

“……it is seen in the instant case, the property

has been dedicated as Amrutmonahi to Lord Sri

Jagannath of Puri and the marfatdar of the

property is Mahanta Siddha Brundaban Ramanuj

Das. Thus, the property is attached with a

charge of rendering service to Lord Jagannath by

using the usufructs thereof as food offering to

Lord Jagannath by using the usufructs threof as

food offering to Lord Jagannath. It is further

found that on the above analysis, the property

cannot be held to be under the control of the

administrator of Shri Jagannath Temple but is a

trust property attached with a charge and the

trustee has to fulfil the wish of the dedicator

Page 5 5

of the said property by offering the usufructs

to Lord Jagannath as food offering. However,

since the trustee/marfatdar is the Mahanta of

Siddha Math, it cannot be said that the math has

absolutely no interest over the said property

just because it is recorded as Amrutmonohi.

Applying the ratio of the decision in the case

of Mahanta Shri Srinivas Ramanuj Das (supra) of

the Supreme Court, it is seen that the Siddha

Math is an institution, which comes within the

definition of ‘Math’ as given in section 3 (vii)

of the Orissa Hindu Religious Endowments Act,

1951. The property involved in this Writ

Petition comes within the definition of “Trust

Estate” 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 3-A 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.

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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 (Civil) Nos. 9167-9168 of

2010 and Ms. V.S. Lakshmi, learned counsel appearing on

behalf of the Math in C.A. No. 9627 of 2010. On the

basis of the factual evidence on record produced before

us, the circumstances of the case and also in the light

of the rival legal contentions urged by the learned

senior counsel for both the parties, we have broadly

framed the following points which require our attention

and consideration:-

1) Whether the suit lands can vest in the

respondent Math in the light of the provisions of

the Shri Jagannath Temple Act, 1955?

2) Whether even otherwise, the Math had the right

to prefer claim rights in respect of the Temple

Lands and initiate the proceedings under the OEA

Act, 1951 by virtue of being an intermediary?

3) What order?

Page 7 7

Answer to Point No.1

5.At the outset, before we advert to the rival legal

contentions of the learned senior counsel appearing on

behalf of both the parties, it is important for us to

examine the provisions of the relevant Acts, as well as

the previous judgments of this Court on the issue. There

are two important acts which operate in the instant

case. The first is the Shri Jagannath Temple Act, 1955

(hereinafter referred to as the “Temple Act, 1955”). The

long title of the Act reads as follows:

“An Act to provide for better administration

and governance of Shri Jagannath Temple at

Puri and its endowments.”

The Preamble of the Temple Act, 1955 states as under:

“Whereas the ancient Temple of Lord Jagannath

of Puri has ever since its inception been an

institution of unique national importance in

which millions of Hindu devotees from regions

far and wide have reposed their faith and

belief and have regarded it as the epitome of

their tradition and culture.

And whereas by Regulation IV of 1809 passed by

the Governor-General in Council on 28th April,

1809 and thereafter by other laws and

regulations and in pursuance of arrangement

entered into with the Raja of Khurda, later

designated the Raja of Puri, the said Raja

Page 8 8

came to be entrusted hereditary with the

management of the affairs of the Temple and

its properties as Superintendent subject to

the control and supervision of the ruling

power;

And whereas in view of grave and serious

irregularities thereafter Government had to

intervene on various occasions in the past;

And whereas 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 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 and

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its properties and all deeds executed in

favour of and all arrangements entered into

for the said purpose with the Raja of Khurda

or the Raja of Puri, as the case may be, prior

to the commencement of this Act, in so far as

such enactments, deeds or arrangements are

inconsistent with the provisions of this Act,

shall cease to have any effect.”

Section 5 of the Temple Act, 1955 provides for the

setting up of a Temple Managing Committee as under:

“5. Notwithstanding anything in any other law

for the time being in force or custom, usage

or contract, Sanad, deed or engagement, the

administration and the governance of the

Temple and its endowments shall vest in a

Committee called the Shri Jagannath Temple

Managing Committee constituted as such by the

State Government, and it shall have the rights

and privileges in respect thereof as provided

in Section 33.”

Section 30 of the Temple Act, 1955 grants power of

general superintendence of the Temple and its endowments

to the State Government which may pass orders for the

maintenance and administration of the temple, which

reads as under:

“30. (1) Subject to the provisions of this Act

the general superintendence of the Temple and

its endowments shall vest in the State

Government which may pass any orders that may

be deemed necessary for the proper maintenance

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or administration of the Temple or its

endowments or in the interest of the general

public worshipping in the Temple.”

Section 33 of the Temple Act, 1955 empowers the

Committee to be in possession of all the moveable and

immoveable properties belonging to the Temple. It reads

as under:

“33. (1) The Committee shall be entitled to

take and be in possession of all movable and

immovable properties including the Ratna

Bhandar and funds and jewelries, records,

documents and other assets belonging to

Temple.”

6.A Constitution Bench of this Court had the occasion

to examine the provisions of the Temple Act, 1955 in

detail, while adjudicating upon its constitutional

validity in the case of Raja Bira Kishore Deb v. State

of Orissa

2

. Wanchoo, J., speaking for the bench observed

as under:

“This review of the provisions of the Act

shows that broadly speaking the Act provides

for the management of the secular affairs of

the Temple and does not interfere, with the

religious affairs thereof, which have to be

performed according to the record of rights

prepared under the Act of 1952 and where

2 AIR 1964 SC 1501

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thereis no such record of rights in

accordance with custom and usage obtaining

inthe 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 s. 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

referred to supra clearly shows that as far as Shri

Jagannath Temple of Puri is concerned, the position of

law is that all the endowments and properties belonging

Page 12 12

to the Temple vest in the Shri Jagannath Temple Managing

Committee.

7.We now turn our attention to the OEA Act, 1951. The

Act received the assent of the President on 23.01.1952.

The long title of the Act reads as follows:

“An act to provide for the abolition of all the

rights, title and interest in land of

intermediaries by whatever name known, including

the mortgagees and lessees of such interest,

between the raiyat and the state of Orissa, for

vesting in the said state of the said right, title

and interest and to make provision for other

matter connected therewith……”

All estates of the intermediaries were thus, abolished

and by way of a notification, stood vested in the State

Government. Section 2(oo) of the OEA Act, 1951 (which

was inserted by way of an Amendment in 1974) defines a

Trust Estate as under:

“‘trust estate’ means an estate the whole of

the net income whereof under any trust or

other legal obligation has been dedicated

exclusively to charitable or religious

purposes of a public nature without any

reservation of pecuniary benefit to any

individual :

Provided that all estates belonging to the

Temple of Lord Jagannath at Puri within the

meaning of the Shri Jagannath Temple Act, 1955

and all estates declared to be trust estates

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by a competent authority under this Act prior

to the date of coming into force of the Orissa

Estates Abolition (Amendment) Act, 1970 shall

be deemed to be trust estates.”

(emphasis laid by this Court)

Section 3 of the OEA Act, 1951 provides for vesting of

an estate in the State by way of a notification as

under:

“3. Notification vesting an estate in the

State – (1) The State Government, may from

time to time by notification, declare that the

estate specified in the notification has

passed to and become vested in the State free

from all encumbrances.”

“(3) Such publication shall be conclusive

evidence of the notice of the declaration to

everybody whose interest is affected by it.”

8.Section 2(oo) was inserted by way of an amendment

on 26.02.1974. On 18.03.1974, a notification was issued

by the State Government under Section 3-A whereby the

estate of Lord Jagannath vested with the State

Government. The 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

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Lord Jagannath as ‘ trust estate’ after giving the

reasons as follows:

“It is true that an order was passed under

s.13-G declaring the petitioner's estate

as a trust estate" and further by the

insertion of clause (oo) in s 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 s 13-I, 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 13-G: (I) All

estates declared under this Chapter

to be trust estates by the

Tribunal or the High Court, as the

case may be, shall he 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 declared under s. 13-G from the

operation of a notification issued under

s. 3 or 3-A,but does not extend the

benefit any further The provisions do not

confer protection from the Act itself and

cannot be interpreted to clothe it with

a permanent immunity from being vested by

a later notification issued under the Act

Such an estate could be vested in the

State of Orissa by a subsequent

Page 15 15

notification was made clear by clause (b)

of s 13-K which reads as follows:

‘(a) . . .

(b)nothing in this Chapter shall be

deemed to debar the State Government

from vesting any trust estate by the

issue of a notification under

Section 3.’

Sections 7-A, 8-A, 8-D and X-E of the Act

include special provisions for a trust

estate and unmistakably indicate that

trust estates" are within the purview of

the Act. The benefit they receive from a

declaration under s.13-G is limited and

referable only to a vesting notification

issued earlier. There is thus, no merit

in the argument of the learned counsel for

the appellant that the petitioner's estate

could not be vested in the State by a

notification issued subsequently.”

It is important to note at this stage that while

upholding the validity of the notification, this Court

did not advert to the provisions of the Temple Act, 1955

at all.

9.Another judgment of this Court which is important

to be examined is the Constitution Bench decision in the

case of Mahant Shri Srinivas Ramanuj Das v.

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Surjanarayan Das

3

, which examined the nature of

‘amrutamanohi’ properties.

10. Mr. M.L. Varma, the learned senior counsel

appearing on behalf of the respondent Math contends that

the controversy in the instant case is squarely covered

by two judgments of this Court, the Division Bench

judgment in the case of Lord Jagannath and the

Constitution Bench judgment in the case of Surjanarayan

Das referred to supra. The learned senior counsel places

strong reliance on the following paragraphs of the

decision in the case of Surjanarayan Das (supra):

“40. We may now consider the properties in

schedule Kha said to be the Amruta Monohi

properties of Lord Jagannath and held by the

plaintiff as marfatdar. The plaintiff alleges

that these properties were acquired either by

purchase or 'krayadan' or by way of gift

subject to a charge of some offering to Lord

Jagannath which depended upon 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

3 AIR 1967 SC 256

Page 17 17

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, 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 the temple of Lord Jagannath were,

according to this statement, in the Gazetteer,

not under the superintendence of any Math or

Mahant but under the superintendence of the

Raja of Puri himself .

41. As already stated, these Amrut Manohi

properties are properties which are endowed to

the Math by the devotees for a particular

service, which is done to Lord Jagannath by the

Mahant on behalf of the Math. The properties

are therefore properties endowed to the Math

and not merely gifted to the plaintiff or, as

had been suggested, to Lord Jagannath.”

(emphasis laid by this Court)

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11.The learned senior counsel contends that since an

earlier decision of this Court already covers the

controversy in the instant case, the same is binding on

the parties as well as this Court and this Court should

respect the principle of stare decisis. He further

contends that the judgments delivered in the case of

Surjanarayan Das and Lord Jagannath have held field

since 1967 and 1989, respectively. The learned senior

counsel places reliance on a seven judges Bench decision

of this Court in State of Gujarat v. Mirzapur Moti

Kureshi Kassab Jamat,

4

wherein, while examining the

scope of the doctrine of stare decisis, it was held as

under:

“111. Stare decisis is a Latin phrase which

means "to stand by decided cases; to uphold

precedents; to maintain former adjudication".

This principle is expressed in the maxim

"stare decisis et non quieta movers" which

means to stand by decisions and not to disturb

what is settled. This was aptly put by Lord

Coke in his classic English version as "Those

things which have been so often adjudged ought

to rest in peace". However, according to

Justice Frankfurter, the doctrine of stare

decisis is not "an imprisonment of reason"

(Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd

4 (2005) 8 SCC 534

Page 19 19

Edition 2005, Volume 4, p. 4456). The

underlying logic of the doctrine is to

maintain consistency and avoid uncertainty.

The guiding philosophy is that a view which

has held the field for a long time should not

be disturbed only because another view is

possible.

xxx xxx xxx

119. Sir John Salmond, while dealing with

precedents and illustrating instances of

departure by the House of 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

5

, wherein it was held

5 (2014) 4 SCC 434

Page 20 20

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 interest is against

individuals being vexed twice over with the

same kind of litigation. The binding character

of judgments pronounced by the Courts of

competent jurisdiction has always been treated

as an essential part of the rule of law which

is the basis of the administration of justice

in this country. We may gainfully refer to the

decision of Constitution Bench of this Court

in the Daryao v. State of U.P. where the Court

succinctly summed up the law in the following

words:

‘It is in the interest of the public at

large that a finality should attach to

the binding decisions pronounced by

Courts of competent jurisdiction, and

it is also in the public interest that

individuals should not be vexed twice

over with the same kind of litigation.

The binding character of judgments

pronounced by courts of competent

jurisdiction is itself an essential

part of the rule of law, and the rule

of law obviously is the basis of the

administration of justice on which the

Constitution lays so much emphasis.’

20. That even erroneous decisions can operate

as res-judicata is also fairly well settled

by a long line of decisions rendered by this

Court. In Mohanlal Goenka v. Benoy Kishna

Mukherjee this Court observed:

‘There is ample authority for the

proposition that even an erroneous

decision on a question of law operates

as 'res judicata' between the parties

to it. The correctness or otherwise of

Page 21 21

a judicial decision has no bearing upon

the question whether or not it operates

as 'res judicata.’

21. Similarly, in State of West Bengal v.

Hemant Kumar Bhattacharjee this Court

reiterated the above principles in the

following words:

‘A wrong decision by a court having

jurisdiction is as much binding between

the parties as a right one and may be

superseded only by appeals to higher

tribunals or other procedure like

review which the law provides.’

22. The recent decision of this Court in

Kalinga Mining Corporation v. Union of India

is a timely reminder of the very same

principle. The following passage in this

regard is apposite:

‘In our opinion, if the parties are

allowed to reagitate issues which have

been decided by a court of competent

jurisdiction on a subsequent change in

the law then all earlier litigation

relevant thereto would always remain in

a state of flux. In such circumstances,

every time either a statute 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

Page 22 22

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 government by a

notification issued subsequently. The learned senior

counsel contends that the OEA Act, 1951 is an Act which

was principally enacted for the purpose of abolishing

all rights in land of “intermediaries” between the

Raiyats and the state by whatever name known and for the

vesting of the same in the state. It could thus, only

divest the intermediaries of its rights in land by

Page 23 23

vesting it in the State but cannot affect the statutory

vesting of all endowments in the managing committee

under Section 5 of the Temple Act, 1955. Thus, the

provisions of the OEA Act, 1951 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 submits that

the endowments vested in the managing committee and

hence it ceased to be an intermediary interest and

became the absolute vested property of Lord Jagannath.

The learned senior counsel contends that a decision

given in ignorance of a statute or a rule having the

force of a statue can be held to be per incuriam, as was

held by a three Judge Bench of this Court in the case of

Muncipal Corporation of Delhi v. Gurnam Kaur

6

. The

learned senior counsel further places reliance on

another decision of this Court in the case of State of

U.P v. Synthetics and Chemicals Ltd.,

7

wherein the

principle of per incuriam was discussed as under:

6 (1989) 1 SCC 101

7 (1991) 4 SCC 139

Page 24 24

“'Incuria literally means 'carelessness'. In

practice per in curium appears to mean per

ignoratium.' English Courts have developed this

principle in relaxation of the rule of stare

decisis. The 'quotable in law' is avoided and

ignored if it is rendered, in ignoratium of a

statute or other binding authority' (Young v.

Bristol Aeroplane Ltd.). Same has been

accepted, approved and adopted by this Court

while interpreting Article 141 of the

Constitution which embodies the doctrine of

precedents as a matter of law. In Jaisri Sahu

v. Rajdewan Dubey , this Court while pointing

out the procedure to be followed when

conflicting decisions are placed before a Bench

extracted a passage from Halsbury Laws of

England incorporating one of the exceptions

when the decision of an Appellate Court is not

binding.”

The learned senior counsel further places reliance on

the decision of this Court in the case of Fuerst Day

Lawson Ltd. v. Jindal Exports Ltd.,

8

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

8 (2001) 6 SCC 356

Page 25 25

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. It stands in a class by itself

and with respect to be a subject of special

consideration by the State Government and thus requires

special treatment.

15.We are unable to agree with the contention advanced

by Mr. M.L. Varma, the learned senior counsel appearing

on behalf of the respondent Math. The decision of this

Court in the case of Lord Jagannath (supra) does not bar

Page 26 26

the present case by res judicata. The principle of res

judicata, codified in Section 11 of the Code of Civil

Procedure has been examined in a catena of cases by this

Court. A Constitution Bench of this Court in Sheodan

Singh v. Daryao Kunwar

9

, held as under:

“A plain reading of s. 11 shows that to

constitute a matter res judicata, the following

conditions must be satisfied, namely - (i) The

matter directly and substantially in issue in

the subsequent suit or issue must be the same

matter which was directly and substantially in

issue in the former suit; (ii) The former suit

must have been a suit between the same parties

or between parties under whom they or any of

them claim; (iii) The parties must have

litigated under the same title in the former

suit; (iv) The court which decided the former

suit must be a court competent to try the

subsequent suit or the suit in which such issue

is subsequently raised; and (v) The matter

directly and substantially in issue in the

subsequent suit must have been heard and

finally decided by the Court in the first

suit.”

The above legal principles laid down by this Court have

been reiterated in the case of Syed Mohd. Salie Labbai

& Ors. v. Mohd.Hanifa & Ors.

10

, as under:

9 AIR 1966 SC 1332

10 AIR 1976 SC 1569

Page 27 27

“…….it may be necessary to mention that before

a plea of res judicata can be given effect,

the following conditions must be proved- (1)

that the litigating parties must be the same;

(2) that the subject-matter of the suit also

must be identical; (3) that the matter must be

finally decided between the parties; and (4)

that the suit must be decided by a court of

competent jurisdiction.”

In the Lord Jagannath case referred to supra, this Court

was concerned only with the validity of the vesting

notification dated 18.03.1974, whereas in the instant

case, it is the validity of the order dated 30.11.1992

that is being examined, along with the question whether

land once vested for a particular purpose, namely, as

property of Lord Jagannath 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

11

, it was held as under:-

11 (2011) 12 SCC 695

Page 28 28

“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 30 of the Temple Act, 1955 and the law

laid down by this Court as regards between the two

State enactments, which one will be the Special Act

over other. While the doctrine of stare decisis is

crucial to maintain judicial discipline, what cannot be

lost sight of the fact is that decisions which are

rendered in ignorance of existing statutes and law laid

down by this Court cannot bind subsequent Benches of

Page 29 29

this Court. In the case of Moti Kureshi Jamat referred

to supra, it was held as under:

“112. The trend of judicial opinion, in our

view, is that stare decisis is not a dogmatic

rule allergic to logic and reason; it is a

flexible principle of law operating in the

province of precedents providing room to

collaborate with the demands of changing times

dictated by social needs, State policy and

judicial conscience.”

It becomes clear from a perusal of the case law adverted

to by the learned senior counsel appearing on behalf of

the appellant Temple Committee that a judgment can be

said to be per incuriam when it is passed in

forgetfulness or ignorance of a statute operating in

that field. The notification dated 18.03.1974 vested the

estates of Lord Jagannath, Puri in the State Government

in view of the amended provision of the proviso to

Section 2(oo) of the OEA Act, 1951 inserted by way of an

Amendment in the year 1974. The judgment in the case of

Lord Jagannath was passed only on consideration of the

OEA Act, 1951. The provisions of the Temple Act, 1955,

which is the principal Act that applies to the Lord

Jagannath Temple, Puri were not adverted to at all.

Page 30 30

17.We now turn our attention to the validity of the

vesting order dated 30.11.1992 passed by the Tahsildar

of Puri in O.E.A Claim Case No. 68 of 1990, by which the

suit lands were settled in favour of the Temple.

18.Mr. Harin P. Raval, the learned senior counsel

appearing on behalf of the appellant Temple Committee

contends that in view of Section 5 of the Temple Act,

1955 read with Sections 16 and 33 of the said Act,

all endowments of the temple, including the properties

belonging to or given or endowed for the support of the

Temple or given or endowed for the performance of any

service including the service of offerings to the deity

or charity connected therewith vest in Temple

Committee. The learned senior counsel contends that the

Temple Act,1955 is a special legislation enacted by the

State Government 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

Page 31 31

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 thus, ceased to be an

intermediary interest and became the absolute vested

property of Lord Jagannath. The learned senior counsel

places reliance on the judgment of this Court in the

Page 32 32

case of U.P State Electricity Board & Anr. v. Hari

Shankar Jain & Ors.

12

, wherein this Court while holding

that the provisions of a special statute must prevail

over those of a general statute held as under:

“8. The maxim "Generalia Specialibus non

derogant" is quite well known. The rule

flowing from the maxim has been explained in

Mary Seward v. The Owner of the "Vera Cruz" as

follows:

Now if anything be certain it is this, that

where there are general words in a later Act

capable of reasonable and sensible application

without extending them to subjects specially

dealt with by earlier legislation, you are not

to hold that earlier and special legislation

indirectly repealed, altered, or derogated

from merely by force of such general words,

without any indication of a particular

intention to do so.

9. The reason for the rule that a general

provision should yield to a specific provision

is this: In passing a Special Act, Parliament

devotes its entire consideration to a

particular subject. When a General Act is

subsequently passed, it is logical to presume

that Parliament has not repealed or modified

the former Special Act unless it appears that

the Special Act again received consideration

from Parliament………”

The learned senior counsel further places reliance on a

more recent judgment of this Court, in the case of

12 (1978) 4 SCC 16

Page 33 33

Commercial Tax Officer, Rajasthan v. Binani Cements

Ltd. & Anr.

13

, wherein after adverting to a number of

previous decisions on the aspect, it was held as under:

“46. In Gobind Sugar Mills Ltd. v. State of

Bihar this Court has observed that while

determining the question whether a statute is

a general or a special one, focus must be on

the principal subject-matter coupled with a

particular perspective with reference to the

intendment of the Act. With this basic

principle in mind, the provisions must be

examined to find out whether it is possible to

construe harmoniously the two provisions. If

it is not possible then an effort will have to

be made to ascertain whether the legislature

had intended to accord a special treatment

vis-à-vis the general entries and a further

endeavour will have to be made to 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

13 (2014) 8 SCC 319

Page 34 34

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

committee. The Temple Act, 1955 was enacted because of

serious irregularities in the administration and

governance of the Temple and its endowments and for

reorganizing the scheme of management of the affairs of

the temple and its properties. Only what was being

managed by the Raja of Puri was taken over under the

Temple Act, 1955. The learned senior counsel places

reliance on B.K Mukherjea’s ‘The Hindu Law of Religious

and Charitable Trust ’ and contends that the respondent

Math is a Vaishnava Math of Puri. The Math and the

Jagannath Temple have co existed for centuries. Each is

a separate legal entity, holding its properties

separately and performing its religious and other

Page 35 35

functions in accordance with religious customs and

usage. The Math and the Temple hold their own properties

separately. Acquisition of property can be done only

through transfer or succession. The learned senior

counsel contends that the appellant Temple Committee has

not produced any evidence on record through which it

could claim the ownership over the property of the

respondent Math. The learned senior counsel contends

that the ‘amrutamanohi’ properties are endowed to two

different legal entities- the Temple and the Math. Thus,

it cannot be contended that the properties of the Math

belong to the Temple.

20. The learned senior counsel further contends that

Section 2(oo) of the OEA Act, 1951 which defines Trust

Estate, was inserted in the year 1974. Under the

proviso, all estates belonging to the temple of Lord

Jagannath were deemed to be trust estates. Thus, the

estate of Lord Jagannath came to be vested in the State

Government vide notification dated 18.03.1974. The

amendments to the OEA Act, 1951 were effected when the

Temple Act, 1955 was in force. The learned senior

Page 36 36

counsel contends that it is a well settled principle of

law that a subsequent legislation prevails over a prior

legislation.

21. We accept the contentions advanced by the learned

senior counsel appearing on behalf of the appellant

Temple Committee and are unable to agree with the

contentions advanced by the learned senior counsel

appearing on behalf of the respondent Math. The Temple

and the Math are two distinct legal entities. The OEA

Act, 1951 was enacted to provide for the abolition of

all rights, title and interest in the land of

intermediaries and vesting the same in the State. The

Act was 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 & Ors. v. State

of Orissa

14

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

14 AIR 1953 SC 375

Page 37 37

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, land-holder...

thikadar, tenure-holder, under-tenure-holder

and includes the holder of inam estate, jagir

and maufi tenures and all other interests of

similar nature between the ryot and the State.

Section 3 of the Act empowers the State

Government to declare, by notification, that

the estate described in the notification has

vested in the State free from all encumbrances.

Under section 4 it is open to the State

Government, at any time before issuing such

notification, to invite proposals from

"intermediaries" for surrender of their estates

and if such proposals are accepted, the

surrendered estate shall vest in the Government

as soon as the agreement embodying the terms of

surrender is executed. The consequences of

vesting either by issue of notification or as a

result of surrender are described in detail in

section 5 of the Act. It would be sufficient

for our present purpose to state that the

primary consequence is that all lands comprised

in the estate including communal lands,

non-ryoti lands, waste lands, trees, orchards,

pasture lands, forests, mines and minerals,

quarries rivers and streams, tanks, water

Page 38 38

channels, fisheries, ferries, hats and bazars,

and buildings or structures together with the

land on which they stand shall, subject to the

other provisions of the Act, vest absolutely in

the State Government free from all encumbrances

and the intermediary shall cease to have any

interest in them.”

(emphasis laid by this Court)

On the other hand, keeping in view the growing

irregularities in the management of the affairs of the

temple, the Temple Act, 1955 was enacted by the state,

which received the assent of the President on

15.10.1955. We agree with the contention advanced by Mr.

Harin P. Raval, the learned senior counsel appearing on

behalf of the appellant Temple Committee that as far as

the Jagannath Temple of Puri and its endowments are

concerned, the provisions of the Temple Act, 1955, being

the special law, take priority over the provisions of

any other legislation. Section 5 of the Temple Act, 1955

makes it clear that the properties and endowments of the

Temple stand statutorily vested in the Temple Committee.

The Constitution Bench judgment in the case of

Surjanarayan Das referred to supra draws a distinction

between the ‘amrutamanohi’ properties of the Math and

Page 39 39

the Temple in the following terms:

“40. 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 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 the temple of Lord Jagannath were,

according to this statement, in the Gazetteer,

not under the superintendence of any Math or

Mahant but under the superintendence of the

Raja of Puri himself .”

(emphasis laid by this Court)

Page 40 40

22. The OEA Act, 1951 was enacted with a view to

abolish the rights, title and interest of

intermediaries in the land in the State of Odisha. The

Statement of Objects and Reasons of the OEA Act, 1951

reads as under:

“……in the interest of the cultivators of the

soil and for the general, material and social

advancement of the Province, it is necessary to

remove all intermediaries between the

Government and the ryots. The general consensus

of opinion is that the zamindari system has

perpetuated assessment which has no relation to

the productive capacity of the land and has

further led to loss of contact between the

Government and the actual cultivator and has

acted as a break in agricultural improvement ……

It seems without a social change in the

existing system of land tenure no coordinated

plan of agricultural reconstruction can be

undertaken with a fair rent, fixity of tenure,

proper maintenance of irrigation sources and

consequent increases of crop yield and

extension of cultivation.......”

(emphasis laid by this Court)

The OEA Act, 1951 was thus enacted with a view to

protecting the interest of the cultivators of the soil

and to do away with the evils of the zamindari system.

In the light of the same, it cannot be said that the

provisions of the OEA Act, 1951 will apply to the land

of the appellant Temple Committee over the provisions of

Page 41 41

the Temple Act, 1955, which is clearly the special

legislation in the instant case. At this stage, it is

also crucial to examine the statement of objects and

reasons of the Amendment Act of 1974 by virtue of which

Section 2(oo) was inserted in the OEA Act, 1951. It

states as under:

“The Orissa Estates Abolition Act, 1951

provides for the abolition of temporarily and

permanently settled zamindaris and other

intermediary interests and tenures in the State

of Orissa. All estates except trust estates

have vested in the Government by virtue of

notifications issued in that behalf by the

Government under the Act. For carrying out the

purposes of trusts efficiently and to ensure

proper performance of traditional rites and

rituals in the religious institutions when

trust estates 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.

Page 42 42

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 30 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

in direct contravention and subversion of the

provisions of the Temple Act, 1955. Further, even the

contention advanced on behalf of the

respondent Math that a subsequent legislation takes

precedence over a prior decision is liable to be

rejected as the same is not tenable in law. The same

becomes clear from the decision of this Court in the

Page 43 43

case of U.P State Electricity Board referred to supra,

wherein a three judge bench had to adjudicate the

operation of a subsequent general legislation in the

following terms:

“We have already shown that the Industrial

Employment (Standing orders) Act is a

Special Act dealing with a Specific subject,

namely the conditions of service, enumerated

in the Schedule, of workmen in industrial

establishments. It is impossible to conceive

that Parliament sought to abrogate the

provisions of the Industrial Employment

(Standing orders) Act embodying as they do

hard-won and precious rights of workmen and

prescribing as they do an elaborate

procedure, including a quasi-judicial

determination, by a general, incidental

provision like Sec. 79(c) of the Electricity

Supply Act. It is obvious that Parliament

didnot have before it the Standing orders

Act when it passed the Electricity Supply

Act and Parliament never meant that the

Standing orders Act should stand protanto

re pealed by Sec. 79(c) of the Electricity

Supply Act. We are clearly of the view that

the provisions of the Standing orders Act

must prevail over S. 79(c) of the

Electricity Supply Act, in regard to matters

to which the Standing orders Act applies.”

Further, Justice Krishna Iyer in the case of LIC v.

D.J. Bahadur

15

, while examining the difference between

general and special statutes held as under:

15 AIR 1980 SC 2181

Page 44 44

“In determining whether a statute is a special

or a general one, the focus must be on the

principal subject matter plus the particular

perspective. For certain purposes, an Act may

be general and for certain other purposes it

may be special and we cannot blur distinctions

when dealing with finer points of law. In law,

we have a cosmos of relativity not absolutes-so

too in life. The ID Act is a special statute

devoted wholly to investigation and settlement

of industrial disputes which provides

definitionally for the nature of industrial

disputes coming within its ambit. It creates an

infrastructure for investigation into, solution

of 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.”

Page 45 45

Further, on the point of a subsequent legislation taking

precedence over a prior legislation, he observed as

under:

“The general rule, that prior statutes are held

to be repealed by implication by subsequent

statutes if the two are repugnant, is said not

to apply if the prior enactment is special and

the subsequent enactment is general , the rule

of law being, as stated by Lord Selbourne in

Seward v. Vera Cruz (1884) 10 AC 59 "that where

there are general words in a later Act capable

of reasonable and sensible application without

extending them to subjects specially dealt with

by earlier legislation, you are not to hold

that earlier and special legislation indirectly

repealed, altered, or derogated from merely by

force of such general words, without any

indication of a particular intention to do so",

"There is a well-known rule which has

application to this case, which is that a

subsequent general Act does not affect a prior

special Act by implication. That this is the

law cannot be doubted , and the cases on the

subject will be found collected in the third

edition of Maxwell is generalia specialibus non

derogant-i.e. general provisions will not

abrogate special provisions. "When the

legislature has given its attention to a

separate subject and made provision for it, the

presumption is that a subsequent general

enactment is not intended to interfere with the

special provision unless it manifests that

intention very clearly. Each enactment must be

construed in that respect according to its own

subject-matter and its own terms.”

(emphasis laid by this Court)

Page 46 46

23. In the instant case, there is a clear conflict

between the proviso of Section 2(oo) of the OEA Act,

1951 and Sections 5 and 30 of the Temple Act, 1955. It

is also clear that both the above statutory provisions

of the Acts cannot survive together. While the rule of

harmonious construction must be given effect to as far

as possible, when the provisions of two statutes are

irreconcilable, it needs to be decided as to which

provision must be given effect to. In the instant case,

Section 2(oo) proviso in its entirety is not violative

of the provisions of the Temple Act. At the cost of

repetition, we reproduce the relevant part of Section

2(oo) of the OEA Act, 1951 as under:

“Provided that all estates belonging to the

Temple of Lord Jagannath at Puri within the

meaning of the Shri Jagannath Temple Act, 1955

and all estates declared to be trust estates by

a competent authority 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

Page 47 47

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.

16

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 laid by this Court)

In J.K. Cotton Spinning and Weaving Mills Co. Ltd.

v. State of U.P.

17

, a three judge bench of this Court

held as under:

“9. ...We reach the same result by applying

another well known rule of construction that

general provisions yield to special provisions.

The learned Attorney-General seemed to suggest

that while this rule of construction is

16 (2014) 8 SCC 319

17 (1961) 3 SCR 185

Page 48 48

applicable to resolve the conflict between the

general provision in one Act and the special

provision in another Act, the rule cannot apply

in resolving a conflict between general and

special provisions in the same legislative

instrument. This suggestion does not find

support in either principle or authority. The

rule that general provisions should yield to

specific provisions is not an arbitrary

principle made by lawyers and Judges but

springs from the common understanding of men

and women that when the same person gives two

directions one covering a large number of

matters in general and another to only some of

them his intention is that these latter

directions should prevail as regards these

while as regards all the rest the earlier

direction should have effect. In Pretty v.

Solly (quoted in Craies on Statute Law at p.m.

206, 6

th

Edn.) Romilly, M.R., mentioned the

rule thus:

The rule is, that whenever there is a

particular enactment and a general enactment in

the same statute and the latter, taken in its

most comprehensive sense, would overrule the

former, the particular enactment must be

operative, and the general enactment must be

taken to affect only the other parts of the

statute to which it may properly apply .

The rule has been applied as between different

provisions of the same statute in numerous

cases some of which only need be mentioned: De

Winton v. Brecon, Churchill v. Crease, United

States v. Chase and Carroll v. Greenwich Ins.

Co.

10. Applying this rule of construction that in

cases of conflict between a specific provision

and a general provision the specific provision

prevails over the general provision and the

general provision applies only to such cases

which are not covered by the special provision ,

Page 49 49

we must hold that Clause 5(a) has no

application in a case where the special

provisions of Clause 23 are applicable.”

(emphasis laid by this Court)

It becomes clear from a perusal of the above mentioned

two judgments of this 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

Page 50 50

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 proviso to Section 2(oo) of the OEA

Act. Therefore, we have to strike down the proviso to

Section 2(oo) of the OEA Act and also quash the

notification dated 18.03.1974 in so far as it relates to

the property of Lord Jagannath Temple at Puri.

25.Further, it is a settled principle of law that once

a property is vested by an Act of legislature, to

achieve the laudable object, the same cannot be divested

by the enactment of any subsequent general law and vest

such property under such law. Similarly, if in the

instant case, we were to accept the contentions advanced

by the learned senior counsel appearing on behalf of the

respondent Math, then Sections 5 and 30 of the Temple

Act, 1955 will be rendered useless and nugatory and

thereby the laudable object and intendment of the Temple

Page 51 51

Act will be defeated and the interest of the public at

large will be affected. Thus, the notification dated

18.03.1974 issued by the State Government under Section

3-A of the OEA Act, 1951, whereby the estate of Lord

Jagannath Mahaprabhu Bije, Puri vested in the State

Government (in terms of Point (ii) of the notification),

is liable to be quashed to that extent. As a

consequence, the order dated 30.09.1981 passed by the

OEA Tahsildar, who falls within the inclusive definition

of Collector in terms of Section 2 (d) of the OEA Act,

1951, settling the land in favour of the Mahantas of

various Maths as Marfatdars of the Shri Jagannath

Mohaprabhu Bije, Puri is in violation of the provisions

of the Temple Act, 1955 and is thus, liable to be set

aside.

Answer to Point No. 2

26.We will now examine whether even according to the

provisions of the OEA Act, 1951, the respondent Math had

the right to file an application for settlement of the

suit lands in terms of Sections 6 and 7 of the OEA Act,

Page 52 52

1951. There are certain provisions of the OEA Act, 1951

which need to be appreciated at this stage.

Section 2(hh) of the OEA Act, 1951 defines an

intermediary interest as follows:

“‘Intermediary interest’ means an estate or

any rights or interest therein held or owned

by or vested in an Intermediary and any

reference to ‘estate’ in this Act shall be

construed as including a reference to

‘Intermediary Interest’ also”

Section 8-A provides for filing of claims under

Section 6,7 and 8 of the OEA Act, 1951 which reads as

under:

“8-A. Filing of claims under Section 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

Page 53 53

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 senior counsel further contends

that the application filed by the appellant Temple

Committee under Section 8-A, in which an order dated

30.11.1992 settling the lands in their favour was passed

was liable to be set aside, as the respondent Math herein

was not a party to the same. It is further contended that

the order was liable to be set aside, as the lands

already settled by way of order dated 12.01.1982 in

favour of the respondent Math, could not be re-settled as

the same were not available for the Collector to do so in

view of the earlier order, referred to supra.

Page 54 54

28.Mr. Shibasis Mishra, the learned counsel appearing

on behalf of the State of Odisha, the appellant in Civil

Appeal No.142 of 2010 contends that after the decision

of this Court in the case of Lord Jagannath referred to

supra, the State Government vide notifications dated

18.04.1989 and 20.11.1990, extended the time period for

filing of claims in respect of estates of Lord

Jagannath. On 20.11.1990, the Temple Committee lodged

its claim recording the estates of Lord Jagannath in

favour of Shri Jagannath Mahaprabhu Bije, Puri, Marfat

through Shri Jagannath Temple Managing Committee by

filing Claim Case No. 68 of 1990. On 30.11.1992, the

order was passed by the OEA Collector recording the

properties in favour of the Temple Committee.

29.We cannot accept the contentions advanced by the

learned senior counsel appearing on behalf of the

respondent Math. The Form ‘H’ submitted in terms of the

OEA Act, 1951 in Claim Case No. 58 of 1975 reveals that

while Column 9 “ [Whether with respect to the lands in

possession of the applicant or his temporary lessee or

Page 55 55

mortagagee on the date of vesting]” is marked as ‘Self

Possession’, and Column 11 “[If in the possession of a

temporary lessee or mortgagee give full details of the

lessee or mortgagee……]” has been left blank. Therefore,

the claim of the respondent Math and the basis of its

claim is not stated in the claim petition. In the

absence of the same, its claim as intermediary to prefer

claim under Sections 5, 6, 7, 8 of the OEA Act, 1951

before the Tahsildar is wholly untenable in law.

Further, the order dated 12.01.1982, passed in OEA Claim

Case No. 58 of 1975 filed by the respondent Math to

settle the lands in their favour has been passed by the

Tahsildar, Puri. Section 8-A of the Act clearly provides

that the claims have to be filed 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 8-A, OEA

Page 56 56

Act, 1951 are quasi judicial in nature. The Orissa High

Court in the case of Bharat Bihari Mishra v. State of

Orissa

18

, has held as under:

“All the above provisions of the Act and the

Rules go to indicate that the proceeding under

Section 8-A(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 Court has held that the Tahsildar

performs an administrative function and not a quasi

judicial one. In the case of Basanti Kumar Sahu v.

State of Orissa

19

a three judge bench of this Court has

held as under:

18 2012 (II) OLR 968

19 (1998) 8 SCC 722

Page 57 57

“If it had been an order made on the

quasi-judicial side, the High Court would have

held that the Tribunal had jurisdiction under

Section 38-B and there would have been no

occasion to interfere with the order. The High

Court justified the Board's order to the extent

it annulled the Tahsildar's order dated

17-12-1977 but interfered with it solely on the

ground that the Board had no jurisdiction since

the Tahsildar's order was not a quasi-judicial

order. In other words, according to the High

Court, the Tahsildar's order was an

administrative order. If that be so, one fails

to understand why the matter should be remitted

to the Tahsildar once again to take an

administrative decision? The order of the High

Court is, therefore, unsustainable.”

31.Since the Tahsildar performs only an administrative

function under the OEA Act, 1951 and not a quasi

judicial function, thus, he was not competent to pass

the order of settlement of claim either under Section 6

or 7 or 8 of the OEA Act, 1951. For the reasons stated

in answer to Point No.1 above, vesting of the suit lands

in favour of the Math is bad in law. Further, as we have

already held supra that once the land already vested in

the Temple Committee under Sections 5 and 30 of the

Temple Act, 1955 which is a special enactment to deal

with the properties endowed to the appellant Temple

Page 58 58

Committee, the same could not have been divested by

applying the provisions of the OEA Act, 1951 by way of

an amendment to the Act by insertion of Sections 2(oo)

and 3A in the OEA Act, 1951, as the operation of the

said Act and the Temple Act, 1955 are in different

fields and the objects and intendment of the

abovementioned two Acts are entirely different. A

constitution bench of this Court in the case of

Calcutta Gas Company Ltd. v. State of West Bengal

20

held that in case of a conflict or overlap between

different entries, the rule of harmonious construction

must be applied to give effect to all the entries. This

Court held as under:

“8. ……Before construing the said entries is

would be useful to notice some of the well

settled rules of interpretation laid down by

the Federal 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

20 AIR 1962 SC 1044

Page 59 59

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 to be the general scheme

of the Act."

The learned Chief Justice proceeded to state :

"........... an endeavour must be

made to solve it, as the Judicial

Committee have said by having

recourse to the context and

scheme of the Act, and a

reconciliation attempted between

two apparently conflicting

jurisdictions by reading the two

entries together and by

interpreting, and, where

necessary, modifying the language

of the one by that of the other.

If indeed such a reconciliation

should prove impossible, then,

and only then, will the

non-obstante clause operate and

the federal power prevail."

The Federal Court in that case held that the

Page 60 60

entry "taxes on the sale of goods" was not

covered by the entry "duties of excise" and in

coming to that conclusion, the learned Chief

Justice observed :

"Here are two separate

enactments, each in one aspect

conferring the power to impose a

tax upon goods; and it would

accord with sound principles of

construction to take the more

general power, that which extends

to the whole of India, as subject

to an exception created by the

particular power, that which

extends to the provinced only. It

is not perhaps strictly accurate

to speak of the provincial power

as being excepted out of the

federal power, for the two are

independent of one another and

exist side by side. But the

underlying principle in the two

cases must be the same, that a

general power ought not to be so

construed as to make a nullity of

a particular power conferred by

the same Act and operating in the

same field, when by reading the

former in a more restricted sense

effect can be given to the latter

in its ordinary and natural

meaning."

The rule of construction adopted by that

decision for the purpose of harmonizing the two

apparently conflicting entries in the two Lists

would equally apply to an apparent conflict

between two entries in the same List. Patanjali

Sastri, J., as he then was, held in State of

Bombay v. Narothamdas Jethabai, that the words

"administration of justice" and "constitution

and organization of all courts" in item one of

Page 61 61

List II of the Seventh Schedule to the

Government of India Act, 1935, must be

understood in a restricted sense excluding from

their scope "jurisdiction and powers of courts"

specifically dealt with in item 2 of List II.

In the words of the learned Judge, if such a

construction was not given "the wider

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 8-A 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.

Page 62 62

Answer to Point No. 3

32.In view of the findings and reasons recorded on

Point Nos.1 and 2 in favour of the appellant Temple

Committee, the impugned judgment and order dated

07.07.2009 passed in Original Jurisdiction Case No. 2421

of 2000 by the High Court of Orissa at Cuttack is liable

to be set aside and accordingly, we set aside the same.

33.Since we have categorically recorded the finding

both on facts and in law while answering Point No. 1 in

favour of the appellant Temple Committee holding that

the provisions of the OEA Act, 1951 have no application

to the lands of the Lord Jagannath Temple at Puri, there

is no need for us to pass an order in favour of the

Temple under the OEA Act, 1951 as the suit lands were

already vested in favour of the Lord Jagannath Temple at

Puri by virtue of the provisions of the Temple Act,

1955.

Page 63 63

34.For the foregoing reasons, we pass the following

order :-

i) C.A. Nos.7729 of 2009, 7730 of 2009,142

of 2010, 221 of 2010, 2981 of 2010, 3414

of 2010,3415 of 2010 and 3446 of 2010 are

allowed. The impugned judgment and order

dated 07.07.2009 passed in Original

Jurisdiction Case No. 2421 of 2000 by the

High Court of Orissa at Cuttack is hereby

set aside.

ii) We strike down the first part of the

proviso of Section 2(oo) of the OEA Act,

1951, which pertains to the properties of

Lord Jagannath Temple at Puri.

iii)The notification dated 18.03.1974 issued

by the State Government under Section 3A

of the OEA Act, 1951 in so far as point

No. (ii) is concerned, is also quashed by

this Court, to the extent, it applies to

Page 64 64

the lands and estate of Lord Jagannath

Temple at Puri.

iv) We make it very clear that the striking

down of the first part of the proviso to

Section 2(oo) of the OEA Act, 1951 as

mentioned above and quashing of the

notification referred to supra will be

prospective and this judgment shall not

be applicable to the settled claim of the

claimants hitherto under the provisions

of the OEA Act of 1951 in so far as the

lands of the Lord Jagannath Temple at

Puri are concerned.

v)In view of the disposal of appeals

above-mentioned in favour of the Temple

Managing Committee, C.A. Nos. @ SLP (C)

Nos. 9167-9168 of 2010 (filed by Sri

Raghab Das Math) and C.A. No. 9627 of

2010 (filed by Bauli Matha) are hereby

dismissed.

Page 65 65

vi)No costs are awarded in these

proceedings.

………………………………………………………… J.

[V. GOPALA GOWDA]

………………………………………………………… J.

[C. NAGAPPAN]

New Delhi,

December 16, 2015

Page 66 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO.7 OF 2016

IN

CIVIL APPEAL NO. 7729 OF 2009

Sri Jagannath Temple Mng. Committee Appellant (s)

VERSUS

Siddha Math & Ors. Respondent(s)

O R D E R

Heard learned counsel for the parties.

We have perused the I.A. No. 7 of 2016. It is

pointed out that in the judgment dated 16.12.2015 passed in

Civil Appeal No. 7729/2009 and other connected appeals in

Paragraph Nos. 16, 22, 23, 25 and 31 there is an

inadvertent typographical error with regard to mentioning

the correct provisions of the Temple Act, 1955. Therefore,

we direct that in the aforesaid paragraphs wherever

Section 30 is written it shall be substituted with Section

33 of the Temple Act, 1955 after deleting Section 30 of the

Act.

Accordingly, I.A. No. 7 of 2016 is allowed.

The office is directed to issue corrigendum in

these matters and issue the copy of the corrected copy of

the judgment along with corrigendum to all concerned

parties. The Registry is also further directed to

communicate the corrigendum to all the recognized Reporters

for effecting correction.

........................J.

(V. GOPALA GOWDA)

........................J.

(C. NAGAPPAN)

New Delhi;

Date: 27.04.2016.

Page 67 ITEM NO.1A-For Judgment COURT NO.10 SECTION XIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 7729/2009

SRI JAGANNATH TEMPLE MNG. COMMITTEE Appellant(s)

VERSUS

SIDDHA MATH & ORS. Respondent(s)

WITH

C.A. No. 7730/2009

C.A. No. 142/2010

C.A. No. 221/2010

C.A. No. 2981/2010

C.A. No. 3414/2010

C.A. No. 3415/2010

C.A. No. 3446/2010

C.A. Nos.14631-14632 of 2015 @ SLP(C) No. 9167-9168/2010

C.A. No. 9627/2010

Date : 16/12/2015 These matters were called on for pronouncement of

JUDGMENT today.

For Appellant(s) Mr. Swetaketu Mishra, Adv.

Mr. Sanjay R. Das, Adv.

Mr. V. K. Monga,Adv.

Mr. Shibashish Misra,Adv.

Mr. Radha Shyam Jena,Adv.

Mr. Vinoo Bhagat, Adv.

Mr. Rutwik Panda,Adv.

Ms. Anshu Malik, Adv.

Mr. A. Venayagam Balan,Adv.

Page 68 For Respondent(s) Mr. Rajiv S. Roy, Adv.

Mr. Pranab Kumar Mullick, Adv.

Mr. Avrojyoti Chatterjee, Adv.

Mr. Sukumar, Adv.

Mrs. Soma Mullick, Adv.

Mr. Sebat Kumar Devria, Adv.

Mr. Abhijit S. Roy, Adv.

Mr. Satya Mitra,Adv.

Mr. S. K. Verma,Adv.

Mr. Atul Kumar, Adv.

CA 7730/09, 221/10 Mr. Vinoo Bhagat, Adv.

and 3414/2010 Mr. Rutwik Panda,Adv.

Ms. Anshu Malik, Adv.

Mr. Kunal Verma,Adv.

Mr. Sibo Sankar Mishra,Adv.

Hon'ble Mr. Justice V.Gopala Gowda pronounced the

judgment of the Bench comprising His Lordship and Hon'ble

Mr. Justice C. Nagappan.

Leave granted in SLP(C) Nos. 9167-9168 of 2010.

C.A. Nos.7729 of 2009, 7730 of 2009,142 of 2010, 221 of

2010, 2981 of 2010, 3414 of 2010,3415 of 2010 and 3446 of

2010 are allowed and C.A. Nos.14631-14632 of 2015 @ SLP(C)

Nos. 9167-9168 of 2010 and C.A. No.9627 of 2010 are

dismissed in terms of the Signed Reportable Judgment.

(VINOD KUMAR) (MALA KUMARI SHARMA)

COURT MASTER COURT MASTER

(Signed Reportable Judgment is placed on the file)

Page 69 69

ITEM NO.301 COURT NO.9 SECTION XIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

I.A. 7/2016 in Civil Appeal No(s). 7729/2009

SRI JAGANNATH TEMPLE MNG. COMMITTEE Appellant(s)

VERSUS

SIDDHA MATH & ORS. Respondent(s)

(for correction of typographical error and office report)

Date : 27/04/2016 This application was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE V. GOPALA GOWDA

HON'BLE MR. JUSTICE C. NAGAPPAN

For Appellant(s) Mr. J.K.Das,Sr.Adv.

Mr. Sanjay Kumar Das,Adv.

Mr. Swetaketu Mishra,Adv.

Mr. Sandeep Devashish Das,Adv.

Mr. V. K. Monga,Adv.

For Respondent(s)

Mr. Satya Mitra,Adv.

Mr. S. K. Verma,Adv.

UPON hearing the counsel the Court made the following

O R D E R

I.A. No. 7/2016 is allowed in terms of the signed

order.

(SUMAN WADHWA)

AR-cum-PS

(CHANDER BALA)

COURT MASTER

Signed order is placed on the file.